author: ROBERTSON, Presiding Justice,

text:
    James Calvin GATOR v. STATE of Mississippi.
    No. 52612.
    Supreme Court of Mississippi.
    April 8, 1981.
    As Modified on Denial of Rehearing April 29, 1981.
    William K. Duke, Richard C. Davis, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

James Calvin Gator was indicted, tried and convicted in the Circuit Court of Lafayette County for the rape of a 58-year-old widow. The jury was unable to agree on punishment, whereupon, the trial court sentenced Gator to serve 23 years in an institution designated by the Mississippi Department of Corrections.

Around 10:30 p. m. on October 10, 1978, the prosecutrix, a 58-year-old widow, was awakened by a light in her bedroom. She heard a noise, and turned on a lamp by her bed. After checking the living room and kitchen doors, which were locked, she checked the drapes which were still drawn on the patio sliding door. When she pulled the drapes, she saw a face in the glass door, which was not completely closed. She attempted to close the sliding door but the man outside grabbed her wrist. As she struggled with her assailant, he entered the house and grabbed her by both wrists. After he had pulled her out on the patio, he threw her on the ground and raped her.

He then jerked her to her feet and ordered her back in the house. He told her that he had done a terrible thing, and that he had come there primarily looking for money. She offered him $20 if he would leave, and after she handed him the money she slammed the door and called the police. She was unable to give a description of her assailant other than that he was a black man of about medium build.

About a month and 20 days later, defendant was picked up after midnight on November 29, 1978, for investigation in connection with a series of burglaries. He was transported to the police station and advised of his Miranda rights. After defendant Gator stated that he understood his rights, he signed a printed waiver of rights form in the presence of Detective Captain David Webb and Lieutenant Metts. He then made a statement, reduced to writing by Captain Webb, admitting the rape of the prosecutrix. Gator signed the statement and Webb and Metts signed as witnesses.

At the preliminary hearing, on defendant’s motion to suppress, Gator testified, denying that he had raped the prosecutrix or that he had made any statement about the rape. However, he admitted making statements about the burglaries. He admitted that he was not threatened or pressured on the burglary statements. The court overruled the motion to suppress the confession.

Dr. John W. Hunsicker, a young clinical psychologist, testified, at the pre-trial hearing to determine defendant’s competency to stand trial, that he had given Gator psychological and personality tests a few days before, that the tests indicated an IQ of 43, and a mental age of 7 years and 2 months. Dr. Hunsicker was unable to testify that Gator had been overreached in making his confession, nor did he have an opinion as to whether Gator knew the difference between right and wrong. The court found that defendant was competent to stand trial. After a full trial, the defendant was convicted and sentenced as aforesaid.

The defendant has assigned 11 errors allegedly committed by the trial court. Most of them have to do with the feeblemindedness of the defendant, and the bearing this would have on his competency to stand trial, or to intelligently waive his rights and make a voluntary confession. The defendant’s position seems to be that an IQ of 43, per se, conclusively proves that the defendant, although an experienced 41-year-old man, was not capable of forming a criminal intent to commit rape, was incapable of distinguishing between right and wrong, and was incapable of aiding his two court-appointed attorneys in preparing his defense.

At the trial, Dr. Hunsicker testified as to the psychological tests given Gator and as to his mental and social ages, but he could not state whether defendant was capable of forming a criminal intent, nor could he state whether the defendant knew the difference between right and wrong.

Dr. Donald C. Guild, director of forensic psychiatry at Mississippi State Hospital at Whitfield, testified that he, in conjunction with Dr. Stanley, the staff psychologist, had examined the defendant, after they had reviewed the defendant’s history. Dr. Guild testified that he looked primarily at two things: (1) is he competent to stand trial; and (2) is he criminally responsible? Dr. Guild’s opinion was that he was competent to stand trial, that he knew the difference between right and wrong, and that he knew the nature and quality of his wrongful act and was, therefore, criminally responsible. Dr. Guild explained that an IQ of 43 arrived at through the Stanford— Benet test would not be conclusive as to the real intelligence of a person, that an IQ test can be influenced to a considerable extent by motivation, that most IQ tests contain a social comprehension scale, that an IQ of 43 would be the very bottom reading, and that in his opinion, although Whitfield did not give defendant Gator any psychological tests, his considered opinion, after interviewing and observing defendant and after studying his history, would be that the defendant had an IQ of 70.

The trial of this case took two full days. The record consists of 410 pages, contained in two volumes. The trial judge, in ruling on a motion for a new trial, said, among other things:

“This defendant was indicted by a grand jury of Lafayette County on the 4th day of January, 1979, on the crime of rape. During the January, 1979, term of court and particularly on January 9th, 1979, a motion for psychiatric examination was filed, no jury trial was asked for to determine whether or not the defendant was capable of assisting his lawyers in his defense. After the court had heard the matter without a jury, the court entered an order that the defendant would be examined by a psychiatrist at Whitfield, Mississippi, Mississippi State Hospital. He was finally examined by them. Of course, I am sure the Supreme Court is aware of the problems that the trial courts are having in getting people committed to Whitfield for such examination. After this examination, of course, the psychiatrist at Whitfield says he was capable of communicating, capable of knowing right from wrong, in other words, he met the McNaghton test that is still used by the State Supreme Court. Some time later in the fall of the year, he was examined by a clinical psychologist which the court authorized and upon the trial of the case when the matter involving the motion to suppress confession was heard, the trial court saw and observed the defendant, heard him testify in his own behalf, observed him in the courtroom and heard the other evidence that was presented. The trial judge determined that he was capable of understanding and knowing and appreciating his situation that he was in which he did make a confession and then after he made the confession, he went in the automobile with the officers and pointed out the house where the lady lives. Now it’s urged upon this court that due to the facts that the clinical psychologist testified, that this defendant had an IQ of some 43, that as a matter of law, he is incapable of being able to give a confession or incapable of assisting in a rational defense. This court is of the opinion that when the legislature placed feeblemind-edness in the same statute as that of insanity, it put the ultimate question to the jury and not to that of the trial judge concerning a person’s feeblemindedness, and if I recall correctly, at the arraignment of this defendant, he entered pleas of not guilty by reason of insanity and feeblemindedness, and therefore this court is of the opinion the whole issue to be finally determined is a question of fact for the jury and certainly not a question of law since the same statute now embraces both insanity and feeblemindedness .... The mere fact that the legislature has seen fit to put that [feeble-mindedness] under the same statute as that of insanity, this court is of the opinion that he should be tried the same as the issue of insanity and under the same rules and regulations of insanity and the state psychiatrist having testified that although he did not test this man from his interview, talking with him, seeing him, and his diagnosis was that his IQ would be in the range of the 70’s, from his long experience working in this field so there was the issue of fact as to what the clinical psychologist testified to and that of the psychiatrist to be resolved by the jury and the whole issue was put to the jury. On the matter of restricting the clinical psychologist in his testimony on the stand concerning many and varied tests that he performed, he testified specifically to the two he said that was the most important, and then after having testified as to this, he would not, even upon the court’s question to him, formulate an opinion as to whether or not this defendant was capable of knowing right from wrong. He said he was not qualified to answer that. So having answered that in that manner, the court was of the opinion that and his other testimony he was not going to give an opinion. He was about in the same position as any lay witness not having any facts to back upon and would not render an opinion. His testimony was really of very little value to the court in the trial of the case or to the jury. For those reasons the court will overrule the motion for a new trial, and the judgment notwithstanding the verdict.
MR. DUKE: If it please the court, as a point of clarification, is the court holding that the matter of whether or not the confession itself should have been admitted in evidence was cured by the jury?
THE COURT: No sir, I am not holding that. I am holding that on the basis of-the evidence I stated while ago, on the basis of the evidence presented to the court, the court’s observation of the de fendant in the courtroom the defendant taking the stand and testifying, this court was of the opinion that he did have sufficient understanding and ability to make a confession which the court ruled on in the trial of the case.”

■{Emphasis added).

We agree with the trial judge that the defendant was capable of understanding his Miranda rights, and, after having these rights explained to him, that he intelligently, knowingly and voluntarily waived these rights and confessed that he committed the offense with which he was charged.

With defendant’s confession and Dr. Guild’s testimony that defendant was criminally responsible, before them, the evidence was such that the jury could reasonably have found the defendant guilty beyond a reasonable doubt.

One other assignment of error that should be mentioned was that the court erred in not dismissing the charge because the trial took place 385 days after the indictment. The indictment was filed January 4, 1979. The order appointing two attorneys to represent the defendant was dated January 8,1979, and a motion for psychiatric examination was made by defense counsel on January 9, 1979. The court, after a detailed hearing on January 17, 1979, properly sustained the motion for psychiatric examination. That psychiatric examination was completed at Whitfield on November 6, 1979, at which time defendant was certified as competent to stand trial. A motion to dismiss because defendant had not been speedily tried was filed on January 17, 1980. The record reflects that it was not until the case was called for trial on January 24, 1980, that defendant was arraigned and pled “not guilty”. After overruling the motion to dismiss, the court proceeding with a full trial on January 24 and 25, 1980. Most of the delay between the date of the indictment and the date of trial was because of the difficulty in getting a psychiatric examination at Whitfield. The motion for psychiatric examination at Whitfield was made by defendant, and no motion for a private examination was ever made.

