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    Ladd Herbert HOUSE, III, Appellant v. STATE of Mississippi, Appellee.
    No. 54007.
    Supreme Court of Mississippi.
    Jan. 25, 1984.

      Lisa P. Dodson, Hopkins, Logan & Vaughn, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

We today consider for the first time the use in aid of a criminal prosecution of testimony adduced through hypnosis. For the reasons described below, we hold that the hypnotist may not testify as to facts constituting the crime told him by the victim during a hypnotic session, nor may he offer an expert opinion that the victim is telling the truth. Because the hypnotically refreshed memory of the victim is susceptible of having been “contaminated” during the hypnotic session, her testimony becomes admissible only after certain safeguards set forth below have been complied with.

The Defendant has been indicted, tried and convicted of unnatural intercourse with M.P., an eight-year-old girl, in violation of Miss.Code Ann. § 97-29-59 (1972). The offense allegedly occurred on January 26, 1981. In view of the disposition we make, no useful purpose would be served by recounting the details of the criminal act charged in this case. Suffice it to say that, for the reasons articulated below, we reverse and remand for a new trial.

II.

A brief recitation of certain aspects of the trial proceedings will be helpful to provide the context for our consideration of the hypnosis-related issues presented in this case.

The Defendant has been convicted on the testimony of M.P., a young girl whose birthday is September 5, 1972. There is no independent, objective verification of the truth of the charges. The defendant has vehemently denied any form of sexual contact with M.P. In this context, the fact and opinion testimony of the hypnotist, Dr. Joseph Tramontana, most certainly weighed heavily in the jury’s mind in favor of conviction.

Beyond that, the defendant is not the only person M.P. ever accused of forcing her to commit unnatural sex acts. M.P. has charged at least two other male persons with doing this sort of thing to her. M.P.’s mother testified that her daughter was three years old when she first made such accusations. On occasions prior to January 26, 1981, she had accused the defendant.

Moreover, there is the suggestion in the record that M.P. has been the object of a longstanding custody dispute between her mother and her grandparents. M.P.’s mother is the person who reported the instant offense to law enforcement authorities. The record suggests, however, that her motivation may not have been bringing the defendant to justice as much as it may have been to keep M.P.’s grandparents and the local welfare department from challenging the mother’s fitness to maintain custody of M.P. and her brother.

We take a backseat to no one in our condemnation of the sort of crime here charged. It offends the sensibilities of decent people. Perpetrators should be vigorously prosecuted. Yet, because this sort of crime is so offensive and because of the other factors mentioned above, we are sensitive to the potential for a miscarriage of justice. This is particularly so where the testimony of the eight year old prosecutrix is arguably the product of a hypnotically refreshed memory corroborated only by the dubious — and inadmissible — hearsay and opinion testimony of a hypnotist.

III.

A.

Hypnosis has been around for a long time. Its use in judicial proceedings has been debated in other jurisdictions for nigh unto a century. See Ladd, Legal Aspects of Hypnotism, 11 Yale L.J. 173 (1902). Still, the matter has never been considered in the prior decisions of this Court.

We are told that today hypnosis is a valuable aid to law enforcement. In that during a hypnotic experience many persons are capable of correct recall of the details of past events otherwise forgotten, law enforcement employs hypnosis in investigative work and now at trial. See Quarles, Hypnosis and the Law of Evidence: Testimony from the Hypnotically-Refreshed Memory, 51 Miss.L.J. 743 (1981). We further understand that hypnosis has potential as a tool of the defense in criminal cases, see Warriner, The Use of Hypnosis in the Defense of Criminal Cases, 27 Int’l Journ. of Cl. and Exp. Hypnosis, No. 4 at 417 (1979), although to our knowledge it has not been so used in this state.

This Court is committed to the proposition that all credible evidence that will assist the jury in its fact-finding task ought, if put in proper form, be admissible. Our prejudice favors inclusion, not exclusion, for we perceive such prejudice to be consistent with the correct administration of justice in this state. We do not fear the new. That a newly developed type of evidence has never been used before in our courts hardly dictates exclusion.

On the other hand, our oaths require vigilance against forms of evidence infected with the potential for mischief and injustice. Even so, our prejudice favors admissibility under guidelines and safeguards realistically designed to ensure reliability. We eschew per se inadmissibility rules wherever possible. We bring this general frame of mind to our consideration of the use in this prosecution of evidence adduced via hypnosis.

B.

The questioned testimony produced by the hypnotic sessions between Dr. Joseph Tramontana, a clinical psychologist and hypnotist, must be divided into three separate categories:

(1) Dr. Tramontana’s testimony wherein he stated to the jury facts surrounding the alleged offense told to him by M.P. during the hypnotic sessions;

(2) Dr. Tramontana’s expert opinion testimony that M.P. was telling the truth about what the Defendant had done to her; and

(3) The post-hypnotic testimony of M.P. herself.

C.

At the outset, the State urges that we not consider any of the hypnosis issues in this case for procedural reasons. The State insists that these points were not properly preserved in the trial court by timely specific objections.

At trial defense counsel objected to the testimony of Dr. Tramontana on dual grounds: That he conducted his hypnotic session with M.P. without her mother’s permission and, second, that he did not record the hypnotic session. The present grounds for objection and suggestion of error include, in addition, hearsay, improper bolstering of the prosecutrix’ testimony, plus due process.

It is certainly true that this and every other appellate court we know anything about maintains and enforces a rule requiring that, before errors may be considered on appeal, generally they must be “preserved” at trial. See Stringer v. State, 279 So.2d 156, 157-159 (Miss.1973). Generally, this means that the matter must be presented to the trial court in such a form that the trial judge has the opportunity to consider it with full knowledge of the respective contentions of the parties. On the other hand, where an objection is made and where the basis therefor is obvious from the context, little of value is accomplished by insistence upon a technically correct objection. See Loeffler v. State, 396 So.2d 18 (Miss.1981). This is certainly true with so much of Dr. Tramontana’s testimony as constitutes garden variety hearsay or improper bolstering of the prosecutrix’ testimony.

There are other important reasons why we reach the merits of the hypnosis issues here.

First, as explained above, the hypnosis-related evidence in this ccase is at the core of the trial. The justice of the proceedings below in a very real sense turns upon a correct treatment of the hypnosis-related issues.

Second, we are aware that hypnotic techniques are being used by law enforcement officials in this state and have been in such use for several years. The Attorney General’s office released an equivocal opinion on the subject on March 7, 1980. Both law enforcement and the bar need guidance from this Court on this subject. They need that guidance now.

Third, the law has been thoroughly briefed for our use and benefit in this case. Indeed, the briefs of counsel have cited to us practically every relevant legal and psychological authority on the subject. The chances of our getting better briefs at a later date we regard as slim and none.

Finally, fundamental rights in serious criminal cases rise above mere rules of procedure. Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950). We tend to disregard procedural niceties where such is necessary to avoid the possibility of a serious miscarriage of justice. See, e.g., Richardson v. State, 436 So.2d 790, 791 (Miss.1983); Hooten v. State, 427 So.2d 1388, 1391 (Miss.1983); Glover v. State, 419 So.2d 588 (Miss.1982); Horton v. State, 408 So.2d 1197, 1200 (Miss.1982); Loeffler v. State, 396 So.2d 18 (Miss.1981).

Taken together, the objections actually made and our so-called plain error rule, see Rule 6(b), Miss. Supreme Court Rules, are sufficient to allow our consideration of the issues surrounding the testimony of Tra-montana.

IV. The Hypnotist’s Hearsay Testimony Regarding Facts Told Him By The Victim

At trial, Dr. Joseph Tramontana was permitted to tell the jury factual matters related to him by M.P., the prosecuting witness. This testimony critically related to the facts of the crime with which defendant had been charged.

The context is important. Dr. Tramonta-na first testified that M.P. had seen him professionally five times in 1980, beginning in February, 1980. This was well prior to the January 26, 1981 incident that is the subject of this prosecution. This was also prior to the hypnotic session here in issue.

Dr. Tramontana testified that in February of 1980 M.P.’s mother brought her to his office and stated that the defendant had had sexual contact with M.P. Two months later both M.P. and her mother reported that these accusations had been the product of M.P.’s dreams, not actual experiences. Dr. Tramontana’s testimony here was:

A On the second to the last of the, uh, of the five visits, the five times I had seen her, uh, the mother told me that, uh, that ... [M.P.] said all of her accusations had been a dream.
Q And what month was that?
A That was, that was April 8, 1980.
Q Okay.
A And I talked with ... [M.P.] and she agreed that it had all been a dream.

Again all of this occurred before January 26, 1981, and before Dr. Tramontana ever hypnotized M.P. It provides a necessary backdrop for understanding Dr. Tramonta-na’s testimony regarding his professional relationship with M.P. after January 26, 1981.

