text:
    LOUISIANA DIVISION OF the HORSEMEN’S BENEVOLENT AND PROTECTIVE ASSOCIATION et al. v. LOUISIANA STATE RACING COMMISSION et al.
    No. 11584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.

      Salvador Anzelmo, New Orleans, for plaintiffs-appellees.
    John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendants-appellants.
    Edward J. Rice, Jr., Oscar L. Shoenfelt, III, New Orleans, for intervenors-appel-lants.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

The Louisiana Division of the Horsemen’s Benevolent and Protective Association (HBPA), several owners of thoroughbred horses racing in Louisiana, individually and as directors or officers of the HBPA, and Jack DePee, individually and as President of the HBPA, filed a petition for an injunction with the Civil District Court for the Parish of Orleans, naming as defendants the Louisiana State Racing Commission (Commission), its chairman! its members, and its stewards. Petitioners sought to enjoin the enforcement of an amendment to LAC 11-6:20.13 of the Rules of Racing. Passed on February 6,1979 this amendment increased fees to be paid jockeys for their services when riding horses in races in Louisiana. Several licensed Louisiana jockeys intervened in the lawsuit in opposition to the petition for injunction. The defendants excepted to the petition on the grounds that plaintiffs have no right of action and/or have failed to state a cause of action, based upon plaintiffs’ failure to allege compliance with Section 963 of the Administrative Procedure Act, R.S. 49:951 et seq., which section states the prerequisites to an action for a declaratory judgment as to the validity or applicability of an administrative rule. The matter was heard and submitted on stipulation of the facts and evidence. The district court, pursuant to written reasons, overruled the exceptions filed by the defendants and ordered a permanent injunction prohibiting the defendants from any implementation and/or enforcement of LAC 11-6:20.13 of the Rules of Racing. A suspensive appeal, returnable to the Supreme Court, was granted the defendants and the intervenors. The Supreme Court determined to treat the appeal as an application for a remedial writ, which was granted, and the case was transferred to this court. 383 So.2d 790, Art. 5, § 5(D), La.Const. (1974).

The district court found that the jockey mount fee schedule is, in fact, a minimum fee schedule and found that the Commission itself interprets it as such. The court stated that there was no legislative authorization for the Commission to adopt a rule establishing any fee, except for certain license fees, and determined that such establishment would be too broad a power to be derived from the general statutes authorizing the business of horse racing in Louisiana. The district court stated in support of its decision that the Due Process Clauses of the Louisiana and United States Constitutions preclude establishment of minimum wages without specific legislative authority. We disagree.

The issues very similar to those presented in the instant litigation have been addressed in several of our sister jurisdictions. As to be expected, the results differ. In Gilligan, et al. v. Pennsylvania Horse Racing Commission, et al. (No. 69) and Jockey’s Guild, Inc., - Pa. -, 422 A.2d 487 (1980), and Colella v. State Racing Commission, 360 Mass. 152, 274 N.E.2d 331 (1971), the courts determined that the enactment of a rule designating jockey fees in the absence of contract was within the agencies’ general grant of authority. However, in Chicago, Div. of Horsemen's B. & P. Ass’n v. Illinois Racing Board, et al., 53 Ill.2d 16, 289 N.E.2d 421 (1972), the court held that it was not. For reasons hereinafter stated, we conclude that the Louisiana Racing Commission is vested with such authority.

Plaintiffs challenge the constitutionality of the jockey mount fee schedule on the grounds that (a) it denies owners and trainers equal protection of the law because the fees payable to other permittees and/or other persons licensed by the Commission are not regulated by the Commission; (b) it denies owners and trainers equal protection of the law because it abridges or interferes with their freedom of contract; (c) it deprives owners and trainers of their property and freedom to contract in violation of due process; and (d) the Commission has no authority under R.S. 4:141 et seq., to fix jockey mount fees. In the alternative, plaintiffs contend the legislature cannot give power to the Commission to set jockey mount fees without establishing certain controls or standards for the exercise of such authority.

Act 276 of 1940, R.S. 4:141 et seq., legalized public parimutuel wagering when conducted within an enclosure where horse races have been licensed by the Louisiana State Racing Commission. Gandolfo v. Louisiana State Racing Commission, 227 La. 45, 78 So.2d 504 (1954). The pertinent statutes have been supplemented, amended, and reenacted by many acts of the legislature, including Acts of 1956, 1964, 1968, 1973, 1974, 1976, 1977, 1978 and 1979. Section 141 of Title 4 of the Revised Statutes sets forth the legislative intent and policy in this area. Section 142 states the purpose of the racing law.

The Racing Commission is charged to carry out the racing law in Section 147, the pertinent provisions of which read as follows:

“The commission shall carry out the provisions of this Part, including the following specific duties:
******
“(6) To make rules and regulations for the holding, conducting, and operating of all race tracks, race meets, and races held in Louisiana, provided such regulations are uniform in their application and effect.”

Prior to its amendment in 1978 Section 148 set forth an illustrative list of fifty-four specific items for which the Commission was charged with making rules, regulations, and conditions. This section now reads:

“The commission shall make rules, regulations and conditions for the holding, conducting and operating of all race tracks, race meets and races held in this state and for the conduct of the racing industry of this state under this Part. Special rules, regulations and conditions may be promulgated separately for thoroughbred racing and for quarter horse racing. Said rules, regulations and conditions shall be consistent with this Part and provide for and deal with all matters necessary to the holding of such race meetings.”

The evidence shows that at least since 1955 the Commission has promulgated Rules of Racing containing a provision for fees to be paid jockeys riding in races. From 1955 through 1971 the pertinent provision read as follows:

“In the absence of a specific contract to the contrary, the following jockey fees shall apply: * * *” (a particular jockey mount fee schedule.)

The present rule, LAC 11-6:20.13, provides:

“The fee to a jockey in all races shall be deposited with the horsemen’s bookkeeper in advance and shall be, in the absence of special agreement, as follows: * * *” (a particular jockey mount fee schedule.)

Louisiana Civil Code Article 13 states:

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

Accepting as a fact that the jockey mount fee schedule is customarily interpreted by persons in the horse racing business as a “minimum fee” schedule, the clear and unambiguous wording of LAC 11-6:20.13 is otherwise. The rule unequivocally provides that the schedule shall only apply in the absence of a specific agreement or contract to the contrary. Regardless of the customary interpretation placed upon the rule, following the precept of C.C. art. 13 and noting that the rule has been worded substantially the same since 1955, this court concludes that no “minimum fee” schedule is set by LAC 11-6:20.13. If persons in the horse racing business interpret the rule as such, they do so without legal compulsion. So long as the jockey mount fee schedule allows the horse owner and the jockey to reach their own compensation agreement, there cannot be a deprivation of due process under the Fourteenth Amendment of the federal constitution or under Article 1, Section 2 of the state constitution.

Plaintiffs contend that the fee schedule violates the equal protection provision of the state and federal constitutions and the state constitution’s prohibition against special laws. Parties similarly situated (licensees and permittees under the racing law) are treated differently under LAC 11-6:20.-13; jockeys are afforded a fee schedule in the absence of a contract or agreement with the horse owner, while other licensees and permittees are not so treated.

