author: SMITH, Presiding Justice, WALKER, Justice,

text:
    Chester Lee COOLEY v. STATE of Mississippi.
    No. 51807.
    Supreme Court of Mississippi.
    Aug. 27, 1980.
    As Modified On Denial of Rehearing Dec. 17, 1980.

      J. Ronald Parrish, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SMITH, Presiding Justice,

for the Court:

Chester Lee Cooley was indicted for the murder of Charles Earl Moore. He was tried on that charge in the Circuit Court of Jones County.

Although it appears from the record that the great weight of the overall evidence supported the State’s theory that the homicide was murder, the jury returned a verdict finding Cooley guilty of manslaughter, and he was sentenced to serve a term of 17 years in the Department of Corrections. From that conviction, he appeals.

According to the undisputed testimony, including the testimony of Cooley, 18 or 20 people, one of whom was Cooley, had gathered in the home of one of Cooley’s relatives at about 7:00 in the evening and were indulging in drinking intoxicating liquor and gambling. Prior to that, Cooley testified:

I had started drinking that Friday about ten o’clock and hadn’t drank it up until I would say — me and my brother got a pint at ten o’clock at the liquor store, and after we had drank that and about possibly four o’clock that evening we got another pint, and so we drank that, and about six o’clock my nephew bought a pint and we drank some of his.
And after that we went out to my brother’s house.

These festivities at his brother’s house had then continued throughout the evening and were still in progress at about midnight when a dispute arose as to who had contributed toward the purchase of (and therefore was entitled to drink from) a bottle of whiskey.

Although firmly disputed by several witnesses present, Cooley testified that Moore cursed him and members of his family and said that he would kill Cooley and all of “the (vulgarity deleted) Cooleys.” Cooley claimed that he saw the “print” of a “small gun” in Moore’s pocket and said he knew Moore to be a violent man and had trouble with him on a former occasion. Cooley does not suggest that Moore did anything at all toward carrying out his alleged threat. However, according to Cooley, in order to “defend” himself and his family, he left the house where Moore was and went out to his automobile where he procured a shotgun. Cooley said:

I reached — I had some shells in the glove compartment, and I just reached in there and got me a shell.

He loaded the gun and reentered the house carrying the loaded gun. Cooley admitted that when he came back in with the shotgun “people were scattering every which way.” According to eyewitnesses, Cooley then pointed the gun at Moore and shot him at fairly close range, inflicting a terrible wound and causing death.

Cooley’s version at his trial was that he loaded the gun and returned to the house in order to use it against Moore in defense of himself and his family and that as he went into the room where Moore was that Moore “snatched” the gun. He (Cooley) held on to it and pulled back, and that this caused the gun to cock and his finger to fire it. He said:

A The gun cocked when he pulled it and I pulled back, just like that.
Q And you pulled back on the trigger.
A Yes, sir.
Q Okay, and the hammer hit the pin.

This version was disputed, as stated, by eyewitnesses who testified that Cooley had deliberately aimed at Moore and shot him.

Aside from Cooley’s statement that he had earlier in the evening observed the print of the gun on Moore, there is no evidence that Moore had such a weapon, none was found on him afterward, and not even Cooley testified that Moore had made any overt move to draw or use the weapon or to attack him (or any of “the Cooleys”) in any way, except by the vulgar, insulting words which allegedly had been spoken before Cooley left the house to get his shotgun.

It was admitted that it was the threatening and insulting language allegedly used by Moore that sent Cooley to his automobile where he obtained the gun and shell with which the homicide was committed.

This Court has held that:

Insulting words can never justify a homicide, unless they are of such nature as to cause defendant to believe he is threatened with grave, impending danger.
[Reed v. State, 197 So.2d 811, 814 (Miss.1967)].
Be that as it may, there is no principle of criminal law better settled — none more necessary to the peace of society, and the safety of human life — than that threats, however deliberately made, do not justify an assault and battery, much less the taking the life of the party making them. That is excused when done in the necessary defense of one’s own life, or to escape great bodily harm.
[T]he law tolerates no justification, and accepts no excuse for the destruction of human life, on the plea of self-defense, except that the death of the adversary was necessary, or apparently so, to save his own life, or his person from great bodily injury, and there shall be imminent danger of such design being accomplished. The danger to life, or of great personal injury, must be imminent, present at the time of the killing, real or apparent, and so urgent that there is no reasonable mode of escape except to take life.
[Evans v. State, 44 Miss. 762, 773 (1871)].
It is not true that a party has a right to kill another on the first appearance of danger. The rule is that to defend on alleged threats and apprehension of threats there must be a demonstration by the party making the threat which would induce a reasonable man to believe that there was danger of such threat being immediately executed.
[Molphus v. State, 124 Miss. 584, 598, 87 So. 133, 135 (1921)].
The instruction requested by appellant is clearly erroneous. By it the appellant sought to have the court charge the jury that appellant had the right to kill the deceased because he knew deceased had threatened his life. This is not the law. It took more than a threat by deceased against the life of appellant to justify the latter in killing the deceased. There must have been in addition, at the time of the homicide, an overt act on the part of the deceased indicating a purpose to carry out such threat,
[James v. State, 139 Miss. 521, 524, 104 So. 301, 302 (1925)].
To make a homicide justifiable on the grounds of self-defense, danger to slayer must be either actual, present and urgent, or slayer must have reasonable grounds to apprehend design on part of deceased to kill him or to do him some great bodily harm and, in addition to this, to apprehend that there was imminent danger of such design being accomplished; mere fear, apprehension, or belief, however sincerely entertained by one person that another designs to take his life or to do him some great bodily harm will not justify former taking life of the latter.
[Bright v. State, 349 So.2d 503 (Miss.1977)].

The jury’s verdict finding Cooley guilty of manslaughter had the effect of acquitting Cooley of murder, and makes the conclusion inescapable that the jury found the killing to have been the result of resentment and anger on Cooley’s part at the insults and threats of Moore which had caused him to leave the house, go for his gun and shells and return with a loaded gun, since there is no evidence that Moore made any attempt whatever to shoot or attack Cooley.

This Court has held that one who engages in a fight or quarrel, leaves the scene, arms himself with a deadly weapon, and returns to renew the quarrel, forfeits his right to claim self-defense where the weapon is used to slay the person with whom he has quarreled before, where there is no overt act on the part of the latter capable of engendering a reasonable belief in the mind of the killer that he is in imminent danger of suffering grave bodily injury or death at his hands.

When Cooley with whom Moore had quarreled, left, armed himself and returned to the room where Moore was with a loaded shotgun which he intended to use on Moore, if necessary, and if Moore, seeing him, seized the shotgun in an effort to protect himself from being shot by Cooley, and in so doing it went off, killing him, Cooley was guilty of manslaughter. Under the circumstances the right of self-defense lay with Moore, not with Cooley, who was not under attack, even if Moore had been as Cooley said, the author of the original wordy quarrel, following which Cooley left the house and obtained his weapon.

POINT I: IT WAS NOT ERROR TO ADMIT PHOTOGRAPHS OP MOORE’S BODY.

Cooley attempted to explain having the gun and shells in his car at a nighttime function (gambling and drinking) by saying that he and his brother had intended to go squirrel hunting. But when pictures of the body, showing the wound, were exhibited to him, Cooley admitted that it was not such a wound as would have been made by bird shot or squirrel shot but to him it gave the appearance of a buckshot wound. Thus confronted, Cooley said he had reached into the glove compartment of his car and had not known what type load he was getting. The pictures also gave support to the State’s theory that four or five feet separated the gun muzzle and the victim, and tended to contradict Cooley’s contention that Moore had pulled the gun almost against himself at the time it was fired. The admission of the photographs was a matter within the sound judicial discretion of the trial judge and no prejudice is shown to have resulted therefrom. The pictures were relevant and had substantial probative value. Their admission was not an abuse of discretion and there is no merit in this assignment. Herring v. State, 374 So.2d 784 (Miss.1979).

There was no abuse of discretion by the trial court in the admission of the photographs.

POINT II: THE TRIAL COURT DID NOT ERR IN DECLINING TO GRANT A MISTRIAL BECAUSE OF THE CROSS-EXAMINATION OF COOLEY BY THE DISTRICT ATTORNEY AS TO THE ABSENCE OF PRETRIAL ASSERTION THAT THE SHOOTING HAD BEEN AN ACCIDENT.

To place the question raised by this point in proper perspective, and to appreciate what significance it had, if any, in Cooley’s manslaughter conviction, reference to the above statement of the facts and circumstances of the case is necessary.

After the State had rested, Cooley took the stand as a witness in his own behalf. It is argued that Cooley’s testimony in chief, as previously set out, showed that the shooting had been an accident. Among other things, Cooley said that within an hour or two after killing Moore he had surrendered himself to the officers as being the person who had committed the act. Upon completion of Cooley’s testimony in chief, on cross-examination the District Attorney had Cooley demonstrate how the gun could have fired in the manner described by Cooley. The record reflects that this demonstration showed that the gun could only have been fired under the circumstances related by Cooley with the cooperation of Cooley’s thumb on the hammer and his finger on the trigger. If every word of Cooley’s testimony is accepted at face value, the shooting of Moore by Cooley was neither a justifiable nor an excusable homicide under the law. Cross-examination is the only effective means for exposing fabricated and perjured testimony. This may be done not only by proof of inconsistent statements, but also by developing facts tending to show the intrinsic improbability of the truth of the testimony.

