author: PRATHER, Justice,

text:
    Herman KELLY v. STATE of Mississippi.
    No. 54542.
    Supreme Court of Mississippi.
    Jan. 30, 1985.

      Bill Waller, Sr., Waller & Waller, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court.

This is an appeal from a criminal conviction in the Circuit Court of Hinds County, the Honorable William F. Coleman presiding. Herman Kelly was indicted for murder of Walter Ray Summers, but found guilty of manslaughter and sentenced to 15 years at the Mississippi Department of Corrections. Kelly appeals, assigning as error:

(1) That the trial court erred in failing to require the State to elect between the charges of murder and manslaughter;

(2) The trial court erred in overruling appellant’s motion for a mistrial after the District Attorney entered the case without having attended the voir dire of the jury;

(3) The trial court erred in granting a manslaughter instruction for the State which omitted material elements of the crime;

(4) The trial court erred in refusing a self-defense instruction offered by the defense;

(5) The trial court erred in admitting photographs of the victim;

(6) The trial court erred in limiting cross-examination of a prosecution witness;

(7) The trial court erred in allowing the prosecution to withhold an exculpatory statement by the defendant from its case in chief; and

(8) The verdict was against the overwhelming weight of the evidence.

I.

Around midnight of August 21, 1981, appellant Herman Kelly entered BB’s Lounge in Terry, Mississippi and shot Walter Ray “Bobo” Summers. Summers received a bullet wound to the upper right side of his chest severing an artery and bled to death on the floor of the bar.

Appellant Kelly was 52 years old at the time of the shooting and had lived in Terry, Mississippi for 18 years. During the 2⅛⅛ years preceding the crime, Kelly was employed as a handyman and caretaker by Ben Johnson, a Hinds County Real Estate businessman. Kelly occasionally does odd jobs and yard work for other Terry residents. His reputation in the Terry community for truthfulness and peacefulness is good.

On August 21, 1981, appellant Kelly left the Johnson place in Mr. Johnson’s truck around 4:00 o’clock p.m. Kelly had loaded up some chickens and drove around the outskirts of Terry selling them for Mr. Johnson. After Kelly sold all of the chickens, he returned to his home and washed off Mr. Johnson’s truck. Kelly left his house around 9:30 or 10:00 o’clock p.m. and went to visit James Greene, Deputy Sheriff with the Hinds County Penal Farm, for about half an hour. Kelly then went to a grocery store, bought a beer and some cigarettes and, at approximately 11:00 p.m., proceeded to BB’s Place.

Kelly entered BB’s with a pistol tucked in his pants. Seven or eight months earlier Kelly had traded a shotgun and a hog to Deputy Greene in return for the pistol. According to Kelly, he was carrying the pistol on the night of August 21, 1981 in order to protect the $1200 radio which Mr. Johnson kept in his truck.

Kelly testified that upon entering BB’s Lounge, Summers cursed him and told him not to come inside. According to Kelly, Summers said “I’m gonna kill you” and reached under his shirt; Kelly then pulled out his pistol and shot him. Kelly testified that, after the shooting, he grabbed Summers and offered to take him to a doctor. When Summers refused, Kelly stated that he placed him in a chair and left BB’s Place to get help.

Walter Ray “Bobo” Summers had arrived at BB’s Place around 11:00 o’clock with Ida Rae McCaskill, his first cousin. At the time of the shooting, McCaskill was facing the jukebox with her back to the door. She had a hearing problem; the music was loud and she heard nothing until the door slammed. At that point she turned around and saw appellant Kelly shoot Summers who was standing at the corner of the pool table.

Curtis Bankston was managing BB’s Place on the night of August 21, 1981, but was outside the building when he heard a shot and rushed back inside the lounge. Appellant Kelly was standing in the doorway with a pistol in his hand and said to Bankston, “the pistol must have went off. I didn’t intend to kill him”.

Approximately 10 minutes after the shooting, appellant Kelly located Lee Roland, the Night Marshall for Terry, Mississippi. Kelly told Roland that he had killed a man and wanted to give himself up. Appellant Kelly told Officer Roland that Walter Summers had threatened to kill him if he entered the bar. Additionally, Kelly told Roland that he thought that his gun was uncocked when it went off. When Roland asked for the gun, Kelly gave it to Officer Roland.

LAW

II.

WHETHER THE TRIAL COURT ERRED IN FAILING TO REQUIRE THE STATE TO ELECT BETWEEN THE CHARGES OF MURDER AND MANSLAUGHTER.

Appellant challenges the failure of the trial court to require the State to elect between the charges of murder and manslaughter on two grounds. Appellant first argues that this invited the jury to compromise their verdict. This argument is not supported by any legal authority and therefore it need not be addressed on appeal. Pate v. State, 419 So.2d 1324 (Miss.1982); Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963); Johnson v. State, 154 Miss. 512, 122 So. 529 (1929). A similar contention was recently rejected by this Court in Lambert v. State, 462 So.2d 308 (Miss. 1984).

Secondly, the appellant argues that the failure of the State to elect between murder and manslaughter left the defendant ignorant of the charge against him in violation of the Sixth Amendment of the United States Constitution which guarantees that “be informed of the nature and cause of the accusation ...” and Article 3, Section 26 of the Mississippi Constitution which guarantees the defendant’s right to “demand the nature and cause of the accusa-tion_” The basis of this argument is that murder and manslaughter are mutually exclusive charges and that, therefore, “manslaughter cannot in justice be deemed a lesser offense of murder”.

We address this question on the basis of Mississippi authority. The longstanding common-law rule is that an indictment for murder includes all lower grades of felonious homicide. Under this general rule, “on an indictment charging murder generally an accused may be found guilty of manslaughter ... and, where manslaughter has been divided by statute into degrees, of any of the statutory degrees.” 42 C.J.S. Indictments and Informations, § 280 (1944). This Court has repeatedly applied the general rule and upheld convictions of manslaughter obtained under an indictment for murder. Wells v. State, 305 So.2d 333 (Miss.1974); Roberson v. State, 257 So.2d 505 (Miss.1972); King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Calicoat v. State, 131 Miss. 169, 95 So. 318 (1922).

There is no merit to this assignment of error.

III.

WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENSE MOTION FOR A MISTRIAL WHEN THE DISTRICT ATTORNEY BEGAN PARTICIPATING IN THE CASE WITHOUT HAVING BEEN PRESENT AT THE VOIR DIRE OF THE JURY.

The record reflects that District Attorney Ed Peters began participating actively and vigorously in this trial during the cross-examination of the State’s first witness which was at page 57 of the record. Following the direct examination of the State’s third witness the defense objected to the D.A.’s participation on the ground that he was not present during the voir dire and defendant was not afforded an opportunity to question jurors with respect to their relationship to the District Attorney. The Court overruled defendant’s motion for a mistrial. In doing so, the trial judge stated that during the court’s voir dire, the judge inquired if any prospective juror had knowledge of Mr. Peters.

In answering this question, this Court first notes that the objection of the district attorney’s participation was not contemporaneously made when he initially came into the courtroom. Therefore, appellate review of the issue is procedurally barred. Hill v. State, 432 So.2d 427 (Miss. 1983).

Notwithstanding the procedural bar, this Court finds that the issue has no merit. The defense counsel knew that the prosecution was conducted by the office of the district attorney of Hinds County headed by Mr. Peters. Whether the district attorney, or one of his assistants conducted the actual trial, the defense counsel was charged with knowledge of Mr. Peters office’s involvement and could have voir dired the venirepersons along those lines.

Also, the voir dire of the jury was not made a part of this record. We previously have suggested to bench and bar that all facets of a criminal trial be recorded and preserved for review upon appeal. Dorrough v. State, 437 So.2d 35 (Miss.1983), Mound Bayou v. Collins, 457 So.2d 337, 343 (Miss.1984). In the absence of this record this Court cannot say that the assertion of the appellant constituted error.

