author: PRATHER, Justice,

text:
    Eddie Lee WILSON v. STATE of Mississippi.
    No. 54827.
    Supreme Court of Mississippi.
    May 9, 1984.
    See also 426 So.2d 792.
    Carroll Rhodes, Hazlehurst, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This is the second appeal from the Copi-ah County Circuit Court by Eddie Lee Wilson of criminal convictions arising out of one incident. This Court is simultaneously affirming a conviction of attempted rape carrying a ten year sentence. This charge is that of armed robbery of a general store known as the W.W. Dixon Store, which conviction drew a thirty-five year sentence in the custody of the Mississippi Department of Corrections to run consecutively to the attempted rape sentence.

Wilson argues that the trial court committed error in the armed robbery trial by:

(1) Overruling the motion to suppress the defendant’s confession;

(2) In not admitting the entire medical record of the defendant;

(3) Overruling defendant’s motion to suppress identification testimony and admitting it into evidence;

(4) Commenting before the jury as to the voluntariness of the confession;

(5) Denying a new trial on defendant’s charge that the jury selection systematically excluded black persons;

(6) Denying defendant’s requested instructions;

(7) Granting the state’s requested instructions; and

(8) Denying the defendant’s motion to quash the indictment.

Additionally, the defendant assigned error that the jury’s verdict was the result of bias and prejudice and against the overwhelming weight of the evidence.

I.

Mrs. W.W. Dixon owned and operated a grocery store near Hazlehurst. On December 30, 1977, while alone in the store, Mrs. Dixon was robbed at gunpoint of approximately $2,500.00 cash by three men. On January 7, 1978 Eddie Lee Wilson was arrested, and gave a statement to the sheriff on January 8, 1978. Wilson received medical treatment and hospitalization while in the sheriff’s custody. A woman, believed to be Wilson’s mother, told the sheriff that a tree had fallen on Wilson at a prior time which resulted in his having headaches. Wilson contended that he was beaten after being jailed, but no testimony admitted identified the alleged assailant.

In a preindictment lineup identification procedure, Mrs. Dixon identified Eddie Lee Wilson as one of her assailants. Wilson was indicted for armed robbery, tried, and convicted.

II.

The first three assigned errors here, that of voluntariness of the confession, admission of medical record, and the preindictment identification procedure, were all addressed in the first Wilson appeal. (Wilson v. State, 451 So.2d 718 (Miss.1984). All of these assignments were found to be without merit. Therefore, we adopt the prior holding and do not repeat the discussion here.

A.

The trial court heard and ruled against the appellant’s motion to suppress the confession prior to trial. At trial before the jury, at the admission of the confession into evidence, defense counsel renewed his objection to the confession, and the following proceedings were had:

BY MR. ALEXANDER:
We object to testimony on the grounds that it is objected to the Court in a pretrial Motion to Suppress the Statement. To reiterate, we object to any statement given to the Sheriff that was not voluntary. That it was in violation of the 4th, 5th and 6th and 14th Amendments of the United States Constitution and should be excluded and no reference to any such statement should be made at this trial.
BY THE COURT:
After hearing the Motion to exclude and all evidence pertaining thereto, the Court has ruled that the statement was freely and voluntarily given. That the defendant had been advised of his Constitutional rights. There was no coercion, threats, promises or force used.
BY MR. ALEXANDER:
We object to that and move for a mistrial in light of the Court giving his ruling in open Court at this time.
BY THE COURT:
You asked ...
BY MR. ALEXANDER:
... No, sir. I merely renewed our objection.
BY THE COURT:
You asked for a ruling. The Court had given-you a ruling. You made an objection and the Court ruled on your objection.
BY MR. ALEXANDER:
, We move for a mistrial in light of the fact that the Judge made the ruling in open Court before the Jury.
BY THE COURT:
Overruled.

The appellant Wilson asserts as error here that the trial court’s remarks consisted of a peremptory instruction on the vol-untariness of the confession and removed the factual issue of credibility and weight from the jury’s determination. Thus the question is presented here of whether the trial court’s remarks constitute reversible error.

The admissibility of a confession is for the determination of a trial judge. Brook v. State, 178 Miss. 575, 582, 173 So. 409, 411 (1937), Anderson v. State, 241 So.2d 677 (Miss.1970). The admissibility of the confession, however, is to be distinguished from the issue of its credibility and its weight. The distinction has been enunciated by this Court. In McNeal v. State, 405 So.2d 90 (Miss.1981), this Court stated that “(t)he competency of a confession as evidence is for the court to decide as a matter of law, while the weight and credibility of a confession is for the jury to decide along with other testimony and physical evidence.” Ruffin v. State, 447 So.2d 113 (Miss.1984), McNeal v. State, 405 So.2d 90, 92 (Miss.1981), Craft v. State, 380 So.2d 251 (Miss.1980), Norwood v. State, 258 So.2d 756 (Miss.1972).

Once a confession is admitted into evidence, a defendant is entitled to submit evidence and have the jury pass upon the factual issues of its truth and voluntariness and upon its weight and credibility. Anderson v. State, 241 So.2d 677 (Miss.1970). The defendant may offer proof to show that the confession is untrue and explain why he made the untrue statement. Anderson, supra. 2 Wharton’s Criminal Evidence (12th ed. 1955) § 359, p. 141.

Once this rebuttal or impeachment testimony is offered, then the jury may conclude that the confession, though found by the court to be voluntary, is untrue and not entitled to any weight. Anderson, supra. Confessions are not conclusive and may be weighed as to their credibility under the circumstances by the jury. This is a matter for the jury and not the court. Diddlemeyer v. State, 234 So.2d 292, 296 (Miss.1970).