On direct examination this colloquy took place between the state’s attorney and Dr. Tramontana:

A February 17, 1981, we had an office visit at Gulf Coast Mental Health Center.
Q Okay. And did you see her [M.P.] after that day?
A March 9, 1981.
Q During that time, Doctor, that you saw her, on either of these occasions, did you, did you confer with ... [M.P.] regarding or had, well, let me ask you this:
Did you ever confer with her regarding any dreams in the past that she had stated to you?
A Yes, I did.
Q Okay. Would you relate that to us, please, sir?
A You want me to quote, uh, ....
Q (Interposing) Yes, sir. How it came about?
■A After ... [M.P.] had, uh, had told me that these things were true. That, uh, that they had been going on, uh, she was very tense, very, uh, had a great deal of anxiety symptoms.
At that time, I asked her [M.P.], uh, once she was in a [hypnotic] trance, why she had, uh, told me the year before that it was all a dream. And she said, quote, because ... [defendant] said for me to tell you that, close quotes.
And I asked her if she always did what he told her?
She said, quote, I was scared he was going to hurt me, close quotes.
And I said did he threaten you?
And she said,-quote, no, but he seemed like he would hurt me, close quotes.
And then we went on into detail about what actually happened.
Q Okay. Did she relate these to you?
A Yes, she did.
Q Okay. In greater detail than in the past?
Yes, she did.

We have here Dr. Tramontana’s testimony regarding a series of out-of-court statements of the prosecuting witness, M.P. Not only did Dr. Tramontana testify what M.P. told him, he also stated what M.P. said that the Defendant said to her. None of these statements attributed to M.P. was made under oath. None was subject to cross-examination, except in the sense that M.P. had appeared as a witness at trial in her own behalf.

The statements were introduced to prove the truth of the matters asserted. They are hearsay and are inadmissible unless they may be brought within some recognized exception to the hearsay rule. The state has called no exception to our attention, and none is apparent upon our independent reflection.

We do not regard this testimony by Dr. Tramontana as admissible under our rule allowing a physician to give the history related to him by a patient where the history was necessary to the treatment of the patient. The rationale for this exception to the hearsay rule is that a person’s desire for proper diagnosis and treatment serves as an adequate assurance of the trustworthiness of statements made to a treating doctor. Barton, Cowart, The Enigma of Hearsay, 49 Miss.L.J. 31, 71 (1978). As a rule, we have left the admissibility vel non of such statements, to the discretion of the trial judge. Gulf Oil Corp. v. Thatch, 240 Miss. 117, 125, 126 So.2d 501, 503 (1961). However, as here, the patient makes the statements while in a hypnotic trance the justification for the hearsay exception is rendered inapplicable in that the patient is not conscious of his own assertions.

In other jurisdictions, the testimony of psychologist hypnotists relating to what they have been told by the defendant about the crime has been rejected as hearsay and as improperly bolstering the testimony of a witness. See Rodriquez v. State, 327 So.2d 903 (Fla.App.1976) (Court refused to allow expert called by the defense to testify as to statements made by the defendant while under hypnosis); State v. Conley, 6 Kan.App.2d 280, 627 P.2d 1174 (1981) (Defendant’s expert could not testify as to statements the defendant made while under hypnosis which were offered to prove the truth of the matter asserted); State v. Harris, 241 Or. 224, 405 P.2d 492 (1965) (Doctor could not testify as to statements made to him by the defendant while under hypnosis or following hypnosis). See generally, Annotation, Admissibility of Hypnotic Evidence at Criminal Trial, 92 A.L. R.3d 442, 458-461 (1979). If a hypnotist may not testify as to facts told him by the defendant and thus bolster the defendant’s testimony, surely it follows that such a witness may not relate out-of-court statements made by the prosecutrix.

We hold that the testimony at issue here was clearly inadmissible. While we recognize that the objection of defense counsel may have been technically deficient, we regard Dr. Tramontana’s hearsay testimony as so prejudicial that, when considered together with the opinion evidence discussed below, reversal is required.

V. The Hypnotist’s Opinion That The Prosecutrix was Telling The Truth

At trial Dr. Tramontana was allowed to give his opinion that M.P. was telling the truth. Indeed, Dr. Tramontana went further and, in the following colloquy, explained why he was convinced that M.P. was telling the truth.

Q Okay. Now, Doctor, did, uh, uh, at this time, after you got this, uh, this information from, from her, uh, did this confirm any of your beliefs regarding what she had told you in the past?
A Yes, it did.
Q And what was that?
A I believed her. I, uh, I believed her at first. I questioned when she said it was all a dream. I felt that possibly she was under some pressure, but there was nothing I could do about it, uh, if this was what everyone was saying.
When she told me the details, in March of this year, uh, the thing that impressed me the most was that she went into much more detail, not only as to what happened, but, but, uh, actually like she was reliving the incident. She talked about Mr. House, uh, continuing to look out of the window to see if mama was coming and these type of things, uh, which impressed me as being factual.

The objection to this testimony presented here is that a hypnotist’s opinion that his subject is truthful does not qualify as an admissible expert opinion.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

We consider Dr. Tramontana’s opinion as we would any other tendered by an expert. Is the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally allow expert testimony. Indeed, within a wide range of contexts we have allowed expert opinion testimony from properly qualified psychiatrists and psychologists.

The opinion in issue here is a hypnotist’s opinion that the prosecutrix is truthful in her version of what the defendant did to her on January 26,1981. If the State could demonstrate that the science of hypnosis has become such that an expert in the field, upon proper study of the prosecutrix, could offer a demonstrably valid opinion as to the veracity of her accusations, we would reject the assignment of error.

Here again we confront an issue of first impression. The few cases in other jurisdictions that have considered the question hold inadmissible the hypnotist’s opinion concerning the accused’s truthfulness have rejected same. See State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1951); Jones v. State, 542 P.2d 1316 (Okl.Cr.1975). If this be so, it follows that a hypnotist’s opinion of the prosecutrix’ truthfulness should likewise be excluded. But see, Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968).

We have a ready analogy in our many cases holding that the results of a polygraph or lie detector test are not admissible in evidence. See, e.g., Pennington v. State, 437 So.2d 37, 40 (Miss.1983); Jordan v. State, 365 So.2d 1198, 1204 (Miss.1978); Harrison v. State, 307 So.2d 557, 562 (Miss.1975); Mattox v. State, 240 Miss. 544, 128 So.2d 368, 371-72 (1961); and Hawkins v. State, 222 Miss. 753, 77 So.2d 263, 264-65 (1955).

Whatever value hypnosis may have as an investigative aid, it is our view at this time that it does not have the status as a science whose practitioners are capable of giving opinions regarding the truthfulness of their subjects with that high degree of validity that we demand of expert witnesses generally.

Stripped of its standing as an expert opinion, Dr. Tramontana’s testimony was nothing more than an improper bolstering of the testimony of the prosecuting witness, M.P. As such it was clearly inadmissible. Bitner v. State, 293 So.2d 339 (Miss.1974); Roberson v. State, 185 So.2d 667 (Miss.1966); Byrd v. State, 154 Miss. 742, 123 So. 867 (1929).

VI. The Prosecutrix’ Hypnotically Refreshed Memory A

Finally we reach the question of the admissibility of M.P.’s post-hypnosis testimony. We refer here to the testimony of the hypnotized, not the hypnotist. We are concerned with the admissibility of the testimony of one who has been hypnotized regarding facts explored during the hypnotic session.

Defendant has called to our attention numerous authorities suggesting that hypnosis is a state of heightened suggestibility and altered consciousness, that distortions of reality, false memories, fantasies and confabulation are likely to result, and that often, following the hypnotic experience, the witness has difficulty distinguishing between what he or she knew before the hypnotic experience and what may have been “suggested” during the hypnotic experience. In this context, Defendant argues that the testimony of M.P. has become fatally tainted and hence should not have been admitted.

This is an issue which we might preter-mit on grounds it has not been procedurally preserved. Indeed, no objection was made to the testimony of M.P. on grounds that it was the product of hypnotic suggestion. A further reason why we might ordinarily be inclined not to reach this issue is that we must reverse on other grounds — the trial judge’s error in the admission of testimony by Dr. Tramontana.

On the other hand, this case will now go back for a new trial. At this new trial, the issue of the admissibility of M.P.’s testimony will certainly arise. We consider it appropriate to address the issue and provide the trial judge on remand such guidance as we might. Beyond that, this hypnosis issue even more than those discussed above, is one where the public interest in fair and effective law enforcement requires an authoritative response from this Court. See Quarles, Hypnosis and the Law of Evidence: Testimony from the Hypnotically-Refreshed Memory, 51 Miss.L.J. 743, 745-747, 764-766 (1981).

B.