As said in Bradley v. Jago, 594 F.2d 1100 (6th Cir. 1979): “The fact that the defendant did not offer the exculpatory explanation when he had an earlier opportunity to do so is evidence which the jury is entitled to hear, and from which it may draw reasonable inferences.”

Here, Cooley testified that he had surrendered to the authorities after killing Moore. Failure to assert at that time that the killing had been an accident is so highly improbable as to be incredible. It was not error for the District Attorney to develop in this manner on cross-examination the intrinsic improbability of Cooley’s story as tending to show that it was a last minute fabrication. There was an objection by counsel and a motion for a mistrial based upon an assertion that the question had prejudiced Cooley by calling attention to his exercise of his Miranda right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant devotes 18 typewritten lines in his brief to this point (Point 2), citing only one case, Miranda v. Arizona, supra. However, the State’s brief collates the cases in which similar points have been considered. We think that of these cases those in which reversible error has been predicated on references to pretrial silence have been distinguished on the facts.

The questions confronting the Court are: (a) Did the cross-examination of Cooley as to the absence of pretrial statements that the shooting had been accidental violate his Miranda pretrial right to remain silent? (b) If so, can it be said that the violation was harmless beyond a reasonable doubt? To answer these questions, a review of the facts is necessary.

(1) There was no request for a jury instruction that the matter was to be considered for impeachment only; (2) A motion for a new trial was filed but not upon this ground; (3) Cooley’s guilt was beyond question; (4) Cooley took advantage of the incident to bolster his own testimony by putting on a relative to testify that Cooley had told him that the shooting had been an accident.

Since the decision of Miranda by the United States Supreme Court, subsequent decisions of that Court have relaxed considerably the strict application of the rules therein established, particularly in the area of the use for impeachment purposes of matter obtained in violation of Miranda guidelines, where a defendant takes the stand to testify in his own defense. There is no evidence or suggestion of custodial, official or other pretrial interrogation of Cooley. It is clear from questions and Cooley’s answers that he was at liberty on bail during several months preceding trial. Of paramount importance, the overall evidence, including Cooley’s own testimony, required a verdict of criminal homicide, either murder or manslaughter. There is no rational theory from the evidence or want of evidence capable of supporting a finding that the killing of Moore by Cooley was justifiable or excusable under the law.

It must be borne in mind that nowhere in the record is there evidence that the victim at any time made any overt move to carry out the alleged threats against Cooley or any member of his family. There is no testimony from anyone that the victim ever attacked, attempted to attack, drew or attempted to draw, a weapon of any kind. No gun or any weapon was ever produced by the victim, even according to Cooley’s testimony. The only evidence that the victim possessed a gun at all appears in Cooley’s testimony to the effect that he had observed the “print” of the gun through Moore’s clothing before he left the house for the purpose of obtaining the shotgun. Whether through compassion, or from some unidentifiable reason, the jury acquitted Cooley of murder by convicting him of manslaughter.

When Cooley took the stand and testified he submitted himself to cross-examination for the purposes of impeachment. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), Harris was indicted for the sale of heroin. A statement, in violation of Miranda, was taken from Harris while he was in custody. The Court excluded this statement on the prosecution’s case in chief. Harris’ testimony at the trial was inconsistent with the statement which he had made to police and the trial court admitted it in rebuttal for the purpose of impeaching Harris’ credibility of the witness. The jury was instructed to consider it in passing upon Harris’ credibility but not upon the guilt issue.

“Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. * * * Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.”
(401 U.S. at 225-226, 91 S.Ct. at 645-646, 28 L.Ed.2d at 4-5.)

The United States Supreme Court considered a similar question in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 48 L.Ed.2d 570 (1975). A statement, taken from Hass in violation of Miranda, was excluded in the prosecution’s case in chief. Hass then testified as a witness in his own defense as to his innocence. The inculpatory statement was admitted in rebuttal for the purposes of impeachment. The United States Supreme Court said:

We see no valid distinction to be made in the application of the principles of Harris to that case and to Hass’ case. Hass’ statements were made after the defendant knew Osterholme’s opposing testimony had been ruled inadmissible for the prosecution’s case in chief.
As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, . and, again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.
We are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution. There is no evidence or suggestion that Hass’ statements to Officer Osterholme on the way to Moyina Heights were involuntary or coerced. He properly sensed, to be sure, that he was in ‘trouble’; but the pressure on him was no greater than that on any person in like custody or under inquiry by any investigating officer.
The only possible factual distinction between Harris and this case lies in the fact that the Miranda warnings given Hass were proper, whereas those given Harris were defective. The deterrence of the exclusionary rule, of course, lies in the necessity to give the warnings. That these warnings, in a given case, may prove to be incomplete, and therefore'defective, as in Harris, does not mean that they have not served as a deterrent to the officer who is not then aware of their defect; and to the officer who is aware of the defect the full deterrence remains. The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant’s own mouth.
* * * * * *
We, therefore, hold that the Oregon appellate courts were in error when they ruled that Officer Osterholme’s testimony on rebuttal was inadmissible on Fifth and Fourteenth Amendment grounds for purposes of Hass’ impeachment. The judgment of the Supreme Court of Oregon is reversed.
(420 U.S. at 722-24, 95 S.Ct. at 1221, 43 L.Ed.2d at 577-578). '

This Court, in following the rulings of the United States Supreme Court in Harris and Hass, supra, has since dealt with the question in Murphy v. State, 336 So.2d 213 (Miss.1976), and Day v. State, 382 So.2d 1071 (Miss.1980).

In Murphy this Court said:

In her testimony defendant denied that she told David Tindall to shoot her father to get him out of his misery. This testimony was contradicted by the deputy sheriff.
The contradictory statement of defendant was made to the deputy sheriff under conditions similar to those made by the defendant in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) in that the statements were made in both cases in response to questioning by officers after defendants requested an attorney. In Hass the defendant had been arrested when the contradictory statements were made, whereas in this case the defendant had not been arrested.
******
In the instant case the statement made to the deputy sheriff was not admissible by the state on its case in chief for the reason stated by the trial judge in his ruling. However, it was not the result of coercion, duress, threats or promises and was therefore admissible for the purposes of impeaching the credibility of the defendant as a witness.” (336 So.2d at 215, 216).

See also Simmons v. State, 358 So.2d 1324 (Miss.1978).

In Day v. State, supra, this Court approved the interrogation of Day as to an alleged statement admittedly taken in violation of his Miranda right to the presence of an attorney during questioning and the use of the testimony of the officers in impeachment. In Murphy, supra, this Court held that under the circumstances the accused is entitled to an instruction that such statements may not be used as proof of guilt but may be considered only in passing on the defendant’s credibility as a witness, if requested by him.

In the case now before the Court, the only request made by Cooley was for a mistrial. No request was made by Cooley that the jury be instructed as in the Murphy and Day cases, supra.

When Cooley took the stand and told his story, it was proper cross-examination to test its truth by developing facts and circumstances tending to show that it was untrue and was a last minute fabrication. It was not a violation of Miranda to inquire of Cooley, who had testified that he surrendered to the officers within an hour or two after the shooting, whether he had told the officers that he had shot Moore accidentally. The inquiry was directed toward showing the unlikelihood that Cooley, who had just killed a man, and was surrendering to the officers as the killer, failed to state the exculpatory fact that the killing had been an accident.

In Bradley v. Jago, 594 F.2d 1100 (6th Cir. 1979), the Court had this to say with reference to such a situation:

Doyle applies to those situations in which a defendant is entitled to rely on the implicit assurance of the Miranda warnings that silence carries no penalty. [Doyle v. Ohio], 426 U.S. [610] at 618, 96 S.Ct. 2240 [at 2245, 49 L.Ed.2d 91]. In contrast, where a defendant had not received warnings, there is nothing unfair in permitting jurors to hear that a defendant initially failed to offer his exculpating version of events after they have heard his version at trial. It is not to be presumed that failure to explain at that time resulted from an exercise of the Fifth Amendment right to remain silent. The fact that the defendant did not offer the exculpatory explanation when he had an earlier opportunity to do so is evidence which the jury is entitled to hear, and from which it may draw reasonable inferences. (Emphasis added). (594 F.2d at 1103).

When Cooley came back into the house where Moore was, with his shotgun, loaded with buckshot, someone yelled “there comes Chester with a gun” and “everyone scattered ever which way.” Under these circumstances, Cooley advanced on Moore and, Cooley says, Moore grabbed the gun. At that time, the right of self-defense lay with Moore, not Cooley, and if, as Cooley said, Moore “grabbed” the gun, he was justified in doing so in self-defense.

We hold that there was no reasonable or tenable theory arising out of the evidence or from the want of evidence capable of supporting a finding that the homicide was excusable or justifiable. On the whole record, the evidence strongly supports the prosecution’s theory that the homicide was murder. The jury, however, in finding Cooley guilty of manslaughter acquitted him of murder and, since no other explanation appears from the record, apparently accepted Cooley’s statement and found him guilty of the lesser offense of manslaughter. On the evidence this was all Cooley could possibly have been entitled to. We hold that the cross-examination of Cooley under the circumstances was proper for the purpose of exposing the intrinsic improbability of his account of the shooting and tended to show that his version was a recent fabrication rather than the truth. It was permissible under the rule laid down by the United States Supreme Court in the cases of Harris v. New York, and Oregon v. Hass, supra, and followed by this Court in Murphy v. State and Day v. State, supra, and did not constitute a violation of Cooley’s rights under Miranda.

