author: BROOM, Justice,

text:
    Raymond Arthur DAUMER, Jr. and Linda J. Tuggle (Daumer) v. STATE of Mississippi.
    No. 51735.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 16, 1980.
    Prewitt & Prewitt, John W. Prewitt; Sr., Vicksburg, for appellants.
    A. P. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, BROOM and COF-ER, JJ.
   BROOM, Justice,

for the Court:

Murder conviction of Raymond Arthur Daumer, Jr. and Linda L. Tuggle (Daumer) occurred at their joint trial in the Circuit Court of Copiah County. Indictments charging them with the murder of Tuggle’s son Kenneth “Bunky” Tuggle were returned by the Warren County Grand Jury, but upon the defendants’ motion, venue was changed to Copiah County Circuit Court. Following the jury’s verdict of guilty, the trial judge sentenced the defendants (Dau-mer and Tuggle) to life imprisonment in the custody of • the Mississippi Department of Corrections. They appeal and urge reversal of their conviction on alleged (1) procedural errors, (2) faulty jury instructions, and (3) insufficient evidence. We affirm as to Daumer and reverse as to Tuggle.

Tuggle is the mother of Kenneth Tuggle, also known as “Bunky”, who died January 13, 1978 after having been taken by Dau-mer and Tuggle to a Vicksburg hospital on December 24, 1977. From there the little boy (described as being very intelligent and handsome) was transferred to Baptist Hospital in Jackson, where, after brain surgery, he died. Daumer and Tuggle had lived together for some time but did not marry each other until after the child’s death.

According to the evidence, Daumer and Tuggle and the child “Bunky” occupied a residence in Vicksburg. On Christmas Eve, 1977, several people were there and “Bunky” appeared to be active and healthy. An incident occurred in the den about whether “Bunky” had eaten some candy contrary to instructions. From the den, Daumer and “Bunky” had gone into “Bunky’s” bedroom and Daumer was heard to say twice, “I’m not raising no liar in my house. Have you been eating candy?” Tuggle (having gone into the bedroom after Daumer and “Bunky”) was overheard saying, “Ray, why don’t you leave ‘Bunky’ alone? It’s Christmas Eve.” Within a short time Tuggle was heard yelling that something was wrong with “Bunky”. Those present entered Tuggle’s bedroom where they found “Bunky” unconscious— his ear was “real red.” At the two hospitals, numerous bruises, bite marks from a “large mouth” on his right shoulder, and other physical evidence of numerous injuries was found upon “Bunky’s” body. The injuries included a partly healed broken collar bone. Dr. Scanlon (a pathologist), one of several physicians who testified, said that the little boy had been hit from the right side going down, which he related to the occasion when Tuggle and Daumer were in the bedroom with “Bunky”. Dr. Scanlon stated the cause of death was a head injury which caused a “hematoma on the right side of the brain ... so large that it depressed the brain so greatly that the brain ceased to function and he died . he did not get enough oxygen.” Theory of the defense was that “Bunky” was an easily bruised child who had many times accidentally fallen (out of bed, etc.) and thereby received his fatal injuries.

First argument made by the defendants is that the court erred in overruling their motion for a second change of venue. They contend that after venue was moved from Warren County to Copiah County, venue should have been changed again because the people of Copiah County had become prejudiced by excessive publicity. At the hearing of the motion for the second change of venue, evidence was taken and exhibits were introduced concerning the media giving out publicity concerning the homicide in question. We have for many years followed the rule that whether venue will be changed is vested largely in the discretion of the trial judge. ■ From the testimony in the record, we are unable to say that the trial judge erred, in finding that the defendants could receive a fair trial in Copiah County. Contained in the record is the voir dire examination of prospective jurors which does not establish error. Juror process was served upon sixty-six veniremen from which twenty-five were excused by the court for various reasons. Forty-one of those summoned were found qualified and capable of giving a fair trial to the appellants. Upon the record, we cannot say that the trial judge abused his discretion by his failure to change venue the second time.

Second argument advanced by the defendants is that the trial judge erred in overruling their motion objecting to participation by the district attorney of the Ninth Judicial District (Warren County) in the trial of the case. It is to be noted that the joint indictment was returned against the two defendants in Warren County within the Ninth Judicial District. Venue was changed on their motion to Copiah County within the Fourteenth Judicial District, which has a different district attorney from the one who serves in Warren County. It is said that the district attorney of the Ninth Judicial District was without authority to represent the state ip the Fourteenth Judicial District. The argument is made under Mississippi Code Annotated § 25-31-11 (1972), which states:

It shall be the duty of the district attorney to appear in the circuit ■ courts and prosecute for the state in his district all criminal prosecutions . . . . (Emphasis added).

State ex rel. Patterson v. Warren, 254 Miss. 293, 180 So.2d 293 (1965) and Capital Stages v. State, 157 Miss. 576, 128 So. 759 (1930) are relied upon here as authority for the argument. We think the most pertinent decisional law is State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614 (1943), where we said:

It is not perceived why one having authority to sue has not the right to resort to the venue where the suit must be brought. He instituted this action in Hancock County, within his district, and it was transferred to Hinds County over his protest on motion of the Commission.

Section 25-31-11, supra, and Mississippi Code Annotated § 19-23-11 (1972) relate to the duties of prosecutors: district attorneys and county attorneys. These statutes charge the prosecutors with the duty of trying cases involving criminal offenses committed within their jurisdictions. We think it is logical to hold, and we now hold, that the duty of prosecutors requires them to discharge their duties in prosecuting criminal offenses until the prosecution terminates. Mere change of venue simply cannot reasonably terminate the duty of a prosecutor. Therefore, when the indictment was returned by the Warren County Grand Jury and venue was changed to Copi-ah County upon the appellants’ own motion, there was nothing amiss in the prosecutor (doing statutory duties) completing his prosecutorial work. The record does not show any prejudice or disadvantage to either of the defendants on account of the district attorney of the Ninth Judicial District performing his duties in a judicial district encompassing Copiah County. As noted by the trial judge, from a practical standpoint the officers in question should have prosecuted this case, especially after having investigated the matter and presented it to the Warren County Grand Jury.

Thirdly, argument is made that the trial court erred in overruling the defendants’ objection to certain remarks made by the prosecutor during closing argument. In his closing argument the prosecutor stated to the jurors, “I tell you, the hand of Linda Tuggle, Linda Tuggle Daumer, it drips the blood of Ken Tuggle”. Objection was promptly made by defense counsel to the remark and the trial judge was asked to instruct the jury to disregard the remark. When the objection was overruled, a mistrial was requested which was also overruled and in their brief, the appellants say “The statement was very prejudicial and assumed facts that were not in evidence. There was never any testimony or evidence in this case that even suggested that Linda Tuggle Daumer had the blood of her son dripping from her hands.”

We think the remarks in question were improper and that the objection to them should have been sustained. However, our conclusion ■ is that the improper remarks were not intended and likely were not accepted by the jurors as meaning there was any testimony or evidence that blood was literally dripping from Tuggle’s hands. The jury statement is in actuality a figure of speech or metaphor and although somewhat improper, does not reach reversible proportions. Clemons v. State, 320 So.2d 368 (Miss.1975); Haralson v. State, 318 So.2d 891 (Miss.1975); Chinn v. State, 276 So.2d 456 (Miss.1973). We think the remarks were actually an attempt of the prosecutor to tell the jurors (as he viewed the case) that upon the evidence Tuggle was-guilty and accountable for the crime though the evidence may not literally reflect that she ever struck her son. Surely, the remarks which referred only to Tuggle would not be any basis for reversal insofar as Daumer is concerned.

Fourth argument is that the court erred in giving state instructions pertaining to murder in this case and further erred in giving instructions numbered S-2, S-4, S-6, S-8, S-9, S — 11 and S-12. In their brief, they contend that Instruction S-2 is “misleading and confusing. . . .” Upon the record as made we are unable to accept the argument that Instruction S-2 when considered alone or together with the other jury instructions would warrant reversal. Although the instruction is not a model as to wording and sentence structure, we do not believe that it was either misleading or confusing.

Jury Instruction S — 4 is said to be “confusing and improper because the term ‘culpable negligence’ was not adequately defined for the Jury.” In considering this part of defendants’ argument it is to be noted that the objection made at trial to S — 4 was for the reason of “a total failure to show any negligence, much less culpable negligence,” but upon appeal they argue that S-4 is erroneous for reasons other than those assigned in the trial court. It has been the rule for some time that when an objection to an instruction is made at trial on one ground and on another ground on appeal, we will not accept such argument as grounds for reversal.

Argument made concerning the granting of other jury instructions does not merit discussion. Having carefully examined in their totality the instructions given by the court, we are of the opinion that the appellants have failed to establish any reversible error in this regard.

Final argument is that the guilty verdicts are contrary to the overwhelming weight of the evidence. In addition to the testimony and evidence already set forth, we must consider other evidence in the record. According to her testimony, Sandra Palmer observed black and blue bruises all over “Bunky’s” buttocks. Before the final incident on Christmas Eve, several witnesses had seen evidence of bruises in various places upon “Bunky’s” body. One of these witnesses was Judy Foster, who related that Tuggle had told her that she (Tuggle) had been hit by her co-defendant, Ray Dau-mer, and according to Foster, she had concluded that Tuggle was afraid of Daumer.

Another witness, Sherry Leigh Thornton, testified about her visiting in the house of Tuggle and Daumer in late November, 1977. She described seeing a bruise on one of “Bunky’s” eyes, and during her visit (according to her) defendant Daumer went into “Bunky’s” room on that occasion after which appellant Tuggle came out within a' short time and told her that Daumer was hitting “Bunky”.

