source: Caselaw Access Project

author: BOWLING, Justice, ROBERTSON, Justice,

license: Public Domain

text:
    Marion Albert PRUETT v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, etc.
    No. 54000.
    Supreme Court of Mississippi.
    Jan. 11, 1984.
    Rehearing Denied Jan. 25, 1984.

      William Sebastian Moore, Jackson, for appellant.
    Bill Allain, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   BOWLING, Justice,

for the Court:

This opinion involves consideration by the Court of a Petition by Marion Albert Pruett for Leave to File a Petition for Writ of Error Coram Nobis in the Circuit Court of Lowndes County, Mississippi.

There is no need to dwell at length on the principles of law necessary to be considered by this Court in determining whether or not Petitioner’s application should be sustained or denied. We have clearly announced the principles before us in a number of cases, both recently and in the past. See Smith v. State, 434 So.2d 212 (Miss.1983); Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); Callahan v. State, 419 So.2d 165 (Miss.1982); Holloway v. State, 261 So.2d 799 (Miss.1972); Botts v. State, 210 So.2d 777 (Miss.1968); and Corry v. Buddendorf, 98 Miss. 98, 54 So. 84 (1911).

In Callahan, supra, we adopted the language in In Re Broome’s Petition, 251 Miss. 25, 168 So.2d 44 (1964), by saying the following:

The general scope of a petition for writ of error coram nobis, or motion in the nature thereof, is to bring before a court a judgment previously rendered by it, for the purpose of review or modification. There must be some error of fact and not of law affecting substantially the validity and regularity of the proceedings, which was not brought into issue at the trial. Such motion or petition is an extraordinary and residual remedy to correct or vacate a judgment on facts or grounds not appearing on the face of the record, not available by appeal or otherwise, and not discovered until after rendition of the judgment, without fault of the party seeking relief. It is an attack on a judgment of conviction, valid on its face, but defective by reason of facts outside the record, which deprived accused without fault on his part of the constitutional right to a fair trial.

In the recent case of Smith v. State, supra, we stated:

We are compelled to note that in the instant case, as is all too often the case in similar post-conviction relief efforts which come before this Court, the petitioner is in actuality merely seeking to relitigate his case. Such is not the proper function of post-conviction relief proceedings in Mississippi. The fair and orderly administration of justice dictates that a person accused of a crime be afforded the opportunity to present his claims before a fair and impartial tribunal. It does not require that he be given multiple opportunities to “take a bite at the apple.” Likewise, the orderly administration of justice does not require this Court to “lead a defendant by the hand” through the criminal justice system. It is this Court’s responsibility to provide a meaningful opportunity for defendant to raise his claims and have them adjudicated.

In Botts v. State, supra, we said:

The function of a writ of error coram nobis is to bring to the court’s attention some matter or fact which does not appear on the face of the record which was unknown to the court or the parties at the time, and which, if known, and properly presented, would have prevented the rendition of the original judgment.

In Holloway v. State, supra, we filed the following:

Moreover, if there was prejudice resulting from the “show up” or “line up,” the facts and circumstances were known to petitioner and petitioner’s present' objection should have been raised at the trial. No such proposition was advanced or submitted to the trial court, either as a pre-trial matter or in the course of the trial. Nor was it assigned as a ground in petitioner’s motion for a new trial. A defendant in a criminal trial may not deliberately hold back matters known to him at the time of his trial until after the affirmance of his conviction and then, for the first time, use them to begin the whole process all over again.

Regarding matters previously litigated, we stated in Edwards v. State, 433 So.2d 906 (Miss.1983), the following:

The present issue is contended to be focusing on the inflammatory and prejudicial remarks of the prosecution. At this point it should be noted that if the issue was raised on appeal then it has been previously litigated and therefore is barred from consideration in the present proceedings. If it were not raised on appeal, then the petitioner has accepted the trial court’s determination of the issue. Analysis for the petitioner’s ground of relief show that it was not raised on direct appeal. Objection was made at trial to the remarks of the district attorney, but the failure to specifically assign such as error in the direct appeal before this court resulted in petitioner’s acceptance of the trial court’s determination of this issue; therefore it is now barred.

Petitioner, Marion Albert Pruett, was convicted on April 8, 1982, in the Circuit Court of Lowndes County [after change of venue] of the crime of capital murder and on that day concluding a bifurcated trial, the jury returned a verdict sentencing petitioner to death. The appeal to this Court resulted in the cause being affirmed on February 23, 1983. Pursuant to rules of this Court, petitioner filed his petition for a rehearing and this petition was denied on March 16, 1983. Thereafter petitioner filed a petition for writ of certiorari with the United States Supreme Court. On October 3, 1983, that court denied certiorari. Pruett v. Mississippi, — U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

Using the standards and principles set up by this and other courts to consider the contentions, constitutional and otherwise, of petitioner, we hereafter consider each separately under the capital letter headings set out in the petition.

A.

LACK OF JURISDICTION AND CONSTITUTIONAL VENUE.

The basic contention of petitioner under this point is that the Mississippi court lacked jurisdiction to prosecute petitioner for the crime of capital murder as it occurred in two different states. The primary answer to this contention is the original opinion by this Court on the appeal here. The question was fully and adequately presented and fully briefed and argued. This Court found no merit to the contention of appellant there and the Court fully set out the authorities for its conclusion. As stated, petitioner filed a petition for rehearing and in that petition made absolutely no request for the court to change its opinion. Both for this reason and the original opinion of this Court, we hold that the question is res judicata. It has been litigated and the decision on this question is final and further litigation thereon is barred. Callahan v. State, supra; Edwards v. Thigpen, supra; Wheat v. Thigpen, supra; and Smith v. State, supra.

B.

DENIAL OF FAIR TRIAL DUE TO COMMUNITY PREJUDICE.

Petitioner was indicted for capital murder in the Circuit Court of the First Judicial District of Hinds County, Mississippi. This is the most populous county in the state and includes the state capital of Mississippi. Lowndes County, with the principal city of Columbus, is in the northeast section of the state, far away from Hinds County, and usual Hinds County publicity. On motion of petitioner the lower court granted him change of venue from Hinds County to Lowndes County. Petitioner now attempts to put the trial court in error for not again, on the day of the beginning of the trial, changing the venue into another county. In the first place, there was no request whatever for such a change. No objection was made to trying the case in Lowndes County and on the other hand, the record clearly reveals complete acquiescence by the petitioner. This claim by petitioner was not raised in the trial court and was not raised on appeal to this Court and is barred from consideration now under the petition.

C.

FAILURE TO EXCUSE FOR CAUSE

A JUROR PREJUDICED AGAINST PETITIONER.

It is contended that the juror in question should have been excused by the court for cause. This occurred during the voir dire examination. This question of law was not raised on appeal, and cannot now be considered. Petitioner, by his actions, accepted the ruling of the trial court.

D.

THE DEATH QUALIFICATION OF PETITIONER’S JURY.

The record is clear that petitioner accepted the court’s ruling on selection of jurors who could be fair and impartial and particularly the juror Ferguson mentioned under this point. Any error thought to be had at that time or any alleged error now was not preserved and not presented on appeal. It is readily seen by the record that whether or not to excuse this juror peremptorily was a judgment call and petitioner did not see fit, either through himself as his attorney, or his attorney advisers, to preserve a claim on this point.

. E.

USE OF PETITIONER’S INVOLUNTARY AND UNCONSTITUTIONALLY OBTAINED STATEMENT.

All contentions under this point were assigned on appeal to this Court and fully, fairly and adequately considered by the Court and the decision thereon appears in the Court’s opinion with a complete discussion of the issues. There was a full, complete and long hearing on this contention prior to petitioner’s trial. The matter was fully litigated both in the lower court and in this court and decided against petitioner. Our decision is res judicata on any request for reconsideration for the same reasons previously given.

F.

UNCONSTITUTIONAL USE OF UNRELATED BAD ACTS.

The record made in the lower court reveals that prior to indictment the trial judge had petitioner brought before him and questioned him extensively about legal representation. [Trial record pp. 4-16]. Petitioner frequently refers to the trial record, and therefore presumes that we have the privilege of doing the same. The entire record reveals that from the outset, petitioner insisted on being his attorney during all proceedings. The law and all options granted petitioner, constitutionally and otherwise, were fully explained to petitioner. He was also questioned as to his experience in trial advocacy. Petitioner related specific instances of cases in which he had represented himself under criminal charges. He even stated that he was such a successful attorney, that one of his cases tried by him alone, resulted in a mistrial. He stated that he had had access for many years to a federally subsidized law library while serving time in detention centers. He stated he was thoroughly familiar as to the manner in which his defense should be conducted.

Petitioner took the stand and testified on the sentencing phase of the trial and reiterated when he was specifically asked, “You are your own attorney, are you not?” and he answered, “Yes, sir, I am.” Further, “You are testifying here in court voluntarily as your own attorney, is that right?” Petitioner answered “Yes, sir, I am.” [R. 931]

On final argument, the leading “legal adviser” appointed at the petitioner’s request, in discussing petitioner’s testimony, stated to the court and jury that “the fact of the matter is that he (petitioner) said many things today without advice from counsel. He acts as his own counsel most of the time in certain areas.”

Petitioner therefore is bound by his own actions. The trial court on October 29, 1981, long before the trial on April 1982, at a time when the record clearly shows petitioner to have been without the use of any drugs of any kind and a very intelligent person, fully advised petitioner of his right to have appointed counsel. There are many pages in the record where the trial judge went further then required to insure that petitioner fully understood his rights. With this full understanding, petitioner insisted on representing himself as his own attorney but requested that “legal advis-ors” be appointed to assist him. Never did petitioner change from this stand. As shown above, he reaffirmed this during his own testimony on the stand and it was reaffirmed by one of his three competent, experienced and completely qualified “legal advisors” during the closing argument. It is evident from the record that petitioner was an intelligent person. He understood everything that was said to him and all proceedings.

