author: ROBERTSON, Justice,

text:
    James A. TEDFORD v. Marie Tedford DEMPSEY.
    No. 53871.
    Supreme Court of Mississippi.
    Sept. 14, 1983.

      James D. Waide, III, West Point, for appellant.
    J. Tyson Graham, Graham, Segrest & Johnson, Columbus, for appellee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This child support modification proceeding raises several questions not heretofore authoritatively answered by this Court. Where future changing circumstances, such as increased expenses of the children, increased earning capacity of the father and mother, coupled with inflation, are at the time of the divorce reasonably forseeable, what is the effect of failure to include provision therefor in the child support provisions of a separation agreement? Where the mother later marries a man of substantial financial means, what effect, if any, does this have on the support obligations, first, of the father, and, second, of the mother?

In the proceedings below, the chancellor held that the increase in children’s expenses and father’s earnings constituted a material change of circumstances. He ordered the father’s child support obligation increased to the point where he is now providing roughly one-half the children’s reasonable material needs.

The net effect of the modification decree, of course, is that the mother is responsible for the remainder of the children’s needs. She remains so responsible in spite of the fact that she elects not to work. In this way the resources of her new husband have been considered — the mother is free to meet her support obligations from any resources in fact available to her.

The chancellor traversed these and other murky bogs with reasonable success. For the reasons described below, we affirm.

II.

A.

The parties to this seemingly unending domestic dispute are James A. Tedford (“James”) and Marie Tedford Dempsey (“Marie”). James and Marie were married to each other on April 20, 1968. Their marriage lasted 11 years. They have two children, namely: Tina Marie Tedford, born August 12, 1970, now thirteen years of age, and Dana Paschal Tedford, born January 14, 1974, now nine years of age.

On March 20,1979, James and Marie filed in the Chancery Court of Clay County their joint bill for divorce. They cited irreconcilable differences and invoked the procedures found in Miss.Code Ann. § 93-5-2 (Supp. 1982). Attached to their joint bill was the required separation agreement. The parties had agreed that Marie would have the custody of the two children and that James would pay $250 per month as child support.

About a month later, and before the agreement had been ratified by the Chancery Court, James lost his job. When he obtained new employment, his take home pay averaged only about $125 per week.

On May 22, 1979, the separation agreement was amended. James’ child support obligation was reduced from $250 per month to $150 per month. Two days later, on May 24, 1979, the Chancery Court of Clay County entered its final decree of divorce. That decree incorporated and ratified the amended separation agreement.

Since the entry of the final decree of divorce, a number of changes have occurred in the circumstances of the parties and of the children.

First, some 18 days later, on June 11, 1979, to be specific, Marie married Garland C. Dempsey. She and the two girls moved into a home already owned by Dempsey. The parties acknowledge that Dempsey is a person of some means, although the Chancery Court refused to permit testimony regarding the details of his resources.

Theretofore Marie had been employed as a receptionist with Blazon Flexible Flyers, Inc. (of which Dempsey has been President). Shortly after the divorce and contemporaneous with her marriage to Mr. Dempsey, Marie quit work. It is apparent that she has been living off of the resources provided by her new husband. Her standard of living has increased.

James A. Tedford’s circumstances have also changed since the May 24, 1979, divorce. For one thing, James is now earning $10.50 an hour and is bringing home a paycheck in the vicinity of $297 per week. James net earnings have more than doubled since the divorce and the amended child support agreement. Beyond that, James has taken a new wife. On June 6, 1981, he married the present Mrs. Tedford whose given name is Joanne. James’ new wife is employed and brings home approximately $533 per month.

The circumstances of the children have also changed. The amount of money necessary to support them has increased since the May, 1979, divorce. They are older and are engaged in more activities. No one disputes that it costs more to feed, clothe and support children as they grow older. On top of that, the period with which we are here concerned — May of 1979 through October of 1981 — is one during which the nation in general and Mississippi in particular experienced double digit inflation. The children’s change of circumstances is somewhat muddled by the fact that their school expenses seem to be less. At the time of the divorce in 1979, Tina was attending a private school while Dana was enrolled in a private kindergarten. Both children had enrolled in public schools by the time of the autumn 1981 hearings.

Marie testified without contradiction that in September of 1981 the reasonable monthly expenses of the two children combined was $561.75. In spite of the elimination of private school tuition payments, Marie testified that the expenses of the children have increased overall in the two and a half years since the divorce.

B.

The proceedings below pertinent to the instant appeal took place in two separate hearings. The first hearing was held on September 11, 1981, the second on October 29, 1981. The first hearing primarily concerned Marie’s request for an increase in child support. The second concerned cer-

tain medical expenses not involved in this appeal.

At the conclusion of the September 11 hearing, the Chancellor ordered James’ child support payments increased to $70 per week. This is roughly double the $150 per month James had been paying under the May 24,1979, divorce decree. In the course of his bench ruling the Chancellor made the following statement:

The Court can and will acknowledge its negligence in that at the granting of the divorce, it did not make sufficient inquiry as to child support. Gentlemen, the amount of child support in this case [the $150 per month] is below the basic requirements promulgated by the State Department of Public Welfare and is inadequate.

The Chancellor then recognized that the standard of living of the two children had improved since Marie’s marriage to Garland Dempsey. In this context the Court then correctly stated:

However, that standard of living is not something that can be imputed to the natural father if it is beyond and above his ability. Nor does the fact that the petitioner is not now required to work relieve her of her obligation to contribute to the support and maintenance of the children. From the figures that have been submitted, it is financially impossible for the father to pay an amount in child support equal to what is now demanded for them to be maintained in a standard to which they have become accustomed.

The Chancellor then ordered that James begin making child support payments at the rate of $70 per week beginning October 1, 1981. In so ordering the Chancellor made the following explanation:

It is not to be inferred that the amount of support presently to be awarded is in and of itself adequate, but the present financial circumstances of the father dictate the limitation and any remaining balances may be contributed by the petitioner through her present husband, if she elects not to work and desires to maintain such standards.

The hearing of other issues tendered was then recessed. No final decree was entered at that time.

On October 29, 1981, the proceedings resumed. The Court heard evidence concerning medical expenses, hospitalization and medical insurance, and the like — matters which are not involved in this appeal. At the conclusion of that hearing, however, the Chancellor made the following ruling from the bench:

The court, at a previous hearing, had modified the agreement of the parties to require the father to pay to the mother as child support the sum of $70 per week, beginning October 1. At the time of the entry of the separation agreement, the average hourly wage of the father was $5.00 an hour. The father testified that his present hourly wage is $10.50 an hour. The father had originally agreed to pay $150 per month, together with the cost of medical insurance, which has been determined to be $23.12 a month for a total monthly payment of $178.12. He now being relieved of the payment of the payment of medical insurance premiums, his required child support of $70 a week is actually an increase of only slightly more than $50.00 per month per child. The increased earnings of the father being more than doubled since the date of the separation agreement, together with the increased cost of child care, are in the opinion of the Court, justification for the modification as heretofore ordered. The Court is well aware that the father cannot maintain the children in a standard of living as provided by Mr. Dempsey and to which they have now become accustomed; but, nevertheless the amount of child support as now required by the Court of the father is, in the opinion of the Court, commensurate with the father’s station in life. [Emphasis added].

Thereafter, the Chancellor on October 29, 1981, entered the final decree from which this appeal has been taken. In pertinent part, this decree recites that:

The Court further finds that there has been a material change in circumstances since the rendition of the earlier decree.

The decree then provided for the increase in James’ child support obligation to $70 per week as described above.

James A. Tedford has perfected his appeal from the October 29, 1981, decree. The case has been fully briefed by the parties and the Court has received the benefit of the oral argument of counsel. This appeal is now ripe for a decision.

III.

Four premises need to be stated at the outset — and kept well in mind throughout.

We are first and foremost concerned about the material well being of the two Tedford children, now thirteen and nine years old. The legalistic arguments pro and con marshalled by counsel largely ignore this. All need be reminded that in cases such as this the best interests of the children are as always our touchstone. See Tammen v. Tammen, 289 Minn. 28, 182 N.W.2d 840, 841-842 (1970). In child support modification proceedings, as elsewhere, the chancellor is accorded substantial discretion and is charged to consider all relevant facts and equities, to the end that a decree serving the best interests of the children may be fashioned.

A second, seemingly countervailing consideration arises from felt institutional and societal needs. Matters once finally adjudicated should not be subject to relitigation. There is no such thing as a perfect child support decree, or even an ideal one. All are unsatisfactory, more or less. It is a rare case where both parents fail to feel a financial pinch. Allowing renewed litigation whenever one begins to feel that pinch would hardly be practicable. Conservation of judicial resources and the desire to hold to a tolerable minimum disruptions in post-divorce domestic tranquility have thus given rise to the rule that there may be no modification in a child support decree absent a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree sought to be modified. Bracey v. Bracey, 408 So.2d 1387, 1389 (Miss.1982); Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, § 9.05 (Supp.1980). This rule is little more than a family law variant of the familiar doctrine of res judicata. Unlike the circumstances which must be shown before child custody will be modified, the “change” here need not be an adverse one.