Another witness, Mrs. Mobley, testifying for the defendant, stated that in October before “Bunky’s” death, Tuggle brought “Bunky” to her house and requested her opinion as to whether a doctor should see “Bunky’s” shoulder. According to Mobley, Tuggle told her she was afraid to take “Bunky” to a doctor because a doctor who examined him on a previous occasion threatened to take the child away from her on account of child abuse.

We agree with the statement made in the appellee’s brief that the web of circumstantial evidence in this case together with direct evidence was sufficient basis on which the jury might have concluded and did conclude that the defendant Daumer (but not Tuggle) was guilty of murder. This is in stark contrast to the total lack of evidence connecting the accused with the death of his alleged victim in' Sanders v. State, 286 So.2d 825 (Miss.1973). There a small child was caused to starve to death. Neighbors v. State, 361 So.2d 345 (Miss.1978) is a case similar to the instant case in that the homicide victim, a 4-year old girl died from external blows — some were inflicted just before the child’s death and some days earlier. Given the history related by various witnesses of seeing many bruises upon “Bunky” while Daumer was living in the house with “Bunky” and the co-defendant Tuggle, there was sufficient testimony to clearly establish the state’s case against Daumer. The testimony of Tuggle herself when considered with other testimony, condemns Daumer. On the final occasion of “Bunky’s” being alive in the house, it is obvious that the child’s being accused of eating candy caused Daumer to be upset to the extent that inside the bedroom, according to the jury’s finding, he undoubtedly battered “Bunky” and was heard to say, “I ain’t raising no liar in my house.” It was then that state witness Melton heard Tuggle urging Daumer to leave “Bunky” alone. Immediately afterward, Tuggle emerged form the room excited and screaming for help. Then in Tug-gle’s bedroom where Daumer had taken the child, the others found “Bunky” unconscious with a “real red” ear. After he was hospitalized, it was discovered that he had sometime incurred a broken collar bone (which had begun to heal) and severe brain damage which, according to doctors’ testimony, resulted from considerable trauma.

We think that the totality of the evidence, together with reasonable inferences which the jurors were entitled to draw therefrom, was sufficient to convict Dau-mer of murdering the child. However, the evidence is not sufficient to support the conviction of the child’s mother, Tuggle. This is especially true in view of the fact that on the final occasion when obviously the child received his fatal injuries in the bedroom, it was his mother Tuggle who was (according to state witness Melton) protesting Daumer’s action and urging him to leave “Bunky” alone. Although the record would cause no one to commend Tuggle for the circumstances under which she kept her child and lived with Daumer, we do not believe that the testimony warrants affirmance of her conviction. There is not even a scintilla of evidence in the record showing that she ever struck the child, or that she ever encouraged or aided or abetted Dau-mer in. striking or harming the child.

This case was well tried'and the jury, according to its findings, was instructed that the defendants might be found guilty of murder or manslaughter (culpable negligence). As to the verdict of guilty of murder returned against Daumer, we cannot say that it was not warranted by the evidence. Neither can it be logically said that Daumer did not receive a fair trial. Accordingly, we must affirm as to him, but reverse and render as to Tuggle.

AFFIRMED AS TO RAYMOND ARTHUR DAUMER; REVERSED AND RENDERED AS TO LINDA TUGGLE DAUMER.

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


source: Caselaw Access Project

license: Public Domain

text:
    Eddie J. CARTHAN, Mayor of the Town of Tchula and Greta Nalls, City Clerk of the Town of Tchula v. Roosevelt GRANDERSON and John Edgar Hays, Aldermen of the Town of Tchula.
    No. 51723.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 16, 1980.
    Alix H. Sanders, Greenwood, for appellants.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes, Judge.

Travis H. Clark, Jr., Greenwood, for ap-pellees.

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

Dismissed without prejudice.

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


author: LEE, Justice,

text:
    Tarzaron ANDERSON v. STATE of Mississippi.
    No. 51828.
    Supreme Court of Mississippi.
    May 28, 1980.

      Walls, Buck & Irving, Robert E. Buck, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court.

Tarzaron Anderson was convicted in the Circuit Court of Sunflower County for rape of a mentally incompetent female and was sentenced to serve a term of fifteen (15) years in the Mississippi State Penitentiary. He appe'als from the sentence and judgment of the lower court and assigns six (6) errors in the trial.

There is little contradiction in the evidence. Mrs. Robbie Moore testified for the State that on July 26, 1977, she drove by the home of the victim in Moorehead, Mississippi, and she noticed a young black person [appellant was a black male fifteen (15) years of age] talking to the victim, who was a 16-year-old white girl. Mrs. Moore continued on her way across town, but, being aware of the victim’s mental condition, she returned and observed parts of their lower extremities sticking out from behind an air-conditioning unit located adjacent to the victim’s home. She saw appellant get up, run to his bicycle, which was nearby, and ride off. Mrs. Moore found the victim lying nude on the ground and bleeding profusely from her vagina. She called the victim’s mother, who was inside the house; and the child was taken to the hospital.

Appellant was apprehended, was identified as the-assailant by Mrs. Moore, and he freely and voluntarily admitted the act. •Appellant testified at the trial. His testimony did not contradict that of Mrs. Moore or his statement given to the officers, except-that he claimed the victim stopped him and asked him to engage in the sexual act. Appellant described the victim to Officer William Staten as being “the one that waves real funny and the one that’s kind of off in the head.”

Physical examination of the victim by Dr. Walter Rose in the emergency room at the North Sunflower County Hospital reflected that she was bleeding profusely from her vagina, that blood had run down her legs and feet and had dried in those areas; and that she was still bleeding from a tear in her hymen at the time of his examination. She also had a large blood clot on the left side, and at the entrance, of her vagina. Dr. Rose administered a local anesthetic and repaired and sutured the torn areas. He also testified that live sperm was found in the victim’s vagina. It was uncontradict-ed that the victim had been retarded since birth, she could speak only in monosyllables, and had the mind and intellect of a four-year-old child.

Appellant introduced evidence to the effect that he, too, was retarded, that his IQ was only 31, that he was enrolled in special education classes after about the third grade, and that he did not have the intellect •to distinguish right from wrong. On the contrary, Dr. Donald Guild and Dr. C. S. Stanley, an eminent psychiatrist and psychologist, respectively, at Mississippi State Hospital, Whitfield, Mississippi, testified that appellant was of normal intelligence, had no evidence of psychosis or major mental disorder, had an IQ within normal range of 91, and was not retarded.

I.

Did the lower court err in overruling appellant’s motion for a mistrial based on prejudicial testimony by the State’s witness, Dr. Walter Rose?

Dr. Rose, the physician who examined the victim immediately after the incident, testified that he concluded from his examination of her that she had been forcibly penetrated and that such penetration was without her consent. Counsel for appellant objected to that part of the testimony and the objection was sustained. The trial judge instructed the jury to disregard the statement, appellant moved for a mistrial, which motion was overruled. Appellant argues that refusal to grant the mistrial was reversible error.

The indictment charged that the appellant “wilfully and feloniously did rape . a female person over the age of twelve (12) years, the said . . . being then and there so mentally incapacitated as to have no will to oppose the act of carnal knowledge. . . . ”

Appellant complains that the stated testimony of Dr. Rose went to a crime other than that charged in the indictment, viz., rape by force, rather than rape of a person mentally retarded to the point where she could not consent to the act. He argues that forcible ravishment of a female without her consent, and sexual intercourse with a female mentally incapable of giving consent because of her mental incapacity, are separate and distinct crimes and he cites Wilson v. State, 221 So.2d 100 (Miss. 1969), Lee v. State, 322 So.2d 751 (Miss. 1975) and Bonner v. State, 65 Miss. 293, 3 So. 663 (1888). He quotes from Bonner v. State, supra, as follows:

“To charge one with an act which is unlawful because it is done with force and against the consent of another, and to convict him without proof of these essentiaP elements of the crime, or to dispense with or supply such proof on such charge, on the theory that if there was consent, the party had not capacity to give it, would be a proceeding wholly inconsistent with the justice and fair dealing which should and does characterize the administration of public law.” 65 Miss. at 296, 3 So. at 665.

However, the case sub judice is dis- • tinguished from those cases which involved a charge of forcible rape without consent, and where the proof did not support that charge, but indicated that the victim was mentally incapable of consenting to the act. Here, the proof shows without contradiction that the victim was mentally incapable of consenting to sexual intercourse. ■ That proof, and other proof, established the crime of rape as charged. Had the victim here given resistance, or assent, the crime as charged would still have been established. The testimony of Dr. Rose simply indicated that a certain amount of force was required to effect penetration and that there was no' consent on the part of the victim. This statement of Dr. Rose may be interpreted to mean that she was unable to consent on account of her mental retardation.

In Wilson v. State, supra, the Court held:

“Under the common law proof of sexual intercourse with a woman mentally incapable of consent because of imbecility, idiocy or insanity, establishes the crime of rape. Stephenson v. State, 35 Ala.App. 379, 48 So.2d 255 (1950); The Queen v. Ryan, 2 Cox Crim.Cas. 115 (1846); 75 C.J.S. Rape § 14b (1952). Where the victim in a rape case was mentally incapable of consent, it was not necessary to prove ‘actual force’ beyond the mere force of penetration so that actual resistance was not necessary to constitute the offense. . . . ” 221 So.2d at 103.

We are of the opinion that th^re was no error in the testimony of Dr. .Rose for the reason stated immediately above, and for the further reason that the trial judge sustained appellant’s objection to that testimony, which had the effect of removing any taint resulting from it.