In the case sub judice, the Court had determined at the suppression hearing that the confession was competent evidence to be admitted. At trial, the state offered it into evidence and defense counsel renewed his objection to its introduction, specifying that it was involuntary.

Thereafter, the trial court responded to the remark, in presence of the jury, stating that it had ruled the confession was freely and voluntarily given, and that “(t)here was no coercion, threats, promises, or force used.” These remarks by the trial court amounted to a peremptory instruction on the confession and removed from the jury its function of deciding the credibility of the confession and the weight to be given to the testimony of the witnesses surrounding its execution. Weight and credibility of the witnesses as to these matters were for the jury. This Court has acknowledged that judges unconsciously exert tremendous influence in the trial of a case, and they should be astutely careful so that unintentionally the jurors are not improperly influenced by their words and actions. Yelverton v. State, 191 So.2d 393 (Miss. 1966); Roberson v. State, 185 So.2d 667 (Miss.1966).

This Court in Stallworth v. State, 310 So.2d 900 (Miss. 1975) addressed a similar question involving a comment by the trial judge on the weight and credibility of a witness. A defense witness had made a statement to a sheriff, but testified differently at trial. Defense counsel’s objection was sustained when the state attempted to impeach the witness with the prior statement. After the state’s cross-examination was completed, the witness asked if he could say something to which the court replied in the presence of the jury.

“BY THE COURT: No, you better go on down with your lawyer. You are not on trial here; but, if I catch you telling an untruth here, you will be in front of me here.

A mistrial was asked for outside the presence of the jury and denied.

Applying Mississippi Code Annotated section 99-17-35 (1972) which states: “The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; ...” This Court wrote:

We are of the opinion that the language of the trial judge in the case at bar was a comment on the testimony of Miller, and indicated to the jury the weight that they should give to this evidence. This was specifically prohibited by the statute. The judgment is reversed and this cause remanded for a new trial.
(Id. at 902).

Stallworth v. State, and section 99-17-35 of the Mississippi Code Annotated (1972) are controlling here and require a reversal in this case.

At the conclusion of the trial, when the court instructed the jury in writing on the law, there was no corrective instruction given to inform the jury of its function of determining the weight and credibility of the confession with the other testimony and physical evidence.

We, therefore, hold that these remarks constitute reversible error which requires a reversal and remand for a new trial.

B.

The court does not address the other assignments of error as the case is remanded for retrial, and no direction by this Court in its advisory capacity is necessary.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . An out-of-time appeal was allowed by this Court on May 20, 1981.


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    James E. BENNETT, Jr. v. STATE of Mississippi.
    No. 54837.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 11, 1984.

      Duncan Lott, Langston, Lott & Lang-ston, Booneville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Tishomingo County wherein the appellant, James E. Bennett, Jr., was indicted in a two count indictment which charged him with aggravated assault and armed robbery. Bennett was tried on these charges in a single trial and was found guilty on both counts. He was sentenced to serve (7) years on the charge of aggravated assault and fourteen (14) with seven (7) suspended, on the charge of armed robbery. On this appeal, Bennett argues that his defense was impermissibly prejudiced because he was tried on the charges of armed robbery and aggravated assault at the same time. We agree and therefore reverse the conviction of aggravated assault.

This case is controlled by our recent decisions in Friday v. State, No. 54,039, decided January 25, 1984 (not yet reported) and shortly before, Stinson v. State, 443 So.2d 869 (Miss.1983). In Stinson v. State, Stinson was tried for three separate counts of an indictment, aggravated assault upon a law enforcement officer, kidnapping and attempted escape from the Department of Corrections by violence. In addressing this triple count indictment we examined the history of Mississippi criminal jurisprudence as it relates to multi-count indictments and the consolidation of offenses for trial. To sum up our holding, we quoted Fondren, Mississippi Criminal Trial Practice § 26-11 (1980), which reads:

Unlike the practice of the federal courts and many state courts, Mississippi law does not provide for multiple counts or charges in one indictment.

Our holding in Stinson was intended to make it plain that under our state’s criminal jurisprudence a multi-count indictment is inherently defective.

Shortly after Stinson was decided, we handed down the Friday decision. In Friday the appellant was indicted under a four count indictment but tried for only two of the counts, kidnapping and rape, at once. We held:

Because of the inherent prospect of destroying a defendant’s right to the presumption of innocence, Mississippi does not allow trial on separate charges to be consolidated where evidence of the crime would not be mutually admissible in separate trials and where the defendant is subject to receiving more than one sentence.

Based on our holdings in Stinson and Friday it is clear that the indictment which charged Bennett with aggravated assault and armed robbery was defective. We are now faced with a determination of what effect the defective indictment is to have. In Stinson we held:

Although it was error for the state to charge the appellant in three separate counts for separate and distinct offenses and for the court to try the appellant thereon, we are of the opinion that appellant was not prejudiced with respect to the charge of aggravated assault and on which he was found guilty of simple assault. All the evidence introduced was admissible on that charge alone. Therefore, the judgment of the circuit court sentencing appellant to five years in the custody of the Mississippi Department of Corrections on his conviction of simple assault should be and is hereby affirmed.

Stinson at 873.

Addressing the same issue in Friday we held that because all of the testimony put on by the State on the charge of kidnapping was relevant to the charge of rape, the conviction and sentence for rape would be affirmed but the conviction and sentence for kidnapping were vacated.

Because all of the proof adduced by the State was admissible and relevant to show armed robbery, we hereby affirm that conviction; however, we must reverse Bennett’s conviction of aggravated assault as some of the evidence which proves the armed robbery would be inadmissible on a trial for aggravated assault alone.