This assignment of error is meritless.

IV.

WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S MANSLAUGHTER INSTRUCTION WHICH OMITTED ELEMENTS OF THE CRIME.

Appellant assigns as error the granting of State’s Instruction No. 12 which defined manslaughter as follows:

The Court instructs the Jury that manslaughter is the killing of a human being in the heat of passion, without malice, in a cruel or unusual manner, without authority of law, and not in necessary self-defense; and if the Jury believes from the evidence beyond a reasonable doubt that the Defendant, Herman Kelly, so killed the deceased, Walter Ray Summers, then the Jury will find the Defendant guilty of manslaughter.

The apparent flaw in this instruction is the omission of the statutory phrase “by use of a dangerous weapon”. Miss.Code Ann. § 97-3-35 (1972).

In Robinson v. State, 223 Miss. 303, 78 So.2d 134 (1955), appellant challenged a manslaughter instruction on the same grounds, i.e., the omission of the words “by the use of a deadly weapon”. This Court stated that “the omission of the words ‘by the use of a dangerous weapon’ ... was harmless under the facts in this case for the reason that all the witnesses, including the appellant, testified that the weapon used to effect the death of the deceased was a .28 gauge pump shotgun.” 78 So.2d at 136.

In the case sub judice, as in Robinson, all witnesses, including the appellant, testified that the deceased was killed with a pistol belonging to the appellant. Johnson v. State, 416 So.2d 383 (Miss.1982), cited by the appellant, is distinguishable in that the manslaughter instruction held erroneous in that case omitted not only the phrase “by the use of a deadly weapon” but also the phrase “without authority of law” and the critical phrase “not in necessary self-defense”. 416 So.2d at 388.

This assignment of error is without merit.

V.

WHETHER THE TRIAL COURT ERRED IN REFUSING A REQUESTED SELF-DEFENSE INSTRUCTION.

Appellant also assigns as error the trial court's refusal of requested defense instruction No. 13 stating:

The Court instructs the Jury that if you believe from the evidence in this case that the Defendant, Herman Kelly, was justified in acting in reasonable and necessary self-defense by the use of his weapon, then it is not material whether the gun went off by his deliberate act or by his accidental act; in either event, the Defendant is entitled to be acquitted because of having acted in self-defense.

Significantly, the trial court granted four defense instructions dealing with self-defense. In McWilliams v. State, 338 So.2d 804 (Miss.1976), this Court held that it was not error to deny a self-defense instruction under such circumstances, stating:

The trial court is not required to instruct the jury over and over on a principle of law, even though some variations are used in the different instructions. All instructions granted by the trial court, both for the State and the appellant, fully and correctly submitted the issue of self-defense to the jury, no prejudice resulted to the appellant, and the trial court committed no error in refusing same. Holmes v. State, 201 Miss. 509, 29 So.2d 312 (1947).

338 So.2d at 806; Accord Groseclose v. State, 440 So.2d 297 (Miss.1983); Cf. Barr v. State, 359 So.2d 334 (Miss.1978).

VI.

WHETHER THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS OF THE VICTIM.

Eight color photographs of the deceased and the scene of the crime were admitted into evidence at the trial. Appellant argues that the pictures are gruesome and repetitious and therefore served only to inflame the jury.

This Court has repeatedly held that the fact that a photograph of the deceased in a homicide case might arouse the emotions of the jurors, does not of itself render it incompetent evidence as long as its introduction serves some useful evidentiary purpose. Butler v. State, 320 So.2d 786 (Miss. 1975); May v. State, 199 So.2d 635 (Miss. 1967). The admissibility of photographs rests within the sound discretion of the trial judge and will be upheld absent a showing of abuse of discretion. Edwards v. State, 413 So.2d 1007 (Miss.1982); Steed v. State, 396 So.2d 625 (Miss.1981); Irving v. State, 228 So.2d 266 (Miss.1969).

The photographs admitted in the case sub judice depicted the location of the wound and tended to negate defendant’s assertion that the deceased had reached under his shirt as if going for a gun prior to the shooting. Moreover, the pictures of the interior of the bar tended to negate defendant’s statement that he placed the decedent in a chair after the shooting, inasmuch as no blood is depicted upon any of the chairs.

This assignment of error is without merit.

VII.

WHETHER THE TRIAL COURT ERRED IN LIMITING CROSS-EXAMINATION OF A PROSECUTION WITNESS.

Appellant also assigns as error the trial court’s ruling which restricted the defense cross-examination of Ida Rae McCas-kill. The information sought to be elicited by the defense concerned the fact that Mrs. McCaskill had several illegitimate children. This Court has previously held such cross-examination to be error. McMasters v. State, 81 Miss. 374, 33 So. 2 (1902) (error to cross-examine wife of defendant concerning fact that she had two children out of wedlock); Tucker v. Tucker, 74 Miss. 93, 19 So. 955 (1896) (character of witness for truth may not be impeached by evidence of unchaste character). See also Godfrey v. State, 185 Miss. 70, 187 So. 199 (1939); McCraw v. State, 260 So.2d 457 (Miss. 1972).

This assignment of error is without merit.

VIII.

WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO WITHHOLD AN EXCULPATORY STATEMENT BY THE DEFENDANT FROM ITS CASE IN CHIEF.

Appellant Kelly made a statement to Terry Police Officer Lee Roland minutes after the shooting. The statement was introduced by the prosecution in rebuttal. In this statement, the appellant indicated to Mr. Roland that his gun had accidentally discharged. Appellant contends that since it was used in rebuttal, “it was error for the State to withhold such an exculpatory statement from its main case.” This argument is not predicated on the state’s failure to disclose the exculpatory statement to the defense, but the argument is based on the time it was introduced.

There is no legal authority for this novel assignment of error. Jones v. State, 342 So.2d 735 (Miss.1977), upon which the appellant relies does not support his argument. Jones holds that where the State introduces evidence of statements by the defendant made immediately after the crime, the defendant is entitled to bring out the entire statement. However, Jones v. State recognizes that the State is not in any way obligated to introduce the statement. See also Collins v. State, 148 Miss. 250, 114 So. 480 (1927).

This assignment of error is without merit.

IX.

WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

This case does not involve a factual dispute over whether or not the appellant shot the deceased. Both sides agree that he did. Therefore, the argument that the verdict of guilty of manslaughter is against the overwhelming weight of the evidence depends entirely on the premise that the evidence of self-defense was so persuasive as to preclude a jury verdict of anything but not guilty. This, however, was not the case.

Appellant entered the scene of the crime with a loaded gun. No weapon was found on the deceased. Appellant’s version of events, which included his testimony that he responded to verbal threats from the victim, was disputed by Witness MeCaskill. The photographs disputed the assertion that Summers pulled a weapon from under his shirt; no weapon was found at the scene on the victim. Kelly’s statement that he placed the victim in a chair after the shooting, was contradicted by the absence of any blood on the chairs.

The verdict was supported by the evidence on a verdict of manslaughter. This assignment is without merit.

The appellant’s conviction of manslaughter is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    Phoebe H. WARREN v. BOARD OF REVIEW OF the MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 55415.
    Supreme Court of Mississippi.
    Jan. 30, 1985.
    Max E. Warren, Jr., for appellant.
    Fred J. Lotterhos, Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

This is an appeal from an order of the Circuit Court of Lee County affirming the denial of the Mississippi Employment Security Commission of unemployment benefits to Phoebe H. Warren.

Before us is the constitutionality of a statute which prohibits payment of unemployment benefits to a wife who leaves the state to accompany her husband: Miss. Code Ann. § 71-5-513(A)(l)(a) (Supp.1983).

Mrs. Warren was a teacher in the public schools of Lee County. Her husband went into active duty with the United States Army, and he and Mrs. Warren moved to Florida at the end of the 1982-1983 school term. Mrs. Warren had previously signed an employment contract for the subsequent school term.