This Court dealt with the question in May v. State, 211 So.2d 845 (Miss.1968). In May this Court said:

The first assignment is that the court erred in allowing the state to prove and argue that appellant maintained his silence after the shooting and gave no explanation thereof in spite of the fact that his defense at the trial was that the shooting was an accident. The state did prove by some of the officers that when the appellant was arrested and in their custody he made no statement as to how the shooting occurred and consequently did not claim at that time that it was an accident.
Because he was under no duty then to speak and because his right to remain silent is protected by both the State and Federal Constitutions, the introduction of this testimony in chief would create a serious problem and, according to numerous cases, would be reversible error. E. G., Pierce v. State of Nebraska, 173 Neb. 319, 113 N.W.2d 333 (1962); Lee v. State, 148 Tex.Cr.R. 220, 185 S.W.2d 978 (1945); Willson v. Commonwealth, 160 Va. 913, 168 S.E. 344 (1933); Goodman v. State, 104 Tex.Cr.R. 589, 285 S.W. 821 (1926); Ripley v. State, 58 Tex.Cr.R. 489, 126 S.W. 586 (1910).
However, appellant took the stand to testify in his own behalf. Of course, he did not have to testify. It is generally held, and has been specifically held by this Court, that when the defendant voluntarily takes the witness stand, he waives all right to remain silent and is required to answer any questions relevant to the issue involved. In Autry v. State, 230 Miss. 421, 92 So.2d 856 (1957), this Court recognized, approved, and cited the rule as stated in 58 Am.Jur. Witnesses section 96 at P. 80. It was held that the waiver for the accused when he takes the stand is not partial, and, having once cast a side the cloak of immunity, he may not resume it at will whenever cross-examination may be inconvenient or embarrassing.
Having so waived his immunity by taking the witness stand, the appellant submitted himself to cross-examination during which he was asked about his remaining silent before the officers. His answer was that he did remain silent and that he had told no one of his claim of the shooting being accidental except his lawyer and his brother. This admission by the appellant rendered harmless the introduction by the state of the evidence of his silence, and the state had the right to argue it. Compare Patton v. State, 207 Miss. 120, 137, 41 So.2d 55, 56 (1949). We are compelled to affirm the case. (Emphasis added). (211 So.2d at pp. 846-47).

Moreover, since the evidence established Cooley’s guilt of murder or manslaughter beyond question, and the jury acquitted him of murder and convicted him of the lesser offense, there having been no basis in the evidence for acquittal, if the incident now complained of was error, it was without prejudice and was harmless beyond a reasonable doubt.

Rule 11 of the Mississippi Supreme Court Rules provides:

No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.

Even in a case where a violation is demonstrated to have actually occurred, nevertheless, it will be considered harmless error if the whole record demonstrates beyond a reasonable doubt that it was without any substantial prejudicial effect under all of the facts and circumstances of the case. United States v. Whitaker, 592 F.2d 826 (5th Cir. 1979).

In United States v. Dixon, 593 F.2d 626 (5th Cir. 1979), the Court said:

The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt. (593 F.2d at 629).

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court, although finding a prejudicial error in that case, stated:

The State has not claimed that such use [of petitioner’s silence] in the circumstances of [Hoyle’s] this case might have been harmless error. (426 U.S. at 619—620, 96 S.Ct. at 2245, 49 L.Ed.2d at 98-99).

In the ease at bar the State affirmatively asserts, and we agree, that, if the incident constituted error it was plainly harmless and non-prejudicial beyond a reasonable doubt. The conviction appealed from will be affirmed.

AFFIRMED.

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

WALKER, J., and ROBERTSON, P. J., specially concur.

WALKER, Justice,

specially concurring:

I concur with Justice Smith, but feel it necessary to emphasize certain facts and law for so doing.

Chester Lee Cooley was indicted for murder but convicted of manslaughter. His defense was that the shotgun held by him accidentally discharged when the deceased “snatched” the gun. However, the evidence for the State was that the killing was intentional and unnecessary.

After shooting the deceased, Cooley fled the scene, but about two hours later turned himself in to the Laurel Police Department and then he and his lawyer and the Laurel Police went to the sheriff’s office.

It was not contended or even suggested by the defendant that he was given the Miranda warnings that he had a “right to remain silent, etc.”

During the course of the trial, the following colloquy between Cooley and the prosecuting attorney occurred during cross-examination:

Q. And this shooting took place on January 13th; and February 13th, March 13th, April 13th — it has been more than three months ago, hasn’t it?
A. It’s been three months.
Q. A little over three months, hasn’t it?
A. It’s been three months.
Q. And since that time have you ever gone to any member of the law enforcement and told them what you told this jury here today about it being an accident? (i. e., the shooting).
MR. PARRISH:
I object to that, and move for a mistrial.
THE COURT:
Overruled.
What is the basis of your motion, Mr. Parrish?
MR. PARRISH:
That he is commenting on his exercise of his rights under the 5th Amendment [not] to talk to the law enforcement officers in this matter, and that’s what he has been doing for the last 10 or 15 minutes, making comments, and I object to that.
THE COURT:
Overruled.

The appellant contends that the trial court erred in declining to grant a mistrial because of the cross-examination of Cooley by the district attorney as to the absence of any pretrial assertions that the shooting had been accidental. According to my interpretation of the case law on this subject applicable to the facts presented by this record, there was nothing impermissible about the district attorney’s cross-examining Cooley as to whether he had ever told anyone prior to trial that the shooting had been an accident. If Cooley had been properly Mirandaed at the time of arrest, the cross-examination would have been impermissible — but the fact is Cooley was not Mirandaed.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court in settling conflicts between the various federal circuit courts addressed the issue of “whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.” 426 U.S. at 611, 96 S.Ct. at 2241, 49 L.Ed.2d at 94. The Court quoted with approval the following language from United States v. Hale, 422 U.S. 171, 95 S.Ct. 2138, 45 L.Ed.2d 99 (1975):

“[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.” (426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98) (Emphasis added).

In conclusion it held:

We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners’ convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion. (426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98-99) (Emphasis added).

As stated by Justice Smith in the majority opinion, “When Cooley took the stand and told his story, it was proper cross-examination to test its truth by developing facts and circumstances tending to show that it was untrue and was a last minute fabrication. It was not a violation of Miranda to inquire of Cooley, who had testified that he surrendered to the officers within an hour or two after the shooting, whether he had told the officers that he had shot Moore accidentally. The inquiry was directed toward showing the unlikelihood that Cooley, who had just killed a man, and was surrendering to the officers as the killer, failed to state the exculpatory fact that the killing had been an accident.”

In Bradley v. Jago, 594 F.2d 1100 (6th Cir. 1979), the Court had this to say with reference to such a situation:

Doyle applies to those situations in which a defendant is entitled to rely on the implicit assurance of the Miranda warnings that silence carried no penalty. 426 U.S. at 618, 96 S.Ct. 2240. In contrast, where a defendant has not received warnings, there is nothing unfair in permitting jurors to hear that a defendant initially failed to offer his exculpating version of events after they have heard his version at trial. (594 F.2d at 1103), (Emphasis added).

I see no compelling reason for this Court to impose greater restrictions on a district attorney’s right to cross-examine an accused, who takes the stand to testify, than has been done by the Federal courts. The rule as now pronounced is strict enough and is in accordance with the Constitution. It should not be made any more strict in this State.

If Cooley had been advised of his right to remain silent by the officers or his own attorney, then I would agree that he could not be cross-examined about his earlier silence — but that was not the case. Cooley did not receive any such warning or advice from the officers or his attorney so far as this record shows.

The conviction and sentence should be affirmed.

ROBERTSON, P. J., and LEE, J., join this specially concurring opinion.

ON PETITION .FOR REHEARING

On Petition for Rehearing, the contention is again made that permitting cross-examination of Cooley violated his right to remain silent and requires reversal. The facts were stated and the matter was dealt with at length in the original opinion. However, since the opinion in the ease sub judice was written, the decision of the United States Supreme Court in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), has become available. In Jenkins, the United States Supreme Court, in dealing with a contention similar to that raised here, said:

On August 13, 1974, the petitioner (Jenkins) stabbed and killed Doyle Red-ding. The petitioner was not apprehended until he turned himself in to governmental authorities about two weeks later. At his state trial for first-degree murder, the petitioner contended that the killing was in self-defense.
The petitioner testified that his sister and her boyfriend were robbed by Red-ding and another man during the evening of August 12, 1974. The petitioner, who was nearby when the robbery occurred, followed the thieves a short distance and reported their whereabouts to the police. According to the petitioner’s testimony, the next day he encountered Redding, who accused him of informing the police of the robbery. The petitioner stated that Redding attacked him with a knife, that the two men struggled briefly, and that the petitioner broke away. On cross-examination, the petitioner admitted that during the struggle he had tried “[t]o push that knife into [Redding] as far as [he] could,” App. at 36, but maintained that he had acted solely in self-defense.
During the cross-examination (of Jenkins) the prosecutor questioned the petitioner about his actions after the stabbing:
Q. And I suppose you waited for the Police to tell them what happened?
A. No, I didn’t.
Q. You didn’t?
A. No.
Q. I see.
And how long wás it after this day that you were arrested, or that you were taken into custody?” App. at 33.
After some discussion of the date on which petitioner surrendered, the prosecutor continued:
Q. When was the first time that you reported the things that you have told us in Court today to anybody?
A. Two days after it happened.
Q. And who did you report it to?
A. To my probation officer.
Q. Well, apart from him?
A. No one.
Q. Who?
A. No one but my-
Q. (Interposing) Did you ever go to a Police Officer or to anyone else?
A. No, I didn’t.
Q. As a matter of fact, it was two weeks later, wasn’t it?
A. Yes, App. at 34.
In closing argument to the jury, the prosecutor again referred to the petitioner’s prearrest silence. The prosecutor noted that petitioner had “waited two weeks according to the testimony-at least two weeks before he did anything about surrendering himself or reporting [the stabbing] to anybody.” Id., at 43. The prosecutor contended that the petitioner had committed murder in retaliation for the robbery the night before.
The petitioner was convicted of manslaughter and sentenced to 10- to 15-years imprisonment in state prison, (at p. 232, 100 S.Ct. at p. 2126, 65 L.Ed.2d at p. 92).