Mississippi Code Annotated section 99-17-1 (Supp. 1980) provides:

“Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

(Emphasis added).

Admittedly the defendant was not arraigned until January 24,1980. There is no merit in this assignment of error.

We have carefully considered and studied the other assignments of error and find them to be without merit.

The conviction and sentence are, therefore, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Horace DIER v. Joe DIER, et al.
    No. 52661.
    Supreme Court of Mississippi.
    July 15, 1981.
    John H. White, Jr., McComb, Dwight K. Luter, Tylertown, for appellant.
    William F. Watkins, Statham, Watkins, Mitchell & Brock, Magnolia, for appellees.
    Rehearing Denied Sept. 2, 1981.
   Appeal from Chancery Court, Walthall County; Bert H. Jones, Chancellor.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    Shane ANDERSON, a Minor, by and through Brenda Anderson, his Mother and next Friend, and James Anderson and Brenda Anderson v. FRED WAGNER AND ROY ANDERSON, JR., INCORPORATED.
    No. 52663.
    Supreme Court of Mississippi.
    July 15, 1981.
    Rehearing Denied Sept. 2, 1981.
    Neil W. White, Jr., Gulfport, for appellants.
    William M. Rainey, White & Morse, James 0. Dukes, Bryant & Stennis, Gulf-port, for appellees.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   LEE, Justice, for the Court:

Shane Anderson, a minor, and his parents, James Anderson and Brenda Anderson, filed separate suits in the Second Circuit Court District of Harrison County, against Fred Wagner and Roy Anderson, Jr., Inc., for personal injuries sustained by Shane Anderson when he thrust his arm through a glass door while leaving Murphy Elementary School. The cases were consolidated, pleas in bar were filed by the defendants and sustained by the presiding judge, Honorable Kosta N. Vlahos. The Andersons appeal from the judgment of dismissal and assign the following error in the trial below:

The Circuit Court erred in sustaining the defendants’ plea in bar in the case below, and in entering orders of dismissal and an order overruling the plaintiff’s Motion to Reconsider, for the reason that Mississippi Code Annotated Section 15-1-41 (1972) is unconstitutional.

Appellant’s declaration alleged that Shane Anderson’s injuries were due to the negligence of appellees, who were the architect and contractor of the building, in that they failed to specify and install a door with safety glass or a safety material when they knew or should have foreseen the likelihood of injuries to students using the door. The parties agree that more than ten (10) years elapsed from the date of construction and acceptance of the Murphy Elementary School building until the time of the child’s injury on March 3, 1978. Consequently, appellees’ pleas in bar and the resulting judgment of dismissal were based on Mississippi Code Annotated Section 15-1-41 (1972), which follows:

“No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.
This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.
This limitation shall not apply to actions for wrongful death.
The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date.”

Appellants contend that the statute is unconstitutional and violates the following sections of the Mississippi Constitution of 1890:

“All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.” Art. 3, § 24, Miss.Const. 1890.
“No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted.” Art. 4, § 87, Miss.Const. 1890.

In considering whether a statute is offensive to the Constitution, we recognize that, to be declared unconstitutional, a statute must appear unconstitutional beyond a reasonable doubt. Peterson v. State, 268 So.2d 335 (Miss.1972); Masonite Corp. v. State Oil & Gas Board, 240 So.2d 446 (Miss. 1970). Persons attacking the constitutionality of a statute have the burden of showing clearly that it violates constitutional provisions. Carter v. Harrison County Election Comm’n., 183 So.2d 630 (Miss.1966); Board of Education v. State Educational Finance Comm’n., 243 Miss. 782, 138 So.2d 912 (1962).

In Mississippi State Tax Comm’n. v. Tennessee Gas Transmission Co., 239 Miss. 191, 116 So.2d 550 (1959) appeal dismissed, 364 U.S. 290, 81 S.Ct. 61, 5 L.Ed.2d 39 (1960), this Court said:

“The propriety, wisdom and expediency of [an] act is a question for the Legislature and not the courts. It will be presumed that the Legislature considered the effect of the statute, and that it acted with an intent to comply with constitutional provisions and a desire to be fair and equitable. [Citations omitted].” 239 Miss, at 198-199, 116 So.2d at 552.

Statutes similar to that here involved are commonly called statutes of repose because they relax the potential liability of possible defendants. Approximately forty-seven (47) states and the District of Columbia have enacted such statutes, and it has been noted that “[w]hile the statutes thus enacted are not uniform in content, the purpose for which they were enacted was uniformly to limit the time within which actions for deficiencies in the design, construction, and supervision of construction of improvements to real property, for which architects, engineers, and others in the construction industry were responsible, could be brought against such persons.” 93 A.L.R.3d 1243, 1246, § 2(a) (1979).

Twenty-five (25) states have addressed the constitutionality of such statutes. Fifteen (15) of those states have upheld the statute while ten (10) have held it unconstitutional.

Appellants have digested the decisions in those ten states which struck statutes similar to ours and rely strongly on Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo. 1980), a Wyoming case, wherein that state’s high court held the statute void on the theory that it was not a statute of limitations but a grant of immunity from suit. As does the Mississippi statute, the Wyoming statute limited to ten (10) years the liability of persons involved in the design, planning, supervision, construction or supervision of construction. Phillips, supra, rested in large part on the decision and reasoning in Skinner v. Anderson, 38 Ill.2d 455, 431 N.E.2d 588 (1967), wherein the Illinois Supreme Court invalidated a similar statute as (1) arbitrarily insulating architects and contractors from liability while deleting other potential defendants in the same situation, (2) setting up irrational classifications, and (3) existing devoid of any reasonable legislative purpose. Other jurisdictions have relied upon Skinner in striking down their statutes.

Conversely, appellee relies upon and discusses to some extent cases from those fifteen states which have declined to accede to the constitutional challenge to their statutes. In Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), the Arkansas court said that the true issue in assembling such statutes (as ours) is whether it is fair and reasonable and an appropriate action by the legislature or whether it impinges and frustrates basic rights guaranteed by the constitution. Those statutes upholding the constitutionality of such statutes have held that they are legitimate exercises of the legislative power. In Joseph v. Burns, 260 Or. 493, 491 P.2d 203 (1971), the Oregon Supreme Court interpreted a legislature’s function with reference to claims barred or prohibited by the statute, as follows:

“It has always been considered a proper function of legislatures to limit the availability of causes of action by the use of statutes of limitation so long as it is done for the purpose of protecting a recognized public interest. It is in the interest of the public that there be a definite end to the possibility of future litigation resulting from past actions. It is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation.” 260 Or. 493, 491 P.2d at 207-08.

The New Jersey Supreme Court, in Rosenburg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972), deemed it error to view such statutes as applying only to the narrow field of architecture and contractors, as follows:

“For convenience we have referred to the beneficiaries of this legislation as architects and building contractors. But the favored class is much larger. It includes ‘any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property.’ We do not attempt at this time to enumerate all of the classes of persons coming within this statutory group. These might include, as examples only, the designer of a sewage plant for a development complex, a landscape gardener or a well driller. We can find here no such exclusion from the class as to justify a determination that this is a special law coming within the prohibition of our state Constitution. [Citations omitted].” 61 N.J. 190, 293 A.2d at 668.

Appellee’s position is supported by strong reasoning and precedent embodied in the Pennsylvania decision of Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), where the Court said:

“It is manifestly rational to adjust time periods for liability for acts performed according to the substantive scope of the liability involved. The scope of liability of the class of builders differs significantly from that of the class of owners. First, the class of persons to whom builders may be liable is larger than the class to which owners may be liable. Landowners may be liable to others who come onto their land. Builders, however, may be liable both to the landowners and to others who use the land. Second, a builder may be liable for construction defects under various legal theories — contract, warranty, negligence, and perhaps strict liability in tort. Landowner liability for such defects, on the other hand, typically lies only in tort, unless the landowner is a lessor, in which case he is liable only for events occurring while the tenant is in possession. . . . Third, landowners can ordinarily avoid liability by taking adequate care of their land and structures and by regulating the number and type of persons entering the land and regulating the conditions of entry. The builder has no such control over his product after relinquishing it to the landowner. Landowner’s liability is also controlled by the myriad of common law rules limiting liability to such classes as ‘undiscovered trespassers,’ ‘mere licensees’ and so forth. Builder’s insurance and owner’s insurance structures and pricing are also different. For any of these reasons the Legislature might rationally conclude that builders should remain liable for their mistakes for only 12 years after they complete construction, but that a landowner should remain liable for injuries caused on his land for as long as he is in possession.” 382 A.2d at 718-719.

More regional support is received from Burmaster v. Gravity Drainage District # 2, 366 So.2d 1381 (La.1978), wherein the Louisiana Supreme Court, upholding its statute of repose, said:

“We consider that there is a valid distinction between persons performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property and a person in possession or control, as owner, lessor, tenant or otherwise, of such improvement at the time of the incident giving rise to the cause of action. After the date of registry in the mortgage office of acceptance of the work by the owner, there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the architect or contractor ordinarily has neither control of the improvement nor the right to enter or inspect the improvement. It is thus reasonable for the legislature to have concluded that those with access to and control of improvements to immovable property (owner, lessor and tenant) should not be accorded the protection of the pre-emp-tive period established by La.R.S. 9:2772. Moreover, subsection F specifically provides that nothing in this section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner, lessor or lessee of an immovable by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property. Our law creates special obligations and rules of liability applicable to the owner, lessor and tenant of immovable property which have no application to the architect or contractor. This is an additional ground of distinction from which the legislature could have reasonably excluded the owner, lessor and tenant of immovable property from the protection of the pre-emptive period. . . . ” 366 So.2d at 1385-86.