The referee denied the benefits based upon this section, the Board of Review of the Commission affirmed, and upon appeal to the Circuit Court of Lee County, the Commission denial was affirmed.

The Commission and circuit judge were of the opinion this statute prohibited benefits.

Miss.Code Ann. § 71-5-513(A)(l)(a) (Supp.1984), also Chapter 364, Laws of 1983 provides as follows:

71-5-513. A. An individual shall be disqualified for benefits:
(l)(a) For the week, or fraction thereof, which immediately follows the day on which he left work voluntarily without good cause, if so found by the commission, ... provided that marital, filial, and domestic circumstances and obligations shall not be deemed good cause within the meaning of this subsection. Pregnancy shall not be deemed to be a marital, filial or domestic circumstance for the purpose of this subsection.

LAW

Mrs. Warren does not dispute that under the statute she is denied benefits. Her sole argument is that this statute is unconstitutional. While her argument is interesting, and we agree that there is a division of authority on this question in other jurisdictions, we are persuaded that the act is constitutional.

In Albritton v. City of Winona, 181 Miss. 75 at 96, 178 So. 799 (1938), we stated:

5. In determining whether an act of the Legislature violates the Constitution, the courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.

The Commission and circuit judge found that Mrs. Warren’s decision to accompany her husband was a “marital, filial or domestic circumstance,” and therefore she was ineligible for benefits. We must hold the Legislature is the policymaker in determining whether or not it will deny benefits to persons who make a choice to accompany their spouses to another locality. While hardships may upon occasion arise because of this statute, this does not offend any constitutional guaranty under either the equal protection or due process provisions of our state and federal constitutions.

As we noted, there is a division of authority on this question. See: 21 A.L.R. 4th, Section C.(9) pp. 344-347 and D.(11), pp. 354-356.

Utah has a statute which denies benefits to an employee who leaves work to join a spouse in another locality. Utah Code Ann. § 35-4-5(a) (Supp.1983). In interpreting this statute, the Utah Supreme Court unanimously held the statute was constitutional. In a decision involving six claimants, Chandler, et al. v. Department of Employment Security, 678 P.2d 315 at 318 (Utah 1984):

It is reasonable for the Legislature to determine, as a matter of policy, that the state need not underwrite the financial risks attendant on such a personal and voluntary choice ... Therefore we hold that this classification, established to deny benefits to those who voluntarily leave work to follow or join a spouse, bears a rational relationship to the legitimate legislative goal of limiting unemployment compensation to those who become unemployed through no fault of their own. Thus, in spite of its unfortunate effects on many families, the classification offends neither the state nor the federal constitution. The holding of the Court is that U.C.A., 1953, § 35-4-5(a) is constitutional.

Likewise, we find Miss.Code Ann. § 71-5-513(A)(l)(a) (Supp.1984) constitutional.

AFFIRMED.

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


author: WALKER, Presiding Justice,

text:
    Larry D. WILLIAMS v. STATE of Mississippi.
    No. 54548.
    Supreme Court of Mississippi.
    Jan. 30, 1985.
    Bernard Gautier, Thomas Fortner, Pasca-goula, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County, Mississippi wherein the appellant, Larry Williams, was indicted and tried for the crime of rape. Upon conviction he was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, he has perfected an appeal to this Court.

In the early morning hours of October 15, 1981, a resident of the Chateau Tour-raine Apartments was awakened by a black male who held a sharp object to her neck and threatened her with her life as he proceeded to rape her. The victim’s roommate, who was in a nearby bedroom of the two-story apartment, was awakened by a “real vile odor.” Through the air conditioning vent she overheard the word “kill” repeated several times. Realizing something was awry, she went into the bathroom and began flushing the commode.

The victim warned her attacker that her roommate was up and was armed with a gun. He got up and stood at the end of her bed, fixed his cut-off pants and proceeded toward the stairs. Both women locked themselves in the victim’s room and alerted a neighbor to phone the police. When the police arrived, the victim identified her attacker as a black male in his early twenties of slender built and approximately 5' 4" to 5' 7" tall and wearing nothing but light colored cut-off shorts. He had short hair and a moustache.

A young black male matching her description was found in a nearby canal submerged in the water; his nose, eyes and top of his head exposed.

Shortly thereafter the victim was called to the police department in Pascagoula to view the possible suspect in the case. She observed the appellant through a six-inch hole in a door leading to a room where the appellant was detained. She immediately identified him as the man who raped her.

(1)THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING THE IN-COURT IDENTIFICATIONS OF THE DEFENDANT BY THE WITNESSES FOR THE STATE.

We have carefully considered the above assignment of error and find it wholly without merit. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); York v. Stae, 413 So.2d 1372 (Miss. 1982);

(2) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING EVIDENCE OF ANOTHER CRIME OF THE DEFENDANT.

Over defense counsel’s objection, Bruce Allen Garret was allowed to testify about a burglary which occurred prior to 2:00 a.m. in the morning of October 15, 1981 at his residence, Apartment 5 of the Chateau Tourraine Apartments, the same apartment complex where the victim lived.

The court permitted Mr. Garret to testify for the purpose of identifying the appellant and cautioned both sides not to go into the elements of the crime at the Garret apartment other than to establish the appellant was present in that area.

Garret testified he awoke to find a black male wearing nothing but cut-offs crawling on his bedroom floor. He observed the man crawl on the floor in various areas of the room and noticed a distinct odor emanating from the person’s body which Garret said was “very difficult to describe.”

The appellant argues that the evidence of the burglary at the Garret apartment when considered along with the other evidence might have led the jurors to speculate the appellant committed the crime at the rape victim’s apartment. He further states that the identity of the appellant was unnecessary as the rape victim clearly identified the appellant as being her attacker.

The general rule is that the State may not introduce evidence of another crime separate and distinct from the crime charged and for which the accused is being tried. Lanier v. State, 450 So.2d 69 (Miss. 1984). There are however exceptions to this rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so inter-related as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences; when necessary to identify the defendant; where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged; where the accusation involves a series of criminal acts which must be proved to make out the offense or when necessary to prove scienter or guilty knowledge. Neal v. State, 451 So.2d 743 (Miss.1984).

We find that the testimony offered by Garret with relation to a crime separate and distinct from that which the appellant was being tried does not fall into any of the enumerated exceptions. In the early case of Dabney v. State, 82 Miss. 252, 33 So. 973 (1903), the two crimes involved were rape and larceny and this Court stated: “They are separate and distinct offenses in the eye of the law, and were so, as a matter of fact, on this occasion. It will be noted that proof of the other crime should not be admitted for the purpose simply of identifying defendant, unless it be absolutely necessary for his identification." (Emphasis added) (82 Miss. at 255, 33 So. 973).

In the present case, we find it was unnecessary to introduce the testimony of Garret for the purpose of identifying the appellant as the victim definitely identified him as her attacker as well as her roommate identifying his voice as that of the man she heard when the rape took place. Had the appellant testified himself or other witnesses in his behalf that he was not at or near the scene of the crime, then it would have been proper to introduce such testimony as offered by Mr. Garret for the purpose of impeachment.

For the above reason, this cause is hereby reversed and remanded for a new trial.

PATTERSON, C.J., RÓY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.


author: ROY NOBLE LEE, Presiding Justice,

text:
    Billy D. BARKER v. STATE of Mississippi.
    No. 55361.
    Supreme Court of Mississippi.
    Feb. 6, 1985.

      Laurie S. Caldwell, Gulfport, Gerard F. Smith, Biloxi, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Billy D. Barker was indicted, tried and convicted in the Circuit Court of Harrison County for the rape of T.L.S. and was sentenced to a life term with the Mississippi Department of Corrections. He has appealed to this Court and assigns three (3) errors in the trial below.