The issue in Jenkins was succinctly articulated by the Court in the following language:

The question in this case is whether the use of prearrest silence to impeach a defendant’s credibility violates either the Fifth or the Fourteenth Amendments to the Constitution, (at p. 232, 100 S.Ct. at p. 2126, 65 L.Ed.2d at p. 90).
At trial the prosecutor attempted tc impeach the petitioner’s credibility by suggesting that the petitioner would have spoken out if he had killed in self-defense. The petitioner contends that the prosecutor’s actions violated the Fifth Amendment as applied to the States through the Fourteenth Amendment. The Fifth Amendment guarantees an accused the right to remain siient during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, [1232] 14 L.Ed.2d 106, 5 Ohio Misc. 127, 32 Ohio Ops.2d 437 (1965). In this case, of course, the petitioner did not remain silent throughout the criminal proceedings. Instead, he voluntarily took the witness stand in his own defense. (Emphasis supplied) (Jenkins, at p. 235, 100 S.Ct. at p. 2127, 65 L.Ed.2d at p. 92).

In Jenkins, the Court, citing and quoting from Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), said:

... [I]nquiry into prior silence was proper because “[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. ... When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined. ...” Id., at 496-497, 70 L.Ed. 1054, 46 S.Ct. 566. Thus, the Raffel Court concluded that the defendant was “subject to cross-examination impeaching his credibility just like any other witness. ” Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 982, 1 L.Ed.2d 931, 963, 62 A.L.R.2d 1344 (1957).
. . . The Raffei Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights. “We are unable to see that the rule that [an accused who] testifies . . . must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.” (271 U.S. at 499, 46 S.Ct. 566, 70 L.Ed. 1054).

The decision in the case sub judice is clearly in accord with the decision of this Court in May v. State, 211 So.2d 845 (Miss.1968) and of the United States Supreme Court in Jenkins v. Anderson, supra.

We find no merit in the petition for rehearing and the same is, accordingly, overruled.

All Justices concur.

       In Raffei, the defendant’s decision not to testify at his first trial was an invocation of his right to remain silent protected by the Fifth Amendment. In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raffei clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent. (Emphasis added), (at p. 235, 100 S.Ct. at p. 2127, 65 L.Ed.2d at pp. 92-93).

       Both Mr. Justice Stevens, post, [at 236, n. 2, 100 S.Ct.] at 2131, n. 2, 65 L.Ed.2d 97, and Mr. Justice Marshall, post, [at 246, 100 S.Ct.] at 2133, 65 L.Ed.2d 103, suggest that the constitutional rule of Raffei was limited by later decisions of the Court. In fact, no Court opinion decided since Raffei has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence. In United States v. Hale, 422 U.S. 171, 175, n. 4, 95 S.Ct. 2133, 2136, n. 4, 45 L.Ed.2d 99 (1975), the Court expressly declined to consider the constitutional question. The decision in Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), was based on federal evidentiary grounds, not on the Fifth Amendment. The Court in Grunewald v. United States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1 L.Ed.2d 931, 963, 62 A.L.R.2d 1344 (1957), stated that it was not required to reexamine Raffel. In all three cases, the Court merely considered the question whether, as a matter of federal evidentiary law, prior silence was sufficiently inconsistent with present statements as to be admissible. See also n. 6, infra, (at — -, 100 S.Ct. at p. 2128, 65 L.Ed.2d at pp. 93-94). (Emphasis added).


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    Victor John DITTA and Vincent Frank Ditta d/b/a Ditta Realty Co. v. The CITY OF CLINTON, Mississippi, a Municipal Corporation.
    No. 52173.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    As Modified on Denial of Rehearing Jan. 14, 1981.
    Terese E. Troxclair, David W. Mockbee, Reynolds, Mockbee & Johnson, Jackson, for appellant.
    John H. Fox, III, Marc A. Biggers, Fox, Gowan & Biggers, Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Res judicata and collateral estoppel were successfully asserted by the City of Clinton (Clinton herein) in the Circuit Court of the Second Judicial District of Hinds County. Plaintiffs, Victor John Ditta and Vincent Frank Ditta d/b/a Ditta Realty Co. (Ditta herein), sued Clinton and Hammerhead Construction Co. (a Louisiana firm) alleging that Hammerhead negligently designed and negligently supervised the construction of a retaining wall on Ditta’s Clinton East Mall in Clinton. Previously, Ditta had sued Hammerhead (which did the construction work) in a Louisiana court for breach of contract and defective workmanship. The Louisiana court exonerated Hammerhead on the theory that Hammerhead had complied with the design furnished by Ditta which had been approved by Clinton.. When Ditta sued Clinton in Hinds County, Mississippi, the Mississippi court held that the Louisiana judgment (res judicata) barred the present suit of Ditta. We reverse.

The chief issue is whether the Louisiana judgment in favor of Hammerhead entitles Clinton to dismissal based upon res judicata and/or collateral estoppel. We must hold to the contrary because the Louisiana lawsuit involved different party litigants and different issues. Magee v. Griffin, 345 So.2d 1027 (Miss.1977); Sanders v. State, 242 So.2d 412 (Miss.1970).

Ditta’s suit against Hammerhead in Louisiana was based upon the failure (defective qualities) of the timber retaining wall constructed by Hammerhead for Ditta. Only two parties were involved in that action: Ditta and Hammerhead. Hammerhead was exonerated by the Louisiana court on the basis of its finding that Hammerhead did its work on the retaining wall in compliance with the plans and specifications provided to Hammerhead by Ditta. The Louisiana court further found that any failure of the retaining wall related to faulty plans and specifications. In making its finding, the Louisiana court pointed out that the original plans and specifications which Ditta furnished Hammerhead were unacceptable to Clinton and thereafter modified in accordance with Clinton’s requirements. Any possible liability on the part of Clinton was not and indeed could not have been legally adjudicated by the Louisiana court.

In its decision, the Louisiana court noted that the location of the soil anchors (an integral component of the wall construction) was not determined by Hammerhead which did its work under the direct supervision of Clinton’s engineer. The Louisiana court stated:

The defendants admitted that they did not know what undisturbed soil was, that this fact was so related to both the plaintiffs and the City Engineers of the City of Clinton and that the defendants were told where to place the soil anchors by the City Engineers of the City of Clinton and were told that where they were placed was in undisturbed soil. This is borne out by the fact that the City Engineers of the City of Clinton approved the placement of the soil anchors and approved the inspection of where the soil anchors would be placed and actually physically marked the place where the soil anchors were to be inserted in the ground.

Having found that Hammerhead did its construction work in compliance with the plans, specifications, and directions given by Clinton’s engineers relating to the wall, the Louisiana court exonerated Hammerhead of any liability with reference to the defective retaining wall.

After Ditta lost its Louisiana action against Hammerhead and was later sued by an adjoining landowner because of the collapsing and defective retaining wall, it then sued Clinton in the present Mississippi action. Ditta’s suit against Clinton was based upon the premise that it (Ditta) had relied upon Clinton’s engineer to supervise the construction of the wall in controversy. Study of the pleadings makes it obvious that Ditta concluded that the wall was improperly designed and constructed and, therefore, could recover from whichever party was negligent in the design, supervision, or construction of the wall. The Louisiana judgment, in exonerating Hammerhead for any liability related to the negligent construction of the retaining wall, did not reach any alleged acts or omissions by Clinton in the negligent supervision as pertained to the wall.

In this action, Ditta is not questioning Hammerhead’s liability but is alleging liability on the part of Clinton for its actions or omissions as supervisor. These issues have not been resolved by the Louisiana court. The present issues of negligent design and supervision were not asserted or adjudicated in the Louisiana suit against Hammerhead, the contractor. It appears that one Harrison prepared the plans and specifications which were then modified in accordance with the express direction of Clinton’s engineer after which Clinton accepted the plans and specifications as updated and revised. The record causes us to conclude that the factual issue of the present litigation is whether negligent supervision attributable to Clinton caused the failure or collapse of the retaining wall. Hammerhead’s exoneration by the Louisiana court left undecided the present issue against Clinton. In Magee v. Griffin, 345 So.2d 1027, 1033 (Miss.1977), we held that in order for res judicata to bar an action the following essential elements must be present:

(1) identity of thing sued for; (2) identity of cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or character in the person against whom the claim is made.