II.

Did the court err in overruling appellant’s motion to quash the indictment on the ground that the offense charged is unconstitutional as applied?

Appellant contends that the offense charged in the indictment is unconstitutional because it is vague, imprecise and over-broad.

The charging part of the indictment, as stated hereinabove, specifically accused the appellant» with felonious rape of the victim, who, at the time, was so mentally incapacitated as to have no will to oppose the act. We are of the opinion that the charge sufficiently notified the appellant of the accusation against him. In Burchfield v. State, 277 So.2d 623 (Miss. 1973), the Court stated:

“It has long been the law of this land that an accused person has a constitutional right to be informed of the nature and material elements of the accusation filed against him. All the authorities are to the effect that an indictment, to be sufficient upon which a conviction may stand, must set forth the constituent elements of a criminal offense. Each and every material fact and essential ingredient of the offense must be with precision and certainty set forth. 41 Am.Jur.2d Indictments and Informations § 69 (1968); 42 C.J.S. Indictments and Informations § 130 (1944). Not only must the essential elements of a crime be alleged, they must be proven beyond a reasonable doubt. In the Interest of Johnny Jenkins, 274 So.2d 143 (Miss. 1973).” 277 So.2d at 625.

The court correctly overruled appellant’s motion to quash the indictment.

III.

Did the lower court err in permitting irrelevant and prejudicial examination of appellant by the prosecutor relating to prior sexual activity?

.During cross-examination of the appellant by the district attorney, the question was asked him whether he had done it [had sexual relations] before. His answer was, “I ain’t never done it before.” The appellant objected and the court ruled by saying, “Well, he’s answered that he never did it before.” Appellant contends that the question and answer were prejudicial because his prior sexual activities were not at issue, and that the question and answer prejudicially reflected upon his character. We reject such argument because (1) appellant denied having engaged in previous sexual activities which certainly did not reflect upon his character, and (2) appellant claimed that he was mentally retarded and not responsible for his acts, and he obtained instructions from the court which submitted the question of his insanity to the jury. In relying upon the defense of insanity, he opened his entire background and life to questions relating to his mental competency.

IV.

Did the court err by limiting the summation of appellant’s counsel in prohibiting him from remarking upon the television series and novel “Roots,” which is a literary and film work?

Appellant’s counsel, in his oral argument, remarked that people have biases and prejudices instilled in them by their history and upbringing, and that the case should be decided solely on the evidence and the law. •Counsel then attempted to comment upon, and argue, something about the television series “Roots” which had appeared shortly before the trial. The prosecuting attorney objected to that argument. In sustaining same, the court stated:

“Let the record show that during the course of this argument to the Jury, Counsel for the Defense made an effort to discuss with the Jury the television Series ROOTS, which has been showing on television this week. The State objected on the grounds that this television series has absolutely nothing to do with this trial and the argument is made for the purpose of inciting the Jury. The State’s objection is sustained.”

Appellant contends that he was unduly limited and restricted in his argument, but he does not cite authority on the question. Although an attorney has wide latitude in arguing his client’s case to the jury, he must also stay within the record. We are of the opinion that the trial judge did not abuse his discretion in sustaining the objection and in declining appellant’s counsel permission to comment upon the book Roots. The record does not indicate what counsel intended, or attempted, to say. There is no indication of any prejudice resulting to the appellant.

V.

Did the trial court err in refusing to grant appellant’s requested Instruction D-9?

Appellant requested Instruction D-9, which was refused by the court, and which presented to the jury the question of whether or not appellant had knowledge of the victim’s mental condition:

“D-9
“The Court instructs the jury that even if you find that Tarzaron Anderson had sexual intercourse with . . . and that she was so mentally incapacitated as to have no will to oppose the act of sexual carnal knowledge, you must further find beyond a reasonable doubt that Tarzaron Anderson had knowledge of the mental condition of before you can return a guilty verdict. If the State fails to prove beyond a reasonable doubt and to a moral certainty such knowledge on the part of Tarzaron Anderson, you must find Tarzaron Anderson, not guilty.”

Along with other cases, appellant relies upon the recent case of Dotson v. State, 358 So.2d 1321 (Miss. 1978), where the. lower court refused to grant an instruction on the requirement of scienter or knowledge on the trial of a person charged with aggravated assault of a police officer. In Dotson, a police officer was driving an unmarked automobile, was not in uniform, and there was nothing about him to indicate that he was a law enforcement officer. It was held scienter or knowledge that the person assaulted as a police officer was crucial to the charge, under those facts.

However, in the case sub judice, the trial court granted the State Instruction S-4, which presented the question to the jury. When all instructions are read and considered together, the law was correctly submitted. Rayburn v. State, 312 So.2d 454 (Miss. 1975); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962).

VI.

Did the lower court err in sentencing appellant to fifteen (15) years in the state penitentiary rather than sentencing him according to Mississippi Code Annotated Section 43-21-39 (1972)?

Mississippi Code Annotated Section 43-21-39 (1972) provides a discretionary sentencing procedure, which the circuit court may use in cases where á child has been tried and convicted as an adult. According to that statute, the court may, in its discretion, commit the child to a state institution established for delinquents, or to the county jail for a term not exceeding one year, or the court may suspend sentencing for the probation period.

The imposition of sentence by the trial judge, if within the statutory limits, does not constitute cruel and inhuman treatment and is not an abuse of discretion. Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964), and many cases since Bond, have repeatedly upheld that principle. There is .no merit in the assignment.

The judgment of the lower court is affirmed.

AFFIRMED.

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

      . This Court has held that where the defendant . interposes the defense of insanity, the door is thrown wide open for the admission of evidence; every act of the party’s life is relevant to the issue and admissible in evidence. Wilson v. State, 243 Miss. 859, 140 So.2d 275 (1962); Smith v. State, 95 Miss. 786, 49 So. 945 (1909).

      . “The Court instructs the jury that if you believe from the evidence beyond a reasonable doubt and to a moral certainty that . was a female over the age of twelve years, and that the defendant, Tarzaron Anderson, had sexual intercourse with ... by actual penetration of her private parts, and at the time of such sexual intercourse . . was so mentally incapacitated as to have no will to oppose the act of carnal knowledge, and at the time when the defendant, Tarzaron Anderson, either knew or reasonably should have known, that . was so mentally incapacitated as to have no will to oppose the act of carnal knowledge, and at a time when the defendant, Tarzaron Anderson, knew the difference between- right and wrong and was able to follow the right and understand and appreciate the .nature and consequences of his act, then you cannot acquit the defendant on the ground of insanity, and you shall find the defendant guilty of rape.”


author: COFER, Justice,

text:
    Lamark NORMAN v. STATE of Mississippi.
    No. 51762.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied April 16, 1980.

      Jerome L. Lohrmann, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and COF-ER, JJ.
   COFER, Justice,

for the Court:

Appellant was, in the Circuit Court of the First Judicial District of Hinds County, convicted of a charge of conspiracy with some sixteen other persons to commit the crime of selling heroin, a violation of Mississippi Code Annotated, section 41-29-139(c) (Supp.1979). He received a sentence of years, as prescribed in cases of convictions under Mississippi Code Annotated, section 97-1-1 (1972), and has appealed therefrom.

He assigns four errors, some of them troublesome, on which he seeks a reversal:

I. The trial court erred in overruling appellant’s plea in bar based upon the Mississippi statute of limitations, Section 99-1-5, Mississippi Code of 1972.
II. The trial court erred in admitting into evidence over appellant’s objections, inculpatory hearsay statements of a co-conspiracy which had not been and was not established by competent evidence.
III. The trial court erred in refusing to instruct the jury on appellant’s defense of drug addiction.
IV. The verdict of the jury is contrary to the weight of the evidence and the trial court erred in overruling appellant’s motion for a directed verdict of acquittal and motion for new trial.

After the court had denied the defendant’s plea in bar based upon Section 99-1-5, the state introduced six witnesses, of whom one, Dr. Hume, was from the crime laboratory, and two were or had been undercover agents for the State Bureau of Narcotics. Margaret Jean Phillips, the first of all of the witnesses, testified, over appellant’s repeated objection, to statements made to her, by Roddy Crooks, Jr., out of the presence and hearing of appellant, touching upon the involvement of appellant in the alleged heroin-selling ring. From the record the conclusion is warranted that Crooks’ heroin and cocaine peddling was over a considerable area which included Jackson and Rankin County, and the Phillips witness’ testimony was that Crooks told her that appellant was the heroin distributor for him in Jackson. She testified to a number of heroin-transferring meetings between her and one Sandy Roberts, known by her as appellant’s wife. She never met nor had dealings with appellant, her only knowledge of him being through Crooks. Her dealings with Sandy Roberts were in 1976 to a date late in that year. The witness testified that in the spring of 1977, she began some illicit heroin delivery contacts with one Gertrude Irvin, a co-indictee who was being tried jointly with appellant. Her last delivery for Crooks was in Memphis late in 1977.

Jimmy Hargrove testified that Crooks rented an apartment in Jackson, where, beginning in September 1975, the witness and others received orders for heroin and cocaine and delivered them in ears which had been bought by Crooks for that purpose. Between September 1975 and December 1975 he had contacts with appellant who was one of their customers, and the witness would carry orders of heroin to him at his house or at a rendezvous near Ellis Avenue; larger amounts being for someone else or smaller amounts for appellant himself. During this time, the witness went to defendant Gertrude Irvin’s house to get supplies of heroin or cocaine left by Crooks with her, which he then delivered to customers. The witness had been convicted of selling drugs to undercover agent Steve Mallory in furtherance of the conspiracy. His last contact with appellant was in 1975.