Persons owning or in possession of property can make changes on the property and remove any danger or hazard existing thereon while those persons who have completed construction and/or design on the property have no right to enter upon same or to make any change in it. These distinctions have been discussed in the decisions cited above. They are real and not arbitrary or capricious and support a valid legislative exercise which the courts should recognize. Appellant contends that in the instant case, the statute bars a cause of action before it exists, but clearly, “there is no vested right in any remedy for torts yet to happen, and except as to vested rights the state legislature has full power to change or abolish existing common-law remedies and methods of procedures.” Walters v. Blackledge, 220 Miss. 485, 518, 71 So.2d 433, 446 (1954).

The class of persons covered by the statute is large and we think the statute is a general law rather than local. Further, definition of the class to which the section refers is a reasonable exercise of legislative authority. Therefore, we are of the opinion that the statute is constitutional and was correctly applied by the lower court.

AFFIRMED.

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

      . Arkansas, Oregon, New Jersey, Washington, Virginia, Utah, Pennsylvania, Tennessee, Nebraska, Montana, Texas, New Mexico, Michigan, California and Louisiana.

      . Wyoming, Illinois, Kentucky, Hawaii, Wisconsin, Oklahoma, Minnesota, South Carolina, Florida and Alabama.


text:
    Nercelia WATTS and Devisees of Dan Stephney, Sr., Deceased v. Willie W. COOK, et al.
    No. 52744.
    Supreme Court of Mississippi.
    July 22, 1981.
    John H. Anderson, Gambrell, Anderson & Gambrell, Hattiesburg, for appellant.
    Garland D. Upton, Columbia, for appel-lee.
    Rehearing Denied Sept. 2, 1981.
   Appeal from Chancery Court, Marion County; Michael Sullivan, Chancellor.

Before SUGG, WALKER and LEE, JJ.

AFFIRMED.


text:
    Walter Ray SUTTON v. STATE of Mississippi.
    No. 52668.
    Supreme Court of Mississippi.
    July 22, 1981.
    C. A. Henley, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Rehearing Denied Sept. 2, 1981.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

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

AFFIRMED.


text:
    Michael HENDERSON v. STATE of Mississippi.
    No. 52679.
    Supreme Court of Mississippi.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1980.
    W. E. McLellan, III, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, LEE and HAWKINS, JJ.
   LEE, Justice, for the Court:

Michael Henderson and two (2) other individuals were indicted in the Circuit Court of Madison County for armed robbery. A severance was granted, Henderson was tried and convicted and sentenced to forty-one (41) years with the Mississippi Department of Corrections. He has appealed and assigns two (2) errors in the trial below.

Evidence for the State reflects that the Safe Chief No. 6, a Texaco station located in Madison County, was robbed about 12:15 a. m. on January 13, 1980. The attendant of the station at the time was Billy Walker and the robbery occurred a short time after his co-employee Louis Coleman had gone for the night. Prior thereto, about 10:00 p. m., Henderson and a companion came to the station and asked Billy Walker for a gasoline can, stating that they had run out of gas down the road. Walker had no can to loan them, they left and returned about 10:45, asking for a pair of jumper cables, which the station attendant did not provide.

Henderson and his companion were still at the station when Louis Coleman left, and shortly thereafter, Henderson came inside the station brandishing a revolver. He fired a shot, missing Walker by about two feet. Walker began trying to open the safe by working the combination. Henderson fired another shot into the cooler and then struck Walker on the head with the revolver. Walker finally opened the safe and the robbers fled, taking approximately twenty-five hundred dollars ($2,500), jumped into a waiting automobile, and sped away.

While the robbery was in progress, off-duty Deputy Sheriff Jay Ledbetter of Madison County passed the station and noticed lights on and activity inside. He knew that the station closed at midnight.- Ledbetter drove through the station for a closer look, heard what sounded to be a gun shot, then drove across the street from which vantage point he observed the scene. He dispatched a female companion to a nearby restaurant with instructions to call the local police. When the robbers ran out of the station, he pursued them in his vehicle and after a short while, placed blue lights on the dashboard and activated them. The fleeing car came to a stop and as Ledbetter emerged from his vehicle, a person in the other automobile jumped out and fired twice at him. He returned the fire, striking the vehicle several times, before it sped away. Ledbet-ter followed but- was unable to overtake the car. Shortly afterward, Deputy Sheriff Eddie Clark of Madison County discovered the car, a 4-door two-tone Buick 225, stuck in the front yard of a Rev. Tarpley. Later, Deputy Sheriff Ledbetter and Officer Tim Hutson arrived, made a visual search of the automobile, and moved it to a storage garage.

The next day, appellant appeared at the Jackson City police station, and reported that his automobile, the vehicle found by the officers abandoned in Rev. Tarpley’s yard, had been stolen a short while prior to the robbery the night before. He was arrested, but denied any connection with the robbery, claiming an alibi. Appellant was positively identified by Billy Walker and another attendant as having been in the station prior to the robbery and as one of the participants in the robbery. Appellant does not contradict the facts of the robbery.

I.

Did the lower court err in admitting at trial articles seized after a warrantless search of appellant’s automobile?

At trial, the State called as witnesses Deputy Sheriff Eddie Clark and Frank McCann, a technician with the Mississippi Crime Laboratory, who testified outside the presence of the jury that on the morning after the robbery, they went to the storage garage where appellant’s automobile was located and searched same. The search showed a lady’s blue wallet on the front seat, several Miller beer cans, paper sacks, money wrappers and loose coins scattered about the floorboard, and a license tag and a .38 revolver under the seat on the passenger’s side. McCann observed four (4) bullet holes in the rear of appellant’s automobile and removed one bullet from the rubber guard around the rear bumper. Counsel for appellant objected to the introduction of this evidence on the ground that the search without a warrant was unlawful.

The court sustained the objection and thereupon the State called Officer Tim Hutson to the stand. Hutson testified that when he arrived upon the scene of the abandoned vehicle the night of the robbery, the front door was open, and in plain view, he saw a lady’s blue wallet on the front seat, two (2) Miller beer cans on the left rear floorboard, some paper sacks, money wrappers and loose coins on the floorboard on the right side. He looked inside the vehicle and saw underneath the seat on the passenger’s side a license tag and a .38 pistol. According to Hutson, the handle of the .38 pistol was sticking out from under the seat and he looked under the seat and saw the tag. Upon this testimony, the trial judge admitted the articles found upon the search by Clark and McCann the next morning at the storage garage, apparently under the “plain view doctrine.”

Under the facts, at the time the automobile was discovered, and when the three officers looked into the vehicle, there was probable cause to search it. The vehicle having been abandoned, the officers had the responsibility and duty, knowing that a robbery felony had been committed and that the vehicle was involved in the crime, to remove it from that point and protect and preserve it and its contents for evidence. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), discussing a similar question, the United States Supreme Court said:

“On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause to search a house. Compare Vale v. Louisiana, ante [399 U.S.] p. 30 [90 S.Ct. 1969, 26 L.Ed.2d 409]. But as Carroll, supra [Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543], held, for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.” 399 U.S. at 52, 90 S.Ct. at 1981-1982, 26 L.Ed.2d at 428-29.

After Chambers, the Court decided Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), and relying on Chambers, said:

“In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here, ‘[t]he probable-cause factor’ that developed at the scene ‘still obtained at the station house.’ 399 U.S., at 52, 90 S.Ct., at 1981. The Court of Criminal Appeals erroneously excluded the evidence seized from the search at the station house in light of the trial judge’s finding, undisturbed by the appellate court, that there was probable cause to search respondent’s car.” 423 U.S. at 68, 96 S.Ct. at 305, 46 L.Ed.2d at 211-12.

Prior to Chambers, our Court decided Nobles v. State, 241 So.2d 826 (Miss.1970), and wrote the following:

“Assuming that the defendant had standing to object to the search of the automobile under the ruling of the Supreme Court in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and other cases, nevertheless, under the facts in this case, we are of the opinion that the officers were authorized to search the automobile found parked near the scene of the crime for the following reasons.
The officer knew that a felony had been committed. He was in hot pursuit of the felons who had fled the scene of the crime. He was authorized to go in houses and even break doors in an effort to capture the felons. Section 2471, Mississippi Code 1942 Annotated (1956); Love v. State, 142 Miss. 602, 107 So. 667 (1926). He found various items of evidence as he followed the trail of the escapees. He found a pistol at a window of the burglarized building, and along the way he found silver coins, human tracks and an abandoned automobile. The ‘exigencies of the situation’ were such that the officers were confronted not only with armed escapees, but also were confronted with the duty to prevent the escape by automobile or otherwise, thus authorizing the officer to seize the automobile where he had probable cause to believe the automobile was the ‘get-away car’ or means of escape. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). An emergency existed and obviously the search of the automobile was not unreasonable under the circumstances. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
Moreover, the visible evidence seized by the officers required no search warrant. The officer testified that when he discovered the automobile near the scene of the crime he could see pistols and whiskey in the automobile. We hold that this evidence was sufficient for the officer to seize the keys to the automobile and to search for weapons and other evidence tending to identify the owner of the automobile.
We have for many years adhered to the rule that when an officer obtained information by means of the eye (when he was not trespassing at the time) the information was not obtained by an illegal search. One does not violate the constitutional right of privacy of an individual by simply looking at that which is openly visible. Craft v. State, 254 Miss. 413, 181 So.2d 140 (1965); Wilson v. State, 186 So.2d 208 (Miss.1966); McCollum v. State, 197 So.2d 252 (Miss.1967).” 241 So.2d at 828-829.