Therefore, based on all of the foregoing, appellant’s conviction of armed robbery is affirmed and his conviction of aggravated assault is vacated.

AFFIRMED IN PART, REVERSED IN PART, AND SENTENCE OF SEVEN (7) YEARS ON CHARGE OF AGGRAVATED ASSAULT VACATED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, PJJ., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: HAWKINS, Justice,

text:
    James Willis BARFIELD v. STATE of Mississippi.
    No. 54219.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 11, 1984.
    Chatwin M. Jackson, Jr., Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., HAWKINS and PRATHER, JJ.
   HAWKINS, Justice,

for the Court:

James Willis Barfield appeals from his conviction of murder in the Circuit Court of Attala County and sentence to life imprisonment.

The only question we address on this appeal is the refusal of the trial court to grant a mistrial following an alleged comment by the state on the refusal of the defendant to testify at a preliminary hearing.

Under the facts of this case, we find no error and affirm.

Barfield killed his cousin John Lewis Fleming on the 14th day of November, 1981. There were two eyewitnesses to the slaying. His defense was a combination of accident and self-defense. There is no need to review the evidence, which amply supported the verdict.

Barfield was indicted for murder on February 22, 1982, and at his trial in March, 1982, he took the stand in his own defense. After testifying on direct examination in support of his claim of self-defense, the record shows the following:

BY MR. SNYDER:
Q. Who did you tell — when did you tell the sheriff that you shot in self-defense?
A. I told the sheriff I shot in self-defense?
Q. Yes.
A. I don’t remember telling him that.
Q. When did you tell the highway patrolman who was out there that you shot John Fleming in self-defense?
A. I don’t remember telling him that.
Q. When did you tell Officer Bee Hudson that you shot the defendant in self-defense?
A. I don’t remember that.
Q. When did you tell the county attorney, Geoffrey Morgan, that you shot John Fleming in self-defense?
A. I don’t remember telling — are you talking about prior to today?
Q. Yes.
A. I don’t remember.
Q. When did you tell me, the District Attorney, you shot John Fleming in self-defense?
A. A few minutes ago.
Q. In here in Court?
A. Yes, sir.
Q. You never had mentioned it to me before today? Is that correct?
A. Not that I can remember.
Q. When did you tell the Justice Court Judge who conducted the preliminary hearing that you shot in self-defense?
BY MR. JACKSON:
I object if the Court please.
BY THE COURT:
The objection is sustained.
BY MR. JACKSON:
I move for a mistrial. I’d like to be heard.

In chambers defense counsel moved for a mistrial on the ground Barfield had not testified at the preliminary hearing before the justice court, and established this in chambers. The state responded that the justice court judge Robbie Robertson was at the scene following the slaying, and it was then the state was asking about any statement Barfield made to him.

The circuit judge then stated into the record he had misinterpreted the original question, overruled the objection and permitted the state to ask Barfield about a statement made to Robertson. In his ruling, however, the circuit judge made it clear the court would not permit any questioning pertaining to whether or not Bar-field testified at the preliminary hearing.

When the jury returned, Barfield was asked and testified as follows:

BY MR. SNYDER:
Q. Do you deny that on November 14th, 1981, at about 12:30, somewhere between your house and Geneva Fleming’s house, you told Robbie Robertson, “Well, Robbie, I took it,” or “I took it as long as I could,” or words to that effect?
A. I don’t remember seeing him.
Q. You don’t remember seeing him at all?
A. No, sir.

Barfield contends on appeal the first question by the state, “When did you tell the justice court judge who conducted the preliminary hearing that you shot in self-defense,” was a comment on his failure to testify at the preliminary hearing, and in violation of Miss.Code Ann. § 13-1-9 (1972) as we have consistently interpreted this statute.

We agree with the circuit judge that the question as originally asked was subject to more than one interpretation, and by permitting the state to show that the district attorney was asking about a prior contradictory statement (and not about any failure to testify at the preliminary hearing), the matter was removed from speculation.

No error was committed. AFFIRMED.

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


author: BOWLING, Justice,

text:
    AETNA CASUALTY & SURETY COMPANY v. Dorothy A. BARKER.
    No. 54137.
    Supreme Court of Mississippi.
    May 16, 1984.
    Cary E. Bufkin, Jim Bullock, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellant.
    Bill Waller, Sr., Waller & Waller, Doug Wade, Jackson, for appellee.
    Before WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, J.
   BOWLING, Justice,

for the Court:

This appeal involves the interpretation of uninsured motorist provisions in an automobile liability insurance policy. The primary question is whether the policy provisions conform to the requirements of the uninsured motorist statutes and the resulting interpretation of the policy provisions. A brief statement of the undisputed facts is necessary.

The case was tried without a jury by a judge of the Circuit Court of the First Judicial District of Hinds County. The facts presented revealed that one Jerry W. Bridges owned a 1976 Chevrolet Camaro automobile. Bridges had purchased a policy of liability insurance with appellant, Aet-na Casualty and Surety Company, listing the Camaro as the only insured vehicle. Bridges also owned a motorcycle that was not listed on the insurance policy in question and was not insured under any other policy issued by any other company.

On July 24, 1980, the insured Camaro was inoperable because of a mechanical condition. In order to have transportation, Bridges chose to operate his uninsured motorcycle. At the time of the incidents related herein, he was operating the motorcycle and had as a passenger thereon Pamela Burkett, a female who was living with Bridges, but was not his wife or related to him in any manner. The motorcycle, with its two occupants, was involved in a collision with an admitted uninsured motorist. Bridges was injured and Burkett was killed. Admittedly, the collision was caused solely by the negligence of the uninsured motorist.