Hazel Willis testified that Crooks had led her into the use of heroin, and she bought the drug from him several times. Her habit became such that drugs to the cost of $400 to $500 per day were necessary to satisfy her. She had many contacts with defendant Gertrude Irvin on Fannin Road in Rankin County, to buy heroin for customers or for herself. She estimated that from 1975 to the middle of 1976, when the witness went to New Orleans to be broken of the drug habit, she bought heroin from Gertrude Irvin 150 times or more. This witness said of drug addiction, “Mister, when you’ve got a habit on drugs, you are under it until you are completely off of it.”

Undercover Agent Steve Mallory told of buying an amount of heroin from appellant on February 8, 1976, or late the night before, at a place on Fannin Road in Rankin County, some fifty yards south of the residence of defendant Gertrude Irvin. He testified to the details of this transaction, and of his intention to avail himself of the possible opportunity to be brought by appellant into direct contact with appellant’s “source,” which opportunity was ruined by Mallory’s identity having been exposed. He testified that appellant and others were together in front of Gertrude Irvin’s house and that she joined them there.

Appellant’s own firsthand activity ended in the record at this point.

James E. Brantley, an agent for the Mississippi Bureau of Narcotics, testified that, as an undercover agent, he had contact with, and obtained heroin for resale from, defendant Gertrude Irvin on March 14, 1977, March 15, 1977, and March 17, 1977. As detailed above the witness Margaret Jean Phillips began illicit dealings with Gertrude Irvin in the spring of 1977.

There was a stipulation between the state and the appellant that, between September 1, 1975, and July 19, 1976, appellant was addicted to the use of heroin, that this use was involuntarily ended by his incarceration subsequent to July 20,1976, and that at “all times relevant to these criminal proceedings, as they pertain to Lamark Norman,” he was a heroin addict.

On this stipulation appellant undertook to procure this instruction; and assigns as error the court’s refusal thereof:

You are instructed that mere voluntary intoxication is not ordinarily a defense to a criminal charge and is a defense when such intoxication exists to a degree or extent which renders an accused incapable of forming the necessary intent to commit the crime charged and incapable of knowing right from wrong and if you believe from the evidence that the defendant, Lamark Norman was at all times relevant to the charge against him, addicted to the use of heroin to. the extent that he was incapable of forming the necessary intent to commit the crime of conspiracy to sell heroin and incapable of knowing right from wrong at the time of the alleged offense then you must find the Defendant Lamark Norman not guilty.

The proof is silent as to appellant’s incarceration, other than the. stipulation just above noticed.

At the conclusion of the state’s proof, appellant moved for a directed verdict renewing his claim that there was no competent evidence that the defendant conspired with anybody named in the indictment to sell heroin from March 28, 1976, (two years prior to the conspiracy indictment which was returned at the March 1978 term and marked filed on March 28, 1978); and that the latest activity therein was shown to have been February 8, 1976, (date of his transaction with Agent Mallory). He also pleaded that a conviction would amount to double jeopardy “inasmuch as the defendant was convicted of selling heroin in the Circuit Court of Rankin County, Mississippi, and is now serving a thirty year sentence, fifteen of which have been suspended and fifteen of which he is now serving in the State Penitentiary.” (There is no proof in the record to sustain this allegation of conviction). The motion was overruled.

Only the stipulation above noticed was introduced for the defendant Norman, and no witness was called in his behalf.

We note certain legal principles which we consider to be controlling in this case, and particularly bearing upon appellant’s assignments of error.

The indictment charged that the defendants named therein “. . . on or about September 15, 1975, . . . did wilfully, unlawfully, and feloniously conspire, combine, confederate and agree together and with each other ... to commit a crime . . . that is, to sell a controlled substance, namely heroin. . . . ”

The statute, Section 97-1-1, makes a conspiracy of two or more persons to commit a crime a criminal offense.

A conspiracy is said to be a combination of persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully. Mississippi Power & Light Co. v. Town of Coldwater, 234 Miss. 615, 636, 106 So.2d 375 (1958).

A conspiracy is a complete offense, Ellis v. State, 326 So.2d 466, 468 (Miss.1976), and the crime is completed without the showing of any overt act done in pursuance thereof. Moore v. State, 290 So.2d 603, 604 (Miss.1974).

The crime of conspiracy does not become merged in the crime committed pursuant thereto. Moore v. State, supra.

At least two persons must agree for a conspiracy to be formed. Moore v. State, supra.

Section 99-1-5, the general statute of limitations, providing a two-year limitation on prosecutions, applies here.

Failure to show a conspiracy within the two-year span prior to March 28, 1978, would be fatal to the prosecution here. Appellant cites the language of this Court in American Fire Insurance Company v. State, 75 Miss. 24, 22 So. 99 (1897), as being conclusive of this issue. In that decision extensive quotation was made with approval from Commonwealth v. Bartilson, 85 Pa. 482 (1877). A relevant part of that opinion is as follows:

In [this] sense, therefore, of tolling the statute, it cannot be said that a completed offense can be continued. It may be repeated, from day to day, but the statute runs from the close of each day, and the indictment must charge the offense to have been committed within the statutory period . . . But where, in conspiracy, an overt act is done within two years and said act is but one of a series of acts committed by the parties, evidently in pursuance of a common design, and to carry out a common purpose, such acts would be evidence, provided they tend to show that the last act was part of the series and the result of an unlawful combination; and such evidence may satisfy a jury of the existence of a conspiracy at the latter period. (75 Miss. at 37, 22 So. at 102).

The act of any conspirator is the act of all of the conspirators, Riley v. State, 208 Miss. 336, 44 So.2d 455 (1950), and, if any conspirator sold heroin within the two-year period prior to the returning of the indictment, then such sale was evidence of the existence of the conspiracy as of that sale. American Fire Ins. Co. v. State, supra.

Statements of one conspirator as to the complicity of others therein, though uttered out of the presence and hearing of such other conspirators, are admissible in evidence in the trial of such other persons on the conspiracy indictment. The existence of the conspiracy is required to be established before such statements may be admitted in evidence. Rich v. State, 124 Miss. 272, 86 So. 770 (1920).

The admission of such conspirators’ statements before establishment of the conspiracy is not reversible error if a jury made up of fair-minded people could have arrived at. no verdict other than that of guilty. Forrest v. State, 335 So.2d 900 (Miss.1976).

By the very nature of a conspiracy, its formation or existence rarely ever can be shown by direct evidence, and may not be capable of establishment other than by many factors and circumstances and may be established by such proof. Pickett v. State, 139 Miss. 529, 104 So. 358 (1925).

Once a defendant is established as being a conspirator, he remains a part of the conspiracy until he has extricated himself therefrom by making full disclosure to the law enforcement authorities of his involvement and cessation of activity therein, or by communicating his abandonment thereof in a manner reasonably expected to reach his co-conspirators. The burden of establishing his withdrawal rests upon the defendant.' Hyde v. U. S., 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114, 1127 (1912); U. S. v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964).

Imprisonment of a conspirator is not sufficient proof of his withdrawal therefrom. U. S. v. Borelli, supra.

It is considered that (1) the proof in this case established the conspiracy; (2) no jury bent upon compliance with its oath could have returned a verdict other than of guilt; (3) the act of defendant Gertrude Irvin in selling heroin to Agent Brantley in 1977 and her illegal transactions with Margaret Jean Phillips were acts of all of the conspirators, and proved the existence of the conspiracy as of the dates thereof; (4) which transactions were within the limitations prescribed by the statute, Section 99-1-5; (5) testimony by Mrs. Phillips of Crooks’ involvement of appellant in the conspiracy was harmless under the facts in the case; (6) no showing being made that appellant was so subdued by his heroin addiction that he could not form an intent necessary in this case, the court did not err in refusing appellant’s requested instruction; and (7) finally, the evidence was overwhelming, and the jury could have reached no verdict other than guilty.

We, accordingly, find no error in the record and affirm the conviction and sentence.

AFFIRMED.

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


text:
    Brady L. TUCKER v. Clifford KELLY.
    No. 51753.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied April 16, 1980.
    Bryan, Nelson, Allen, Schroeder & Cobb, James N. Compton, Biloxi, for appellant.
    Denton & Persons, Ray Mitchell, Biloxi, John Deakle, Hattiesburg, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Clifford Kelly filed suit against Brady L. Tucker in the Circuit Court of Harrison County seeking personal injury and property damages. The trial court granted Kelly a peremptory instruction directing the jury to find for him. A verdict was returned for Kelly in the sum of two hundred nine dollars fifty-seven cents ($209.57) property damage. The court sustained Kelly’s motion for a new trial on the issue of damages alone, and Tucker has appealed here.

The question presented is whether ór not the trial court erred in granting a new trial on the issue of damages.

On or about January 17, 1977, appellee was driving a Buick automobile on the Litton access road in Pascagoula, when his vehicle was struck from the rear by a Fiat automobile driven by appellant. Immediately after the collision, appellee thought he was not injured, but, according to his testimony and that of Alton Parker, a passenger in the Buick, he began to feel pain before ■he arrived home. Appellee’s wife testified that he complained of pain in his back when she saw him at home. From that time until about February 21, 1977, appellee worked as a painter at the Toches plant. However, he and another employee testified that during such period of work, appellee experienced pain in his back and that the fellow employee did the heavy work involved in their jobs.