Petitioner can not now complain that he, as his own attorney, at his insistence, failed to preserve a possible appeal claim. He did not preserve any claim under this section of his petition. There is no indication of any request by him for advice from his legal advisors. He did not raise any such claim on appeal; and he is both barred and estopped from raising such claims here at this time. [See authorities hereinbefore set out.]

G.

USE OF INFLAMMATORY PHOTOGRAPHS.

Petitioner claims the application for the writ should be granted because of the introduction of certain photographs of the victim’s remains. We first note that neither petitioner, as his own attorney, nor any of his three competent legal advisors, raised this question on appeal. We held as a fact in discussing the cause on appeal, that there was no contention or indication that petitioner was mentally incompetent at any time and that petitioner was a very intelligent and crafty individual from a study of the record. Under all authorities, the trial court cannot be put in error regarding any contention under this point.

H.

IMPROPER CLOSING ARGUMENT — GUILT—INNOCENCE.

We adopt the language set out above under contention G.

I.

DENIAL OF A FAIR TRIAL — GUILT—INNOCENCE.

Under this contention we adopt the language hereinbefore set out under claim G.

J.

JUROR’S VIOLATION OF OATH.

The contention under this section was assigned as error on appeal to this Court and was fully discussed in the Court’s opinion giving an explanation as to why the contention was not reversible error. We concluded that in addition to being no legal error, that if any person would ever change his mind regarding a prior opinion against the death penalty in any case, this was the case for that change to be made. The claim was fully argued and considered on appeal and the opinion of this Court affirming the cause bars relitigation.

K.

CONSIDERATION OF IMPROPER AGGRAVATING CIRCUMSTANCES.

Petitioner claims error in the admission of a videotaped interview of petitioner while he was incarcerated. This claim was presented on appeal to this Court and fully and finally decided by the Court in its opinion affirming the cause. The claim is res judicata and cannot be reconsidered in the posture claimed.

L.

IMPROPER LIMITATION OF TESTIMONY BY AND CROSS EXAMINATION OF MITIGATING WITNESSES.

Under this point petitioner complains of rulings during the testimony of witness Norma Jean Gammill. Neither petitioner, as his own attorney, nor his three competent advisors, presented any claim on appeal regarding the witness’ testimony. A consideration of any errors in that testimony is completely forbidden under our standards hereinbefore set out in considering petitions for writs of error coram nobis.

M.

IMPROPER INSTRUCTIONS AND IMPROPER JURY FINDINGS AT SENTENCING.

As hereinbefore discussed, a consideration of the allegations under this section is not proper under the requirements and standards set up by authorities heretofore cited.

N.

IMPROPER CLOSING ARGUMENT — SENTENCING.

Neither appellant, as his own attorney, nor his legal advisors, preserved any alleged irregularities or errors in closing arguments, and no claim of such has heretofore been made either in the lower court or on appeal to this Court. The allegations of the petitioner under this point prohibit consideration under the authorities herein-before cited.

O.

DENIAL OF FUNDAMENTALLY FAIR SENTENCING HEARING.

Here we adopt the finding set out under section L. above.

P.

INADEQUATE SENTENCING REPORT.

In addition to the finding under section L above, the opinion of this Court on initial appeal clearly stated that we had considered all facets of the cause and everything in the entire record as required by statute. Any claim under this point is barred.

Q.

INADEQUATE APPELLATE REVIEW.

Here we adopt the ruling in section P. above.

R.

DISCRIMINATORY APPLICATION OF DEATH PENALTY.

It is first noted that the material attached to the petition and propounded under this point is inapplicable to petitioner’s contention here. By its terms, the courts of Mississippi are condemned because of discrimination against blacks in death penalty cases. Statistics reveal that this is not an accurate statement. Petitioner is white; his victim was white. Petitioner’s contention under this point is ridiculous. In addition, the entire contention is barred. No such contention whatever was made in the lower court, or preserved on appeal to this Court, or argued or presented to this Court for decision.

S.

INEFFECTIVE ASSISTANCE OF COUNSEL.

Here we adopt what we said in section F. No person, either layman, lawyer or a member of the judiciary, could contend that under the record in this case, petitioner did not have every opportunity to have effective assistance of counsel. He intelligently described to the trial court before indictment about prior cases he had defended alone, some of them successfully, and explained in detail his knowledge of the law and where he received that knowledge. Throughout, as hereinbefore stated, he contended that he was his own attorney. To ignore this now would make a mockery of the judicial system, both state and federal. It would permit “sandbagging” by any defendant charged with any crime.

Furthermore, it is evident after this Court’s careful study of the ten volumes of the record, that petitioner’s advisory attorneys insured that petitioner received every benefit legally possible. Under the statutory mandates, this Court is required to review all death penalty cases to the fullest extent, regardless of written assigned errors. We found as a fact as shown by the opinion that petitioner’s advisory attorneys were highly competent, having a good reputation as trial attorneys in criminal cases, and that the securing of more competent and experienced attorneys would have been hard to do.

The contentions under this section of the petition do not make any allegations that petitioner, as his own attorney, requested advice from his experienced trial advisors.

Petitioner now attempts to secure relief from the written opinion of an alleged expert psychologist whose opinion admittedly was based on letters from petitioner’s present attorneys. There was no contention made throughout the trial of the appeal in any manner that petitioner, was is or ever had been mentally incompetent. He cannot now so contend.

We carefully have studied each contention of petitioner alleging that his “attorneys” were ineffective in a number of principal contentions under the application for writ of error coram nobis. Petitioner, as his own attorney, made no contention on appeal to this court originally regarding any incompetence of his three court-appointed legal assistants. He cannot do so now.

We are constrained to observe that those who are now propounding 123 invalid contentions before this Court to allow petitioner to play games with the Court system would have better served petitioner to have appeared at the outset and placed themselves in the trenches at the lower court and appellate court level. We further observe that even though these “Johnny-come-lately” attorneys attempted to secure relief from the United States Supreme Court by way of certiorari, they were not successful in doing any more before that Court than petitioner had done prior to his conviction being affirmed.

It is obvious that these “Johnny-Come-Latelies” who, in the opinion of this writer, end up causing their client more grief than relief. As stated by United States Supreme Court Chief Justice Burger in Sullivan v. Wainwright, — U.S. -, 104 S.Ct 290, 78 L.Ed.2d 248:

The arguments so often advanced by the dissenters that capital punishment is cruel and unusual is dwarfed by the cruelty of ten years on death row inflicted upon this guilty defendant by lawyers seeking to turn the administration of justice into the sporting contest that Roscoe Pound denounced three-quarters of a century ago.

The sporting contest referred to by Chief Justice Burger has now begun in the case involving petitioner, which resulted from one of the most heinous and brutal murders that has ever been presented to a jury in any state. We cannot be accused of judging his actions, as he voluntarily, as his own attorney, got on the stand under oath and described every gruesome detail of his murderous acts. Complete guilt was admitted.

T.

RELIEF REQUESTED.

As hereinbefore discussed, we find that none of the claims of petitioner under his application for Writ of Error Coram Nobis are legally allowable claims under the guidelines set out in the authorities herein-before discussed and the requirements of those authorities. We, therefore, deny the Application for Leave to File a Petition for Writ of Error Coram Nobis.

APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR COR-AM NOBIS, DENIED.

Execution of Petitioner, Marion Albert Pruett, in the manner prescribed by law, shall be hereby reset for Wednesday, February 1, 1984.

WALKER and BROOM, PJJ., and ROY NOBLE LEE and HAWKINS, JJ., concur.

PATTERSON, C.J., concurs with result reached by both BOWLING and ROBERTSON, JJ.

ROBERTSON, J., PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ., specially concur.

ROBERTSON, Justice,

specially concurring:

I.

Marion Albert Pruett has been finally convicted of capital murder and sentenced to suffer death in the manner provided by law. Pruett's conviction and sentence have been affirmed on direct appeal. See Pruett v. State, 431 So.2d 1101 (Miss.1983). His petition for rehearing has been denied. In due course, Pruett sought relief via a petition for a writ of certiorari in the Supreme Court of the United States. That application was denied October 3, 1983. Pruett v. Mississippi, — U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

Pruett has now instituted post-conviction proceedings in this Court. Specifically, he has invoked the writ of error coram nobis [see Miss.Code Ann. § 99-35-145 (1972); Rule 38, Miss.Sup.Ct. Rules] and has asked that both his conviction and sentence be vacated. This is Pruett’s last procedural gasp available under Mississippi Law.

In his petition, Pruett has asserted nineteen separate grounds, any one of which, if credited, could result in his conviction, or sentence, or both, being vacated. Under our procedure, we review Pruett’s filing to determine whether it is sufficient to grant relief as a matter of law or, where factual matters are involved, whether it is sufficient to require an evidentiary hearing in the Circuit Court. Rule 38, Miss.Sup.Ct. Rules; Cf. Rule 8.07, Uniform Criminal Rules of Circuit Court Practice; Sanders v. State, 440 So.2d 278, 284-85 (Miss.1983). In this connection, we have received excellent briefs from both the attorneys representing Pruett and from the office of the Attorney General on behalf of the state. Indeed, it is appropriate that counsel be commended for the competence and professionalism with which they have presented to the Court this case which, as all know, arises out of one of the most sensationalized and emotionally charged crimes in the recent history of this state.