Although the trial judge did not specifically state upon what basis he admitted the evidence obtained from the search, we are of the opinion that, under the facts and law of this case, without considering the plain-view doctrine or the right of officers to make an inventory of contents in an automobile, the search was lawful, and the lower court did not err in admitting the articles in evidence.

II.

Did the lower court err in sentencing appellant to forty-one (41) years in the custody of the Mississippi Department of Corrections?

The armed robbery statute provides that upon conviction, the accused may be sentenced to life imprisonment if the jury fixes the sentence, and from three (3) years to a period less than life if the accused is sentenced by the judge. Appellant contends that his sentence of 41 years amounted to a life sentence and the cause should be remanded for proper sentencing.

In Stewart v. State, 372 So.2d 257 (Miss.1979), the Court said:

The statute before us places the imposition of a life sentence within the sole province of the jury and, in our opinion, no such sentence can be imposed by a judge unless he has the authority from the jury so to do. The statute presupposes, absent a jury recommendation of life imprisonment, that the judge will sentence the defendant to a definite term reasonably expected to be less than life. We therefore affirm and remand for proper sentence. (Emphasis Supplied). (322 So.2d at 753 [Lee v. State, 322 So.2d 751 (Miss.)]).” 372 So.2d at 258.

The trial judge, prior to sentencing appellant, stated that the life expectancy for a 22-year-old person is 41.6 years. The courts may take judicial notice of mortality tables. We note that the most recent mortality table of Metropolitan Life Insurance Company (1980) and the most recent government table issued by the United States Department of Commerce (1980) indicate that the life expectancy for a black male twenty-two (22) years old is 45.7 years. While the mortality tables are used only as guides in determining life expectancy, those tables along with the absence in the record of any physical impairment or illness of the appellant, must have convinced the trial judge that a 41-year sentence was reasonably expected to be less than the life expectancy of the appellant. If the sentence complies with that standard, regardless of how many years less than appellant’s life expectancy the sentence is, it is within the statute and follows Yazzie v. State, 366 So.2d 240 (Miss.1979); Ellis v. State, 326 So.2d 466 (Miss.1976); and Ainsworth v. State, 304 So.2d 656 (Miss.1974), cert. den. 422 U.S. 1012, 95 S.Ct. 2637, 45 L.Ed.2d 676 (1975). The trial judge’s imposition of a 41-year sentence does not constitute error.

AFFIRMED.

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

      . Other officers saw those articles in the abandoned car the night before, but did not see the .38 pistol and license tag.

      . Appellant argues that Officer Tim Hutson perjured himself because his testimony varied from that of other officers upon discovery of the automobile. However, all witnesses do not see the same things. Officer Hutson’s testimony is not contradicted by other witnesses.


text:
    Ronald Glenn SIMS v. STATE of Mississippi.
    No. 52747.
    Supreme Court of Mississippi.
    July 29, 1981.
    William G. Willard, Jr., Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Rehearing Denied Sept. 2, 1981.
   Appeal from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.

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


author: WALKER, Justice, for the Court: LEE, Justice,

text:
    George M. MITCHELL v. STATE of Mississippi.
    No. 52589.
    Supreme Court of Mississippi.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.

      Michael J. Malouf, Malouf & Malouf, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of the Second Judicial District of Hinds County, Mississippi, which affirmed the conviction of George M. Mitchell by the County Court for acting as a real estate broker without a license. We affirm.

Mississippi Code Annotated section 73-35-1 (1972), makes it unlawful “ . . . for any person, partnership, association or corporation to engage in or carry on, directly or indirectly, or to advertise or to hold himself, itself, or themselves out as engaging in or carrying on, the business, or act in the capacity of, a real estate broker, or a real estate salesman, within this state, without first obtaining a license as a real estate broker or real estate salesman as provided for in this chapter.”

Acts which constitute doing business as a real estate broker are found in Mississippi Code Annotated section 73-35-3 (1972), which provides, in part, as follows:

(a) The term “real estate broker” within the meaning of this chapter, shall include all persons, partnerships, associations and corporations, foreign and domestic, who for a fee, commission, or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, lists, sells, purchases, exchanges, rents, leases, appraises, or auctions any real estate, or the improvements thereon including options, or who negotiates or attempts to negotiate any such activity; or who advertises or holds himself, itself or themselves, out as engaged in such activities; or who directs or assists in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction; ....

The appellant, in effect, contends that the verdict is against the overwhelming weight of the evidence.

On appeal, the evidence and all reasonable inferences to be drawn therefrom must be considered in the light most favorable to support the verdict. Murphree v. State, 228 So.2d 599 (Miss.1969), cert. denied, 397 U.S. 1068, 90 S.Ct. 1509, 25 L.Ed.2d 690.

With that rule in mind, the evidence for the state showed that in 1977 the appellant, George M. Mitchell, approached Richard Kimbrough, President of Kimbrough Investment Company at Kimbrough’s home office located in Jackson, Hinds County, Mississippi, after learning that they were interested in selling the Sheraton-Biloxi Motor Inn owned by the Kimbrough interest. Mr. Kimbrough testified that Mitchell “ . . . told me he could sell the hotel and that he was going over in the Middle East and he had a lot of connections over there in Kuwait and Egypt and that sort of thing. I had written embassies of Iran and Iraq and all of them, but I hadn’t gotten any interest. But George was pretty convincing that he knew the sheiks and that he could sell the hotel and get what we wanted. So that’s when it started, in early ’77.”

On one occasion during the discussions, Kimbrough told Mitchell that he thought that the deal was too large for him to handle, whereupon Mitchell replied, “You don’t know what I can sell.... I’ve sold apartments, stores and other things.”

When asked if a fee or commission was ever discussed with George Mitchell, Kimb-rough replied:

Yes, sir, it was. It was discussed orally and written in these letters, (sic) I referred to that we would pay a two per cent commission....

Thereafter, after numerous meetings between Mr. Kimbrough and Mr. Mitchell and a number of letters from Mr. Kimbrough to Mr. Mitchell, Mr. Kimbrough personally handed Mr. Mitchell the following letter while in Mr. Kimbrough’s office in Jackson. That letter reads as follows:

“January 5, 1979
Mr. George Mitchell
MGM Company
Vicksburg, Mississippi
Dear George:
We are willing to pay a maximum Real Estate commission of 2% on the sale price of $6,000,000 on the Sheraton-Biloxi Motor Inn, provided it is a straight total cash, net to us and provided we do not have to do the selling and negotiating ourselves.
In the event the offer is for less, or we are required to enter into the sales work, we will negotiate our commission downward. Also, you have permission to show and sell this property on the above terms for only 30 days from today. After this date do not attempt any further sales efforts as we are withdrawing our listing. This is an open, 30 day listing, not exclusive, subject to prior sale.
Very truly yours,
KIMBROUGH INVESTMENT COMPANY
Owners and Operators of The Sheraton-
Biloxi Motor Inn
Richard H. Kimbrough
President and Chief Executive Officer”

Kimbrough also gave Mr. Mitchell a letter outlining the terms and conditions on which the Kimbroughs would sell the Sheraton-Biloxi Hotel.

On cross-examination, Mr. Kimbrough was asked whether Mitchell had ever mentioned buying the property as a principal or with someone or whether he was trying to sell it strictly as a real estate broker, to which Mr. Kimbrough replied: “. . . Well, both. One time he was talking about sheiks from over in the Far East, and then another time he was talking about he could sell it to oil people or contacts that he had made. So I really didn’t know what he was talking about. And that is the truth. He had me so confused I didn’t know what he talked about from time to time.”

After considerable discussions and correspondence between Kimbrough and Mr. Mitchell, and after Kimbrough gave Mr. Mitchell a letter listing the property, Mr. Mitchell contacted Mr. John R. Neyrey who was President of Production Oil Corporation with offices in Biloxi. Mr. Neyrey testified Mr. Mitchell’s initial statement to him was “ .. . that he had an exclusive listing on the property as well as an exclusive option [to purchase] the hotel.” Mr. Neyrey testified that Mr. Mitchell claimed that he had an option to purchase the hotel but they could not come to terms, and that Mitchell “ ... indicated to me that he had an exclusive listing on the property also and that he could deliver the property to us for a price of four million seven hundred and fifty thousand dollars, plus his commission.” When asked whether there was any discussion by Mitchell concerning a commission, Neyrey testified: “Well, he indicated that he had this exclusive option and, of course, we didn’t talk about commissions up front. ... At some later date beyond the initial meeting a six per cent commission was discussed and negotiated.” Neyrey further testified that several days later he “ . . . informed Mr. Mitchell that I wanted to negotiate directly with Mr. Kimbrough rather than have to go back and forth through him because I wanted to move relatively fast. Once we made up our minds to consider the property we wanted it done very quickly, and he did not have all the answers or information concerning the property. So I wanted to negotiate directly with Kimbrough and get Mr. Mitchell to accept a release based upon a guarantee that he would get his commission.”