The Supreme Court in Everett v. Goldman, 359 So.2d 1256 (La.1978), addressed an equal protection challenge to the Medical Malpractice Act at 1265:

“Both the federal constitution and the Louisiana constitution mandate equal protection of the laws. U.S.Const. fourteenth amend.; La.Const., art. I § 3. Under traditional analysis this constitutional guarantee means that separate classifications are invalid in circumstances where it is not demonstrable that a ‘compelling governmental interest’ exists (Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 [1969]) when the law violates a ‘fundamental’ interest (Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 [1974]); or when a law is based upon a trait which renders it ‘suspect’ (San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 [1973]). But in all cases where separate classifications are at issue, ‘the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.’ Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972); see Succession of Robins, 349 So.2d 276 (La.1977). Stated another way, the issue in cases where no fundamental right or suspect classification is present is whether the discriminatory treatment is supported by any rational basis reasonably related to the governmental interest sought to be advanced by it. Succession of Robins, supra.

The court goes on to say at 1266:

“But the statute does not affect fundamental rights or create a suspect classification. Fundamental rights include such rights as free speech, voting, interstate travel and other fundamental liberties. See Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); compare San Antonio Independent School District v. Rodriquez, supra. Suspect classifications are those involving such unalterable traits as race, alienage and religion. Chabert v. Louisiana High School Athletic Ass’n., 323 So.2d 774 (La. 1975).”

The right to be assured a prescribed fee for services in the absence of a fee agreement for such services is not a fundamental right. Neither is the class of licensee or permittee under the racing law comprising “jockeys” a suspect classification. It merely differentiates those persons mounting horses in races from other persons in the racing business. “Thus, because the ‘compelling state interest’ test is not appropriate in this case, a lesser standard must be utilized. Under this lesser standard, the thrust of our inquiry becomes this: what valid state purpose is reasonably furthered by this legislative classification.” Everett v. Goldman, above, at 1266.

The valid state purpose said to be served by the rule providing a jockey mount fee schedule is to promote the orderly conduct of horse racing by preventing conflict and disagreement between horse owners and jockeys. Having a predetermined jockey mount fee schedule allows the race to proceed in an orderly and timely fashion when, for various reasons, there has not been time for a particular horse owner and jockey to reach a compensation agreement. There is no evidence to show that lack of a fee schedule for other licensees or permit-tees, as listed in R.S. 4:169, tends to disrupt the orderly conduct of racing. On the other hand, there is uncontroverted testimony to show such possible disruption in the case of jockeys. Because the rule in question is rationally related to an appropriate governmental interest under R.S. 4:141 and 142, the orderly conduct of horse racing, LAC 11-6:20.13 does not violate federal or state equal protection.

Art. 3, § 12, La.Const. (1974) prohibits certain special or local laws. Plaintiffs contend that the jockey mount fee schedule violates this article, which provides in pertinent part as follows:

“Except as otherwise provided in this Constitution, the legislature shall not pass a local or special law:
* * * * * *
(6) Regulating labor, trade, manufacturing, or agriculture; fixing the rate of interest .... ”

The Supreme Court addressed constitutional challenges to a statute relating to certain court clerks and constables in Davenport v. Hardy, 349 So.2d 858 (La.1977). The court distinguished “general” laws from “local or special” laws at 863, as follows:

“We held in State v. Clement, 188 La. 923, 178 So. 493 (1938), that a ‘general’ law is one which operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides, or one which operates equally upon all of a designated class, founded upon a reasonable and proper classification. A ‘local’ or ‘special’ law is one which because of its restrictions can operate upon or affect only a portion of the citizens, or a fraction of the property embraced within the classification created.”

The court in Davenport v. Hardy, supra, then quoted from its decision in Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), as follows in pertinent part:

“In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons.”

In the instant case LAC 11-6:20.13 operates equally and uniformly upon all jockeys mounting horses in races in the state. Having found the rule’s classification of jockeys, as opposed to other licensees and permittees, to be reasonable, the rule applies to a “general” class, rather than a “special” one. The rule secures no private advantage for the benefit of certain jockeys, as opposed to other jockeys, and therefore is not prohibited by Art. 3, § 12 of the state constitution.

There can be no question that the legislature had the power to delegate to the Commission the power to adopt reasonable regulations it believed necessary for implementing the legislative purpose. As the Supreme Court in Johnson v. Pearce, 313 So.2d 812 (La.1975), stated at 818:

“This delegation is not a delegation of legislative power. The legislature has merely committed to a board of men with expertise the duty of drafting and revising rules and regulations as may be found necessary according to the times and circumstances. Isenhour v. State, 157 Ind. 517, 62 N.E. 40, 87 Am.St.Rep. 228 (1901).”

The court in Johnson v. Pearce, supra, quoted the United States Supreme Court in United States v. Rock Royal Co-operative, 307 U.S. 533, 574, 59 S.Ct. 993, 1013, 83 L.Ed. 1446, 1470 (1938), at 819, as follows:

“From the earliest days the Congress has been compelled to leave to the administrative officers of the Government authority to determine facts which were to put legislation into effect and the details of regulations which would implement the more general enactments. It is well settled, therefore, that it is no argument against the constitutionality of an act to say that it delegates broad powers to executives to determine the details of any legislative scheme. This necessary authority has never been denied.”

By granting “full powers” to the Commission in R.S. 4:141 the legislature intended to grant the broadest power possible. Again, by instructing the Commission in R.S. 4:148 to provide for and deal with “all matters”, the legislative intent to grant broad powers is evidenced. Having defined its policy to promote the business of horse racing and to institute and maintain a regulatory program for that business, the State, acting under its police powers to promote the public health, safety, and welfare, has validly empowered the Commission to adopt rules and regulations to effectuate the legislative will. R.S. 4:141 et seq. See Johnson v. Pearce, supra, at 819 and cases cited therein.

As mentioned above the legislature has seen fit to supplement, amend, and reenact the racing law, R.S. 4:141 et seq., many times since 1955, the earliest year the jockey mount fee schedule appears in evidence. If the legislature had not intended the Commission to adopt this particular rule it is reasonable to assume that the legislature would have amended the racing law so as not to permit it. See Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976). Instead, the rule has not been challenged legislatively or judicially until plaintiffs instituted the present suit. In fact, the evidence shows the jockey mount fee schedule has been relied upon by horse owners and jockeys alike in this state for well over twenty years.

In Schwegmann Brothers Giant Super Markets v. McCrory, 237 La. 768, 112 So.2d 606 (1959), the Supreme Court addressed the question of unlawful delegation of legislative power to an administrative agency. In upholding a broad grant of power against a challenge based upon lack of legislative control the court stated at 615:

“An Act of the Legislature is presumed to be legal until it is shown to be unconstitutional, and the lawmakers would indeed be hard put to draft legislation were it necessary to cover every conceivable contingency or to foresee and prohibit acts of an irresponsible administrator. The purpose and intent of the subject statute is clearly expressed, and the Commissioner of Agriculture, specifically declared to be the instrumentality of the State for the purpose of administrating its provisions, is given the duty ‘to execute the legislative intent herein expressed.’ ... We therefore think that the objections raised by plaintiff on the ground that the Act unlawfully delegates legislative power in certain of its provisions are without merit. The authorities cited in support are distinguishable for various reasons, and in view of our further conclusions set out below are not controlling here.”