I have now carefully studied the papers filed in Pruett’s behalf as well as those filed by the Attorney General in opposition. It is my judgment that neither Pruett’s conviction nor his sentence may lawfully be disturbed. I unreservedly join in today’s judgment denying as it does any relief on Marion Albert Pruett’s petition for leave to file a Petition for Writ of Error Coram Nobis in the Circuit Court of Lowndes County, Mississippi.

As certain as I am that today’s judgment is correct, I am of the view that much of the majority’s rationale is in error. I find some of the gratuitous dicta at the end of the majority opinion unfortunate. I regard these as matters of considerable importance and for that reason, with sincerest respect for the views of my colleagues, I file this special concurring opinion.

II.

My primary objection to the rationale employed en route to today’s judgment is what I consider the Court’s improper reliance upon Pruett’s procedural defaults. I disagree with the majority in the methodology of its disposal of fifteen of Pruett’s nineteen points.

A.

First, the points of agreement. In his present application, Pruett has asserted four grounds that were heard on direct appeal. These are:

(1) A. Lack of Jurisdiction and Constitutional Venue;

(2) E. Use of Petitioner’s Involuntary and Unconstitutionally Obtained Statement;

(3) J. Juror’s Violation of Oath;

(4) K. Consideration of Improper Aggravating Circumstances.

Each of these points was assigned as error before this Court on direct appeal. Each issue was fully briefed at that time, was fully considered by the Court at that time, and was decided on its merits. Pruett v. State, 431 So.2d 1101 (Miss.1983). Absent some compelling reason why we ought to reconsider same, and specifically absent some compelling suggestion that our original decision on one or more of these points may have been in error, Pruett ought to be — and is — collaterally estopped from re-litigation of these claims.

In my concurring opinion in Edwards v. Thigpen, 433 So.2d 906 (Miss.1983), in a similar context I wrote:

Several issues tendered have already been fully litigated. Without doubt, there is no problem with the Court’s holding that further litigation of those issues in the courts of this state has been foreclosed under notions akin to res judi-cata and collateral estoppel.

433 So.2d at 909.

Relitigation of issues A., E., J., and K. is properly proeedurally barred; that is, we invoke a rule of procedure, to-wit: collateral estoppel, and deny Pruett relief on any of these issues. I regard this type of procedural bar as viable in post-conviction death penalty litigation.

B.

There are two other procedural bases upon which the majority would hold that consideration of the merits of Pruett’s present application is barred. First, none of the fifteen remaining points — issues B.D., F.-L, L.-S. — were raised on direct appeal. Second, seven of those fifteen points were not technically preserved by timely objection or motion in the trial court. I regard these procedural bars as inappropriate and unnecessary in post-conviction death penalty litigation.

I have on several occasions set forth my views that these types of procedural bars have at best a limited role in this type case. In Hill v. State, 432 So.2d 427, 443-451 (Miss.1983), I explained why on direct appeal these two types of procedural bars should almost never be enforced, absent a conscious waiver by the defendant at trial. In In re Evans, 441 So.2d 520, 533 (Miss.1983), and King v. Thigpen, 441 So.2d 1365, 1370 (Miss.1983), I explained how, on post-conviction proceedings, these two types of procedural bars should not preclude consideration of petitioner’s claims on the merits provided a cause or prejudice test be met.

I am very much aware that none of my opinions in these cases have been joined by a majority of the members of this Court. Indeed, in at least five cases within the past year this Court invoked these sorts of procedural bars to avoid a decision on the merits of one or more of a condemned prisoner-petitioner’s error coram nobis application. See Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Smith v. State, 434 So.2d 212 (Miss.1983); In re Evans, 441 So.2d 520 (Miss.1983); and King v. Thigpen, 441 So.2d 1365 (Miss.1983).

In this context, I recognize my obligation to consider whether the point has been decided so that I am bound under notions of stare decisis to adhere. Specifically, I have considered carefully whether the majority opinions in Wheat, Edwards, Smith, Evans and King establish a rule of law that, in all cases where a state prisoner seeks post-conviction relief, the courts of this state have no authority to consider the merits of the prisorier’s claim if he either failed to raise the point on direct appeal or failed timely to preserve the point in the trial court. My reading of the majority opinions in these five cases makes it clear to me that we have no case which squarely so holds.

Beyond that, it is no secret that we have cases — non-capital cases at that — which hold precisely the contrary of what the majority says is the office of these types of procedural bars. See e.g., Fondren v. State, 199 So.2d 625 (Miss.1967); cf. Caldwell v. State, 443 So.2d 806 (Miss.1983) (Dan M. Lee, J., dissenting); In re Evans, 441 So.2d 520 (Miss.1983) (Robertson, J., dissenting, § 11(B)).

In the final analysis, however, I consider it my duty to continue to suggest error in our use of procedural bar in these cases on fundamental policy grounds. As a matter of intuitive as well as deductive logic, the interests of justice simply are not served by what we are doing.

Having said this, I have now studied carefully the merits of Pruett’s remaining fifteen points. Most present pure questions of law or at most questions that can be decided on the record now before the Court. I find each point manifestly without merit. See Rule 8.07, Uniform Criminal Rules of Circuit Court Practice; Sanders v. State, 440 So.2d 278, 284-85 (Miss.1983); Tiller v. State, 440 So.2d 1001, 1004 (Miss.1983). Were I writing for the Court, I would, of course, set forth with some specificity the reasons why these claims as a matter of law entitle Pruett to no relief. In the present setting, only two need be mentioned specifically.

Pruett’s Point Q. is that this Court on direct appeal performed a constitutionally inadequate review of his death sentence. Here we encounter an issue substantially similar to that pending before the Supreme Court of the United States in Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982), cert. granted, — U.S. -, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983).

While I recognize that the Supreme Court could well prove me wrong, my study of the point reflects no basis for believing that our review of Pruett’s sentence has in any way been deficient. I regard the matter at least as clear as it appeared to the Supreme Court of the United States in Maggio v. Williams, — U.S. -, 104 S.Ct. 311, 78 L.Ed.2d 43 (1983).

Pruett’s Point S. raises the familiar wolf cry of ineffective assistance of counsel. Specifically, Pruett charges that the alleged ineffectiveness of his trial counsel denied him rights secured by the Sixth and Fourteenth Amendments to the Constitution of the United States. By its very nature, of course, this issue could not at this stage of the proceedings be procedurally barred from consideration on the merits. Read v. State, 430 So.2d 832, 836-42 (Miss.1983).

I have reviewed Point S. and the factual matters submitted in support thereof to determine whether Pruett has here stated a claim upon which relief may be granted. Compare Callahan v. State, 426 So.2d 801 (Miss.1983) with Sanders v. State, 440 So.2d 278, 284-85 (Miss.1983); and Tiller v. State, 440 So.2d 1001, 1006 (Miss.1983). In my view, even though Pruett may prove everything he has alleged on this point he will have failed as a matter of law to show entitlement to any relief. At trial and on direct appeal Pruett had the benefit of defense counsel more vigorous and competent than I have seen in any other capital murder case to come before this Court.

The effective assistance of trial counsel issue is also presently being rehashed before the Supreme Court of the United States. See Washington v. Strickland, 693 F.2d 1243 (11th Cir. [former 5th Cir., Unit B] 1982), cert. granted — U.S. -, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983); United States v. Cronic, 675 F.2d 1126 (10th Cir.1982), cert. granted — U.S. -, 103 S.Ct. 1182, 75 L.Ed.2d 430 (1983). Quite likely new and more precise guidelines on this troublesome issue will soon emanate from that Court. For the present, it is inconceivable to me that the Washington and Cronic cases will produce any rules which, when applied to the facts of this case (as we glean them from Pruett’s present application as well as the trial record before this Court), would require a holding that at his trial Pruett was denied effective assistance of counsel.

In short, I would deny Pruett’s points Q. and S. as a matter of law and on their merits, procedural niceties to the contrary notwithstanding.

III.

There is a serious problem with our procedural bar holdings in Wheat, Edwards, Smith, Evans and King that I have heretofore overlooked. This problem exists in the context of the acknowledged popular imperative for the just and efficient administration and enforcement of our capital sentencing system. It arises from our responsibility as the highest court of a sovereign state vested with front line responsibility for the development of criminal constitutional rules designed to implement the Supreme Court’s mandate for guided discretion capital sentencing systems. Its urgency is accentuated by growing public dissatisfaction with seemingly interminable delays in death penalty litigation, delays seemingly unrelated to service of the interests of justice.

A review of the error coram nobis applications that have come before this Court, beginning with Wheat, makes clear that they often raise the same issues, over and over. This is particularly true of constitutionally grounded issues surrounding the sentencing phase and appellate review. We fail properly to regard the interests of judicial efficiency when, instead meeting such issues head-on and authoritatively deciding them on their merits (after the full briefing we regularly receive in these matters), we hold them procedurally barred five cases in a row. Particularly is this so when we realize that we will continue to encounter the issue in practically every post-conviction petition until it is decided authoritatively on the merits either in this Court or in the Supreme Court of the United States.

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), introduced a new era. Bifurcated trials and appellate sentence review were theretofore unheard of in Mississippi — as well as in most other jurisdictions. The seven-and-one-half years since Gregg have produced much “delay” and “confusion”. As lawyers know, this often occurs in the years immediately following enunciations of a major new principle of law. See, e.g., the aftermath of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and which I summarized briefly in Walters v. Inexco Oil Co., 440 So.2d 268, 272-74 (Miss.1983), and more recently the progeny of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405-408, 90 S.Ct. 1772, 1790-91, 26 L.Ed.2d 339, 359-61 (1970); and State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.1966). That process here has been more tedious than usual because human life is on the line, because “death is different”. See Hill v. State, 432 So.2d 427, 444-47 (Miss.1983) (Robertson, J., dissenting).