I.

THE LOWER COURT ERRED IN FAILING TO SUSTAIN APPELLANT’S MOTION FOR A DIRECTED VERDICT.

Evidence for the State reflects that T.L.S. was sixteen (16) years of age on May 24, 1982. At that time she lived with Dixie and Junior Smith in Gulfport, Mississippi, and expected to graduate from the eighth grade on May 25, 1982. Appellant had been the live-in stepfather of T.L.S. since she was in the seventh grade. At the time, her mother and appellant were living in the State of Missouri and had left her in the custody of Dixie and Junior Smith (no kin).

About 9 a.m. on May 24, 1982, appellant went to the Dixie Smith home and told T.L.S. that he had come to take her back to Missouri, that he had to go to New Orleans that day on business and would come back in the late afternoon and pick her up, and that T.L.S. should have her clothes packed and ready to go. He would not permit T.L.S. to wait until after graduation on the next day.

At approximately 5:00 that afternoon, appellant returned, picked up T.L.S. and stated they were going to News Orleans where they would spend the night before proceeding to Missouri. Appellant was intoxicated and later stopped and purchased more beer. Then he drove to the Deep South Motel in Gulfport, registered for a room with two beds, and took T.L.S. to the room. Upon entering the room, appellant chained the door, took off his shoes and drank a beer.

According to T.L.S., appellant told her to remove her clothes and she declined. He then took off her clothes himself and forced T.L.S. to have sexual intercourse with him. Before the episode ended, he raped her two more times. T.L.S. testified that she screamed, resisted appellant and finally submitted to him when he threatened to kill her, threatened to strike her with a belt in his hand and strangled her. She went to the bathroom, where she stayed until appellant fell asleep. T.L.S. had dressed, except for her tennis shoes, which were near appealing and left the room for the lobby, where she called the Dixie Smith residence with no response. She then went outside the motel where she saw a young woman, Sandy Crowell, to whom she complained about the rape. Ms. Crowell dailed the Dixie Smith residence again, and the residence of Jeff and Charlotte Seymour. T.L.S. talked to Jeff and told him what had happened. Ms. Crowell carrried T.L.S. to the hospital for examination, and the police were called.

Dr. William Tisdale carried out a vaginal examination of T.L.S., found that she had a reddened, irritated entrance to the vagina, a posterior tear back toward the rectum, and a small tear which was still oozing blood. Dead sperm cells were present in her vagina, and he was of the opinion that she had experienced sexual intercourse within an hour or so prior to his examination.

Larry Turner, forensic serologist from the Mississippi State Crime Laboratory, testified that appellant was of blood type A, secreter status, determined from a blood sample taken from Barker. Sperm found on a hotel towel in the room indicated it came from a person who was of blood type A, secreter status.

Joe Edward Andrews, Jr., a forensic scientist at Mississippi State Crime Labórate-ry, who was a specialist in hair and fiber identification, examined and combed a blanket, bedspread, towel, and pillow ease from the motel room. On the blanket he found head hairs and pubic hairs of Negroid origin and head hairs and pubic hairs of Caucasian origin. From the bedspread, he took hair and hair fragments of Negroid origin, pubic hair of Caucasian origin and hair of Caucasian origin, not identified as to body origin. On the towel he found hairs and fragments of hair of Negroid origin, not identified as to body area, and pubic hair and head hair of Caucasian origin. From the pillow case, he took hair and hair fragments of Negroid origin and head hairs of Caucasian origin.

Appellant testified that after he picked up T.L.S. at 5 p.m., he drove to the Deep South Motel, registered and took T.L.S. to the room because he was tired; that T.L.S. did not want to go to Missouri and told him that she would claim rape, if he made her go; that he became upset and went to a lounge where he drank and played cards until 8:00 the next morning; that he didn’t go back to the motel room but drove to the Dixie Smith residence; that he learned T.L.S. was at the police station, and he drove near the station, stopped and looked around but did not go in; and that he went back to Missouri where he was extradited two months later. He denied that he raped T.L.S.

Although the uncorroborated testimony of the prosecutrix in a rape case should be examined closely, Goss v. State, 413 So.2d 1033 (Miss. 1982), it is well-established law that such uncorroborated testimony is sufficient to sustain a rape conviction. Davis v. State, 406 So.2d 795 (Miss. 1981); Goode v. State, 245 Miss. 391, 146 So.2d 74 (1962). The testimony of the pros-ecutrix here is corroborated by physical facts and by testimony of the examining physician and the forensic serologist.

In passing upon a motion for directed verdict or peremptory instruction, courts must assume that all evidence for the State is true and that all reasonable inferences that may be drawn from the evidence are true and, if from all the testimony there is enough in the record to support a verdict, the motion should be overruled. Warn v. State, 349 So.2d 1055 (Miss.1977); Rich v. State, 322 So.2d 468 (Miss.1975); Roberson v. State, 257 So.2d 505 (Miss.1972).

We are of the opinion that the evidence in the case sub judice presented a guilt issue for the jury and that the lower court correctly overruled the motion for directed verdict.

II.

THE LOWER COURT ERRED IN DECLINING TO SUSTAIN APPELLANT’S MOTION FOR NEW TRIAL BASED ON THE MISCONDUCT OF A JUROR.

The jury panel was presented form cards upon which were enumerated certain background questions. The card of juror Mrs. Dell Alfonso is not a part of the record, and we are unable to discern exactly what the form of the questions were and the specific answers given. However, it was stipulated by the attorneys that she gave incorrect information on the card. One of the questions appearing there was whether the juror had ever been an accused, complainant or witness in a criminal case, and this juror answered in the negative. It later was developed that she had been arrested for DUI and carrying a concealed weapon. She appealed the concealed weapon charge to the county court, where she entered a plea of guilty, was fined $261.00 and placed on six-months probation, after which the charges were to be dismissed. The weapon was ordered returned to her.

Appellant contends that had he known the above information, he would have challenged the juror and that he still had some peremptory challenges left. On the other hand, the State argues that, if there was any prejudice resulting from the juror, it would be to the State, on account of the prosecution of the juror on the mentioned charges. In Dorrough v. State, 437 So.2d 35, 36 (Miss.1983):

For resolution of this question, our decision in Odom v. State, 355 So.2d 1381 (Miss.1978) presents our guideline. Where a prospective juror in a criminal case fails to respond to a question by-defense counsel on voir dire, the Court should determine whether the question was (1) relevant to the voir dire examination, (2) whether it was unambiguous, and (3) whether the juror had substantial knowledge of the information sought to be elicited. If all answers to the above questions are affirmative, then the court determines if prejudice to the defendant in selecting the jury could be inferred from juror’s failure to respond. This test has been applied in Laney v. State, 421 So.2d 1216 (Miss.1982); Atkinson v. State, 371 So.2d 869 (Miss.1979); Dase v. State, 356 So.2d 1179 (Miss.1978); Brooks v. State, 360 So.2d 704 (Miss. 1978).

The lower court determined that no prejudice resulted to the appellant. We have carefully examined the voir dire of the lower court in qualifying the jurors and we are satisfied that the juror was properly qualified and that the lower court committed no reversible error in declining to grant a new trial on this ground.

III.

THE LOWER COURT ERRED IN ADMITTING HEARSAY TESTIMONY FROM PROSECUTING WITNESSES CONCERNING DETAILS OF THE ALLEGED RAPE.

