author: LEE, Justice,

text:
    Josephous TRIBBETT v. STATE of Mississippi.
    No. 52365.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 18, 1981.

      Delos H. Burks and Nova Carroll, Stewart, Burks & Pace, Picayune, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Josephous Tribbett was indicted, tried and convicted in the Circuit Court of Pearl River County, Honorable R. I. Prichard, III, presiding, for the sale of less than one (1) kilogram of marijuana, and was sentenced to a term of ten (10) years with the Mississippi Department of Corrections. He has appealed and assigns five (5) errors in the trial below.

On May 22, 1978, Tim Wilkinson, agent for the Mississippi Bureau of Narcotics, and Thomas K. Phillips, a confidential informant, went to Bill’s Quick Stop in Picayune, arriving there about 4:30 p. m. Phillips made a telephone call to appellant, who drove to the Quick Stop about twenty (20) minutes later. According to Wilkinson, he and Phillips got out of Wilkinson’s car, walked over to appellant’s automobile, and had a short conversation, after which Wilkinson asked appellant if he had the marijuana. Appellant answered affirmatively that he had nine (9) bags, reached behind the driver’s seat in his car and removed a large paper bag containing marijuana, and placed it on the driver’s seat. Wilkinson took it to his own vehicle, opened it, observed several bags of a substance which was later identified to be marijuana, and asked the appellant the price of the marijuana. Appellant replied that it was ninety dollars ($90.00). Wilkinson gave him the money and drove away. Wilkinson radioed another narcotics agent who was in an adjacent parking lot and who had observed the exchange from a parked car thirty (30) to forty (40) feet away, and the two agents proceeded to Gulfport. Appellant was arrested approximately five (5) months later at NASA, his place of employment, and was charged with the sale of a controlled substance.

Except for character witnesses, appellant was the only witness to testify in his behalf. He stated that Phillips was a co-employee with him at NASA and that, beginning in March, 1978, and continuing until the May 22, 1978 incident, Phillips had constantly badgered and begged him for drugs; that Phillips requested him ten or twelve times over a three-month period to supply him with drugs. Appellant said that he finally told Phillips that he would get some marijuana, if Phillips would stop worrying him about it. On May 22, 1978, according to appellant, he purchased some marijuana from a man named “Blue” in downtown Picayune, and took the marijuana to Phillips at Bill’s Quick Stop. When he arrived at the Quick Stop, Phillips was sitting in a car under the driver’s wheel and the passenger seat was occupied by another man. Both men got out of the car but it was Phillips who handed him the money for the drugs. Appellant said that he did not make any money off the drugs and gave the $90.00 to the man called “Blue.” He stated that no threats had been made against him by Phillips or any other person, that he knew the sale of marijuana was illegal and that he was aware he was breaking the law at the time of the transaction.

The confidential informant, Thomas K. Phillips, did not testify.

I.

Did the lower court err in overruling appellant’s motion for a continuance on account of the absence of Thomas K. Phillips?

This case was originally set for trial during the April 1979 Term of court. However, on motion of appellant, he was granted a continuance until the November 1979 Term when the case was set for trial at 9:00 a. m. on April 1, 1980. About 9:30 a. m. on the day of trial, appellant filed another motion for continuance due to the absence of Thomas K. Phillips, the confidential informant, who had been subpoenaed as a witness by the defense on August 22, 1979. Phillips was served and did not appear, but no attachment for him was requested. The motion was overruled by the court.

Appellant argues that the denial of his motion for a continuance was reversible error because he was denied an opportunity to confront and cross-examine his original accuser. However, we are of the opinion that such argument is misplaced. Phillips was a confidential informant, not an accuser, and appellant had no right to call him as an adverse witness and to cross-examine him. If the State had attempted to show something that Phillips said or did, the appellant then would have the right to be confronted with the witness and to cross-examine him. Thus, the reason for the hearsay evidence rule.

Mississippi Code Annotated Section 99-15-29 (1972) is the statute governing continuances:

“On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.” (Emphasis added).

The law with reference to continuances, considering that statute, was enunciated in the old case of Lamar v. State, 63 Miss. 265 (1885), where the Court said:

“To begin with, he should promptly issue summonses for all witnesses who may be material for his defense; for any witness who has been served with process and who has failed to appear as commanded he should ask for an attachment, which will never be refused by the court; in capital cases he should apply for a continuance before the venire is drawn, setting out in his affidavit the names and residences of the absent witnesses, the facts expected to be proved by them, and should also show to the court what steps have been taken to secure their attendance; he should negative the idea that they are absent with his consent or procurement, and if any reasons are known to him why they are not present, these should be stated.
If the court declines to grant the continuance he should sue out the proper process for them, and when the case is called for trial should renew his application, making such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them to the court for examination; if, with all his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in any part of the proceeding.” 63 Miss, at 271.

See also Fermo v. State, 370 So.2d 930 (Miss.1979); McLendon v. State, 335 So.2d 887 (Miss.1976); and Ladnier v. State, 273 So.2d 169 (Miss.1973).

Appellant contends he did everything possible to obtain the presence of the witness. However, he was granted continuances from two (2) terms, and it is assumed that, if the witness did not answer “Present” when the witnesses were called, appellant should have taken proper action to obtain his presence. The simple procedure after a person has been served with process is to ask for an attachment against the witness. Suffice it to say, the procedure set out and approved in Lamar v. State, supra, was not followed and the lower court correctly overruled a motion for new trial. The lower court’s action is particularly correct in light of the discussion of the other assignments of error hereinafter.

II. — V.

The next four assignments of error relate to the defense of entrapment and (1) whether or not the lower court erred in denying appellant jury instructions on entrapment, and in declining to submit that issue to the jury; (2) whether or not the court erred in overruling appellant’s motion to quash the indictment or suppress the evidence by reason of the entrapment; (3) whether or not the jury verdict is against the weight of the evidence and the jury was improperly instructed by the court’s allowing the State an instruction denying the defense of entrapment; and (4) whether or not the trial court erred in overruling appellant’s motion for a directed verdict when the unrebutted testimony established a pri-ma facie case of entrapment.

In Boone v. State, 291 So.2d 182 (Miss.1974), the Court said:

“[A]n accused may interpose entrapment as a defense when the question of whether or not defendant was entrapped by an officer of the state is to be determined by the jury under proper instructions ... however, before an accused is entitled to an instruction on the defense of entrapment, the testimony in the case must be sufficient to raise the defense. ...” 291 So.2d 185.

Jones v. State, 285 So.2d 152 (Miss.1973) answers the argument of appellant to the effect that he was entrapped because of the efforts of Phillips to get him to sell marijuana. There, the Court said:

“[Wjhere a sale is made on the solicitation of an officer, such solicitation does not entitle [the] defendant to have the question of entrapment submitted to the jury ...” 285 So.2d at 158.

In Jones v. State, supra, citing McLemore v. State, 241 Miss. 664, 675,125 So.2d 86, 91 (1960), the Court defined “entrapment” and said:

“The word ‘entrapment’, as a defense, has come to mean the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him in its commission and prosecuting him for the offense. However, defendant cannot rely on the fact that an opportunity was intentionally given him to commit the crime which originated in the mind of the accused. The fact that an opportunity is furnished constitutes no defense. 1 Anderson’s Wharton’s Criminal Law and Procedure (1957), Sec. 132. There is a very clear distinction between inducing a person to do an unlawful act, and setting a trap to catch him in the execution of criminal designs of his own conception.” 285 So.2d at 155.

In Alston v. State, 258 So.2d 436 (Miss.1972), the Court said:

“Entrapment is an affirmative defense. The defendant must go forward with the proof to establish this defense, and if he does so the state has the burden of proof on that issue. In this case, the defendant offered no evidence to establish his defense of entrapment. The evidence, including his own testimony and considered in the light most favorable to him, does not establish the defense of entrapment. The fact that defendant sold the marijuana for what he paid for it does not aid his defense of entrapment.
This Court has repeatedly held that a person making an unlawful sale of contraband is not excused from criminality by the fact that the sale was induced for the purpose of prosecuting the seller.... [Citations omitted] The fact that an informer had on several occasions requested defendant to secure drugs for him does not excuse a sale of drugs to the informer.... [Citations omitted].” 258 So.2d at 438-439.

Apparently, appellant takes the position that an officer or confidential informant who induces an accused to sell marijuana is guilty of entrapment. There is no evidence in this record to support a prima facie case of entrapment and the lower court did not err in declining to submit that issue to the jury and did not err in overruling appellant’s motion to quash the indictment and suppress the evidence because of entrapment. Even though the lower court should not have given a peremptory instruction for the State to the effect that there was not sufficient evidence to show entrapment and that the jury was not to consider the issue of entrapment, granting the instruction was not reversible error, considering all the evidence. Suffice it to say, the evidence supported the jury verdict of guilty beyond a reasonable doubt.

The usual entrapment case which arises under Mississippi law involves a confidential informant or police officer who originates the sale of contraband by supplying it to the accused, who then, acting in complicity with the confidential informant or police officer, sells or disposes of it to another officer or person who initiates the prosecution.

There being no reversible error in the record, the judgment of the lower court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    Jimmy Ray SMITH v. STATE of Mississippi.
    No. 52361.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 18, 1981.

      James D. Bell, Bell, Brantley & Collins, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Jimmy Ray Smith was convicted of the forcible rape of a twelve year old girl and sentenced to a term of thirty five years in the Mississippi State Department of Corrections. Prom the verdict and sentence of the Circuit Court of the First Judicial District of Hinds County, Smith appeals, assigning three errors.