When this occurs, it becomes our responsibility to assist in fleshing out the new doctrine with deliberately considered holdings in individual cases as they arise. This we and our sister courts must do if the law is ever tb become settled. Only when the law has become settled will we begin to make progress toward consistent achievement of the twin ends of finality and justice in death penalty litigation.

Our recent practice of invoking procedural bars in death penalty cases substantially delays the settlement of the law. We substantially put off the day when the post-conviction review of death sentences may begin to be brought to a conclusion within a reasonable period of time. So long as major questions remain unsettled, delay and confusion — and, perhaps even more significantly — seemingly arbitrary inflictions of the death penalty — will remain the order of the day.

In the past year in Wheat, et al., we have allowed our frustration with the magnitude and burden of death penalty adjudications to lead us to shortsightedness. We cut off our noses to spite our faces. We hold an issue procedurally barred five cases running when surely common sense suggests that a carefully considered and authoritative decision on the merits just once would establish a precedent that would greatly facilitate our review of all subsequent cases. If our goal be progress toward consistent achievement of the finality and justice in death penalty litigation, our recently charted course is in need of a substantial mid-voyage correction.

IV.

At the outset, the majority sets forth several cases describing the office of the writ of error coram nobis. We have numerous other cases which articulate the office of this writ in quite different terms. See, e.g., Windom v. State, 192 So.2d 689, 691 (Miss.1966); Love v. State, 221 So.2d 92, 94-95 (Miss.1969); Nelson v. Tullos, 323 So.2d 539, 543 (Miss.1975); Phillips v. State, 421 So.2d 476, 483 (Miss.1982). In each of these cases this Court has recognized that the writ of error coram nobis is appropriate in case of petitions such as that filed by Marion Albert Pruett. These cases hold that the writ may be used not only to bring to the Court’s attention some factual matter not appearing of record but also as this state’s post-conviction procedure for allowing collateral attack based upon alleged constitutional defects in the petitioner’s conviction or sentence. See King v. Cook, 287 P.Supp. 269, 271-272 (N.D.Miss.1968).

In a sense, the majority is correct in its restricted view of the office of the writ of error coram nobis. Historically, no one ever dreamt of that writ being used as a post-conviction procedural vehicle for consideration of alleged constitutional infirmities in a prisoner’s conviction or sentence. In the courts of other states and in the federal courts, the writ of habeas corpus has been used for this purpose. A decade ago, however, this Court clung to a restrictive construction of the writ of habeas corpus (see, e.g., Keller v. Romero, 303 So.2d 481, 483-84 (Miss.1974)), and ultimately took the then (historically) dubious step of declaring the writ of error coram nobis as this state’s post-conviction form of action for raising constitutional questions regarding a prisoner’s conviction or sentence. See Nelson v. Tullos, 323 So.2d 539, 543 (Miss.1975); see also, King v. Cook, supra.

Forty years ago, in Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48 (1943), the Supreme Court of Kentucky wrote “The writ of coram nobis appears to be the wild ass of the law which the courts cannot control.” 292 Ky. at 822, 168 S.W.2d at 55. This view of the writ was justifiably-held decades before Mississippi began experimenting with it. See King v. Cook, supra. Suffice it to say that, at least among those familiar with the past twenty years’ experience under Mississippi’s bastardized version of this “wild-ass”, the consensus is growing that the writ ought be gelded, if not forever interred. See e.g., Edwards v. Thigpen, 433 So.2d 906, 907 fn. 1 (Miss.1983).

In this context, I welcome as a breath of fresh air the Attorney General’s insistence that this (and presumably all subsequent) post-conviction collateral attack be treated as procedurally commenced under Rule 8.07 of our Uniform Criminal Rules of Circuit Court Practice. I regard our adoption of Rule 8.07 as effecting a coalescence of all post-conviction relief efforts into a single procedure. Edwards v. Thigpen, 433 So.2d 906, 907 fn. 1 (Miss.1983); Sanders v. State, 440 So.2d 278, 282 fn. 1 (Miss.1983); Tiller v. State, 440 So.2d 1001 (Miss.1983). Here, as in civil actions, it simply makes no sense that we have neither more nor less than one form of action. Compare Rule 2, Miss.R.Civ.P.

I would adopt the Attorney General’s view that we begin by assuming that this is a proceeding initiated under Rule 8.07 and go from there. In this view the description of the office of the writ of error coram nobis set forth at the outset of the majority opinion becomes irrelevant.

V.

On page 827, the majority opinion, for reasons that wholly escape me, castigates present counsel for Marion Albert Pruett. I take exception to those comments.

Representation of one charged with a capital crime is one of the most serious— and most unpleasant — responsibilities that may be visited upon a member of the bar. When the prisoner has already been convicted and sentenced and that sentence has been affirmed on direct appeal, acceptance of the case by new counsel becomes doubly onerous. They operate under severe time constraints coupled with the certain knowledge that their client’s life is on the line. Yet present counsel for Pruett have taken on this burden and have performed it with notable competence and professionalism. Indeed, it is because of the competence with which the matter has been presented by counsel for Pruett that I can be satisfied in my own mind that the vote I cast in this case is a proper one.

It is unfortunate that the majority opinion characterizes Pruett’s present counsel as

“Johnny-Come-Latelies” who, in the opinion of this writer, end up causing their client more grief than relief.

(Page 827). The statement becomes all the more anomalous when it is remembered that in at least seven prior Mississippi death penalty cases, which reached the procedural stage Pruett’s case is now at, orders were subsequently obtained vacating the death sentence. See Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981); Jordan v. Watkins, 681 F.2d 1067 (5th Cir.1982), clarified sub nom. Jordan v. Thigpen, 688 F.2d 395 (5th Cir.1982); Bell v. Watkins, 692 F.2d 999 (5th Cir.1982); Voyles v. Watkins, 489 F.Supp. 901 (N.D.Miss.1980); Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981); Reddix v. Thigpen, 554 F.Supp. 1212 (S.D.Miss.1983); Jones v. Thigpen, 555 F.Supp. 870 (S.D.Miss.1983).

In the context of my certain knowledge of my own responsibilities in this last gasp stage of Pruett’s case before the Courts of the State of Mississippi, I am grateful to his present counsel. For one, I am not offended that new points have been raised not presented on direct appeal. Rather, I compliment counsel for the zeal and, again, the professionalism with which the matter has now been presented. Before I vote finally to condemn a fellow child of God to death in the gas chamber, I want to be as certain as is humanly possible that his conviction and sentence are consistent with the Constitution of the United States and with the Constitution and laws of the state of Mississippi. Timid counsel are of no help in this regard.

I would recall the words of Justice Hawkins dissenting in Johnson v. State, 416 So.2d 383 (Miss.1982):

Each generation of free men owes a debt of gratitude it can never repay to those courageous lawyers in our history who have risked their livelihood, their liberty, and some even their lives in defending an unpopular cause, or an accused charged with a loathsome or heinous offense.

416 So.2d at 396. These words apply to post-conviction counsel as well as trial and appellate counsel.

I regard the representation afforded Marion Albert Pruett by his present counsel — as well as the representation afforded him by trial and appellate counsel — to be within the spirit of these words of Justice Hawkins. In a word, I regard as heroic the performance by all counsel for Pruett at all stages of the proceedings against him. See generally my recent article, The Lawyer as Hero, 53 Miss.L.J. 431 (1983). Lawyers who so serve are deserving of our gratitude.

PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ., join in this opinion.

      . After careful study of the matter while pending on direct appeal, I concluded without serious reservations that Pruett had been convicted and sentenced consistent with the Constitution of the United States and consistent with the Constitution and laws of the State of Mississippi. Accordingly I voted with a majority of the Court to affirm and subsequently to deny rehearing.

      .My opinion in the Hill case was joined by Chief Justice Patterson. My opinion in Evans was joined by Justices Hawkins and Prather. My opinion in King was joined by Chief Justice Patterson and by Justices Hawkins and Prather. There is, of course, no reason to repeat my previous discourses on this subject. I refer here to my opinions in Hill, Evans and King, and I trust it is apparent that what I have said in those cases has equal application here.

      . I have analyzed most of our recent cases in my dissenting opinion in Evans, 441 So.2d at 528. That discussion should be deemed incorporated here by reference.

      . For a summary of the issues pending in Harris, and the application of their pendency to specific cases, compare and contrast Autry v. Estelle, 464 U.S. -, 104 S.Ct. 20, 78 L.Ed.2d 1 (1983) (White, J., in Chambers) with Maggio v. Williams, — U.S. -, 104 S.Ct. 311, 78 L.Ed.2d 43 (1983); see also, Balmer, The Question of Proportionality, 70 A.B.A.Journ. 54 (1984).

      . On direct appeal Pruett’s former counsel assigned only four errors while on the instant application new counsel have raised nineteen points. This in no way suggests inadequacy of counsel on direct appeal. It is a tried and proven effective appellate tactic to concentrate on a small number of "strong" issues. Successful appellate counsel routinely eschew assignment of a plethora of errors. They wish to avoid deflecting the Court’s attention from the appellant’s strong points. Common sense informs appellate counsel that assertion of frivolous points may undercut one’s credibility on the point or two that may have merit.
      Pruett’s counsel on direct appeal chose to concentrate on the issues of jurisdiction and a jur- or's alleged violation of his oath. Clearly, these were Pruett's strongest points. They were competently briefed and forcefully argued. On the latter point, Pruett even picked up two dissenting votes. Pruett v. State, supra, 431 So.2d at 1110-1111. Assuming a constitutional right to effective counsel on direct appeal, I regard that Pruett has enjoyed that right.
      As I have said elsewhere, I appreciate present counsel’s competence and thoroughness in bringing to our attention fifteen new points. I regard this view as wholly consistent with the proposition that Pruett had effective assistance of counsel on direct appeal.