Thereafter, Mitchell executed a release allowing Mr. Neyrey and Mr. Kimbrough to deal directly with each other. The release was dated January 25,1979, and was signed by George Mitchell, John R. Neyrey and Production Oil Corporation. The release provided, in part, as follows:

WHEREAS, party of the first part has a certain understanding and agreement with the present owners of the Biloxi Sheraton Hotel located within the City of Biloxi, Harrison County, State of Mississippi; and
WHEREAS, party of the first part, pursuant to the aforesaid contract and agreement with the owners of the Biloxi Sheraton Hotel, would otherwise be entitled to certain remunerations from said owners in the event of the sale of the said Biloxi Sheraton Hotel, . . .

The release also provided for a consideration of $175,000.00 to be paid by Neyrey to Mitchell if Neyrey purchased the Biloxi-Sheraton Hotel and authorized Neyrey to deal directly with the Kimbrough interest.

Mitchell did not testify in his behalf. His defense was that he never represented himself to be a real estate broker or salesman and that at the time he executed the release he made it clear that he was not a real estate broker or real estate salesman. As a part of his defense, Mitchell presented several witnesses who testified they had discussed the possibility of a group purchasing the hotel, including Mr. Mitchell as a principal. Mitchell also presented evidence that he had contacted a bank about the possibility of financing such a transaction. He argues strenuously that he had an interest in the hotel, presumably the unexclusive right to purchase it and that he was foregoing exercising that right in consideration of remuneration provided for in the contract with Mr. Neyrey.

The state presented evidence, and it is undisputed, that Mr. Mitchell was not a licensed real estate broker or real estate salesman in Mississippi.

We have carefully considered this record and find the evidence clearly supports the verdict of the jury that Mr. Mitchell was acting as a real estate broker without a license in that he requested from and accepted a letter granting him a listing, although not exclusive, for a period of thirty days to sell the hotel, and the evidence is clear that he was to receive a commission if he were successful in that endeavor. In so doing, Mr. Mitchell was in violation of Mississippi Code Annotated section 73-35-1, as defined in section 73-35-3(a) (1972) which provides, in part:

The term “real estate broker” within the meaning of this chapter, shall include all persons, . . . who for a fee, commission, ... or who with the intention or expectation of receiving or collecting the same, lists, sells, ... or who negotiates or attempts to negotiate such activity; ... or who directs or assists in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction. . . .

The fact that Mr. Mitchell could have purchased the hotel on his own as a principal is immaterial and is not inconsistent with his also having obtained a listing from Kimbrough to sell the hotel to others. It is also no defense that Mr. Mitchell did not expressly represent himself to be a real estate broker or salesman since his dealings with Kimbrough and Neyrey with reference to the hotel were in violation of Section 73-35-1 as defined in Section 73-35-3(a). As is often said, “A rose by any other name” smells the same. In this instance, the fragrance was clearly that of real estate broker.

The appellant’s contention that venue was not proved in Hinds County is wholly without merit.

We are of the opinion that the verdict of the jury was fully supported by the evidence.

The judgment and sentence of the Circuit Court affirming the judgment and sentence of the County Court are affirmed.

AFFIRMED.

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

LEE, J., SMITH, P. J., and BOWLING and HAWKINS, JJ., dissent.

LEE, Justice,

dissenting:

I dissent from the majority opinion for the reason that, in my view, the judgment of the county court was against the overwhelming weight of the evidence in that the charge was not proved beyond a reasonable doubt and the circuit court erred in affirming the judgment of the county court.

An affidavit was filed in the Hinds County Court on September 6, 1979, charging that appellant “ ... on or about January 5, 1979, did then and there wilfully and unlawfully, with the intention and expectation of receiving a valuable consideration therefor, act in the capacity of a real estate broker by obtaining a listing agreement with Richard H. Kimbrough and Kimb-rough Investment Company of Jackson, Hinds County, Mississippi for the sale of certain Mississippi property owned by the said Kimbrough Investment Company, that property being the Biloxi Sheraton Hotel, located in Biloxi, Harrison County, Mississippi, and by negotiating and procuring, for a fee, John R. Neyrey as purchaser of the above mentioned property, intending such negotiations to result in a real estate transaction, all at a time when the said George M. Mitchell did not possess a Mississippi real estate license, contrary to Section 73-35-1, Mississippi Code of 1972, as amended, ...”

The affidavit was based on Mississippi Code Annotated Section 73-35-1 (1972), as mentioned, which provides the following:

“This chapter shall be known, and may be cited, as ‘the Real Estate Brokers License Law of 1954;’ and from and after May 6, 1954 it shall be unlawful for any person, partnership, association or corporation to engage in or carry on, directly or indirectly, or to advertise or to hold himself, itself, or themselves out as engaging in or carrying on, the business, or act in the capacity of, a real estate broker, or a real estate salesman, within this state, without first obtaining a license as a real estate broker or real estate salesman as provided for in this chapter.”

Prior to January 5, 1979, appellant learned that Kimbrough Investment Company, owner of the Biloxi Sheraton Motor Inn, located in Biloxi, Mississippi, desired to sell said hotel. He contacted Richard H. Kimbrough, president of the company, and discussed the sale. Kimbrough indicated to Mitchell that the company did not wish to sell the property to anyone in Mississippi, since he was of the opinion that no such person was interested and financially able to purchase same. Appellant then stated that he planned to make a trip outside the continental United States and thought he could put together a group of people who could buy the hotel. As a result of these talks, on January 5, 1979, Kimbrough wrote appellant two (2) separate letters, the first indicating that Kimbrough Investment Company was willing to pay a real estate commission of two percent (2%) of the sale price of six million dollars ($6,000,000) on the Sheraton Biloxi Motor Inn provided it was a straight total cash net to the hotel and provided no selling and negotiating was required by Kimbrough. Portions of the second letter follow:

“We appreciate your interest in purchasing the Sheraton-Biloxi Motor Inn. However, as you can imagine, since we have placed this property on the market we have been besieged by all types of people offering all types of plans to complete the purchase of the Hotel. By far, the majority of the plans which have been outlined before us, boil down not to a genuine offer for purchase, but an offer to manage the Hotel. Since we are not interested in this type of arrangement, much of our time and the time of prospective purchasers or managers, can be saved by having this understood at the outset. Below I am outlining the qualifications for a prospective purchaser succinctly and plainly, so that there will be no misunderstanding. If you do not fit these qualifications, there is no need to discuss the matter further.
* * * * * *
If you feel you meet the above qualifications, please outline your plan to purchase in writing, based on a sales price of $6,000,000. Please give details as to how you intend financing to be arranged and give us complete details to evidence your ability to carry out your plan.
We will consider your plan as submitted and contact you if it is apparent you do meet our qualifications.
******
I hope you meet the above qualifications and that we will be hearing from you shortly.”

Subsequently, appellant contacted various people on the Mississippi Gulf Coast with the idea of forming a group of people who would raise the finances necessary to purchase the hotel. It is uncontradicted that he met with Mr. Edward McDonnell, who testified that appellant approached him with the idea of a group of investors purchasing the hotel and then reselling it, and that appellant never acted as a real estate broker. Appellant contacted Mr. John A. Dottley, Sr. of Vicksburg, who testified that appellant never approached him as a real estate salesman or realtor but only in an attempt to associate a group of people to purchase the hotel. Mr. Robert H. Holmes, Jr., president of the Central Bank of Mississippi in Brandon, testified that appellant discussed with him the possibility of getting together a group of persons to purchase the hotel for future resale, and that appellant never represented himself to be a real estate salesman but an investor who wanted to buy the property and resell it.

Mr. Edward McDonnell arranged for a meeting between appellant and Mr. John R. Neyrey, who was president of Production Oil Corporation and owner of the Royal D’Iberville Hotel in Biloxi. Neyrey was led by appellant to believe that he (appellant) held an option to buy the motor inn property, and Neyrey became interested in acquiring the option. However, according to Ney-rey, he wanted to negotiate directly with Kimbrough Investment Company in order that the title and transfer instrument would have the backing and guarantee of that company rather than for him to acquire title through Mitchell, an individual. An agreement was entered into between Neyrey and appellant on the 25th day of January, 1979, wherein Neyrey agreed to pay to appellant the sum of one hundred seventy-five thousand dollars ($175,000) on his purchase of the Biloxi Sheraton Motor Inn, eighteen thousand dollars ($18,000) of said amount to be paid upon the execution of the contract and the balance upon consummation of the purchase of the property. Neyrey insisted that they appear before his attorney, who drew the contract after which it was executed by Neyrey and Mitchell. Pertinent parts of the contract follow:

“WHEREAS, party of the first part has a certain understanding and agreement with the present owners of the Biloxi Sheraton Hotel located within the City of Biloxi, Harrison County, State of Mississippi; and
WHEREAS, party of the first part, pursuant to the aforesaid contract and agreement with the owners of the Biloxi Sheraton Hotel, would otherwise be entitled to certain remunerations from said owners in the event of the sale of the said Biloxi Sheraton Hotel; and
WHEREAS, parties of the second part are desirous of negotiating directly with the owners of the said Biloxi Sheraton Hotel for the purchase of said hotel,
NOW THEREFORE, for and in consideration of the consideration flowing among, by, and between the parties hereto, it is hereby understood and agreed as follows, to-wit:
A. For and in consideration of the sum of One Hundred Seventy Five Thousand Dollars ($175,000.00), payment of said sum to be contingent upon the purchase of the said Biloxi Sheraton Hotel by parties of the second part, or either of them, party of the first part hereby agrees to abandon, forego, and hold for naught any other agreements, understandings, or contracts, whether verbal or written he may have with any other person regarding any remuneration whatsoever which might have otherwise been due him regarding the sale of the said Biloxi Sheraton Hotel.
B. Party of the second part hereby acknowledges receipt of the sum of Eighteen Thousand Dollars ($18,000.00) cash in hand paid as partial consideration for this agreement, and to apply against the sum of One Hundred Seventy Five Thousand Dollars ($175,000.00) which will be due him from parties of the second part should parties of the second part purchase the aforesaid Biloxi Sheraton Hotel. Should parties of the second part, or either of them, fail to consummate a purchase of the Biloxi Sheraton Hotel from its present owners, then said sum of Eighteen Thousand Dollars ($18,000.00) shall be forfeited by parties of the second part to party of the first part.
C. Party of the first part hereby agrees to hold harmless any and all persons, including the present owners of the Biloxi Sheraton Hotel, from any and all liability of any kind whatsoever including, but not limited to, any remuneration due him under the aforementioned contract or agreement with the present owners of the Biloxi Sheraton Hotel which might otherwise have been due to party of the first part as a result of the purchase of the said Biloxi Sheraton Hotel by parties of the second part, or either of them.
D. Party of the first part hereby authorizes and empowers parties of the second part, or either of them, to negotiate directly with the owners of the Biloxi Sheraton Hotel, and to do any and all things necessary to effectuate a purchase of the said Biloxi Sheraton Hotel directly from its present owners, with no further liability to party of the first part of any kind whatsoever.”

Mr. Neyrey testified with reference to the contract:

“A. We agreed on a remuneration or consideration of One Hundred Seventy Five Thousand Dollars ($175,-000).
Q. Who signed that contract?
A. It was drawn by my attorney, Clyde Hurlbert of Biloxi. Mr. Mitchell and I appeared before Mr. Hurlbert and told him of the arrangements that we had reached regarding the sale, and based on our giving him that information he drew the draft of this contract.
Q. Ok. The contract as it was finally signed, is that the way it was originally worded?
A. No sir. The contract initially contained a specific reference to a broker or agent’s representation by Mr. Mitchell.
Q. All right. And why was that deleted?
A. At the time we presented the information to Mr. Hurlbert, Mr. Mitchell told him, T am not an agent or a broker. I am selling you my right to the property, my exclusive option to purchase the property for which Mr. Kimbrough has guaranteed me a remuneration or a commission’.”

I am of the opinion that the evidence in this case does not support the charge in the affidavit, that the judgment of conviction is contrary to the overwhelming weight of the evidence, and that it should be reversed and the appellant discharged. Gray v. State, 387 So.2d 101 (Miss.1980); Moody v. State, 371 So.2d 408 (Miss.1979).

SMITH, P. J., and BOWLING and HAWKINS, JJ., join in this dissent.

      . “ ... That which we call a rose
      By any other name would smell as sweet.” Romeo and Juliet, i, iv.

      . Subsequently, Kimbrough sold the property to Neyrey who then declined to pay appellant the balance of one hundred fifty-seven thousand dollars ($157,000). Appellant sued Ney-rey and Kimbrough for that balance, after which these criminal proceedings were brought.


author: WALKER, Justice, for the Court:

text:
    Michael A. HAWKINS and Kenneth Ray Hawkins v. Eleanor B. WALTERS, Ruth W. Bobo, etc.
    No. 52704.
    Supreme Court of Mississippi.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.
    W. Allen Pepper, Jr., Cleveland, for appellant.
    Joseph A. Eddins, Jacobs, Griffith, Pearson, Eddins & Povall, Rosedale, M. E. Ward, C. E. Sorey, II, Ward, Martin, Terry & Way, Vicksburg, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of Bolivar County where appellant claimed land in Section 34, T25N, R8W through certain 1978 forfeited tax land patents from the State of Mississippi. The chancellor found the erosive action of the Mississippi River had completely destroyed Section 34 many years prior to issuance of the patents and awarded the area formerly occupied by Section 34 to appellees, the riparian landowners, as accretion to their land in Section 3.

Appellants assign as error the chancellor’s finding: (1) that Section 34 had been completely destroyed by erosion in 1925, and (2) the chancellor’s failure to apply Wineman v. Withers, 143 Miss. 537, 108 So. 708 (1926) to determine ownership of the lands in question, and (3) the chancellor’s failure to apply the doctrine of reliction.

One expert witness testified at trial. He presented evidence that in 1881 all but a remnant of Section 34 had caved into the Mississippi River and that by 1925 Section 34 had been completely destroyed by erosive action. The expert testified that erosion continued until only 1,000 feet of the south line of Section 32 remained in 1937. This, he explained, was the line of maximum recession, or where the river ceased to erode. The land that now occupies a portion of the geographic area of former Section 34 is new land that began to accrete between 1937 and 1948 to Section 3. Lay witnesses familiar with the area testified the bar-building action began after World War II and that timber in the area, mainly cottonwood and willow, is young, no older than 20 to 22 years old.

From this evidence the chancellor found that Section 34 was destroyed by erosion and that the new lands which now extend over the former geographical location of Section 34 were accretions to Section 3 and therefore belong to appellees, the new riparian landowners.

The chancellor’s conclusion that Section 34 was destroyed by 1925 was amply supported by the evidence.

In the alternative, the appellants argue that if Section 34 was destroyed, the doctrine of reemergence, not accretion, is the applicable law in this case. We disagree.

In Sharp, et al. v. Learned, 195 Miss. 201, 14 So.2d 218 (1943), this Court defined accretion as follows:

(c) Accretion or alluvion is an addition to riparian land made by the water to which the land is contiguous, so gradually and imperceptibly that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. (195 Miss. at 215, 14 So.2d 218).

Any accretions which are added to riparian lands become a part of that land and are covered by the legal descriptions, whether the accretions are expressly mentioned or not. Smith v. Leavenworth, 101 Miss. 238, 57 So. 803 (1911); Anderson-Tully Co. v. Walls, 266 F.Supp. 804 (N.D.Miss.1967).

In United States Gypsum Co. v. Reynolds, 196 Miss. 644, 18 So.2d 448 (1944), the appellant, United States Gypsum Company, claimed the title to certain lands which, the evidence showed, had become attached to their sections of land by the gradual movements of the river. The Court held that absent countervailing evidence there is a presumption that the gradual changes in land occurred through the process of erosion and accretion. The chancellor correctly so found in this case.

Upholding the Gypsum presumption, supra, this Court in Robinson v. Humble Oil, 253 Miss. 602, 176 So.2d 307 (1965), cert. denied, 383 U.S. 911, 86 S.Ct. 895, 15 L.Ed.2d 665, said riparian landowners have a “vested right to the accretion to their property, and we might add, the vested hazard of loss by erosion.” (253 Miss. at 626, 176 So.2d 307.)

Appellants contend, incorrectly, that Wineman v. Withers, supra, controls the factual situation in the present case. In Wineman, two adjoining landowners disputed the proportionment allowed to them of alluvion that had accreted. This Court held that the alluvion which replaced appellee’s land that had submerged would not be considered in apportioning the new shoreline since the lands that accreted simply replaced the land of the appellee which had been submerged. However, this does not alter the rule that a riparian landowner is entitled to the accretions which form at the shoreline of his property. The riparian landowner in Wineman remained riparian. His rights were never lost.

In this case the evidence showed appellants’ land (Section 34) bordered on a navigable stream and was completely eroded away by 1925. At that time the land lost its riparian character and the riparian rights were acquired by the new riverfront owners — the appellees who owned the land at the point of maximum recession of the river. Therefore, the appellees are entitled to the accretions even though the accretions extend over the geographical location of the former original riparian tract. The rule governing this case is clearly stated in Thompson on Real Property, § 2562, p.35 (1978) and reads, in part, as follows:

The weight of authority seems to be in favor of the rule that where riparian land is wiped away to an extent that former nonriparian land becomes riparian, and then by accretion, land is formed on the shoreline of the latter until it extends across the former boundary line between the two tracts, the whole of the accreted land belongs to the owners of the land against which it started to form, to the extent of their frontage, regardless of. whether it extends over and beyond the original boundary between the formerly nonriparian owners and the owner whose lands have been washed away.

The appellants' contention that the doctrine of reliction should apply is completely misplaced. See Thompson on Real Property, § 2563 (1978).

For the reasons stated above, this case is affirmed.

AFFIRMED.

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

HAWKINS, J., took no part.

      . Formation of a land bar is a common form of accretion.


text:
    Carolyn Copeland SHELBY v. STATE of Mississippi.
    No. 52691.
    Supreme Court of Mississippi.
    July 29, 1981.
    Rehearing Denied Sept. 2, 1981.