At trial, Dr. Tramontana offered the following testimony regarding the nature and purposes of his hypnotic sessions with M.P.:

[M.P.’s mother] ... asked me again if I would do that, uh, the relaxation training with her because she said when all this came out in the open and if it got to a Courtroom situation, she was afraid that M.P. would be too, uh, uh, too uptight, would freeze up and not be able to relate what had happened.
So, during this occasion, I, uh, used the relaxation training, put her [M.P.] in a light trance, light hypnotic trance and, uh, it had a two fold purpose. One was to help her relax, to, to recondition her to do self-hypnosis on her own, to relax. But, also, to get more detailed information.
At that time, I asked her, uh, once she was in a trance, why she had, uh, told me the year before that it was all a dream. And she said, quote, because ... [Defendant] said for me to tell you that, close quotes.
And I asked her if she always did what he told her?
She said, quote, I was scared he was going to hurt me, close quotes.
And I said did he threaten you?
And she said, quote, no, but he seemed like he would hurt me, close quotes.
And then we went on into detail about what actually happened.
Q Okay. Did she relate these to you?
A Yes, she did.
Q Okay. In greater detail than in the past?
A Yes, she did.
Q Okay. And, uh, did you see ... [M.P.] again, after that?
A March 9th was the last time I saw her.
Q Now, Doctor, did, uh, how did you, for what, for what two purposes did you put her in, uh, you called it some kind of relaxed state and, then, something else?
A Light hypnotic trance.
Q Okay. Why did you do that; would you relate that to us again?
A Because she had a, uh, a high level of anxiety. And I felt, well, first of all, the mother was asking for me to reinitiate the hypnotic training, uh, with her so that she would be relaxed enough to tell about the events, when it got to, to this stage.
And, secondly, in, in, uh, in eliciting her responses concerning details, I felt that she could do it much more calmly if she were in a light trance.
[Emphasis added].

This light hypnotic trance, we are told, was sufficient to render inadmissible M.P.’s current testimony on matters discussed in the hypnotic session.'

Our survey of the authorities makes clear that the majority of jurisdictions that have considered the question reject Defendant’s position. That the witness has had a hypnotic experience goes to weight or credibility, not admissibility. Upon consideration of the authorities from other jurisdictions that have been called to our attention and for the reasons explained below, we reject this proposition but require that before testimony from the hypnotically refreshed memory may be admitted, there must have been compliance with certain safeguards.

C.

We are not about to get into the business of studying up on hypnosis so that we might become experts. We are not experts in the field and have neither the capacity nor the inclination to become such. That job we relegate to the psychiatrist, the psychologist and other properly trained and experienced hypnotists.

Having decided that hypnotically-refreshed testimony is not per se inadmissible, we must consider under what conditions such testimony will be allowed. We have tried to acquire a layman’s awareness of the subject and particularly of potential problem areas. This we must do to render ourselves able to declare with a modicum of competence safeguards for the admission of such testimony. In this context, we set forth these excerpts from the writings of experts which serve to provide a general feel for our subject.

One leading expert has written:

The hypnotic suggestion to relive a past event, particularly when accompanied by questions about specific details, puts pressure on the subject to provide information for which few, if any, actual memories are available. This situation may jog the subject’s memory and produce some increased recall, but it will also cause him to fill in details that are plausible but consist of memories or fantasies from other times. It is extremely difficult to know which aspects of hypnotically aided recall are historically accurate and which aspects have been con-fabulated_ Subjects will use prior information and cues in an inconsistent and unpredictable fashion; in some instances such information is incorporated in what is confabulated, while in others the hypnotic recall may be virtually unaffected.
As a consequence of these limitations, hypnosis may prove useful in some instances to help bring back forgotten memories following an accident or a crime while in others a witness might, with the same conviction, produce information that is totally inaccurate.... As long as this material is subject to independent verification, its utility is considerable and the risk attached to the procedure minimal. There is no way, however, by which anyone — even a psychologist or psychiatrist with extensive training in the field of hypnosis — can for any particular piece of information determine whether it is an actual memory versus a confabulation unless there is independent verification.

(Emphasis in original) Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical & Exper. Hypnosis 311, 317-18 (1979). In Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.Rev. 313 (1980), Professor Diamond explains that recollections of a witness who has been hypnotized may become contaminated.

Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence. Recently, some courts have shown a healthy suspicion of the veracity of this sort of testimony. Yet even under stringent safeguards, including presentation to the trier of fact of the fullest possible information on the effects of hypnosis, the trier will not be able to sort out reality from witness fantasy and weigh this testimony properly.

(Footnotes omitted.) Id. at 314-15. Further:

The evidence, however, is that the effect of suggestions made during hypnosis endures. Although the more theatrical types of posthypnotic suggestion may last only hours or days, less obvious suggestions may last years or even a lifetime. A highly pertinent example is the so-called “posthypnotic source amnesia”. This occurs when something learned under hypnosis is carried into the wakened state but the fact that the memory or thought was learned under hypnosis is forgotten. A sizable proportion of hypnotic subjects spontaneously do so, and the incidence of source amnesia can be increased by suggestions from the hypnotist. A subject who has lost the memory of the source of his learned information will assume that the memory is spontaneous to his own experience. Such a belief can be unshakeable, last a lifetime, and be immune to all cross-examination. It is especially prone to “freeze” if it is compatible with the subject’s prior prejudices, beliefs, or desires. This type of distorted memory is very apt to appear genuine and spontaneous, and will be unlikely to disappear.
One can only conclude that hypnosis can induce subtle but highly significant distortions of memory that will persist indefinitely, distorting all subsequent related recall of the subject. My own experience has convinced me that even communications and other cues to the subject made in the normal, waking state, both before and shortly after the hypnotic session, may be similarly influenced by the hypnotic experience. Thus the police may tell a witness something just before hypnosis and then hypnotize him. When he awakens, his “source amnesia” may lead him to believe that the police statement was a product of his own memory. Sometimes communications made to the patient after hypnosis may be retroactively integrated into the hypnotic recall. The subject may recall a fact with no awareness that it was not the product of his own mind. Or he may recall being told the fact but insist that he had prior knowledge of it. This often happens when subjects are shown photographs or line-ups for identification just before or just after hypnotic sessions. In my experience, time, rather than weakening the effects of the hypnotic distortion, tends if anything to fix it into a permanent pattern. Therefore, the pretrial hypnosis of a witness appreciably influences all of his subsequent testimony in ways that are outside the consciousness of the witness and difficult, if not impossible, to detect.

(Footnotes omitted.) Id. at 335-36.

The Executive Council of the Society for Clinical and Experimental Hypnosis unanimously adopted a resolution on October 19, 1978, which reads in part:

Because we recognize that hypnotically aided recall may produce either accurate memories or at times may facilitate the creation of pseudo memories, or fantasies that are accepted as real by subject and hypnotist alike, we are deeply troubled by the utilization of this techniques (sic) among the police. It must be emphasized that there is no known way of distinguishing with certainty between actual recall and psuedo memories except by independent verification.

The dangers universally noted by the courts that have considered admissibility of hypnotically refreshed testimony are at the heart of M.P.’s testimony. At different times prior to the hypnotic sessions, M.P. had told both her mother and Dr. Tramon-tana that she had dreamed of the Defendant and others committing various sex acts with her. On January 27, 1981, the day after the otherwise uncorroborated incident in question, M.P. told her mother, “You know those dreams I’ve been having? They’re not dreams.”

At trial the critical issue was whether M.P. was describing dreams or actual past occurrences. Here M.P. told her mother of the Defendant’s actions before the hypnotic experience. This would be a factor supporting admissibility of the post-hypnotic testimony. Still, the fact that the core issue was dreams versus reality viewed in context of the hypnotized person’s heightened susceptibility to having fantasies and dreams translated into unshakable posthypnotic false memory suggests the importance of faithful conformity on retrial with the guidelines we prescribe below.

We find no dissent from the proposition that “minimum safeguards must be established”. Quarles, Hypnosis and the Law of Evidence: Testimony from the Hypnotically-Refreshed Memory, 51 Miss.L.J. 743, 765 (1981). Our concern is what those safeguards should be.

The authorities cited to us by counsel contain specific suggestions for safeguards which we have carefully studied. See, e.g., Quarles, supra, 51 Miss.L.J. at 765; State v. Hurd, 86 N.J. 525, 432 A.2d 86, 89-90 (1981); People v. Lucas, 107 Misc.2d 231, 435 N.Y.S.2d 461, 464 (1980), citing People v. Lewis, 103 Misc.2d 881, 427 N.Y.S.2d 177, 179 (1980), which cited Warner, The Use of Hypnosis in the Defense of Criminal Cases, 27 Int’l J. Clinical & Exper. Hypnosis, No. 4 at 417 (1979). We find a substantial consistency and agreement between the various suggestions for minimum safeguards.

Without further ado, we hold that, before a witness who has had a hypnotic experience may be allowed to testify in any criminal prosecution in this state regarding matters explored during the hypnotic experience, the trial judge must in advance conduct a hearing outside the presence of the jury and determine whether the following minimum safeguards have been complied with:

(1) The hypnotic session or sessions must have been administered by a licensed psychiatrist or psychologist trained in the use of hypnosis.

(2) Any information given to the hypnotist by law enforcement personnel, by the defendant or from any other source prior to the hypnotic session should be in written form and should be preserved so that subsequently the extent of the information the subject received from the hypnotist may be determined.

(3) Before induction of hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding any new elements to the witness’ description of the events. The witness’ pre-hyp-notic memory should be preserved via tape recording or, if possible, video tape.