Third, there is no significance to the fact that we are here concerned with a court ratified child support agreement, made incident to an irreconcilable differences divorce. Miss.Code Ann. § 93-5-2 (Supp.1982). The rules governing this modification proceeding are the same as if the chancellor had made a support award after a contested divorce trial. Cf. Taylor v. Taylor, 392 So.2d 1145, 1147-1149 (Miss.1981). When the divorce decree was entered in this case on May 20, 1979, the child support provisions of the separation agreement became incorporated into the decree. They became a part of the decree. They are subject to modification only upon showing of a substantial or material change in circumstances since May 20, 1979.

Fourth, to the extent we are called upon to review findings of fact made by the chancellor, we are constrained by familiar rules. If we find substantial evidence supporting the chancellor’s fact findings, they are beyond our power to disturb. Anderson v. Watkins, 208 So.2d 573, 575 (Miss.1968); Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983). And, with respect to issues of fact where the chancellor made no specific finding, we proceed on the assumption that the chancellor resolved all such fact issues in favor of appellee, Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983), or at least in a manner consistent with the decree. Again, if there be substantial evidence undergirding such a “presumed finding”, we will not disturb it.

IV.

On this appeal, James A. Tedford argues vigorously that the increase in child support was ordered by the Chancellor to compensate for his prior “negligence”. At the conclusion of the September 11, 1981, hearing, the trial judge did indeed acknowledge “negligence” in approving a significantly inadequate child support award.

This Court has held that an alimony or child support award cannot be modified solely because the chancellor is convinced that he erred when the original award was made. Shaeffer v. Shaeffer, 370 So.2d 240, 242-243 (Miss.1979). Were we convinced the basis for the increase in child support was the Chancellor’s “realization” that he had approved an inadequate award two and a half years earlier, we would reverse. But this is not what happened.

Counsel seizes upon a single comment made by the Chancellor in his bench ruling following the September 11, 1981, hearing. No final decree was entered following that hearing. Rather, the matter was continued, and at the conclusion of the second hearing on October 29, 1981, the Chancellor stated:

The increased earnings of the father being more than doubled since the date of the separation agreement, together with the increased cost of child care, are in the opinion of the court, justification for the modification as heretofore ordered.

Then in the final decree of October 29,1981, the Chancellor expressly found that there had been “a material change in circumstances since the rendition of the earlier decree....”

It is clear to this Court that the bases of the Chancellor’s order for an increase in child support were the increase in the expenses of the children and the increase in the father’s earnings. The Chancellor found that these constituted a material change in circumstances.

Under our law an increase in children’s expenses may be a factor suggesting an increase in child support. A substantial increase in the father’s resources may also constitute a material change undergirding an upward modification of child support. Bracey v. Bracey, 408 So.2d 1387, 1389 (Miss.1982). Inflation since the original decree is also a factor to be considered. McKee v. McKee, 382 So.2d 287, 289 (Miss.1980); Bracey v. Bracey, supra, 408 So.2d at 1389. On the other hand, slight changes in income or expenses do not constitute a “material change in circumstances”. See Keller v. Keller, 230 So.2d 808 (Miss.1970).

Under the facts and the law, an order for increased child support was appropriate here. Even if it be presumed that the chancellor did in part rely upon his realization that he had been negligent in approving the original child support award, his decree appealed from here reached the right result under the law and the facts.

The chancellor will be affirmed where he reaches a result correct under the law and the facts, even though a wrong reason be assigned. Huffman v. Griffin, 337 So.2d 715, 723 (Miss.1976).

V.

James argues further that the changes that have occurred are, as a matter of law, not “material” changes because they were known or reasonably to have been anticipated back in May of 1979. He charges that Marie well knew that as the children grew older their expenses would increase, that she certainly knew that inflation would continue to make felt its sting. Most significant in James’ mind is his belief that Marie also knew she was going to marry Garland Dempsey once her divorce became final.

A.

James and Marie, like so many couples who divorce, have been at each other’s throat almost from the day of the divorce. The usual plethora of contempt petitions have been filed. This is not Marie’s first attempt to increase child support. We add this recurring situation to what we have noted above — and what anyone can reasonably anticipate: That children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.

James would have us hold here that, because these things were reasonably forseeable back in May of 1979 and because the separation agreement makes no reference to them, Marie has “waived” the claims she now makes. Surely, that cannot be the law. By the same token, because we “know” these things, we know that the chancery courts of this state will be swamped more than they already are if every increase in the father’s salary, every increase in the inflation rate were to generate a modification hearing (where, to be sure, the first question will always be whether the “change” is enough of a change to be classified as a “material change”).

Within the contemplation of our law elucidated in the cases cited above— Bracey, McKee, and Keller — there has been a material change of circumstances. The result we affirm here, however, may have been attainable by much more satisfactory means. Had James and Marie included in their separation agreement an escalation clause to provide for increases in children’s expenses and parents’ earning capacities, the agonies of the instant litigation likely could have been avoided. We cannot undo what has been done. We can and ought, however, speak to the future. In the child support provisions of their separation agreements, the parties generally ought to be required to include escalation clauses tied to the parents’ earnings or to the annual inflation rate or to some factored combination of the two. Though under the structure of the irreconcilable differences statute freedom of contract is exalted, there are limits. The statute requires that the chancellor find that “the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children ... ” Miss.Code Ann. § 98-5-2 (Supp.1982). The chancellor thus has the power and the responsibility, in the face of the reasonably forseeable, to require some sort of reasonable escalation clause tailored to the situation of the parties. Absent unusual circumstances that might render it inequitable, such a clause ought be in every child support agreement. This practice would have the twin virtues of more adequate and timely support for children and less frequent modification litigation.

B.

James’ claim that Marie “knew” she was about to rush into the arms of a wealthy new husband is arguably on a different footing. James suggests to us that Marie was content with $150.00 per month child support because she knew she would have access to Dempsey’s financial resources. Having made her deal knowing this, James would have her stuck with it, presumably for good.

The point is without force. We know of no reason in law, morality or common sense why a father’s obligation to support his children should be minimized because his ex-wife remarries well.

James’ argument overlooks other factors present in this case. In the original separation agreement, James had agreed to pay $250.00 per month. From the record before us, a plausible explanation of the reduction to $150.00 a month was Marie’s being reasonable in light of the fact that James lost his job. James would now have Marie stuck with all increases in the children’s expenses, real and inflationary, while his obligation would remain fixed at $150.00 a month—and while his weekly take home pay has more than doubled.

The Chancellor made no findings of fact that would guide us here. Under the fourth premise noted in Section III above, we are certainly not going to presume any findings in James’ favor. The absence of equity in James’ argument is sufficiently apparent that we are hardly surprised that the Chancellor ruled as he did. We decline to disturb his decree.

VI.

The Chancellor’s now affirmed finding that there has been a material change in circumstances is only the first step. What—and all—that does is preclude a successful res judicata plea to Marie’s application for increased child support.

James argues here, as he did below, that in no event should his child support obligation be increased because the children have now acquired a wealthy stepfather in the person of Garland C. Dempsey, Marie’s new husband. James puts his point two ways. Narrowly, he claims error in the Chancellor’s refusal to allow him to prove the details of Garland Dempsey’s earnings and resources. More generally, he argues that in making his decree for increased child support, the Chancellor failed to consider the children’s and Marie’s access to Dempsey’s resources, concededly substantial even though we don’t know the details.

We will consider James’ narrow point, and then his general one.

A.

James argues that the Chancellor committed reversible error when he refused to receive into evidence testimony regarding the earnings of Garland Dempsey. What occurred in the trial court on this point we set forth here in full. Marie is being questioned adversely by counsel for James. The following examination takes place:

DIRECT EXAMINATION BY MR. WAIDE
Q Mrs. Dempsey, you earlier testified that you quit work, shortly after your divorce, at Blazon, the company that your husband is president of. Have you sought any other employment since then?
A No, I have not.
Q Has your own standard of living increased or decreased since the time of your divorce?
A Increased.
Q What is your husband’s current annual salary by Blazon?
BY MR. GRAHAM:
Your Honor, I’m going to object to that on the grounds that it’s irrelevant.
BY THE COURT:
Sustained.
BY MR. WAIDE:
I don’t have anything further, Your Honor.

No proffer was made beyond this point.

In our view, the Chancellor committed no error here. Under the facts of this case, neither James’ nor Marie’s obligation to support the children was affected by Garland Dempsey’s earnings. The Chancellor ruled correctly. Dempsey’s current annual salary was irrelevant to the issues before the Court.

We note that there was no dispute at trial — nor here — that Garland Dempsey is a person of substantial means. The proof reflects that those means were and are sufficient so that Marie has been able to quit work and at the same time experience an increase in her standard of living.

Second, the Chancellor recognized Mr. Dempsey’s resources in two significant and as we hold legally correct ways. First, the Chancellor noted the significant increase in the children’s material standard of living. The Chancellor, however, held correctly that James was not responsible for child support beyond a standard of living for the children commensurate with his [James’] means and resources.