      . To illustrate the point stated above, consider the following:
      (a) Pruett’s Point M urges that improper jury instructions were given at the sentencing phase of his trial. The majority refuses to address the merits of the claim on grounds that it is procedurally barred. In at least four of our 1983 post-conviction death penalty decisions, we have been presented with similar, if not legally identical, arguments that improper jury instructions were given at the sentencing phase of a capital murder trial. Today, for the fifth consecutive time, we hold consideration of the merits of this issue barred by the petitioner’s procedural defaults either at trial or on direct appeal. See Wheat v. Thigpen, supra, 431 So.2d at 488; Edwards v. Thigpen, supra, 433 So.2d at 908; In Re Evans, supra, 441 So.2d at 522; King v. Thigpen, supra, 441 So.2d at 1371. We know that there are dozens of capital murder cases yet to be heard in this Court, in each of which if affirmed on direct appeal we may be certain that post-conviction proceedings will be brought. We know that in a substantial number of these the very same issues regarding jury instructions at the sentencing phase will be raised. To me, it seems appropriate and efficient that we consider and decide the issue on its merits.
      (b) Pruett’s Point N urges that improper closing arguments were given at the sentencing phase of his trial. The majority refuses to address the merits of the claim on the grounds that it is procedurally barred. In at least four of our 1983 post-conviction death penalty decisions, we have been presented with similar, if not legally identical, arguments. Today, again, for the fifth consecutive time, we hold consideration of the merits of this issue barred by the petitioner’s procedural defaults either at trial or on direct appeal. See Wheat v. Thigpen, supra, 431 So.2d at 488; Edwards v. Thigpen, supra, 433 So.2d at 908; Smith v. State, supra, 434 So.2d at 216; King v. Thigpen, supra, 441 So.2d 1365. Again it would seem appropriate and efficient to consider and decide the issue on its merits.
      (c) Pruett’s Point P urges failure to require an adequate pre-sentence report during the sentencing phase of his trial. Again, the majority refuses to address the merits of the claim on grounds that it is procedurally barred. In at least two of our 1983 post-conviction death penalty decisions, we have been presented with similar, if not legally identical, arguments regarding the alleged failure to require an adequate pre-sentence report during the sentencing phase of a capital murder trial. Today, for the third time, we hold consideration of the merits of this issue barred by the petitioner’s procedural defaults either at trial or on direct appeal. See Smith v. State, supra, 434 So.2d at 217-218; and In re Evans, supra, 441 So.2d at 523.
      (d) Pruett’s Point Q urges alleged inadequate appellate review of the death sentence imposed upon him. Today, for the fourth time within the past year, we hold consideration of the merits of this issue barred by the petitioner's procedural defaults either at trial or on direct appeal. See Smith v. State, supra, 434 So.2d at 218; In re Evans, supra, 441 So.2d at 523.

      . The Kentucky Court’s view receives information elaboration in McPherson, Coram Nobis: The Wild Ass of the Law, 11 Loyola L.Rev. 100 (1962).

      . The only persons who would question the sub-stantiality of these pressures — which are unlike any other a lawyer encounters — are those who have never experienced them.

      .I am well aware of the probability that Pruett will seek relief in the courts of the United States via federal habeas corpus. 28 U.S.C. § 2254. As I have urged elsewhere, however, I insist that it is our responsibility to decide these cases as a true court of last resort, as though there were no other court, and as though, if we affirmed, the sentence of death would surely be executed.


text:
    In re INQUIRY CONCERNING A JUDGE, JACK H. ODOM, 81-095.
    No. 55201.
    Supreme Court of Mississippi.
    Jan. 18, 1984.
    Doyle L. Coats, Hopkins, Logan, Vaughn & Anderson, Gulfport, for Miss. Commission on Judicial Performance.
    Stone D. Barefield, Hattiesburg, for Jack H. Odom.
   ORDER

The joint motion of the Mississippi Commission on Judicial Performance and the respondent, Justice Court Judge Jack H. Odom, to accept the findings of fact and recommendations for discipline made by the Commission has been examined by a panel of the Court composed of Presiding Justice Vernon H. Broom, and Justices Ar-mis E. Hawkins and Dan M. Lee and found to be in order, the Commission’s findings of fact and recommendation should be accepted by the Court in the form and manner set forth therein, a copy of which is attached hereto.

It is, therefore, ordered that the Joint Motion for Approval of Recommendation filed by the Mississippi Commission on Judicial Performance is accepted by the Court, the Commission findings of fact is accepted by the Court, and the respondent judge, Jack H. Odom is fined the sum of $250.00 for which a judgment is hereby rendered upon which execution may issue if not paid in full within 30 days of the date of this order. It is further ordered that this order with the findings of fact and recommendation attached thereto shall be published in the Southern Reporter, Mississippi Cases as an official and permanent reprimand.

COMMISSION FINDINGS OF FACT AND RECOMMENDATION

INITIATION OF PROCEEDINGS

The formal complaint against the Respondent was filed with the Commission on March 9, 1983. It was personally served upon the Respondent on March 9, 1983. The Respondent’s answer was filed with the Commission on May 13, 1983.

HEARING

On September 7, 1983, a formal hearing was held in accordance with the Rules of the Mississippi Commission on Judicial Performance in Inquiry Concerning a Judge No. 81-095. The hearing was before a committee of the Commission, as provided by Rule 8C, consisting of Judge Harvey S. Buck, Presiding Judge; Judge Kenneth B. Robertson, Commission Chairman; and Mrs. Elizabeth Powers. The Commission’s Executive Director, the Honorable Luther T. Brantley, III, served as clerk. The Commission was represented by the Honorable Doyle Coats of Gulfport. The Respondent Judge, Jack H. Odom, Justice Court Judge, District 3, Forrest County, was represented by the Honorable Stone D. Barefield of Hattiesburg.

FINDINGS

The evidence adduced at the formal hearing having been considered, including the depositions of the Respondent, Judge Jack H. Odom; Honorable Donald Rogers; Honorable Web Heidelberg; Constable Jimmy Palmer; and the original complainant, Jimmy Clark Meeler, and the recommended sanctions agreed upon by counsel for the Commission and counsel for the Respondent, the Commission has found the following by clear and convincing evidence:

1.

Throughout the calendar years 1980 and 1981 and in January of 1982, the Respondent engaged in the collection of “bad checks”, i.e., checks which had been tendered to local merchants but which had been returned to those merchants by the payee bank because payment had been refused. These “bad checks” were given to Respondent for collection by various local merchants. The merchants would attach the check to a blank criminal affidavit and would sign the affidavit. Thereafter, the Respondent would notify his constable, Jim Palmer, that he had a bad check from the person who had passed the check. No court costs were prepaid and no docket entry was made by the Respondent at the time of receipt of the check. The makers of the “bad checks” were usually given an opportunity to contact the Judge and pay off the check plus “court costs”. At the time the Respondent received the amount of the check and “court costs”, he did not give a civil receipt but returned the “bad check”. At no time was the case ever docketed or any record made by Respondent of a civil suit.

2.

The Respondent's civil dockets are not properly maintained and contain many omissions such as dates affidavits are filed, information on judgments, pages not signed by the Judge, and incomplete information on return of process.

3.

That in a number of cases, the Respondent collected “bad checks” without the use of any affidavit, civil or criminal, or any process, summons or warrant being served.

4.

That in the case of State of Mississippi versus Jimmy Clark Meeler, Sr., the Respondent never made any entry whatsoever on his civil or criminal docket books and had no evidence of a criminal or civil case ever having existed at the time he collected the sum of the check involved, plus “court costs” from Meeler. When confronted with their absence by Meeler’s attorney, Respondent made said entry in his criminal docket book and collected the sum of $10.00, as court costs, from Forrest County.

5.

That Respondent’s action in conjunction with the check collection service, more fully described in Paragraph 1 hereinabove, generally constitutes willful misuse of judicial proceedings for personal gain under color of his office as a justice court judge.

6.

By engaging in the aforementioned conduct while holding the office of justice court judge, the Respondent violated Canons 1, 2 and 3B of the Code of Judicial Conduct, adopted by the Conference of Mississippi Judges on October 25, 1974. Canon 1 contains the following language, to-wit:

“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

Canon 2, Paragraph A of said Code contains the following language, to-wit:

“A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Furthermore, the Respondent has violated Canon 3B of said Code which contains the following language, to-wit:

“B. Administrative Responsibilities
(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.
(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.”

7.

In utilizing the criminal process or the threat of criminal process to collect civil debts, in failing to properly docket and process the “bad check” cases on his criminal or civil docket, by failing to collect the civil court costs deposit in advance from the merchants, by failing to keep the records required of his office and by collecting court costs from the county in cases which were never docketed, the Respondent has violated the Canons of the Code of Judicial Conduct. Said conduct further represents willful misconduct in office, willful and persistent failure to perform his duties, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, all in violation of Section 177A of the Mississippi Constitution of 1890, as amended.

8.

In mitigation the Commission finds that Respondent has cooperated with the Commission throughout the investigation and hearing process, that Respondent has admitted his mistakes and Respondent has shown a desire to conduct his office properly. Respondent further admits error in collecting the $10.00 costs from Forrest County in the Meeler case, having previously collected costs from Meeler, and he stands ready and willing to repay said $10.00 at the conclusion of these proceedings. The Commission further finds that the facts of this complaint have been made public through a civil action styled Jimmy Clark Meeler versus Jitney Jungle, which was tried to conclusion in the Forrest County Circuit Court prior to any complaint being filed with this Commission.