The objectionable testimony of Sandy Crowell follows:

Q. Okay. Describe in your own words, how you came in contact with [T.L.S.]?
A. Well, I had car trouble that day and I was pretty well ticked off, and I was going down to the phone, the public phone that they had near the office of the trailer park, and I was walking down the road, and this little girl came up just in hysteria, screaming, and she was saying something about her step-father, and she was saying rape and I thought she was saying wreck, and she asked me where can I find a phone, and I took her to the two public phones there, and she asked me to dial a number for her which was the number for Dixie.
BY MS. CALDWELL: Your Honor, I’m going to object to this hearsay.
BY THE COURT: Overruled.
Q. Go ahead.
A. She asked me to dial a number which belonged to someone named Dixie, and there was no answer. She gave me another number for a couple by the name of Seymour. There was an answer, and she told them she had been raped by her step-father, and she gave them my address to come and pick her up.
BY MR. SMITH: Your Honor, respectfully, what we have here is a woman telling us what somebody told her.
BY THE COURT: There is an exception to the rule. Overruled.

Numerous decisions in this state provide that evidence of the prosecutrix’s complaint must be confined to the bare fact that a complaint was made and details or particulars of the complaint are not admissible as substantive testimony to bolster the testimony of the prosecutrix against the accused. Carr v. State, 208 So.2d 886 (Miss. 1968). The rule has been modified in order to permit the prosecutrix to identify the time and place with that of the one charged.

In the case sub judice, 16-year-old T.L.S. had been through a harrowing experience. When appellant dropped off to sleep, she left the motel room seeking aid and when she saw Sandy Crowell, at that time being in a state of hysteria, she incoherently attempted to tell Ms. Crowell what had occurred. Only when T.L.S. told her friend over the telephone that her stepfather had raped her did Ms. Crowell understand what had occurred. We think it is not necessary to determine whether or not the T.L.S. statement was a part of the res gestae. T.L.S. testified prior to Sandy Crowell and told all the details of the sordid affair. After such testimony, she described her meeting with Sandy Crowell as follows:

Q. What did you do then?
A. I ran, there was a trailer park next to it, San Beach Trailer Park, and there was a girl walking down the street, and I ran up to her and I asked her to help me.
Q. Did you know her?
A. No, ma’am. She asked me what was wrong, and I told her. She took me to the phone booth, and asked me if there was a number I could call, that she’d call for me. I gave her Dixie and Junior’s phone number, but they wasn’t home. Then she called Jeff and Charlotte, and Jeff answered ther phone. She let me talk, and I told him what happened, and he said he was on his way. She took me to her trailer to stay there until she called her lawyer to see what she was supposed to do.

As noted above, T.L.S. said “I told him what happened.” This relates back to everything about which she had testified just previously. That testimony was competent and was not objected to.

In Boyd v. State, 239 Miss. 589, 123 So.2d 857 (1960), a similar question was presented to the Court. The Court said:

The appellant next assigns as error the action of the trial court in overruling appellant’s objection made to the testimony of the witness Lambert as to an accusatory statement made by prosecutrix shortly after the alleged crime was committed. We have carefully considered this assignment in the light of the entire record and we are all of the opinion that this was not error. Moreover, if it was error, we are confident that it did not prejudice the appellant.

239 Miss. at 591, 123 So.2d at 857.

Likewise, we have carefully considered this assignment in light of the entire record, and we are of the opinion that, if the testimony was error, it did not prejudice the appellant and was harmless.

The judgment of the lower court is affirmed.

AFFIRMED.

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

      . T.L.S. denied she made the statement.


author: SUGG, Retired Justice,

text:
    CONTRACTOR’S LUMBER & SUPPLY COMPANY v. CHAMPION INTERNATIONAL CORPORATION.
    No. 55318.
    Supreme Court of Mississippi.
    Feb. 13, 1985.

      Edley H. Jones, III, Ward, Martin, Terry, King & Sorey, Vicksburg, for appellant.
    Michael S. Allred, Thomas L. Kirkland, Jr., Edwin Y. Hannan, Satterfield & Allred, Jackson, for appellee.
    Before PATTERSON, C.J., PRATHER and SULLIVAN, JJ., and SUGG, Retired Justice.
   SUGG, Retired Justice,

for the Court.

Jimmy A. Lee filed an action in the Circuit Court of Warren County against Contractor’s Lumber and Supply Co. (Contractor) and Champion International Corporation (Champion) for breach of warranty involving plywood panels purchased by Lee from Contractor which had been manufactured by Champion and purchased from Champion by Contractor. Contractor filed an answer admitting the breach of warranty, and with its answer, filed a cross-claim against Champion to recover by way of indemnity any amount it, Contractor, might be “judicially determined liable for” together with reasonable attorney’s fees and costs in defending Lee’s action. Contractor did not tender the defense of Lee’s action to Champion, its seller. Champion answered the original action and the cross-claim and set up several affirmative defenses. Champion settled with Lee and before trial, Lee dismissed his action with prejudice. The trial court sustained Champion’s motion to dismiss Contractor’s cross claim and Contractor appealed.

The sole question on appeal is whether Contractor (buyer and indemnitee) is entitled to recover attorney’s fees from Champion (seller and indemnitor) under the provisions of our Uniform Commercial Code [MCA § 75-2-607(5)(a) (1972)] when Contractor did not tender the defense of Lee’s action to Champion. We hold Contractor was not entitled to recover attorney’s fees because it did not tender defense of Lee’s action to Champion and affirm.

We now set forth in more detail the proceedings in the trial court. Lee alleged he purchased 190 panels of plywood siding from Contractor which had been manufactured by Champion, and after he had installed the plywood on a church building, the panels began to delaminate, even though Lee followed the installation and finishing instructions of Champion, the manufacturer.

Lee alleged that both Contractor and Champion had breached an express warranty that the plywood was of a certain grade, and met certain industry standards. Lee further alleged that defendants had also breached an implied warranty of merchantability on the basis that the siding would not pass without objection in the trade under the standards of the industry; that the plywood was not fit for the ordinary purposes of which such goods are used; that defendants failed to cure the non-conformities and defects of the plywood after notice to them; and that he had been forced to replace the plywood panels, and other materials necessary to install and preserve the plywood on the church building. Lee sought recovery of $22,613.13 for actual damages, and $50,000 punitive damages, costs and attorney’s fees.

Contractor answered admitting the breach of warranty charge and admitted liability to Lee. Contractor filed a cross-claim against Champion and alleged it purchased the plywood from Champion and Champion had breached the express warranty and implied warranty as alleged by Lee. Contractor sued for any amount it might be “judicially determined liable for” including “reasonable attorney’s fees for the defense of the case and costs. Contractor’s cross-claim was an action for indemnity-

Champion filed its answer to Lee’s complaint and the cross-claim of Contractor, denied it had breached any express or implied warranties, and asserted several affirmative defenses to the complaint and cross-claim. Some of the affirmative defenses, if established by evidence, would have defeated Lee’s right to recovery from either Contractor or Champion.

On the day set for trial, Champion informed the court that it had reached a settlement with Lee for $11,000, based upon a denial of liability and Lee had agreed to dismiss his suit with prejudice. The proposed settlement was contingent upon dismissal of Contractor’s cross-claim against Champion. Champion moved to dismiss Contractor’s cross-claim on the basis that it failed to state a claim upon which relief could be granted, that the claim was moot due to the settlement agreement, and that Contractor had never tendered its defense to Champion as required by statute. [§ 75-2-607(5)(a), MCA (1972) ]

The court entered in a final order dismissing Contractor's cross-claim and also a final order on motion of Lee and Champion dismissing Lee’s action with prejudice.

Under the common law, a defendant had the right to “vouch-in” a person liable over to him by notifying such person of the pendency of the suit and requesting him to assume defense of the suit. [See Comment, 29 Ark.L.Rev. 486 (1976)]. In 1966 our legislature adopted the Uniform Commercial Code and codified this common law practice as it relates to the law of sales concerning “middle-men.” MCA § 75-2-607(5)(a) (1972).

(5). Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over.
(a) he may give his seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do so he will be bound in any action against him by his buyer by any determination of fact common to the two (2) litigations, then unless the seller after seasonable receipt of the notice does come in and defend he is so bound.