Next, the Chancellor correctly refused to attach any significance to the fact that Marie no longer works. He in effect held that Marie nevertheless had an obligation to contribute substantially to the support of the children. It matters not whether Marie fulfills that obligation out of her own resources and earnings or whether she utilizes the resources of her new husband which are obviously in fact available to her.

B.

James’ general point is that, in setting the amount of his child support obligation, the fact that the children have acquired a wealthy stepfather should be considered and his (James’) support obligation accordingly held at a minimum. The fallacy of his point is apparent. Such may best be explained in the context of a general summary of the legal process by which child support decrees are made.

Both father and mother have an obligation to support their children. This obligation is expressed in legal requirements, moral imperatives, and the psychological and emotional needs children have for tangible expressions of .their parents’ love. The forms of support demanded go far beyond the material. Our capacity to enforce any other than monetary support as required by law obviously is limited.

When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents. The reasonable needs of the children are obviously the beginning point in such inquiry. There is always some minimum level of food, clothing, shelter, day care, education, medical care and the like that must be provided. Above that, what is reasonable turns on the circumstances—and one of the major circumstances is the financial resources reasonably available to each parent.

Where the earning capacity and resources of each parent is such that each is reasonably able to provide for the support of the child or children, each should provide one half of the support. This, of course, will take the form of a decree directing that the non-custodial parent pay to the parent having custody at regular periodic intervals an amount determined to be fair and reasonable under the circumstances. No support decree is entered against the custodial parent. Obviously, if the custodial parent is not providing his or her share of support, the chancellor on proper application may step in.

We recognize that in most cases the father will in fact—and therefore in law— meet well over one-half the children’s reasonable financial needs and expenses. That this is so is not a discrimination against fathers. It is no more than a realistic recognition that in our society men still have a far greater earning capacity than do women. Still the rule extends no further than the facts of the particular case. Where the mother has greater earning power or access to greater resources than the father, the situation may well be reversed.

One reality, often overlooked, must be kept well in mind. Whatever the level of support the non-custodial parent is ordered to provide, the parent having custody necessarily provides the rest, monetarily and in kind. The Chancellor’s decree recognized this. When that decree is viewed in light of the general premises just stated, it becomes clear that the resources available to Marie upon her remarriage to Garland Dempsey were necessarily considered by the Chancellor and have in fact been utilized to support the children.

The modified child support decree requires that James pay child support of $70 per week. That is $35 per week per child— for daughters now thirteen and nine years old. Little awareness of the world is required to inform one that these amounts won’t go far. The remainder of the $561.75, plus the in kind service contributions, must come from Marie. But Marie is not working and has no resources other than her time and child rearing skills. It follows per force that Marie is fulfilling a substantial part of her support obligation through her new husband’s resources. And if more than $561.75 per month is in fact being spent on the children, this enhanced material standard of living is being provided wholly through Marie ex Garland C. Dempsey. We do not understand how James can complain of this.

We do not understand James to object to or complain of the proposition that $561.75 per month represents the reasonable monetary support needs of the children under the circumstances. Where, as here, James has only been ordered to finance 50 percent of those material needs, and where that amounts to only 23 percent of his income, we have no inclination to disturb the Chancellor’s decree.

VII.

Much of the energies of the parties and the trial judge have been consumed with squabbling over two rings. Previously, James had been ordered to return the rings to Marie. He then claimed he did not have them. The Chancellor then ordered James to give Marie the rings or their value.

The present assignment of error regards the Chancellor’s finding that the rings had a value of $1250. We have carefully reviewed this part of the proceeding. We have particularly noted James’ challenge to certain evidence offered by Marie to the effect that the two rings had a combined value of between $1600 and $1700.

Under all of the circumstances of this case, it is more than sufficient unto this day that on this issue we find no error and affirm.

VIII.

In the proceedings below, the Chancellor ordered that James pay to Marie the sum of $400 as attorneys fees. That award is here affirmed and, in addition thereto, James shall pay to Marie the sum of $200 to be applied toward her attorneys fees on this appeal.

AFFIRMED.

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

BOWLING and HAWKINS, JJ., not participating.

      . It is not clear from the record whether this new employment was obtained before or after the divorce.

      . There is no evidence in the record reflecting the combined monthly expenses of the children in May of 1979.

      . We refer, of course, only to changes occurring up through the date of the last hearing below, October 29, 1981.

      . See also our second premise in Section III above.

      . James argues that the children’s expenses have not increased. We have fairly stated all of the testimony on this point in Section 11(A) above. The trial judge obviously resolved the issue against James. Under our fourth preliminary premise stated in Section III above, this question of ultimate fact has been foreclosed.

      .At oral argument, James’ counsel readily conceded that it was to be expected that James’ earnings would increase over their May 1979 level. In fact, counsel advised us that prior to the disintegration of his first marriage, James had consistently earned far more than his May 1979 pay level.

      . We take judicial notice that lawyers in the practice of their craft of private lawmaking draft thousands of escalation clauses in a great variety of contractual contexts each year. Here is but another in the lawyer’s string of creative successes in helping people to cope with the ever changing circumstances in which they find themselves.

      . Just how the escalation clause should be drafted initially should be the subject of negotiation and agreement. What it ought be tied to — inflation rate, father’s income, children’s expenses — will vary from case to case, as will the designation of intervals at which child support will be escalated. In some cases it may be reasonable to provide for a reduction in support from the non-custodial parent where that party’s earnings decrease. Great latitude and discretion here as elsewhere should be afforded the chancellor in determining what is “adequate and sufficient”.

      .We recognize that the chancellor cannot make the parties agree to an escalation clause. Yet he clearly may refuse to approve the separation agreement, and thus refuse to grant the divorce, if the parties do not include it. Here we note a major defect in Section 93-5-2. It requires that the parties voluntarily agree on all custody and monetary matters before the divorce can be granted on grounds of irreconcilable differences. This has produced the less than desirable situation where one party or the other — generally the husband wanting to keep his child support obligation to a bare minimum-engages in plain and simple blackmail: “If you want this divorce, you’ll agree to my terms on money matters”. He relies on the normally salutary practice of chancellors of approving agreements negotiated with each party represented by competent counsel. If only alimony was thus bargained, we would not be so concerned. We know and see that innocent children, hurt enough by the divorce itself, are deprived of needed support by this legislatively sanctioned blackmail. We urge that the legislature at the 1984 regular session act on this matter.

      . We emphasize that nothing we say here in any way rests upon any assumption by us that Garland Dempsey, as stepfather, has a legally enforceable obligation to support these two children. Under facts such as those present here, Dempsey has no such obligation even though he stands in loco parentis to the children, the general and unsupported suggestion in Bunkley and Morse’s Amis, Divorce and Separation in Mississippi 233 (1957) to the contrary notwithstanding. We are inclined to the view taken by the Supreme Court of Iowa in Mears v. Mears, 213 N.W.2d 511 (Iowa 1973). The lower court had denied a child support modification petition partly on the ground that Mrs. Mears’ new husband stood in loco paren-tis and was obligated for their support. On appeal, the Iowa Supreme Court held:
      “When a stepfather has taken into his home his wife’s children by a former marriage ... the question of his duty to support his wife’s children while in his home should be limited to the extent their being in his home may have increased the cost of their maintenance by reason of a higher living scale than that experienced during the marriage of their father and mother.” 213 N.W.2d at 518.
      On different facts, a different result may follow. Where for whatever reason the natural father is unable to provide support, where the stepfather as an incident to the new marriage has agreed to support the children, or where he does so over a period of time and the mother and the children in good faith rely to their detriment on that support — in these and other situations — the best interests of the children and the equities of the particular case may be sufficient to require entry of a child support decree against a stepfather.

      .By “support” we include both monetary and “in kind” services. The custodial parent who in fact provides transportation service, washes the children’s clothes, helps with homework and the like is entitled to have these “in kind” contributions assigned a reasonable monetary value which in turn should be considered as a part of that parent’s overall contribution toward support of the children. This will often result in the non-custodial parent being required to pay more in out of pocket outlay than the custodial parent pays.

      . This will generally be so whether the father is the custodial parent or not.

      . See footnote 11, supra.


source: Caselaw Access Project

license: Public Domain

text:
    Albert BALL v. STATE of Mississippi.
    No. 54438.
    Supreme Court of Mississippi.
    Sept. 14, 1983.

      Albert Ball, pro se.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

Albert Ball, seeking clarification of his sentence, presents two questions: First, when on the same day and as a part of the same occurrence, a person assaults three police officers, may he be subjected to three separate charges of assault? Second, under such circumstances, may the accused be given three separate prison sentences which run consecutively?

We answer each question in the affirmative and uphold the Circuit Court’s order dismissing Ball’s petition.

II.

On August 19, 1982, the Grand Jury of Lowndes County returned three separate indictments against Albert Ball. In Case No. 7534, it was charged that on May 5, 1982, Ball committed a simple assault upon Doug Johnson, a law enforcement officer of Lowndes County, Mississippi. Next, in Case No. 7535, it was charged that on the same day, May 5, 1982, Ball committed a simple assault upon Carlton Howard, an officer of the City of Columbus Police Department. Finally, in Case No. 7536, it was charged that again on May 5, 1982, Ball committed a simple assault upon' Don Bailey, another officer of the City of Columbus Police Department.