1. Where, in a prosecution for rape, the testimony of the complaining witness is self-contradictory, or contradicted by prior inconsistent statements, or rebutted by other testimony, the trial court erred in not granting a new trial.

2. Where the defense requested an instruction that, “the term ‘beyond a reasonable doubt’ is synonymous with the term ‘to a moral certainty’ ...” and no other instruction contained the term “to a moral certainty”, the court erred in refusing said instruction.

3.Where the prosecution failed to provide copies of a prior statement of the prosecutrix, requested by the defense and ordered by the court, the court erred in permitting the prosecution witness to bolster the testimony of the prosecutrix.

The prosecutrix testified that while sleeping between her niece and nephew whom she was babysitting, she was awakened by a man, later identified as Smith, who forced her to go with him in a brown Pinto automobile to his trailer where he raped her twice. That the prosecutrix had sexual intercourse or had been raped was supported by a physician’s testimony who examined her the following day.

The morning following the alleged rape, Smith dressed and fled the trailer, leaving the prosecutrix. She then went to Smith’s parents’ trailer (the Smiths were long-time friends of prosecutrix’s parents) clad in her nightgown and requested permission to use the telephone.

The girl’s parents had been searching for her during the night and had notified the police she was missing. After being notified of her whereabouts, Diane’s sister picked her up at the Smiths and she was taken to the hospital emergency room where she was examined by a physician.

The appellant related a different account of the night’s activities. According to Smith, the prosecutrix, who was at her sister’s house babysitting, called and requested him to bring some marijuana and beer over to her and her boyfriend. Then the prose-cutrix, her boyfriend and Smith went pleasure riding in his wrecker. The prosecutrix locked the door to the house and did not have a key when they returned from riding, so she went through the window to check on her niece and nephew. Afterwards the three of them went to Smith’s trailer to smoke marijuana and drink.

Smith stated that about 12:00 or 12:30 a. m., he went alone to his sister’s to borrow her blue Vega leaving the prosecutrix and her boyfriend at his trailer. He testified further that he fell asleep on the couch in his trailer while the prosecutrix and her boyfriend were in bed. He denied having raped the complaining witness and maintained that she had been with her boyfriend the entirety of the night.

The next morning the victim’s father notified appellant’s parents that his daughter was missing; and they advised him that their son, the appellant, was not there. Thereafter the father went to his son’s trailer but received no response when he knocked on the door. Whereupon Mrs. Smith went to the trailer and awakened her son telling him that the victim’s parents were searching for their daughter. Shortly thereafter she and her husband observed the appellant driving away in his sister’s blue Vega automobile with somebody in the car with him.

After the appellant’s departure, the prosecuting witness left his trailer and came scantily clad to the Smiths’ residence. Mrs. Smith provided her with clothing and called her parents. Shortly thereafter members of the victim’s family and police officers arrived at which time the young girl related the facts of the incident to the officers, the most important of which was that she was forced to consent to the sexual demands of her assailant because she was threatened with a knife.

As mentioned Smith fled his trailer the morning following the alleged rape and was not seen again until he was arrested in Gulfport approximately nine days later. It is significant that he knew very little about the victim’s boyfriend and could only describe him as:

“He is_I don’t really know. He has got sort of dark hair and just a young boy.”

This brings us to the first assignment of error that a new trial should be granted because the complaining witness’ testimony was self-contradictory, contradicted by prior inconsistent statements and rebutted by other testimony. We are of the opinion that this contention lacks merit because the prosecutrix’ testimony was substantially corroborated; and though inconsistent in some details, other facts make the prosecutrix’s testimony entirely believable.

She made a full complaint of the rape and did not unduly delay notifying the police. Her nervous and hysterical behavior following her victimization as well as the attending physician’s testimony concerning contusions, lacerations and presence of male sperm in her vaginal area corroborated her testimony. Moreover defendant immediately fled the City of Jackson the morning after the rape. Smith’s testimony concerning her boyfriend was vague and contradicted by other testimony. He described Johnny as dark haired while his mother described Johnny as a blonde boy.

The prosecutrix’ testimony that Smith came through the window and pushed a piano aside to break into her sister’s house was corroborated by the investigating officer’s testimony that he found the window open with the piano pushed aside. Also, she stated she was wearing a nightgown and underwear while Smith stated she was wearing a nightgown and blue jean shorts. The testimony of the physician and other witnesses substantially corroborate the fact that she was clad only in a nightgown and underwear, and these garments were introduced as evidence. No blue jean shorts were introduced.

While several inconsistent or self-contradictory statements were made by the prose-cutrix, a twelve year old girl, none went to the gist of the offense. Therefore, we are of the opinion the verdict should stand. Although the prosecutrix’ testimony should be scrutinized with judgment and care, “no reasonable suspicion should be indulged against the complaining witness,” Hogan v. State, 46 Miss. 274, 279 (1872).

Appellant asserts error in the court’s refusal of his requested jury instruction D-8 as follows:

The term “beyond a reasonable doubt” is synonymous with the term “to a moral certainty.” The two terms can be used interchangeably.

We have long held that “reasonable doubt defines itself and needs no definition by this Court.” Isaacks v. State, 337 So.2d 928, 930 (Miss.1976). Also see Boutwell v. State, 165 Miss. 16, 143 So. 479 (1932). Therefore, we are of the opinion this instruction was properly refused.

Appellant’s third assignment of error concerns a police report containing statements of the prosecutrix made to Officer Ned Garner. Prior to trial, defense counsel, in his motion for discovery, requested that copies of all statements made by the complaining witness be provided immediately upon the conclusion of her testimony. This motion was renewed again at trial. Apparently, the trial court inadvertently failed to provide defense counsel with a copy of her statement made to Officer Garner when the complete file, containing a copy of Officer Jordan’s report, was supplied. It was only upon redirect examination of Officer Garner that the defense attorney discovered this officer had a written report of his interview with the victim the morning after the incident. The defense attorney thereupon moved for a mistrial for failure to provide proper discovery and moved to exclude any further testimony of Officer Garner. Although the Court overruled defense counsel’s motions, a recess was granted to allow defense time in which to examine the written report.

Appellant also complains because a leading and suggestive question was asked by the State regarding oral sex which was highly prejudicial and inflammatory, and additionally was hearsay which bolstered the complaining witness’ testimony.

The rule regarding the admissibility of a rape victim’s complaint and hearsay exceptions to a rape complaint are stated in Carr v. State, 208 So.2d 886, 888 (Miss.1968):

The rule on this subject in Mississippi and in most of the United States is that the testimony of the prosecutrix, or other witness, is admissible to corroborate her testimony to show that shortly after the commission of the alleged offense she made a complaint, and when, where and to whom it was made. This evidence is not admitted as proof that the crime was committed, but merely to rebut the inference of consent that might be drawn from her silence.
By the great weight of authority, evidence of the prosecutrix’s complaint must be confined to the bare fact that a complaint was made and the details or particulars of the complaint are not admissible as substantive testimony to bolster the testimony of the prosecutrix as to the guilt of the accused. Clark v. State, 124 Miss. 841, 87 So. 286 (1921); Frost v. State, 100 Miss. 796, 57 So. 221 (1912); Frost v. State, 94 Miss. 104, 47 So. 898 (1909); Jeffries v. State, 89 Miss. 643, 42 So. 801 (1907); Dickey v. State, 86 Miss. 525, 38 So. 776 (1905); Anderson v. State, 82 Miss. 784, 35 So. 202 (1903); Ashford v. State, 81 Miss. 414, 33 So. 174 (1903); 75 C.J.S. Rape § 53 (1952).
The rule has been modified in this state so as to permit the prosecutrix to “identify the time and place with that of the one charged.” Lauderdale v. State, 227 Miss. 113, 85 So.2d 822 (1956). This modification in the rule does not permit the officers to add opinion testimony to bolster the testimony of the prosecutrix.

We are of the opinion that the State complied with the rule on direct examination of Officer Garner. However, on cross-examination of Officer Garner, defense counsel probed into the particulars of the rape complaint as shown by the following colloquy:

Q. ... Who did you talk to next?
A. Next I talked to the victim.
Q. Okay. Did she tell you what happened?
A. Yes, sir.
Q. What did she say happened? (emphasis)

The witness responded:

A. She said that she was babysitting for her sister and around 12:00 o’clock that night, she was awakened by someone that had their hand over her mouth and he forced her outside the house into a brown Pinto and when they got in the Pinto, he didn’t say nothing to her and he took her to Dixon Road Trailer Park, Lot No. 7. When they got to the trailer park—
She told you it was Lot No. 7? <©
Yes, she told me Lot No. 7. And when they got to the trailer park, she said they went inside and then he asked her to take her clothes off and she refused to and then he slapped her and she took her clothes off and he forced her on the floor and they had sexual intercourse. >

After recess and on redirect examination of Officer Garner by the State’s attorney the following question was asked:

Q. Did you do what is commonly known as make a police report or report for the file after you interviewed this victim?
A. Yes sir.
Q. You have told us to the best of your memory what she told you, [sic] I’m going to ask you if you would read this and then I have some questions after you read this.

The witness read the document and was asked:

Q. Is there information contained in that report that you had forgotten to tell when the defense attorney asked you what she told you that morning? Are there items contained in this report that you didn’t relate to the defense attorney just awhile ago when he asked you?
A. Yes sir.
Q. Are those items which are in there that you forgot to tell the defense attorney true and correct as to what she told you?

