author: SCHOTT, Judge. PER CURIAM

text:
    Peggy R. LOMBARDO v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Dr. Sidney D. Bullard.
    No. 11566.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 9, 1981.

      George C. Stringer, Jr., and Charles J. Ganucheau, Harahan, for plaintiff-appellant.
    H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and EDWIN R. HUGHES (Assigned), JJ.
   SCHOTT, Judge.

Plaintiff, Mrs. Peggy R. Lombardo, has appealed from a dismissal of her medical malpractice claim against Dr. Sidney D. Bullard, a gynecologist, and his insurer. Bullard was alleged to be negligent in his use of cotton sutures for a vaginal repair and in his failure to recognize that these sutures were causing serious problems for her during the post-operative period. The issues are whether the trial court erred in his factual conclusions adverse to plaintiff and whether LSA R.S. 9:2794 prescribing the standards for measuring the quality of a physician’s conduct is unconstitutional.

Plaintiff was hospitalized in May, 1973, for anterior and posterior vaginal repairs by defendant. He utilized cotton sutures in the deep fascia along with chromic absorba-ble sutures elsewhere. She remained under his care until the end of January, 1974, when she consulted another gynecologist, Dr. Wiedemann. Her condition during the months while Bullard was treating her is the subject of sharply conflicting testimony by the parties.

According to plaintiff, she continued over these months to have bleeding and a malodorous discharge from her vagina as well as soreness and discomfort in the area which prompted Bullard to cauterize her vagina several times. Bullard testified that plaintiff’s recovery was generally uneventful until November, when he found a raw spot on her vagina which he cauterized with silver nitrate. He also testified that he found some additional sore spots in January, which he also cauterized, and when he saw her for the last time as a patient in late January he was considering rehospitalization which he discussed with her. Plaintiff testified that he never mentioned rehospi-talization.

The trial judge obviously rejected plaintiff’s testimony and accepted Bullard’s. For our purposes on appeal we must accept this credibility call and the facts as testified to by Bullard. For reasons discussed below this determination of whether to believe plaintiff was crucial and the rejection of her testimony was dispositive of her case based on Bullard’s alleged failure to diagnose properly during the post-operative period, but we first consider plaintiff’s charge that Bullard’s use of cotton sutures constituted negligence in the first place.

Bullard explained that cotton sutures had the advantage of being stronger and thus more desirable for anchoring the bladder and the rectum in vaginal repair work. His expert, Dr. Gauthier, another gynecologist, testified that he used cotton in thousands of such cases without a problem. None of the other experts, two called by plaintiff and one by defendant, said the use of cotton sutures constituted substandard medical conduct. They said only that they did not use cotton, preferring chromic absorbable material. The reading of this expert testimony does not furnish us with a basis to reverse the trial judge’s conclusion that plaintiff did not prove that Bullard’s use of cotton sutures of itself constituted medical malpractice.

Following his testimony that plaintiff’s recovery was generally uneventful until November 26, when he discovered a raw spot which he cauterized with silver nitrate, Bullard testified as follows: When she returned for her next visit on December 4 he found that the area previously cauterized was healing and she was instructed to return in a week. She did return on January 8, 1974, complaining of bleeding from the area. He had already considered the possibility that her trouble was being caused by the cotton sutures and checked to see if the incision was “spitting” any of the sutures. He found none but he did not probe because this would damage repairs that had already been completed. He told her to return for another examination which she did on January 28, again complaining of bleeding. The spots Bullard had discovered previously were still raw and he cauterized them with silver nitrate. He inspected for sutures and found none. He prescribed medication and told her to return in one week for evaluation and possible hospitalization.

When plaintiff was examined by Dr. Wiedemann on February 6 she complained of bleeding and a discharge. Dr. Wiede-mann found two lesions, one in the anterior area and the other in the posterior area, and he discovered two sutures extruding from the anterior repair and one from the posterior area. He removed these sutures and cauterized the area with silver nitrate. By March 1, the anterior area had healed but the posterior area had not He recommended hospitalization for a wedge resection, a procedure involving the removal from along the incision granulation tissue which contained cotton sutures. This was carried out in the hospital on March 25 with several cotton sutures being excised from the incision along with the tissue and the wound being closed with absorbable sutures.

Plaintiff next consulted a urologist for problems in her uretha. He found a stricture in the uretha which may have been the result of the cotton suture-infection-granulation tissue development on the anterior of the vaginal wall. However, the urologist also stated that this condition could have resulted from chronic cystitis which Dr. Bullard testified plaintiff had even before the surgery in May (but which plaintiff denied she had) or even from placement of an indwelling catheter during the 1973 surgery. In any event, our conclusion of no manifest error in the trial judge’s conclusion that no negligence on Dr. Bullard’s part was proved makes it unnecessary to decide the cause of plaintiff’s problem.

All of the testifying gynecologists agreed essentially that there was no reason for Bullard to resort to probing and hospitalization for plaintiff unless he found that cotton sutures were in fact extruding from the incision. They all agreed that cauterization with silver nitrate was the proper treatment when the raw spot first showed up in November and that it was not unreasonable or substandard for Bullard to cauterize again in January when the two additional raw spots showed up and to consider hospitalization for the first time at the end of January.

R.S. 9:2794 prescribes that a plaintiff in a malpractice action based on the negligence of a physician has the burden of proving the following:

“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular speciality and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”

Accepting Bullard’s testimony as true we readily conclude that plaintiff failed to carry her burden of proof. There is no testimony by any of the experts that Bul-lard’s treatment of plaintiff was beneath the degree of care or lacking in the skill possessed by physicians practicing in the community.

Plaintiff contends that her establishing that Bullard had used cotton sutures constituted proof that he had implanted a foreign object in her with the result that hers was a res ipsa loquitur situation shifting the burden to Bullard. This argument fails because there was no proof that the use of cotton sutures in the deep fascia was not consistent with proper medical care. Plaintiff also places reliance on her testimony that when she was first examined by Dr. Wiedemann he asked her, “What butcher did this?”. This testimony was given after Dr. Wiedemann had already testified. Plaintiff contends that defendants’ failure to recall Dr. Wiedemann to determine whether he made that statement results in an inference unfavorable to defendants’ case. Considering that Dr. Wiedemann’s testimony was not critical of Bullard’s treatment it seems obvious that he would have denied making such a statement. And, further considering that plaintiff supposedly had knowledge of such a statement when she had Dr. Wiedemann on the witness stand and declined to interrogate him with respect to any such statement, we cannot conclude that the failure by defendants to recall him resulted in an unfavorable inference with respect to their case.

Finally, we turn to plaintiff’s argument that R.S. 9:2794 is unconstitutional. Plaintiff’s argument is that the statute is unconstitutionally vague because the phrase “the degree of care ordinarily executed” is not defined with specificity and because the statute makes no provision for notice as to how a plaintiff is to proceed in establishing that degree of care. We are unpersuaded by this argument in support of which plaintiff cites no authority. In effect, she says the statute is vague based on her subjective interpretation. The words are clear enough for an understanding and application by the trier of fact be it judge or jury. We simply do not agree with plaintiff that the statute is vague, although the use of the words “degree of” seem superfluous. Since the language as a whole is quite clear we see no necessity for the inclusion of notice as to how plaintiff is to proceed.

Plaintiff’s next argument on unconstitutionality is that she, as a medical tort victim, has been denied the due process and equal protection afforded victims of torts in general. She concedes that other aspects of the medical malpractice act were held to pass constitutional muster in Everett v. Goldman, 359 So.2d 1256 (La.1978), but contends that the approved sections of the act do not abridge a fundamental right to a fair trial as does R.S. 9:2794.

We are not convinced that plaintiff’s fundamental right has been changed. A tort victim in general must prove that the defendant’s conduct was below the standard expected of a reasonably prudent person under the circumstances. The statute simply recognizes that the circumstances encompassing a physician’s or dentist’s conduct include the degree of care and skill possessed by the reasonably prudent physician or dentist in the community and within the speciality involved. Even before the enactment of the statute the courts recognized that the doctor’s conduct had to be evaluated according to a relevant standard, i. e., acceptable conduct within the medical profession. It would be impractical to measure the doctor’s conduct by standards which do not take into account the extent of specialized knowledge or skill available to a defendant at the time and place where his alleged tort was committed. The statute does no more than provide the trier of fact with a workable aid in the task of determining whether or not the doctor’s conduct was substandard. It does not hamper a plaintiff in search of justice but assists the court in its search for the truth in a constantly developing, technical, scientific area thereby promoting justice.