(4) The entire procedure of hypnosis and the hypnotic interview should be tape recorded or, if possible, video taped.

(5) Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and post-hypnotic interview.

(6) The opposing party or parties should have full access, prior to trial, to the recording of the hypnotic interview. See Rule 4.06, Miss. Uniform Criminal Rules of Circuit Court Practice.

(7) All opposing parties must be given free rein to cross-examine the hypnotically-induced witness and/or the hypnotist regarding the witness’ memory and the particular procedure used to refresh it.

(8) No hypnotically-enhanced statements made by a witness or victim may be received into evidence unless there is available otherwise admissible corroborating testimony or physical evidence which tends to substantiate the hypnotically-enhanced statements.

Compliance with these guidelines is mandatory. Advance determination of compliance by the trial judge outside the presence of the jury is likewise mandatory. Even though there be full compliance with the guidelines, the trial judge is charged to consider carefully the credibility of the victim’s hypnotically refreshed memory. Before allowing the jury to hear it, the trial judge should be satisfied (a) that the guidelines have been complied with and (b) that the probative value of the victim’s hypnotically refreshed memory outweighs the risk of unfair prejudice to the accused.

We are unable to ascertain from the record whether the post-hypnotic testimony of M.P. would be admissible under these standards. On remand, the trial judge should evaluate that testimony under the minimum standards outlined above. Only if there is substantial compliance with each of these guidelines may the post-hypnotic testimony of M.P. be received into evidence.

D.

Leaving aside the testimony of the psychologist hypnotist, the case against the defendant rests squarely on the testimony of the eight year old prosecutrix. Children of tender years have generally been permitted to testify in our courts. See Yarbrough v. State, 202 Miss. 820, 32 So.2d 436 (1947) (5-year-old); Peters v. State, 106 Miss. 333, 63 So. 666 (1913) (6-year-old); Thomas v. State, 222 Miss. 488, 76 So.2d 242 (1954) (8-year-old); Jackson v. State, 158 Miss. 524, 130 So. 729 (1930) (7-year-old); Trim v. State, 33 So. 718 (Miss.1903) (5-year-old); Fairley v. State, 152 Miss. 656, 120 So. 747 (1929) (4-year-old); Wilson v. State, 221 So.2d 100 (Miss.1969) (7-year-old). Still, common sense suggests that their testimony be viewed with caution.

The determination whether a child is a competent witness is generally committed to the sound discretion of the trial judge. Before he allows a child of tender years to testify, the trial judge should satisfy himself that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness. Ellis and Williams, Mississippi Evidence § 2-3 (1983).

Her hypnotic experience aside, M.P. was a competent witness, though an eight year old. Once hypnosis enters the scene, we have a different matter. Suffice it to say that on remand, in addition to adherence to the guidelines set forth above, the trial judge should consider carefully this child’s possible susceptibility to fantasy or false memory.

VII.

For the reasons set forth above, the judgment of conviction of Ladd Herbert House, III for the offense of unnatural intercourse is vacated, together with the sentence of imprisonment heretofore imposed in connection therewith, and this case is remanded to the Circuit Court of Harrison County, Mississippi, for a new trial on all issues, not inconsistent with this opinion.

REVERSED AND REMANDED.

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

BOWLING, J., not participating.

      . For reasons which we trust arc obvious, we refer throughout this opinion to the prosecutrix only by her initials, "M.P.”

      . While this Court has never considered the role that hypnosis should play in the courtroom, apparently hypnosis has been used by law enforcement in this state in recent years. See, e.g., Depreo v. State, 407 So.2d 102, 107 (Miss.1980) (Use of hypnosis on potential witness mentioned but issue not considered); Letter from J. Stephen Wright, Special Assistant Attor-ncy General of Mississippi, to W.E. Felts, City Clerk, Indianola, Mississippi (March 7, 1980) (an Attorney General’s opinion concerning the proper use of hypnosis by law enforcement personnel); Quarles, Hypnosis and the Law of Evidence, 51 Miss.L.J. 743, 744-47 (1981) (discussion of actual case in Mississippi where hypnosis was used to obtain a conviction).

      . See footnote two, supra.

      . The Quarles article cited in footnote two was prepared by Dr. Chester L. Quarles, Director of the Law Enforcement Program within the Department of Political Science at the University of Mississippi. It presents a competent and insightful pro-law enforcement, pro-prosecution view of the hypnosis issues in this case.

      . It is not clear that at the time M.P. testified defense counsel knew of her hypnotic experi-enees.

      . We emphasize here that hypnosis does not render a witness incompetent to testify to matters remembered and related prior to the hypnotic session. United States v. Valdez, 722 F.2d 1196, 1204 n. 37 (5th Cir.1984).

      . Sec, e.g., United States v. Awkard, 597 F.2d 667 (9th Cir.1979); United States v. Miller, 411 F.2d 825 (2d Cir.1969); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). But see United States v. Valdez, 722 F.2d 1196 (5th Cir.1984) (uncorroborated post hypnotic identification of a defendant inadmissible per se, where witness knew the defendant to be under suspicion, but was unable to identify defendant prior to hypnosis).

      . The hypnotist, of course, will be a necessary witness in the Slate's effort to qualify for receipt into evidence the victim’s hypnotically-refreshed memory. That the hypnotist may testify in this context is in no way inconsistent with our earli-cr holdings (a) that the hypnotist may not relate, to establish the truth thereof, facts regarding the crime told him by the victim, and (b) that the hypnotist may not give a so-called expert opinion regarding the victim’s truthfulness.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    Clinton U. COLLINS, et al. v. NORTH MISSISSIPPI SAVINGS & LOAN ASSOCIATION and United States Fidelity and Guaranty Company.
    No. 54080.
    Supreme Court of Mississippi.
    Feb. 8, 1984.

      E. Stephen Williams, Gretchen Pum-phrey, Young, Scanlon & Sessums, Jackson, for appellant.
    P. Ewin Henson, III, Sullivan, Hunt, Spell, Shackelford & Henson, Clarksdale, William Liston, Liston, Crull & Gibson, Wi-nona, for appellee.
    Clifford B. Ammons, W.F. Goodman, Jr., George R. Fair, P.N. Harkins, III, Watkins & Eager, Jackson, for New North Mississippi Federal Sav. and Loan Ass’n.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The complaint of Clinton U. Collins, seven other individuals, and Heritage Savings & Loan Association, Inc. against North Mississippi Savings & Loan Association and United States Fidelity & Guaranty Company was heard in the Chancery Court of Grenada County, Honorable John C. Love, Special Chancellor. From a decree dismissing the complaint with prejudice, complainants have appealed to this Court.

On August 4, 1972, North Mississippi Savings & Loan Association (North Mississippi) filed a petition with the Board of Savings & Loan Associations of the State of Mississippi to establish and operate a branch office of North Mississippi in the City of Grenada. Objection to granting North Mississippi’s petition was made by the individual appellants and, at the time of filing the objection, they filed with the Board of Savings & Loan Associations (BSLA) an application for a charter of Heritage Savings & Loan Association, Inc. (Heritage). The attorney/referee from the BSLA proceeded with the hearing on North Mississippi’s application, but assured the objectors that the petition of North Mississippi would not be decided until after the hearing on the application of Heritage.

On April 5, 1973, prior to the date set for hearing on the application for charter of Heritage, the BSLA met and approved the petition of North Mississippi to establish and operate a branch office in Grenada County, the statement of the attorney/referee notwithstanding. An appeal was taken by the objectors to the Chancery Court of Grenada County, which eventually reversed the decision of BSLA and remanded the cause to the board for consideration of the application by Heritage for a charter.

On January 24, 1974, North Mississippi gave notice of its intent to appeal from the final decree of the Chancery Court of Grenada County reversing the decision of the BSLA. The said chancery court granted North Mississippi an appeal with superse-deas and fixed a supersedeas bond in the amount of $20,000. United States Fidelity & Guaranty Company, appellant, executed a bond as surety. In September, 1975, approximately one year and nine months after the decision of the Chancery Court of Grenada County reversing the order of the BSLA, the Supreme Court of Mississippi affirmed that decree and remanded the matter for further consideration by the BSLA. On December 9, 1975, approximately three years from the date of its original application for charter, Heritage Savings & Loan Association, Inc. was granted a charter by the BSLA. The time lapse from the date of the chancery court decree reversing the BSLA’s action in authorizing North Mississippi to establish a branch office at Grenada was approximately two years.

The appellants filed this suit against North Mississippi alleging that as a result of the appeal with supersedeas taken by North Mississippi from the chancery court decree, the appellants sustained damages; that North Mississippi took the appeal knowing that the decision of the chancery court would probably be affirmed; that the appeal with supersedeas was taken in an effort to delay the incorporators of Heritage in obtaining the charter and was done willfully, maliciously, and in reckless disregard of the legal rights of the complainants; and they sought actual damages in the sum of $470,340, together with punitive damages in the amount of $1,000,000.