We are of the opinion that the legislative delegation of authority to the Commission includes the power to adopt a rule fixing a jockey mount fee schedule. It is inconceivable to expect the lawmakers to legislate detailed rules and regulations in every area of legislative interest. In R.S. 4:141, et seq., the legislature fixes the intent and policy of the racing laws. Its responsibility to fix policy has not been delegated to the Commission. The legislature has delegated to the Commission only the “ ‘power to fill up the details’ by prescribing administrative rules and regulations .... ” United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S.Ct. 42, 44, 77 L.Ed. 175 (1932), as quoted in Johnson v. Pearce, above at 819.

Accordingly, we reverse the judgment of the district court which granted plaintiffs a permanent injunction and dismiss this suit at plaintiffs-appellants’ costs.

REVERSED IN PART AND REMANDED.

      . R.S. 4:141 reads:
      “It is the policy of the state of Louisiana in furtherance of its responsibility to provide revenues for the operation of state government for its people, to acknowledge and declare that the providing of funds and financial assistance to licensed horse racing tracks in the state of Louisiana constitutes an authorized public function and purpose of the state of Louisiana, to encourage forceful and honest statewide control of horse racing for the public health, safety, and welfare by safeguarding the people of this state against corrupt, incompetent, dishonest and unprincipled horse racing practices:

        “(1) To institute and maintain a program to encourage and permit development of the business of horse racing with pari-mutuel wagering thereon a high plane.
      “(2) To institute and maintain a program to encourage and permit development of the breeding and ownership of race horses in the state.
      “(3) To institute and maintain a regulatory program for the business of racing horses, which program assures the protection of public health, safety and welfare, vesting with the commission forceful statewide control of horse racing with full powers to prescribe rules and regulations and conditions under which all horse racing is conducted with wagering upon the result thereof with the state.
      “(4) To institute and maintain a program to provide financial assistance that will encourage and permit the development of the business of horse racing by licensed horse racing tracks in the state of Louisiana.
      “(5) To institute and provide a program for the regulation, ownership, possession, licensing, keeping, and inoculation of animals on premises under its control and supervision not inconsistent with the rules and regulations of the state livestock and sanitary board.
      “This Chapter is an exercise of the police powers of the state to promote the public health, safety and welfare.”

      . R.S. 4:142 reads:
      “It is the purpose of this Chapter to effectuate the policies set forth in R.S. 4:141 by providing for:
      “(1) A program to permit maximum development of the business of horse racing with pari-mutuel wagering thereon.
      “(2) A program to permit maximum development of the breeding and ownership of race horses in this state.
      “(3) A program of effective regulation of the business of horse racing and to promote the orderly conduct of horse racing.
      “(4) A program to authorize and establish procedures for assumption and performance of certain regulating responsibilities in connection with and the licensing, by conferring such privilege to persons, corporations or associations possessed of the personal, professional and business qualifications specified in this Chapter and for the withdrawing of such privileges.”


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Eunice Breaux PEOPLES, Plaintiff-Appellee, v. Eula Breaux GUIDRY, Defendant-Appellant.
    No. 7798.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Funderburk & Conque, J. Isaac Funder-burk, Abbeville, for defendant-appellant.
    Thompson & Sellers, Roger C. Sellers, Abbeville, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is a declaratory judgment action wherein Eunice Breaux Peoples seeks to have the court recognize that the two adjacent tracts of land, owned by her and defendant, Eula Breaux Guidry, contain equal acreage. Plaintiff also asks for the cancellation of a survey recorded by defendant. Plaintiff further seeks damages and attorney’s fees. The trial court rendered judgment declaring the area of the two tracts of land equal and further ordered the cancellation of the survey. Damages and attorney’s fees were denied. Defendant appeals. Plaintiff answered the appeal seeking damages.

The sequence of events which gave rise to this suit is as follows:

On November 1, 1937, the widow of Felix Breaux and their six children entered into an agreement partitioning land belonging to the Felix Breaux estate. The partition was entered into pursuant to a plat which purported to divide the property into twelve equal lots, each designated as containing 20.10 acres. Through this partition agreement, Joseph Breaux (father of plaintiff and defendant herein) acquired Lot No. 6. In 1966, Joseph Breaux, as legatee of his mother’s succession, acquired Lot No. 6A as designated by the 1937 plat. Joseph Breaux died in 1973, leaving a will wherein he left Lot 6 to defendant and Lot 6A to plaintiff. The plaintiff and defendant accepted the succession of their father unconditionally and were placed into possession of the lots in accordance with the will.

In 1974, plaintiff requested J. E. Schex-naider and Associates to survey Lot 6A that she had inherited from her father. This survey reflected that the lot contained 19.-054 acres instead of the 20.10 acres as set out in the 1937 plat.

A second survey was ordered in 1975 by defendant which reflected that the acreage in defendant’s Lot 6 was 21.698 acres instead of the 20.10 acres as set out in the 1937 plat.

The discrepancy in the area of the lots, as reflected in a comparison of the 1937 plat and the Schexnaider plat, stems from the fact that the 1937 survey erroneously located a rectangular two acre tract owned by the Southern Pacific Transportation Company. This plat showed the Southern Pacific property to be located along the North line of Lot 6. The 1975 Schexnaider plat shows the Southern Pacific property to be slightly more than two acres, irregular in shape and bordering on the North lines of both Lots 6 and 6A.

For a clearer picture of the discrepancy, we reproduce the two surveys showing the location of the Southern Pacific property on each plat:

The relocation of the Southern Pacific property had the effect of increasing the acreage in Lot 6 and decreasing the acreage in Lot 6A. This discrepancy brought about the dispute and, thus, this suit ensued.

Two assignments of error are presented for disposition:

(1) “The Trial Court committed reversible error in holding that Lots 6 and 6 A were intended and presumed to be equal in size;” and
(2) “The Trial Court committed reversible error in failing to apply the law of the State of Louisiana as it relates to the burden of proof placed upon a plaintiff in an action to quiet title.”

In our endeavor to resolve the first issue of whether Lots 6 and 6A should contain equal acreage, we find that a very similar issue was faced by this court in the case of Sagrera v. Mouton, 180 So.2d 775 (La.App. 3rd Cir. 1965), writs ref’d, 248 La. 797, 182 So.2d 73 (1966). In that case the State of Louisiana sold several tracts of land at public auction. Prior to the sale, the State had prepared a plat showing the tracts which were designated “Item 1” through “Item 48.” Each prospective purchaser had access to the plat which reflected each “Item” and the specific acreage of each. The plat erroneously located a state highway which traversed the area. A later survey showed that the true location of the highway was approximately one-quarter of a mile east of the location shown on the earlier plat. The correction of the error on the plat would have had the effect of reducing the acreage purchased by the plaintiff and increasing the acreage purchased by defendant.

The court was faced with the issue of whether the true location of the highway or the erroneous location of the highway should control in determining what property plaintiffs acquired. After a thorough review of the jurisprudence on this subject matter, the court concluded that the controlling consideration in these cases is the intention of the party or parties. The court pointed out that the sale by the State was made by reference to a plat and the court presumed that the parties intended to convey or acquire property as shown by that plat even though the location of the highway was erroneously shown thereon. Also, the court pointed out that the specific acreage of each “item” was shown on the plat which acreage the State intended to sell and the purchasers intended to buy.