The statute permits a buyer, who is sued for breach of warranty or other obligation for which his seller is answerable over, to bind the seller in the action against the buyer if the buyer gives the seller written notice of the litigation and the notice tenders defense of the litigation to the seller. Of course, if the seller is a defendant in the litigation, the buyer is not required to give written notice of the litigation, but in order to bind the seller, must tender defense of the litigation to the seller in writing. This permits a seller to protect his rights by interposing any defense available to the action. It naturally follows that if the seller protects his rights, he likewise protects the rights of the buyer. Of course, the seller, after written notice of tender of defense, may decline to defend, but if the seller declines to defend he will be bound by the determination of any fact common to the two litigations; namely, (1) the action against the buyer by a third party, and (2) the buyer’s action against the seller for indemnification.

We find no Mississippi cases construing this section of the Uniform Commercial Code dealing with the practice commonly referred to as “vouching-in”. However, other states in construing this provision of the Uniform Commercial Code have held that, in order for the buyer (sometimes referred to as retailer or indemnitee) to hold his seller liable in a breach of warranty case for goods purchased from the seller, the buyer must give notice to the seller that the buyer tenders the defense of the action to the seller.

For example in Litton Systems, Inc. v. Shaw Sales and Services, Ltd., 119 Ariz. 10, 579 P.2d 48 (1978), the Court held that the notice must contain an unequivocal, certain, and explicit demand to undertake the defense of the action, with an offer to surrender control of the defense to the indemnitor at least as to that portion of the claim for which the indemnitee seeks ultimately to hold the indemnitor liable.

In Uniroyal, Inc. v. Chambers Gasket & Mfg. Co., 177 Ind.App. 508, 380 N.E.2d 571 (1978), Chambers was sued for breach of warranty for gaskets it had sold. Chambers filed a cross-claim against Uniroyal, the cross-claim was severed, and the court in enumerating the elements necessary for Chambers (the retailer) to establish in order to recover from Uniroyal held, among other things, the burden was on Chambers to establish that it properly vouched-in Uniroyal to assume their defense and that Uniroyal declined to assume the defense.

We hold that, as a condition precedent to recovery of attorney’s fees in this case, it was necessary for Contractor (the buyer and indemnitee) to tender the defense of Lee’s action to Champion (seller and indem-nitor). Not only did Contractor fail to tender the defense of Lee’s action, but actively engaged in the prosecution of Champion, its seller, seeking recovery on precisely the same grounds set out in the original complaint of Lee. If Contractor had tendered the defense of Lee’s action to Champion, Contractor would not have incurred attorney’s fees and expenses in defending the claim. Champion settled the case, thereby relieving Contractor of any liability to Lee. Under the facts of this ease we hold that Contractor is not entitled to recover attorney’s fees, because it did not tender the defense to Champion as required by statute. [MCA § 75-2-607(5)(a) ].

We therefore affirm the action of the circuit judge in dismissing Contractor’s cross-claim against Champion.

ON MOTION TO STRIKE PART OF CHAMPION’S BRIEF

Contractor filed in this Court a motion to strike a portion of Champion’s (appellee’s) brief because Champion had not filed a cross appeal as provided for in Mississippi Supreme Court Rule 6.

Champion did file a cross appeal, but argued in its reply brief matters shown in the record which would sustain the action of the trial court. It is elementary that an appellee may argue in its reply brief any matter in the record which would sustain the trial court’s judgment without the necessity of a cross appeal.

AFFIRMED AND MOTION TO STRIKE OVERRULED.

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

      . Sitting pursuant to MCA § 9-3-6 (Supp.1982), this opinion adopted as the opinion of the Court.

      . The original complaint was for $20,688.12 in actual damages, but Lee amended his complaint seeking the larger amount.


author: SULLIVAN, Justice,

text:
    Cheryl A. HESTER v. STATE of Mississippi.
    No. 54574.
    Supreme Court of Mississippi.
    Feb. 13, 1985.

      Samuel H. Wilkins, James 0. Nelson, II, Wilkins, Ellington & James, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.
   SULLIVAN, Justice,

for the Court:

I.

A Rankin County jury convicted Cheryl A. Hester of the capital murder of Harley Winn, who was found stabbed to death in the woods near a trailer park in Pearl, Mississippi. The jury sentenced Hester to life imprisonment. Of the several points she raises on appeal, we address only the issue of the validity of the search warrant and whether the evidence presented by the state was legally sufficient to support a verdict of guilty. The investigation leading to Hester’s arrest will first be reviewed to give an overview; then the evidence and testimony adduced at trial will be examined at length.

About 6:45 p.m., on June 4, 1982, members of the Pearl police department were called to investigate a dead body found in the woods in an unused part of a trailer park off Highway 80 in Pearl. The victim, an elderly man, was identified from cards in his wallet as Harley Winn. He died of multiple stab wounds to the neck and torso. The time of death was fixed at between 4:00 p.m. and 6:00 p.m. Winn’s wallet contained no money and his pants pockets had been turned inside out with change scattered about the body. A trail of blood stretched between the road and the body and the leaves along this trail had been disturbed.

Investigation of Winn’s recent whereabouts led police to Ernie’s bar on West Capitol Street, Jackson. A waitress recalled seeing Winn in the company of a woman who had recently given blood. At the Alpha Plasma Center police were given the defendant’s name based on the description by the waitress at Ernie’s. Another waitress, Linda Pigg, told police she had seen Winn leave the bar with a woman about 4:00 p.m. the day of the murder. Ms. Pigg saw the same woman return alone to the bar about 6:00 p.m. in a disheveled condition and in a hurry to get her friends to leave with her.

Police obtained a warrant on July 7, 1982, to search the mobile home occupied by Hester and her boy friend, Lavon Murray, for a knife or similar weapon thought to be the murder weapon. Hester was arrested and a long blade folding knife was seized from the basket in the living room. A crime lab analysis of the knife showed only traces of blood, too minute to even type as human. A second search warrant was issued on July 11, 1982, to seize a five-gallon pail of water near the knife, but no trace of blood could be located in the water.

II.

Hester challenges the admissibility of the knife on the basis that the justice court judge was not presented with sufficient facts to support a finding of probable cause to issue the search warrant. Justice Court Judge Blaine was given a sworn affidavit by investigating officer Manning and Mississippi Highway Patrol investigator Virgil Luke, which reads:

Harley M. Winn, white, male age 61 was found murdered at Hillard Trailer Park in the City of Pearl, Rankin County. The cause of death was established as multiple stab wounds. The body was found June 4, 1982 at 6:45 PM.
On June 4, 1982 a Vonda Odom, employed at Ernie’s Bar on Capitol Street in Jackson, Ms. did witness Harley M. Winn leaving the bar with a white female, later known to be Cheryl A. Hester at about 4:00 P.M.
The reason Ms. Odom knew that it was 4:00 PM when the subjects left the bar, was because she gets off work at 4:00 P.M. When the subject Cheryl A. Hester returned to the bar at approximately 6:00 Pm. Linda Smith noticed that Cheryl A. Hester came in alone. Also the manager, Bob Wilson of Ernie’s Bar, alos (sic) witnessed Cheryl returning at 6 PM. Mr. Winn and Ms. Hester had left the bar in a car being driven by Ms. Hester. The Coroner, MJimmy Roberts (sic) and Dr. Galvez of University Medical Center affixed the time of death as between 4 and 6:00 P.M.

Investigators Manning and Luke also gave sworn oral testimony of the results of Manning’s investigation. Manning was the only officer with direct knowledge of the witnesses’ testimony. Luke related under oath the facts that Manning had developed and let Manning fill in the details. The written affidavit was only a summary of what the officers told Judge Blaine.