Clinton was not a party to the Louisiana suit so that element (3) is lacking. The alleged negligence of Clinton pertaining to negligent supervision of the wall’s construction was not an issue decided by the Louisiana court; therefore, essential (2) is also lacking.

As stated in Sanders v. State, 242 So.2d 412, 413-14 (Miss.1970):

Collateral estoppel is one aspect of res judicata. Developed in civil litigation, and firmly established in the jurisprudence of this state as applied to civil cases, this doctrine means that where a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Garraway v. Retail Credit Co., 244 Miss. 376, 141 So.2d 727 (1962).

Accordingly, the outcome of the Louisiana litigation cannot be the proper basis for dismissal of the present suit on the ground of either res judicata or collateral estoppel.

Clinton also contends that it is immune from liability under the doctrine of sovereign immunity. This argument is without merit because Clinton’s alleged actions with reference to the. retaining wall were a proprietary function and not a governmental function. City of Ruleville v. Grittman, 250 Miss. 842, 168 So.2d 527 (1964).

Upon remand, the lower court will consider all evidence pertaining to Clinton’s alleged negligence.

REVERSED AND REMANDED.

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


author: LEE, Justice,

text:
    Annie F. THIGPEN, by Leola Flowers, Conservator, and Individually v. Willie James PAYTON et al.
    No. 52211.
    Supreme Court of Mississippi.
    Nov. 26, 1980.

      R. K. Houston, Jr., Oates & Houston, Bay Springs, for appellant.
    Thomas Q. Brame, Jr., J. E. Ulmer, Jr., Bay Springs, for appellees.
    Before SMITH, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

James A. Minor and Bobbie H. Minor (Minors), husband and wife, filed suit in the Chancery Court of the Second Judicial District of Jasper County against Annie F. Thigpen (Thigpen) and Willie James Pay-ton, Jimmy Lee Payton and Eugene Payton (Paytons), seeking to remove clouds on title to forty-six (46) acres of land. Thigpen and the Paytons filed separate answers and cross-bills, Thigpen seeking to cancel deeds executed by her to the Minors and Paytons as clouds on her title, and the Paytons seeking to cancel claims of the other parties as clouds on their title. The chancellor cancelled the deed executed by Thigpen to the Minors and confirmed the deed executed by Thigpen to the Paytons. Thigpen has appealed from the final decree confirming title in the Paytons. There is no appeal by the Minors.

I.

Did the trial court commit manifest error in declining to set aside the deed from appellant Thigpen to appellees Paytons?

The chancellor cancelled the deed from appellant to the Minors, executed January 11, 1974, on the ground that there was a confidential relationship between them, and the instrument had been obtained from appellant through overreaching and undue influence.

The deed to the Minors had never been recorded. Willie James Payton, Jimmy Lee Payton and Eugene Payton were brothers who resided and grew up near appellant as children and young men, then moved out of the State of Mississippi. Their parents continued to live next door to appellant. On August 3, 1978, their father, Luther Payton, contacted them by telephone and advised that appellant had contacted him, told him that she wanted to sell her land to appellees and asked him to get in touch with them. On August 4, 1978, they came to Jasper County, Mississippi, consulted with an attorney, who examined the title to the property, prepared a deed for appellant to sign conveying the property to the Paytons, and obtained a check payable to appellant in the sum of ninety-six hundred dollars ($9,600), consideration for the conveyance. About 3:00 p. m., the Paytons returned to the attorney’s office and together with the attorney and a notary public, went to appellant’s home, where they remained for approximately twenty (20) minutes. The attorney and the Paytons talked with appellant about the transaction, and she signed the deed which was notarized by the notary public. The certified check was delivered to her in payment of the consideration. The Paytons then left appellant’s home and went to Bay Springs, where the deed was filed for record.

Appellant contends that the deed was void because the consideration was grossly inadequate, that she suffered from extreme weakness of mind, and that the burden of proof of her competency shifted to the ap-pellees. Without detailing the evidence offered by appellant, she introduced seven (7) witnesses, including Dr. William H. C. Dudley, a psychiatrist. The first witness was Leola T. Flowers, the only child and heir-at-law of appellant, who qualified as appel-lánt’s conservator prior to institution of the suit. Testimony of the lay witnesses covered a period of many years and was to the effect that appellant was crazy, had no mind, and didn’t know what she was doing.

Dr. Dudley testified concerning results of his examination of Mrs. Thigpen on April 10,1979, and April 30,1979, in his office. It was his opinion that she was not competent to understand the nature of the land conveyance to the Paytons on August 4, 1978, that she had arteriosclerosis, which worsened each year, and that she had organic brain syndrome, associated with senile brain disease, resulting in a loss of sense of value and confusion of people with one another. However, he admitted on cross-examination that he had accepted as true the history of appellant related to him by her daughter, Leola T. Flowers, that he did not perform a physical examination on appellant, that his judgment as to the extent of her senility was questionable and that he did not ascertain from Leola T. Flowers whether appellant was on medication at the time of his examination.

The appellees each testified, as did the notary public, that on August 4, 1978, the date appellant executed the deed, she was fully competent and knew and understood what she was doing. The Paytons further testified that the transaction originated with appellant and that they paid her the price she asked for the land, two hundred dollars ($200.00) per acre. An appraiser for the appellant stated, in his opinion, the fair market value of the property was seventeen thousand dollars ($17,000).

The question here is different from that presented between appellant and the Minors. There, appellant’s answer and cross-bill charged a confidential relationship and the chancellor found that such a relationship existed between appellant and the Minors and that the Minors overreached appellant and obtained their deed in 1974 by undue influence.

There is no allegation of confidential relationship between appellant and the Pay-tons. The burden of proof rested upon appellant throughout the trial to prove she was incompetent to execute the deed of conveyance. The appellant admits that the question is whether, at the time of the deed, she had insufficient mental capacity to understand in a reasonable manner the nature of her actions and fully understand the consequences thereof. In Lang v. Jones, 224 Miss. 649, 80 So.2d 783 (1955), the Court said:

“On the issue of mental capacity, the testimony was in conflict as to the entire period from the death of (grantor’s wife) in 1949 until the date of the execution of the second deed (1952). The appellee had the advantage of being able to offer proof of the mental capacity of the grant- or at the very times the deeds were executed, and this proof was to the effect that the grantor was mentally capable of understanding the nature and effect of the transactions. In this kind of case, the test is whether the grantor had mental capacity to understand the nature and effect of the transaction at the time the instrument was executed, and testimony relating to that particular time is entitled to the most weight. [Citations omitted].” (Emphasis added). 224 Miss. at 652, 80 So.2d at 784.

Lambert v. Powell, 199 Miss. 397, 24 So.2d 773 (1946), stated that “The mental capacity of one executing an instrument to pass title to land is to be tested as of the date of its execution.... ” [199 Miss. at 404, 24 So.2d at 775].

In Pipes v. Webb, 236 Miss. 612, 111 So.2d 641 (1959), Pipes, a 69-year-old woman, conveyed her home and several rental homes for the sum of ten dollars ($10.00) to an individual other than a relative. Heirs of Pipes sought to cancel the deed, contending that Pipes was incompetent at the time of the instrument’s execution, and that the consideration was inadequate. Holding that the grantor Pipes was of sound mind and understood her actions at the time the deed was executed, the Court said:

“In Burnett v. Smith, 93 Miss. 566, 47 So. 117, 118, this Court said: ‘A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice.’ [Citations omitted].
. . . The trial court having found on adequate proof that [grantor] was of sound mind at the time of the execution of the instrument, and that she executed the same voluntarily and of her own free will . . ., the Court may not inquire into the wisdom or folly of her act.” 236 Miss. at 618, 111 So. at 643.

We are of the opinion that the appellant failed to meet the burden of proof imposed upon her to show that she was not competent to execute and deliver the August 4, 1978 deed of conveyance, and that the chancellor was not manifestly wrong in cancel-ling appellant’s claim as a cloud upon the title of appellees.

II.

Were comments in cross-examination by counsel for appellees contrary to accepted notions of fairness and did they create an atmosphere prejudicial to appellant?

The case was tried before the chancellor, sitting without a jury. Comments and remarks that might be prejudicial to a party, when tried before a jury, usually are not so when tried before a judge. He rules on, and may keep out or strike, such comments and remarks. However, the trial judge must maintain control of his court and the lawyers who interrogate witnesses, and he must insure that no witness is harassed or intimidated by an attorney. In Craft v. State, 271 So.2d 735 (Miss.1973), this Court said:

“Trial courts should employ every means at their command to prevent the browbeating and unnecessary public humiliation of witnesses, most of whom would certainly prefer to be elsewhere and who have been brought to the stand by the compulsory process of the court. It is a tragic commentary on conditions of the present day that fear on the part of potential witnesses of being thus mistreated is one of the major difficulties confronting law enforcement authorities in the successful prosecution and conviction of criminals. The irony of the situation is, perhaps, that the lawyer who thus abuses his position defeats his own purpose, as the reaction of judges and juries alike to the mistreatment of a helpless witness by an attorney is one of revulsion and distaste.” 271 So.2d at 737.

Although the cross-examination and comments of appellees’ attorney may have exceeded the bounds of propriety, they did not constitute reversible error.