The court held that the property of the plaintiffs and that acquired by the defendants was to be fixed according to the line shown on the original State plat rather than the true location of the highway.

As we apply these principles to the case at hand, we conclude that the trial court correctly declared Lots 6 and 6A to be equal in size.

The partition of 1937 was a division of property between the widow of Felix Breaux and their six children. The 1937 plat divided the Breaux property into twelve equal lots, each lot designated as containing 20.10 acres. In the partition, the widow acquired six of these lots and each child acquired one lot each. This division gave the widow one-half of the property and each of the six children received one-sixth of the remaining one-half. According to the plat, each child received an equal share.

The widow of Felix Breaux died testate in 1966. According to her will, each of the six children was placed in possession of one of the lots that the widow had acquired in the 1937 partition. Again the description of each of the lots was designated as containing 20.10 acres, as set forth in the 1937 plat. Joseph Breaux, father of plaintiff and defendant, acquired Lot 6A from this succession.

Joseph Breaux died in 1972. Pursuant to his will, the plaintiff was placed in possession of Lot Number 6A, according to the plat of 1937 as containing 20.10 acres. Defendant was placed in possession of Lot Number 6, according to said plat as containing 20.10 acres.

It is undisputed that the 1937 plat is erroneous in its location of the Southern Pacific property. The question then arises as to whether the true location of the Southern Pacific right of way or the erroneous location thereof should control the amount of property the parties acquired.

The trial court, in its reasons for judgment, cited the Sagrera case and reasoned as follows:

“The Court accepts as proven the intent of the parties to the 1937 partition as being to divide the land into equal shares of 20.10 acres. This is important in light of Sagrera v. Mouton. 180 So.2d 775 (3rd Cir. 1965) in which the Appellate Court agreed that the intention of the parties is the controlling consideration in matters relating to a boundary’s position.
“Therefore, it is the finding of this Court that lots 6 and 6A from the time of partition were intended and presumed to be equal in size.”

We fully agree with this conclusion of the trial court. In the 1937 partition agreement and the succession proceedings heretofore discussed, the respective parties acquired these two tracts, Lots 6 and 6A, according to the 1937 plat which specifically designated each lot to contain 20.10 acres. By this means, the parties have consistently treated and intended that these two lots were of equal size. Under Sagrera, the intention of the parties is controlling. We hold that the circumstances presented reflect a clear intention that the plaintiff and defendant were each to acquire an equal area of property through their inheritance of Lots 6 and 6A.

Defendant further contends, by assignment of error, that this action should be regarded as an action to quiet title and, as such, plaintiff has the same burden of proof as would be present in a petitory action. Thus, she contends that plaintiff failed to prove a perfect title or a title better than that of the defendant as required by LSA-C.C.P. art. 3653, which provides:

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

This contention is without merit.

It is well settled that where a defendant and plaintiff derive their title from a common author, the defendant cannot assail the title of the plaintiff beyond such common author. Henderson v. Henderson, 8 So.2d 133 (La.1933). In this instance, both plaintiff and defendant derive their titles from a common author, their father, by a judgment of possession introduced into evidence. Thus, if we were to treat this as an action to quiet title, the defendant could not attack plaintiff’s title under these circumstances.

The plaintiff, by answer to the appeal, contends that the trial court erred by finding that plaintiff was due no damages. We have reviewed the record and agree with this conclusion of the trial court.

The trial court further ordered the clerk of court to cancel the 1975 plat that had been prepared by Schexnaider at the defendant’s request. We hesitate to order the cancellation of the survey as we find no authority for doing so. Cancellation of certain encumbrances, such as mortgages, judgments and mineral leases, by the clerks of court, is specifically authorized by statute. LSA-R.S. 9:5161 et seq. We find no authority for the cancellation of surveys, however, even though they may be deemed erroneous. Without such authority, we must set aside the trial court’s order of cancellation of the survey.

In conclusion, we hold that the two tracts of land in question contain equal acreage. We further conclude that, in order to finalize the dispute herein, another survey must be made for the purpose of establishing the common boundary line between Lots 6 and 6A which will reflect that, after the correction of the erroneous location of the Southern Pacific property, Lots 6 and 6A contain equal acreage. We shall remand for that purpose.

For the foregoing reasons, we affirm the trial court’s'judgment which declares that Lots 6 and 6A, owned by the parties, are equal in acreage. We also affirm the trial court’s denial of damages and attorney’s fees to plaintiff.

IT IS ORDERED that the portion of the judgment ordering the cancellation of the survey recorded by defendant is hereby reversed and set aside;

IT IS FURTHER ORDERED that the suit is hereby remanded to the district court for the purpose of appointing a qualified surveyor who shall conduct a survey of Lots 6 and 6A in accordance with the views expressed herein.

IT IS FURTHER ORDERED that after the survey is completed, the district court shall hold a hearing to determine the correctness of the survey. If the court finds that the survey is correct, judgment shall be rendered recognizing the ownership of the parties hereto, all in accordance with law and the views expressed herein.

Defendant is to pay costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . This jurisprudential rule recently became statutory by the enactment of Article 532 of the Civil Code which became effective January 1, 1980.


author: LEE, Justice,

text:
    Crawford BULLOCK, Jr. v. STATE of Mississippi.
    No. 51937.
    Supreme Court of Mississippi.
    Aug. 6, 1980.
    Rehearing Denied Jan. 14, 1981.

      Bell & Brantley, Don H. Evans, Robert J. Brantley, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Edward Peters, Dist. Atty., Jackson, for appellee.
   LEE, Justice,

for the Court:

Crawford Bullock, Jr. was indicted at the November 1978 Term of the Circuit Court, First Judicial District, Hinds County, for the capital murder of Mark Dickson, while committing the crime of robbery against Dickson. A bifurcated trial was held during the May 1979 Term of said court, Honorable William F. Coleman presiding, and the jury returned a guilty verdict of capital murder at the conclusion of the first phase of the trial. A separate sentencing phase was held following the guilty verdict, and, after deliberation, the jury returned a verdict imposing the death sentence as punishment for the crime. Bullock has appealed here and has assigned and argued twenty-eight (28) errors in the trial below.

On the evening of September 21, 1978, Crawford Bullock, Jr. and Rickey Tucker went to Town Creek Saloon, where they drank alcoholic beverages during the night. When Bullock and Tucker decided to leave in the early morning of September 22, they discovered that the person, with whom they had ridden there, had left them. Mark Dickson was leaving the place and he offered to give them a ride home in the gray Thunderbird automobile he was driving.

On the way home, Bullock had Dickson stop at a convenience store in order for him to buy some bread. Dickson gave Bullock thirty-five cents (35$) for that purpose, but the money was returned when it was found the store had no bread.