Thereafter, on August 30, 1982, Ball appeared before the Circuit Court of Lowndes County, Mississippi, and entered a plea of guilty to each of the three charges.

In No. 7534, following his plea of guilty to the charge of assault on Officer Doug Johnson, Ball was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections, “said sentence to run consecutively with the sentences imposed in Case Nos. 7535 and 7536”.

In No. 7535, following his plea of guilty to the charge of assault on Officer Carlton Howard, Ball was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections, “said sentence to run consecutively with the sentences imposed in Case Nos. 7534 and 7536”.

In No. 7536, following his plea of guilty to the charge of assault on Officer Don Bailey, Ball was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections, “said sentence to run consecutively with the sentences imposed in Case Nos. 7534 and 7535”.

III.

The courts of this state are open to persons incarcerated at the Mississippi State Penitentiary raising questions regarding the term or duration of their confinement. See, e.g., Hill v. State, 388 So.2d 143, 146 (Miss.1980); Watts v. Lucas, 394 So.2d 903 (Miss.1981); Davis v. State, 429 So.2d 262, 263 (Miss.1983); Segarra v. State, 430 So.2d 408, 409 (Miss.1983).

Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice provides a procedural vehicle which may be invoked by prisoners presenting such issues. Albert Ball has properly invoked that procedure. The Circuit Court having denied him relief, the matter has been brought within this Court’s appellate jurisdiction. Ball’s appeal is ripe for decision.

IY.

Ball does not challenge the voluntariness or the legality of his guilty pleas. Those pleas established for purposes of the present case that on May 5,1982, Ball committed an assault on Officer Johnson, then committed an assault on Officer Howard, and finally committed an assault on Officer Bailey (though not necessarily in that order, nothing turning on the point).

Ball argues that all three assaults arose out of the same incident. He contends that the three assaults were a part of the same transaction or occurrence and that the separate sentences violate principles announced in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Whalen concerned whether a defendant could receive two separate sentences when one act or transaction violated two different statutes. This case is wholly distinguishable. It concerns three separate factual incidents each charged as a violation of the same statute.

If a man walks into a room, fires three shots, and kills three persons, he is liable to prosecution for three separate homicides. Likewise, a person may break and enter a dwelling and then while inside commit a rape, and if he does, he is liable to prosecution for both burglary and rape. Smith v. State, 429 So.2d 252 (Miss.1983). Temporal proximity does not generate a juridical union of separate and distinct criminal acts, nor does the presence of a common nucleus of operative facts. Had Ball on May 5, 1982, within moments, shot and killed Officers Johnson, Howard, and Bailey, he would clearly be liable for three homicide prosecutions. That he only committed a “simple assault” upon each in no way alters the power of the State to mount three separate prosecutions.

These principles may be found in our decision in Maycock v. Reed, 328 So.2d 349 (Miss.1976). In Maycock, petitioner had pled guilty to four different violations of the Controlled Substances Act, each occurring on September 9, 1973. On that date Maycock sold two bags of marijuana to two different people and two batches of LSD to the same two people. The State secured four separate indictments, convictions and sentences. Recognizing that four separate transactions occurred on the same occasion, this Court held that four separate and distinct offenses had nevertheless been committed. Each one was liable to separate sentencing. The same is true in the case of Albert Ball.

V.

Ball next contends that his sentences are ambiguous. He notes the failure of any of the three sentences to say when it begins and when it ends. The sentences merely provide that each will run consecutively with the other two.

To be sure, we have been presented a chicken and an egg situation. We have no way of reading the three sentencing orders and determining which sentence is to be served first, which second and which third. In Maycock, supra, each of the four sentences was silent as to when it began. Relying on our sentencing statute, this Court held that the petitioner’s sentences were to be served consecutively.

In pertinent part, our statute provides:

When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentences on such convictions to run concurrently. Miss.Code Ann. § 99-19-21 (1972).

Maycock and Section 99-19-21 provide that the absence of language affirmatively indicating that sentences will run concurrently means that the sentences will run consecutively. 328 So.2d at 351; see also Pickett v. Thomas, 209 So.2d 192 (Miss.1968).

Having said this much, we construe the sentencing orders and clarify Albert Ball’s sentence as follows, to-wit: His sentence imposed in Case No. 7534 shall begin to run on the date of his original incarceration [which we assume (but do not know) to have been May 5,1982], Immediately upon his release from the imprisonment imposed in Case No. 7534, Ball shall begin serving the sentence imposed in Case No. 7535. Immediately upon his release from the imprisonment imposed in Case No. 7535, Ball shall begin serving the sentence imposed in Case No. 7536.

Orders imposing sentences to be served consecutively should provide for commencement at the termination of the imprisonment for the proceeding conviction. A provision in a sentence order to this effect would do much to clarify the manner in which it is to be served and avoid post-conviction petitions such as this.

AFFIRMED.

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

      . This offense is defined and made unlawful in Miss.Code Ann. § 97-3-7(1) (Supp.1982). It authorizes a maximum sentence of a $1,000.00 fine, or five years imprisonment, or both.


author:
PRATHER, Justice,
      HAWKINS, Justice,

text:
    Stuart G. DENMAN, Sr. v. Larry C. HARDY.
    No. 53806.
    Supreme Court of Mississippi.
    Sept. 14, 1983.
    Rehearing Denied Oct. 5, 1983.

      Wm. Cliff Heaton, Neblett, Bobo & Chapman, Shelby, for appellant.
    John W. Whitten, Jr., Sumner, for appel-lee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Stuart Denman sought an injunction and damages from his neighboring landowner, Larry Hardy for allegedly flooding his land by the construction of a levee and culvert near an outlet on the Tallahatchie River. From a denial of relief in the Chancery Court of Tallahatchie County, Denman appeals.

Assignments of error may be summarized as two: (1) that the chancellor erred in permitting two defense expert witnesses to testify when the defendant’s responses to interrogatories were not adequate or supplemented and (2) that the verdict was contrary to the law and evidence. We affirm the trial court.

IA.

The question presented is whether sanctions should be imposed for failure to adequately respond to interrogatories in absence of a prior court order requiring response. Denman propounded interrogatories to Hardy pursuant to section 13-1-233, Miss.Code Ann. (1972). These questions were:

(1) Identify each person whom you intend to call as an expert witness at the trial and for each expert so listed, state:
a) The subject matter on which the expert is expected to testify;
b) The substance of the facts and opinions to which each expert is expected to testify;
c) A summary of the grounds for each expert’s opinions.

Hardy’s response was:

A: At the present time the only expert whom I have contacted is Engineer Joseph F. Mooney, Jr., Clarksdale, Mississippi.
(a) Mr. Mooney is expected to testify that the gated pipe was of sufficient size to drain the area which it was designed to drain.
(b) Mr. Mooney has made such measurements and run such levels as were necessary to reach the opinion which he will give.
(c) Mr. Mooney has, as stated above, made measurements, run levels and will use those facts and figures as grounds for his opinion.

At trial the appellant objected to the introduction of Mooney’s measurements and field work. The ultimate facts appeared in the answer to the interrogatory, ■ but the detailed information was not disclosed. There was no written supplementation to this answer. The trial judge permitted the expert testimony stating that the complainant was not misled.

IB.

The second discovery objection related to the testimony of a defense expert witness, Seymore Dulaney.

Defense counsel did verbally notify appellant that an additional expert witness would testify. Because of conflicts of the proposed witness, defense counsel changed witnesses three times and did not notify the appellant of the identity of the exact witness until the day before trial. Appellant’s counsel was not able to locate the proposed witness to interview him.

Although the witness’s name was verbally given to the appellant prior to his being offered as a witness, the substance of the facts, the witness’s opinion and a summary of the grounds were not given. This witness was offered to mitigate damages if damages were awarded.

The trial court reserved ruling on the objection and permitted the witness to testify to determine if the appellant might suffer prejudice or surprise in the limited scope of his testimony. After hearing the testimony, the court overruled the objection and admitted the evidence.

1C.

A party is under a duty to supplement his response to a discovery request with respect to any question concerning “the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.” Miss.Code Ann. § 13-l-226(e) (Supp.1982). Defendant had the duty to give a more detailed response with regard to Mooney’s expected testimony. Also, the defendant had a clear duty to timely disclose Dula-ney’s identity.

The dispositive question here, though, is whether a prior order compelling discovery was necessary for a trial judge to properly impose such sanctions as the exclusion of testimony. Section 13-1-237 of the Miss. Code Ann. (Supp.1982), addresses the failure of a party to adequately respond to interrogatories in two different contexts. Under subsection (b)(2), sanctions may be imposed if a party “fails to obey an order to provide or permit discovery.” (Emphasis added). On the other hand, subsection (d) provides that the same kind of sanctions may be imposed against a party who has failed “to serve answers or objections to interrogatories.” According to the leading text on civil procedure, this latter provision, which does not require a previous order compelling discovery before imposition of sanctions, may be employed only for a total failure to respond to interrogatories.