Succinctly, the appellants charge that North Mississippi appealed from the decision of the Chancery Court of Grenada County, with malicious intent to delay the incorporators of Heritage from obtaining a charter and that the appeal was frivolous. Appellants claim the following damages in their complaint:

(1) The construction of the building to house the Heritage operation would have cost approximately $80,000 to build in the Spring of 1973, but would now cost $150,000.
(2) The land on which Heritage planned to build in the Spring of 1973 could have been bought at the time for $60,000, but would now cost approximately $110,000.
(3) Furniture and fixtures for the Heritage building would have cost $10,-000 in 1973 and now can only be purchased at a cost of approximately 50% higher.
(4) A 20-year first mortgage loan of $80,000 on the building to be constructed in the Spring of 1973 could have been obtained at an interest rate of 7 ½% resulting in an interest payment over the life of the mortgage of $74,675.20. The interest rate obtainable today is 10%. This means the cost of interest over the life of a 20-year mortgage would be $122,428.80, because of the delay.
(5) Anticipated profits of $26,630 per year for five years have been lost.
(6) The requirement for unimpaired capital has gone up during the time of the appeal from $300,000 to $500,000. The increase in the unimpaired capital requirement has kept Heritage from opening for business.

At various times during the course of the trial, the lower court struck appellants’ request for lost profits, struck their request for punitive damages, and dismissed Heritage Savings & Loan as a complainant since it was not in existence at the time of the appeals and alleged damages. The lower court ultimately dismissed the cause with prejudice.

The appellants assign five errors in the trial below, but we only address the question of whether or not the lower court erred in dismissing the cause with prejudice, and we affirm.

Mississippi Code Annotated § 11-51-31 (1972) provides for bond on appeal with supersedeas:

§ 11-51-31. Bond for supersedeas.
On appeal from any interlocutory decree, where the chancellor shall allow a supersedeas, and on appeal from a final decree of the chancery court, or the final judgment of a circuit court where the appellant shall desire a supersedeas, bond shall be given by the appellant, payable to the opposite party, with two (2) or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in a penalty of one hundred twenty-five per cent (125%) of the amount of the decree or judgment appeal from, or one hundred twenty-five per cent (125%) of the amount of the value of the property or other matter in controversy, to be determined by the officer granting the appeal, conditioned that the appellant will satisfy the judgment or decree complained of, and also such final judgment as may be made in the cause, and all costs, if the same be affirmed, and a supersedeas shall not issue until such bond shall have been given. A superse-deas shall not be granted in any case pending in the supreme court, unless the party applying for it shall give bond as above required.

The lower court granted supersedeas and fixed the bond at $20,000, as stated. Without discussing whether or not the chancellor correctly granted supersedeas, or the amount thereof, we note that the appellants failed to take any action to discharge the supersedeas. Mississippi Code Annotated § 11-3-21 (1972) provides:

§ 11-3-21. Motion to discharge su-persedeas in certain cases.
A motion to discharge a supersedeas in an appeal to the supreme court may be made before and heard by the court on ten days’ notice to the opposite party, at any time before the day to which the appeal is returnable, and the court shall make such orders and render such judgment as may be proper in the case.

Likewise, the record does not indicate, upon affirmance of the judgment of the Chancery Court reversing the BSLA, that any attempt was made to recover damages on the bond, if the supersedeas was properly granted and if any damages were due.

In North Mississippi v. Clinton U. Collins, et al., 317 So.2d 913 (Miss.1975), which appeal and case is the basis for the suit sub judice, the Court said:

Clearly, the statute, during pendency of North Mississippi’s application, only prohibits the Board from: (1) issuing a certificate of incorporation to a new association or (2) authorizing an existing association to establish a branch association or branch office, and (3) consenting to the removal of the domicile of an existing association. Thus, it is clear that North Mississippi’s contention in this regard is untenable. Our interpretation of the Act is that two applications may be simultaneously considered, but the first application filed must be either granted or dismissed before a subsequent application can be finally adjudicated or acted upon.
The question is squarely presented: If the Act does not prohibit the simultaneous consideration of two applications, did the chancellor err in ordering the Board to hear both applications before making a decision? We think he did not. Justification for this conclusion may be noted in the title to the Savings and Loan Act, which reads in part: “An Act to protect the saving public_” Ch. 228, § 1, [1962] Miss.General Laws 307. [317 So.2d at 915-916],

Thus, it may be seen that, although the case was affirmed, there were substantial questions involved which were presented to this Court on appeal.

We now address the dispositive issue of this case, e.g., whether or not an appeal taken in bad faith or a frivolous appeal will support a cause of action for damages arising from the time consumed before the appeal is determined. Mississippi Code Annotated § 11-3-23 (Supp.1983) provides a penalty in certain cases where the judgment of the lower court is affirmed. That penalty amounts to fifteen percent (15%) and costs as damages.

In this state, there is a right of appeal without restriction. The motive and reason for the appeal is not involved. Even though the appeal lacks merit, nevertheless, it may be taken by the losing party, subject only to the penalty provided in § 11-3-23, supra. The Court considered that penalty section in Walters v. Inexco Oil Co., 440 So.2d 268 (Miss.1983), and said:

Section 11-3-23 has application only where the appellant, as the unsuccessful litigant in the trial court, may by law take an appeal as of right. Appeals of interlocutory judgments or decrees are not subject to the penalty. Canal Bank and Trust Co. v. Brewer, 147 Miss. 885, 992-923, 114 So. 127, 128. This state makes no effort to limit the right of appeal, e.g., to cases where appellant proceeds in good faith, where there is probable cause to believe that the lower court has erred, and the like. The application of such threshold tests invariably leads to arbitrary and not infrequently unjust determinations of who may appeal and who may not. The fate of many appeals is necessarily determined summarily and without full briefing or argument.
As unworkable as these quasi-subjective tests are, an unfettered automatic right of appeal brings its own evils. Unsuccessful defendants will take meritless appeals because they are made, to subject their adversaries to more costs and expenses, to squeeze a favorable settlement out of an impecunious plaintiff, and for less laudable reasons.
In this setting Mississippi has opted for the mandatory penalty rule. Every losing litigant is given an automatic right of appeal. When deciding whether to exercise that right, the penalty statute is there for him to consider. If he is successful on his appeal, of course, he incurs no penalty. If he loses, however, he must pay the price, a price he well knows and may easily calculate before giving his notice of appeal. [440 So.2d at 275].

We hold, under the facts of this case, the appellants failed to state a cause of action and the lower court committed no error in dismissing the bill of complaint with prejudice.

AFFIRMED.

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

      . The statute was amended effective July 1, 1978, to delete the phrase “and all costs, if the same be affirmed.”

      . It is not necessary for us to decide here whether or not the lower court properly granted the supersedeas and we do not do so. If improperly granted, the supersedeas should have been discharged on a motion under § 11-3-21, supra.


text:
    DIAMOND INTERNATIONAL CORPORATION, et al. v. Hazel O. MAY, Administratrix of Estate of Robert T. May, Deceased.
    No. 54086.
    Supreme Court of Mississippi.
    Feb. 15, 1984.

      Joseph L. McCoy, McCoy, Wilkins, Nob-lin & Anderson, Jackson, for appellant.
    Lucien C. Gwin, Jr., Handy, Fitzpatrick, Gwin & Lewis, Natchez, Gary K. Jones, John M. Roach, Daniel, Coker, Horton & Bell, Jackson, for appellees.
    Thomas M. Murphree, Jr., Watkins & Eager, Jackson, for cross-appellee Case Power & Equipment Co.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Robert T. May filed suit in the Circuit Court of Adams County, Honorable Edwin E. Benoist, presiding, against Diamond International Corporation (Diamond) and Case Power & Equipment Company (Case) for personal injuries sustained by him. The lower court entered a directed verdict in favor of Case and, upon a jury verdict for May, entered judgment for him against Diamond in the sum of $120,000. Diamond has appealed from the judgment against it and May has cross-appealed from the judgment in favor of Case.

Diamond has assigned eleven errors in the trial below. We address only the assignment that the court erred in overruling the request of the appellant, Diamond, for a peremptory instruction and reverse and render judgment here in favor of Diamond. We also affirm the judgment in favor of Case on cross-appeal.

The appellee’s case is founded principally upon the testimony of Robert T. May given in a discovery deposition prior to his death. May was a heavy equipment operator, fifty-nine years of age, who was employed by the J.W. Christian Construction Company. His duties with that company were operating bulldozers, motor graders and backhoes. He was a skilled operator with approximately thirty (30) years’ experience with heavy machinery. About 10:30 p.m. on May 22, 1975, May received a telephone call at his home from J.W. Christian, who told him to come out to the plant, load up a Case backhoe, take it to Diamond and stay there until the job for which he was needed was completed, regardless of how long it required. He went to the Christian yard, loaded a Case backhoe on the trailer and took it to the Diamond plant, arriving there about 11 or 11:30 p.m. May said that J.W. Christian had instructed him to take the machine to Diamond and to do anything that the Diamond personnel or supervisor told him to do.