Outside the jury’s presence defense counsel then moved to exclude any further testimony and for a mistrial because the discovery motion had not been complied with and he had not had the opportunity to peruse the statement before cross-examination. It was then discovered the prosecuting attorney had complied with the discovery request but the written statement of Officer Garner was inadvertently left out of the discovery package handed to defense counsel by the trial judge. However, he was then handed a copy of the report and his motion for a mistrial was overruled but with the right to recall the complaining witness for further cross-examination.

The State’s attorney questioned Officer Garner further as shown by the following questions and answers:

Q. All right. Having reviewed those notes, do you now remember that in fact that is what she did tell you in addition to what you’ve already told us?
A. Well, in addition, it’s about the same.
Q. Okay. The very limited additional information contained in your report, in addition to what you have given to the defense attorney, do you remember today that in fact she told you that on the date you made your notes?
A. Yes, sir, she did tell me.
Q. Having now read those notes, is your past memory now refreshed and your present memory recollected as to what happened on that date — what she told you on that day?
A. Yes, sir.
Q. In addition to what you have told the defense attorney, what, if anything, did she tell you concerning what is commonly referred to as oral sex or his penis in her mouth?

At this point the defense interposed an objection because the question was hearsay and leading. The Court overruled the objection whereupon the witness answered, “well, she did state to me that they did have oral sex.”

Without the written report of Officer Garner, undoubtedly we could properly state that defense counsel, by introducing the hearsay testimony of the officer upon the particulars of the rape, thereby waived any hearsay objection on this point. However, appellant’s argument that he would not have asked the hearsay question if a discovery motion had been complied with removes the issue into the realm of surmise and to which we surely cannot respond. The facts are the hearsay questions were asked and the officer’s written report was discovered, and thereafter the State’s attorney went further into the hearsay area by leading and suggestive questions. The fact that the hearsay testimony was first elicited by defense does not grant the prosecution license to propound leading and suggestive questions as was here done. However, when this impropriety with its resulting answer, albeit bolstering of testimony, is considered within the overall scope of the evidence revealed by the record, we simply cannot say this was error to the defendant’s prejudice which would require a new trial.

As mentioned we have considered the record in minute detail, including the sentence imposed upon the defendant, and are unable to state that the jury’s verdict was not supported by the overwhelming weight of the evidence. The verdict and sentence is accordingly affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: BROOM, Justice,

text:
    CROSS MANUFACTURING, INC. and Western Casualty and Surety Company v. Brenda J. LOWERY.
    No. 52287.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Lawrence C. Gunn, Jr., George E. Dent, Aultman & Aultman, Hattiesburg, for appellants.
    Peter K. Smith, Quitman, for appellee.
    Before PATTERSON, WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation weekly benefits for permanent partial disability are at issue here. Appellants are the employer Cross Manufacturing, Inc. (Cross hereinafter) and its carrier, Western Casualty and Surety Company, who both contend that the Circuit Court of Jasper County erred in affirming an award to Brenda J. Lowery (claimant) of $25 weekly compensation benefits as previously determined by the administrative judge and the full commission. The appellants argue that claimant’s compensation must be reduced by fifty percent as related to her preexisting problem because this is a case of apportionment of a preexisting disease or condition under Mississippi Code Annotated § 71-3-13 (1980 Supp.). Unable to accept the argument made, we must affirm.

Claimant Lowery’s back was injured during the course of her employment with Cross on May 17, 1977. Apparently her injury resulted when she picked up a box of parts to take back to her machine. After she was treated by a chiropractor, Cross referred her to Dr. E. J. Holder, an orthopedic surgeon in Laurel, who treated her until November 1, 1977. Dr. Holder determined that claimant was unable to return to her same or similar type of employment. He testified that the claimant

has about 30% permanent partial disability to her back, or the body as a whole, as a result of the spondylolisthesis or spon-dylolysis as well as her superimposed sprain. And I would estimate that 50% of her disability is due to the predisposing factor and 50% is due to the alleged injury on 5-17-77.

Claimant’s average weekly wage at Cross was $104, but she now earns $400 a month doing secretarial work for Clareo Construction Company which her brother manages. After Dr. Holder released her, claimant called her former employer Cross and indicated her willingness to return to work, but her call was not availing. In her present employment, she earns $400 monthly or $4,800 annually. At Cross she earned $104 average weekly wages, which computes to an annual wage of $5,408, some $608 more than she presently earns annually, an apparent $11.69 weekly decrease in earnings. She was awarded permanent partial compensation benefits of $25 per week to run for 450 weeks, the maximum time allowed by the Act.

It is the appellants’ position that of claimant’s weekly decrease of $11.69 in her earnings, only one-half is due to the on-the-job injury and the other half due to the “predisposing factor.” Appellants contend, upon the facts of this case, under Mississippi Code Annotated § 71-3-7 (1972), that

even if claimant is to receive any award whatsoever, it must be apportioned, that is reduced to $12.50, or one-half of $25.00, “the compensation which, but for this paragraph [on apportionment] would be payable.”

Claimant maintains, and we agree, that it makes no difference whatever under the Mississippi Workmen’s Compensation Act how her loss of wage earning capacity is computed since this entire case is controlled by Section 71-3-13, Miss.Code of 1972, Ann. as particularly amended in 1976 when the Legislature reinstated a minimum payment in permanent partial disability cases of $25 per week rather than $10 per week. Apportionment applies so long as its effect does not reduce a Claimant’s minimum weekly compensation benefit below the $25 weekly minimum.

Section 71-3-7, supra, our apportionment statute, has not been changed or amended by the legislature since 1968. It provides, among other things, that:

Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.

Section 71-3-13, supra, provides:

(1) Compensation for disability or in death cases shall not exceed ninety-eight dollars ($98.00) per week, nor shall it be less than twenty-five dollars ($25.00) per week, except in partial dependency cases.

Our view is that Wiygul Motor Co. v. Pate, 237 Miss. 325, 115 So.2d 51 (1959) is controlling. Wiygul should be considered along with the history of the minimum weekly payment statute. The Wiygul opinion was published on October 12, 1959, at a time when the minimum weekly payment statute provided for a minimum of $7 and read exactly as it now reads insofar as it addressed the only exception: that is, “except in partial dependency cases.”

Involved in Wiygul was the amount of weekly benefits owed the claimant Pate under the section of the compensation act providing for weekly permanent, partial disability. According to that portion of the act, the commission determined that the weekly partial disability owed Pate was $6.67. On appeal the circuit court raised the weekly benefits to $10, as provided by the section in question. Our opinion in Wiygul, at 328-329, 115 So.2d 51, states:

It would be observed that the foregoing provision of the statute as it now reads is plain and unambiguous on its face. The Legislature may have intended that the words “except in partial dependency cases”, be “except in partial disability cases”, but we must apply it as written arid hold that it is applicable in the instant case.

The Wiygul opinion at 330, 115 So.2d 51 sets forth the rule of interpreting plain and unambiguous statutes by holding:

If the interpretation that we have given in this opinion to Section 6, Sub-section (b) of Chapter 412, Laws of 1950, [now Code Section 71-3-13], should have the effect of working a hardship or injustice in some cases, the remedy is one to be afforded by the Legislature not by the Court. This statute stands out in the Workmen’s Compensation Act in declaring that the “maximum and minimum” weekly compensation for disability, or in the death cases, at $25 per week maximum and not less than $10 per week minimum, “except in partial dependency cases,” of which the instant case is not one. We therefore affirm the action of the circuit court in raising the compensation of $6.67 per week awarded by the attorney-referee and Commission to the sum of $10 per week.

Going forward with the history of the minimum weekly payment statute and the apportionment statute, we find that the 1960 Legislature passed the apportionment statute now included as part of § 71-3-7. (The original apportionment statute became effective on January 1, 1959). At the same session, the Legislature amended what is now § 71-3-13, the minimum weekly payment statute, to add the second exception, that is “except in partial disability cases” as well as “in partial dependency cases.” The statute remained in that form until the 1976 amendment which deleted the exception of partial disability cases but retained an exception in partial dependency cases the same as the statute provided when Wiy-gul was decided in 1959.

While considering and debating the proposed amendments to the Workmen’s Compensation Act in 1976, the Legislature had before it the apportionment provisions passed in 1959 and 1960 as well as the weekly minimum statute and its provisions since that time. In its wisdom the Legislature chose to recognize the change in the economy and increase the minimum weekly benefits to $25. It also chose to apply this minimum in all cases “except in partial dependency cases.” The apportionment statute had been in the Code for seventeen years. If the Legislature had intended to except apportionment cases from the minimum weekly payments, it easily could have said so rather than except only partial dependency claims in death cases.

As stated in Wiygul, supra, the wording of the minimum weekly payment statute is “plain and unambiguous on its face” and should be “applied as written.” This Court then added, “the remedy is one to be afforded by the Legislature not by the Court.” The Legislature pegged compensation at the minimum of $25. In the present case, the claimant was injured while performing her manual labor job. After the admitted injury to her back, she was only able to do less vigorous work and held a job largely through the sympathy of her brother. As obviously recognized by the Legislature, a payment to her of $12.50 per week for a limited time is indeed extremely small consideration for an admitted disability brought on by her employment.

The words “but for this paragraph” in § 71-3-7, supra, logically construed mean the same as saying “the maximum, permanent partial disability payments do not apply.” This reasoning is strengthened by sub-section (c) of the apportionment section which reads:

(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the re-suits following injury. (Emphasis supplied).

Had the Legislature intended for the subsequent Code section mandating a minimum weekly payment to be apportioned, it certainly would have said in sub-section (c) above, “weekly compensation benefits, maximum and minimum recovery shall be reduced, etc.” (emphasis supplied). See V. Dunn, Mississippi Workmen’s Compensation § 400.5 (2d ed. Supp.1978).