We also have recent case law which addresses the requirement of a prior order before imposing sanctions for discovery violations. In Ladner v. Ladner, 436 So.2d 1366 (Miss.1983), the Court ruled that sanctions may be imposed for the failure to supplement even without a prior court order compelling discovery. Sanctions would be permitted in such a case because the discovering party would ordinarily have no way of knowing that a response should have been supplemented until he finds out at trial.

Our standards based upon the statutory and case law noted above, may be summarized as follows:

(1) If a party totally fails to respond to an interrogatory or his response is of absolutely no substance, subsection (d) of § 13-1-237 requires no prior order before imposing sanctions;

(2) If a party gives an incomplete or evasive answer to a discovery request, subsection (d) requires a prior order compelling discovery before sanctions may be imposed;

(3) If the discovering party would have had no way of determining that a response should have been supplemented, then, the court may impose sanctions under its inherent power even in the absence of a prior order. Ladner v. Ladner, supra.

In the instant case, there was an evasive response with regard to the Mooney testimony, but appellant was notified that measurements were made. Under § 13-1-237(b), the appellant should have sought an order compelling a more detailed response with regard to the Mooney expert testimony or seek a discovery deposition. Since the appellant failed to do so, a sanction was properly denied.

In contrast, there was a duty to supplement information about Dulaney. The trial judge made a determination of whether to impose a sanction after hearing the testimony. The admission of such testimony was error. However, the scope of Dula-ney’s testimony was in mitigation of damages. Since no damages were awarded, Du-laney’s testimony had no effect on the decision, and therefore cannot be the basis of a reversible error.

II.

The second assignment of error addresses the verdict of the chancellor as being manifestly wrong, contrary to the law and to the overwhelming weight of the evidence when viewed in light of the assertion that the two experts’ testimony should have been excluded.

This assignment relates to the admissibility of the testimony previously addressed. We find no reversible error in admission of this testimony, and therefore, find no merit to this assignment. After a complete review, the record supports the chancellor’s finding of fact and conclusions of laws.

We find no error.

AFFIRMED.

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

HAWKINS and BOWLING, JJ., specially concur.

HAWKINS, Justice,

specially concurring:

I specially concur. The majority opinion in Ladner v. Ladner, 436 So.2d 1366 (1983), settled the discovery issue in this case, as well as all other cases in which a claim is made in this Court that there has been a violation of the discovery statutes or the rules of civil procedure.

BOWLING, J., joins this opinion.

      . A trial judge must have some discretion in judging whether the answers were sufficient; the entire case is not required to be contained in the answer. This case is factually distinguishable from Square D Company v. Edwards, 419 So.2d 1327 (Miss.1982).

      . The text states:
      The provisions of Rule 37(d) with regard to interrogatories, do not apply “for anything less than a serious or total failure to respond to interrogatories.” If a party wholly fails to respond to a set of interrogatories sanctions under this rule are appropriate. If he responds to the set, but does not answer some of the interrogatories contained in it, a motion under Hule 37(a) to compel answers to those interrogatories is the proper remedy. Subdivision (d) of the rule also is inapplicable if the party has served answers to interrogatories but the answers are thought to be incomplete or evasive. That situation is now covered by Rule 37(a)(3) and a motion to compel a further answer will lie. (Emphasis added) [8 Wright & Miller, Federal Practice & Procedure: Civil § 2291 (1970) ].

      . See Huff v. Polk, 408 So.2d 1368 (Miss. 1982); Clark v. Mississippi Power Company, 372 So.2d 1077 (Miss. 1979).


author: PRATHER, Justice, HAWKINS, Justice,

text:
    George Horace HUBBARD and Billy Dean Hubbard v. STATE of Mississippi.
    No. 53828.
    Supreme Court of Mississippi.
    Sept. 14, 1983.
    Rehearing Denied Oct. 5, 1983.

      Duncan Lott, Langston & Lott, Boone-ville, Harry L. Kelley, Jackson, for appellants.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

George Horace Hubbard was charged with murder of Walter Eugene Hall, convicted of manslaughter, and sentenced to twenty years in the Mississippi Department of Corrections. Billy Dean Hubbard and George Horace Hubbard were charged and convicted of aggravated assault on William Kyle Livingston and each sentenced to twenty years. From these convictions in the Circuit Court of Tishomingo County, the defendants appeal assigning the following errors:

(I)

Limitation of the defendants’ right of cross and re-cross examination of several state witnesses.

(II)

The Court’s admonishment against defense counsel before the jury panel.

(HI)

The admission into evidence of guns not used in the commission of the crimes charged.

(IV)

The introduction of gruesome photographs of the deceased.

(V)

The allowance of testimony of a state witness, whose name nor report was provided to defense attorneys under the pretrial discovery.

(VI)

The denial of a motion for mistrial due to a prejudicial statement made by a state’s witness.

(VII)

The submission of an instruction on manslaughter.

(VIII)

The granting of an improper instruction regarding the rights of bail bondsmen and the failure to instruct as to the obligation of bail bondsmen to adhere to state laws.

(IX)

The denial of motion for mistrial or the failure to instruct the jury to disregard state attorney’s reference to the non-existent testimony.

(X)

The denial of defendant Billy Dean Hubbard’s motion for acquittal of aggravated assault for lack of evidence.

We affirm the convictions on all charges.

On August 11,1979, George Horace Hubbard was arrested for parading without a permit during a “klan” march in Montgomery, Alabama. Bail bond was posted by William Kyle “Sonny” Livingston for his release. For Hubbard’s failure to appear in court, a bond forfeiture was taken in the amount of $2,000.00.

Livingston, with two employees, A.C. Chapman and Walter Eugene “Buddy” Hall, came to Mississippi on January 19, 1980, to return Horace Hubbard to court in Alabama. They asked one Mississippi police officer as to Hubbard’s whereabouts and were advised that Hubbard had not been seen for several months.

On that evening George Horace Hubbard was advised by his brother, Billy, that some people were looking for him with warrants. A telephone call was made by Horace Hubbard to the sheriff to inquire as to any outstanding warrant, and the sheriff advised him that he had none.

Livingston, Chapman, and Hall located Hubbard’s home on the next morning. Livingston, with a handgun and a 12 gauge double barrelled shotgun, and Hall, with a 38 special stub-nosed Charter Arms lightweight pistol, stayed in the woods near the home to observe the activity there, while Chapman went to get the sheriff.

Before the sheriff arrived, Horace and Billy Hubbard left the trailer home and discovered the two armed men nearby. The details of this encounter were disputed. Livingston testified that he told Hubbard he wanted to talk to him; that he wanted no trouble. Horace Hubbard drew his rifles, and Livingston leveled his shotgun. Hubbard testified that he recognized Livingston, and backed his car away, and “thought” he heard a gunshot from one of the Alabama men.

Upon return to his home, Horace Hubbard telephoned the sheriff’s office. The sheriffs dispatcher quoted Hubbard’s statement to be that he was going to kill two men if the sheriff didn’t get there in five minutes.

After about a thirty minute wait, Horace Hubbard and his brother Billy left the trailer to return to the location of the Alabama men. They took with them a Western Field brand, Model 740, lever action 30-30 rifle with scope and a Remington brand, model 700, 7 MM Magnum bolt-action rifle with a telescopic sight.

The evidence conflicted as to the firing of the initial shot, but numerous shots were fired. After the shooting subsided, Ronnie Hubbard, son of Billy Dean Hubbard, drove up with two additional guns.

The sheriff, his deputies, and Chapman arrived to find both Livingston and Hall wounded. Hall subsequently died as a result of the shoulder wound made by a projectile fired from Horace Hubbard’s Remington rifle.

After indictment and trial, the defendants challenge several court rulings which allegedly precluded their receiving a fair trial.

1A.

The first question to be decided is whether the court’s limitation of the witness examination to direct, cross and redirect examination, denies a defendant his constitutional right to confront witnesses against him. The trial court permitted no recross examination of any witness.

The Mississippi Constitution grants and guarantees to an accused in a criminal prosecution the right to confront witnesses against him. Article 3, Section 26 of the Mississippi Constitution, 1890. The constitutional right of confrontation of witnesses encompasses the right to cross-examine them. Spears v. State, 241 So.2d 148 (Miss.1970); Butler v. State, 245 So.2d 605 (Miss.1971); Hamburg v. State, 248 So.2d 430 (Miss.1971).

However, the assertion here by the defense is that restriction on recross examination is a constitutional violation. Based upon our constitution and case law we disagree. The rule to be applied to recross examination is that:

It is proper to exclude questions as to matters which were not opened up or brought out on redirect examination, or as to matters already fully covered, or discussed at length on cross-examination, where there is no claim of oversight and no reason stated why the matter was not inquired into on the cross-examination proper. 98 C.J.S. Witnesses § 429.

Although the determination of this question is based on Mississippi constitutional and case law, we compare our decisions with other jurisdictions. See Kinser v. Cooper, 413 F.2d 730 (6th Cir.1969) (no federal constitutional denial in limitation on right to recross examine prosecution witness). It has also been held that recross examination is not allowable as a matter of right, but a matter of trial court discretion. Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974).