Diamond was engaged in the manufacture of egg cartons and owned a huge warehouse wherein bales of paper had been stored to be used in that manufacturing process. A fire had started in the paper bales and was smoldering. May’s work consisted of using the arm of the backhoe to pull down paper bales that were stacked on top of each other. They were then removed from the building by other workmen. Some employees had hoses in the warehouse and water was sprayed on the smoldering bales in order to control the fire. Other companies had sent men to Diamond for the purpose of helping in the operation, and Diamond’s own employees were on the scene. As the paper bales were pulled down, flames would leap six to seven feet upward as oxygen got to the fire. An emergency situation existed and there was a certain amount of danger involved.

May said that J.W. Christian Construction Co. had been hired by Diamond to come in and remove some of the burning bales and that they hired his machine. When May unloaded the machine, he said that one of the supervisors asked him to start pushing burning bales in one pile and bales that weren’t burning into another pile. He used the front-end loader of the backhoe to do that.

At the outset on Thursday, May 22, 1975, May was using the front-end loader rather than the backhoe. He continued that work until approximately 7:30 Friday morning, May 23, when another operator for J.W. Christian Construction Co. relieved him and he went home for rest. He returned to the job at approximately 2 p.m. Friday afternoon, and the relief operator was pulling down bales with the backhoe, using the back boom and claw on it. He did not indicate that he was having trouble with the machine. May began to have trouble with the backhoe in that the lever which controlled the bucket and arm failed to work properly. However, he continued to operate it until 4:30 or 5 p.m. on Friday, May 23, then shut it down because he felt that it was not safe to the men working around it, although he didn’t consider it unsafe for himself.

May telephoned Christian about the trouble and a mechanic from Case was sent to the Diamond premises for the purpose of repairing the backhoe. May told the mechanic that the problem was in the cylinder which controlled the boom up and down, and he helped the mechanic move and replace bolts on the covers of the hydraulic system. The mechanic removed the lever, took out the cylinder, washed it, inspected it and said it needed a new cylinder. The new part would have to be ordered and it would not arrive until two days later.

The mechanic worked on the machine until 6:30 or 7 p.m., and completed all the repairs he could. May put the machine back into operation. About 8 p.m., he began having the same trouble as earlier, but continued to operate the machine by hitting the lever with his hand and kicking it with his boot. He did not call J.W. Christian or anyone else about the condition of the machine. About 2 a.m., May shut down the machine and intended to go home, having worked twelve hours since 2 p.m. He said the supervisor asked him why he stopped the machine, and May told him that it was dangerous for the personnel around it, that he felt he could operate it safely for himself; and that he knew it was in an unsafe condition. The supervisor explained that if the bales were not taken down, the whole plant would burn, and May said:

He asked me if I would come up and get an opening in the back of the building so they could get their forklifts and loaders in there to start bringing bales out. He asked me to remove a few more feet. He didn’t threaten me. He asked if I could just please come up in there and get them a hole in there where they could get the machines out. So I told him I would. I told him I would go in there and get as much as I could out if he would keep his personnel away from the machine. I wasn’t sure I could operate it safely with that many men around me manning the fire hose. With my experience with all types of equipment and in all conditions, I felt I could still operate it safely for myself. But when a supervisor is asking you if you could possibly keep the machine working without endangering your own life, you try to do it. I undertook this hazard knowing the hazard. I believe any other man would have done the same. I got back on and cranked it up knowing I was going to have the same problems with the boom. I wouldn’t have done it unless I felt I could do it safely.

May continued to operate the machine in its defective condition for approximately one to one and one-half hours until approximately 4 a.m. He was standing in the cab and attempted to kick the lever, but failed to get it out of neutral. The boom continued to operate, he tried to kick it again, the boom was going down and to his right, and struck the concrete floor. The machine tilted up and threw May off it onto the floor, where he was seriously injured.

The declaration in this cause simply charged as a cause of action that Diamond owed to appellee the duty to provide him a reasonably safe place to work and to provide him reasonably safe conditions within which to work; that Diamond negligently and carelessly breached said duties in that it failed to provide appellee a reasonably safe place to work and reasonably safe conditions within which to do his work; and that said acts and omission and breaches of duty as well as defects in the backhoe proximately caused the injuries of appellee.

The evidence is undisputed that J.W. Christian Construction Co. was an independent contractor; that it had contracted with Diamond to do a job in the Diamond warehouse, e.g., pull down stacked bales of paper which were smoldering and burning and remove them from the warehouse; that J.W. Christian Construction Company sent its employee and backhoe operator, Robert T. May, to the warehouse with the backhoe machine, owned by J.W. Christian Construction Company; that Robert T. May was a skilled backhoe operator with thirty years’ experience in heavy machines; that May knew the condition of the machine and that he operated it in that defective condition for approximately eight hours.

In Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267 (Miss.1970), Sexton was a licensed electrician and independent electrical contractor. His experience in that specialized field extended over a period of thirty years at the time of his injury. He operated his own establishment, with his own tools, appliances, truck and safety devices and employed his own assistants or helpers. He held himself out to the public as a skilled and experienced electrician. He was making a private installation on the property of Jackson Ready-Mix Concrete when his elbow came in contact with an uninsulated electrical object, he was shocked, and fell from a pole to the ground, sustaining severe injuries. Sexton was a business invitee of Ready-Mix. Quoting from 65 C.J.S. Negligence § 63 (1966), the Court said:

“The duty toward an invitee does not extend to looking out for or preventing wrongful acts or disorderly conduct of the invitee, which may result in injury to him, or to prevent a careless person from injuring himself. (Id. § 63(45)).
[WJhere the invitee knows of the danger or is chargeable with knowledge thereof, even a vvarning is not required :: * ^ § 63(46)).
* -⅛ ⅜ * ⅞
The basis of the inviter’s liability for injuries sustained by the invitee on the premises rests on the owner’s superior knowledge of the danger, and, as a general rule, he is not liable for an injury to an invitee resulting from a danger which was known to the invitee or which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition which was as well known or as obvious to the invitee as to the inviter, or from a danger which the invitee should reasonable have appreciated before exposing himself to it, or which the inviter had no reason to believe would not be discovered by the invitee. It has been held that liability cannot be based on a condition of the premises which is incidental to the business being carried on there and to be expected by an invitee.
There is no duty to warn the invitee of a defect or danger which is known to him or which is as well-known to the invitee as to the owner or occupant, or which is obvious or which should be observed by the invitee in the exercise of ordinary care. (Id. § 63(53)).” [235 So.2d at 269-70],

The principle is well recognized that the owner of premises is not liable to an independent contractor (business invitee) for obvious defects of the premises or machinery, but only those hidden or latent defects which are known to the owner, but not to the independent contractor. In United Roofing and Siding Company v. Seefeld, 222 So.2d 406 (Miss.1969), quoting from 41 Am.Jur.2d Independent Contractors § 28, at 785 (1968), the Court said:

“As an exception to the general rule requiring the owner or occupier of premises (the contractee) to furnish a safe place of work to an independent contractor and the latter’s employees, the owner or occupier is under no duty to protect them against risks arising from or intimately connected with defects of the premises, or of machinery or appliances located thereon, which the contractor has undertaken to repair. Closely related to this exception is the rule that the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees ‘assumed the risk.’ ” [222 So.2d at 408].

See also Fortenberry Drilling Co., Inc. v. Mathis, 391 So.2d 105 (Miss.1980); Buford v. Jitney Jungle Stores of America, Inc., 388 So.2d 146 (Miss.1980); and General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969).

Although the declaration does not so charge, the appellee apparently now takes the position that he was required to resume operation of the backhoe by a supervisor of Diamond. It is true that J.W. Christian instructed May to take the machine to the Diamond premises to do anything that the personnel or the supervisor told him to do. However, May stated the reason he resumed operation of the backhoe a short time before he was injured was because “He [supervisor] asked me to remove a few more feet. He didn’t threaten me. He asked if I could just please come up in there and get them a hole in there where they could get the machines out. So I told him I would.”

We hold that, under the pleadings and the facts of this case, Diamond was not liable for the accident, and injuries sustained by May, and that the lower court erred in refusing to grant a peremptory instruction in favor of Diamond.

Likewise, in the cross-appeal relating to Case, the mechanic from Case removed the levers and cylinder, inspected and cleaned the cylinder and found that a new cylinder should be installed. He told May that he did not have a replacement part in inventory, and that a new part would have to be ordered which would require approximately two days. The mechanic installed the existing part with full knowledge of May, who operated the machine without difficulty for approximately one hour. When the same trouble developed again, being fully aware of the defective condition of the backhoe, May continued to operate the machine.

We are of the opinion that there was no liability on Case and the lower court correctly granted a peremptory instruction in favor of Case.

The judgment of the lower court is reversed and rendered as to Diamond on direct appeal and is affirmed as to Case on cross-appeal.

REVERSED AND RENDERED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., not participating.