Assertion is made by the employer and carrier in their brief that “claimant has made an insufficient effort to obtain employment. ...” This proposition is without persuasion on the facts here presented.

As we have stated previously, the Workmen’s Compensation statutes must be construed fairly so as to accomplish the beneficent purposes of the Act. We have done so here after full consideration of the excellent briefs and oral arguments. No reversible error has been shown, and affirmance is required.

AFFIRMED.

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


author: HAWKINS, Justice,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. COMMERCIAL UNION INSURANCE COMPANY.
    No. 52390.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Rehearing Denied March 18, 1981.

      Edward J. Currie, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, for appellant.
    Robert W. Brumfield, McComb, for appel-lee.
    Before SMITH, P. J., and LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Basing chancery jurisdiction upon a bill for discovery, State Farm Mutual Automobile Insurance Company (State Farm) sued Commercial Union Insurance Company (Commercial Union) in the Chancery Court of Pike County to recover attorney’s fees incurred in the defense of two circuit court lawsuits which arose out of an automobile-train collision. The chancellor determined State Farm was entitled to be reimbursed attorney’s fees incurred in the defense of one action, but denied recovery because the fees had not been allocated between the two suits. State Farm appeals. Commercial Union cross-appeals from the part of the decree that it owed the insured, Keith Alexander, of which it was the primary insurer, any defense under the circumstances of this case.

On May 13, 1974, Keith Alexander was driving a Chevrolet Vega automobile, in which his aunt Mrs. Merle Arnold was a passenger. The car was furnished by Jimmy Smith Chevrolet, Inc., an automobile agency of Magnolia, which carried a liability insurance policy with Commercial Union, appellee, cross-appellant herein. Keith’s parents, James R. and Georgia Alexander, carried a liability insurance policy with State Farm, appellant, cross-appellee herein. That day in Summit there was a collision between the car being driven by Keith and an Illinois Central Gulf Railroad Company train, resulting in personal injuries both to Keith and Mrs. Arnold.

In May 1974 the law firm of Reeves and Reeves was employed by Keith and his parents to represent his interest for personal injuries received in the accident.

Commercial Union’s adjuster, Joe King, contacted Keith by telephone a day or two following the accident and was told where he could be reached in McComb to discuss the case. Upon arriving in McComb and attempting to contact Keith, however, King was informed by Mrs. Georgia Alexander that her son had retained attorney R. B. Reeves to represent him, and that Keith would not give a statement unless his attorney was present. King then sought through attorney Reeves to get a statement, but because of Reeves procrastination his efforts were unsuccessful.

On February 14,1975, Mrs. Merle Arnold filed suit in Cause Number 3240 in the Circuit Court of Pike County, naming Keith, his parents, the Illinois Central Gulf Railroad Company and Jimmy Smith Chevrolet, Inc., as defendants.

On March 13, 1975, Keith filed suit in Cause Number 3241 of the Circuit Court of Pike County, naming the railroad company and Jimmy Smith Chevrolet, Inc. as defendants.

Both suits charged the automobile agency with negligently furnishing a defective car, which was a contributing cause of the accident. Jimmy Smith Chevrolet, Inc., in Cause Number 3241 filed a counterclaim against Keith for negligently operating the car, resulting in property damage to the vehicle.

Commercial Union retained as counsel to defend Cause Number 3240 attorney Robert W. Brumfield of McComb. On March 10, 1975, Brumfield wrote Keith informing him he represented Commercial Union, the liability carrier of Jimmy Smith Chevrolet, Inc., in the suit instigated against him and Jimmy Smith Chevrolet, Inc., and the insurance company might be obligated to defend him. The letter went on to state the attempt of King to contact him several times and that he had received absolutely no cooperation from him. He further stated: “I’m sure you must be aware that unless you cooperate with us in connection with this lawsuit that we will have no obligation whatever to defend you.” The letter informed Keith that court started March 17, and Brumfield would appreciate Keith’s being in his office Friday afternoon, March 14, so that he might discuss the case with Keith, as well as possible defenses. He concluded by telling Keith: “In the event you fail to cooperate with us, we will be forced to decline to defend you in the suit.” A copy of the letter was sent to State Farm’s claims superintendent.

Also on March 10,1975, Brumfield talked with attorney R. B. Reeves. Record revelation of that conversation is limited to a letter from Brumfield to King dated March 11, 1975, stating he had talked with Reeves the day before, who told him Keith “would not cooperate in that they were filing a suit on his behalf against both Jimmy Smith Chevrolet and the Illinois Central Railroad.”

The Alexanders, following institution of suit against them in Cause Number 3240, notified their insurance carrier State Farm, who called upon Commercial Union as the primary carrier to furnish a defense for Keith. Commercial Union refused to do so, on the ground Keith had failed and refused to cooperate in the defense of the suit of Merle Arnold.

Because Commercial Union refused to furnish any defense (other than Brumfield), State Farm retained the services of Wise, Carter, Child, Steen and Caraway of Jackson, who in turn associated the firm of Reeves and Reeves of McComb, to defend the declaration on behalf of Keith and his parents in Cause No. 3240, and the counterclaim of Jimmy Smith Chevrolet, Inc., in Cause No. 3241.

During the ensuing months, several demand letters were written by State Farm’s counsel to Commercial Union to defend Cause Number 3240 and the counterclaim in 3241. Commercial Union took no action whatever to defend Keith Alexander, however, taking the position that because he had refused to cooperate, he had forfeited any right under Commercial Union’s policy.

Cause Number 3241 was tried in October 1975, resulting in a verdict in favor of the defendants on the declaration, and in favor of Keith on the counterclaim. Neither side recovered anything. Mrs. Arnold the plaintiff in 3240, dismissed her suit without prejudice in April 1977.

Following the conclusion of the circuit court actions State Farm instituted this action in Chancery Court of Pike County to recover from Commercial Union $4,970.44 in attorney’s fees and expenses incurred in the representation of the circuit court actions.

The chancellor ruled Commercial Union owed no defense in the counterclaim, but did owe a defense in the suit of Mrs. Arnold. He further ruled, however, that since the local firm of Reeves and Reeves did not separate the two causes of action in itemizing their bills so that any sum could be allocated to each, and further that the law firm of Wise, Carter, Child, Steen & Caraway failed to allocate expenses and fees for services rendered between the two actions, damages could not be allowed there, either.

State Farm has appealed, assigning as error only that part of the decree disallowing the fee of Wise, Carter, Child, Steen and Caraway.

Commercial Union has cross-appealed, assigning as error the ruling it owed Keith Alexander any duty to defend in this case.

This Court is faced solely with these narrow questions.

Addressing the cross-appeal first, we must determine if there was a breach of contract by Keith, and if so, did it work to the prejudice of the carrier.

The pertinent provisions of Commercial Union’s policy provides:

V. CONDITIONS
* * * * * *
3. Named insured’s duties in event of loss
******
(d) cooperate with the company and, upon the company’s request, shall assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the named insured because of loss with respect to which this insurance applies; and shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses;
******
6. Action against company
No action shall lie against the company unless as a condition precedent thereto, there shall have been full compliance with all the terms of this insurance nor until 30 days after proof of loss is filed and the amount of loss is determined as provided in this insurance.

We have no difficulty in reaching the conclusion Keith breached the provisions of this policy insofar as his failure to discuss the case with the adjustor King. The proof shows the adjustor King attempted individually to interview Keith, and thereafter attempted through his attorney Reeves to interview him, but no cooperation whatever was received. While it is true there was a conflict of interest between the parties insured under the policy, namely: Jimmy Smith Chevrolet, Inc., and Keith Alexander, the attorney for Keith nevertheless at the very least should have met with the adjustor and his client, Keith, because there were areas of information which would have presented no conflict to Keith, or adversely affected his interest in any way in answering. Keith was advised by his counsel Reeves not to talk to King, the adjustor, in the absence of Reeves. In view of giving this advice, Reeves had a duty to meet with the adjustor and conscientiously endeavor to determine in the interview what questions Keith could answer without prejudicing his own case against Jimmy Smith Chevrolet, Inc. Having chosen to refuse to discuss the case in any manner with the adjustor for Commercial Union, this constituted a breach of the policy.

We need not decide what effect such breach would have had upon the rights of the parties had it prejudiced Commercial Union in any way, because the record reflects there was no harm which resulted to Commercial Union from this breach.

Although there is authority to the contrary, we believe the better view is to hold that unless some prejudice is shown by an insured’s failure to cooperate with the insurance carrier in its investigation, such failure does not operate to forfeit the insured’s rights under the policy. See: United States Casualty Co. v. Schlein, 338 F.2d 169, (5th Cir. 1964); Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978); Ramos v. Northwestern Mutual Ins. Co., 336 So.2d 71 (Fla.1976); MFA Mutual Insurance Co. v. Sailors, 180 Neb. 201, 141 N.W.2d 846 (1966). 7A Am. Jur.2d Automobile Insurance § 405 (1980); 14 G. Couch, Cyclopedia of Insurance Law § 51:112 (2d ed. 1965); which states failure to cooperate cannot constitute a breach unless shown to be prejudicial; J. Appleman, Automobile Liability Insurance 261 (1938).

Insofar as any refusal of Keith to discuss the case with attorney Brumfield, who was employed by Commercial Union to defend Cause Number 3240, the situation materially changed. Following Brumfield’s March 10, 1975, conversation with Reeves on the telephone, Brumfield as well as the carrier, had notice a conflict of interest did exist, and one in which he, Brumfield, obviously could not represent both Jimmy Smith Chevrolet, Inc. and Keith.