AFFIRMED.

ON REHEARING

PER CURIAM

In her application for rehearing appellant complains that we did not address in our original opinion her argument that LSA-R.S. 9:2794 is a special law within the definition of Art. 3, § 12(A)(3) of the Constitution of 1974 and that the statute violates the equal protection clause of the state and United States Constitutions because it creates a special class of defendants. Although Everett v. Goldman, 359 So.2d 1256 (La.1978) was concerned with specific portions of the statute the court’s disposition of the equal protection challenge in that case adequately disposes of appellant’s arguments in this case. In Sapir v. Hardy, 349 So.2d 47 (La.App. 4th Cir. 1977) writ refused La., 349 So.2d 867, this court held that legislation is not local or special when the act applies to a class founded upon reasonable and proper classification. The application for rehearing is denied.


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice,

license: Public Domain

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Plywood Workers Local Union No. 3181 v. GEORGIA-PACIFIC CORPORATION.
    No. 52308.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    As Amended On Denial of Rehearing Feb. 25, 1981.
    Fred J. Lotterhos, John L. Maxey, II, Cupit & Maxey, Jackson, Lynn Agee, Memphis, Tenn., for appellants.

      L. Arnold Pyle, Peyton S. Irby, Jr., Watkins, Pyle, Ludlam & Stennis, Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and BOWLING.
   ROBERTSON, Presiding Justice,

for the Court:

This appeal is from an order of the Circuit Court of the First Judicial District of Hinds County reversing the findings and decision of the Mississippi Employment Security Commission (MESC) and its Board of Review. MESC’s Order entered May 11, 1979, found that:

“[Tjhere was a stoppage of work at Georgia-Pacific Corporation which existed because of a labor dispute, and that such stoppage of work was caused by an unjustified lockout by said employer; and that under the provisions of § 71-5-513 A(5Xa), Mississippi Code of 1972, such claimants are not disqualified for benefits under the Mississippi Employment Security Law.”

The court found that the Commission’s Order was erroneous as a matter of law, and that the lockout by GP was not an “unjustified lockout” but was part of a legitimate collective bargaining process for a new contract of employment for Plywood Workers Local Union No. 3181 at Georgia-Pacific’s Louisville, Mississippi, plywood plant. The court also was of the opinion “that the Commission’s investigation and ruling on the justifiability or reasonableness of the plaintiff’s lockout was clearly preempted by the federal law.”

The three-year contract of employment between GP and Union No. 3181 expired on January 19, 1979. GP and the local Union had been negotiating since the middle of December, 1978, for a new contract, but had been unable to reach an agreement on all terms. The deadline of January 19, 1979, was extended by agreement of the parties, and GP and the Union continued to bargain and negotiate. On February 13, 1979, GP gave the required written notice to terminate the contract if no agreement was reached. On February 26,1979, GP and the Union agreed to further extend the contract through March 1, 1979.

Article XXIV of the contract provided:

“At any time after the expiration date if no agreement on the question at issue has been reached, either party may give written notice to the other party of intent to terminate the agreement in not less than ten (10) days. All the provisions of the agreement shall remain in full force and effect until the specified time has elapsed. During the period, attempts to reach an agreement shall be continued and there shall be no strikes or lockouts.
“If the parties have failed to resolve their differences when the above specified time has elapsed, all obligations under this agreement are automatically canceled.”

On March 2,1979, GP informed the Union and its employees that it had no more work for them until the terms of a new contract were agreed upon and all contract disputes resolved. GP locked up its Louisville plant.

On March 5, 1979, the employees began applying for unemployment compensation benefits. GP and the Union continued to negotiate and bargain and on April 13, 1979, a new contract was agreed to. Claimants began returning to work on April 15.

On March 22, 1979, GP filed a complaint in the United States District Court for the Southern District of Mississippi, in which it sought a temporary restraining order, preliminary and permanent injunction, and declaratory judgment, to stop the proposed action of the Mississippi Employment Security Commission to determine whether the lockout of the employees for the purposes of awarding unemployment benefits was justified or unjustified. The grounds upon which the relief was requested were that the actions of MESC were contrary to federal labor policy and violated the doctrine of federal preemption and the Supremacy Clause of the United States Constitution.

After hearing argument on the matter, the United States District Court dismissed the complaint, holding that GP was not entitled to a prohibitory injunction “on this interlocutory, or preliminary application.” MESC then proceeded to hear the matter and on May 11, 1979, entered the following order:

“The Commission finds, based upon convincing substantial evidence in the record before it, that there was a stoppage of work at Georgia-Pacific Corporation which existed because of a labor dispute, and that such stoppage of work was caused by an unjustified lockout by said employer; and that under the provisions of § 71-5-513 A.(5)(a), Mississippi Code of 1972, such claimants are not disqualified for benefits under the Mississippi Employment Security Law." (Emphasis added).

GP appealed to the Board of Review of MESC. After hearing additional evidence, the Board of Review affirmed the Order of the Commission.

Under the provisions of MCA § 71-5-531 (1972), GP then began an action in the Hinds County Circuit Court (First District) against MESC to review its decision. Section 71-5-531 provides in part:

“In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law. Such actions, and the questions so certified, shall be heard in a summary manner and shall be given precedence over all other civil cases.”

The circuit court reversed the decision of MESC and its Board of Review. The court found that, not only was the lockout justified, but also that the Commission’s decision was an invasion of an area preempted by national labor policy.

In their appeal to this Court, MESC and the Union have assigned as error:

I.The doctrine of res judicata bars re-litigation of the preemption question raised by Georgia-Pacific.
II.Alternatively, if the Court holds that res judicata does not apply, appellants contend that the determination by the MESC as to the eligibility of claimants for unemployment benefits was not preempted by the federal labor policy.
III.The findings of the Board of Review as to the facts were supported by evidence and it was error to reverse those findings.

I.

The doctrine of res judicata does not apply in the case at bar. GP brought suit in the Federal District Court for in-junctive relief to keep MESC from even hearing the matter. In order for the doctrine of res judicata to apply, four essential conditions must be met. There must be:

(1) identity in the things sued for;
(2) identity of the cause of action;
(3) identity of the persons and parties to the action; and
(4) identity of the quality or character in the person against whom the claim is made.
Pray v. Hewitt, 254 Miss. 20, 179 So.2d 842, 844 (1965).

At least two of these conditions are absent in the case at bar.

II.

Mississippi Code Annotated section 71-5-3 (1972) provides in part: ,

“As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden, which now so often falls with crushing force upon the unemployed worker and his family. ... The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.” (Emphasis added).

MCA Section 71-5-513 A (1980 Supp.) sets forth in considerable detail when an individual claimant is disqualified for benefits under the Mississippi Employment Security law. Under the first four subsections, the individual claimant is disqualified:

(1) if “he left work voluntarily without good cause;”

(2) if “he was discharged for misconduct connected with his work;”

(3) if “he wilfully makes a false statement, a false representation of fact, or wil-fully fails to disclose a material fact for the purpose of obtaining or increasing benefits under the provisions of this law;” and

(4) if he fails, “without good cause, either to apply for available suitable work when so directed by the employment office or the commission, to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the Commission.”

MCA Section 71-5-513 A(5) provides:

“(5) For any week with respect to which the commission finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at a factory, establishment, or other premises at which he is or was last employed; provided, that this subsection shall not apply if it is shown to the satisfaction of the commission:
(a) He is unemployed due to a stoppage of work occasioned by an unjustified lockout, provided such lockout was not occasioned or brought about by such individual acting alone or with other workers in concert;” (Emphasis added).

The sole and only question before MESC was whether the stoppage of work at GP’s Louisville plant was due in any measure to the claimants’ actions, or whether it was due to GP’s actions. If it was due to GP’s actions, then the claimants were entitled to unemployment compensation; if it was due to the claimants’ actions, then they were not entitled to unemployment compensation. It was not the purpose of the Mississippi Employment Security law to thrust the Commission into the middle of collective bargaining negotiations between an employer and its employees. The purpose of the legislature in enacting this law, as set forth in MCA section 71-5-3 (1972) was to lighten the burden of involuntary unemployment by “the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.” (Emphasis added).