The defense relies upon Valentine v. State, 396 So.2d 15 (Miss.1981), in which this Court reversed and remanded for a new trial where the trial court restricted cross-examination. This case is factually distinguishable as it applied to cross-examination, not recross.

In analyzing the record of this case, however, the Court is of the opinion that full cross-examination was permitted by the trial judge. The court’s ruling applied to recross examination, and the court applied the restriction equally to both defense and prosecution. Recross examination may be limited by the trial judge in his sound discretion. No abuse of discretion is present in this denial of recross examination. We find no merit in this assignment.

IB.

Appellants contend that prejudicial error was committed when they were not allowed to cross-examine Sonny Livingston concerning statements Livingston made to Al Jer-nigan or Sheriff Bates subsequent to the shooting. The applicable rule of law for this assignment has been previously stated. We turn to the facts.

Defense counsel attempted to impeach witness Livingston with a prior inconsistent statement. However, the record reveals that Livingston was asked the question and denied making the statement sought to be elicited. There was no objection made by the prosecutor. Cross-examination was not denied or impeded. Fisher v. State, 150 Miss. 206, 116 So. 746 (1928). However, defense counsel did not recall the witnesses to whom the statement was purportedly made for the purpose of impeachment. Therefore, no error was committed.

IC.

Appellants claim error in that they were denied the right to cross-examine Officer Dickerson about statements made to him by A.C. Chapman and that such a denial was prejudicial error. When Dickerson was asked to divulge the substance of the statements made to him by Mr. Chapman, obviously for impeachment purposes, the prosecution’s objection was sustained on the ground of hearsay.

In Mississippi in order to impeach a witness with a prior inconsistent statement, a proper predicate must be laid. In Carlisle v. State, 348 So.2d 765 (Miss.1977), we explained that “in laying the predicate to introduce prior inconsistent statements of a witness, the questions should include whether or not on a specific date, at a specific place, and in the presence of specific persons, the witness made a particular statement.” Id. at 766. Also, if a witness testifies either on direct or cross-examination “the adverse party for the purpose of impeaching his testimony, may show that the witness has made previous inconsistent or conflicting statements either by eliciting such statements upon cross-examination of the witness himself, or by proving them by other witnesses.” Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964).

In this case, the appellant attempted to impeach A.C. Chapman before Chapman had an opportunity to admit or deny the statement. Since the proper foundation had not been laid, objection to questions concerning the statement or statements was properly sustained. The defense attorney indicated that he would recall Officer Dickerson so that the impeaching statement could properly be shown. However, no inconsistencies were shown which would have warranted the use of another witness for impeachment purposes. We find no merit to this assignment.

II.

The appellants argue that they were denied a fundamentally fair and impartial trial when the trial judge admonished defense counsel before the jury, as follows:

Q. All right, have you at any time since that one night checked out the background of Sonny Livingston?
A. No, sir, I have not.
Q. You have not run an NCIC check or an FBI check bn him?
A. No, sir, I have not.
Q. And even though I suggested that to you in the preliminary hearing in this case, you still haven’t run one. PROSECUTOR: Your Honor, I am going to object. The officer certainly doesn’t have to follow the suggestions of Mr. Langston.
TRIAL JUDGE: Objection overruled. DEFENSE COUNSEL:
Q. Why did you not run one?
A. Well, again, I conferred with the County Attorney, Mr. Jernigan, and he didn’t feel it would be necessary to run any. He felt like they have a legitimate, — with a legitimate company and it wouldn’t be necessary, and I followed his suggestion.
Q. All right. Let me ask you this, Mr. Dickerson. If you had known at the time these charges were being filed, if you had been aware of over twenty years of violence—
PROSECUTOR: Objection, Your Hon- or.
TRIAL JUDGE: Objection sustained. DEFENSE COUNSEL: Of Sonny Livingston,—
TRIAL JUDGE: Just a moment, I sustained the objection,
BY DEFENSE COUNSEL Q. If you had known at the time that you were filing these charges that Sonny Livingston had bombed a Baptist— BY THE PROSECUTOR: Objection. BY DEFENSE COUNSEL: —Church in Montgomery, Alabama — Just a moment, you proceed with that and I will put you in contempt of Court and put you in jail. I had already sustained the objection.
BY DEFENSE COUNSEL: Sir?
BY TRIAL JUDGE: I had already sustained the objection.
BY DEFENSE COUNSEL: Well, that’s a different—
BY PROSECUTOR: What he said is not true.
BY DEFENSE COUNSEL: —question.
BY TRIAL JUDGE: I don’t believe so; you may proceed.
BY DEFENSE COUNSEL: Well, I would like for the record to reflect— BY TRIAL JUDGE: The record will reflect just what was said.
BY DEFENSE COUNSEL: Well, I’d also like for it to reflect, Judge, that I object to the attitude you took toward me in front of the jury.
BY TRIAL JUDGE: The record will reflect exactly what was said. You may proceed.
BY DEFENSE COUNSEL: Thank you, Judge.

The appellants argue that admonishing the defense counsel in this manner in front of the jury prevented them from receiving a fair and impartial trial. We disagree.

The decision in Parker v. State, 401 So.2d 1282 (Miss.1981), is controlling on this point wherein we held that:

Ordinarily counsel may not complain of slight or not seriously prejudicial impropriety in remarks or comments by the court where they are provoked by himself.

[Id. at 1285].

[Vail v. City of Jackson, 206 Miss. 299, 40 So.2d 151, 41 So.2d 357 (1949)].

Here, we are concerned with statements made to the defense counsel, after he persistently attempted to have evidence placed before the jury after State’s objections had been sustained several times. The Court finds no error as the defense counsel provoked the Court’s comments.

III.

The admissibility into evidence of a pistol and a shotgun found at the scene of the shooting, but not used in the murder or assault charges, is assigned as error. The two weapons were brought to the scene by Ronnie Hubbard, who was not charged with any crime.

The standard to be applied for admissibility of such evidence is found in Wilkins v. State, 264 So.2d 411 (Miss.1972), wherein this Court stated:

Our Court has permitted the introduction of articles used in the commission of crime from our early history. Strickland v. State, 220 Miss. 71, 70 So.2d 1 (1954); Sims v. State, 209 Miss. 545, 47 So.2d 849 (1950); Davis v. State, 170 Miss. 78, 154 So. 304 (1934).
On the other hand, articles such as tools and weapons found near the place or scene of crime or near the place where the defendant was arrested, have been admitted in evidence. Pendergraft v. State, 213 So.2d 560 (Miss.1968). This is true even where it is not claimed nor proved that they were used in the commission of the alleged crime in cases where the evidence has probative weight, or where they constitute a part of the surrounding scene or picture, or are a part of the circumstances of the arrest. Busbee v. State, 36 Ala.App. 701, 63 So.2d 290 (1953); 22A C.J.S. Criminal Law § 712, p. 966 (1961).

[Id. at 413].

We held that it was “within the sound discretion of the trial judge as to whether or not burglary tools found near the scene of a burglary are near enough in time and place to be of a probative evidentiary value.” Id. at 414.

In the case sub judice, several weapons were used and found at the scene moments after the occurrence including the two brought there by Ronnie Hubbard. These weapons are sufficiently within the Wilkins rule to be admitted into evidence, and we hold the trial court’s ruling proper.

IV.

Did the trial judge abuse his discretion in receiving into evidence photographs of the deceased picturing the shoulder wound?

This Court has held numerous times that admission of photographs is left up to the sound discretion of the trial judge and will not be disturbed unless it is shown that the discretion was abused. Smith v. State, 419 So.2d 563 (Miss.1982); Edwards v. State, 413 So.2d 1007 (Miss.1982); Cessna v. State, 381 So.2d 173 (Miss.1980); Jones v. State, 367 So.2d 458 (Miss.1979).

In King v. State, 408 So.2d 1375 (Miss. 1982), there was some doubt as to the decedent’s posture when he was stabbed. Pictures of the decedent depicting his stab wound was admitted into evidence, and we affirmed. The “photograph had some evi-dentiary value, and it was not inordinately gruesome to an adult jury acquainted with the norms of life and death.... The court did not abuse its discretion in permitting its introduction.” Id. at 1376.

In the case at bar, there is also some dispute as to the posture of Walter Hall at the time he was shot. Thus, the two pictures had probative value concerning the angle and line of fire. This being so, the trial court did not abuse its discretion by admitting the pictures into evidence. Briggins v. State, 416 So.2d 691 (Miss.1982).

V.

The appellant, Horace Hubbard, argues that he was prejudiced by the admission of the testimony of expert witness whose name was not furnished to appellant pursuant to motion and order of discovery under Mississippi Uniform Criminal Rule of Circuit Court Practice 4.06.

The pertinent part of the rule invoked in the lower court reads 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:

(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(2) Copy of any recorded statement of the defendants to any law enforcement officer.

Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

Mike Allen, a ballistics expert from the Mississippi Crime Laboratory, was called for the purpose of identifying the projectile taken from the body of the deceased with one of the weapons found at the scene.