Appellant, Aetna, paid full uninsured motorist provision benefits to Bridges under the above described policy. The insurance company refused to pay under the uninsured motorist provision of the policy any money to Burkett’s heirs or legal representatives. This suit is by the statutory beneficiary of Pamela Burkett, deceased, for uninsured motorist benefits. The trial judge held that they were entitled to protection and payment under the uninsured motorist provisions of the policy and the applicable statutes and rendered a judgment for appellee. Appellant Aetna contends that under the facts stipulated, Burk-ett was not covered under the policy’s uninsured motorist coverage. We agree with Aetna and reverse and render the cause.

Both parties rely on the case of Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss.1974). There the court through Justice Rodgers set out an extensive discussion regarding coverage under the uninsured motorist provisions where the claim arose out of the operation of a vehicle not listed in the policy. In Lowery, the named insured in the liability policy had a minor son living in his household. The son was injured when he was driving a motorcycle, owned by him personally, with the motorcycle not being listed under any insurance policy. As here, the minor was injured admittedly by the negligence of an uninsured motorist. Under the terms of the father’s policy insuring the father’s personal automobile, the claim of the son for his injuries was excluded. We held that this exclusion did not apply as the statutes [Mississippi Code Annotated, Sections 83-11-101 through 103 (Supp.1983)], were contrary to the terms of the insurance policy and required coverage for the named insured’s son under the uninsured motorist provision, even though the son was operating an uninsured motorcycle owned by him personally.

Recognizing the difficulty in interpreting the policy provisions in the case sub judice, the primary question raised below and the primary question now before us is whether or not Burkett, at the time she met her death, was riding in a “temporary substitute automobile” as authorized under the policy provisions and thereby covered under the terms of Bridges’ policy.

As hereinbefore stated, Bridges was paid. The policy provision “temporary substitute automobile” did not apply to him. He would have been covered under his personal policy had he been standing in the middle of the street and struck by an uninsured motorist’s vehicle. The statutes and authorities are clear that there are two separate and distinct types of insureds under uninsured motorist coverage and the terms of these statutes are incorporated in all motor vehicle policies where uninsured motorist coverage is provided. [See Lowery, supra.] The statute, MCA § 83-11-103(b) (Supp.1983), in defining the term “insured” plainly states as follows:

(b) The term “insured” shall mean the named insured and, while resident of the same household, the spouse of any; such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which they policy applies, or the personal representative of any of the above. The definition of the term “insured” given in this section shall apply only to the uninsured motorist portion of the policy. (Emphasis supplied).

We already have discussed the fact that in Lowery, supra, the named insured’s son [standing in the same status as the named insured], was covered under the father’s policy, even though at the time of the injury, he was operating a personally owned and uninsured vehicle. In the case at bar, the named insured Bridges was covered under his policy regardless of what vehicle he was operating. Not so as to Mrs. Burk-ett. She was an “insured” under the second definition set out in the above quoted statute. Admittedly, she was an occupant of an uninsured vehicle and was not a relative living in the same household with Bridges, the named insured under the policy covering the Camaro.

Again, the question, therefore, is whether or not Mrs. Burkett can be said to have been an “insured” under the terms of Aet-na’s policy. The decisive question then is whether or not she was a passenger in a “temporary substitute automobile” as that term is set out in the policy relating to its named insured Bridges.

The applicable sections of the “protection against uninsured motorist” part of Aet-na’s policy under the heading “definitions” provides as follows:

The definitions under the Liability Coverage, except the definition of “insured,” apply to the Uninsured Motorists’ Coverage, and under the Uninsured Motorists’ Coverage;
“Insured” means:
(a) the named insured and any relative;
(b) any other person while occupying an insured automobile; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Coverage applies sustained by an Insured under (a) or (b) above.
The insurance afforded under the Uninsured Motorists Coverage applies separately to each Insured, but the inclusion herein of more than one insured shall not operate to increase the limits of the Company’s liability.
“insured automobile” means:
(a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded,
(b) a private passenger, farm or utility automobile, ownership of which is acquired by the named Insured during the policy period, provided
(1) it replaces an insured automobile as defined in (a) above, or
(2) the Company insures under this coverage, all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named Insured notifies the Company during the policy period or within 30 days after the date of such acquisition of his election to make the Liability and Uninsured Motorists Coverages under this and no other policy issued by the company applicable to such automobile.
(c) a temporary substitute automobile for an insured automobile as defined in (a) or (b) above ...

Referring back to Part I of the policy, labeled “liability coverage” we find under the heading “Definitions” the following: Definitions

Under the Liability Coverage:
“named insured: means the individual named in Item i of the declarations and also includes his spouse, if a resident of the same household;
“Insured” means a person or organization described under “persons Insured”;
“relative” means a relative of the named Insured who is a resident of the same household;
“owned automobile” means
(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded,
(b) a trailer owned by the named Insured,
(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an owned automobile as defined in (a) above, or
(2) the Company insures all private passenger, farm and utility automobiles owned by the named Insured on the date of such acquisition and the named Insured notifies the Company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the Company applicable to such automobile, or
(d) a temporary substitute automobile;
“temporary substitute automobile” means any automobile or trailer, not owned by the named Insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
“non-owned automobile” means an automobile or trailer not owned by or furnished for the regular use of either the named Insured or any relative, other than a temporary substitute automobile;

Appellant obviously recognized that it was required to adopt in its uninsured motorists coverage provision the definition of “insured” as set out in the statute [MCA § 83-11-103 (Supp.1983) ]. The question then remains as to whether or not appellant insurance company did not follow the dictates of the statute in referring the definition of “Temporary substitute automobile” back to the liability coverage part where it describes such automobile as “any automobile or trailer not owned by the named insured, while temporarily used with the permission of the owner as the substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, service, loss or destruction.” (Emphasis supplied).