On July 17, 1979, the Board of Review of MESC rendered its opinion. In its Findings of Fact, the Board of Review found as facts, among other things:

“On March 2, 1979 the employer closed the plant and the work stoppage resulted from such closing of the plant by the employer. The union had continued its negotiating sessions with the employer up until that time. There had been no strike vote taken by the union and no indication had been given by the union to the employer that any strike by the workers was contemplated. The employees were ready and willing to continue working and their unemployment resulted from the closing of the plant by the employer. Negotiations between the employer and the union continued during the stoppage of work and agreement for a new contract between the union and the employer was reached on April 13, 1979. The work stoppage ended and work was resumed on April 15, 1979." (Emphasis added).
In its Opinion, the Board said:
“Section 71-5-513 A(5)(a) of the Mississippi Employment Security Law provides that an individual shall be disqualified for benefits for any week with respect to which the Commission finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at a factory, establishment or other premises at which he is or was last employed; provided, that this subsection shall not apply if it is shown to the satisfaction of the Commission that he is unemployed due to a stoppage of work occasioned by an unjustified lockout provided such lockout was not occasioned or brought about by such individual acting alone or with other workers in concert. It is apparent that the claimants were unemployed due to a stoppage of work at the Louisville Plant of Georgia-Pacific Corporation, and that the stoppage of work existed because of a labor dispute. There also seems to be no disputing the fact that the stoppage of work was occasioned by a lockout by the employer. The question to be decided, therefore, is whether such lockout was an unjustified lockout and whether such lockout was occasioned or brought about by the claimants acting alone or in concert.
Under the facts as stated above, it is the opinion of the Board that the work stoppage was occasioned by an unjustified lockout, within the meaning of the Law, and that such lockout was not occasioned or brought about by the claimants acting alone or in concert. The claimants were ready and willing to continue working. Their bargaining agent was continuing to negotiate an agreement with the employer and their unemployment resulted not from their own action but from the action of the employer in closing the plant. The Board, therefore, concurs in the determination made by the Commission that the claimants are not disqualified for benefits under the above provision of the Law.” (Emphasis added).

This Court finds that the Findings of Fact, the Opinion and the Decision of the Board of Review that the work stoppage was occasioned by an unjustified lockout, within the meaning of the Law, and that such lockout was not occasioned or brought about by the claimants acting alone or in concert, that the claimants were ready and willing to continue working, and that their unemployment resulted not from their own action but from the action of the employer in closing the plant, are supported by substantial evidence.

Mississippi Code Annotated section 71-5-531 (1972) sets the limits of appellate review by the circuit court in clear and unmistakable language:

“In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”

The circuit court was in error in holding that the decision of MESC, as affirmed by its Board of Review, was erroneous as a matter of law and that MESC did not have the right to decide whether the claimants were voluntarily or involuntarily unemployed and whether they were, or were not, entitled to unemployment compensation. The order of the circuit court is, therefore, reversed and the order of the Mississippi Employment Security Commission reinstated.

REVERSED AND RENDERED.

PATTERSON, C.J., SMITH, P.J., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

HAWKINS, J., takes no part.


text:
    Willie C. DELOACH v. STATE of Mississippi.
    No. 52417.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    Stephen S. Cooke, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Willie C. DELOACH v. STATE of Mississippi.
    No. 52351.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    James P. Vance, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Affirmed.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    PETE BROWN ENTERPRISES, INC. v. B. J. CRAWFORD.
    No. 52372.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    John S. Throop, Jr., Water Valley, for appellant.
    Ben Barrett Smith, Batesville, for appel-lee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   AFFIRMED.


author: LEE, Justice,

text:
    Beneal MATTHEWS and Edward Eugene Jacob v. STATE of Mississippi.
    No. 52392.
    Supreme Court of Mississippi.
    Jan. 28, 1981.

      J. Murray Akers, Akers & Griffin, Green-ville, for Beneal Matthews.
    Edward Eugene Jacob pro se.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Beneal Matthews and Edward Eugene-Jacob were jointly indicted, tried and convicted in the Circuit Court of Washington County on a charge of armed robbery. The trial judge sentenced Matthews to sixteen (16) years and Jacob to twenty-three (23) years in the custody of the Mississippi Department of Corrections, and they have appealed here. Matthews appeals by counsel and Jacob appeals pro se, both on the same record. Matthews assigns six (6) errors and Jacob assigns one (1) error in the trial below.

The evidence for the State overwhelmingly supports the conviction of both appellants. About 10:30 a.m. on August 19, 1979, the appellants, who claim to be husband and wife, went to the apartment of one Clemon Smith in Leland where they were admitted by Smith, who thought they wanted to buy marijuana. Upon gaining entrance into the apartment, Jacob drew an automatic pistol on Smith, forced him to lie on the floor, and while Matthews held the gun on Smith, Jacob tied his feet, and bound his arms behind his back. He also tied up Smith’s female companion and placed two (2) small children in an adjoining bedroom. Appellants took six hundred thirty-seven dollars ($637.00) in cash and personal items consisting of food stamps, a tape player, and a watch, then left the apartment and drove away.

Smith freed his feet and ran after the robbers with his hands still tied behind his back. A neighbor noticed the commotion and noted the license tag number of the car in which appellants fled. Smith and his neighbor tried to catch the appellants by following them in the neighbor’s automobile but were unsuccessful. They then went to the Leland police station where the robbery was reported and a description of the appellants and their car given to the police.

Information concerning the robbery was relayed to officers in nearby cities and counties. A Sharkey County deputy sheriff received the report and stationed himself at a highway intersection near Rolling Fork. After a short while, he observed a car which fit the description of appellants’ vehicle. As the automobile proceeded toward Rolling Fork, the deputy sheriff contacted police officer Alton Norris in that city and together they stopped the automobile and arrested Jacob, the driver. The deputy left with Jacob en route to Leland and Officer Norris remained at the scene of the arrest to look after Matthews and her four (4) children, who were on the back seat. Norris went to his patrol car to use the radio, and Matthews started the Jacob car and fled at high speed. Officer Norris pursued her, saw her throw three (3) objects out the car window (later identified as two bags of marijuana and the pistol used in the robbery), and halted her about six hundred (600) yards away. He placed Matthews under arrest and removed her and the children to the patrol car. Norris then got in the Jacob automobile for the purpose of removing it from the highway and saw and opened a bag on the floorboard which contained a large amount of money. Subsequently, it was identified as having been taken from Smith.

Matthews and the children were transported to the Rolling Fork police station and, while the attending deputy was attempting to obtain a social worker to care for the children, Matthews escaped through a bathroom window. Sometime later she was discovered hiding in a Rolling Fork church. She was transferred to the Leland jail where she complained of dizziness and nausea. An ambulance was called and Matthews was examined by two medics, but remained at the jail. While there, she executed a written consent for search of the Jacob automobile and items found were admitted in evidence at the trial.

I.

Did the lower court err in informing the jury (entire panel had not been selected) it would instruct them on the weight and credibility of the evidence?

During voir dire of the jury, the trial judge told members on the panel that at the conclusion of the case he would “instruct the jury as to what weight and what credibility they were to give the testimony of the witnesses in the case.” Matthews contends that this comment constituted error, since the jurors may have anticipated the court would give guidelines pursuant to that statement. First, no objection was made to the statement and the question cannot be raised here for the first time. Even so, assuming the issue to be properly before us, the comments are not reversible error.

The court granted Instruction # 1 which told the jury: “Your exclusive province is to determine the weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case.” There could not have been any confusion or prejudice to the jury by reason of the trial judge’s comment, because Instruction # 1 told them that the weight and credibility to be given testimony of witnesses were within the exclusive province of the jury-

II.

Did the lower court err in admitting into evidence articles taken from appellants’ car pursuant to a consent to search form executed by Matthews?

III.

Did the lower court err in admitting into evidence money discovered in a bag inside the automobile at the time of Matthews’ arrest?

The above assignments relate to evidence obtained from the car driven by both appellants and are considered together. Appellant introduced members of her family who testified that she was ill when she consented to the search of the automobile and that the consent was not voluntarily given. After the hearing to suppress such evidence, the trial judge made the following findings of fact:

(1) The arresting officers had more than sufficient probable cause to stop the car in which appellants were riding and to arrest. Thus, the arrest was legal and lawful.

(2) Seizure of the gun thrown from the window of the car was lawful.