RECOMMENDATION

The foregoing constitutes the Commission’s findings by clear and convincing evidence that the conduct of Jack H. Odom constitutes willful misconduct in office, willful and persistent failure to perform the duties of his office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A of the Mississippi Constitution of 1890, as amended. The Commission recommends that the Mississippi Supreme Court accept the recommended sanctions agreed upon by counsel for the Commission and counsel for the Respondent that Respondent, Jack H. Odom be publicly reprimanded and fined $250, as provided by Section 177A of the Mississippi Constitution.

Respectfully submitted,

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

/s/Kenneth S. Robertson KENNETH B. ROBERTSON CHAIRMAN

DATE: November 11, 1983


text:
    Johnnie Lynn DAVIDSON v. Claudie Aaron DAVIDSON.
    No. 54106.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    Robert D. Jones, Martin & Jones, Meridian, for appellant.
    Robert W. Bailey, Sandusky, Bailey, For-tenberry & Stephenson, Meridian, for ap-pellee.
    Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.
   Appeal from Chancery Court, Lauderdale County; Jerry G. Mason, Chancellor.

AFFIRMED.


text:
    Eddie BEALS v. STATE of Mississippi.
    No. 54631.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    Henry J. Cook, III, Cook, Tucker & Sharp, Bay St. Louis, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Hancock County; Leslie B. Grant, Judge.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.


text:
    Frank WHITTEN, Jr. v. STATE of Mississippi.
    No. 54048.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    Roger H. McMillin, Jr., New Albany, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   Appeal from Circuit Court, Benton County; W.W. Brown, Judge.

REVERSED AND REMANDED FOR A NEW TRIAL.

WALKER and BROOM, P.JJ., ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


author: BOWLING, Justice,

text:
    Elzie RUFFIN v. STATE of Mississippi.
    No. 53652.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    Morris C. Phillips, Jr., Wright & Phillips, Carthage, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Newton County for the crime of murder and sentenced to serve a term of life under the direction of the Mississippi Department of Corrections.

We need to address only one assignment of error which assignment requires a reversal of the cause. This is that the lower court erred in refusing appellant’s requested instruction that if they found certain facts to exist they could find the appellant guilty of manslaughter. This refused instruction read as follows:

The Court instructs the jury that if you find beyond all reasonable doubt and to a moral certainty from the credible evidence that the defendant'did kill the deceased but that same was not done with premeditation or malice aforethought but was done in a sudden heat of passion, then you may find the defendant guilty of manslaughter and the form of your verdict may be:
“We, the jury, find the defendant guilty of manslaughter.”

This was appellant’s second trial, the first resulted in a hung jury and a mistrial was declared.

Appellant and the deceased had been married approximately twenty-four years and had eight children, most of whom lived with the appellant and his wife. Appellant had no prior criminal record and had held responsible jobs. At the time of his arrest, he was working as a uniformed security guard for several different employers. He would spend different times, principally at night, on the premises of each and would inspect the premises to insure security at various times.

It was admitted that for a number of months the deceased wife had been living periodically with another man in his apartment in a different section of town. On many of these occasions, she would take one or more of the children with her. On the night preceding the morning of her death, the deceased wife spent the night with her paramour and had taken one of the young sons with her the entire time. The facts are uncontroverted that when the appellant came home early in the morning after performing his night’s work, he found the above situation to exist and went to the paramour’s apartment, secured his wife and son and took them home.

There were two witnesses to the alleged shooting of the deceased by appellant. One female witness lived a short distance away and across the street. She testified she heard the two arguing and heard a shot after which she saw the wife fall to the ground in the front yard of their home. She could not see appellant at that time.

A Newton County Deputy Sheriff lived next door to appellant and his family. As the day was Saturday, he was sleeping late when his wife awakened him advising that the young Ruffin boy was at the door seeking assistance. The deputy sheriff went out and saw appellant and his wife in their yard. He went to the scene and, according to him, found appellant to be very mad and walking round and round his wife in an obviously agitated and emotionally disturbed condition. The appellant, according to the deputy sheriff, kept repeating what his wife was doing and stating that he should kill her. The wife had a purse over her arm at the time.

The deputy sheriff further testified that as he was unarmed and the appellant was in such an agitated condition, he was going back to his house to call for law enforcement assistance. As he was going in his door, leading from his carport into the house, he heard a shot. He looked around and saw Mrs. Ruffin falling. He promptly went back to the scene, where appellant voluntarily surrendered his gun and gun-belt. Examination revealed that one shot had entered Mrs. Ruffin over her left eye and that she was dead.

Appellant confirmed what has hereinbe-fore been related and further testified that after the deputy sheriff was going into his house to get assistance, his wife slapped him and began attempting to take his pistol, which was in a holster which he had in connection with his uniform and the activities as a security guard. His testimony was that they were struggling over the possession of the pistol when it fired and Mrs. Ruffin was killed.

We hold that the lower court committed reversible error by refusing the submitted instructions on manslaughter. In Martin v. State, 112 Miss. 365, 73 So. 64 (1916); where the occurrence was in the nature of a fight between two persons in a heated atmosphere, and one is killed by the other, we held that the accused is entitled to permit the jury to consider the lesser included offense of manslaughter. Only in cases where the evidence could only justify a verdict of murder, should a requested manslaughter instruction be refused. See Norman v. State, 385 So.2d 1298 (Miss.1980); Hammock v. State, 379 So.2d 323 (Miss.1980); Grace v. State, 375 So.2d 419 (Miss.1979); Presley v. State, 321 So.2d 309 (Miss.1975); and Pittman v. State, 297 So.2d 888 (Miss.1974).

Mississippi Code Annotated, Section 97-3-35 (1972), provides as follows:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

As hereinbefore stated, we held in Martin, supra, that the instruction based on this lesser degree of manslaughter should be given unless the facts would not justify such an instruction. In a number of cases, we have been just as firm that if the facts are sufficient to present the question to the jury, the manslaughter instruction should be given. Johnson v. State, 416 So.2d 383 (Miss.1982); Dase v. State, 356 So.2d 1179 (Miss.1978); Lee v. State, 130 Miss. 852, 94 So. 889 (1922); and Echols v. State, 110 Miss. 577, 70 So. 694 (1916).

The testimony of the two witnesses and the appellant clearly reveal sufficient evidence for the jury to have reached the conclusion that appellant was guilty only of the lesser included offense of manslaughter. Because of the error of the trial judge in refusing this requested instruction, we are forced to reverse and remand the cause.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, J«L, concur.


author: WALKER, Presiding Justice,

text:
    Robert FORD a/k/a Robert Forbes v. STATE of Mississippi.
    No. 54663.
    Supreme Court of Mississippi.
    Jan. 25, 1984.
    M. Charles May, Jackson, for appellant.

      Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein appellant was indicted and tried for armed robbery. Upon conviction he was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections; 10 years suspended, 15 years to serve. Aggrieved with the lower court’s ruling, he has perfected his appeal to this Court.

The judgment and sentence of the circuit court must be reversed and this cause remanded for a new trial for the reason that the state failed to produce a statement of the defendant to a detective of the Jackson Police Department on the day after the robbery and which statement had been transcribed and incorporated into a police report.

Prior to the officer testifying, Ford, through his attorney, stated that a motion had been made for discovery of all statements, oral or written, made by his client to any officer or to anyone else. The appellant contends his request for discovery was made prior to trial. This assertion is not denied by the state.

Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice reads in pertinent part, as follows:

The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
2) Copy of any recorded statement of the defendants to any law enforcement officer; ...

It was not until the state’s witness, Robert Patton, who was called in rebuttal in order to impeach defendant’s testimony that Ford’s counsel became aware of the existence of the recorded statement. Ford, while testifying in his own behalf, denied that he had been in the vicinity of the Taylor Maid Convenience Store (the location of the robbery) on the night in question. Officer Patton, however, testified that Ford, while being questioned, admitted being in the area of the Taylor Maid Store on the night of the robbery.

In Jackson v. State, 426 So.2d 405 (Miss.1983), this Court held it was error for the lower court to deny appellant’s motion to instruct the jury to disregard or grant a mistrial after admitting testimony on rebuttal concerning an incriminating statement which was transcribed after having been made by the defendant to a law officer and had not been furnished to defendant’s counsel in accordance with the request for discovery under Rule 4.06. Defense counsel had not been made aware of the statement until he noticed the officer reading or refreshing his memory from some sort of writing during rebuttal. The writing, a written memorandum, was held to be a discoverable statement.

In the more recent case of Morris v. State, 436 So.2d 1381 (Miss.1983) we noted: “That portion of Rule 4.06 which mandates the production of statements made by an accused, in whatever form preserved, has been authoritatively construed by this Court in Jackson v. State, 426 So.2d 405 (Miss.1983).” In Morris, as in the present case, the defense counsel made a request for production of any statements made by the defendant to law enforcement officers. Shortly after the defendant's arrest he was interviewed by several officers who tape recorded the interview and later had it transcribed verbatim. Only one page of the transcribed interview contained information relating to the case before the court. It was not until the state’s witness, who was called in rebuttal and produced the statement in order to impeach defendant’s testimony, that counsel became aware of its existence. We held that the statement was discoverable under Rule 4.06 and stated “We reverse here because the State was obliged to produce the statement but didn’t, not because Morris was prejudiced.”