Dickson drove on at his riders’ instructions. Bullock asked him to stop the automobile in order that he could answer a call of nature. Upon returning to the vehicle, Bullock overheard an argument between Tucker and Dickson and heard Tucker say, “Don’t make me pull this gun,” and he heard Dickson say that he did not have any money but that they could have the automobile. All three re-entered the vehicle, the argument continued, and Dickson stopped on Byrd Drive near a construction site where blows were exchanged between Tucker and Dickson. Tucker told appellant to grab Dickson, which he did. Dickson broke away and left the vehicle. Tucker got out with a whiskey bottle, using it as a club, and advanced toward Dickson who fled with Tucker in pursuit. Tucker tackled Dickson; appellant caught up with them and grabbed Dickson by the head. Tucker struck Dickson on the head with the whiskey bottle which also hit Bullock’s hand, broke and cut it. Tucker beat Dickson with his fists, knocked him to the ground, kicked him in the head as he lay on the ground and then repeatedly struck him with a concrete block on the head which resulted in his death. Appellant went across the street to an automobile agency and tried to start one of the vehicles on the outside of the building to no avail.

Tucker suggested that they burn the body and the car, but appellant told him that he knew of a lake near Byram where the body could be disposed of. Dickson’s body was loaded into the car, and they drove to a car wash, where the blood was washed away. Tucker removed Dickson’s wallet from the body, went through it, found no money and disposed of it in a garbage can. Appellant drove the vehicle to his home, where they cleaned up, obtained a garden hose and then drove to the lake near Byram. Dickson’s outer clothing was removed, concrete blocks were placed in his T-shirt and shorts, the garden hose was wrapped around the body and the weights, and Tucker pulled the body out into the lake and submerged it. Appellant also went into the lake, felt of the body with his feet, making sure that it was submerged and stuck in the mud at the bottom of the lake.

Appellant and Tucker returned to Jackson and to appellant’s home, again cleaned up, and appellant took Tucker home, then went to the University Medical Center where he obtained medical attention for his hand. The next day Tucker and he drove in the Dickson automobile to McComb for the purpose of visiting appellant’s grandfather. They failed to find him and returned to Jackson. Appellant retained possession of the automobile.

During the early morning hours of September 23, 1978, appellant began to have pain in his hand, and he returned to University Medical Center, driving the Dickson automobile, where he obtained prescriptions for his injury. On his way home from the hospital, he was stopped by officers of the Jackson Police Department, was arrested, and was taken to the police station. On being stopped and asked about the automobile he was driving, appellant responded that he had borrowed the automobile from a friend. While Dickson was driving the vehicle on the night of his death, the registration tag was on the back seat of the car and when Bullock was stopped, it had been placed on the tag mount outside the car.

At the police station, appellant made in-culpatory oral and written statements about the commission of the homicide, which substantially set forth the facts related hereinabove.

GUILT PHASE

I.

Did the court err in finding that appellant’s oral and written statements were freely and voluntarily given?

Appellant moved to suppress all statements made by him while in custody of the officers, contending that the statements were inadmissible because they were not freely and voluntarily given. He was held in the Jackson City Jail for approximately nine (9) hours after his arrest and at the end of that period, he was questioned by Detective Fondren and Officer Jordan about the homicide. Appellant executed a written waiver of his constitutional rights, and afterwards, gave an oral statement to the officers setting out his involvement in the crime. The statement was reduced to writing and was signed by the appellant. A pre-trial suppression hearing was conducted, the officers present when the statements were made testified that appellant was advised of his constitutional rights pri- or to making the statement, that he acknowledged understanding them and executed a written waiver thereof. The oral statement made to the officers was typed up by Detective Fondren, was read by the appellant, and was then signed by him.

Appellant denied that the statements were freely and voluntarily made and contends that the officers withheld medical treatment for his injured hand until he gave the statements. The officers testified that appellant did not complain of pain with his hand until they had completed the interrogation. They offered medical assistance to him, but appellant insisted on getting through with the statement first, and that he then go to the doctor. The officers testified that appellant was alert and coherent, and that he was not under the influence of medication or pain. After the officers received the statements, appellant was taken to the hospital. His temperature was 103°, he was treated, and remained in the hospital for one week.

Detective Fondren visited appellant while he was in the hospital and, after again being advised of his constitutional rights, appellant told Detective Fondren that on the night of the homicide Tucker and he were high on drugs and beer and the only explanation he could give for killing Dickson was that Tucker was trying to rob him. Security Officer King was outside the hospital room and he could see Detective Fon-dren talking to appellant, but he could not hear what was being said. They both testified that his statement was given freely and voluntarily.

After appellant testified, the officers were placed on the stand in rebuttal, and testified that the Miranda rights were given, the statements were freely and voluntarily made, and that the appellant knew what he was doing when he made the statements and executed them. The procedure outlined in Agee v. State, 185 So.2d 671 (Miss.1966) was strictly followed, and the trial judge held that the statements made by appellant were freely and voluntarily given. The court’s finding was supported by the evidence, and we cannot overrule or disturb that finding. Clemons v. State, 316 So.2d 252 (Miss.1975).

Appellant testified in his own defense at both phases of the trial. His testimony was practically identical with that of his statements, and reiterated and enlarged upon those statements.

II.

Did the trial court err in refusing to sustain defendant’s demurrer to the indictment?

Appellant contends that the indictment here was faulty and subject to demurrer for the reasons that it did not set forth the necessary and essential elements of the crime of robbery, and did not refer to the proper statute [Mississippi Code Annotated § 97-3-19(2)(e) (Supp. 1979)], to charge the ciime of capital murder.

The same question was raised in Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978), wherein the Court held that the indictment, such as here, was sufficient to give the accused fair notice of the crime charged in clear and intelligible language. See also Culberson v. State, 379 So.2d 499 (Miss.1979); Bell v. State, 353 So.2d 1141 (Miss.1977). The trial court properly overruled the demurrer.

III.

Did the trial court err in refusing to grant appellant’s requested circumstantial evidence instructions?

Appellant contends that the trial court should have granted the circumstantial evidence instructions requested by him. Such instructions should be given only in a purely circumstantial evidence case. DePriest v. State, 377 So.2d 615 (Miss.1979). The case subjudice does not come under that classification because there was direct evidence consisting of the statements made by appellant and his own testimony adduced in the trial 'in the guilt phase of the case. See McCray v. State, 320 So.2d 806 (Miss.1975).

The trial court granted an instruction known as the “two-theory instruction” which should not be given, except in purely circumstantial evidence cases. Thus, even though appellant was not entitled to circumstantial evidence instructions, he received the benefit of the principle by the two-theory instruction granted by the court.

IV.

Did the trial court err in refusing to grant appellant’s requested peremptory instruction and in refusing to reduce the charge to manslaughter?

In passing upon a requested peremptory instruction, or motion for directed verdict, in a criminal case, all evidence most favorable to the State, together with reasonable inferences, are considered as true and evidence favorable to the appellant is disregarded. If such evidence will support a guilty verdict, the request for peremptory instruction must be denied, as well as the motion for directed verdict. Warn v. State, 349 So.2d 1055 (Miss.1977); Toliver v. State, 337 So.2d 1274 (Miss.1976).

In the case sub judice, appellant argues that there was no evidence of intent to rob Dickson and that appellant was an unwilling participant in the robbery-homicide. The evidence is overwhelming that appellant was present, aiding and assisting in the assault upon, and slaying of, Dickson and in removing and discarding his wallet and personal effects therein, and in the taking of the T-bird automobile, which was in the lawful possession and use of Dickson.

The trial court did not err in refusing to grant the peremptory instruction of not guilty. Likewise, the court committed no error in declining to reduce the charge from capital murder to manslaughter. Even so, the question of manslaughter was submitted to the jury upon a proper instruction.

V.