Appellee’s family physician, Dr. Moak, examined him on February 21, 1977, and referred him to Dr. Edward A. Attix, an orthopedic surgeon, who diagnosed his back problem as being a sequestered disc. In the opinion of Dr. Attix, from the history taken, the injured disc was a proximate result of the automobile collision on January 17, 1977. He operated on appellee, excised the disc, and fused his spine. In November, 1978, appellee was referred to Dr. M. F. Longnecker, another orthopedic surgeon, for an independent examination and evaluation. He testified that, based upon the history taken from appellee, there was a causal connection between the disc injury and the automobile accident.

Appellee’s testimony that he had no trouble with his back previous to the automobile accident and that he had pain a short while after the accident until the time of the trial is not disputed. There was no medical evidence offered in opposition to the testimony of Dr. Attix and Dr. Longnecker. The opinion of the trial judge, in granting the motion for new trial on damages, contained the following finding:

“The Plaintiff did not complain of injury at the scene of the accident. The accident occurred in Jackson County, and he did complain of pain before he arrived at his home in Perry County. This is substantiated by his wife. After several days of pain, he contacted a local physician who referred him to a specialist, Dr. Attix, an Orthopedic Surgeon of Hatties-burg. There is no dispute that the Plaintiff suffered disablement, both temporary and permanent, and a great amount of doctor and hospital bills. The jury returned a verdict for property damage only.
The testimony of the Plaintiff, his wife, the witness Parker, a passenger in Plaintiff’s car at the time of the accident, Dr. Attix and Dr. Longnecker, to whom the Plaintiff was referred by both parties for evaluation, is undisputed that his injuries were a result of the accident. In order for the jury to reach its verdict, the undisputed testimony of these witnesses had to be completely ignored. While it is true that the doctors agree that they made their diagnosis to a great extent from history, still they were competent expert witnesses and their testimony should not be summarily dismissed in this manner. History given by a patient is an exception to the hearsay rule for good reason; it is presumed that one in pain will tell his doctor the truth; and without evidence to the contrary, there should not be a finding against the conclusive statements of the physicians.”

The evidence was uncontradicted in Odier v. Sumrall, 353 So.2d 1370 (Miss.1978), that the defendant moved a chair while the plaintiff was attempting to sit in same, resulting in his fall. The Court stated:

“Without comment concerning the seriousness of Odier’s injuries, we think it is uncontradicted that the fall caused some pain and suffering entitling him to nominal damages at the very least. We conclude, as we think we must, the verdict of the jury was against the overwhelming weight of the evidence.
In sum, we are of the opinion the trial court . . . erroneously overruled the motion for a new trial because the verdict of the jury was against the overwhelming weight of the evidence.” 353 So.2d at 1374.

In Banes v. Thompson, 352 So.2d 812 (Miss.1977), the damage to the vehicles was small and none of the occupants thought they were injured at the time of the collision. Approximately thirty (30) minutes after the accident, the plaintiff complained of hurting and the next day she manifested swelling and bruises. The Court cited Jones v. Richards, 254 Miss. 617, 181 So.2d 923 (1966), and held that the jury verdict for the defendants was against the great weight of the evidence, that the trial court erred in refusing to grant a new trial, and stated:

“Appellants contend that the jury was entitled to find plaintiff did not sustain any personal injuries, and, therefore, was not entitled to recover. However, it is undisputed that thirty (30) minutes after the collision the child began to have pain, the next morning her mouth was swollen and bruised, and the injury to her teeth and gums was corroborated by her dentist. As stated in the Jones case, appellant was entitled to a verdict' against one or both of the defendants, and the trial court erred in refusing to sustain the motion for a new trial.” ■ 352 So.2d at. 814.

The same rule applies on motions granting or refusing new trials as on granting additurs or remittiturs. This Court looks to determine whether or not the trial judge abused his discretion in granting a new trial, and then applies that rule.

We said in Walton v. Scott, 365 So.2d 630 (Miss.1978):

“When this Court reviews the action of a jury after the trial court refuses or grants a new trial on damages alone, the question is whether the verdict evinces bias, passion and prejudice on the part of the jury. In reviewing the action of the trial judge who enters an additur or re-mittitur on motion for a new trial, the Court looks to whether or not the trial judge manifestly abused his discretion in so doing. Dorris v. Carr, 330 So.2d 872 (Miss.1976). However, in determining whether or not the trial judge abused his discretion it is necessary for this Court to look beyond his action and apply the rule stated in Biloxi Electric Co. v. Thorn, supra [264 So.2d 404 (Miss.1972)]; Standard Products, Inc. v. Patterson, supra [317 So.2d 376 (Miss.1975)]; and other cited cases on the question.” 365 So.2d at 632.

• The evidence in the case sub judice indicated that the appellee incurred medical bills in excess of eight thousand dollars ($8,000), that he sustained substantial loss in wages and income as a result of his back injury, and that he incurred much pain and suffering. We are of the opinion that, upon the record made, the verdict of the jury in the sum of $209.57 property damage was not responsive to the evidence, and instructions, was contrary to the overwhelming weight of the evidence, that the trial judge did not manifestly abuse his discretion in ordering a new trial on the issue of damages, and that the judgment below should be affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Fred RAY v. STATE of Mississippi.
    No. 51654.
    Supreme Court of Mississippi.
    March 19, 1980.

      McGee & Bogen, Edward J. Bogen, Jr., Leland, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Justice,

for the Court:

Fred Ray was indicted for murder, convicted of manslaughter, and sentenced to a term of 15 years by the Circuit Court of Washington County. On appeal Ray assigns the following errors:

(1) The trial court erred in granting state’s Instruction No. S — 2; (2) the trial court erred in refusing to grant defendant’s requested Instruction No. D-6; (3) the trial court erred in refusing to allow introduction into evidence of the deceased’s criminal record, and (4) the trial court erred in failing to grant defendant’s motion for a peremptory instruction and the verdict of the jury was contrary to the overwhelming weight of the evidence.

Ray and Brantley had a drink together at the Casablanca Cafe in Greenville around 10:30 and 11:00 o’clock a. m. on May 14,. 1978. They left the cafe and engaged in a dice game nearby which ended in an argument. Ray and Brantley returned to the cafe and Ray departed in his automobile. While driving away from the cafe, Ray’s muffler fell off his automobile, he armed himself with a pistol which was in the glove compartment of his car, then returned to the cafe, and left the cafe in a taxi to go to his brother’s home. His brother carried Ray back to the cafe. Brantley was in front of the cafe when Ray returned and the argument which started at the dice game was resumed.

The evidence of what happened from that time until Ray shot and killed Brantley is conflicting. The state’s case shows that Ray entered the cafe with a pistol in his hand. The two parties argued and Brant-ley pointed his finger in Ray’s face and threatened to take the gun away from Ray and whip him. One or two shots were fired, Brantley ran out of the cafe with Ray following. Brantley ran behind a car and Ray kept him pinned down behind the car until Brantley started crawling toward a telephone pole, at which time Ray fired two more shots. The state’s witness did not see a pistol in Brantley’s hand but a small caliber pistol was found near the body of Brantley. The pistol had four cartridges in it but had not been fired recently. Ray’s gun was recovered and it contained four fired and two unfired cartridges.

Ray testified that when he returned to the cafe the last time Brantley accosted him outside the cafe, drew a small caliber pistol, put his finger on Ray’s nose, and threatened him. Ray said he pulled his pistol at that time, but neither fired, whereupon Ray entered the cafe. Ray said that Brantley followed him into the cafe and continued making threats against him and made a “fast turn going toward the door.” He said Brantley drew his pistol as he got to the door. Ray then commenced firing his pistol and ran out the door behind Brantley. Ray admitted firing several shots at Brantley who was behind an automobile. One of Ray’s witnesses testified that he saw a dark object in Brantley’s hand but could not tell what it was.

Appellant’s first assignment of error is not well taken because it is well settled that one indicted for murder and convicted of manslaughter may not complain of a murder instruction even though the instruction is erroneous. King v. State, 315 So.2d 925 (Miss.1975).

Ray next contends that the court erred by refusing the following instruction:

You are instructed that under the law a man is justified in carrying a weapon if his life has been threatened or he has been threatened with great bodily harm and he has a good and sufficient reason to apprehend an attack from an enemy, and if you believe from the testimony in this case that the defendant’s life had been threatened or that the defendant had been threatened with great bodily harm, and therefore had reason to apprehend a serious attack, then the defendant was justified in carrying a pistol.

Similar instructions have received varied treatment at the hands of this Court resulting in two lines of cases. One line of cases holds that the defendant is entitled to the instruction, the other holds that he is not entitled to the instruction- Cases holding that the defendant is entitled to the instruction are: Smith v. State, 75 Miss. 542, 23 So. 260 (1897); Wood v. State, 165 Miss. 363, 144 So. 545 (1932) and Austin v. State, 324 So.2d 245 (Miss.1975).

The first case that expressed a different view is Molphus v. State, 124 Miss. 584, 87 So. 133 (1920). In Molphus, the court gave the defendant an instruction that if the life of the defendant had been threatened and he had a good and sufficient reason to apprehend a serious attack from an enemy, and if the jury believed from the testimony that defendant’s life had been threatened and he had a reason to apprehend a serious attack, then the defendant was justified in carrying a pistol.

The defendant requested another instruction to the same effect. With reference to refusal of the second instruction, the Court stated:

This instruction received by the defendant was certainly all he could ask. The defendant was not on trial for carrying a concealed weapon, and the court was not required to instruct as to his right to carry a weapon. The court was here dealing with the use of the weapon and . the lawfulness of the use, and not with the lawfulness of its being carried. So we think there was not error in refusing the instruction No. 2 above set out which was refused by the court. (124 Miss. at 597, 598, 87 So. at 135).