In response to whether or not such request must be in writing or not, we held:

We hold that, where no discovery order has been entered, the request for discovery under Rule 4.06, to be enforceable, must be in writing. We emphasize our past holdings that a formal motion and court order are by no means necessary. The parties are free to proceed, indeed are encouraged to proceed, informally and without invoking the processes of the court (which, to be sure, are available in the event disputes should arise). A letter or other similar informal written format may be employed in making the request for discovery under the above rule.

436 So.2d 1387.

Although this writer dissented in Moms, being of the opinion prejudice should be shown, the majority was of a different view and the dictates of Morris must be followed.

The remaining assignments of error we find without merit requiring no further discussion.

For the above reasons, the judgment and sentence of appellant are reversed and this cause remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . This ruling with regard to the discovery rule was given prospective application only. (The opinion in Morris was handed down on September 7, 1983).


text:
    Joseph Carl BRINSON v. Betty Lee BRINSON.
    No. 54725.
    Supreme Court of Mississippi.
    Feb. 1, 1984.
    John B. Toney, Rainer & Toney, Brandon, for appellant.
    Bob Owens, Owens & Byrd, Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


author: FAULKNER, Justice.

text:
    UNITED STATES FIRE INSURANCE COMPANY v. SAFECO INSURANCE COMPANY.
    82-331.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Rehearing Denied Jan. 20, 1984.
    D. Edward Starnes, III of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
    H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
   FAULKNER, Justice.

This appeal is from the Circuit Court of Madison County granting judgment in favor of Safeco Insurance Company and against United States Fire Insurance Company for damages in excess of Safeco’s coverage for losses sustained from water leakage through insured’s roof onto its leasee’s merchandise. We reverse and remand.

The cause was tried and submitted to the court on the pleadings, stipulation of facts and issues, and testimony of witnesses taken by deposition. When the cause is tried in this manner, this court rules on the evidence as well as the application of the law, and there is no presumption in favor of the lower court’s finding of fact. Smith v. Dalrymple, 275 Ala. 529, 156 So.2d 622 (1963); Knowles v. Knowles, 246 Ala. 228, 20 So.2d 200 (1949).

The facts stipulated by the parties were presented as follows:

“AGREED SUMMARY OF UNDISPUTED FACTS
“United States Fire and Safeco are insurance companies which were authorized and qualified to write insurance in the State of Alabama at all times material to this action. James M. Folmar and Emory M. Folmar d/b/a Folmar Enterprises (hereinafter referred to as ‘Folmar’) own the premises located at 4710 University Drive, N.W., Huntsville, Alabama. On or about the 28th day of August, 1969, Folmar leased the premises to F.W. Woolworth (hereinafter referred to as ‘Woolco’). Woolco operates on the premises a retail department store marketing various types of merchandise.
“Folmar has two insurance policies which provide coverage in the event that losses are sustained by Woolco as a result of water leaking through the roof. The first insurance policy is the primary insurance policy. The primary insurance policy provides coverage for losses sustained up to One Hundred Thousand and no/100 dollars ($100,000.00) for each occurrence, with aggregate coverage limits up to Three Hundred Thousand and no/100 Dollars ($300,000.00). The primary insurance coverage is provided to Folmar by Safeco. The second insurance policy is an excess, or umbrella, insurance policy. The excess insurance policy provides coverage for losses which exceed One Hundred Thousand and no/100 Dollars ($100,000.00) for each occurrence. The excess insurance coverage is provided to Folmar by United States Fire.
“Since the time of its construction, there have been several problems with water leaking through the roof of the Woolco premises. The water leakage pertinent to this action began on or about November 23, 1979. In January of 1980, Folmar entered into a contract with Bob Hataway d/b/a Bama Roofing Company for re-roofing the entire roof. In March of 1980, additional damage caused by rainfall was sustained by Woolco when Bama Roofing Company failed to effectively cover a portion of the roof on which it was working. Following this incident, Folmar elected to have its own personnel complete the roofing job. The re-roofing was supposed to have been completed on or about August 14, 1980. However, additional water damage was sustained by Woolco in November of 1980. The roof repairs had not been completed by November of 1980 in that vent drains and pitch cups had not been installed. Between November 23, 1979, and August 15, 1980, Woolco sustained damages in the following amounts: Ninety Thousand One Hundred Thirty Six and 42/100 Dollars ($90,136.42) for damage to merchandise; Seventeen Thousand Five Hundred Thirty Seven and 65/100 Dollars ($17,537.65) for loss of earnings; Twenty Nine Thousand Seven Hundred Five and 15/100 Dollars ($29,705.15) for additional salaries and additional expenses for water control. The total damages sustained by Woolco during this period was One Hundred Thirty Seven Thousand Three Hundred Seventy Nine and 22/100 Dollars ($137,379.22).
“The merchandise which was damaged was sold for salvage on or about September 24, 1980. The total amount realized from the sale was Sixteen Thousand Two Hundred Sixty Nine and 93/100 Dollars ($16,269.93), which amount was paid to Woolco and reduced Woolco’s total loss to One Hundred Twenty One Thousand One Hundred Nine and 29/100 Dollars ($121,109.29). The arrangements for the salvage sale were made by Woolco and Safeco. Safeco treated the events described above as one occurrence within the meaning of its policy of insurance with Folmar. Accordingly, on or about September 17, 1980, Safeco Insurance Company issued its draft in the amount of One Hundred Thousand and no/100 Dollars ($100,000.00) to Woolco. Safeco has refused to make any further or additional payments on this loss.
“United States Fire was notified of the events described in this pre-trial order by Safeco on or about August 15, 1980. On March 2, 1981, United States Fire issued a draft in the amount of Twenty One Thousand One Hundred Nine and 29/100 Dollars ($21,109.29) to Woolco. This payment was made pursuant to an agreement that United States Fire was reserving any rights and causes of action which it might have against Safeco.” (emphasis added)

The question presented to this court is whether the additional damage caused by rainfall in March resulting from Bama Roofing’s failure “to effectively cover a portion of the roof on which it was working” was part of a single occurrence as defined by the insurance policy with Safe-co. The pertinent section of the policy defines “one occurrence” as follows:

“LIMITS OF LIABILITY
For the purpose of determining the limit of the company’s liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.”

This court has not defined the phrase “one occurrence,” and under the principles of contract and insurance law, this court must give it the meaning intended by the parties to the policy (i.e., the definition in the policy). In Alabama Farm Bureau Mutual Cas. Ins. Co. v. Goodman, 279 Ala. 538, 541, 188 So.2d 268 (1966), this court stated:

“Contracts of insurance, like any other contract, must be construed to give effect to the intention of the parties. If the terms are clear and unambiguous, there is no need for construction. Ambiguities will not be inserted, by strained and twisted reasoning, into contracts where no such ambiguities exist. Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920, and cases there cited.”

Appellant argues that the terms “substantially” and “general” are ambiguous. An ambiguous term is one which has “duplicity, indistinctiveness, or uncertainty of meaning.” Black’s Law Dictionary (5th ed. 1979). Although these terms are broad and judicial application of them in any given case is dependent upon the findings of fact, this alone does not make them ambiguous. This court does not find the terms ambiguous and will construe them with their common meaning and import. Goodman, supra.

Safeco argues that there was only one occurrence because water was dripping inside the store every day and because all of the damage was caused by water dripping through the ceiling. In his deposition, the assistant manager of the store made it quite clear that the leaks were all over the store and dripped every day he was in the store. However, the continuous nature of the dripping water is only one factor in analyzing whether or not there was only one occurrence.

U.S. Fire argues that there were two occurrences because some of the damage resulted from negligent acts of the roofing crew.

Herein lies the question, as posed by Safeco’s definition of the term “occurrence.” Did “substantially the same general conditions” exist from November 23, 1979, to August 15, 1980?

There was a condition which existed continuously. The roof of the store had cracks and holes, and the ceiling dripped water onto the floor and the merchandise. The dripping resulted from both rainwater accumulation and condensation. It is irrelevant whether the ceiling dripped every single day from November to August. In Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 61 (3rd Cir.1982), the third circuit stated:

“The fact that there were multiple injuries and that they were of different magnitudes and that injuries extended over a period of time does not alter our conclusion that there was a single occurrence. As long as the injuries stem from one proximate cause there is a single occurrence. Champion Int’l. Corp. v. Continental Casualty Co., 546 F.2d 502, 505-506 (2d Cir.1976), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977). Indeed, the definition of the term ‘occurrence’ in the Appalachian policy contemplates that one occurrence may have multiple and disparate impacts on individuals and that injuries may extend over a period of time [emphasis added].”

The definition in the policy cited in Appalachian is very similar to that in the policy in the instant case, and like application of it should be made.

The question then becomes: Did the injuries (damages) stem from one proximate cause?

This “cause analysis” was adopted in an early case addressing the application of a similar clause limiting liability in “one occurrence. In Truck Ins. Exchange v. Rohde, 49 Wash.2d 465, 471, 303 P.2d 659, 662 (1956), the Washington Supreme Court asked if “[t]here was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage.”

Since the Rohde decision the majority of courts have adopted the “cause” theory of analysis. See, Bartholomew v. Insurance Co. of North America, 502 F.Supp. 246 (1980); Annotation 55 A.L.R.2d 1300 (1957). One state court explained further that if the cause is interrupted or replaced by another cause, the chain of causation is broken and more than one accident or occurrence has taken place.” 8A Long, Insurance Law and Practice § 4891.25 at 18 (1981) (citing Olsen v. Moore 56 Wis.2d 340, 202 N.W.2d 236 (1972)).