We need again to look at the principal case of Lowery, supra, where a number of cases from this state and other jurisdictions were discussed. As hereinbefore set out, the statute set up two different types of insureds. The Lowery case adopted the language of the Virginia Supreme Court interpreting a statute identical to the Mississippi statute in the case of Allstate Insurance Co. v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967). The Virginia appellate court said the following:

It will be observed that the language of subsection (c) is plain and unambiguous. It first includes within the term “insured,” “the named insured * * * while in a motor vehicle or otherwise.” Here the language used does not limit or restrict the coverage to the named insured while he is in or operating the vehicle covered by the policy. On the contrary, the coverage extends to him while he is “in a motor vehicle,” that is, in any motor vehicle, “or otherwise.”
Under the next language of subsection (c) the term “insured” includes “any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies.” Here coverage to a permissive user and a guest is limited to the use of the “vehicle to which the policy applies.”
... [T]he General Assembly, in enacting this statute, intended to create two classes of insured persons with different benefits to each; that the first class includes the named insured “while in a motor vehicle or otherwise”, and the second class includes those who use, with the consent, expressed or implied, of the named insured, the vehicle to which the policy applies and those who are guests in such vehicle.” 153 S.E.2d at 223-224.
(285 So.2d at 771)

The Lowery opinion also discussed a Georgia case with a statute similar to this state’s statute. Gulf American Fire and Casualty Co. v. McNeal, 115 Ga.App. 286, 154 S.E.2d 411 (1967). The Georgia Court in discussing the two classes of statutorily created insured said:

The latter class are insured persons under Code § 56-407A(b) only when the “insured automobile” is involved. The former class are insured persons even where the “insured automobile” is not in any way involved in the insured’s injuries.

Lowery adopted the language of the South Carolina Supreme Court in the case of Hogan v. Home Insurance Co., 260 S.C. 157, 194 S.E.2d 890 (1973). The definition of “insured” in the Mississippi statute is identical to that of South Carolina. The South Carolina Court said:

... [T]he foregoing definition, as applied to uninsured motorist coverage, refers to two classes of insureds with different coverage to each: (1) The named insured, his spouse and his or her relatives resident in the same household, “while in a motor vehicle or otherwise;” and (2) any permissive user or guest when occupying the insured motor vehicle. The members of the first class are covered at all times without reference to the use of the insured vehicle; while the members of the second are covered only while using, or a guest in “[the] motor vehicle to which the policy applies.” 194 S.E.2d at 891-892.
... In the original formulation of this definition, the use of the words “while in a motor vehicle or otherwise” was appropriate, although probably unnecessary to emphasize the legislative intention that the named insured, his spouse and his or her relatives residing in the same household should have the benefit of uninsured motorist coverage at all times, as distinguished from permissive users or guests who should be covered only when occupying the insured automobile. 194 S.E.2d at 892.

We, therefore are down to the basic question as to whether or not the deceased Burkett at the time of the collision with the uninsured motorist was a guest in an “insured” automobile. We already have noted the reference in appellant’s policy to the definitions under the “liability coverage” as being applicable, except the definitions of “insured.” 1

The only means by which the deceased could have been covered was for her to have been a passenger in or on a “temporary substitute automobile.” The definition of this term as set out in the liability coverage part of the policy, clearly states as hereinbefore shown that a temporary substitute automobile means any “automobile or trailer not owned by the named insured and etc.” Admittedly, the listed insured car, the 1976 Camaro, was not driveable. Admittedly, Bridges chose to drive another owned vehicle, not covered by insurance. We should stop here and note that according to the evidence, the deceased owned a vehicle not covered by insurance but this is immaterial to the narrow issue we are called on here to decide.

The legislature chose to make the deceased Mrs. Burkett an insured with less “rights” than Bridges. Close examination reveals the reasoning behind this. Although the named insured, including the members of his family, was covered in any instance of injury by an uninsured motorist, as a result of the premium paid, it would be impracticable to extend this coverage to a guest in or on a vehicle owned by a named insured in a policy where he only has one vehicle covered and one or more, regardless of the number, not covered. The extension of “guests” to any owned vehicles not covered and for which no premium was paid would be a legislative matter. We cannot say that public policy requires such coverage.

We conclude that the motorcycle on which Mrs. Burkett was riding as a guest was not an “insured automobile” under the terms of the policy issued by appellant under the admitted facts of this case. The deceased did not qualify under the second definition of insured under the hereinbe-fore discussed statutes and authorities.

Reversed and judgment rendered for appellant.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and ' HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., not participating.


text:
    Larry HARPER v. STATE of Mississippi.
    No. 54808.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 11, 1984.
    H. David Clark, II, John M. Huff, Forest, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    GOLDEN FLAKE SNACK FOODS, INC., et al. v. Annie JEFFERIES.
    No. 54877.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 11, 1984.
    David M. Sessums, R.E. Parker, Jr., Var-ner, Parker & Sessums, Vicksburg, for appellant.
    David W. Hall, Riley, Pintard & Hall, Natchez, for appellee.
   Appeal from Circuit Court, Claiborne County; John W. Prewitt, Sr., Judge.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

AFFIRMED.


author: SULLIVAN, Justice,

text:
    Helen A. CURTIS, Vera Flournoy, Cathy C. Jordan, Judy M. Mote & Joan Sanders v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and South Central Bell Telephone Company.
    No. 54252.
    Supreme Court of Mississippi.
    May 23, 1984.
    Rehearing Denied July 11, 1984.