Molphus did not cite Smith, supra, and apparently affirmed because the defendant had received one instruction on his- right to arm himself.

Three cases followed Molphus. These are: Durham v. State, 158 Miss. 833, 131 So. 422, 423 (1930); Richey v. State, 220 Miss. 790, 72 So.2d 152 (1954) and Shannon v. State, 237 Miss. 550, 115 So.2d 293 (1959). These three cases hold that it was not error to refuse defendant’s instruction that he had a right to carry a concealed deadly weapon if he had been informed and believed that his life had been threatened or he was threatened with great bodily harm. The rationale of these cases was the same as stated in Molphus, namely, that the defendant was not on trial for carrying a concealed weapon and the court was not required to instruct as to his right to carry a weapon. These cases state that the court was dealing with the use of the weapon and the lawfulness of the use, not with the lawfulness of it being carried. In Shannon, supra, we stated: '

We think Molphus, Durham and Richey state a sound principle of law.' The accused was not on trial for carrying a concealed weapon, but for the use which he made of it. The requested instruction would simply be a comment upon the evidence. The decision in Wood should be limited to the peculiar circumstances of that case, where the instruction joined the right to carry the weapon with the right to approach deceased on a peaceful mission. The latter factor is nonexistent in the instant case. See also 94 C.J.S. Weapons § 9d, p. 500. The trial court properly refused defendant’s requested instruction No. 1. (237 Miss. at 556, 557, 115 So.2d at 295).

From the foregoing, it is readily apparent that we have two lines of cases with divergent views on the question of the propriety of giving an instruction like the one requested by the defendant in this case. Three of our cases hold that a defendant is entitled to such an instruction, three cases hold he is not entitled to the instruction, and one case, Molphus, supra, is inconclusive. We are of the opinion that a defendant is entitled to such an instruction because it is important for a jury to understand that a defendant has a right to carry a concealed weapon under certain circumstances. Section 97-37-9 Mississippi Code Annotated (Supp.1979). Accordingly, we overrule Molphus, Durham, Richey and Shannon, to the extent they conflict with our holding in this case.

We hasten to add, however, that before a defendant is entitled to such an instruction there must be evidence to support the instruction. This is in accord with the general rule that there must be evidence to justify granting an instruction. In this case, Ray contends he was entitled to the instruction because he had good and sufficient reason to apprehend a serious attack from an enemy, and that he did so apprehend an attack. Section 97-37-9(a). Ray claims that he was justified in arming himself with a pistol because Brantley had threatened his life. The only evidence pertaining to threats made by Brantley directed toward Ray before Ray armed himself came from the testimony of Ray. Ray’s testimony about the threats during the dice game follows:

He said, “I don’t owe you a damn nickel and not expecting to pay you nothing. I said, “You just want to take $10.00 away from me, is that right?” He said, “Well, I am going to have it from you.” I said, “I ain’t planning on giving it to you.” That’s word for word.

After the argument at the dice game, Ray and Brantley, who was nicknamed “Spooky,” returned to the cafe. On direct examination of Ray the following questions and answers appear in the record:

Q.. Did the man you call Spooky — did he say anything to you — anything else to you out in front of the Casablanca at that time?
A. At that particular time — no more than what never he find me, he had to get his money.
Q. What was the purpose of your taking that gun out of the glove compartment of the car?
A. Because he had threatened me to take his money any way he could find. Anywhere he find me, he was threatening for to get it. And that was to protect myself.

The testimony does not support the instruction because it does not show that Ray had a good and sufficient reason to apprehend a serious attack from Brantley. Accordingly, we hold that the defendant was not entitled to Instruction D-6.

Defendant also argues that the trial court erred by refusing to let him introduce into evidence the criminal convictions of the deceased, Robert Brantley. In support of his argument, defendant relies solely on Freeman v. State, 204 So.2d 842 (Miss.1967) where we stated:

The assignment of error pertaining to the police record of the deceased is not well taken for the reason that it does not disclose any trait or characteristic of violence and, as such, is irrelevant and the court was correct in excluding the same. (Emphasis added). (204 So.2d at 843).

Defendant argues that, based on the language in Freeman, conversely stated, the criminal record of Brantley should have been admitted into evidence because the criminal convictions of Brantley showed his propensity for violence. Defendant’s reliance upon Freeman is misplaced for two reasons. First, Freeman does not state that the criminal record of a deceased may be introduced into evidence, and that conclusion cannot be drawn from the case by stating conversely the language of Freeman. That case dealt with the single question of the relevancy of evidence.

Second, previous convictions of a deceased are specific antecedent acts of violence, and it is well settled that specific antecedent acts of violence committed by a deceased are not admissible as evidence of the bad reputation of the deceased. Shinall v. State, 199 So.2d 251 (Miss.1967); Newsome v. State, 197 Miss. 797, 20 So.2d 708 (1945); McCoy v. State, 91 Miss. 257, 44 So. 814 (1907). We have also held that testimony of antecedent specific acts of violence between the deceased and third persons are not admissible to show the bad reputation of the deceased. McDonald v. State, 218 So.2d 21 (Miss.1969); Shinall, supra, and King v. State, 65 Miss. 576, 5 So. 97 (1888). Defendant was permitted to introduce evidence by several witnesses that the deceased had a bad reputation for peace and violence. This was all he was entitled to show under our decisions.

Ray’s last argument is that he was entitled to a peremptory instruction and that the verdict of the jury was contrary to the overwhelming weight of the evidence. The evidence in this case was conflicting and presented a jury question; therefore, this argument is without merit.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ„ and WALKER, BROOM, LEE, BOILING and COFER, JJ., concur.

      . The opinion in Austin includes Echols v. State, 99 Miss. 683, 55 So. 485 (1911) and Klyce v. State, 78 Miss. 450, 28 So. 827 (1900), as cases in which the instruction was permitted. Austin is incorrect in this statement because an examination of Echols and Klyce shows that the instruction in those cases is not similar to the instruction in Smith and Wood.


author: SMITH, Presiding Justice,

text:
    Alfred R. HUFFMAN v. HOUSTON DAIRY, INC.
    No. 51748.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied April 16, 1980.

      Kenneth M. Burns, Okolona, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Cary E. Bufkin, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

This ease involves an action for damages for personal injuries brought by Alfred Huffman in the Circuit Court of Chickasaw County against his employer, Houston Dairy, Inc. At the conclusion of plaintiff’s case, the Circuit Court Judge directed the jury to return a verdict for the defendant. From the final judgment entered, Huffman appeals.

The action was based upon the alleged negligence of the employer in failing in its duty to furnish. Huffman, its employee, with safe machinery with which to do his work. The defense was to the effect that the sole proximate cause of Huffman’s injury was his own negligence and that no negligence on the part of the employer had proximately caused or contributed thereto.

A detailed statement of the case made by plaintiff’s evidence is not deemed necessary here. It is enough to say that an examination of the record has convinced us that, assuming to be true all that the evidence proved or reasonably tended to prove, with such inferences as might reasonably be drawn from it, favorable to plaintiff, a sufficient case for submission to the jury was made out. It was error to direct a verdict for Houston Dairy in such circumstances.

In King v. Dudley, 286 So.2d 814 (Miss.1973), the rule was stated thus:

As stated in cases too numerous to require citation, the rule is that in ruling on a motion for a directed verdict the court must look only to the testimony in behalf of the party against whom the motion is made and when that testimony is considered as true, along with all reasonable inferences which could be drawn therefrom could support a verdict, then the directed verdict should not be given. And in such event, the motion should be overruled even though a verdict in favor of the party against whom the motion is made would be contrary to the overwhelming weight of the evidence. .

See also: Gates v. Murphree, 286 So.2d 291 (Miss.1973), Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896 (1933).

On the present record, the evidence would seem capable of supporting a jury finding of negligence on the part of one or both parties. In reversing and remanding the case for retrial it is not to be understood that it is intended to exclude the application by the jury of the doctrine of comparative negligence to the facts as they may be developed by the evidence on retrial.

Nor is the decision to be construed as foreshadowing any particular view as to what the ultimate outcome of the case should be. It extends no further than holding that this is a case in which the questions of negligence, contributory negligence and proximate cause are for the jury.

The case is reversed and remanded for a new trial in order that the issues of negligence, contributory negligence and proxi- . mate cause may be submitted to a jury for resolution.

REVERSED AND REMANDED.

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


author: PATTERSON, Chief Justice,

text:
    CAPITOL TOYOTA, INC., et al. v. Robert H. GERVIN.
    No. 51665.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied April 16, 1980.
    Fred A. Ross, Jr., Jackson, for appellants.
    Thomas Price, Alston, Jones & Davis, Thomas W. Tardy, III, Jackson, J. E. Ger-vin, Jr., Chattanooga, Tenn., for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Robert H. Gervin filed a bill of complaint in the Chancery Court of the First Judicial District of Hinds County alleging that Capitol Toyota, Inc.’s oppressive conduct in operating the corporation entitled him as a minority shareholder to dissolve the corporation pursuant to Mississippi Code Annotated section 79-3-193 (1972). The court below ordered dissolution. We reverse and remand.