Manning said that the waitress Pigg saw Hester return alone to Ernie’s about 6:00 p.m., looking as if she had been in a scuffle with her hair sticking up and with leaves and grass in her hair. Pigg told Manning that Hester told her friends, “Let’s go, we’ve got to get out of here.” Manning told the judge that Winn had been seen earlier flashing a wad of money around in Ernie’s. Manning said that, earlier, waitress Odom saw Winn apply ice to Hester’s arm to stop bleeding where she had given blood at a blood bank. Manning told the judge that Winn had been found with both front pockets pulled out, where he usually carried his money.

Investigator Luke added that Hester and Murray had befriended Winn to the point where Winn was spending his money on them. When this reached an extreme, Winn dropped them and avoided them for two weeks. The day before the murder, the three began to associate together again.

Hester focuses upon three discrepancies which developed at the suppression hearing to conclude that probable cause was not shown. First, Manning admitted that none of his witnesses saw Winn drive away from Ernie’s in Hester’s car, contrary to the affidavit. Second, Luke said that the judge was shown a photograph of Winn missing one shoe and sock, when in fact the photograph shows both Winn’s shoes and socks were on. Third, while Manning and Luke positively recalled telling Judge Blaine that Hester returned looking like she had been in a fight and had leaves in her hair, Judge Blaine could only recall being told she was “ruffled up a little”.

The written affidavit, standing alone, did not, in the trial judge’s, or our own, opinion establish probable cause to issue the search warrant. Hester concedes, as she must, that affidavits insufficient on their face, may be supplemented by sworn oral testimony to show sufficient facts to establish probable cause. Wilborn v. State, 394 So.2d 1355, 1357 (Miss. 1981); Read v. State, 430 So.2d 832, 834-35 (Miss.1983); Lee v. State, 435 So.2d 674, 677 (Miss.1983). Hester contends that Judge Blaine relied upon the disproven facts about Hester’s car and Winn’s shoe and the embellishment by the officers as to Hester’s condition when she returned to issue the search warrant.

Probable cause for the issuance of a search warrant exists when the facts and circumstances in a given situation are sufficient to warrant a man of reasonable caution to believe that seizable objects are located at the place to be searched. Lee v. State, 435 So.2d 674, 676 (Miss.1983). The information regarding Winn’s death was either directly observed or relayed by the coroner’s office to officer Manning. The evidence that Hester had left Ernie’s with Winn and returned alone in a disheveled and upset condition was from personal observations of the waitresses at Ernie’s, who were interviewed by Manning. The trial judge was persuaded that probable cause to search Hester’s trailer was shown from the fact that Winn died in a wooded area surrounded by leaves, in the interval between his departure with Hester from Ernie’s and her return to the bar alone because she appeared to have been in a fight and had leaves or grass in her hair, and she urged her friends to leave immediately.

Although this case involves named witnesses, not confidential informants, we deem it significant to recall the analysis in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoted in Lee v. State, 435 So.2d at 676:

[T]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding” that probable cause existed....

We point out that the waitresses’ statements were based upon personal observations which were verified in part by the police investigation. Officer Manning learned from the Alpha Plasma Center that Hester had given blood on the afternoon of the murder, as Ms. Odom recalled. While no direct corroboration was shown to support Ms. Pigg’s personal observation about Hester’s condition on her return to Ernie’s, the trial judge was not faced with an unnamed informant but a specific witness. We conclude that the fact that the trial judge was told that Hester returned to Ernie’s in an upset condition, looking like she had been in a fight with some ground matter in her hair, forms a substantial basis for the issuance of a search warrant since it would warrant a man of reasonable caution in believing she was connected with the death of her recent companion found lying in some scuffled-up leaves, and that a murder weapon would be found in her dwelling.

Although, as Hester points out, no witnesses saw Hester and Winn leave Ernie’s in a ear, the waitresses saw them leave the bar together. The discrepancy about Winn’s shoe is not material to the probable cause determination because it in no way increased or decreased the likelihood that Hester was involved in Winn’s death. Finally, the variance between the officer’s testimony and Judge Blaine’s recollection of what he was told about Hester’s appearance on return to Ernie’s was noticeable, but Judge Blaine himself remembered being told that she came in hurriedly in a frustrated or upset condition, was probably ruffled up, and was anxious to leave.

In conclusion, we find that, from the oral testimony supplementing the affidavit, even admitting the discrepancies asserted by Hester, Judge Blaine was presented with sufficient reliable facts to support a determination of probable cause for the issuance of the search warrant.

In Powe v. State, 235 So.2d 920 (Miss. 1970), we said that probable cause exists when the

... available evidence makes it reasonable to infer that the particular person not necessarily was, but may have been, one of the offenders, ....
It is clear therefore, that “probable cause” means less than the evidence which would justify condemnation (Carroll v. United States, supra [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)]), but more than bare suspicion. Locke v. United States, 11 U.S. (7 Cranch) 339 (1813), 3 L.Ed. 364.

Id. at 922-23. Keeping in mind that the quantum of proof to establish probable cause is less than that required to prove guilt beyond a reasonable doubt, see Lanier v. State, 450 So.2d 69, 73 (Miss.1984); Rome v. State, 348 So.2d 1026, 1027 (Miss. 1977); Evans v. State, 275 So.2d 83, 85 (Miss.1973); and Powe v. State, 235 So.2d 920, 922-23 (Miss.1970), we turn to the question of whether the evidence was sufficient to prove beyond a reasonable doubt that Hester was guilty of the murder of Winn.

III.

Hester’s conviction rests upon wholly circumstantial evidence. She contends that the state failed to meet its burden of proving, not only beyond a reasonable doubt but also to the exclusion of every other reasonable hypothesis consistent with innocence, that she stabbed Winn to death and robbed him of his money. In Sanders v. State, 286 So.2d 825 (Miss.1973), we cautioned that

Each case must be determined from the circumstances shown in the testimony, and of course the facts must consistently point to but one conclusion, that is to say guilt.

Id. at 828. We concluded in Sanders that the state’s circumstantial proof was legally insufficient to convict where (1) no one saw the defendant take the victim to the apartment that was the scene of the crime; (2) no one saw the defendant at or near the scene of the crime; (3) no one testified that the defendant closed the door of the apartment in which the infant victim starved to death; (4) no one testified that the defendant had any knowledge that the infant was in the apartment; and (5) the defendant made no confession or admission that he participated in any activity even remotely related to the child’s starvation in the apartment. Id. at 827.

As always, when reviewing a jury verdict of guilty we are required to accept as true all the evidence favorable to the state, together with reasonable inferences arising therefrom, to disregard the evidence favorable to the defendant, and if such will support a verdict of guilty beyond reasonable doubt (and, in this case, to the exclusion of every reasonable hypothesis consistent with innocence), then the jury verdict shall not be disturbed. Carroll v. State, 396 So.2d 1033, 1035 (Miss.1981).

Accepting as true the evidence favorable to the state, together with reasonable inferences, what was this jury shown by the state to prove that Hester stabbed Winn to death?

Ernie’s waitress, Linda Pigg, stated that she saw Winn in the bar shortly before 4:00 p.m. and that a woman approached Winn and started talking and “loving on him”. Ms. Pigg saw them leave about 4:00 p.m. About two hours later, Ms. Pigg saw the same woman return alone. She said this woman “was a mess ... Her clothes were all dirty, her hair had dirt in it, her face was dirty.” The woman urged her friends to leave with her because she had gotten a room. When Ms. Pigg was asked to identify the woman, she at first identified the defendant, then said that the defendant did not look the same as the person she had seen leaving with Winn.

William Wilson, owner of an adjacent antique shop, saw Winn leave with Hester about 4:00 p.m. on the day in question, but he was not present in the bar at 6:00 p.m. He positively identified Hester at trial. Donald Coffin testified that Hester drove up to Ernie’s about 6:00 p.m. and asked him to go inside and get her friends, but he refused. Coffin said she was very nervous at the time, and her appearance at trial was different from the day in question. Coffin admitted to drinking before his testimony and on the day in question. The trial court held him in contempt of court for public drunkenness.