In view of the fact Brumfield obviously could not represent Jimmy Smith Chevrolet, Inc. and Keith, the duty was upon Commercial Union to select independent counsel. It made no effort whatever to do so, although it was repeatedly called upon by counsel for State Farm to make a defense of the actions. Apparently, the position of Commercial Union was: (a) Keith had breached the policy in failing to cooperate with King and thereafter Brumfield, and following this Keith had forfeited all rights under the policy, or (b) Keith could either take Brum-field as his lawyer to represent his interest as defendant in 3240, and in defense of the counterclaim in 3241, or take nothing. Neither position has any merit.

Heretofore this Court has addressed the contractual duty of a liability insurance carrier to defend suits brought against the insured. State Farm Mutual Automobile Ins. Co. v. Allstate Ins. Co., 255 So.2d 667 (Miss.1971); Travelers Indemnity Co. v. East, 240 So.2d 277 (Miss.1970); Travelers Insurance Co. v. General Refrigeration & Appliance Co., 218 So.2d 724 (Miss.1969). It is a serious duty, requiring a good faith effort to protect the insured’s interest in court. There is no higher ethical duty in the legal profession than complete, absolute fidelity to the interest of the client. An attorney obviously should not attempt to represent a party when he is obligated to represent an adverse interest, and a conflict of interest appears.

Because Commercial Union had a clear duty to defend, which duty State Farm as the secondary carrier fulfilled upon Commercial Union’s failure to do so, it follows State Farm is entitled to all reasonable and necessary expenses in fulfilling Commercial Union’s obligations.

As above stated, State Farm only assigns as error the failure of the chancellor to award fees and expenses to the firm of Wise, Carter, Child, Steen and Caraway in the amount of $2,641.97. The chancellor ruled, correctly, as we have determined, Commercial Union did owe a defense in this case.

As to the failure to allocate the fees and expenses between the defense of the counterclaim and the declaration, the attorney for State Farm testified as follows:

Q. How much of the bill was due directly to Cause No. 3241?
A. I can’t tell you that either. I can say if there had been only one lawsuit you would still be looking at probably at least 75 percent of the bill.

State Farm thereupon argues sufficient proof was adduced to award 75 percent of $3,522.50 (the bill of Wise, Carter, Child, Steen, and Caraway without adding on Reeves and Reeves, local counsel), which comes to $2,641.88.

This Court agrees. There was no question in this case but the failure of Commercial Union to defend caused monetary damage to State Farm. This is not a cause of speculation and conjecture as to whether there was monetary damage, but allocation of an admitted amount. In this posture, the rule as to proof of damages is somewhat relaxed:

In 22 Am.Jur.2d Damages § 25, (1965), the textwriter states the following at pp. 44, 45:

“Although formerly the tendency was to restrict the recovery to such matters as were susceptible of having attached to them an exact pecuniary value, it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and that where it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances, all that can be required is that the evidence — with such certainty as the nature of the particular case may permit — lay a foundation which will enable the trier of facts to make a fair and reasonable estimate of the amount of damage. The plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss.”

See Billups Petroleum Co. v. Hardin’s Bakeries Corporation, 217 Miss. 24, 63 So.2d 543 (1953).

This case is therefore affirmed on cross-appeal and reversed and judgment shall be entered for the appellant in the amount of $2,641.88 on the direct appeal.

AFFIRMED ON CROSS-APPEAL. REVERSED AND JUDGMENT HERE FOR APPELLANT ON DIRECT APPEAL.

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


text:
    Woodie Charles LAMBERT v. Eloise Viola Stewart LAMBERT (Smith).
    No. 52474.
    Supreme Court of Mississippi.
    Feb. 25, 1981.
    Dan R. Wise, Hattiesburg, for appellant.
    Donald G. Barlow, Barlow & Jones, Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   AFFIRMED ON DIRECT AND CROSS-APPEALS.


author: ROBERTSON, Presiding Justice,

text:
    Sue DENTON v. Honorable Darwin M. MAPLES.
    Misc. No. 1149.
    Supreme Court of Mississippi.
    March 4, 1981.

      Albert S. Johnston, III, Johnston & Stein-berger, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, Boyce Holleman, Holleman & Krogstad, Gulfport, for appel-lee.
   ROBERTSON, Presiding Justice,

for the Court:

On January 21, 1981, Sue Denton filed a Petition for Writ of Mandamus against Circuit Judge Darwin M. Maples of the Nineteenth Circuit Court District, praying that this Court issue a Writ of Mandamus requiring Judge Maples to vacate the January 9, 1981, Order of the Circuit Court of Jackson County directing the Sheriff of the County:

“[T]o take the person of Sue Denton into custody and place her in the Adult Detention Center of Jackson County, Mississippi to begin her sentence in the above styled and numbered cause of this court of eighteen (18) years, said defendant having not yet begun to serve said sentence, as previously affirmed by the Mississippi Supreme Court on August 26, 1977, in Supreme Court Cause Number 49,811.”

This Order was issued by Circuit Judge Clinton E. Lockard.

A chronology of events is in order:

On January 27, 1976, Sue Denton was convicted of the crime of aggravated assault with a deadly weapon on Doug Lee, and was sentenced to serve a term of eighteen years in the Mississippi State Penitentiary.

On May 28,1976, a motion for a new trial and a separate motion for a judgment of acquittal non obstante veredicto were overruled by the Circuit Court of Jackson County-

On July 9, 1976, an appeal from the conviction and sentence was perfected to this Court.

On August 10, 1977, the opinion of this Court affirming both the conviction and sentence was announced and published.

On August 18, 1977, Judge Darwin M. Maples entered an Order stating:

“This day this cause came on to be heard on the petition of the Defendant, Sue Denton, for reconsideration of her previously imposed sentence and the court being fully advised in the premises as to all of the allegations contained in her petition and having heard statements made by the victim, Doug Lee, in this cause and having read a report by the said defendant’s physician, Julius Bosco, M.D., is of the opinion that the petition should be and is hereby sustained.
“IT IS THEREFORE ORDERED AND ADJUDGED, that the sentence heretofore imposed upon the Defendant, Sue Denton, should be and is hereby suspended until further order of this court so that she may obtain medical care.
“IT IS FURTHER ORDERED AND ADJUDGED, that contemporaneous with the order entered herein there is an agreed order being entered in civil action cause number 9550 in this court which said order carried with it certain agreements made and entered into between the parties in said suit who are the victim in this cause, Doug Lee and the Defendant herein, Sue Denton, and a condition of the suspension of sentence in this cause should be and is hereby directed that the Defendant, Sue Denton, abide by and perform each and every agreement made and entered into in the agreed order in cause number_in this court and should Sue Denton fail to perform any of the agreements therein then the suspension of sentence in this cause shall be immediately revoked and she shall thereupon be reincarcerated.”

The “Agreed Judgment” in Civil Cause No. 9550 ordered Sue Denton to pay $15,000 damages to Douglas L. Lee, the victim of her aggravated assault.

On August 26, 1977, the mandate of this Court affirming the conviction and sentence was directed to the Circuit Court of Jackson County. The mandate closed with this language:

“YOU ARE THEREFORE HEREBY COMMANDED, That such execution and further proceedings be had in said cause, as according to right and justice, and the judgment of our SUPREME COURT and the law of the land ought to be had.”

The mandate of this Court was ignored and the suspension of sentence remained in effect until Sue Denton was picked up and confined, in accordance with the January 9, 1981, order.

The Circuit Court of Jackson County had neither authority nor jurisdiction to issue its order of August 18, 1977, suspending the execution of the sentence of confinement affirmed by this Court on August 10,1977. The Order of the Circuit Court of August 18, 1977, was a nullity and void ab initio. Black’s Law Dictionary, Revised Fourth Edition (1968), at page 1114, defines mandate in this way:

“A command, order, or direction, written or oral, which court is authorized to give and person is bound to obey. Silverman v. Seneca Realty Co., 276 N.Y.S. 466, 154 Misc. 35. A judicial command or precept proceeding from a court or judicial officer, directing the proper officer to enforce a judgment, sentence, or decree. Seaman v. Clarke, 69 N.Y.S. 1002, 60 App. Div. 416; Horton v. State, 63 Neb. 34, 88 N.W. 146.
“A precept or order issued upon the decision of an appeal or writ of error, directing action to be taken, or disposition to be made of case, by inferior court. Egbert v. St. Louis & S. F. R. Co., 50 Okl. 623, 151 P. 228, 230."

The execution of the mandate of this Court is a purely ministerial act. 24B C.J.S. Criminal Law § 1952(1), (1962).

In Edmonds v. Delta Democrat Pub. Co., 221 Miss. 785, 75 So.2d 73 (1954), this Court stated the purpose and role of the mandate in clear and unmistakable language:

“When the circuit court heard and sustained appellant’s motion to dismiss the counterclaim on January 26, 1954, no mandate had issued out of this Court for the reason that the costs taxed against appellant had not been paid. The circuit court had no jurisdiction, and all proceedings in the circuit court since appellant perfected his original appeal amount to a nullity. The appeal transferred jurisdiction to this Court, where it remains pending the appeal. This is the general rule. 3 AmJur., Appeal and Error, Par. 528. The circuit court, being divested of jurisdiction, had no power to proceed to dismiss the counterclaim.
“It is inherently necessary that this Court have some method of advising the lower court of the action taken here; under our practice the method used is the mandate, a certified copy of the judgment here entered on the appeal. The trial court may not receive any other intelligence of the action of this Court; and until the mandate is issued by the clerk of this Court no jurisdiction is reinvested in the lower court; and no proceedings may be had in the lower court until it receives and files the mandate. 3 AmJur., Appeal and Error, par. 1229; Roberson v. Quave, 211 Miss. 398, 401, 51 So.2d 62, 777.
221 Miss. at 787-88, 75 So.2d at 74. (Emphasis added).