(3) A bag of marijuana and ammunition of a caliber other than the gun found to have been used in the robbery were declared irrelevant and inadmissible.

(4) Other objects found in the car, later identified as those stolen, were seized lawfully and pursuant to a valid consent by Matthews.

(5) The bag of money was lawfully seized under the circumstances and was incident to a lawful arrest.

(6) The defendants/appellants presented no evidence refuting the admissibility of the evidence, if secured without valid consent.

The State has the burden of proof to show that the accused voluntarily consented to a search. Luton v. State, 287 So.2d 269 (Miss.1974), cert. den. 417 U.S. 920, 94 S.Ct. 2627, 41 L.Ed.2d 225 (1974). We are of the opinion that the State met that burden of proof, as found by the trial judge, and such determination will not be reversed here. Cutchens v. State, 310 So.2d 273 (Miss.1975). Also, we are of the opinion that the officers had probable cause to stop the vehicle first being driven by Jacob and to arrest him; that they had probable cause to arrest Matthews after she fled their custody and threw articles from the vehicle; and that Officer Norris, seeing the bag on the floorboard, was authorized to seize it and search the automobile pursuant to arrest.

IV.

Did the lower court err in failing to enter a mistrial because of the prosecutor’s comments on the failure of appellants to testify and in failing to instruct the jury concerning same?

During cross-examination of the State’s first witness, Jacob phrased questions in such manner that the court told him he would be allowed to testify and present witnesses later. The prosecuting attorney objected to cross-examination of the witness and said: “Your Honor, I object to this testimony now. I believe he will have an opportunity to do that [testify].” The court cautioned Jacob on his manner of questioning the witness, and told him that the appropriate time for him to refer to those matters was before the jury or in closing argument. During Jacob’s closing argument the district attorney objected to a part of it, stating, “Your Honor, I object to him testifying — if he wants to take the stand.” On this appeal the above comments are assigned as error. Appellants neither requested a cautionary instruction to the jury nor did they ask the court to tell the jury to disregard, the statement. Consequently, the point is not properly preserved. Even so, the appellants presented and argued their cases in person and the court studiously tried to preserve their constitutional rights. In Jones v. State, 381 So.2d 983 (Miss.1980), the Court said:

“The Mississippi Constitution gives the accused the right to be heard by himself or counsel, or both. However, it does not exempt a defendant who argues pro se from following the rules of court procedure. We do note, however, that the trial court should allow him some leeway in arguing his case, each case necessarily resting on its own facts and circumstances.” 381 So.2d at 993-994.

and, further:

“But, in those instances where a defendant, arguing pro se, clearly goes beyond the evidence in the record on a material point, as he did in this case, he must accept as a consequence the prosecution’s comment on his failure to swear to the testimony. The defendant’s remarks in this case cannot be dismissed as a failure to grasp ‘legal niceties.’ They are unsworn testimony, and as such, constitute a partial waiver of the constitutional privilege against self-incrimination and the prohibition against a district attorney from commenting on his not taking the stand.
We do not say that every defendant who argues pro se loses the privilege against prosecutorial comment on his failure to testify. Only when the defendant’s remarks go beyond the evidence does he waive this privilege.” 381 So.2d at 994.

V.

Was the verdict of the jury contrary to the overwhelming weight of the evidence?

The facts supporting the State’s case have been briefly stated hereinabove. Without further comment, the facts were uncontradicted and overwhelmingly supported the jury verdict of guilty. There is no merit in this contention. Jones v. State, 358 So.2d 414 (Miss.1978).

VI.

Did the lower court err in overruling Matthews’ motion for a new trial?

This is the most serious question presented. Every accused has a constitutional right to be represented by an attorney. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A waiver of that right may occur at any time, before or during the trial, but it must be made with a full understanding of its disadvantages and consequences. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

In Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), the United States Supreme Court stated:

“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” 384 U.S. at 150, 86 S.Ct. at 1321, 16 L.Ed.2d at 130.

On the other hand, an accused has a constitutional right to represent himself and to present his own case pro se without an attorney. In Gray v. State, 351 So.2d 1342 (Miss.1977), appeal after remand, 375 So.2d 994 (Miss.1979), this Court set out the following:

“Mississippi Constitution Article 3, section 26 (1890) provides in part:
‘In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, ... ’
The refusal to permit defendant to argue his case is in direct violation of the above constitutional provisions and requires reversal.” 351 So.2d at 1345.

See Ballard v. State, 366 So.2d 668 (Miss.1979).

In the present case, two learned and experienced judges participated in the trial. The first appointed the Public Defender of Washington County as attorney for Matthews and Jacob. He appeared for them at pretrial hearings and performed in a creditable manner. At the beginning of the trial on its merits, the appellants expressed dissatisfaction with the appointed attorney and desired to proceed pro se. Upon motion of the public defender, the trial judge relieved him of Matthews’ defense and appointed other experienced counsel to represent her. She declined the representation after having been thoroughly advised by the trial judge of her constitutional rights to have counsel and after his recommendation that she permit counsel to handle her defense. Jacob also declined counsel to represent him and desired to defend himself.

In spite of the expressed wishes of the appellants to represent themselves, the trial judge required the appointed attorney for Matthews to remain in the courtroom to be available to Matthews at any time she wanted him, and to advise and counsel with her, and to become involved in her defense, if she so desired, at any time during the trial. The same was done for Jacob with the public defender.

After the trial of the case, the attorney who had been appointed to represent Matthews, and whose representation she declined, filed a motion for new trial setting out that Matthews had a previous history of a mental disorder resulting from an accident, and he called to the witness stand Dr. Luther Roy White, Jr., a psychiatric consultant for the Mental Health Center in Greenville. Dr. White testified that he saw Matthews on October 5, November 6, and December 14, 1979. He gave his opinion that Matthews was influenced by Jacob in her decision to decline representation by an attorney and that she was not able to understand and appreciate the fact that she was refusing the lower court’s offer to appoint counsel for her. Dr. White’s opinion resulted from taking Matthews’ history and from examining the reports of a urologist and hospital data from Berkeley, California, dated May 8, 1979.

The trial consumed four (4) days. During that period, the trial judge observed Matthews and advised her on procedural matters. He was of the opinion that she was not influenced by Jacob, but, rather, was more intelligent and was better able to conduct her defense than Jacob. He made the following record of what he personally saw and knew about Matthews:

“BY THE COURT: I do this informally and I have not prepared any remarks for the record other than the ones that I will now make.
First of all, I agree with Mr. Gleason that the record will clearly show that on more than a few occasions this Court did everything but — and I have said this before I was quoted in the newspaper on this — but get down on my knees and beg the two defendants to avail themselves of the assistance of counsel which were provided for them. Both Mr. Jacob and Ms. Matthews, not only refused the Court’s warnings and pleadings on this issue, but they did so obstinately, consistently and in some instances with rudeness. Having not been present during the preliminary matters which were held prior to the date of the actual trial of this case, I am not aware of what took place before Judge Wilkes other than this record I have before me in the Court file in the case. However, from the date of the trial until this date, I do feel that I have been intimately involved with the case and with Ms. Matthews. I recall my first experience with Ms. Matthews and Mr. Jacob was in open Court where I explained to her the procedural rules that would have to be followed and asked her to avail herself of your services, Mr. Ak-ers. Not only did I do that in open Court, I requested to see Ms. Matthews and Mr. Jacob in chambers in an attempt to try and persuade them to avail themselves of the legal assistance that the Court had provided for them. I found from that conversation that Ms. Matthews and Mr. Jacob were in fact sincere in their belief that they could do a better job in defending themselves than the attorneys appointed for them. I also observed Ms. Matthews through the four-day trial and it was the opinion of this Court from that close observation that Ms. Matthews in fact possessed more awareness of what was going on and more intellect in identifying the issues and more acumen in directing questions of witnesses which addressed the issues than did her co-defendant Mr. Jacob, who it is claimed here dominated her into an unknowing waiver of her right to effective counsel.
On several occasions throughout the four-day period of time Ms. Matthews approached the Court individually, sometime in the presence of Mr. Jacob and sometime by herself, to confidentially ask the Court about procedural questions or to ask the Court’s advice as to what they should do next, or what she should do next. On each occasion that I was approached by Ms. Matthews, either alone or with Mr. Jacob, I found her to be coherent. I found the questions presented concerning procedure to be intelligent and pertinent questions. However, I did not agree with some of the conclusions drawn by Mr. Jacob and Ms. Matthews from our conversations and as to their strategy in proceeding with the trial and I make these comments into the record, not as an explanation of the Court’s actions but to emphasize the fact that I was sincerely concerned with their inability to properly present the theories that they both proposed as defenses to armed robbery. I did not attempt to advise them except as to matters procedural, which I would have required them to meet had they been presented in open Court before everyone present. But in any event, even though Dr. White has taken this stand and even though he is of the opinion that Ms. Matthews did not possess the ability to make an intelligent waiver when she elected to represent herself, I must find from having observed this defendant closely for a period of four days and on occasions since, that she made an intelligent waiver and that she possessed the ability to understand that waiver. I talked to her on numerous occasions attempting to convince her that if an attorney could guide her through the proposed defense the outcome would have possibly been different than it was. She indicated to me on every occasion that she understood that, that attorneys were more capable than lay people. However, she did state to me that she had a total distrust of the system. This was on the first day of the trial. She indicated to me that she did, after our conference, trust the Court. The Court lost that trust on the second day of the trial, and except for procedural matters that we discussed, the defendant Matthews gave no indication to the Court that she was seeking the Court’s advice as to her well being. She did on the first day but it is without doubt in my mind, after this long period of observation, that Ms. Matthews understood what she was doing and I am of the opinion, based on this evidence and based on what I know about Ms. Matthews, that she had a choice to go with an attorney appointed by the system or to go with herself and her husband. She made her election. The Court advised her that it was an unwise election but she had the right under our law to make that choice. She was given every opportunity to do otherwise. She was granted her right to represent herself. She exercised that right. She was given, in this Court’s opinion, a fair trial and I am not going to order a new trial for her.
The defendant’s Motion for a New Trial will be overruled.”