III. — IV.

The appellant contends that the court erred in permitting appellees’ lay witnesses to testify as to the sanity of Annie F. Thigpen, and in overruling appellant’s motion for a protective order. We have carefully considered these assignments of error and are of the opinion that they are without merit.

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

AFFIRMED.

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


author: WALKER, Justice,

text:
    DIXIELAND FOOD STORES, INC. et al. v. KELLY’S BIG STAR, INC.
    No. 51934.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Rehearing Denied Jan. 14, 1981.
    John B. Clark, B. Stevens Hazard, Daniel, Coker, Horton, Bell & Dukes, Jackson, for appellants.
    Crymes G. Pittman, Cothren, Pittman & Ferrell, Jackson, E. Howard Eaton, Taylors-ville, Eugene Tullos, Tullos, Tullos & Tullos, Raleigh, for appellee.
    Before PATTERSON, C. J., WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

This is a suit for damages alleged to have been sustained by Kelly’s Big Star, Inc., a food store, because of an alleged campaign of unfair competition by false advertising conducted by Dixieland Food Stores, Inc., through its employees, Charles E. Kervin and Phillip Skinner. Another defendant named in the suit Benson Wholesale, Inc., was granted a directed verdict at the end of the plaintiffs’ case. The case against the remaining defendants was submitted to a jury in the Circuit Court of Smith County, resulting in a verdict and judgment for Kelly’s Big Star in the amount of $250,000. We reverse and render.

For the purposes of the opinion, the defendants will be referred to as Piggly Wiggly. Big Star sued Piggly Wiggly for damages alleged to have resulted from untrue misleading and deceptive advertisements published by Piggly Wiggly in violation of Mississippi Code Annotated section 97-23-3 (1972), which reads as follows:

Any person who, with intent to sell or in any way dispose of merchandise, securities, service, or anything offered by such person, directly or indirectly, to the public for sale or distribution, or who, with intent to increase the consumption of or demand for such merchandise, securities, service or other thing, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, makes, publishes, disseminates, circulates or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated or placed before the public within the state, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or by a label affixed to the merchandise or its container, or in any other way, an advertisement of any sort regarding merchandise, securities, service or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, including but not limited to representing himself as selling at wholesale unless he is actually selling at wholesale those items so represented, and which such person knew, or might on reasonable investigation have ascertained to be untrue, deceptive or misleading, shall be punished by a fine of not more than five hundred dollars ($500.00), and the offending person, whether found guilty or not, may be held civilly responsible in tort for damages to persons or property proximately resulting from a violation of this section. This section shall not apply to any owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, or to any agent of the advertiser who in good faith and without knowledge of the falsity or deceptive character thereof publishes, causes to be published, or participates in the publication of such advertisement. Firms with the word “wholesale” in their corporate title are not in violation of this section so long as they identify the sales as being made by their retail division.

In 1977 Big Star and Piggly Wiggly were the only large grocery stores in Taylorsville, and their quest for the local grocery business was highly competitive. Big Star had been running an advertisement in the Tay-lorsville Signal, which ad stated, “Why pay more!! Check our Prices first!!” Phillip Skinner, the manager of the Taylorsville’s Piggly Wiggly Store, decided to check Big Star’s prices to see if they were really any lower. After checking the prices of certain name brand goods carried by both stores, Skinner obtained permission from his supervisors to prepare a comparative advertisement setting forth the difference in prices.

Before making the price comparison, Skinner hired the services of Mr. P. A. Cockrell, a notary public, for the purpose of attesting to the accuracy of the price comparison. Cockrell then accompanied an employee of Piggly Wiggly, who purchased 172 name-brand items at both the Big Star and Piggly Wiggly stores in Taylorsville. Skinner then ran an advertisement in the Tay-lorsville Signal listing all 172 items and the prices charged by both stores. Of the 172 items listed, Piggly Wiggly’s prices were lower on 171 items.

Big Star does not challenge the accuracy of the prices or the price difference of the 172 items bought and compared, except for three arguable discrepancies making a total difference of 2OV2 cents. On the stand even Mr. Robert Kelly, the owner of Kelly’s Big Star, admitted that out of 172 items such a slight discrepancy was pretty accurate printing. There is no testimony that indicates this minor discrepancy was intentional, and there was some testimony that the error may have been on the part of Big Star’s own cashier. The advertisement Pig-gly Wiggly ran indicated that the price difference of the 172 items totalled $21.45. This affidavit prepared by Mr. Cockrell indicated that the total of the purchases made at Big Star was in the amount of $244.18. The affidavit indicated that the same items at Piggly Wiggly sold for $223.11, or a difference of $21.07 less at Piggly Wiggly.

When the advertisement was prepared, there was placed in the bottom right-hand corner in an inconspicuous manner, and covering a minimal amount of the total area of the full page advertisement, an attestation which read as follows: “Products listed above were purchased and compared on week ending October 15 by P. A. Cockrell, Notary Public, at Taylorsville Piggly Wiggly and Big Star. The items are on display at Piggly Wiggly for varification (sic).”

Big Star took exception to this portion of the advertisement contending it was not accurate in that Mr. Cockrell did not, in fact, “purchase” the merchandise from Big Star, but only accompanied and observed a Piggly Wiggly employee who made the actual purchases. Upon receipt of this objection, Piggly Wiggly revised the next printing of the advertisement to more accurately read: “Products listed above were purchased and compared on week ending October 15, 1977. The transactions by Piggly Wiggly were supervised, compared and notarized by P. A. Cockrell, Notary Public at Taylorsville Piggly Wiggly and Big Star. The items are on display at Taylorsville Piggly Wiggly for varification (sic).”

Although this ad more accurately reflected the role of Mr. Cockrell, Big Star nevertheless objected to it and demanded a complete retraction of the ad. The Piggly Wiggly manager again conferred with his attorney, who advised him that the advertisement was accurate and there was no need for any further change. However, he did suggest an alternative advertisement should Piggly Wiggly desire to change it. Piggly Wiggly, in an attempt to satisfy Big Star, revised the next printing of the advertisement to reflect the changes made in the previous two ads. The second revised advertisement reflected that the purchases were made in the presence of a notary public and that a notarized statement of the accuracy of the purchases and comparisons, along with the actual tapes on purchased products, was available upon request at the Taylorsville Piggly Wiggly. This advertisement, in essentially the same form was printed in three successive editions of the Taylorsville Signal.

In summary, the first advertisement ran only in the October 26, 1977 edition of the Taylorsville Signal. The second advertisement ran in only the November 2, 1977, edition of the Taylorsville Signal. The third advertisement ran in three successive editions of the Taylorsville Signal, on November 9, 16 and 23, 1977. In addition to running the first advertisement in the Tay-lorsville Signal, Piggly Wiggly mailed out approximately 12,000 printed circulars of the ad to the postal patrons in the Taylors-ville area. Also, it was admitted that a three foot by five foot poster of the original ad was displayed inside the Piggly Wiggly store during the five weeks the advertisement campaign was run.

At the trial, Big Star entered into evidence the above advertisements along with the posters and the advertising circulars which advised the shoppers in the area of the comparison of prices. It also introduced evidence that it had suffered a monetary loss of net profits over the next sixteen months-from November 12, 1977 through March 31, 1979-and contended that the loss was a result of the erroneous advertisement of October 26, 1977.

The defendant put on rebuttal testimony and testimony reflecting the nature of their business and the manner and reasons for the increase in their gross business to dispel the contentions of Big Star that the advertisement had been the reason for Big Star’s loss of business. For example, there was testimony that beginning in September of 1977 Piggly Wiggly hired full-time employees to replace part-time help, which had been subject to a high turnover. Another step was to add an extra gondola or aisle to give customers a better selection and to give the shelves more holding space. The variety of goods offered increased by over 500 items. Also, a company-wide stoneware promotion offering a three-piece setting for 99$ for each purchase of $9.99 began on September 14, 1977, and coupon booklets were distributed to potential customers toward the end of 1977 or early 1978. In addition, Piggly Wiggly conducted Bingo Magic games and Cash-King games during this time. Certainly each of the above tended to attract customers to shop at Piggly Wiggly, and in the process caused Big Star to lose customers. However, there is no contention that the above steps constitute “unfair competition,” either separately or in combination.

After both sides rested, the court instructed the jury as to both actual and punitive damages. The jury thereafter returned its verdict of $50,000 actual damages and $200,000 punitive damages.

Although there were reversible errors in the introduction of evidence, as well as in the granting of instructions, it is only necessary that we consider one error assigned by Piggly Wiggly, and that is, whether it was entitled to a peremptory instruction which it was.

Although section 97-23-3 provides that one may be held civilly responsible in tort for a violation of that section, as in any other case, damages sustained, if any, must be proximately caused by the alleged untrue, deceptive or misleading advertisement. It was never the intent of the Legislature that every mere technical error or misstatement in an advertisement would cause the advertiser to be liable in damages if the technical error were not a substantial contributing factor to the damages sustained. In this case, the thrust of the advertisement and its obvious intent and purpose was to compare the prices of certain grocery items carried by the two stores. As stated, there is no contention that there was any error in the prices listed in the advertisement. It is not even suggested, and there was no proof submitted, that any customers switched from Big Star to Piggly Wiggly because of a statement in the one ad that Mr. Cockrell “purchased” the compared goods. As the later advertisements correctly stated, Mr. Cockrell merely accompanied a Piggly Wiggly employee who did the purchasing. Further, as stated earlier, the portion of the advertisement concerning Mr. Cockrell's role in the price comparison test was an insignificant part of the ad, was placed in a small area in an inconspicuous spot, and only verified that the ad was correct according to him. It is very significant that the correctness and accuracy of the prices listed in the advertisement were not challenged in the lawsuit.