In a later case, Crocker v. Farmers and Merchants Bank, et al., 293 So.2d 444 (Miss.1974), we said:

“The decree appealed from herein was dated November 15, 1972. Its main thrust was to broaden and in effect ‘modify’ the decree of the Chancery Court of Calhoun County dated May 13, 1972, which was on appeal by both sides without supersedeas. The appeal divested the lower court of jurisdiction and the decree of November 15, 1972 modifying the earlier decree cannot be upheld.”

293 So.2d at 444. (Emphasis added).

The petitioner contends that Mississippi Code Annotated section 47-7-33 (1980 Supp.), grants authority to suspend the execution of a sentence after it has been affirmed by this Court. We do not construe this section as so providing. § 47-7-33 states:

“When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in term time or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the department of corrections.” (Emphasis added).

Under section 47-7-33, the suspension can only be made immediately “after conviction or a plea of guilty”. The statute also contains this language which sheds light on its meaning: “to suspend the imposition or execution of sentence,” and “except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” (Emphasis added).

All of this language supports our opinion that the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the trial judge announces and imposes sentence. If no appeal is perfected and defendant begins to serve the sentence imposed, the time has passed for the trial judge to suspend the sentence under § 47-7-33.

The petitioner also contends that General Laws of 1977, Chapter 479, Sec. 5 (effective April 14,1977), is applicable. The pertinent portion of that section provides:

“(1) The judge of any circuit court may place an offender on a program of earned probation after a period of confinement as set out herein and the judge may seek the advice of the Commissioner of the Department of Corrections and shall direct that such defendant be under the supervision of the Department of Corrections.
“(2)(a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the Commissioner of the Department of Corrections at the time of the initial sentencing only, not earlier than thirty (30) days nor later than one hundred eighty (180) days after the defendant has been delivered to the custody of the Department of Corrections, to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation, ...” (Emphasis added).

This section, by its very terms, is not applicable and does not in any way impinge upon or vary the specific provisions of Mississippi Code Annotated section 11-3-41 (1980 Supp.), which provides in part:

“Every final judgment or decree rendered in any cause by the supreme court shall be certified by the clerk thereof to the clerk of the court from which the cause was brought, or to which it is remanded, within thirty-five (35) days after the rendition of the judgment. And it shall be the duty of the clerk of the court below, on receiving the mandate, to issue the proper execution on the final judgment or decree, ...” (Emphasis added).

The petition for writ of mandamus is, therefore, denied.

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


text:
    Larry D. CROWE and Claude Murry Crowe v. Jerry BEARD.
    No. 52476.
    Supreme Court of Mississippi.
    March 4, 1981.
    Wren C. Way, Ward, Martin, Terry & Way, Vicksburg, Fred M. Harrell, Jr., Brandon, Guthrie T. Abbott, Oxford, for appellants.
    John C. Wheeless, Jr., Wheeless, Bean-land, Shappley & Bailess, Vicksburg, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Larry D. Crowe appeals from the decree of the Chancery Court of Warren County ordering him to pay to Jerry Beard the sum of $195,000.00, as a realtor’s commission in the sale of the Morrissey tract on Eagle Lake (6500 acres) to Crowe, by the Merchants National Bank of Vicksburg, Trustee under the Last Will and Testament of Josephine R. Morrissey.

In November, 1978, appellant Crowe con-tácted his friend and farming associate, Johnny Johnson of Valley Park, Mississippi, about the possibility of finding large tracts of land available for purchase. Johnson, in turn, contacted Jerry Beard, a real estate broker in Vicksburg, about obtaining information on a large tract of land bordering Eagle Lake and known as the Morrissey tract. Beard contacted Mrs. Ethel Morris-sey Towne, a daughter of Josephine R. Mor-rissey, and a beneficiary under the trust established by her mother.

Mrs. Towne advised Beard that the sale price was $5,000,000 net to the trust. She also told Beard that they wanted $1,000,000 down payment, and would finance the balance. When asked about a realtor’s commission, Mrs. Towne advised that the sale price was net to them. Beard told her that he would add his commission to the sale price. Mrs. Towne gave Beard permission to show the property to prospective purchasers.

Crowe, Johnson and Beard subsequently met at Johnson’s home in Valley Park. Beard relayed the information he had received from Mrs. Towne and advised Crowe and Johnson that he wanted a 10% commission which would boost the sale price to $5,500,000. Crowe asked Beard if he would take $200,000 as his commission instead of 10% and Beard agreed that he would. Crowe suggested leaving the sale price at $5,500,000, and that they divide the $500,000 among the three of them in this way: $200,000 to Jerry Beard, $200,000 to Larry Crowe, and $100,000 to Johnny Johnson.

Beard told Crowe that, under Mississippi law, he could not pay them a finder’s fee, that he would agree to a $200,000 commission to him but that they must get their finder’s fee any way they could.

During November and December, 1978, and January, 1979, there were several conferences among Crowe, Johnson and Beard, and on two occasions they negotiated with an Aetna Life Insurance group of Larry DePriest and Jim McGee, with whom Crowe had dealt before. After a second meeting with the Aetna group, DePriest and McGee advised them that they were not interested because the tract of land was not large enough. Thereafter, Crowe used Beard to' gather further information, prepare plats, secure aerial surveys and arrange conferences with the Morrissey heirs. Crowe tried to secure financing to buy the Morris-sey tract himself. On Christmas Day, 1978, Larry Crowe and his brother, Murry Crowe, conferred and flew over the Morrissey tract in an attempt to get the exact boundaries in mind.

Larry Crowe went dead on his contacts with Beard, and Beard finally called him by phone at his Louisiana home to find out the status of the sale. During the conversation, Beard advised Crowe that he had another prospective purchaser, Dan Shipp of John Hancock Life Insurance Company. Crowe told him not to show the property because he, Crowe, was doing everything he could to buy the Morrissey tract, and that if he showed the property to somebody else he, Crowe, wouldn’t feel like he owed Beard a commission.

At the trial, Crowe denied telling Beard this, but did admit that he offered Beard a lake front lot on Eagle Lake if Beard would not show the property to anyone else, and if his efforts to purchase the property were successful. At Crowe’s instance, Beard arranged a meeting with Wren Way, the attorney for the Morrissey trust, on January 3, 1979. On January 3, Beard picked up Larry Crowe at the airport and after the meeting in Way’s office Beard bought lunch for Larry Crowe, Murry Crowe and Chuck Little, the Crowes’ CPA and tax attorney.

Although several meetings were held after the January 3rd meeting to finalize the sale and work out all the tax angles to the benefit of the sellers and buyers (Larry Crowe and Murry Crowe), Beard was not advised or invited to any of them. The sale of the Morrissey tract to Larry D. Crowe and Claude Murry Crowe was closed on February 19, 1979. When Larry Crowe refused to pay Beard his $200,000 commission, Beard sued both Larry and Murry Crowe in the Chancery Court of Warren County, averring an oral contract between Larry D. Crowe and Jerry Beard wherein Crowe promised to pay Beard a $200,000 commission in the event that negotiations were successful and Crowe, or Crowe and others, purchased the Morrissey lands. Beard averred that the purchase by the Crowes was the direct result of services rendered by him as a real estate broker, and that he, Beard, was the procuring cause of the sale and purchase. The Crowes answered the averments of the bill of complaint with a general denial.

After a full trial, the court sustained a motion to dismiss Claude Murry Crowe as a defendant. The court, on February 20, 1980, rendered its “Judgment Decree” wherein it found, among other things:

“Crowe admitted in his deposition and testimony that he anticipated acquiring an interest in the Morrissey tract similar to an undivided interest in a Louisiana tract he had worked with the same Memphis group [Aetna] he had in mind as prospective purchasers. There was no discussion at this meeting whether Crowe, or any other person named or group named was the prospective purchaser. Crowe asked Beard to get information, aerial maps, descriptions, amount of open land, et cetera, as well as details of the Morrissey offer to finance part of the purchase price, and permission to go on the land.
Beard met with Mrs. Towne and her sister Mrs. Griefield, another of the Mor-rissey grande dames, who gave him some of the information, permission to go on the premises, and advised the Morrisseys would finance $4 million at 9V2 percent for 20 years.
Sometime about Thanksgiving, Crowe told Beard he wanted to talk to the Mor-rissey representative face to face. Beard arranged a meeting with Mrs. Towne, Mrs. Griefield, Johnson, Crowe and himself for December 19th. At this meeting the sales price was confirmed, there was talk about the financing and the Morris-seys again stated they would not pay the relator’s commission. According to Mrs. Towne’s testimony, Crowe told her Beard would be his problem; according to Beard, Crowe said he would take care of the realtor’s fee.
About this same time, Beard was in contact with a realtor named Shipp, who had a prospect for the Morrissey tract. Beard advised Crowe of this, and Crowe told him that if he showed the tract to that prospect, he wouldn’t feel he owed Beard any commission. After this conversation Beard did not show Shipp the Morrissey property.
On Christmas day, Larry Crowe talked with his brother, Claude Murry Crowe, also a farmer, about the two of them buying the Morrissey Plantation and they flew to look at it.
Beard picked up Larry Crowe on January 3rd at the Vicksburg Airport, and drove him to Beard’s office, where they joined up with Claude Murry Crowe, their accountant, and proceeded to the meeting with the Morrisseys at Mr. Way’s office.
There, the Crowes expressed their interest in purchasing the property, details of taxes, financing, timber cutting, et cetera were discussed.
Larry Crowe and Claude Murry Crowe purchased the plantation, after some extensive legal work, and adjustment in the price, et cetera, for tax purposes, on terms and conditions compatible with the information provided by Beard.
Larry Crowe made several references in his testimony to an agreement or ‘joint venture’ between himself, Johnson and Beard. However, a joint venture can only exist as either an express or implied contract between the members thereof. Such a definitive agreement did not exist between the parties according to Beard or Johnson.
The prime function of a real estate broker is to bring buyer and seller together in the market place, which is precisely what Beard did. Crowe expected from the beginning to obtain an interest in the property and develop and farm it, which is precisely what Crowe did.”
Therefore, the Court finds that there was an oral contract for a commission between Beard and Larry D. Crowe, and further finds as a fact that Beard was the procuring cause of the sale.”
Crowe has assigned as error:
I
The Decree of Court is manifestly contrary to both the law and the evidence.
II
The Court erred in finding that a valid, binding contract existed between the parties requiring Appellant to pay Appellee a real estate commission.
III
The Court erred in failing to find that a joint venture existed between Appellant and Appellee and another, and that said venture failed and was abandoned by the parties.
IY
The Court erred in finding that Appel-lee was the efficient, procuring cause of the sale.
V
The Court erred in finding that Appel-lee, Beard, fully performed a contract requiring the said Beard to both negotiate and procure the purchase and sale of certain lands, which performance would entitle Appellee to a fixed and agreed commission of $200,000.00.