The appellants made a timely objection based on the State’s failure to give Mr. Allen’s name prior to trial. The trial judge, citing rule 4.06, called a ten minute recess to allow the appellants’ attorney to interview Mr. Allen and inspect any documents from which Mr. Allen might testify. After the recess, Mr. Allen testified without further objections or requests on behalf of the appellant. Mr. Allen subsequently testified that the projectile from the deceased’s body was fired from a rifle owned by Horace Hubbard or either one just like that one. It should be noted that the record of the proceedings below revealed that the defendant did not provide reciprocal discovery to the State as required by rule 4.06. We find no reversible error.

This Court affirmed a murder conviction notwithstanding non-compliance of Rule 4.06. Gallion v. State, 396 So.2d 621 (Miss. 1981).

We decide that there is no reversible error in this case because there was no unfair surprise. Our most recent decision interpreting Rule 4.06 is Box v. State, 437 So.2d 19 (Miss.1983), where a conviction of robbery was reversed. The undisclosed witness was the only independent witness who connected the defendant with the robbery. The case sub judice is factually distinguishable in that the witness testified as to the weapon from which the fatal bullet was fired. Horace Hubbard admitted shooting at Hall; therefore, this fact was not in issue. The defense was self-defense. We find no reversible error.

VI.

The appellants claim prejudice from a State witness’s reply during cross-examination. Defense counsel asked when and where Livingston had seen Horace Hubbard. Livingston replied, “... the police had arrested a bunch of people, Klan march, and he was getting off the bus.” Defense counsel asked that the jury be excused. He then moved for a mistrial arguing that because of the racial make-up of the jury, the reference to the “Klan march” would prejudice the jury. The motion was denied. Upon return to the jury, the court instructed jurors to disregard any statement of incidents that occurred in Alabama. As requested by defense counsel, the court made no additional reference to “Klan” in his admonitions. Holifield v. State, 275 So.2d 851 (Miss.1973).

In this state, cases are reversed because of inflammatory testimony where a pattern of prosecutorial misconduct as well as clear prejudice to the defendant is shown. Branch v. State, 347 So.2d 957 (Miss.1977). Also, when a trial court instructs the jury, it is presumed that the jurors follow his direction. Whitlock v. State, 419 So.2d 200 (Miss.1982). Here, the witness’s remark was inadvertent. The claim of prejudice by defense is presumed to be overcome by the court’s admonition to the jury. We find no reversible error in this assignment.

VII.

The appellant, George Horace Hubbard, next contends that the granting of a manslaughter instruction was error where he is charged with murder and he claims self-defense. Appellant argues that the verdict should have been either guilty of murder or not guilty.

This Court has addressed this proposition previously. Where there is evidence to justify a murder conviction, the appellant cannot complain of a manslaughter conviction. Calicoat v. State, 131 Miss. 169, 95 So. 318 (1923); Lowry v. State, 202 Miss. 411, 32 So.2d 197 (1947).

In Lowry, supra, we reviewed cases where the killings were admitted by the defendant, but whose defenses were justification, self-defense, accident, or insanity. We also reviewed cases where the defendant had denied commission of the homicide. This Court approved the rule that in either situation, “where the evidence was sufficient to support a conviction of murder ... [a defendant] should, therefore, not be heard to complain that he was granted a verdict of [manslaughter] since he was not prejudiced by the lighter punishment.” Id. at 417, 32 So.2d 199. Also, see Mallette v. State, 349 So.2d 546 (Miss.1977).

In the recent c.ase, Grace v. State, 379 So.2d 540 (Miss.1980), this Court held:

Aside from that, this case is controlled by the principle of law that where a defendant is convicted of manslaughter upon an instruction granted by the state to that effect and the evidence would have justified a conviction of murder, the instruction on manslaughter, even if not authorized by the evidence, does not constitute reversible error. [Id. at 542].

Citing West v. State, 233 Miss. 730, 103 So.2d 437 (1958), Graham v. State, 195 Miss. 291, 15 So.2d 478 (1943). See also Cole v. State, 405 So.2d 910 (Miss.1981). This argument is without merit.

VIII.

The right of bail bondsmen is the subject of the next assignment. Appellants contend that an instruction granted the State was an improper statement of Mississippi law. Our statutory authority which authorizes a surety to arrest and surrender the principal is Miss.Code Ann. § 99-5-27 (1972):

Bail may, at any time before final judgment, surrender their principal, in vacation to the sheriff, or in open court, in discharge of their liability; but if this be done after forfeiture of the bond or recognizance, the breach of the bond or recognizance must be satisfactorily excused before the court, and all costs be paid by the bail, and such part of the bond or recognizance as the court orders. Upon surrender, the sheriff in vacation, and the court in term-time, may discharge the prisoner on his giving new bail, but if he does not give new bail, he shall be detained in jail. Bail may arrest their principal anywhere or authorize another to do so.

The above provisions are declaratory of the common law. Cartee v. State, 162 Miss. 263, 139 So. 618 (1932).

The instruction granted the State was verbatim of our statement of the law in the Cartee ease, supra. In Cartee, it was held reversible error to refuse to instruct the jury as to the common law rights of bail bondsmen.

Appellants contend that this instruction places bail bondsmen above the law and that it misled the jury into thinking that the appellants were defenseless against these bondsmen. Their authority relies upon two Alabama cases which are based upon Alabama statutory law and not applicable here. Livingston v. Browder, 51 Ala.App. 366, 285 So.2d 923 (1973), Shine v. State, 44 Ala.App. 171, 204 So.2d 817 (1967), Ala. Code Tit. 15, § 209 et seq. As to the contention that the jury was misled into believing that the appellants were defenseless, the record reflects five self-defense instructions granted the defense.

The appellants charge that this instruction placed the bondsmen above the law and was in violation of the appellants’ constitutional rights.

However, an analysis of the argument indicates that we must look to the derivation of right. This right to arrest a principal by the surety arises “from the relationship between principal and his bail.” 8 Am.Jur.2d Bail and Recognizance, § 119 (1980). It does not come from the state through subrogation. We find no reversible error.

IX.

Appellants argue that the prosecutor referred to nonexistent testimony in closing argument and that a mistrial should have been granted. The general rule in this state is that:

[I]t is the duty of the district attorney to prosecute a case with diligence, he should guard against doing or saying anything that would prejudice the minds of the jurors and tend to cause them to decide a case on something other than the evidence. In his argument to the jury he should not inject statements of facts and conclusions not justified by the evidence. It is a part of his duty to see that the defendant as well as the State receives a fair and impartial trial. McCaskill v. State, 227 So.2d 847 (Miss.1969); Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947); Allen v. State, 175 Miss. [745] 145, 166 So. 922 (1936).

A.C. Chapman testified that his .38 pistol which he had given to Walter Hall, had been fired once several months before this shooting occurred and had never been reloaded. When this gun was recovered at the scene of the shooting, it contained only one spent cartridge. There were no lab tests made on this weapon.

During closing argument, defense counsel commented that no test had been made on the .38 caliber pistol to determine how long ago the spent shell had been fired. The prosecutor then told the jury that there was no such test that could determine how long ago a pistol had been fired. Defense counsel objected that the prosecutor’s remarks were outside the evidence.

The remark complained of here was invited by the defense counsel and under these circumstances, the appellant cannot complain. Ransom v. State, 149 Miss. 262, 115 So. 208 (1928); Cannon v. State, 190 So.2d 848 (Miss.1966).

It should also be mentioned that both, defense counsel and the prosecutor as well as the judge had admonished the jury that counsel’s argument should not be considered evidence. Holifield v. State, 275 So.2d 851 (Miss.1973). We find no error.

X.

The last argument posed by Billy Dean Hubbard is that it was error to deny a motion for acquittal as to the aggravated assault charges against him. Appellant argues that there were no facts in evidence which linked Billy Hubbard to the aggravated assault of Sonny Livingston. This argument is without merit.

To determine whether the verdict against Billy Hubbard is supported by the evidence, we must view all evidence supporting or tending to support the verdict, together with all inferences supportive of the verdict which reasonably may be drawn therefrom as true. Aldridge v. State, 398 So.2d 1308 (Miss.1981).

From the testimony of Horace Hubbard there is sufficient evidence from which the jury could infer that Billy Dean Hubbard fired his rifle and was the person who shot Sonny Livingston. Therefore, this verdict must be affirmed. We find no error.

AFFIRMED.

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

HAWKINS, BOWLING, DAN M. LEE and ROBERTSON, JJ., specially concur.

HAWKINS, Justice,

specially concurring:

On the assignment of error of the state’s violation of Rule 4.06 of the Criminal Rules, I concur with the majority under the facts of this case, for the following reasons:

There was a blatant disregard of Rule 4.06 by the defense, in that the names of no defense witnesses whatever were furnished the state by the defense, as defense counsel were required to do under this rule.

When the defense objected to Allen testifying, or the introduction of his report, the circuit judge literally applied the provisions of this rule. He stopped court proceedings, gave defense counsel all the time they needed to talk to the witness and review his report. Following this interview, the defense offered no further objection to this witness testifying, and his minimal cross-examination by the defense did not question the validity of his opinion.