Therefore, after careful review of this record, we have reached the inescapable conclusion that the plaintiff wholly failed to show any causal connection between the inaccuracy of the advertisement and any damages alleged to have been sustained. It is true that the advertisement published in the October 26, 1977, edition of the Taylorsville Signal and circulars contained a statement which was technically untrue. However, under the facts contained in this record, there is no proof that any customers were in any way misled or deceived by this misstatement.

In its brief and argument before this Court, Big Star contends that it alleged and proved that the defendants used false advertisements with an intent to destroy its business. In Memphis Steam Laundry Cleaners v. Lindsey, 192 Miss. 224, 5 So.2d 227 (1941), this Court recognized the existence of a common-law action for unfair competition, where the dominant purpose to inflict injury is established. However, even a casual review of the facts in this case shows it is not within the ambit of the Memphis Steam Laundry, case.

Therefore, for the reasons outlined above, the judgment of the lower court is reversed and judgment is rendered here for the defendants.

REVERSED AND RENDERED.

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

BOWLING, J., took no part.


text:
    Jeff H. EVANS v. Miles Dempsey EVANS.
    No. 52263.
    Supreme Court of Mississippi.
    Nov. 26, 1980.
    Rehearing Denied Jan. 14, 1981.
    Tom Tullos, Bay Springs, for appellant.
    Thomas Q. Brame, Jr., J. E. Ulmer, Jr., Bay Springs, for appellee.
    Before ROBERTSTON, P. J., and BOWLING and COFER, JJ.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

AFFIRMED.


text:
    Ric JONES v. STATE of Mississippi.
    No. 52197.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Rehearing Denied Jan. 14, 1981.
    James D. Bell, Jackson, for appellant.
    Ric Jones, pro se.
    Bill Allain, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    Curtis JACKSON v. STATE of Mississippi.
    No. 52223.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Rehearing Denied Jan. 14, 1981.
    Lee B. Agnew, Sr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    Gary HUTCHINSON v. STATE of Mississippi.
    No. 52214.
    Supreme Court of Mississippi.
    Dec. 3, 1980.
    Rehearing Denied Jan. 14, 1981.

      Roy Pitts, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Gary Hutchinson was convicted in the Circuit Court of Wayne County, Honorable Henry Palmer, presiding, for the sale of marijuana and was sentenced to nine (9) years in the Mississippi Department of Corrections. He has appealed from the sentence and judgment and assigns four (4) errors in the trial below.

I.

The appellant assigns as error that the trial court erred in admitting testimony of a crime other than that charged in the indictment.

The evidence indicates that on February 23, 1979, Officer Randy Johnson went to appellant’s trailer home in Waynesboro, accompanied by Ernest Byrd, for the purpose of purchasing marijuana from appellant. Officer Johnson and Captain Taylor, both narcotics investigators from Hattiesburg, had come to Waynesboro to assist police there in investigating the drug traffic. Johnson and Byrd were searched, along with the automobile, before they went to appellant’s trailer in order to verify that they had no marijuana on their persons or in the vehicle.

Johnson testified that he and Byrd entered appellant’s trailer aljout 9:00 p. m., that Johnson purchased marijuana from appellant for the sum of ten dollars ($10.00), that appellant told him he, appellant, was going to Laurel that night and would obtain more marijuana and would sell same to Johnson. The marijuana was delivered to police headquarters and shortly after midnight, Johnson and Byrd returned to appellant’s trailer in order to buy the additional marijuana. Appellant was not there and Johnson and Byrd played cards with appellant’s sister and brother-in-law until appellant came in, after a short while. According to Johnson, appellant sold him 14.4 grams for sixty dollars ($60.00).

Appellant was indicted for sale of the 14.4 grams of marijuana and he now argues that he was prejudiced by the State showing the first alleged sale a few hours prior thereto.

Without deciding whether the two alleged offenses were so closely related in point of time that the first alleged sale was admissible, it is clear from the record that no objection was made to such testimony. Therefore, the trial court cannot be put in error for not excluding such testimony on its own motion. Diddlemeyer v. State, 234 So.2d 292 (Miss.1970); Harris v. State, 226 So.2d 760 (Miss.1969).

II.

Appellant next contends that trial defense counsel was ineffective in failing to object to inadmissible evidence and that the trial court should have granted a new trial for that reason.

Appellant was represented by two prominent and experienced attorneys in the City of Waynesboro. In order to determine whether an accused has effective counsel, an appellate court looks to the entire record. The attorneys representing appellant at trial were obtained and employed by him. In Stewart v. State, 229 So.2d 53 (Miss.1969), quoting from the Fifth Circuit in MacKenna v. Eliis, 280 F.2d 592 (5th Cir. 1960), in defining “effective counsel,” the Court said:

“ ‘We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty of appointed counsel to client as essential to due process.’ ” (Emphasis added) 229 So.2d at 56.

and from Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962):

“ ‘The test to be applied in determining the legal adequacy of the allegations of appellant’s petition is readily stated: “The requirement of the Fourteenth Amendment is for a fair trial”; the due process clause “prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right.” Compliance with this standard required that appellant, charged with a capital offense, be represented at trial by counsel.
“ ‘But the constitutional requirement of representation at trial is one of substance, not of form. It could not be satisfied by a pro forma or token appearance. Appellant was entitled to effective aid in the preparation and trial of the case.’ ...” 229 So.2d at 56.

We cannot speculate as to the trial strategy of those attorneys. The record indicates that, although the appellant denied he had ever sold marijuana, he sought to impress the jury that he was entrapped by the confidential informant Byrd. The trial attorneys may have relied on general feeling in the community that Byrd would be blamed and the appellant would be discharged. It is significant that one of the trial attorneys testified on the motion for new trial presented by appellate counsel, and that no question was asked him concerning the conduct of the trial, or why objections were not made, as argued by the appellant. We are of the opinion that this contention is not supported by the record and there is no merit in it.

III.

Appellant contends thirdly that the trial court erred in granting the State Jury Instruction S — 1 for the reason that it comments on the weight of the evidence and on appellant’s guilt.

The instruction complained of follows:

“The Defendant, Gary Hutchinson, has been charged by indictment with the crime of sale of marijuana for having knowingly and willfully sold marijuana, a controlled substance, for money.
If you find from the evidence in this case beyond a reasonable doubt that the Defendant, Gary Hutchinson, in Wayne County, Mississippi, on the 24th day of February, 1979, knowingly and willfully sold marijuana in the amount of 14.4 grams to Randy Johnson for money; and, that the Defendant, Gary Hutchinson, received $60.00 in good and lawful currency of the United States for said 14.4 grams of marijuana, then you shall find the Defendant guilty of sale of marijuana.
If you find from the evidence in this case beyond a reasonable doubt that the Defendant is guilty, then the form of your verdict may be as follows: ‘We, the jury, find the Defendant guilty as charged.’
Write your verdict on a separate sheet of paper.”

The objection made to the instruction at trial was that it combined the verdict-the form of verdict-with the instruction and tended to be confusing and was almost a peremptory instruction on guilt. The appellant, on appeal, claims that the instruction affirmatively states the guilt of the defendant to the charge against him and constitutes reversible error.

The State argues that the objection on appeal does not conform to that made at trial and under Wall v. State, 379 So.2d 529 (Miss.1980) and Miss.Sup.Ct. Rule 42, this Court should not consider the argument.

Although the instruction was not artfully drawn, and the first paragraph was not necessary, we do not agree with the argument of appellant that it peremptorily told the jury he sold marijuana. The second paragraph of the instruction correctly presented the guilt issue to the jury, and, when all the instructions are read as a whole, we conclude that the jury could not have been confused and was properly instructed on the issues. Briscoe v. Jones, 233 So.2d 125 (Miss.1970); Brown v. Addington, 233 Miss. 435, 102 So.2d 365 (1968).

IV.

Lastly, appellant contends that the trial court erred in refusing to grant him a continuance because of the absence of Ernest Byrd.

Ernest Byrd was a confidential informant for the City of Waynesboro and, as stated, went with Officer Randy Johnson to appellant’s home on February 23, 1979, and was present when Johnson purchased marijuana from appellant. There were three other persons, members of appellant’s family, present at the time and they all testified in his behalf.

The case was continued on motion of appellant from the July 1979 Term until the regular September 1979 Term and was tried on October 9, 1979, at which time appellant filed a motion for continuance on the ground that Ernest Byrd was a material witness and was absent and unavailable for testimony. The affidavit filed in support of the motion, along with appellant’s testimony, was to the effect that Ernest Byrd encouraged appellant to smoke marijuana and sell marijuana, which appellant refused to do, that Byrd made advances toward appellant’s wife and that Byrd conspired to “frame” appellant.

After conviction, appellant obtained his present attorney, who filed a motion for new trial and placed appellant on the witness stand in support of that motion. Appellant testified that he did not know what Byrd would testify to, if present, and no details were stated as to what efforts, if any, had been made to obtain the presence of Byrd or his affidavit, after the guilty verdict. The procedure on motions for continuance is set forth in the old case of Lamar v. State, 63 Miss. 265 (1885) and has been restated many times, even as recently as Fermo v. State, 370 So.2d 930 (Miss.1979).