Juries and trial judges are not bound to accept the testimony of an expert witness, but may accept or reject parts of that testimony.

An accused could place the trial judge in a difficult situation by insisting on a pro se trial, and, upon conviction, claim that he/she did not have the benefit of counsel and did not knowingly waive counsel. Again, if the court refused to permit an accused to represent himself/herself, and required him/her to have counsel present the case, the accused could contend that he was denied his/her constitutional right in not being permitted to present his/her defense pro se. In such delicate situations, the question of counsel waiver must be determined on the facts of each case. In the case sub judice, the attorneys appointed for the appellants were required to remain in the courtroom within a few feet of the appellants during the four days of trial and were present, ready, willing and able to advise, counsel and assist the appellants. In fact, Matthews did call upon her appointed attorney at times for advice. We are of the opinion that the trial judge, who observed and talked with Matthews prior to trial and for four days during the trial, was in the best position to know whether or not she executed a knowledgeable waiver of counsel and was mentally competent to do so, and that he did not err in overruling the motion for a new trial.

On Jacob’s appeal, the sole question presented is that he was denied the benefit of counsel and that he did not knowingly waive counsel. The record is replete to the contrary and is uncontradicted that he did knowingly waive counsel.

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.


author: BROOM, Justice,

text:
    Lindsey HARPER v. STATE of Mississippi.
    No. 52354.
    Supreme Court of Mississippi.
    Feb. 11, 1981.

      Hansel Anthony Jones, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Check forgery is the offense for which the defendant, Lindsey Harper, was convicted in the Circuit Court of the First Judicial District of Hinds County. Sentenced to fifteen years imprisonment with five years suspended, he appeals contending that (1) the indictment charged no crime, (2) his motion for continuance was erroneously overruled, and (3) the evidence was insufficient to support the verdict of guilty. We affirm.

Briefly stated, the facts are as follows. On October 22,1979, the defendant presented to First National Bank in Jackson, Mississippi, a check dated the preceding day, October 21, 1979, which was a Sunday. Payee of the check was the defendant. He testified the check was given him by some woman for painting, but he failed to name or identify her. The check was drawn upon the joint checking account of R. M. Thompson (for whom the defendant previously did some work) and, Mrs. Jan Johnston and had on it what appeared to be the signature of Ms. Jan Johnston (not “Mrs.”) as maker. Mrs. Johnston, Thompson’s daughter, denied signing the check. The defendant endorsed the check but First National Bank refused payment. That same date, October 22, 1979, the defendant was arrested and charged, and the November 1979 grand jury indicted him for uttering and publishing as true the check knowing it to be forged. Trial was on January 29,1980, and the jury found him guilty as charged.

The thrust of his first argument is that the check bearing a notation “for painting” was a written contract — void because made on Sunday. He contends that being void on its face, the check is not the subject of forgery. Wilson v. State, 85 Miss. 687, 38 So. 46 (1904). Therefore, according to him, the trial court erred in overruling his motion to quash the indictment based upon Mississippi Code Annotated § 97-23-63 and § 97-23-67 (1972). In substance, these “Blue Law” statutes prohibit certain work and business activities on Sundays. Although these statutes prohibit certain activities on Sundays, they exempt certain other activities and business transactions and, as pointed out by the defendant, “painting” is not one of the exempted activities. In support of his argument that contracts entered into on Sunday are void, the defendant cited several Mississippi cases. He now argues that the lower court erroneously overruled his motion because the check, being a contract dated on Sunday issued in payment “for painting,” was void on its face and could not be the subject of forgery or basis for a valid indictment.

Our view is that the position of the defendant, if followed by this Court, would allow forgers and the like to observe the calendar, date their forged instruments on a Sunday, and thus be immunized from prosecution. It is true that according to our case law, in order for an instrument to be a basis of forgery, it must possess some legal efficacy. The rationale is that otherwise the instrument would not contain the potential to defraud and injure another. We have held, therefore, that if the instrument in question could not create a liability, it could not be the basis for a forgery. Dunson v. State, 223 Miss. 551, 78 So.2d 580, 581 (1955). Thus presented here is the question: could the check in question create a liability and have worked a fraud? The answer to this question has to be affirmative. When someone presents a check to a bank for cashing, the bank’s main inquiry is whether it has on deposit sufficient funds in the check maker’s account to cover the check. Banks in this regard take reasonable precautions in accord with Mississippi Code Annotated § 75-3-505 (1972) to insure that the presenter of the check is authorized to do so. First National’s alert teller took these precautions and did not cash the check because it was a forgery, not because it was dated on Sunday. Under Mississippi Code Annotated § 75-3-417 (1972), one who obtains payment through presentation of commercial paper, such as a check, warrants to the good faith payor that the presenter has good title to the instrument. Good title presumes a valid instrument based on a legal transaction, and accordingly banks may safely cash checks regardless of whether dated on a Sunday. Notwithstanding the defendant’s argument, this Sunday-dated check was cashable and therefore possessed sufficient legal efficacy to create a liability.

We have held that even though a contract is signed and finalized on a Sunday, evidence that it had been negotiated and agreed upon on a secular day will validate the contract. Ware v. Martin, 210 Miss. 500, 49 So.2d 832 (1951); Nerren v. W. T. Rawleigh Co., 222 Miss. 21, 75 So.2d 78 (1954); Foster v. Wooten, 67 Miss. 540, 7 So. 501 (1890). In C. Buck Bush Realty Co. v. Whetstone, 266 So.2d 135 (Miss.1972), the defendant attempted to have a Sunday-dated contract made through his broker declared void, but we held that absent proof that a 11 of broker’s work had transpired on a Sunday, the contract was valid. Similarly, a contract executed by one party on a Sunday without the knowledge of the other party is valid and enforceable as to the innocent party. Shireman v. Wildberger, 125 Miss. 199, 87 So. 131 (1921); Duggan v. Champlin, 75 Miss. 441, 23 So. 179 (1897). As against the innocent party, to permit the wrongdoer to avoid the contract on these facts and take advantage of his own wrong would be unconscionable. Likewise to exonerate the defendant on his theory that this check is void, which check he obviously desired that the bank honor, would amount to telling “Sunday forgers” that they may with impunity reap the benefits of forgery while defrauding others. Our decision here gives reasonable interpretation to our “Blue Laws” statutes and those relating to the utterance of forged checks. We are unwilling to construe our “Blue Laws” so as to hold that all checks dated on Sunday are void and thereby immunize badcheck artists who date checks on Sunday and pass them on Monday. As previously held by us, we will not impute an unjust or unwise purpose to the legislators who enact statutes for the public good as they intended in enacting the “Blue Laws” and laws on forgery. Baker v. State, 327 So.2d 288, 291 (Miss.1976). Our “Blue Laws” making certain otherwise legal activities unlawful if performed on Sunday cannot be reasonably construed to have the ludicrous result of making the crime of forgeiy lawful if perpetrated on Sunday.