In July 1972, Robert Coleman and Herbert Polk incorporated Capitol Toyota, Inc., a retail car dealership in Jackson, with Robert Gervin as general manager. At the outset Coleman, Polk and Gervin orally agreed that Gervin would obtain a 25% ownership interest in the shares authorized, with the balance divided between Coleman and Polk. In October 1974, the parties reduced their oral agreement into a formal writing which, though variously characterized by the parties on this appeal, appears to be essentially a contract, signed by Ger-vin, Coleman and Polk. It provides that Gervin’s 25% interest is subject to a condition, viz., that he be employed by Capitol at the time of the retirement of “all of [Capitol’s] indebtedness except current monthly trade accounts .payable.” The indebtedness consisted of an unsecured $115,000 note to Deposit Guaranty National Bank, .signed by Gervin, Coleman and Polk;

The intended effect of the agreement was to encourage Gervin’s continued service as general manager of Capitol while implicitly imposing a duty upon Coleman and Polk to retire the Deposit Guaranty note in keeping with their duty, arising from the contract, to cooperate in bringing about the occurrence of that condition. See Williston on Contracts, 3rd Ed. § 887, pp. 426 et seq. Much testimony indicates the agreement had its intended effect. The record reveals that Gervin’s management of Capitol was reasonably good, but not outstanding, and that he remained with Capitol until Novem.ber 30, 1976, when he was terminated by George Gear and Francis D. Hall to whom Coleman and Polk had previously “sold” the entire corporation and “assigned” the agreement of October 1974. Moreover, in January 1973, relying on the agreement and the probability that the indebtedness would be retired in due course, Gervin refused a prospective employer’s offer of a substantially higher salary than he was making at Capitol.

Testimony concerning the ability of Capitol to retire the indebtedness conflicted and is complicated, because Coleman and Polk, the parties in interest, other than Gervin, to the October 1974 agreement, admitted they had the personal ability to retire the indebtedness at any time. The fact of their ability appears clearly from Capitol’s unusual monthly expenditures for a yacht used by Polk for non-corporate purposes, as well as large bonuses and salaries paid from Capitol’s earnings for questionable services rendered by Coleman and Polk. We therefore conclude that the condition (i. e., employment at retirement of the indebtedness) to Gervin’s 25% ■ interest should not be considered an absolute requirement, but should be evalüated with less stringency dependent upon the existence of extenuating circumstances. Indeed, appellants have conceded in oral argument the issue should be resolved on basic contract principles.

In our opinion, Gervin should not be deprived of all interest in the stock.of Capitol even though he sought involuntary dissolution as a minority shareholder. Dissolution is an extraordinary remedy, to be sparingly administered in exceptional cases only. See, e. g., Exadaktilos v. Cinniminson Realty Co., Inc., 167 N.J.Super. 141, 400 A.2d 554 (1979); Fix v. Fix Material Co., Inc., 538 S.W.2d 351 (Mo.App.1976); Baker v. Commercial Body Builders, Inc., 264 Or. 614, 507 P.2d 387, 56 A.L.R.3d 341 (1973); Polikoff v. Dole & Clark Building Corp., 37 Ill.App.2d 29, 184 N.E.2d 792 (1962), noted, S1 Ill.B.J. 509 (1963). Under the circumstances so painstakingly reviewed in the briefs and revealed by the evidence, we find such exceptional factors lacking. In fact, we think to permit dissolution here would sanction retaliatory oppression of the majority by the minority, a result plainly contrary to the intended meaning of Mississippi Code Annotated section 79-3-193 (1972).

We find Exadaktilos v. Cinniminson Realty Co., supra, helpful in its reasoning opposing involuntary dissolution on the statutory ground of “oppression” where the complaining party’s reasonable expectations have been thwarted, but not grossly so. Here, we only cite the language .of the 1974 agreement reading “[i]f at any time after the . . . indebtedness ... is retired, and if [Gervin] ceases to be employed by Capitol Toyota, Inc., for any reason whatsoever, then [Coleman and Polk] agree ... to acquire said share of stock [25%] at book value,” and point to the evidence of Gervin’s inadequate management of Capitol, to justify our refusal to compel dissolution. We accordingly limit Gervin’s remedy to 25% of the book value of Capitol’s stock at the time of his termination on November 30, 1976.

We are puzzled by the holding of the court below that the October 1974 agreement was “vitiated” by Coleman and Polk’s attempt in 1976 to “assign ... all . rights . . . and obligations in” that agreement. We are of the opinion that the purported assignment operated as a delegation of performance of the 1974 agreement, making Gear and Hall answerable under it and leaving Coleman and Polk jointly and severally liable to Gervin as sureties by operation of law. Any question as to the rights and liabilities of Coleman, Polk, Gear and Hall inter se is not before us, and we therefore decline to reach it. In conclusion, we reverse and remand for further-proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record is replete with arguably supportable allegations of Gervin’s mismanagement, including high volume but low profit sales records, missing parts, under-billing for services, etc. Capitol’s profits increased remarkably following the Gear/Hall takeover, and it was at the time of trial financially healthy to say the least.


text:
    Clausen Cooper PEDEN v. Dorothy Lee PEDEN.
    No. 51775.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied April 16, 1980.
    Lomax B. Lamb, Jr., Marks, for appellant.
    Sullivan, Hunt, Spell, Henson & Chapman, Ralph E. Chapman, Clarksdale, -for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Coahoma County; Harvey T. Ross, Chancellor.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED, ON DIRECT APPEAL. AFFIRMED ON CROSS-APPEAL.

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


text:
    Doyle Gene JACKSON v. STATE of Mississippi.
    No. 51145.
    Supreme Court of Mississippi.
    March 26, 1980.

      ' Robert E. Farish, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Doyle Jackson was convicted in the Circuit Court of the Second Judicial District of Harrison County of burglary and sentenced as an habitual offender under Mississippi Code Annotated section 99-19-81 (Supp. 1979). He appeals and argues (1) the state adduced insufficient evidence to establish guilt, (2) the court erred in granting an instruction relating to the defense of intoxication, and (3) the court erred in considering a prior conviction, the sentence for which was suspended, for purposes of sentencing as an habitual offender.

Early on the morning of October 21,1977, Jackson broke the window of a Biloxi drugstore with a brick and entered the premises. Although he argues that his powers of perception were so tattered through the use of drugs that he was powerless to entertain the requisite specific intent to steal, he nevertheless was able to locate the drugs in the store and to take a large quantity of sodium seconal, a popularly-abused barbiturate. In response to his argument of mental incapacity to form a specific intent, the court granted the following instruction:

INSTRUCTION NO: COO
The Court instructs the Jury that before you may find the Defendant, Doyle Gene Jackson, guilty of Burglary, you must find beyond a reasonable doubt that he had the specific intent to commit such a crime. Therefore, if you find that the Defendant was under the influence of drugs at the time it is alleged that he broke and entered Eckerd’s Drug Store to •the extent that he was unable to form the specific intent to burglarize said store, and that he could not then distinguish right from wrong, then you cannot find him guilty of Burglary.
Provided, however, if you find that the Defendant, Doyle Gene Jackson, formed the specific intent to commit the burglary in question before he came under the influence of drugs to the extent that he was unable to have the specific intent to commit the crime of burglary, if you do so find, and then voluntarily came under the influence of drugs, his use of drugs is no defense.

We observe that Jackson’s in-court admission plainly suffices to establish his guilt of burglary beyond any reasonable doubt. As for his defense of intoxication, the court’s instruction, while not entirely free from ambiguity, phrases the relevant law more favorably to the accused than required by our decisions.

In McDaniel v. State, 356 So.2d 1151 (Miss.1978), we held:

[Voluntary intoxication by a defendant should not be permitted as a defense if . when sober, [he] is capable of distinguishing between right and wrong, and . . . voluntarily deprives himself of reason by intoxication, and commits an offense while in that condition. .
(356 So.2d at 1156)

Presently, we find the evidence insufficient to demonstrate inability of Jackson to distinguish between right and wrong before voluntarily depriving himself of reason by becoming intoxicated prior to committing the burglary. In any event, Jackson was not prejudiced by an instruction more favorable to him than required by law. We therefore reject this assignment of error.

The trial court held a distinct hearing following the jury’s guilty verdict on the underlying burglary offense to determine Jackson’s status as an habitual offender for sentencing purposes. Jackson’s prior convictions included burglary (sentence of eighteen months) and burglary/larceny and possession of controlled substance (sentence of three years on each count to run concurrently; probation granted with suspension of the three-year sentences). The two burglary convictions arose out of distinct incidents in Alabama. Our statute, Mississippi Code Annotated section 99-19-81 (Supp. 1979) follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Jackson argues the conjunctive phrasing “and who shall have been sentenced . . . ” evidences a legislative intent to include within the class of habitual offenders only those who have been twice convicted of distinct felonies for which penitentiary terms have not only been pronounced as punishment, but also served through actual incarceration. We reject this argument, because we think the statutory intention is satisfied where, as here, the accused has been twice previously adjudged guilty of distinct felonies upon which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension of the sentences.

We are of the opinion the statute is intended to cure the evil of recidivism. Enhanced punishment relates to the conduct underlying the previous convictions. Adjudication of guilt and consequent pronouncements of sentences merely accord those convictions finality. Subsequent suspension of the sentences or probation is a matter of grace only, arising from the hope that the prospects of rehabilitation of the guilty warrant leniency. Clearly that hope is defeated when the beneficiary of the indulgence perpetrates further felonies. . The statute is suited precisely to this problem. See State v. Larranaga, 77 N.Mex. 528, 424 P.2d 804 (1967); Tanzer v. United States, 278 F.2d 137 (9th Cir. 1960); Dean v. Skeen, 137 W.Va. 105, 70 S.E.2d 256 (1952), annotation 31 A.L.R.2d 1180; Ex Parte Farr, 87 Okl.Cr. 411, 198 P.2d 748 (1948); People v. Rave, 364 Ill. 72, 3 N.E.2d 972 (1936); State v. Olson, 200 Iowa 660, 204 N.W. 278 (1925).