      Nora J. Hall, Roy O. Parker, Tupelo, for appellant.
    Bill Allain, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Carolyn Copeland Shelby was indicted, tried and convicted in the Circuit Court of Monroe County on a charge of grand larceny and was sentenced to five (5) years with the Mississippi Department of Corrections. She has appealed and assigns three (3) errors in the trial below.

On March 12, 1979, after the close of business, a 1979 Cougar XR 7 automobile, valued in excess of $8,000, was stolen from the showroom of BJ Ford Sales in Amory, Mississippi. The vehicle was found by the police in Itawamba County several days later and it had been destroyed by fire. Appellant and Nettie Hester were indicted for the larceny by the Monroe County Grand Jury in October 1979.

Nettie Hester testified for the State that appellant promised to pay her $100 for each set of automobile keys she delivered to appellant. She talked with appellant on March 12, 1979, then went to BJ Ford Sales and requested a salesman to permit her to test drive the Cougar automobile, which was on the showroom floor. While driving the vehicle she went to Wal-Mart Discount Store, had a duplicate set of keys made, and returned the vehicle to BJ Ford Sales. Upon leaving the Ford company, she went to appellant’s home, arriving there about 6:00 p. m., and gave the duplicate keys to appellant, who paid her $100. Hester said that she went back to appellant’s home about 10:00 p. m. and the automobile was parked in appellant’s driveway. According to her, the automobile had been taken by appellant’s daughter and the daughter’s boyfriend from the BJ Ford Sales.

The testimony of Nettie Hester was corroborated by the car salesman who permitted her to drive the car and by the Wal-Mart clerk who made the duplicate keys. Appellant’s defense was an alibi to the effect that she was in Pensacola, Florida at 8:00 p. m. on March 12,1979, honeymooning with a new husband, and that she had no knowledge about the theft of the automobile.

(1) Did the lower court err in declining to declare a mistrial when the prosecuting attorney elicited testimony from Nettie Hester of a separate and independent crime?

Appellant contends that the lower court committed prejudicial error in allowing the State to bring out testimony from Nettie Hester that appellant had given her marijuana for the purpose of selling same. She argues that the testimony related to a separate and distinct crime and that, upon objection thereto, the court should have sustained same and granted a mistrial.

The objectionable testimony follows:

CROSS EXAMINATION BY APPELLANT’S ATTORNEY
Q. Later on that night, what time did you see her that night?
A. Around ten.
Q. And I understand from what you say that she had already paid you the hundred dollars, is that right?
A. Correct.
Q. Well, why did you come back at ten o’clock then?
A. Because I had something to give her that'someone else didn’t want to buy.
* * * * * *
Q. Were you taking any dope, marihuana or anything like that?
A. No, sir, I wasn’t.
Q. Do you use marihuana?
A. I did.
Q. And how long had it been before you were on marihuana that particular day, did you smoke it that night, that morning?
A. No, I hadn’t messed with it when I was trying to think.
Q. It makes you so that you can’t think too good, right?
A. No, sir, I can think but I like to be more accurate.
Q. Well, when was it the last time you had some marihuana before you stole these car keys or had them made?
A. I don’t know, a couple of days.
Q. You don’t know when it was is what you are saying?
A. Not exactly, no, sir.
Q. And you had some marihuana that same day?
A. No, sir, I didn’t; I had some with me but it wasn’t mine.

REDIRECT EXAMINATION BY THE PROSECUTING ATTORNEY

Q. Now Mr. Parker asked you a question and you said you came back that night because you had something to give to her, would you tell the jury what that was?
A. I had some marihuana that I had got from her to sell.
BY MR. PARKER: We object to that, your Honor.
BY JUDGE WICKER: Objection sustained.
BY MR. PARKER: We ask for a mistrial.
BY MR. FUNDERBURK: Your Honor, he brought it out, — asking her.—
BY JUDGE WICKER: All right, your motion for a mistrial is overruled.
Q. The night of the—
BY JUDGE WICKER: Just a second, I might in line with that to advise the jury to disregard that particular statement insofar as the decision in this case is concerned. You may go ahead.

We are of the opinion that appellant’s counsel invited the response from the prosecution and that appellant cannot now complain of prejudice from such testimony. Jefferson v. State, 386 So.2d 200 (Miss.1980); Jones v. State, 381 So.2d 983 (Miss.1980); and Reddix v. State, 381 So.2d 999 (Miss.1980).

Further, the trial judge sustained appellant’s objection to the testimony and instructed the jury to disregard same. Therefore, prejudicial error does not result from that testimony. Herron v. State, 287 So.2d 759 (Miss.1974), cert. den., 417 U.S. 972, 94 S.Ct. 3179, 41 L.Ed.2d 1144.

(2) Did the lower court err in declining to grant a new trial on the ground of newly-discovered evidence?

After the verdict of the jury was returned, appellant requested a new trial on the ground that she had discovered new evidence, viz, a motel receipt, which indicated that she checked into the Birmingham Motel, in Pensacola, Florida, at 8:00 p. m. on March 12, 1979, and which corroborated her alibi testimony. She claimed that she had been unable to find the motel receipt prior to the trial because her records had been misplaced when officers searched her home shortly after the larceny.

A motion for new trial on the ground of newly-discovered evidence must be supported by an affidavit of the defendant and her attorney that diligence was exercised with reference to discovery of the evidence and that the evidence was unknown to them at the time of trial. The court must be satisfied that (1) the evidence came to the defendant’s knowledge since trial, (2) the evidence could not have been discovered sooner by diligence, and (3) such evidence would probably produce a different result, if a new trial were granted. Stewart v. State, 203 Miss. 295, 33 So.2d 787 (1948).

In our opinion, under the facts of this case, none of the above requisites exists. More than a year elapsed from the date of the commission of the crime until the date of trial and the record does not reflect anything about the motel receipt prior to trial. It would have been a simple matter to contact the Birmingham Motel and obtain evidence of the registration for proper production at the trial. Also, appellant, her husband, daughter and daughter’s boyfriend testified as to the alibi defense and introduction of the motel receipt probably would not produce a different verdict. The lower court did not err in declining to grant a new trial on that ground.

(3) Did the lower court err in declining to grant a new trial because of prejudicial remarks by the county attorney during closing argument?

The appellant contends that the county attorney, in his closing argument, referred to an instruction granted by the court at the request of the defendant as, the “defendant’s instruction.” Rule 5.03, Uniform Criminal Rules of Circuit Courts of Mississippi, provides that “all instructions by parties shall not be identified by the parties or the state.” Neither the state nor the defendant in argument may refer to an instruction as being requested by the other party. All instructions, even though requested by the parties, are instructions granted by the court. In Forrest v. State, 335 So.2d 900 (Miss.1976), the judgment of conviction was reversed and the case remanded for a new trial because of improper questions and improper argument by the . district attorney. However, there were cumulative errors in the Forrest case which distinguished it from the case sub judice. There the Court said:

The improper questions and improper argument, when considered together were reasonably calculated to unduly influence the jury in its decision. None of these errors, when considered separately and apart from the others, is sufficient to justify reversal of the case. However, when they are considered as a whole, it is our view that they resulted in the appellant being denied a fair trial. Russell v. State, 185 Miss. 464, 189 So. 90 (1939); Nelson v. State, 129 Miss. 288, 92 So. 66 (1922).

(335 So.2d at 903).

In the present case the court admonished the county attorney that the argument was improper and told the jury that it was the instruction of the court and not of the defendant. We are of the opinion that such action by the court cured the error and that no prejudice resulted to the appellant.

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

AFFIRMED.

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


text:
    ROSATO CLOTHING MFG., INC., et al. v. Annie Lorene COWLEY.
    No. 52760.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Rehearing Denied Sept. 2, 1981.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Claude F. Clayton, Jr., Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for appellant.

William W. Smith, Cunningham, Smith & Ferrell, Booneville, for appellee.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Everett GARNER, et ux. v. A. B. STRINGER, et ux.
    No. 52752.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    E. Howard Eaton, Taylorsville, for appellants.
    Eugene C. Tullos, Tullos, Tullos & Tullos, Raleigh, for appellees.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

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

AFFIRMED.


text:
    Mrs. Rose Marie STEEN v. JACKSON STONE COMPANY, Warren A. Lofton, et al.
    No. 52741.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    C. E. Sorey, II, Ward, Martin, Terry & Way, Vicksburg, for appellant.
    Jim Bullock, Cary E. Bufkin, Shell, Buford, Bufkin, Callicutt & Perry, Velia Ann Mayer, Watkins & Eager, Jackson, Ellis B. Bodron, Ramsey, Bodron, Thames & Robinson, Vicksburg, for appellees.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before SUGG, WALKER and BOWLING, JJ.

AFFIRMED ON DIRECT AND CROSS APPEALS.


text:
    Otis WARE v. STATE of Mississippi.
    No. 52891.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Roger W. Mathes, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty.Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Webb Franklin, Judge.

Before SUGG, WALKER and BROOM, JJ.

AFFIRMED.


text:
    Dexter CLARK v. John BREWER and Guy Sullivan.
    No. 52763.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Eugene C. Tullos, Tullos, Tullos & Tullos, Raleigh, for appellant.
    George E. Dent, Aultman & Aultman, Hattiesburg, for appellees.
   Appeal from Circuit Court, Covington County; L. D. Pittman, Judge.

Before SUGG, WALKER and BROOM, JJ.