Did the trial court err in refusing to exclude the testimony of certain State’s witnesses on the ground that the witnesses discussed their testimony with other witnesses prior to trial and violated the sequestration rule?

Appellant contends that Officer Jackson changed her testimony between the time of the suppression hearing and the date of trial, that at the pre-trial hearing, she testified appellant was handcuffed after his arrest, and, at the trial, she was not sure whether he had been handcuffed. Appellant claims that the change in Officer Jackson’s testimony was the result of talking with other officers subsequent to the preliminary hearing.

An examination of the record does not support the argument of appellant on this matter, and indicates that any difference in Officer Jackson’s testimony resulted from the manner in which questions were phrased to her. There is no indication of prejudice resulting to the appellant, and, if there was a violation of the sequestration rule, the court has discretion in admitting the witness’s testimony, particularly where, as here, there was no prejudice. Ford v. State, 227 So.2d 454 (Miss.1969).

VI.

Did the trial court err in refusing to grant appellant’s motion for appointment of a criminologist or criminal investigator and a psychiatrist to assist in preparation of the defense?

Appellant says that he was denied a fair trial because the lower court overruled his motions to employ various experts. Appellant filed a motion for psychiatric and psychological examinations at the Jackson Mental Health Center. The motion was granted and an examination was conducted, Appellant then requested that another psychiatrist examine him; the court heard the motion and granted same. The record does not indicate whether the examination was conducted.

Appellant also filed a motion requesting that the court pay for the expenses of his own pathologist, which was substituted for a motion to employ a criminal investigator. The appellant did not outline any specific costs for such an investigator, and did not indicate to the court in any specific terms as to the purpose and value of such an individual to the defense. We are of the opinion that the lower court committed no error in declining to authorize expenses for employing such expert and investigator. Davis v. State, 374 So.2d 1293 (Miss.1979); Laughter v. State, 235 So.2d 468 (Miss.1970).

VII.'

Did the lower court err in admitting photographs of the deceased during trial?

The State offered in evidence, and the lower court admitted, black and white photographs of the victim after he had been slain. Appellant claims that the pictures were inflammatory and had no probative value. The photographs showed how the body was weighted with concrete blocks and how the garden hose was wound around it to hold the blocks in the body for the purpose of submerging it. The condition of the body, as reflected by the photographs, corroborated the testimony of the pathologist, particularly concerning the wounds upon the body.

The trial judge has wide discretion in admitting photographs into evidence, and we are of the opinion that he did not abuse his discretion in admitting the photographs of the victim. Irving v. State, 361 So.2d 1360 (Miss.1978); Mallette v. State, 349 So.2d 546 (Miss.1977).

VIII.

Did the trial court err in admitting the testimony of Dr. Galvez and in referring to a photograph introduced by his testimony?

Appellant argues that the evidence of the pathologist, Dr. Galvez, was cumulative and was not necessary to prove the corpus de-licti, since the crime had been established by previous witnesses. Appellant relies upon Jackson v. State, 337 So.2d 1242 (Miss.1976) for the principle that the State’s use of a pathologist’s testimony is unnecessary to prove corpus delicti where the deceased was found in an unusual place under unusual circumstances. However, Jackson does not support his argument on this point. The pathologist’s testimony was proper and beneficial to establish the exact cause of death, which resulted from a fracture of the victim’s skull. It further reflected that absence of water in the lungs indicated death to be due to the head injury rather than drowning. The testimony and evidence were properly admitted.

IX.

Did the trial court err in allowing certain witnesses to testify and in violating the bifurcated trial principle mandated by Jackson v. State?

Appellant contends that the court erred in allowing Larry Keen, W. L. Moss and James Jones to testify about conversations they had with Mark Dickson the night he was killed. Appellant says that such testimony, together with the photographs, should not be introduced during the guilt phase of the trial, and, if at all, only during the sentencing phase. The testimony of such witnesses was to the effect that Dickson stated he was not in the mood for drinking and that he was going home because he did not have any money on him. Appellant’s attorney conducted a rigid cross-examination of those witnesses concerning what Dickson had told them. The direct examination and the cross-examination were not prejudicial to appellant, and there is no merit in the assignment. Stringer v. State, 279 So.2d 156 (Miss.1973); Fielder v. State, 235 Miss. 44, 108 So.2d 590 (1959).

X.—XI.

Did the trial court err in not permitting appellant to cross-examine witnesses as to Mark Dickson’s character and did it err in refusing to grant a mistrial?

Did the trial court err in allowing Larry Keen and James Jones to testify to the good character and habits of Mark Dickson and in not declaring a mistrial when Larry Keen mentioned the bad character of appellant and in not allowing defense counsel to cross-examine those witnesses as to the bad character of Mark Dickson?

Assignments of error IX, X and XI involve substantially the same question(s). The witnesses mentioned above testified to statements made by Dickson, which have been covered in Assignment IX and which do not constitute reversible error.

Appellant contends that the State attacked the character of appellant by the following question and answer:

Q. Did Mark Dickson, to your knowledge, know either Rickey Turner or Crawford Bullock?
A. I think he knew Bullock. He knew Bullock because Bullock was raised in our neighborhood and we had seen him before out. I was with Mark at the Zodiac Lounge and Crawford [Bullock] was engaged in a fight there and we saw him there, you know.
BY MR. EVANS:
Your Honor, I am going to object to this and move for a mistrial—ask that that be stricken from the record and move for a mistrial. This is absolutely irrelevant. The testimony is inadmissible, it’s prejudicial and it’s just not supposed to be in this case.
BY THE COURT:
Members of the jury, disregard the last statement that the witness made. Do all of you tell me that you can disregard the last statement?
(Jurors nodding affirmative).

The trial judge sustained appellant’s objection to the question and answer, and instructed the jury to disregard the answer, and asked the jury if they could disregard it. The jury gave the judge an affirmative reply. The answer was not responsive to the State’s question, the trial judge directed the jury to disregard the question and answer, and it does not constitute reversible error. Holifield v. State, 275 So.2d 851 (Miss.1973); Hughes v. State, 179 Miss. 61, 174 So. 557 (1937); Dabbs v. Richardson, 137 Miss. 789, 102 So. 769 (1925).

XII.

Did the trial court err in permitting witnesses to testify as to the ownership of the automobile driven by Mark Dickson on the night of the homicide?

Appellant contends that the court erred in permitting Larry Keen to testify about the ownership of the gray T-bird automobile Dickson was driving the night of the homicide. It is undisputed that Dickson was in possession of the said automobile. An indictment charging robbery or larceny of property is properly laid in the party having possession, either as owner, bailee or agent. Mahfouz v. State, 303 So.2d 461 (Miss.1974); Minneweather v. State, 55 So.2d 160 (Miss.1951). The assignment is without merit.

XIII.

Did the trial court err in permitting introduction of the high school photograph of Mark Dickson?

Appellant objected to its introduction on the ground that it was irrelevant and in: flammatory. The trial judge did not abuse his discretion in admitting the photograph. Voyles v. State, 362 So.2d 1236 (Miss.1978); May v. State, 199 So.2d 635 (Miss.1967).

XIV.

Did the trial court err in granting Instruction # 15, which was the capital murder instruction?