We note that the minutes of the Circuit Court of Etowah County, Alabama, state, “the defendant [Doyle Gene Jackson] , is hereby sentenced to imprisonment in the penitentiary of the State of Alabama for a term of three (3) years . . . ” (emphasis supplied). At the bottom of the same page of minutes the addendum appears: “And the defendant applies for probation.” The sentence has a sense of finality, notwithstanding the reference to Jackson’s application for probation. We therefore affirm Jackson’s sentence of seven years as an habitual offender.

AFFIRMED.

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


text:
    WILLIAM W. BOND, JR. & ASSOCIATES, INC. v. LAKE O’THE HILLS MAINTENANCE ASSOCIATION.
    No. 51673.
    Supreme Court of Mississippi.
    March 26, 1980.
    Austin & Branan, D. Pace Branan, Her-nando, for appellant.
    Joel P. Walker, Jr., Hernando, for appel-lee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

Lake O’The Hills Maintenance Association filed suit in the Chancery Court of DeSoto County to enforce a lien against seven lots owned by the defendant, William W. Bond, Jr. & Associates, Inc., a Tennessee corporation. Defendant has appealed from the decree ordering the sale of the property to satisfy a lien on the lots owned by defendant.

In 1965, defendant purchased seven lots from Walkem Development Company of Mississippi, Inc. Defendant’s deed recited that the lots were a part of the Lake O’The Hills Subdivision and subject to the restrictive covenants of the subdivision and to certain covenants, limitations, and restrictions which were to run with the land. The deed then provided that each owner was to have a membership in the Lake O’The Hills Maintenance Association, a non-profit corporation, created for the purpose of maintaining the lake, dam site, drives and other common areas. Each member was subject to an annual assessment by the Association for the maintenance of the dam, dam site, lake and other common areas in the subdivision of which the property was a part. The deed provided that any unpaid annual assessment would constitute a lien on the property collectible by an action at law or by a proceeding in equity.

Complainant filed its suit on May 27, 1976, and alleged that defendant failed and refused to pay dues as follows:

Lot 378 - Dues for years 1974, 1975 and 1976 at $25.00

per year.$ 75.00

Penalty. . 32.00

Interest . 4.50

Total.$111.50

A similar allegation was made for each of the six remaining lots owned by defendant. The parties stipulated that defendant paid the annual assessment on each lot for the years 1966 through 1973, refused to pay the assessments for the years 1974, 1975 and 1976 and the assessment, interest, and penalty as set out in the bill of complaint was computed correctly according to the by-laws of the Association. The parties also stipulated that the annual assessment from 1963 until 1967 was $15.00 annually on each lot, and increased to $25.00 on each lot in 1967.

The chancellor held that the annual assessment for the stated purposes was a covenant running with the land. We affirm the chancellor on the authority of Mendrop v. Harrell, 233 Miss. 679, 103 So.2d 418, 68 A.L.R.2d 1013 (1958), where we held that a covenant imposing a burden will run with the land as readily as one conferring a benefit.

In the first and fourth assignments of error, defendant contends that complainant is not entitled to recover because of the statute of frauds. Section 15-3-1 Mississippi Code Annotated (1972). Defendant’s argument of error is twofold. First, defendant asserts that it has not signed a writing binding itself to pay the annual assessments, and second, the amount of the annual assessment for maintenance is not set forth in the deed.

When defendant purchased the lots the deed under which it obtained title provided that defendant was required to pay an annual assessment to the Association which was a covenant running with the land. Defendant accepted the conveyance subject to the protective covenants on the recorded plat of the subdivision and is thereby bound by the covenants, limitations, and restrictions therein. Defendant may not claim the benefit conferred upon it by the deed and renounce the covenant running with the land under the guise that the statute of frauds protects it because it has not signed a writing agreeing to pay the annual assessments. We held in Men-drop v. Harrell, supra, that covenants running with the land are binding on subsequent purchasers, and if binding on the subsequent purchasers, certainly such covenants are binding on the original purchaser. We therefore conclude that the statute of frauds has no application to a covenant running with the land even though the covenant imposes a burden on the land.

In its second argument under these two assignments of error, defendant seeks to invoke the statute of frauds on the ground that the deed does not fix the amount of the annual assessments nor the date when the payment is due. The deed provides in section 3 that, “The property herein conveyed is subject to an assessment by the Lake O’The Hills Maintenance Association of $_ on an annual basis, for its fiscal year ending March 31,19-, and thereafter for the same amount annually until changed by a majority of the total votes eligible to be cast by the members of the Association ... . ”

The deed also provides that the assessment shall be due and payable as the board of directors shall determine. The by-laws referred to in the deed were made a part of the record by stipulation and provide for meetings, a board of directors, officers, defines the duties of the officers of the Association, and provides for dues and assessments against the lots in such amounts as the members may assess from time to time by a majority of the total votes eligible to be cast.

In Mendrop v. Harrell, supra, we held that a lien should be placed upon two lots for paving costs even though the amount of the cost of paving was not inserted in the deed. In this case, it is clearly evident from the deed that the common property of the Association in the subdivision was to be maintained by assessment of annual dues. We hold that the failure to insert the amount and due date of the annual assessments in the deed did not excuse defendant from paying the amount assessed, and the statute of frauds has no application.

In its third assignment of error defendant stated: “It is impossible for the Appellants to determine whether in fact the lots are to be sold for only the back assessments, or whether penalty and interest is charged.” Defendant also argued under this assignment of error that the final decree is incomplete because it is silent as to the time and manner of sale of the property and does not fix a date for confirmation of the sale.

The decree recites the following:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that a lien is hereby placed on Lots 378, 379, 380, 381, 382, 383, and 384 of Section A, Lake of the Hills Subdivision as recorded on Plat Book 2, Pages 29 — 33 in the Chancery Clerk’s Office of DeSoto County, Mississippi located in Section 20, Township 3, Range 9 West.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the lots shall be sold and money received from the sale and applied for the satisfaction of the lien for the back annual assessments due up until the date of this decree.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all costs shall be assessed to the Defendant.
For the collection of all amounts and the accomplishment of all things ordered to be paid and done herein, let execution and all other appropriate process issue.

We agree with defendant in its first argument under this assignment of error that it is impossible to determine from the decree whether the court impressed a lien only for the amount of the assessment or whether penalty and interest were included in the decree. We further note that the suit was for annual assessments for three years but the decree provided for a lien for annual assessments up to the date of the decree which was December 18, 1978. The decree placed a lien on the seven lots for the annual assessments for the years 1977 and 1978, but the bill of complaint did not allege that the assessments for these years had not been paid and did not seek recovery for these years.

We must reverse because the decree in this case does not set forth with reasonable certainty the amount of the lien assessed against the property of the defendant. This is in accord with the statement of Justice Griffith in Mississippi Chancery Practice where he stated:

A reasonable certainty and a fair precision are elemental requirements entering into all the important parts of judicial procedure, and obviously the requirement is equally obligatory as to decrees. There must in all respects be a clear and unambiguous certainty in all the provisions of a decree so that every party thereto may know exactly what he is to do in obedience to it and that all may safely perform its terms as written; and particularly must this be true when the decree is framed to meet the exigencies of a complicated situation wherein misunderstanding might easily arise. It should be complete within itself, — containing no extraneous references, and leaving open no matter or description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with the execution of the decree, and even as to matters solely affecting the execution, if their nature be such as is likely to eventuate in dispute, reservation for further directions should be made if impossible safely to do otherwise. (§ 625 at 714).
Where a decree in chancery is rendered for the recovery of money it must be for a sum certain, based on evidence reasonably sufficient to show the sum due. The amount cannot be arrived at by, nor left to, mere conjecture, nor by recourse to anything extrinsic. And it must provide, in order to have execution, some person to whom the money is to be paid, and if necessary so to do the court will appoint the clerk or a master for that purpose. (§ 626 at 715).
Where a sum is found due by a party which is made a charge on the property involved, the decree must adjudicate and declare the amount of the debt, — otherwise a greater amount of property might be sold than was necessary to pay the debt, — and the decree should fix a reasonable time within which the payment should be made in default of which the property will be ordered sold by a commissioner of the court; . . . (§ 625 at 716).

We held in Dixie National Life Insurance Co. v. Allison, 372 So.2d 1081 (Miss.1979) and in Norris v. Norris, 157 Miss. 457, 128 So. 342 (1930) that a decree in chancery must be characterized by a reasonable certainty in its terms, and this is particularly true in respect to those provisions which fix the rights and liabilities of the respective parties. The decree does not meet this test because the amount of the lien was not set forth therein*

Defendant’s second argument under its third assignment of error that the decree is unenforceable because it failed to fix the time and terms of sale is without merit because section 11-5-93 Mississippi- Code Annotated (1972) provides in part the following:

Every sale of real estate ordered by a decree of any court of chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree; and if direction be not given, at such place and on such notice as is required in case ■ of sales of land under ■execution at law .

We reverse and remand with directions to the chancellor to determine the amount of the lien impressed on the property. This reversal is without prejudice to the complainant to amend and seek recovery for all annual assessments accrued and unpaid at the time of filing its amendment, if any.

Defendant argues in its second assignment of error that the provision in the by-laws of the association for a penalty of $1.00 per month to be charged to any lot owner for each month he is delinquent in payment of his annual assessment is usurious. We do not reach this question because, as heretofore noted, we are unable to determine whether the chancellor included the $1.00 per month penalty in the amount of the lien to be affixed on the property.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

COFER, J., takes no part.