      John L. Quinn, Cupit & Maxey, Jackson, for appellants.
    Kenneth E. Milam, Miller, Milam, Johnson & Moeller, John McCullouch, Jackson, for appellees.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This is an appeal from the Circuit Court of Alcorn County, Mississippi, from a final judgment on a non-jury verdict in favor of appellees, Mississippi Employment Security Commission and South Central Bell Telephone Company, and against appellants, Helen A. Curtis, Vera Flournoy, Cathy C. Jordan, Judy M. Mote, and Joan Sanders.

Appellants were all employees of South Central Bell when their jobs were eliminated due to technological changes in that company’s operations that resulted in the closing of their respective offices. Flour-noy and Jordan were employed at Columbus, Mississippi; Mote was employed at McComb, Mississippi; Sanders and Curtis were employed at Corinth, Mississippi.

Under the collective bargaining agreement between South Central Bell and the Communication Workers of America, appellants were each given three options upon notice of the closing of their offices. These options included, (1) termination of employment with a lump sum payment of money based on a certain number of weeks’ pay for each year of credited service, (2) transfer to another job in another office of the employer, and (3) technological leave of absence pursuant to Article VII of the bargaining agreement.

Curtis and Sanders were offered transfers to Jackson, some 218 miles from their homes. This would have required a change' of residence and they both declined the transfer, taking instead the technological leave of absence. Flournoy and Jordan were offered transfers to Meridian, some 90 miles from their homes. As this too would cause a change in residence, they also declined the transfer and took technological leaves of absence. Mote was offered a transfer from McComb to Jackson, a distance of some 81 miles. This too would require her to change her residence so she declined transfer and took a technological leave of absence.

All five appellants filed claims for unemployment benefits during 1981 and each claim was denied by the claims examiner for the Mississippi Employment Security Commission and appeals were taken before the Appeals Referee. The Appeals Referee in each case upheld the decision denying the claims: An appeal was then perfected to the Mississippi Employment Security Commission Board of Review, and that Board conducted a hearing on the matter and issued its findings of fact and its opinion. The Board found that in each case the appellants were ready and willing to accept any suitable employment in their respective areas. The Board found that rejection of the offers of transfer did not constitute rejection of suitable employment, since the transfers involved a change of residence. The Board also found that during their technological leaves of absence, appellants did not perform any service for South Central Bell or were they paid any wages by their employer during this period. After making these findings, however, the Board, relying upon South Central Bell Telephone Company v. Mississippi Employment Security Commission, 357 So.2d 312 (Miss.1978), found that appellants were not unemployed within the meaning of the statute and upheld the denial of benefits.

After consolidation to the Circuit Court of Alcorn County, that court, as an appellate court, affirmed the decision of the Board of Review denying unemployment benefits to the appellants.

The issue presented by this appeal is, based on the facts found by the Board of Review: Was our holding in South Central Bell Telephone Company v. Mississippi Employment Security Commission, supra, properly applied to deny benefits to appellants here. We hold that it was not.

This case is readily distinguishable from South Central Bell Telephone, supra. There the employees were offered jobs at distances of 35, 38 and 43 miles from their homes and declined to accept the employment, electing instead to take technological leaves of absence. Those distances were held not to be unusual or uncommon for employees in the same occupation or in the same area where the employees resided to drive to work. South Central Bell Telephone, supra, citing Graham v. Mississippi Employment Security Commission, Decision No. 244-R-61 (1962) and In Re Foshee, 46-BR-75 (1975). Under the test of In Re Foshee the distances required of the appellants in this case would certainly be unusual and uncommon and the longest distance in South Central Bell Telephone, supra, does not approach the shortest distance required to be traveled in this case.

The employees in South Central Bell Telephone, supra, failed to meet their burden of showing that they left work involuntarily as they unduly restricted their availability for work and were disqualified for employment benefits. Because of this, the Court further held in that case the taking of technological leave under those circumstances was a voluntary taking of leave and that, therefore, those employees were not unemployed within the meaning of the statute and were, therefore, disqualified.

Such is not the case here. Appellants lost their jobs by technological advances. Thus they were involuntarily placed in the position of choosing one of the three options outlined above. As a practical matter, only two options remained — taking a technological leave of absence or terminating their employment and accepting severance pay. While on the surface this may appear to be a choice, in reality it is no choice at all. Faced with the choice of terminating their relationship with their employer or taking a leave of absence in the hopes that their relationship with their employer could be restored, the appellants took the only practical alternative available to them, the technological leave of absence. Under these circumstances, when contrasted to the factual situation in South Central Bell Telephone Company, supra, we cannot say that the taking of a leave of absence was voluntary and that the appellants were not unemployed within the plain meaning of Mississippi Code Annotated § 71-5-513 (1972), and Mississippi Code Annotated § 71-5-11(0), (Supp.1983).

We conclude that the Commission erroneously applied the law to facts which are without substantial dispute. There is nothing to support a view that traveling the distances indicated in this record is comparable to traveling to Greenwood, Clarks-dale or Greenville from Cleveland.

We hold that the Commission was in error, as a matter of law, in holding that the appellants were not unemployed and not eligible for unemployment benefits under the statute. The judgment appealed from is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BOWLING and ROBERTSON, JJ., not participating.


text:
    ESTATE OF Joseph A. LAWLER, Deceased, et al. v. Mary Ruth Henry WESTON, et al.
    No. 54238.
    Supreme Court of Mississippi.
    May 23, 1984.