      . May was injured on the job May 24, 1975. He died of cancer unrelated to the injuries on January 19, 1980, and this suit, which was pending, was revived in the name of Hazel O. May, Ad-ministratrix of the Estate of Robert T. May, Deceased.


author: BROOM, Presiding Justice, DAN M. LEE, Justice,

text:
    In re ESTATE OF Sam ALEXANDER, Deceased. Susie ALEXANDER, Administratrix v. Margie ALEXANDER, a/k/a Margie Moye.
    No. 54040.
    Supreme Court of Mississippi.
    Feb. 15, 1984.

      David A. Smith, Columbus, for appellant.
    Charles L. Culpepper, Thomas C. Harvey, Jr., Columbus, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   BROOM, Presiding Justice,

for the Court:

Services rendered “as a faithful spouse” are grounds upon which appellee, Margie Alexander, sought an “equitable lien entitling her to full use and occupancy” of the residence of Sam Alexander, deceased, for as long as Margie lives or occupies the property. Margie became married many years ago to one George Moye and without any divorce began to live with Sam Alexander as if married to Sam. Susie Alexander, administratrix of Sam’s estate, appeals from the decree of the Chancery Court of Lowndes County, which in effect granted Margie a life estate to Sam’s homestead property. We reverse on direct appeal.

Argument of the Administratrix is that the lower court erred “in impressing an equitable lien against the property of the decedent Sam Alexander for the benefit of the respondent, Margie Alexander .... ”

In controversy is the dwelling house (deceased Sam Alexander’s homestead) occupied by Margie and Sam during the last twenty years of his life. Without divorcing George Moye, her husband, Margie lived with Sam Alexander approximately thirty years from about 1946 until Sam’s death in 1980. These proceedings were commenced in the Chancery Court of Lowndes County by petition of Sam’s two sisters, Susie Alexander and Pearl Alexander, joined in by a nephew, William Alexander. The three of them, along with a second nephew, Willie Mack Shelton, appear to be Sam’s sole and only heirs at law. The petition successfully sought appointment of Susie as administratrix.

Margie Alexander (appellee) responded to the petition by pleading that she was entitled to an equitable lien on Sam’s house. In answer to interrogatories, she stated that she had previously entered into ceremonial marriages with two men, the first of whom died prior to her second marriage. She (though not divorced from George Moye) averred that for many years she had lived with Sam and shared his name, assets and liabilities. Her testimony was that she did their cooking, washing, and ironing during those years, and that “we was considered man and wife”. They used his wages and her wages (working for others) to pay their living expenses. Sam made the payments on the house until he got sick, after which time she paid them. Nowhere in her testimony did Margie establish or even estimate the amount of money she paid on the house which is titled in Sam’s name. He was hospitalized for a time and then returned home, where Margie nursed him until his death. According to her, Sam’s relatives ignored him during his illness except for a nephew who helped with him on weekends for over a year. Margie took care of the funeral and had Sam buried “on my mother’s square ...”. She testified that she expected to live the rest of her life “in that house where I holp (sic) him pay for.” Her and Sam’s relationship had its inception when he moved in with her while she was living in her grandmother’s house.

Appellant’s brief points to the lack of evidence that the deceased, Sam Alexander, knew of any expectation of Margie to be paid when he accepted her services. The transcript is also barren of evidence that he accepted her services under circumstances which indicate to a reasonable man that her services were offered with the expectation of compensation. In re Burkett’s Estate, 185 Miss. 354, 186 So. 834 (1939), states:

The deceased may have intended to compensate the claimant for her services, but no obligation so to do arose unless she knew or ought to have known that the services were being rendered on the expectation of compensation therefor.

185 Miss. at 360, 186 So. at 835. Hoyle v. Smith, 113 Miss. 729, 74 So. 611 (1917), involved a sister who took care of her infirm, elderly sister during her last years and subsequently sought compensation for her services. This Court held there was no contract, express or implied, to compensate the claimant sister for her services out of the estate’s corpus. In denying recovery from the estate of the deceased sister, our opinion states:

The claim of Mrs. Smith might naturally arouse one’s sympathy and appeal to one’s sense of justice. But there can be no obligation on the part of the estate here proceeded against in the absence at least of an implied obligation or contract. The proof shows without dispute that the two old sisters, Mrs. Smith and Miss Hoyle, lived together upon their joint property as members of the same household, and that the attention and care which Mrs. Smith lavished upon her invalid sister was prompted by feelings of natural love and affection, and that her services as caretaker were not rendered in pursuance of any contract whatever or with any expectation of compensation. During the many years prior to the death of Miss Hoyle, Mrs. Smith rendered no bill for services or support, and this claim is now presented for the first time long after Miss Hoyle’s death. If Miss Hoyle intended for Mrs. Smith to have her property, she could have easily executed a deed or will. Our court, in Bell v. Oates, 97 Miss. 790, 53 South. 491, in speaking of this character of claim, said: “Claims of the character of the one here involved, brought up for the first time after the death of the. decedent, are looked upon by the courts with disfavor.” In order to establish one, “the evidence must clearly establish a contract, express or implied, between the claimant and decedent, providing therefor.”

113 Miss. at 734-35, 74 So. at 612-13.

On the issue of whether the meretricious relationship between Sam and Margie precludes equitable relief in her favor, no Mississippi case precisely in point has been cited or called to our attention. Recently the Supreme Court of California in Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976), a case involving a woman’s “palimony” claim against a movie star, dealt with a similar issue and stated:

The courts should enforce express contracts between. nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services ... In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

18 Cal.3d at 665, 557 P.2d at 110, 134 Cal.Rptr. at 819. The Marvin case suggests several theories under which an agreement between Margie and Sam Alexander could be implied. Marvin seems to have fashioned a judicial remedy upon some kind of a “tacit understanding” between the parties about some expected “monetary reward” to Margie. Such an understanding does not appear here as between Margie and Sam.

Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204 (1979), involved a claim similar to the one asserted here. In rejecting the claim, the Illinois court stated that to award equitable relief under such circumstances would contravene public policy.

Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951), and Taylor v. Taylor, 317 So.2d 422 (Miss.1975) are factually quite dissimilar and thus not controlling. In both of those cases the litigation was brought by a woman against the man with whom she had entered into an actual ceremonial marriage. In the present case, there was not even any attempted legal ceremonial marriage but a mere “live-in” relationship which cannot be allowed to negate the law of descent and distribution. As contradistinguished from Chrismond and Taylor, in the present case the suit is not against a living so-called husband who mistreated or attempted to mistreat the woman (Margie). Here the man is dead and the suit is an attempt to gain a part of his estate. The Taylor opinion states the “separation cast her adrift”, but here there is no separation except by death, and in no wise would Margie be cast “adrift” because by her own testimony she owns her grandmother’s former house which is rented. As was true in Aldridge v. Aldridge, 116 Miss. 385, 398, 77 So. 150, 151 (1918), the present litigant, Margie, “to all intents and purposes was simply his (Sam Alexander’s) mistress.”

Georgia's Supreme Court recently decided a case where a cohabitant filed an action seeking her portion of purchase money interest in a house. Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977). There the court held that the fact that the parties were unmarried and cohabiting would constitute immoral consideration in an agreement to live together, and denied relief to the claimant cohabitant.

Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978), was a recent case wherein a claim similar to that asserted here was upheld based upon intent of the parties. Other cases scattered across this nation show diverse theories used by different courts in deciding controversies similar to that before us here.

We think the logical view is that stated by a Michigan court. Carnes v. Sheldon, 109 Mich.App. 204, 311 N.W.2d 747 (1981). The following, excerpted from Carnes, expresses our view:

We are of the opinion that public policy questions of such magnitude are best left to the legislative process, which is better equipped to resolve the questions which inevitably will arise as unmarried cohabitation becomes an established feature of our society. While the judicial branch is not without power to fashion remedies in this area, see, e.g., Tyranski [v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595] supra, Roznowski [v. Bozyk, 73 Mich.App. 405, 251 N.W.2d 606], supra, and Walker [v. Walker, 330 Mich. 332, 47 N.W.2d 633], supra, we are unwilling to extend equitable principles to the extent plaintiff would have us do so, since recovery based on principles of contracts implied in law essentially would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature. Although, as previously noted, the Marvin [v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815] Court denied that the effect of its decision would be to resurrect the principle of common-law marriages, commentators have been less certain.

109 Mich.App. at 216-17, 311 N.W.2d at 753.

Earlier, in Creasman v. Boyle, 31 Wash.2d 345, 196 P.2d 835 (1948), the Supreme Court of Washington succinctly stated:

It has been declared to be a rule of law in this state that property acquired by a man and a woman not married to each other, but living together as husband and wife, is not community property, and, in the absence of some trust relation, belongs to the one in whose name the legal title to the property stands.

31 Wash.2d at 351, 196 P.2d at 838.

Having carefully studied the briefs and oral arguments made, we think that if a remedy is to be given to a cohabitant situated as was Margie in this case, the Legislature should provide the remedy. Of course, it is obvious that had Sam wanted Margie to have an interest or right to his property, a simple will would have been appropriate but none was executed. A deed or contract would also have sufficed. We think that the chancellor exceeded his discretion in his attempt, noble and compassionate as it was, to fashion a remedy favorable to Margie. As was true in Hoyle v. Smith, supra, Margie’s claim naturally arouses our sympathy, but absent any evidence of “an implied obligation or contract” the record before us fails to establish any proper basis for relief to her. Of course, equity is a laudable goal in any case, but equity generally must follow established law. At oral argument Margie’s counsel conceded that the record is barren of evidence that Margie and Sam had any agreement that she would be compensated for her services.