In the case at hand, the negligent act of the roofing crew was a separate, intervening cause. The damage caused by the roofing crew’s failure to adequately cover the exposed portion of the roof was not proximate to the cracks and holes in the other areas of the roof; nor did the latter cause the former. The lack of a proximate causal link between the two is evident if we assume, hypothetically, that the roof had no cracks or holes prior to the re-roofing attempt by Bama Roofing. The resulting damage from the negligent failure to cover the exposed area would clearly have no relation to the condition of the roof prior to the repair attempt. Furthermore, the two events are easily distinguishable in time and space, and one event did not cause the other. For these reasons, such cases as Saint Paul-Mercury Indemnity Co. v. Rutland, 225 F.2d 689 (5th Cir.1955), and Tri-State Roofing Co. v. New Amsterdam Casualty Co., 139 F.Supp. 193 (W.D.Pa.1955), do not persuade this court that one occurrence had taken place in the instant case. Rutland, Tri-State, and their progeny involve fact situations where a single incident or simultaneous incidents resulted in multiple injuries or damages. To the contrary, these cases persuade this court that two occurrences have taken place.

Furthermore, this court is not persuaded by cases addressing the application of similar clauses in insurance policies to claims for flood damage. The federal law speaking to what constitutes a single occurrence from flood water is very specialized and has little application to the case at hand. See generally, Miller v. Macy, 526 F.Supp. 46 (D.Mass.1981).

For the foregoing reasons, we reverse the lower court decision and remand this cause for assessment of damages.

REVERSED AND REMANDED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Louis William DOOLEY and Hellon Dooley v. ARD OIL COMPANY, INC., and QueRay Latner.
    81-1066.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Jan. 20, 1984.

      James E. Atchison and Richard D. Horne of Hess, Atchison & Horne, Mobile, for appellants.
    A. Danner Frazer, Jr. and Roy W. Scholl, III of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for ap-pellees.
   EMBRY, Justice.

Louis William Dooley and Hellon Dooley appeal from a $70,000 judgment, entered in a tort action, in their favor against Ard Oil Company, Inc., and QueRay Latner. We affirm.

The sole issue raised on appeal is whether the trial judge erred in denying the Dooleys’ motion for a new trial based on inadequacy of damages.

The Dooleys owned the Red Oak Grocery, laundromat, and flea market in Kush-la, Alabama. Adjacent to the grocery stood their residence.

On 9 May 1980, QueRay Latner, in the course of his employment with the Ard Oil Company, delivered gasoline to the Red Oak Grocery. An explosion and fire occurred which caused extensive damage to the grocery, flea market and laundromat as well as the Dooleys’ residence. At trial, the jury determined that the explosion and fire was proximately caused by the negligence of Latner and while acting in the line and scope of his employment with Ard Oil.

On appeal, the Dooleys do not challenge the jury’s findings of liability, but rather the sufficiency of the damages awarded. It is their contention that the only evidence of damages presented at trial proved the repair or replacement value of the property to be between $120,000 and $174,000. Therefore, they argue, the trial judge improperly denied their motion for a new trial as the jury’s verdict is contrary to the undisputed evidence. We cannot agree.

The proper measure of damages, in a tort action, for the destruction of a building or buildings is the difference between the fair market value of the property immediately before and after the destruction or damage. D. Corley and C.W. Gamble, Alabama Law of Damages, § 7-3 (1982); Illinois Central Railroad Co. v. Elliott, 17 Ala.App. 134, 82 So. 582 (1919); Southern Railway Co. v. Slade, 192 Ala. 568, 68 So. 867 (1915).

The record is replete with evidence from which the jury could have reasonably determined that the fair market value of all the property destroyed in the fire was only $70,000 in the aggregate. For example, the purchase price for the Red Oak Grocery and its contents as well as the adjacent residence was $45,000. Mr. Dooley himself placed the fair market value for the grocery and residence between $30,000 and $35,000. His tax basis for the grocery was $29,000 and the building and contents had recently been insured for $40,000.

Other testimony proved the contents of the laundromat were purchased for $3,500 in 1975. The total rent received from occupants of the flea market over the past five years equaled approximately $2,000.

“Jury verdicts are presumed to be .correct and no ground for granting a new trial will be more carefully scrutinized or more rigidly limited than that the verdict is contrary to the weight of the evidence. [Citations omitted.] This presumption, as to the correctness of jury verdicts, is strengthened when the trial judge refuses to grant a motion for new trial. [Citations omitted.] ...”

S.S. Kresge Co. v. Ruby, 348 So.2d 484, 488-89 (Ala.1977) (quoting Merchants Bank v. Cotton, 289 Ala. 606, 609, 269 So.2d 875 (1972)).

After a careful review of the entire record, we must conclude that the jury fairly returned a verdict for $70,000. The trial court properly denied the Dooleys’ motion for a new trial. Accordingly, the judgment is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ-., concur.


text:
    Thelma GRAY v. Ben SLAUSON, et al.
    82-150.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    John D. Cates, Jr., and Robert C. Ayers, Sr., Montgomery, for appellant.
    Richard B. Garrett of Rushton, Stakely, Johnston & Garrett and Michael S. Jackson of Melton & Espy, Montgomery, for appel-lees.
   EMBRY, Justice.

This case arose from a dispute over whether Slauson and Munson breached a written contract to make certain repairs to Gray’s home. Gray appeals from the judgment entered on a jury verdict absolving defendants of liability and from the order denying her motion for new trial. We affirm.

The Issues

Whether the trial court erred in directing a verdict for defendants on plaintiff’s fraud claim?
Whether the trial court erred in denying plaintiffs motion to reopen the case after the parties had rested, but before closing arguments?

The Facts

In October 1979, Mrs. Thelma Gray entered into a contract with defendants for repair work to be done on the exterior of her home. The contract provided for the shoring up and re-bricking of a portion of the brick veneer, filling cracks in the bricks on other portions of the house, removing and replacing the gutters, replacing any bad woodwork, and painting certain wood surfaces of the house. Gray was concerned about the cost of the work and wanted to spend as little as possible on it.

Defendants neither contracted for or performed an “underpinning” job for the entire house. “Shoring up” is a less expensive job than “underpinning.” The process of “shoring up” is an accepted and approved method of construction work and is altogether different from “underpinning.” The work was inspected and approved by the building inspector for the City of Montgomery. The testimony was uncontrovert-ed that neither “shoring up” nor the more expensive “underpinning" will guarantee that future settling will not occur, especially in a hot, dry summer such as that of 1980.

The work was completed during December of 1979. Gray testified that sometime in late summer or fall of 1980, cracks began to reappear in the brick veneer and on the interior plaster walls of the house. She testified further that the cracks that appeared in the late summer of 1980 were all over her house, in every room, but placed no blame upon defendants for any of these settlement problems anywhere except at the south end of the house where they had worked.

Slauson and a crew of workmen went to Gray’s home prepared to break out and redo the whole wall, but she prevented them from doing any further work because, as she stated at the time, she “had made other arrangements.” Apparently, the other arrangements consisted of calling an attorney, who subsequently filed this suit in her behalf.

The case was tried to a jury after evidence was adduced: oral testimony in addition to documentary and pictorial evidence, and expert testimony as well as that of lay persons, including plaintiff. The evidence was hotly disputed and, under proper instructions from the trial court, the jury resolved all issues in favor of defendants, save that relating to the fraud claim and punitive damages. The latter was resolved favorably to defendants by actions of the trial court, correctly without error. The trial court, after a full hearing on the motion to reopen the case, following extensive discovery and a fully adequate pretrial order, properly exercised its discretion in denying the motion to reopen. The rulings of the trial court and the evidence were reviewed upon motion for new trial. The denial of that motion was without error.

There appearing no error in the record of the trial of this case, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    Lavenia LOVETTE v. Valorie SPRINGER.
    82-424.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      William L. Utsey and William R. Christopher, Butler, for appellant.
    Edward P. Turner, Jr., Chatom, for ap-pellee.
   ALMON, Justice.

Lavenia Lovette, the widow of the intestate Virgil G. Lovette, appeals from the circuit court order setting aside the probate court decree of final settlement which granted Lavenia the fee simple title to certain real estate situated in Choctaw County, Alabama.

Section 12-22-21(5), Code 1975, provides that the aggrieved party may appeal to the circuit court within 42 days after any order, judgment or decree of the probate court pursuant to a final settlement. On April 19, 1977, the probate court entered its decree of final settlement granting Lavenia the fee simple title to certain real estate included in her husband Virgil’s estate. On October 2, 1977, more than 42 days after this probate decree, Valorie Springer, the daughter of Virgil, and the party aggrieved by the probate court order in favor of her mother, filed notice of appeal to the Choctaw Circuit Court. Because the appeal was untimely, the circuit court was without jurisdiction to hear the case. Therefore, the judgment setting aside the probate court order was coram non judice and void. See Bowe v. Pierson, 206 Ala. 250, 89 So. 711 (1921).

The appeal to this Court from a void judgment is due to be dismissed. Alabama State Bar v. Watson, 289 Ala. 729, 272 So.2d 240 (1972).

APPEAL DISMISSED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: PER CURIAM.

text:
    Thomas Warren SHEA v. STATE of Alabama, ex rel. James H. EVANS, District Attorney, Fifteenth Judicial Circuit of Alabama. George M. UNITUS, Jr. v. STATE of Alabama, ex rel. James H. EVANS, District Attorney, Fifteenth Judicial Circuit of Alabama.
    82-602, 82-609.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Ronald W. Wise of De Ment & Wise, Montgomery, for appellants.

      Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed on the authority of Eleven Automobiles v. State, 384 So.2d 1129 (Ala.Civ.App.1980). See, also, United States v. $36,125.00 in U.S. Currency, 510 F.Supp. 303, 305 (E.D.La.1980); and United States v. One 1970 Ford Pick-Up Truck, 537 F.Supp. 368 (N.D.Ohio 1981).

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.