      Edwin W. Tindall, Lake, Tindall, Hunger & Thackston, Greenville, for appellants.
    David M. Sessums, Varner, Parker & Sessums, Prewitt & Courteau, Vicksburg, Henry L. Rodgers, Louisville, for appellees.
    Before PATTERSON, C.J., and PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This case comes on appeal from the Chancery Court of Washington County, Mississippi, from a final judgment on a jury verdict in favor of the contestants and against the proponents of the Will of Joseph A. Lawler, Deceased. When this case was tried the first time the chancellor entered a directed verdict in favor of the proponents. On November 18, 1981, this Court reversed in the case of Weston v. Estate of Joseph A. Lawler, 406 So.2d 31 (Miss.1981). The case was tried again before a jury and after five days of testimony that jury returned a general verdict in favor of the contestants, setting aside the November 20, 1979, will of Joseph Lawler. Appellants assign eight errors and appel-lees cross-appeal and assign as cross-assignments of error that the lower court erred in refusing to direct a verdict for the appellees and that the lower court erred in refusing to instruct the jury to return a verdict for the contestants of the will.

Appellees sought to set the will aside with both barrels of their shotgun — undue influence and lack of testamentary capacity. Where a will is subject to this dual attack and the jury returns a general verdict, the principles announced by this Court in Blalock v. Magee, 205 Miss. 209, 38 So.2d 708 (1949), are dispositive.

In Blalock, the will was also attacked because of undue influence and lack of testamentary capacity. Citing Sheehan v. Kearney, 82 Miss. 688, 21 So. 41 (1896), one of the leading cases in this country on the issue, the Blalock Court said that in a will contest on the grounds of undue influence and lack of testamentary capacity the “issue is single, — will or no will.” Id. at 246, 38 So.2d at 712. The Court then concluded that, where a declaration contains two counts which both lead to the same liability, a general verdict is sufficient if sustained under either count. 205 Miss, at 247, 38 So.2d 712.

In these circumstances, it is incumbent upon the proponents of the will to prove both the lack of undue influence as well as the requisite testamentary capacity. Should they fail in either one, then they have lost their case, notwithstanding error in the other.

Most of appellants assignments of error here concern the charge of undue influence. After meeting their initial burden of proof, the proponents admitted the existence of a confidential relationship. Under the case law of our state, the existence of a confidential or fiduciary relationship, coupled with a showing of “suspicious circumstances” such as the fact that a beneficiary or person who benefits by the will took part in the execution or preparation of the will, gives rise to a presumption of undue influence. Croft v. Alder, 237 Miss. 713, 723, 115 So.2d 683, 686 (1959). In the area of wills, this entire question has been addressed in the scholarly opinion of Justice Prather in Harris v. Sellers, 446 So.2d 1012 (Miss.1984), and as it affects deeds, Justice Prather has elaborated on the doctrine in Murray v. Laird, 446 So.2d 575 (Miss.1984). We first discuss the assignments of error directed to the issue of lack of testamentary capacity.

In assignment four, appellants urge that the chancellor erred in refusing their instruction P-13 and alternate instruction P-13A, and in assignment 5, they urge error by the chancellor in refusing appellants’ instruction P-14. Instruction 13 is a “boiler plate” instruction purporting to set forth the law on who might make a will. It is well settled that jury instructions which are mere abstract principles of law and which are not applied to the specific facts of the case should not be given. Harkins v. Paschall, 348 So.2d 1019, 1023 (Miss.1977); Freeze v. Taylor, 257 So.2d 509, 511 (Miss.1972). Not only is instruction 13 an abstract principle of law but it is also erroneous in that it fails to take into account Mississippi Code Annotated § 91-5-1 (Supp.1983), which provides that in addition to being over 18 years of age the testator must also be of sound and disposing mind. Therefore, the instruction was properly refused.

Instruction P-13A is an effort to correct the oversight cited above in instruction P-13. It is a correct recitation of the law but is not, however, applied to the specific facts of the case and as such is also merely an abstract principle of law. Harkins v. Paschall, supra; Freeze v. Taylor, supra. This instruction was properly refused.

It is urged that the chancellor’s refusal to give requested instruction P-14 which sought to inform the jury that they did not have the authority to decide how and to whom the testator should have left his property was error because it left the jury uninstructed that it was their duty to decide the case on the evidence, applying the law as given by the trial court, and not to rewrite the will of Joseph Lawler. To adopt this position would be to ignore jury instruction C-l which amply instructed the jury that it was their duty to determine the facts and determine them from the evidence produced in open court, and further to ignore the granting of instruction C-6, which required the jury to uphold the will should they find that deceased was of disposing mind and was not unduly influenced. Instructions are meant to be read together. If that is done in this case then the conclusion is inescapable that the jury was fully and adequately instructed on this point and the court was not in error in refusing to grant instruction P-14.

In their eighth assignment, appellants contend that the granting of instruction R-24 which instructed the jury as to the effect of the Dead Man’s Statute was erroneously given. First they contend that the instruction should not have been given because the appellants could have waived the disability under the statute and because appellees never called any of the contestants to testify. Second, appellants contend that since one of the proponents testified by interrogatories this instruction left the inference that she was not truly a beneficiary under the will. Appellees do not argue that the instruction is not a mere abstract principle of law, though under Harkins v. Paschall, supra, and Freeze v. Taylor, supra, it clearly is. However, assuming but not deciding that both points raised by appellants are true, and accepting that the instruction is not a mere abstract principle of law, the question remains: Does the error require reversal? We hold that it does not. If error it be it is harmless error and under Supreme Court Rule 11 reversal is not required. This is true because the instruction “cuts both ways” and applies equally to both sides. Moreover, it has little or no effect on the two issues at trial, the question of undue influence and lack of testamentary capacity, nor does it substantially prejudice the rights of the appellants. As we cannot say that this instruction misled the jury as to the real issues on which they had to pass, reversal is not required. Danner v. Mid-State Paving Co., 252 Miss. 776, 173 So.2d 608 (1965).