Next argument is that the court wrongfully denied the defendant a continuance. The record shows that after the defendant was indicted on December 3, 1979, he was tried on January 29, 1980. He was arraigned with counsel on December 14, 1979, which counsel was removed and other counsel appointed for the defendant on January 15, 1980, some two weeks prior to his trial. Basis of his motion for continuance is that his counsel needed time to prepare his defense and gain the presence of a missing witness. He says that because his witness was absent, he had no other alternative except to testify in his own behalf which brought about revelation of his prior criminal convictions. The record fails to show that the defendant, pursuant to the requirements of Mississippi Code Annotated § 99-15-29 (1972), used due diligence to procure the presence of the absent witness. Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (1949); Worthy v. State, 308 So.2d 921 (Miss.1975); Diddlemeyer v. State, 234 So.2d 292 (Miss.1970).

Lastly, argument is made that the evidence was insufficient to support a conviction. The jury rejected the defendant’s defense that a woman had given him the forged check for painting and that he was innocent. We deem it unnecessary to detail any further the evidence offered by the state except to say that it was sufficient to present a question for the jury, which question was resolved unfavorably to the defendant. No reversible error is demonstrated.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Sidney Codell RAMSEY v. STATE of Mississippi.
    No. 52422.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    John R. Coleman, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Chris PRESTENBACH v. STATE of Mississippi.
    No. 52380.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Robert E. Farish, J. W. Miller, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE and HAWKINS, JJ., concur.


text:
    Laharry NORMAN et al. v. CITY OF MOUND BAYOU, a Municipal Corporation.
    No. 52407.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Benjamin E. Griffith, L. Ellis Griffith, Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellants.
    Robert E. Buck, Walls, Buck & Irving, Greenville, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    John W. McINERNEY v. ECOL, INC. et al.
    No. 52454.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Richard Barrett, Jackson, for appellant.
    Thomas H. Suttle, Jr., Daniel, Coker, Horton, Bell & Dukes, Clifford B. Ammons, Watkins & Eager, Whitman B. Johnson, III, Wise, Carter, Child & Caraway, Jackson, for appellees.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   AFFIRMED.


text:
    Carroll OWENS v. STATE of Mississippi.
    No. 52384.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Carroll Owens, pro se.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   AFFIRMED,


text:
    Warren Robert BROWN v. STATE of Mississippi.
    No. 52309.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Thomas E. Royals, Robert H. Taylor, Jr., Royals, Taylor & Epps, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Warren Robert Brown was indicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, for the murder of Garnett L. Hawkins. The jury found him guilty of manslaughter, whereupon the court sentenced him to 20 years with the Mississippi Department of Corrections.

Appellant has assigned as error:

I.The trial court erred when it admitted statements by the defendant which were obtained as the result of an illegal arrest and in violation of the standards enumerated in Miranda v. Arizona.
II.The trial court erred in refusing instructions numbered D-13 and D-14 concerning self-defense and further erred by restraining defense counsel from arguing self-defense to the jury.
III.The verdict of the jury was against the overwhelming weight of the evidence because statements of non probative value were admitted, and for other reasons.

On May 21, 1979, Garnett Hawkins was found dead in his bedroom at the Catalina Apartments in Jackson, Mississippi. A claw hammer was embedded in his skull. An examination by the coroner determined that the injuries resulting in Hawkins’ death occurred on May 19 or May 20, 1979. Subsequently, on August 18,1979, Hawkins’ body was exhumed and an autopsy performed by Dr. Rodrigo Galvez. His examination revealed that Hawkins had also been shot in the chest, however it was his opinion that this was not the cause of death, but that the cause of death was the blow to the back of the head with the claw hammer.

Jerry Jones, a former roommate of Hawkins, met the defendant at a local Gay bar in Jackson, and the defendant moved in with Hawkins and Jones. About a week later, Jones moved out but defendant Brown continued to live with Hawkins, living with him for about 30 days before Hawkins’ death. Brown was missing at the time Hawkins’ body was discovered on May 21.

Mrs. Kathryn Rhodes, Hawkins’ sister, last spoke to him on the telephone about 10:00 A.M. May 19. The next day, May 20, she noticed that Hawkins’ car was not in the parking lot at the apartment complex, and she was unable to reach him by telephone. Hawkins’ automobile was subsequently found abandoned in Memphis, Tennessee. Defendant Brown used a credit card belonging to Hawkins on May 19,1979, in Memphis, Tennessee, to purchase a bus ticket. On May 22, 1979, Brown approached Richard Farris at the bus depot in Chicago, Illinois, with the credit card of Hawkins to purchase another bus ticket. While waiting on Brown, Farris checked the credit card and discovered that it was stolen. When Farris asked Brown to wait, because of some difficulty with the card, Brown disappeared. He was subsequently picked up by Winnipeg police in Winnipeg, Canada. A computer check revealed an outstanding arrest warrant in Jackson, Mississippi, for Brown. When Canadian officers contacted Jackson, they were asked for their assistance in the investigation of Hawkins’ death.

Brown was informed of the charge by the Canadian police, and asked if he understood his rights under American law. The defendant indicated that he knew his rights, and then made several entirely voluntary statements which were incriminating, although he never actually confessed that he killed Hawkins. The one time that he asked to talk to an attorney, he was allowed to do so. Brown was subsequently returned to Jackson.

John Bell, a cellmate of the defendant while incarcerated in the Hinds County jail, testified that Brown told him that he had killed a homosexual, although Brown never mentioned any name.

I.

Officer L. L. Fisher and Detective Paul Karpenko of the Winnipeg, Canada, police department, testified that, after contacting the Jackson police department and being requested to give any assistance they could in regard to the investigation into the death of Hawkins, they asked defendant Brown if he knew his rights under American law and Brown answered that he did. In addition, they gave him the Canadian caution, which was that he was not bound to say anything and that anything he did say may be taken down in writing and used in evidence. Fisher and Karpenko both testified that thereafter the defendant made statements that were entirely voluntary. Both stated that they were merely asked by the Jackson Police Department to help in the investigation, but that they were not instructed as to how they should assist, nor were they under the direction or control of the Jackson Police Department in any way.

Brown asserts that any statements he made to the Canadian officers were obtained in violation of Miranda, because he was not advised of his Miranda rights. There is no merit in this argument. It is elementary that Miranda warnings are not applicable to custodial interrogations made by police of a foreign country. United States v. Chavarria, 443 F.2d 904 (9th Cir. 1971); United States v. Nagelberg, 434 F.2d 585 (2nd Cir. 1970); United States v. Welch, 455 F.2d 211 (2nd Cir. 1972); Kilday v. United States, 481 F.2d 655 (5th Cir. 1973). These Federal cases mention one exception to this rule, and that is where the American officers and foreign police officers are engaged in a joint venture, or where the foreign police officers are agents of the American officers, or under the control and direction of the American officers, to such an extent that they are merely the alter ego of the American officers. The Jackson police officers do not fit that exception. No one from the Jackson police department was present when defendant Brown was questioned by the Canadian officers. They had merely received a request from the Jackson police to assist in the investigation of the death of Hawkins. No directions or instructions were given as to how the Canadian officers should conduct their investigation.

Brown next contends that there was not probable cause for the issuance of the arrest warrant by the Jackson police. The affidavit for the arrest warrant stated:

“On 5/21/79, the body of Garnett L. Hawkins was discovered at 1717 West Capitol Street, Apartment 203. Investigation showed that Garnett L. Hawkins was killed sometimes between the dates of 5/19/79 and 5/21/79. After the body of Garnett L. Hawkins was discovered an attempt was made to locate Warren Brown, the room-mate of said Garnett L. Hawkins due to Garnett L. Hawkins’ car being missing. On 6/1/79 Garnett L. Hawkins’ car was recovered in Memphis, Tennessee. The investigation showed that a subject identified as Warren Brown had purchased a greyhound bus ticket from Memphis, Tennessee to St. Louis, Missouri on 5/19/79 using the Visa credit card of Garnett L. Hawkins.”