By way of cross-appeal, Margie asserts that the Chancery Court wrongfully dismissed her petition to revoke letters of administration issued below. We find no merit to the cross-appeal, and affirm the chancellor’s refusal to revoke the letters of administration.

REVERSED AND RENDERED AS TO DIRECT APPEAL; AFFIRMED AS TO CROSS-APPEAL.

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

DAN M. LEE, BOWLING, HAWKINS and ROBERTSON, JJ., dissent.

DAN M. LEE, Justice,

dissenting:

Occasionally, a court’s well-intentioned efforts to see that a rule of law is promoted results in principles of justice being ignored. The inequity that results from the majority’s opinion makes it evident that this is one of those instances. Because I believe that the remedy fashioned by the chancellor was eminently correct in assessing where the real equities of this case lie and in preventing a travesty of justice, I must respectfully but adamantly dissent.

For centuries of Anglo-American jurisprudence the chancellor has stood for equity, fairness and good conscience. As all first year law students are taught, the role of the chancellor came about as an attempt to provide solutions to problems the law did not adequately address. The chancellor was the keeper of the king’s conscience, the guardian against injustices that overly strict or dogmatic interpretations of law created. From these beginnings the concept of the chancery court has developed and along with it several maxims of equity to guide that development.

These maxims or principles have so often been discussed that they are familiar to anyone versed in chancery practice; however, because they have been ignored by the majority’s opinion, I will set out some of the authorities’ comments. From Griffith’s Mississippi Chancery Practice, 2nd Ed. come the following:

Section 32. [Tjhere are the requirements that the party who invokes the jurisdiction of chancery coming as a complainant therein must come with clean hands, and that in asking the court to take cognizance of his suit in equity he shall on his part do any equity that in conscience his case requires that he should do. It is more than a trite phrase that a court of equity is a court of conscience; and it is immaterial what rights a party could assert in a court of law, — a court of equity will limit him to those rights of which he could conscientiously avail himself.
Section 43. He who seeks equity must do equity. It is one of the oldest of equity principles that when a party seeks the interposition and aid of a court of chancery as against his adversary, the court in extending its aid will require as a condition thereof that the complaining party shall accord and render unto the adversary party all of the equitable rights to which the latter is entitled in respect directly to the subject matter of that suit, and this is true even as to many of those things which the defendant could not compel by an independent suit. It is through the operation of this maxim that tender or the equitable equivalent thereof is required; the restoring of benefits received and the placing of the opposite party in statu quo, and the like; and that without the necessity of cross-demand, the decree often may be so drawn and rendered that each party may be given, in respect to the identical transaction, what in equity and good conscience he ought to have and in the appropriate manner in which he ought to have it — settling the whole matter by making any decree at all in complainant’s behalf conditional upon the allowance of the cognitive rights of the defendant; provided, these latter rights are so intimately connected with the transaction as to be equitably inseparable therefrom, and provided further that no express principle of law stands in the way.
Section 615. It is a well understood feature of equity that when a party resorts to a court of chancery for redress he thereby submits himself to such equitable conditions as directly connect themselves with the subject, and that he may be required to do equity as a condition to the allowance of relief: wherefore, the decree may be expressly so drawn that the relief granted shall be on condition that equitable terms specified in the decree shall be binding on the complainant.
(All Emphasis Added)

From 21 Am.Jur.2d Equity come the following:

Section 23. It is a generally recognized principle that equity will exert its authority and grant its remedy to prevent injustice where other courts are helpless, but will withhold its remedies if the result would be unjust.
Section 25. It has been said by a noted jurist that if the hardship is strong enough equity will find a way of granting relief, although a formula of inaction may seem to bar the path. Under certain circumstances equitable relief may be denied where the relief posted great hardship on the defendant with little or no benefit to the plaintiff.
Section 134. As a corollary of the maxim that he who seeks equity must do equity, courts of equity have for a long time granted relief upon such conditions as are just and proper and demanded by the exigencies of the circumstances.... The court may thus protect and give effect to the rights of one party while awarding relief to the other, and in so doing the court is not restrained by strict legal rights.
(All Emphasis Added)

Let us now examine the circumstances surrounding the instant dispute with an eye for locating where the equities and justice lie. Margie and Sam Alexander lived together in excess of 33 years. As the chancellor found, they were not married because they were ignorant of the fact that Margie could obtain a divorce from a husband who had previously deserted her because his address was unknown. Still, they lived together as man and wife, each considering and treating the other as a partner in the journey through what we all realize is but a brief earthly existence. Together they worked to buy the property in question, each contributing their separate incomes towards the purchase price. They tended each other in good times and bad, and when Sam entered his last illness it was Margie who nursed him. Ultimately it was Margie who buried him. During all of this time, the appellants were no where to be found. They came forward only when it became apparent that they might extract some personal gain from Sam’s estate.

The majority opinion makes the assertion that there was no evidence that Margie expected to be paid for her services or that Sam expected to pay her. Such comments amount to nothing more than a straw man set up for the purpose of knocking down without having to give a true assessment of the couple’s relationship. Of course there was no expectation of payment for services! Margie and Sam clearly considered themselves man and wife, sharing equally in both their assets and liabilities. They spent over 33 years together, sharing without expecting payment. At least they were joint adventurers. McCartney v. McKendrick, 226 Miss. 562, 85 So.2d 164 (1956).

The majority completely ignores the legitimate interest Margie has in the household she and Sam worked together to acquire. Also, the reference to Margie as “simply his mistress” is inappropriate to the facts of this case.

It must be remembered that the chancellor had the discretion to mold his remedy to meet the equities of the situation, with justice as his polestar. Certainly the solution arrived at here was fashioned with those standards in mind. This is evident from a reading of the chancellor’s opinion, a portion of which we quote:

It is admitted by Margie: she knew that she was not divorced, and her understanding was that she could not get a divorce because she did not know the whereabouts of George. The routine legal questions involved in this cause have relatively simple answers to those who are regularly represented by counsel, but the court would take judicial notice that they are uneducated and that the intelligence level of the parties before the court is such that they are unlearned in the law and are unlearned in the normal business and commercial activities. The court would further take judicial notice that the custom and mores to which they subscribe place no connotation on the absence of a ceremonial marriage, but rather give recognition to strong personal obligations, each to the other. The court knows of no other duties or services that this woman could have rendered to the decedent that could have been characterized of a more dutiful wife. To now deprive her of the residence that she has occupied for more than 20 years as her home would be a travesty of justice. Conceded, she has no adequate remedy at law. She cannot be recognized as the common law wife of Sam Alexander; she is not his heir; but nevertheless, she performed the services of a faithful spouse to Sam for a period of more than 30 years. (Emphasis Added)

Certainly the chancellor was following guideposts of equity and our decision in Taylor v. Taylor, 317 So.2d 422 (Miss.1975). In Taylor we stated:

The facts in this case demonstrate without question that the chancellor did what a decent regard for the sensibilities of humanity demanded. These people lived together and shared the vicissitudes of life for 18 years. The separation case her adrift just as surely as if she had been his lawful wife. The chancellor appears to have decided that the strict letter of the law oy,ght not to require him to ignore that he was dealing with human beings. (Emphasis Added)

Taylor v. Taylor, 317 So.2d at 423.

The chancellor’s creation of an equitable lien or the granting of an equitable use of the property for the extent of Margie’s life takes into consideration both Margie’s interest and those of the appellants. As stated above, the appellants must be prepared to yield to whatever equity Margie has before they are permitted to petition a court of equity for relief. While justice should be blind, we must not be blind to it.

Therefore, based on all of the foregoing, I would affirm the decision of the chancellor.

BOWLING, HAWKINS and ROBERTSON, JJ., join this dissent.

      . Common law marriage was not asserted in this case for obvious reasons. Historically, as of April 5, 1956, such marriages were no longer allowed. Mississippi Code Annotated § 93-1-15 (1972).


text:
    Charles N. HARVEY v. Judy NASIF.
    No. 54,138.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    David M. Sessums, Varner, Parker & Sessums, Vicksburg, for appellant.
    Oscar P. LaBarre, III, LaBarre & La-Barre, Vicksburg, for appellee.
   Appeal from Circuit Court, Warren County; John Prewitt, Sr., Judge.

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

AFFIRMED.


text:
    C. Bishop BARKER v. Irene Alexander BARKER.
    No. 54699.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    J.B. Van Slyke, Jr., Hattiesburg, for appellant.
    Donald W. Medley, James K. Dukes, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

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

AFFIRMED.

SULLIVAN, J., not participating.


text:
    Richard E. LeRAY v. STATE of Mississippi.
    No. 54755.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    J. Ronald Parrish, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.