Appellant cites no authority on this assignment, but simply argues that it was erroneously given for the reason that there was no requirement for the jury to find Mark Dickson was in fact killed. The pertinent part of the instruction follows:

“[A]nd, if the Jury further finds from the evidence in this case, beyond a reasonable doubt, that on said date aforesaid, while engaged in the commission of the aforesaid robbery, if any, that the said Crawford Bullock, Jr., did alone, or while acting in consert [sic] with another, while present at said time and place by consenting to the killing of the said, Mark Dickson, and that the said Crawford Bullock, Jr., did any overt act which was immediately connected with or leading to its commission, without authority of law, and not in necessary self defense, by any means, in any manner, whether done with or without any design to effect the death of the said Mark Dickson, . . . ”
(Emphasis added)

It may be noticed that the instruction does require a finding that Mark Dickson was killed, and it correctly sets forth the issues which must be decided by the jury before the accused could be convicted. Williams v. State, 317 So.2d 425 (Miss.1975).

Assignments of Error XV through XXIV deal with the refusal of the trial court to grant certain instructions requested by the appellant. Was it error to refuse those instructions?

XV.

Instruction D-8 was the single jur- or instruction. The appellant argues that the instruction was “a fair and accurate representation of the law” and should have been granted. The principle of the instruction was covered in Instruction # 12, and, although in different language, it was not error to refuse the instruction. Reagan v. State, 318 So.2d 879 (Miss.1975).

XVI.

Instruction D-9 was condemned in McNamee v. State, 313 So.2d 392 (Miss.1975) as being an improper comment on the weight and worth of the defendant’s testimony and was properly refused.

XVII.

Instruction D-10 was correctly refused by the lower court since it should be given only in a purely circumstantial evidence case.

XVIII.

Instruction D-30 would have told the jury that it need not find any mitigating circumstances in order to return a sentence of life imprisonment; that a life sentence may be returned regardless of the evidence. The instruction was in direct conflict with Instruction D-20 which told the jury to weigh the mitigating circumstances against any aggravating circumstances before returning a verdict and was correctly refused under Jackson v. State, supra.

XIX.

Instruction D-31 would have told the jury it was instructed there is nothing that would suggest the decision to afford an individual defendant mercy violates the constitution. That statement was taken from language set forth in the opinion of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 14 L.Ed.2d 859 (1976). It is simply a statement of the opinion, and was not intended as an abstract proposition of law to be given in jury instructions.

XX.

Instruction D-33 would have instructed the jury it was to presume that, if the accused was sentenced to life imprisonment, he would spend the rest of his life in prison, and the jury was to presume that, if the accused was sentenced to death, he will receive lethal gas until he is dead. The instruction was improper and was calculated to confuse the jury.

XXI.

Instruction D-34 and the sense of same, was contained in Instruction # 14, which was granted by the court, and it was not error to refuse D-34.

XXII. — XXIV.

Instructions D-35, D-36 and D-37 did not put the lower court in error for their refusal. They were either improper instructions, or the proper and correct parts were included in Instruction # 14 granted by the court.

XXV.

Did the court err in failing to sustain appellant’s motion for a mistrial made during the State’s closing argument and in not sustaining objections to prejudicial and inflammatory arguments of the district attorney?

Appellant contends that, during closing argument, the district attorney referred to his problem with psychosis as being a possible explanation for committing the crime. He objected to the remark and stated that such remark was not supported by the evidence. However, appellant himself introduced in evidence the hospital record of appellant which indicated that on May 15, 1978, he was admitted to the University Medical Center for treatment and the diagnosis indicated that he suffered from psychosis. Such evidence was fair comment in the argument by the district attorney.

Appellant next argues that the district attorney gave a false impression to the jury of the elements of the crime of robbery. Part of the argument follows:

“Now, look, if you see a guy on the street, do you walk up and whop him on the head and drop boulders on him and hit him with a two by four and then you take his billfold and you take his car, but you didn’t rob him. Do you believe that?”

The trial-judge overruled the objection and stated that it was final argument. There is wide latitude for attorneys to argue cases to juries, and we do not think that such remarks of the district attorney were improper or prejudicial.

Appellant objects to argument of the district attorney, which he says was improper because it indicated that fingerprints could not be taken from all the evidence. There was testimony that it was impossible to remove latent fingerprints from concrete and certain other materials introduced in evidence. This was fair argument, and did not constitute error.

Appellant lastly objects to the district attorney’s reference to the statement made by appellant to the investigating officers as being a confession.

The statement was incriminating, connected appellant with the crime, and may properly be referred to as a confession. Also, during the trial of the case, appellant’s own counsel referred to the statement as being a confession. There is no merit in the contention.

XXVI.

Did the lower court err in denying appellant’s motion for a recess until the following morning before proceeding to the sentencing phase of the trial?

The jury returned a verdict of guilty of capital murder in the first phase of the trial at approximately 8:00 p. m. The jurors had eaten supper at that time. The trial judge indicated his desire to proceed with the sentencing phase of the case, whereupon, appellant moved the court to recess until the following morning for that purpose. The trial judge asked the jury whether any of them were too tired to proceed, they indicated that they were not, and the judge assured the jury that, if they became tired at any time, he would stop the proceeding and retire for the evening. The trial proceeded in the sentencing phase and the jury returned a verdict for the death penalty at approximately 11:00 p. m. The facts of the case sub judiee may be distinguished from that of Thornton v. State, 369 So.2d 505 (Miss.1979) where two of the defendant’s attorneys, one approximately seventy (70) years old and one in ill health, were not able to properly function because of their infirmities. The attorneys were also restricted in their final argument to short periods of time.

Here, appellant was not restricted in any manner in the presentation of his defense, the record reflects that he was not prejudiced by proceeding into the sentencing phase and that he had a fair trial. The lower court proceeded under the guidelines of Jackson v. State, and there was no error in so doing.

XXVII.

Was the verdict of the jury contrary to the overwhelming weight of the evidence and did it evince bias, passion and prejudice?

The sense and principle of this assignment of error has been discussed in Assignment IV, wherein the appellant claimed that the court erred in declining his request for a peremptory instruction of not guilty.

As stated there, the evidence for the State, including the oral and written confessions of appellant, his testimony at the trial, and the physical evidence, unless rejected by the jury, was amply sufficient to prove beyond reasonable doubt the guilt of the appellant and the verdict was not contrary to the great weight of the evidence.

XXVIII.

Did the lower court err in overruling appellant’s motion to quash the indictment and in declining to declare the statute unconstitutional?

This Court has spoken on the constitutionality of the death penalty statute and has determined that the statute, as implemented by the legislature and construed by the court, is constitutional. In Coleman v. State, 378 So.2d 640 (Miss.1979), the Court said:

“This contention is without merit. The constitutionality of the death penalty as imposed under Section 99-19-101, et seq. has been firmly established. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Washington v. State, 361 So.2d 61 (Miss.1978).” 378 So.2d at 647.

In our opinion, there were no reversible errors in the guilt phase of the trial and the case should be, and is, affirmed.

SENTENCING PHASE

Mississippi Code Annotated Section 99-19-105 (Supp. 1979) provides the following:

“(1) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Mississippi Supreme Court. The clerk of the trial court, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Mississippi Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Mississippi Supreme Court, a copy of which shall be served upon counsel for the state and counsel for the defendant.
(2) The Mississippi Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
(3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 99-19-101; and
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(4) Both the defendant and the state shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
(5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(a) Affirm the sentence of death; or
(b) Set the sentence aside and remand the case for modification of the sentence to imprisonment for life.
(6)The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.”