As this Court stated in Neves v. State, 268 So.2d 890 (Miss.1972):

“The rule in Mississippi with reference to probable cause was stated in Holland v. State, 263 So.2d 566 (Miss.1972) in the following language:
Probable cause is present ‘when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.’ Strode v. State, 231 So.2d 779, 782 (Miss.1970). [263 So.2d at 567.]
268 So.2d at 894.

There is no merit in Brown’s contention. The affidavit states sufficient facts to constitute probable cause.

II.

Brown next contends that the trial court erred in refusing instructions D-13 and D-14 on self-defense, and in not permitting counsel to argue self-defense to the jury. There is no merit in this assignment of error. Instructions D-13 and D-14 are long, involved instructions that do not correctly state the law on self-defense. In addition to the fact that these refused instructions were incorrect and did not accurately state the law, the court’s instructions 11 and 12 correctly stated the law of self-defense. It is well settled law in Mississippi that a failure to grant an instruction does not constitute error where the refused instructions are covered by other instructions given to the jury. Mallette v. State, 349 So.2d 546 (Miss.1977).

The court was correct in not allowing defense counsel in his closing argument to argue a homosexual attack as bearing on self-defense. Brown never admitted killing Hawkins, much less that he killed him in self-defense, while Hawkins made a sexual advance on Brown.

III.

The last assignment of error is that the verdict of the jury was against the overwhelming weight of the evidence. There is no merit in this contention. The entirely voluntary statements given to the Canadian officers after the Canadian caution was given, and the further statements given to the Jackson police after a full statement of his Miranda rights, are strongly incriminating. The circumstantial evidence is strong. The jury was amply justified in concluding from the evidence beyond a reasonable doubt that Brown killed Hawkins, and that it was neither an excusable nor justifiable homicide. The evidence would have supported a verdict of murder, much less a verdict of the lesser included offense of manslaughter.

For these reasons, the verdict of the jury and the sentence of the court are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: SMITH, Presiding Justice,

text:
    Ruthie JOHNSON v. STATE of Mississippi.
    No. 52410.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Ruthie Johnson, pro se.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before SMITH, P. J., and LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

On February 28,1977 Ruthie Johnson was convicted of grand larceny in the Circuit Court of Choctaw County and sentenced to five years imprisonment. On May 14, 1980 this Court dismissed her appeal from that conviction because it was not perfected in the time and manner required by law. See Johnson v. State, 52,246 (Mississippi Supreme Court Docket). The dismissal of the appeal had the effect of affirming Johnson’s conviction and sentence.

On May 29,1980, Johnson filed a petition for the writ of habeas corpus in the Circuit Court of Choctaw County, alleging “ineffective assistance of court appointed counsel.” The circuit court judge denied the petition upon the ground that it failed to allege that the court in which Johnson was convicted had been without jurisdiction. From the dismissal of that petition Johnson has appealed here.

Mississippi Uniform Criminal Rules of Circuit Court Procedure, Rule 8.08 provides that habeas corpus “shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty ...” We note that Johnson’s petition in the present case failed to comply with the requirements of Rule 8.08 in the essential particulars. These requirements are clearly stated, are reasonable, and designed to require the petitioner to state facts upon which he relies with sufficient clarity and specificity to enable the court to determine whether it states a case for relief or not. In denying the petition the circuit court judge reached the right conclusion.

Moreover, Rule 8.08 provides, among other things: “The petition for the writ of habeas corpus shall be filed with the clerk of the court that last entertained any proceeding on the cause from which the petitioner seeks relief, whether the court be in term or in vacation.”

This Court in dismissing Johnson’s original appeal on May 14, 1980 was the Court that last “entertained” any proceeding on the cause, not the Circuit Court of Choctaw County.

Moreover, Johnson’s conviction and sentence were affirmed through the dismissal by this Court of Johnson’s original appeal.

Mississippi Code Annotated section 99-35-145 (1972) provides a post conviction remedy in cases where, as here, “judgment or conviction in a criminal prosecution has been affirmed on appeal by the Supreme Court,” and section (2) of the statute provides:

In all cases wherein a judgment of conviction in a criminal prosecution has been affirmed on appeal by the supreme court, no petition for the writ of error coram nobis shall be allowed to be filed or entertained in the trial court unless and until the petition for the writ shall have first been presented to a quorum of the justices of the supreme court, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such petition in the trial court.

In the case now before the Court Johnson’s petition failed to meet the essential requirements of Rule 8.08 of the Criminal Rules of Circuit Courts as a petition for writ of habeas corpus and the action of the circuit court judge in dismissing it would have been proper in any event. But, Johnson’s conviction and sentence had been affirmed by this Court, as stated above, and the circuit court was without jurisdiction to entertain it.

Johnson is not without remedy, however, and may avail herself of the modes for relief set out in the statute and rule by properly filing a petition in compliance with the requirements therein set forth.

The action of the circuit court in dismissing the petition is affirmed, but such af-firmance is without prejudice to Johnson’s rights in the premises.

This case was considered by a conference of the Judges en banc.

AFFIRMED.

All Justices concur.


author: SUGG, Justice,

text:
    Chris J. GARRETT v. Barbara M. GAY.
    No. 52433.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Stephen A. Anderson, Hopkins & Logan, Gulfport, for appellant.
    Gail A. Crowell, Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The plaintiff, Chris J. Garrett, filed a declaration in the Circuit Court of the Second Judicial District of Harrison County against defendant, Barbara M. Gay. Plaintiff alleged he suffered severe personal injuries when defendant negligently drove her automobile into the motorcycle upon which plaintiff was riding on February 27, 1976.

The defendant included a plea in bar in her answer in which she alleged that plaintiff should be barred from maintaining his suit because the plaintiff had released defendant from all claims for damages and injuries sustained in the collision on February 27, 1976. Plaintiff executed a release on August 3, 1976 and was twenty (20) years and nine (9) months old at that time. The release was attached as an exhibit to the plea in bar and stated that plaintiff, in consideration of $45,000, released defendant and other parties not named in plaintiffs declaration from all claims for injuries sustained in the collision. Defendant also attached as an exhibit a copy of a decree removing the disability of minority of plaintiff for the purpose of executing the release. The trial judge sustained the plea in bar and dismissed plaintiff’s suit.

On appeal, plaintiff argues he was not bound by the release because the decree authorizing the release was invalid because the jurisdictional facts necessary for rendition of the decree did not appear either in the petition for removal of disabilities of minority or the decree.

It is not necessary for us to decide the question presented by this argument because section 93-19-13 Mississippi Code Annotated (Supp.1980) authorizes all persons 18 years of age or older, if not otherwise disqualified or prohibited by law, to enter into contracts affecting personal property. The statute follows:

All persons eighteen (18) years of age or older, if not otherwise disqualified, or prohibited by law, shall have the capacity to enter into binding contractual relationships affecting personal property. Nothing in this section shall be construed to affect any contracts entered into prior to July 1, 1976.
In any legal action founded on a contract entered into by a person eighteen (18) years or older, the said person may sue in his own name as an adult and be sued in his own name as an adult and be served with process as an adult.

We must determine if the statute authorizes persons 18 years of age or older to settle a tort claim for personal injuries and execute a release for the claim. Stated differently, is a chose in action personal property within the meaning of the statute? Section 1-3-41 Mississippi Code Annotated (1972) provides:

The term “personal property,” when used in any statute, shall include goods, chattels, effects, evidences of rights of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.

In First National Bank of Hattiesburg v. Ellison, 135 Miss. 42, 99 So. 573 (1924) this Court construed the statute and held:

At common law personal property “includes money, chattels, things in action, and evidence of debt,” 3 Bouvier’s Law Dictionary (Rawle’s Third Revision), p. 2576, and it is hardly probable that the legislature intended by section 1591, Code of 1906 (Hemingway’s Code, section 1358), to exclude things in action and evidence of debt therefrom.
The word “effects” defines property in a more extensive sense than goods and chattels, and may include things in action, 1 Bouvier’s Law Dictionary (Rawle’s Third Revision) p. 975, and we are of the opinion that it includes such here. (135 Miss, at 49, 99 So. 574, 575).

A chose in action is defined in 73 C.J.S. Property § 9 (1951) as follows:

A “chose in action” means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, or, as it is defined by statute, a right to recover money or personal property by a judicial proceeding.

This Court, in Watson, Executor, Etc. v. Caffery, 236 Miss. 223, 109 So.2d 862 (1959), citing 73 C.J.S. held that the term personal property includes choses in action.