The fact that appellant testified he had no knowledge what Byrd would testify to in itself requires that the motion be overruled. The motions here are not supported by the statute and the decisions of this Court and were properly overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    BIBLE MINISTRY ASSOCIATION v. King MERRITT, Jr., et al.
    No. 52254.
    Supreme Court of Mississippi.
    Dec. 10, 1980.

      M. James Chaney, Jr., Teller & Teller, Vicksburg, for appellant.
    David M. Sessums, Varner & Parker, Vicksburg, for appellees.
    Before SMITH, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Bible Ministry Association (BMA) filed suit in the Chancery Court of Warren County against King Merritt, Jr., and Miriam Merritt, Co-executors of the Last Will and Testament of King Merritt, Sr. (Merritt), seeking to cancel a deed of trust on certain lands and promissory notes secured by the deed of trust. After a full hearing, the chancellor, Honorable Nat W. Bullard, dismissed the bill of complaint. BMA has appealed, and the executors have cross-appealed.

Appellant assigns three (3) errors in the trial below, which may be condensed into the question of whether the lower court erred in holding that a written instrument, upon which the suit lies, is in violation of the mortmain statutes and whether the lower court erred in declining to enforce said instrument executed contemporaneously with a deed of trust on lands involved, securing promissory notes.

There is little dispute in the facts of the case. Merritt was a wealthy man, but in September, 1977, and prior thereto, was in poor health. He became interested in the Kingdom of Christ on earth and talked with Mr. Wayne Peters (Peters) concerning such interest. Merritt desired to contribute to a bible ministry and encouraged Peters to organize BMA and obtain a non-profit charter for same. After the organization of BMA, on September 12, 1977, Merritt conveyed to it one hundred (100) acres of land in Warren County and, contemporaneously, for tax benefits to himself, had BMA execute a deed of trust to him in the sum of two hundred thirty thousand dollars ($230,-000), evidenced by seven (7) promissory notes of thirty-two thousand eight hundred fifty-seven dollars fourteen cents ($32,-857.14), each payable seriatim beginning December 31, 1977. On the same date, he wrote a letter to Peters setting forth an agreement between them with reference to the transaction, which follows:

“9-12-77
Mr. A. W. Peters
Bible Ministry Association
Raymond, Mississippi 39154
Dear Mr. Peters:
I have this date sold to the Bible Ministry Association certain farm lands to be used for associational religious work. This sale was for $230,000.00, consisting of seven promissory notes of $32,857.14 each, one due on December 31, 1977, and one due each year thereafter on December 31st until the entire balance is paid.
I hereby agree that as long as you personally remain with the association and it continues the work for which it was created, I will cancel each of these notes without payment to me as it becomes due. I have provided in my will that the balance due at my death shall be cancelled as a contribution to the association.
Sincerely yours,
/s/ KING MERRITT
King Merritt
KM:af”

Several months later, Merritt improved in health to some extent and desired to reacquire the property. He approached Peters with the proposition that BMA reconvey the .100 acres of land to him in exchange for cancellation of the notes and deed of trust. He further agreed to convey to BMA ten (10) acres of the property free of liens, and donate to BMA fifty percent (50%) of the proceeds received from sale of the remaining ninety (90) acres. The transaction was agreed upon and the property was recon-veyed to Merritt who, on March 17, 1977, conveyed the ten (10) acres to BMA pursuant to said agreement. However, for tax purposes, he requested that BMA execute five (5) notes payable to him, aggregating twenty thousand dollars ($20,000) secured by deed of trust on the ten acres of land and payable seriatim in the sum of five thousand dollars ($5,000) each, beginning March 17, 1979. Contemporaneously with the execution of the notes and deed of trust, on March 17, 1978, he wrote Peters a letter confirming their agreement as follows:

“March 17, 1978
Mr. A. W. Peters
Bible Ministry Association
Bovina, Mississippi
Dear Mr. Peters:
I have this date sold to the Bible Ministry Association ten acres of land to be used for associational religious work. This sale was for $20,000.00, consisting of four promissory notes of $5,000.00 each, one due on March 17, 1979, and one due each year thereafter on March 17th until the entire balance is paid.
I hereby agree that as long as you personally remain with the association and it continues the work for which it was created, I will cancel each of these notes without payment to me as it becomes due. I have provided in my will that the balance due at my death shall be cancelled as a contribution to the association.
Sincerely yours,
/s/ KING MERRITT
King Merritt
KM:jc”

The letters of September 12, 1977 and March 17,1978, were practically identical in language, each consisting of two short paragraphs of five (5) lines. The agreements were to the effect that, as the notes became due, Merritt would cancel them without payment as long as Peters personally remained with the association and continued the work for which it was created. In each agreement, Merritt also stated that he had provided in his will that the balance due on the notes be cancelled at his death as a contribution to the association.

Merritt died May 27, 1978, seventy-one (71) days after the execution of the March 17, 1978 notes, deed of trust and letter agreement. King Merritt, Jr. and Miriam Merritt qualified as co-executors of the Last Will and Testament of King Merritt, Sr., and the court admitted to probate a Last Will and Testament of King Merritt, Sr. The will, presented by the co-executors, consisted of seven (7) typed legal pages, executed January 11, 1978, and a codicil of two (2) typed legal pages, executed January 19, 1978. There was no provision in the will or codicil for cancellation of the March 17, 1978 deed of trust and notes. The executors declined to cancel them and BMA filed its bill of complaint to have its agreement with Merritt honored and enforced. BMA prayed that the court cancel of record the deed of trust and the promissory notes secured by it.

The appellees filed a motion to dismiss the bill of complaint on an affirmative defense that the March 17, 1978, letter agreement was void under the mortmain statutes, since it was executed less than ninety (90) days prior to the death of Merritt, and not in accordance with the will laws of the State of Mississippi.

The pertinent statute on the question presented here is Mississippi Code Annotated Section 91-5-31 (1972) which provides the following:

“No person leaving a spouse or child or descendant of a child shall, by will, bequeath or devise more than one third of his estate to any charitable, religious, educational, or civil institution to the exclusion of such spouse or child or descendant of such child. In all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.” (Emphasis added)

The above section tracks Section 270, Miss.Const.1890, which states, in part:

“Section 270. No person leaving a spouse or child, or descendant of child shall, by will, bequeath or devise more than one-third of his estate to any charitable, religious, educational or civil institutions, to the exclusion of such spouse or child, or descendants of child and in all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.” (Emphasis added)

The chancellor held that there was no connection between the September 12, 1977 letter agreement and the March 17, 1978 letter agreement and that the deed executed March 17,1978 was a separate gratuity. He further found that the March 17, 1978 letter agreement was in contravention of the mortmain laws of Mississippi (set forth above) for the reason that Merritt died May 27, 1978, within the ninety-day period. The letter agreement, therefore, was unenforceable. Following the opinion, he dismissed the bill of complaint.

The question presented here was answered in Crook v. Commercial National Bank and Trust Co., 375 So.2d 1006 (Miss.1979), where the Court said:

“It should be noted at this point that there is no prohibition against making a gift of land to a charitable, religious, educational or civil institution during a person’s lifetime or to create an inter vivos trust with land therein for the benefit of any one or more of those institutions.” 375 So.2d at 1009.

We are of the opinion the September 12, 1977 transaction was valid, and was connected with the March 17, 1978 agreement. The consideration for cancelling the September 12, 1977 agreement was execution of the deed of conveyance by Merritt conveying debt free to BMA the ten acres of land, and paying unto BMA one-half (Vfe) the proceeds from sale of the ninety acres, which resulted in a forty-five thousand dollar ($45,000) payment to BMA. The $20,000 note indebtedness secured by the deed of trust was to enable Merritt to receive tax benefits.

The March 17, 1978 letter, when considered conjunctively with the deed of trust and notes executed on that date, and the previous transaction of the parties on September 12,1977, constituted a valid and binding contract between the parties and is enforceable as such. The reference in Paragraph 2 of the letter agreement that Merritt had provided in his will for the cancellation of the notes at his death did not render the instrument testamentary in character nor did it bring the instrument within our mortmain statutes. On the contrary, we construe the reference in the last sentence of the letter agreement, i. e., that Merritt had provided by will for cancellation of the balance due at his death as a contribution to the association, to be an agreement that the balance due be cancelled at Merritt’s death. The chancellor erred in applying the law to the facts and holding that the instrument was void under the mortmain statutes.

CROSS-APPEAL

Appellees cross-appeal and contend that, if BMA established the March 17,1978 letter agreement, its claim is barred under Mississippi Code Annotated Section 91 — 7— 151 (Supp.1976) which states:

“All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.” (Emphasis added)

BMA does not claim that the estate of Merritt is indebted to, or owes it, money. BMA simply denies that it is indebted to the Merritt estate and contends that the deed of trust affecting its property should be cancelled as a cloud on title. If the estate had a valid claim against BMA, which was denied, the estate would be required to institute proceedings to collect the indebtedness. The opposite is not true here as to BMA. The argument of appellees is not supported by Section 91-7-151, and is without merit. Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599 (1947).

REVERSED AND RENDERED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

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

      . The original indebtedness for tax purposes to Merritt was $230,000, payable in seven (7) note installments of $32,857.14 each, when 90 acres of the property sold on March 17, 1978 for only $90,000.