Crowe vigorously contends that the court erred in failing to find that a joint venture existed between him and Beard, and that the joint venture failed and was abandoned by them. Joint venture, as well as a failure and abandonment thereof, is an affirmative defense, must be pled and must be clearly and convincingly proved either by direct or circumstantial evidence. Crowe did not plead a joint venture; neither did he plead a failure nor abandonment thereof. In McCartney v. McKendrick, 226 Miss. 562, 85 So.2d 164 (1956), this Court said:

“In the case of Sample v. Romine, 193 Miss. 706, 8 So.2d 257, which is, and ought to be, one of the leading cases in the jurisprudence of this country, as to the nature of the relationship of joint adventurers, and as to the obligations of one member of the adventure to the other or others, the Court said: ‘The relationship between the joint adventurers is fiduciary in character and imposes upon all the participants the utmost good faith, fairness, and honesty in their dealings with each other as respects the enterprise....
“The burden was upon the appellee McKendrick to establish his affirmative defense of an abandonment by clear, decisive and unequivocal evidence. [Citing authorities]. In the Newell case this Court said: ‘It is well established that an abandonment must be made to appear affirmatively by the party relying thereon, and that he has the burden to prove the same by clear, unequivocal and decisive evidence.’ ”
226 Miss, at 575, 579, 85 So.2d at 168-69, 170.

We are of the opinion that there was substantial evidence supporting the court’s findings of fact and conclusions of law, and that the court correctly adjudged that there was no joint venture, that an oral contract existed between Larry Crowe and Jerry Beard, that Beard was the procuring cause of the sale to Crowe and that Larry Crowe owed Jerry Beard $195,000 as a fair and reasonable commission according to the contract between them.

The decree of the lower court is, therefore, affirmed.

AFFIRMED.

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

BOWLING, J., takes no part.


author: WALKER, Justice,

text:
    Jerrie WATTS v. Eddie LUCAS (Warden, Mississippi State Penitentiary), State of Mississippi.
    No. 52338.
    Supreme Court of Mississippi.
    March 4, 1981.
    Jerrie Watts, pro se.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from an order denying a writ of habeas corpus.

Jerrie Watts filed, pro se, a pleading styled “Petition for Writ of Habeas Corpus” on May 3,1980, in the Circuit Court of Pike County. He alleged that during the March 1968 Term of the Circuit Court of Pike County he was tried and convicted on charges of murder, rape and kidnapping, for which crimes he was sentenced to serve three separate life sentences. He further alleged that the sentences imposed were to run concurrently, but that the records at the Mississippi State Penitentiary show that the sentences are to run consecutively.

The circuit judge was of the opinion that the petition showed no cause for relief on its face and entered an order denying the writ of habeas corpus. Hence, this appeal.

At the outset we note that courts must look to the substance of any petition filed seeking a post-conviction remedy rather than considering such petition by its title. Young v. State, 264 So.2d 821 (Miss.1972). Since the petitioner is not seeking immediate release, but only a judicial determination of when he is eligible to be considered for parole, we consider his pleading as a petition to clarify his sentence.

Mississippi Code Annotated section 99-19-21 (1972) provides:

When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentences on such convictions to run concurrently.
All orders imposing sentences heretofore to run concurrently, if so ordered, are hereby validated and confirmed. (Emphasis added).

In Maycock v. Reed, 328 So.2d 349 (Miss.1976), we construed this statute to mean that if more than one sentence is imposed at the same term of court the sentences are to run consecutively, unless the judge in his discretion orders the sentences to run concurrently. Where the judge does not specify whether the sentences are to run consecutively or concurrently, they must be construed to run consecutively, except under circumstances hereinafter discussed.

In Anderson v. State, 288 So.2d 852 (Miss.1974), there were eight orders sentencing Anderson, all entered on the same day. Each of the orders recited: “date of sentence to commence from today.” The Court held that this phrase meant that all sentences would run concurrently from the date of sentencing, despite the fact that there was added to seven of the orders this sentence: “Sentence imposed herein to run consecutively with sentence imposed in [the first cause].” The Court found the last provision was conflicting with the phrase in each order reciting that each sentence would “commence from today.” Therefore, it resolved the ambiguity in favor of the accused.

In the case a bar, the orders sentencing Watts do not specifically state that his sentences are to run concurrently. However, each of the three orders, all dated March 25, 1968, imposed a life sentence “commencing from this date.” Clearly, this means that all three life sentences are to run concurrently from March 25, 1968, and the records of the circuit court and Department of Corrections should so reflect.

Therefore, the order of the circuit judge denying the writ of habeas corpus should be affirmed, but judgment is hereby entered clarifying the sentencing orders so as to reflect that Watts’ three life sentences, all commencing on March 25, 1968, are to run concurrently from that date.

AFFIRMED AS MODIFIED.

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


text:
    Frank W. LOFLIN, d/b/a Loflin Enterprises v. Tetta THORNTON.
    No. 52395.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied March 18, 1981.
    John H. Downey, Wells, Downey & Wicker, Jackson, for appellant.
    Paul D. Snow, III, Jackson, for appellee.
    Before SMITH, P. J., and LEE and HAWKINS, JJ.
   LEE, Justice,

for the Court:

Tetta Thornton obtained a verdict in the Circuit Court of the First Judicial District of Hinds County, Honorable Charles T. Barber, presiding, in the sum of fifteen thousand dollars ($15,000). The lower court ordered a remittitur in the sum of seventy-five hundred dollars ($7,500), or new trial on damages only. Thornton accepted the remittitur, final judgment was entered in her favor for seventy-five hundred dollars ($7,500), and Loflin has appealed here. We hold that Loflin was entitled to a peremptory instruction and reverse.

The declaration charged that on February 17, 1978, appellee lived at 1363 Cadillac Drive, Jackson, in a house she rented from appellant. That night, she heard a noise outside the house, went to investigate and several bricks at the lower part of the house suddenly fell, striking her left leg and causing serious injuries. It was charged further that appellant was under the duty to keep the house in a reasonably safe condition, that he breached that duty, injuring appellee as a proximate result thereof.

The evidence reflects that appellee had rented and occupied the house for nineteen (19) years. Mr. George Gilmore owned the property from February, 1966 until October 26, 1977, when appellant purchased same from him. Gilmore built a brick curtain wall approximately twenty-four (24) inches high around the house in order to protect the space underneath the house from wind and to keep animals out from under it. During the time that appellee lived there, she passed the curtain wall daily and had not seen anything hidden or unknown about its condition. She did testify, however, that she knew at all times the wall was dangerous. Appellant testified that, other than a routine request for plumbing work, he had never received any repair request from ap-pellee until after the accident occurred, and had no knowledge of any defective condition of the curtain wall. Appellee stated in a deposition that she had not informed appellant about the condition of the wall. On trial, appellee testified that she had told him about the condition of the wall, and described her inconsistent deposition statement as resulting from forgetfulness and confusion.

During the trial, appellee attempted to establish a repair contract between appellant and herself. Appellee testified that she had informed appellant of the dangerous condition of the curtain wall, and he had agreed to repair same. Nothing in the declaration charged a repair agreement by appellant.

Issues are framed and presented by the pleadings. This Court is bound by those issues raised in the pleadings and the proof in the record which supports them. In Southern Pine Electric Power Assn. v. Denson, 214 Miss. 397, 57 So.2d 859 (1952), Mr. Justice Percy M. Lee, aptly said:

“Lawsuits must have issues. Those issues must be made by the pleadings. Proof must conform to the issues made by such pleadings. Otherwise, lawyers trying a case, will be like mariners, without any form of compass, sailing an uncharted sea.” 214 Miss, at 416, 57 So.2d at 865.

We now consider the charge of the declaration, the proof, and the law relating to them. In the old case of Jones v. Millsaps, 71 Miss. 10, 14 So. 440 (1893), the Court said:

“The intending tenant must use his own faculties, and judge for himself if the premises he desires to lease are in repair, and are suitable for his use. If he wishes to protect himself against the hazards of subsequently accruing accidents or defects requiring repairs, he must do so by proper covenants in his contract of lease. He takes his leased premises for better or for worse, as an ancient authority aptly characterizes his taking. He takes the premises as he finds them, and he must return them as nearly as possible, in like condition.... The duty of the tenant to examine the premises, and protect himself by proper stipulations in his contract of lease if danger is suggested by his examination, is the same in case of the leasing of a whole or of a part, only.” 71 Miss, at 18, 14 So. at 441.