We therefore hold that the language in section 93-19-13 (Supp.1980) authorizing all persons 18 years of age or older, “to enter into binding contractual relationships affecting personal property,” authorizes such person to enter into a contract affecting a chose in action of such person. This is in accord with the definition of personal property in section 1-3-41 as construed by this Court and is also in accord with the common law definition of personal property.

We therefore hold section 93-19-13, (Supp.1980) effectively removes the disability of minority of all persons 18 years of age or older for the purpose of entering into contracts affecting personal property including the right to settle a claim for personal injuries, to execute a contract settling the claim, and to accept money in settlement of the claim.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P.JJ., and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

      . Century 21 Realty, Ltd. was also named as a defendant but was dismissed with prejudice. No appeal was taken from the order of dismissal.

      . Section 93-19-13 was enacted as Miss.Gen. Laws, Ch. 406, § 3 (1976) and was effective July 1, 1976.


text:
    Linda Pennington McDOWELL et al. v. Audie PENNINGTON et al.
    No. 52421.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    J. Joshua Stevens, Jr., Tubb, Stevens & Morrison, West Point, for appellants.
    Gary L. Geeslin, Robin Weaver, W. H. Jolly, Jr., Threadgill, Smith, Sanders & Jolly, Columbus, for appellees.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Linda Pennington McDowell, Freddie L. Pennington, Billy Pennington and Jeannine Pennington Presnail filed a bill of complaint in the Chancery Court of Lowndes County, Honorable Lenore Prather, presiding, against Audie Pennington, James W. Wilder, Jewel Sobley, Dr. Percy Sullivan and John R. Sullivan, Jr., contesting the last will and testament of Hunter L. Ellis. The case was tried before a jury, the verdict and judgment were for the proponents of the will, and the contestants have appealed to this Court.

The appellants assign the following errors in the trial below:

(1) The lower court erred in failing to sustain the motion of contestants for a directed verdict and for a judgment notwithstanding the verdict.

(2) The verdict of the jury was against the overwhelming weight of the evidence.

(3) The court erred in submitting the issue of heirship to the jury since there was no factual issue on same.

(4) The lower court held that the presumption of undue influence arose as a matter of law, but erred in submitting what proof was required to overcome the presumption.

Hunter L. Ellis died November 30, 1976, leaving a last will and testament executed on May 28, 1976. He was approximately fifty (50) years old, and was unmarried at the time of his death. Previously, Ellis inherited a substantial estate from his mother, Stella Carney, in the form of a testamentary trust valued at about five hundred thousand dollars ($500,000), consisting of land and personal property. Au-die Pennington was designated trustee and had almost unlimited discretion in the administration of the trust funds for the benefit of Hunter L. Ellis. His powers included management of all land holdings, determination of funds and support for Ellis, and the right to invade the corpus of the trust should he deem same advisable. The trust was to terminate at Ellis’ death and the residue and remainder were devised to other beneficiaries. The separate estate of Ellis amounted to between ninety thousand dollars ($90,000) and one hundred thousand dollars ($100,000), in excess of the trust.

The will executed by Ellis designated Au-die Pennington executor and James W. Wilder, Pennington’s son-in-law, alternate executor. Among other things, the will provided that specific items of personalty be bequeathed to Ellis’ girlfriend, Jewel Sob-ley, for life, with the remainder to Audie Pennington. The bulk of the estate, which included both real property and personalty, was to be held by Audie Pennington in trust for Jewel Sobley, with broad powers to be exercised by him and with the right to invade the corpus of the trust for the support of Miss Sobley. Upon her death, the trust would terminate and the corpus would pass to Audie Pennington, if living, and, if deceased, to his issue.

The will was admitted to probate in December, 1976, and in July, 1977, the contestants/appellants, claiming to be the legal heirs of Hunter L. Ellis, filed the will contest.

The proof is substantial that Hunter L. Ellis was physically and mentally ill about the time the will was executed, and for a long period prior thereto, as a result of excessive indulgence in alcoholic beverages. He underwent an operation for partial removal of his liver in 1970 and the secondary cause of his death was cirrhosis of the liver. The proof indicated that Pennington was the manager of Carney Real Estate Company, which was owned by Mrs. Stella Carney during her lifetime and which constituted the trust holdings of her estate property and funds. As such manager, Pennington wrote all checks for the support of Ellis, made the determination as to what Ellis should have, did all things toward caring for him, and, in addition, paid Ellis three hundred dollars ($300.00) per month from the trust estate. Pennington drew four thousand dollars ($4,000) per year from the trust for such services. Thus, without contradiction, a confidential relationship existed between Pennington and Ellis.

Prior to the execution of the will involved here, Mr. Robin Weaver, attorney, had drawn and redrawn will instruments for Ellis. Also, he had been the private attorney of Pennington and Wilder for a number of years. Prior to drafting the will, Wilder came to Attorney Weaver’s office and told him that Ellis desired to change his last will and testament and Wilder supplied him the information to be used for that purpose. After drawing the instrument, Attorney Weaver gave same to Wilder, who delivered it to Ellis, for examination and determination of its accuracy. Wilder brought the instrument back to Attorney Weaver on two subsequent occasions for changes which he said Ellis desired. Attorney Weaver never saw or talked with Ellis, and did not advise him concerning the will. He simply wrote the instrument according to the information given him by Wilder. Weaver testified by deposition that before Wilder came to his office, Pennington telephoned him and said that Ellis wanted to change his will.

The appellants contend (1) that the court should have peremptorily instructed the jury to find for the contestants and (2) that the jury verdict was against the overwhelming weight of the evidence.

Where there is a confidential relationship such as exists here, a presumption arises that the proponent(s) of the will exercised undue influence over the testator and the proponents) must overcome that presumption by clear and convincing evidence. The confidential relationship must result in a dominant influence by the beneficiary over the testator. In Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), holding that Alder’s will was a result of undue influence, the Court said:

“[W]here a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence.” 237 Miss. at 722-723, 115 So.2d at 686.

Citing from Meek v. Perry, 36 Miss. 190 (1858), the Alder Court further said:

“[T]he law watches with the greatest jealousy transactions between persons in confidential relations and will not permit them to stand, unless the circumstances demonstrate the fullest deliberation on the part of the testator and the most abundant good faith on the part of the beneficiary. Hence the law presumes the existence of undue influence, and such dealings are prima facie void, and will be so held ‘unless the guardian show by clearest proof’ that he took no advantage over the testator, and the cestui’s act was a result of his own volition and upon the fullest deliberation.” 237 Miss. at 724, 115 So.2d 687.

In the case of In re Will of Moses, 227 So.2d 829 (Miss.1969), the testatrix was a 54-year-old woman suffering from chronic alcoholism and other illnesses. She was a strong personality, but had an affair with an attorney fifteen (15) years younger than she and devised him practically all of her estate. Although she obtained a different attorney to draft her will, this Court held that the undue influence could not be overcome by obtaining services of the second attorney, since the nature and substance of the counsel and advice given her by him was not established. Further, in the absence of such proof, the evidence was insufficient to rebut the presumption of undue influence. The Court said:

“It is clear from his own testimony that, in writing the will, the attorney-draftsman, did no more than write down, according to the forms of law, what Mrs. Moses told him. There was no meaningful independent advice or counsel touching upon the area in question and it is manifest that the role of the attorney in writing the will, as it relates to the present issue, was little more than that of scrivener. The chancellor was justified in holding that this did not meet the burden nor overcome the presumption.” 227 So.2d at 834.

In addition to the facts stated above, during the period when Attorney Weaver was receiving information from which to draft the will, Ellis, in talking with Wilder, decided to delete from the will a parcel of real property valued at eighty-five thousand dollars ($85,000). He said, “I’ll just give it to Jean,” and he executed a deed of conveyance conveying that property to her. [Jean is the daughter of Pennington and the wife of Wilder.]

The record indicates from evidence and inferences that Pennington had some involvement in the procuring, preparation and execution of the will, either by himself or through his son-in-law, Wilder. We are of the opinion that the appellees failed to establish by clear and convincing proof that undue influence was not exercised over Ellis and we conclude that the lower court should have peremptorily instructed the jury to find for the contestants/appellants.

We have considered the record and other assignments of error and they either have no merit or it is not necessary to discuss them in view of the above decision.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P.JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ. concur.