The last assignment of error which deals with testamentary capacity is that part of appellant’s seventh assignment of error dealing with jury instruction R-16. It is argued that instruction R-16 was erroneously given because it is contrary to the weight of the evidence. We point out that both appellants and appellees.in their brief on this point misquote instruction R-16 as R-15. However, instruction R-15 deals with undue influence and not testamentary capacity and was in fact refused. We therefore assume that appellants meant to discuss R-16 which instructs the jury on the question of testamentary capacity. That being so, the record in this case amply supports the giving of instruction R-16, and also supports a finding by the jury that the testator lacked testamentary capacity on November 20, 1979. On this record, the evidence on this issue was hopelessly conflicting and we have held many times that the sorting of this type conflict is a task peculiarly for the jury. Shelton v. Coleman, 323 So.2d 90, 91 (Miss.1975). The task was properly submitted to the jury and the jury did its duty. There is no merit to this assignment.

As we find no merit in any of the assignments of error dealing with the question of the testamentary capacity, then under our holding in Blalock v. Magee, supra, that appellants must show error in both issues in order to have a general verdict reversed, it is necessary that the verdict of the jury in this ease setting aside the will be affirmed. However, it is not inappropriate for us to discuss the assignments of error dealing with the issue of undue influence.

In their first assignment of error, appellants contend that the chancellor erred in excluding the proffered testimony of Paul Horne as to his knowledge of what other members of the Jackson family, his wife, Linda Jackson, and Thyra Crosby knew of the assets or estate plan of the deceased. A timely objection was sustained to that question and the appellant then made a proffer of the witness’s testimony. The only question asked of the witness to which an objection was sustained concerns what the witness had told others out of court. Such out-of-court declarations are hearsay and as such are not admissible. Furthermore, after the objection was sustained and the proffer made outside the presence of the jury, appellant never attempted to pursue the matter. The chancellor was never given an opportunity to fully rule on the matter and on this record should not be put in error thereby.

In appellants’ second assignment of error, it is urged that the chancellor erred in excluding the opinion testimony of Dr. David B. Keddy that the aggravation resulting from the lawsuit of Horace Henry, half-brother of the deceased, caused or hastened the illness and death of the deceased. Appellants urge that the exclusion of this testimony prevented them from explaining why Dr. Keddy, at Lawler’s direction, excluded certain relatives from visitation privileges with Lawler, the deceased, while he was in the hospital. As the chancellor correctly pointed out, the cause of death or what may have induced it is irrelevant to the issues before the court, undue influence or lack of testamentary capacity. It further appears from the record that the appellants were able to elicit from Dr. Keddy the very points which they claim were excluded from the jury. Therefore this assignment of error is without merit.

In appellants’ third and sixth assignments of error, it is contended that the chancellor erred in granting instructions C-6 and R-12. It is argued that these instructions resulted from a too literal following of this Court’s decision in the first appeal, Weston v. Estate of Joseph A. Lawler, supra. The thrust of this argument is that while the beneficiaries may have been liable for the alleged undue influence of Horne, their burden of rebutting any presumption of undue influence by clear and convincing evidence should be limited only to those acts arising from the circumstances of Horne’s confidential relationship. In Weston, supra, this Court found that the confidential relationship existing between Horne and Lawler had extended to several of the beneficiaries under the will and noted that “[u]ndue influence over a testator, while not exercised by a beneficiary under the will, may be done through an agency or a third person.” Weston, supra at 34. We then found that “the proponents ... had a duty to meet that burden by clear and convincing evidence.” Id. This is so because Horne not only occupied a position of fiduciary to Lawler, but also had been actively involved in the preparation and execution of the will. Croft v. Alder, supra. Since the issue here is will or no will it was incumbent upon all the beneficiaries to disprove undue influence by clear and convincing evidence. While we concede that instructions R-12 and C-6 may be inartfully drawn, they are not erroneous.

The remaining part of the seventh assignment of error urges that the chancellor erred in granting instructions C-6, R-12 and R-21 as they were contrary to the overwhelming weight of the evidence.

As a confidential relationship existed between Horne and Lawler, and as Horne was concerned with the preparation and execution of the will, the burden devolved upon appellants to prove by clear and convincing evidence the lack of undue influence. This presumption of undue influence can be overcome by clear evidence of good faith, of full knowledge, and of independent counsel and action. Hendricks v. James, 421 So.2d 1031, 1043 (Miss.1982); Harris v. Sellers, supra; and Murray v. Laird, supra.

On the conflicting evidence in this record, it cannot be said that the appellants met their burden by clear and convincing evidence. In such circumstances the resolution of this conflict is for the jury. Shelton v. Coleman, supra. There is no merit to this assignment.

For the same reason, the two cross-assignments of error cited by appellees urging that a directed verdict should have been given on the issue of undue influence, are also without merit.

We find no error on the issue of undue influence. As we are faced with a general verdict in favor of the contestants and as we have found no error on the issue of lack of testamentary capacity and no error on the issue of undue influence, the jury’s verdict must be affirmed. This will be so under Blalock v. Magee, supra, where either one of the two issues was properly submitted to the jury. Here they both were.

AFFIRMED.

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

ROBERTSON, J., not participating.