AFFIRMED.


text:
    T. C. MARTIN v. COOPER ASSOCIATES and Wayne Owen.
    No. 52791.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Rex K. Jones, Hattiesburg, for appellant.
    Nova A. Carroll, Stewart, Burkes & Pace, Picayune, for appellees.
   Appeal from Circuit Court, Pearl River County; William F. Coleman, Special Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    In the Matter of ADOPTION OF INFANT CHILDREN.
    No. 52762.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Suzanne Griggins, Mendenhall, for appellant.
    Percy Stanfield, Jr., Jackson, for appellee.
   Appeal from Chancery Court, Simpson County; J. W. Walker, Chancellor.

Before SUGG, WALKER and BROOM, JJ.

AFFIRMED.


text:
    Lonnie E. WILLIAMS and John D. Carroll v. CARROLL FOODS, INC., et al.
    No. 52788.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Arthur D. Currie, Jackson, Self & Jordan, Meridian, for appellant.
    J. L. Prichard, Deen, Cameron, Prichard & Young, James T. Singley, Singley, Min-niece, Hamill & Wilson, Meridian, for appel-lees.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

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

AFFIRMED.


text:
    Richard V. BROWN v. Nancy Diane BROWN.
    No. 52808.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    W. B. Duggins, Jr., Vicksburg, for appellant.
    Oscar P. LaBarre, LaBarre & LaBarre, Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

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

AFFIRMED.


author: WALKER, Justice:

text:
    James Raymond CHAMBERS v. STATE of Mississippi.
    No. 52725.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Rowland H. Geddie, Jr., David O. Butts, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice:

Appellant was convicted in the Circuit Court of Lee County, Mississippi, on charges of armed robbery and aggravated assault and sentenced to serve twenty (20) years and ten (10) years consecutively.

On appeal to this Court appellant contends, inter alia: It was error to overrule his motion to suppress the identification testimony of the victim, Bernice Tapp, for the reason that Tapp’s pretrial identification of appellant was unreliable, being the result of an impermissibly suggestive pretrial confrontation; and the verdict was against the overwhelming weight of the evidence. We affirm.

On December 17, 1979, Bernice Tapp was beaten with a shotgun and robbed while working at his place of business, the Hilltop Package Store. He was immediately taken to the hospital where some fifty to seventy-five stitches were required to suture his head. One and a half to two hours after the robbery, the Chief of Police and Deputy sheriff, both Caucasians, escorted appellant, a black man, into Tapp’s hospital room where he immediately identified appellant as being his assailant.

On the day of the robbery, the Prentiss County Sheriff’s Department, which had received a description of the car appellant was driving and his name, arrested him in their county. He was then picked up by the Lee County Sheriff’s Department, taken to Lee County jail for processing, and immediately thereafter to the hospital where Tapp was a patient. The testimony is conflicting as to what Chief Conlee said to Tapp when he escorted Chambers into Tapp’s room. Chief Conlee had seen Tapp at the scene of the robbery and from his observations believed Tapp was in a physically critical state. At the hospital, Conlee first inquired of Tapp as to his physical state, and being told Tapp was feeling fair and finding Tapp to be coherent and alert, Conlee asked him if he knew appellant. Tapp, put on his glasses and immediately stated, “That’s the man that robbed me.”

Tapp testified that appellant had worn a green Army jacket at the time of the robbery and was wearing a brown coat during the identification confrontation. When appellant was arrested he was wearing the same brown coat. Testimony showed that $650.00 was taken from Tapp’s cash register and $647.00 was found on Chambers in the pocket of the brown coat. Appellant contends that he had been driving in an acquaintance’s car and when he became chilled, he observed the brown coat lying on the backseat and put it on for warmth and that he knew nothing about the money.

The issue as to whether or not a pretrial “one man showup” violates a suspect’s right to due process has been presented before the courts of this nation on many occasions.

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the United States Supreme Court subjected identification confrontations, as in the present case, to the requirement of due process. The Court recognized that eyewitness testimony obtained from a pretrial identification which is “so unnecessarily suggestive and conducive to irreparable misidentification” violates a defendant’s right to due process of law. This violation stems from the view that a one man showup on its face conveys the suggestion that the person presented is believed to be guilty by the police. The Stovall Court said:

. . . the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.... However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. ... (388 U.S. at 301-02, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206).

In its findings in Stovall, the Court found the “showup” in the victim’s hospital room to be suggestive, but because there was a serious question as to whether or not the victim would live, there was no violation of due process.

The Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which involved photographic identification rather than a one-man showup as in Stovall applied the due process test under Stovall, supra, but phrased the test in a somewhat different context as follows:

The danger that use of the technique [use of photographs] may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967 [1972], 18 L.Ed.2d 1199, 1206, and with decisions of other courts on the question of identification by photograph. (390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253).

In Stovall, supra, and Simmons, supra, the Supreme Court has established a two-pronged test of a violation of due process as follows:

The first question is whether the initial identification procedure was “unnecessarily” [Stovall] or “impermissibly” [Simmons ] suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been “unnecessarily” or “imper-missibly” suggestive was so “conducive to irreparable mistaken identification” [Sto-vall] or had such a tendency “to give rise to a very substantial likelihood of irreparable misidentification” [Simmons] that allowing the witness to make an in-court identification would be a denial of due process. (United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.1970)).

In the later case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court did not adhere to the strictness of the due process test as found in Stovall, supra, and Simmons, supra. The Court softened the application of the test by adding the concept of the “reliability of” the pretrial identification. The Court stated:

We turn, then, to the central question, whether under the “totality of the circumstances” the identification was reliable even though the confrontation was suggestive.

The Court also specifically set out the factors to be considered in evaluating the likelihood of misidentification as: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

In applying the criteria of Neil v. Biggers, supra, to the present case, we find that:

(1) Tapp saw the appellant for a three to five minute period immediately prior to the robbery and assault, and then ten minutes later had an opportunity to view him again for one minute which was ample time to establish recognition of appellant.

(2) Tapp’s attention was directed to the appellant on his first trip to the store as they entered into conversation and the second time when appellant approached Tapp armed with a rifle.

(3) The testimony does not indicate a description was given by Tapp immediately after the robbery, however, it is not uncommon for a description not to be given by a victim who is seriously injured and carried to a hospital and does not speak with the police until sometime later — in this case the police brought Chambers, the appellant, to the hospital one and one-half hours later.

(4) Tapp immediately, emphatically and positively, identified appellant as “that’s the man that robbed me.”

(5) The confrontation took place one and one-half to two hours after the robbery when Tapp’s memory about appellant was still fresh in his mind.

As was stated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), we cannot say that under all the circumstances of this case there was “a very substantial likelihood of irreparable mis-identification.” Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

We find no error in the trial of this case which would deny defendant his right to due process of law.

AFFIRMED.

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


text:
    Jerry Wayne SEYMOUR v. STATE of Mississippi.
    No. 52795.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Louis Fondren, Pascagoula, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

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

AFFIRMED.


text:
    Richard Roy ROBINSON v. STATE of Mississippi.
    No. 52794.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    George F. West, Jr., Natchez, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from County Court, Adams County; Robert A. Bonds, County Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Arbie I. STEWART v. LOUDON SHOPPE, INC. & American Employers Ins. Co.
    No. 52824.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

Wm. L. Griffin, Jr., Akers & Griffin, Greenville, for appellant.

L. Carl Hagwood, Campbell & DeLong, Greenville, for appellee.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Kirby JACKSON & Lonnie Anderson v. STATE of Mississippi.
    No. 52797.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Leon E. Provine, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Linda L. HINES v. Billy J. HINES.
    No. 52799.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Fred A. Ross, Jr., Jackson, for appellant.
    Don A. McGraw, Jr., Steve H. Smith, Canton, for appellee.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    JOHN DEERE INSURANCE CO. v. BUILDING SERVICE CO.
    No. 52802.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    W. David Dunn, Frank B. Webb, Dunn & Webb, Columbus, for appellant.
    Dewitt T. Hicks, Jr., Lydia Quarles, Ghol-son, Hicks & Nichols, Columbus, A. M. Edwards, Edwards, Storey & Helveston, West Point, for appellee.
   Appeal from Circuit Court, Clay County; Joe 0. Sams, Sr., Judge.

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

AFFIRMED.


text:
    Robert Lee TERRELL v. STATE of Mississippi.
    No. 52517.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Jerry L. Mills, Johnson & Mills, Clinton, for appellant.
    Bill Allain, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Wm. F. Coleman, Judge.

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

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and HAWKINS, JJ., concurring.


text:
    Roy L. COKER and Joe W. Albritton v. Olga SMITH, et al.
    No. 52735.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Breed O. Mounger, Sr., Mounger, Moun-ger & Mord, Tylertown, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before SUGG, WALKER and BROOM, JJ.

AFFIRMED IN PART AND REVERSED IN PART AND RENDERED.

SMITH and ROBERTSON, P. JJ., and LEE, BOWLING, and HAWKINS, JJ., concurring.

PATTERSON, C. J., took no part.


text:
    William H. TALLEY, Jr., et al. v. Vester IRONS, et ux.
    No. 52729.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Donald L. Kilgore, Alford, Mars, Thomas & Kilgore, Philadelphia, for appellants.
    Wilburn D. Moore, Jr., Philadelphia, for appellees.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

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

AFFIRMED ON DIRECT AND CROSS APPEALS.