We have held in Jackson, and pursuant to the above section, that cases in which a death sentence is imposed will be automatically reviewed as preference cases by this Court; that the record will be reviewed and compared with similar cases to determine whether the punishment of death is too great when the aggravating and mitigating circumstances are weighed against each other in order to assure that the death penalty will not be wantonly or freakishly imposed; and only will be inflicted in a consistent and even-handed manner under like or similar circumstances.

Since Jackson v. State, 337 So.2d 1242 (Miss.1976), eleven (11) capital murder cases have been decided by this Court. Seven (7) of those cases have involved felony (robbery) murder. Reddix v. State, 381 So.2d 999 (Miss.1980); Jones v. State, 381 So.2d 983 (Miss.1980); Culberson v. State, 379 So.2d 499 (Miss.1979); Irving v. State, 361 So.2d 1360 (Miss.1978); Voyles v. State, 362 So.2d 1236 (Miss.1978); Washington v. State, 361 So.2d 61 (Miss.1978); Bell v. State, 360 So.2d 1206.

We have carefully reviewed those cases and compared them with the case and sentence sub judice. Appellant contends that the extent of his involvement in the crime was as an accomplice, who did not strike the fatal blow, and that Tucker was the principal, who killed the victim. He argues that Tucker was given life imprisonment by the jury, which tried him; that appellant should not receive a greater or harsher penalty than Tucker; and that appellant’s death sentence should be reduced to life imprisonment.

In Coleman v. State, supra, Coleman was found guilty by a jury in the robbery-murder of one Burkett, and was given death. He was sixteen (16) years of age and fired the fatal shot that killed Burkett. His accomplice in the crime was permitted to enter a guilty plea to manslaughter and was sentenced to a term of years in the penitentiary. In comparing Coleman’s death sentence to that of other cases heard by this Court, we said:

“Having carefully compared the case at bar with these cases in which the sentence of death was imposed, we are of the opinion that the sentence of death in this case ‘is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’
In Irving, Washington and Beli, the killings were totally senseless and committed upon hapless victims unarmed and unable to protect themselves. The circumstances in this case are strikingly different. Here, Harry Burkett, the victim, upon seeing the foot of Sims protruding from under the pickup truck, began firing his pistol. Only after being fired upon did the 16-year-old Coleman shoot. Again, Coleman had the opportunity to shoot Mrs. Burkett, who was an eyewitness, but did not. He fled the scene instead.
Under the specific authorization of subsection (5)(b) of § 99-19-105, this Court affirms the conviction but reverses and sets aside the death sentence and remands this case to the trial court for modification of the sentence to imprisonment for life.” 378 So.2d at 650.

In Culberson v. State, supra, Culberson was found guilty of robbery-murder and was given the death penalty. The principal evidence and witness against Culberson was an accomplice, Alvarese Pittman. His testimony was substantially to the effect that he was with Culberson, they were going to rob the victim, that he did not know Culber-son had a pistol until Culberson shot and killed the victim. On a plea of guilty, Pittman was given a comparatively light sentence in the penitentiary. The Court said, in affirming the death penalty:

“This leaves the question of whether the words in Subsection (3)(c), ‘imposed in similar cases, considering both the crime and the defendant,’ include for our review and comparison the exact and therefore similar crime of the accomplice and the sentence received by him for it. We construe the language to include not only the capital cases heretofore determined by this Court in which the death sentence has been imposed or rejected on the merits, but also cases involving multiple defendants when one participant is given the death penalty and an accomplice less than death. One of the questions arising in such cases is whether a sentence of less than death to an accomplice was a result of prosecutorial discretion. An affirmative answer raises a second question, was the discretion abused?
We hold prosecutorial discretion was not abused because Pittman, who did not fire the fatal shot, was permitted to plead guilty to manslaughter, while Culberson, the one who fired the fatal shot, was given the death penalty. We hold the death penalty was not applied capriciously in this case. It is a proper sentence for the senseless and unprovoked murder committed by Culberson, who, after first knocking the victim down with a table leg, then shot the victim while he was lying on the ground begging, ‘Help me, help me.’ ” 379 So.2d at 510.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Sandra Lockett was charged with aggravated murder with aggravating specifications. She and three (3) others conspired to rob a pawnbroker’s shop. Lockett remained in the getaway automobile with the engine running, the other three entered the pawn shop and during the robbery, Parker, one of the three, killed the proprietor. Prior to trial, Parker pleaded guilty to the murder charge, and agreed to testify against Lockett and the other two. In return, the prosecutor dismissed the aggravated robbery charge and the specifications to the murder charge which limited the possibility that Parker could receive the death penalty.

Two weeks before Lockett’s separate trial, the prosecutor offered to permit her to plead guilty to voluntary manslaughter and aggravated robbery, offenses which carried a maximum penalty of twenty-five (25) years imprisonment. Prior to the trial, he offered to permit her to enter a plea of guilty to aggravated murder without specifications, an offense carrying a mandatory life penalty. These plea bargaining offers were rejected by Lockett; she was tried and was given the death penalty.

Although the case was reversed on another ground, the question was raised as to whether or not Lockett’s conviction as an aider and abetter of the actual killer was invalid on the ground that the interpretation by the Ohio Supreme Court of the complicity provisions of the Ohio statute, under which the defendant was convicted, was so unexpected that it deprived her of her due process right to fair warning of the crime with which she was charged.

The United States Supreme Court held that her conviction as an aider and abetter of the actual killer was not invalid.

In Coppola v. Commonwealth, 220 Va. -, 257 S.E.2d 797 (1979), the Virginia Supreme Court held that a co-defendant is not necessarily entitled to commutation of the death sentence because an equally culpable accomplice, on substantially the same evidence, has been sentenced to life imprisonment. That Court held that a determination of the proportionability of punishment requires only that the death sentence not be so incommensurate with his conduct, measured by other jury decisions, involving similar conduct.

In the case at bar, there is no record of the aggravating circumstances and mitigating circumstances in the trial of Tucker, and it is not possible to determine what circumstances influenced the jury in its life verdict. The law is well settled in this state that any person who is present, aiding and abetting another in the commission of a crime, is equally guilty with the principal offender. Jones v. State, 307 So.2d 549 (Miss.1975); Bass v. State, 231 So.2d 495 (Miss.1970); McBroom v. State, 217 Miss. 338, 64 So.2d 144 (1953).

When we compare the present case to other capital cases, which have been affirmed by this Court on the death penalty, the present robbery-murder is equally as wanton, cruel, senseless, heinous and atrocious as those. The evidence is overwhelming that appellant was an active participant in the assault and homicide committed upon Mark Dickson and, in our opinion, is not so disproportionate, wanton or freakish when compared to those crimes so as to require this Court to reduce the sentence to life imprisonment.

Therefore, the judgment of the lower court is affirmed and Wednesday, the 10th day of September, 1980, is set as the date for execution of the sentence and infliction of the death penalty in the manner provided by law.

AFFIRMED AS TO GUILT PHASE: AFFIRMED AS TO SENTENCING PHASE.

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