It is clear from this record that counsel did not consider Mr. Allen’s testimony any threat to the theory of the defense. They initially objected to his testifying, but after a brief interview, were satisfied. They made no further statement to the circuit judge to indicate a need or desire for a continuance, or any further relief because of the state’s failure to furnish his name.

Where the state has violated a discovery rule, I do not think an accused upon appeal should be required to demonstrate that, absent this violation, he may have been acquitted (or “must show prejudice,” whatever that means). On the other hand, when our review of the record leaves no doubt the error assigned had no significance whatever in the trial, we are not obligated to reverse the case.

BOWLING, DAN M. LEE and ROBERTSON, JJ., join this opinion.

      . The statements concerned with herein is whether or not Chapman told Dickerson that Mr. Hall had a pistol when he was dropped off at the scene by Mr. Chapman. When the cross-examination of Mr. Chapman took place, he admitted giving Walter Hall his gun before dropping Hall off at the scene. He had also admitted this during his direct examination.

      . In the transcription here, the court reporter evidently omitted the reference “By the Trial Judge.”

      . The appellants rely upon Ladnier v. State, 254 Miss. 469, 182 So.2d 389 (1966), wherein we reversed a conviction because the trial judge’s remarks were “so marked and severe that it could not have failed to make an impression upon the jury.” Id. at 182 So.2d 391. Ladnier is distinguishable from the case sub judice. Ladnier dealt with remarks made by the trial judge directly to the defendant while the defendant was testifying in his own behalf.

      . Rule 4.06 was amended effective October 26, 1982. We are concerned with the rule in its form at the time of this trial. Nothing in the amendment alters the parts of Rule 4.06 construed here.

      . We are concerned only with the testimony of Mr. Allen since there were no documents or reports offered by him relating to the ballistics tests.

      .The defense offered by Horace Hubbard was self-defense. He admitted firing the 7 MM rifle at Walter Hall.

      . The only other witnesses connecting Box with the robbery were his co-indictees Robyn Russell and Timothy Davis.

      . There was one member of the Black race on the jury.

      . The purpose of an appearance bond in a criminal case is to insure the presence of the Defendant in Court without keeping him confined in jail. Under the terms of the bond, the Defendant, known as the Principal, agrees to pay to the Court a sum of money if he fails to appear at the required time. Any other person besides the Defendant who signs the bond and thereby insures the performance of the Defendant is known as a surety.
      When bail is given for one charged with a crime in the manner just described, the Defendant, or Principal under the bond, is regarded as delivered to the custody of his sureties. Whenever his sureties choose to do so, they, or their agents, may arrest the Defendant wherever he may be and deliver him to the proper authorities, and if that cannot be done at once, they may imprison him until it can be done. They may pursue him into another State, and if necessary, may break and enter his house for the purpose of arresting him. No warrant or other process is necessary for the sureties or their agents to take these actions; they have their authority by virtue of the bond they gave which kept the Defendant from going to jail.
      The Court instructs you, therefore, that William Kyle Livingston, Walter Eugene Hall and A.C. Chapman as agents and employees of Sonny Livingston Bail Bonds, the surety on the bonds of Horace Hubbard in the Municipal Court of Montgomery, Alabama, had the right and authority of law to pursue Horace Hubbard into the State of Mississippi and to go to his house, and to even enter his house if necessary to arrest him and return him to the proper authorities in Montgomery, Alabama. Furthermore, the Defendant, Horace Hubbard, had no right to resist the attempted arrest as long as it was being made in a proper manner.


author: BOWLING, Justice, for the Court:

text:
    Edward Lee OATES v. STATE of Mississippi.
    No. 53889.
    Supreme Court of Mississippi.
    Sept. 14, 1983.

      Jack R. Jones, III, Taylor & Whitwell, Ltd., Southaven, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   BOWLING, Justice, for the Court:

Appellant, Edward Lee Oates, appeals his conviction in the Circuit Court of DeSoto County of the crime of rape and sentence of life imprisonment in the custody of the Department of Corrections.

It would serve no useful purpose to narrate the undisputed details of the occasion when the prosecutrix was raped on the side of a road immediately below the Mississippi-Tennessee state line in DeSoto County. It would be hard to describe a more heinous rape. The incident began at night when the car of the prosecutrix was blocked on the roadway. She was then placed in the car of the person who raped her and was repeatedly struck by him, leaving many marks on her body. She was then raped on the ground by the side of the road. Other material facts shall be mentioned as they apply to the points raised on appeal.

The prosecutrix testified that during the entire time she was in close proximity to her attacker. She studied his features both before the actual rape and afterwards, and of course, she was in close proximity to him during the actual rape.

The first house that the prosecutrix reached after the incident happened to be the home of a Memphis policewoman. The authorities were called immediately and the prosecutrix was taken to the Memphis Rape Center, where the rape was confirmed by physical examination at that time, and af-terwards by laboratory examination. Photographs were made of her physical injuries.

About six months after the rape occurred, the prosecutrix saw a photograph in the Memphis Commercial Appeal newspaper, and according to her testimony, she immediately recognized the photograph as the person who had raped her. She contacted the police. Appellant was arrested and subsequent events led to his trial and conviction. Appellant contends here that it was reversible error for the trial court to allow the prosecutrix to testify that as she resisted the attack and the appellant was striking her with his fists, he made the remark that he was going to kill her “just like I did the other one.” Appellant contends that this was evidence of another crime and therefore inadmissible.

It is clear that the statement quoted above falls within the well-recognized exception to the rule that evidence of other crimes may not be introduced while an accused is being tried for a separate and distinct crime. This statement was a part of the res gestae and clearly admissible. Gray v. State, 375 So.2d 994 (Miss.1979); Woods v. State, 393 So.2d 1319 (Miss.1981); Younger v. State, 301 So.2d 300 (Miss.1974); Hosey v. State, 300 So.2d 453 (Miss.1974); and Starks v. State, 245 Miss. 238,147 So.2d 503 (1962).

Appellant contends that the trial court erroneously permitted the prosecutrix to relate that immediately after she was taken from the car to the side of the road by appellant, he forced her into an act of oral sex before actually raping her. It is contended that this was also evidence of another crime and inadmissible. Again, it is clear that this testimony was admissible as being part of the res gestae surrounding the entire occurrence and cannot be separated from all that was happening from the beginning to the end of the actions taken against the prosecutrix during the course of the events. [See authorities above cited.]

Appellant further contends that the trial court erred in permitting two officers, who conferred with the prosecutrix shortly after the occurrence of the rape, to testify to certain facts related to them by the prosecutrix. Those facts consisted of a statement of what happened and a description of the attacker. It is contended that the testimony of these officials prejudicially bolstered the testimony of the prosecutrix. In Bergtholdt v. State, 288 So.2d 839 (Miss.1974), we discussed that although such testimony as related by a prosecutrix in a rape case is technically hearsay, in certain instances it is admissible. In the present case, there was absolutely no contradiction or dispute as to what occurred and the statement by the officers as to what the prosecutrix told them occurred was in an effort to aid their investigation.

Appellant contends that five requested instructions were erroneously refused by the lower court. [See Appendix “A”.] We have carefully studied all the instructions given both for the state and the appellant, and have no difficulty in finding that none of the five instructions were erroneously refused. All given instructions considered together clearly and fully instructed the jury as to the law applicable to the trial of the cause. The lower court was not in error in refusing any of the instructions set out in the appendix.

Finding no reversible error, we hold that the cause shall be affirmed.

AFFIRMED.

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

APPENDIX A

INSTRUCTION NO. 3 FOR DEFENDANT

The Court instructs the jury, that if you should find from the evidence, that the testimony of [the prosecutrix], the person alleged to have been raped, was uncorroborated, or substantially uncorroborated, then her testimony should be scrutinized and weighed with care and caution.

INSTRUCTION NO. 4 FOR DEFENDANT

The Court instructs the jury, that if you find beyond a reasonable doubt that [the prosecutrix], though she resisted at first, eventually gave in and consented to intercourse, and such consent was willing and free of the initial coercion, if any, then no rape occurred, and you must find the Defendant not guilty.

INSTRUCTION NO. 5 FOR DEFENDANT

The Court instructs the jury, that if you. believe from the evidence, that there may be some person, who committed the crime of which the Defendant is charged, and that the name of that person has not been disclosed by the evidence, it is not required of the Defendant to show the name of any such person.

INSTRUCTION NO. 6 FOR DEFENDANT

The Court instructs the Jury that the evidence as a whole must convince you beyond a reasonable doubt that the defendant EDWARD LEE OATES, is guilty, but you must vote “not guilty” unless you are convinced of his guilt beyond a reasonable doubt.

INSTRUCTION NO. 7 FOR DEFENDANT

The Court instructs the jury that you are the sole judges of the credibility of the witnesses and that if you believe that any witness has knowingly, falsely, and corruptly testified as to any material fact in the case that the Jury is warranted in disbelieving all the testimony of such witness and that in passing on the credibility of the witnesses the jury may consider the manner and demeanor of the witness while on the stand.