Later decisions of the Court have made the position of a tenant somewhat less vulnerable than that stated above. A landlord is now liable for injuries incurred as a result of dangers, which usually are latent, which he knows about and conceals, or, being aware of same, does not inform the tenant. Where the tenant knows of the defect or danger on the premises, no duty arises to the landlord with respect thereto. Hiller v. Wiley, Miss., 5 So.2d 489 (1942); McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350, 176 So. 395 (1937); Rich v. Swalm, 161 Miss. 505, 137 So. 325 (1931).

In the absence of an express agreement between the landlord and tenant to make repairs, there is no obligation or duty upon the landlord to do so, and only where there is an agreement for specific repairs will a breach of that agreement impose liability for personal injury. Floyd v. Lusk, 190 So.2d 451 (Miss.1966); Waldon v. Lehmann, 224 Miss. 600, 80 So.2d 796 (1956); Ford v. Pythian Bond Holders Protective Comm., 223 Miss. 630, 78 So.2d 743 (1955); Hodges v. Hilton, 173 Miss. 343, 161 So. 686 (1935).

The proof, without contradiction, shows the following:

(1) The record is absent any showing that appellant concealed the danger from appel-lee.

(2) Appellee admitted she knew the wall was dangerous.

(3) Any evidence of a contract to repair the wall was improperly admitted (or was properly excluded) since such theory was outside the scope of the pleadings.

(4) Appellee’s pleadings do not form the legal basis for any recovery.

In determining whether or not a peremptory instruction should be granted, the trial judge must consider the evidence on behalf of the party against whom the peremptory instruction is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the request for peremptory instruction should be denied. Gates Rubber Co. v. Duke, 367 So.2d 910 (Miss.1979); Georgia-Pacific Corp. v. Blakeney, 353 So.2d 769 (Miss.1978); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

In the case sub judice, the declaration and evidence in support thereof did not state or make out a case of liability against appellant. The judgment of the lower court is reversed and judgment is entered here in favor of the appellant.

REVERSED AND RENDERED.

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


author: BOWLING, Justice,

text:
    In the Interest of R. R. B., a Minor.
    No. 52463.
    Supreme Court of Mississippi.
    March 4, 1981.

      Lem G. Adams, III, Johnston, Adams & Younger, Brandon, for appellant.
    Kellis L. Madison, Pearl, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court.

The decision of the youth court judge and the record on appeal to this Court are before us in this cause. The minor appellant was charged with the sale of marijuana and after a full hearing, the youth court judge decreed appellant to be a delinquent child and sentenced the minor to serve a term in the Columbia Training School. At the time of the alleged crime, appellant was 17 years and 8 months of age. Even though appellant almost was an adult under the Youth Court Act and charged with a felony, the youth court was of the opinion that appellant’s interests would be best served if that court retained jurisdiction rather than transferring the case to the criminal court.

Appellant assigns three errors in the appeal. They are:

I. THE LOWER COURT FOUND THE MINOR DELINQUENT ALTHOUGH THE BURDEN OF PROOF WAS NOT MET AS TO ALL OF THE ELEMENTS OF THE OFFENSE CHARGED.
II. THE DECISION OF THE COURT IN THE DISPOSITION HEARING WAS BASED UPON THE NATURE OF THE OFFENSE WITH NO REGARD FOR THE BEST INTEREST OF THE CHILD.
III. THE CASE SHOULD BE REVERSED AND THE APPELLANT DISMISSED BECAUSE THE RECORD ON APPEAL DISCLOSES THE NAME OF THE MINOR CHILD.

We shall first consider the assignment of error number three regarding the makeup of the record in this Court on appeal from a youth court. Section 43-21-651, Mississippi Code 1972 Annotated, (Supp.1980), of the Youth Court Act, provides that on appeal to this Court from a youth court, “Only the initials of the child shall appear on the record on appeal.” The record in the present case shows the appellant’s full name throughout. It is obvious that the youth court, the youth court prosecutor, the court reporter and the clerk completely disregarded the above code mandate. The reason for that mandate is obvious and needs no discussion here.

We do not intend to appear critical in this discussion; however, we are publishing this opinion and discussing this error for the future guidance of all youth courts. When a statutory appeal is taken from a youth court, the statute is mandatory that nowhere on the records of this Court or the appellate records or briefs or other proceedings should the minor’s name appear, only his or her initials. After a hearing, sentence, and notice of appeal, all of the above set out entities are charged with the duty of seeing that the minor’s name is deleted from any page or cover of the appellate record or proceedings. We realize that in the youth court the name of the alleged delinquent child appears on its records. After the appeal, the name [leaving only the initials] should be blotted from all documents that are forwarded to the clerk of this Court or any justice thereof. Modern typing and its equipment and accessories are fully equipped to make these deletions.

We do not find that the failure to submit the appellate record showing only initials in the present case is reversible error. All records staying in this Court shall be changed to conform to the statute. We cannot hold that the failure to perform the mechanics of the appeal as set out above was prejudicial to appellee in this appeal. No prejudice has been pointed out to the Court.

We have considered fully assignments of error Numbers 1 and 2 and find that they have no merit. There was an abundance of evidence justifying the charge that appellant was guilty of the crime of selling marijuana. Although the minor was almost 18 years of age at the time, the youth court was most considerate and showed a compassion to help rehabilitate the minor in every way possible by its failure to transfer the charge to the criminal court. This easily could have been done. Rather than being critical of the youth court, appellant should be grateful. The flagrant sale of marijuana and other drugs needs to be curbed whether the person is 17 years and 8 months old or younger or older.

The question then arises as to the disposition required to be made under this opinion. Section 43-21-151, Mississippi Code 1972 Annotated (Supp.1980), [Youth Court Act], setting out the jurisdiction of the Youth Court provides:

(2) Jurisdiction of the child in the cause shall attach at the time of the offense and shall continue thereafter for that offense until the child’s twentieth birthday, unless sooner terminated by order of the youth court ....

The appellant has not reached the twentieth birthday. We are, therefore, required to remand the cause to the youth court for further consideration and adjudication considering the facts and circumstances existing at the time of the hearing, and the opinion of the youth court as to what, if any, further actions should be taken.

AFFIRMED AND REMANDED TO THE YOUTH COURT.

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


text:
    Matthew DONAGHUE, a Minor, By and Through Mrs. Carol LIAO, his Natural Mother and Next Friend v. Mark RAY and Anna Haley.
    No. 52435.
    Supreme Court of Mississippi.
    March 4, 1981.
    Ronald L. Roberts, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Oxford, for appellants.
    Shelby Duke Goza, Ethridge & Grisham, S. T. Rayburn and Will A. Hickman, Sum-ners, Hickman & Rayburn, Oxford, for ap-pellees.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

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

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Winnie BOUTWELL et al. v. W. J. SIMS, Jr.
    No. 52459.
    Supreme Court of Mississippi.
    March 4, 1981.
    Leonard B. Melvin, Jr. and Sarah L. En-trekin, Melvin & Melvin, Laurel, for appellants.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

Marvin Oates, Oates & Houston, Bay Springs, for appellee.

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

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE and BOWLING, JJ., concur.

HAWKINS, J., takes no part.


text:
    Louise GUINN et al. v. Mrs. Ledrester Dunmore SMITH, Administratrix of the Estate of Pilot Smith, Deceased.
    No. 52481.
    Supreme Court of Mississippi.
    March 4, 1981.
    Dudley W. Conner, Hattiesburg, for appellants.
    William W. Wicht, Jr., M. Ronald Doleac, Finch, Wicht & Doleac, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Sebe Dale, Jr., Chancellor.

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

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Shirley Taylor MILLS v. STATE of Mississippi.
    No. 52499.
    Supreme Court of Mississippi.
    March 4, 1981.
    Shirley Taylor Mills, pro se.
    Bill Allain, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

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

AFFIRMED.


text:
    Eules Audrey MILLS v. STATE of Mississippi.
    No. 52498.
    Supreme Court of Mississippi.
    March 4, 1981.
    Eules Audrey Mills, pro se.
    William E. “Bill” Ware, Inmate Writ-Writer, for appellant.
    Bill Allain, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

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

AFFIRMED.


text:
    McCOLGAN INVESTMENT & LOAN CO., INC. v. Mildred ALLEN, Admrx. De Bonis Non of the Estate of Mrs. Mary E. Smith, Dec’d. and Oscar C. Smith.
    No. 52566.
    Supreme Court of Mississippi.
    March 4, 1981.
    Robert W. Brumfield, McComb, for appellant.
    James F. Noble, Jr., Noble & Noble, Brookhaven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Charles W. RUSSELL v. Linda J. RUSSELL.
    No. 52468.
    Supreme Court of Mississippi.
    March 4, 1981.
    Stephen P. Livingston, New Albany, for appellant.
    John R. Coleman, Tupelo, for appellee.
   Appeal from Chancery Court, Lee County; George F. Adams, Judge.

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

AFFIRMED.


text:
    Gladys M. FLOWERS v. J. Russell FLOWERS.
    No. 52520.
    Supreme Court of Mississippi.
    March 4, 1981.
    Stephen L. Thomas, Mansour & Thomas, Greenville, for appellant.
    H. L. Merideth, Jr., Robertshaw & Meri-deth, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Willard L. Mcllwain, Chancellor.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.