To establish motive, the state showed through Mr. Wilson’s testimony that Winn had a large roll of money in Ernie’s a couple of days before he was killed. Winn tried to change a $100 bill. Wilson said that Winn kept his folding money in his front pocket, not his wallet. Lillian Sutherland, manager of the Noble Hotel where Winn stayed most of the time, recalled that he had cash money within two weeks prior to his death. Sharon Miller, director of Alpha Plasma Center, testified that Hester had sold her blood eleven times in the three months prior to Winn’s death, including the day of the murder.

The state also introduced a long folding knife seized from the trailer Hester occupied with Murray. There was a minute trace of blood on the blade, too small even to type as human. No fingerprints of Hester’s were found on the knife. A 5-gallon bucket of water which contained no trace of blood was standing near where the knife was found. Dr. Galvez, a pathologist and psychiatrist, stated that the wounds on Winn’s body were consistent with the type of knife seized at Hester's trailer. The depth of the wounds indicated that the assailant was either a weak or drunken man or a woman. In Dr. Galvez’ experience, the multiple stabbing inflicted on Winn was typically committed more often by whites than other ethnic groups.

Officer Manning testified that apart from the knife and some keys found outside the trailer, which were clean, the dwelling was filthy. Also a Terry policeman saw Hester and Murray drive into town on the day of her arrest and leaf all the way through a newspaper at a newsstand, then drive away.

Taking together the testimony of the three witnesses from Ernie’s with the police investigation and coroner’s report, the state proved that Winn was stabbed to death in a distant wooded area with scuffled-up leaves in the interval between his departure with Hester from Ernie’s and her return alone in an upset and dirty condition. The state proved that while Hester sold her blood to get money, Winn had been seen two days before his death in Ernie’s with a large wad of money, including a $100 bill. Finally, the state proved that the trailer which Hester shared with her friend Murray was filthy but the knife seized from the trailer was clean, except for small traces of an unknown kind of blood.

Hester argues that even if she was seen leaving Ernie’s with Winn and returning alone in the manner described, the state failed to offer a scintilla of evidence that she and Winn stayed together after they left Ernie’s. She contends that nothing in the state’s case made it any more probable that she put Winn in a car, drove him to a trailer park, and stabbed him to death than that she parted ways with Winn outside the bar and returned two hours later, disheveled from some unrelated incident. She emphasizes that no witnesses saw Winn and her get into a car outside of Ernie’s, although Coffin saw her drive up in a car at 6:00 p.m. She points out that no witness was offered to show that she and Winn were seen en route to or at the trailer park. Further, nothing at the scene of the crime —fingerprints, footprints, tiretracks, or other tangible evidence — tended to prove that Hester had ever been there. Noticeably absent from Ms. Pigg’s testimony at trial was officer Manning’s pre-trial assertion that Pigg had seen Hester return to Ernie’s with leaves or grass in her hair.

Hester also contends that even if it was true that Winn had a roll of money two days prior to his death, the state completely failed to prove that he had the money on the day he died, or that Hester knew anything about Winn’s money. No witness testified at trial, contrary to investigator Luke’s pre-trial assertion, that Hester and Murray had been living off Winn’s money prior to the murder. She also emphasizes that the police found no money or other property of Winn’s when she was arrested three days later and the trailer was searched.

Finally, Hester points out the absence of forensic data connecting the knife with Winn’s death. She asserts that the traces of blood could not even be typed, as human, much less as Winn’s blood. No other indications of blood were on any of Hester’s clothes or in the automobile at her trailer. She contends the state failed to prove that the knife belonged to her or that she had used it, pointing out that the knife was found in a common area of the trailer that she shared with Murray. Dr. Galvez’ opinions, she asserts, do no more than narrow the likely class of attackers to either weak or drunken men, or women; his testimony does not, according to Hester, identify any particular characteristic of hers other than her gender.

Hester relies upon Sanders v. State, supra, for her position that the circumstantial proof was legally insufficient to convict. In Sanders, a 16-year-old mother and her baby were found dead in the defendant’s Vicksburg apartment. The death of the mother occurred no earlier than a date on which no one had seen the defendant in the Vicksburg area for at least seven days. As noted earlier, the state showed in Sanders that the defendant’s apartment was the scene of the crime, but did not prove the defendant was present at the time the mother and child died. We concluded that the proof failed to establish Sanders’ guilt beyond a reasonable doubt, much less to the exclusion of every other reasonable hypothesis consistent with innocence, and discharged the defendant. 286 So.2d at 828.

While keeping in mind that each circumstantial evidence case turns on its own facts, and that it is peculiarly within the jury’s province to draw reasonable inferences based upon its own experience and common sense, we have previously rejected the concept of guilt by association. Matula v. State, 220 So.2d 833, 836 (Miss.1969). We said in Matula with regard to the guidelines jurors must follow in drawing inferences from the facts:

Facts not directly proved but which jurors legitimately may infer from other facts which have been proved, are limited to such as naturally follow as being logically connected or related, and which reasonably derive from such established facts.

Id. at 836. In Matula, we discharged a man accused of aiding and abetting a felon because the jury was not permitted to infer, in the absence of all proof, that the felon had confided his guilt to the accused or that he learned it from some other source during their association together.

While we have already held that the fact that Winn died in the interval between his departure from Ernie’s with Hester and her return in an upset and disheveled condition formed a substantial basis for issuing a search warrant, because a man of reasonable caution would be warranted in believing that she may have been involved in the crime, a guilty verdict based upon circumstantial evidence must be supported by a much higher degree of proof. As Justice Griffith said in Westbrook v. State, 202 Miss. 426, 432-33, 32 So.2d 251, 252 (1947):

It is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to the height which will exclude every reasonable doubt; that when in any essential respect the state relies on circumstantial evidence, it must be such as to exclude every other reasonable hypothesis than that the contention of the state is true, and that throughout the burden of proof is on the state. It is our duty here to maintain these principles.

See also, Boyd v. State, 204 So.2d 165 (Miss.1967); Moore v. State, 188 Miss. 546, 195 So. 695 (1940); Hogan v. State, 127 Miss. 407, 90 So. 99 (1921).

In the case sub judice the verdict must ultimately rest upon the hypothesis that after Hester and Winn left Ernie’s, they got in an automobile, drove to the Pearl trailer park, and there engaged in a struggle in which Hester stabbed Winn to death and robbed him. The state urges that this chain of events may be legitimately inferred from the testimony that Hester later drove up to Ernie's and entered in an agitated and dirty condition, and from the long clean folding knife found in the dirty trailer occupied by Hester and Murray.

While the circumstances in this case support the state’s hypothesis, they do not actually exclude the reasonable hypothesis asserted by Hester that, outside Ernie’s, Hester and Winn parted ways, that Winn met his death at the hands of a third party, and that Hester’s condition upon return to Ernie’s was due to an unrelated incident. Long ago, in Algheri v. State, 25 Miss. 584 (1853), we stated:

It is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such existence cannot amount to proof, however great the probability may be.

Id. at 589. Such is the situation in the case at bar. The web of circumstances established by the state does not exclude the reasonable hypothesis that a third party, not Hester, was Winn’s assailant. The state’s evidence connecting Hester to the murder weapon was likewise fatally weak, since the state neither showed a connection between the traces of blood on the knife and Winn’s body, nor that the knife belonged to or was used by Hester. Finally, the state failed to prove beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence that Hester robbed Winn. While we are reluctant to set aside a jury verdict of guilty, we are bound by the law to hold the state to the above described level of proof to overcome the presumption of innocence that is the hallmark of our system of criminal justice. Taken in its strongest light, the state’s testimony presents no more than a probability that Hester had something to do with the murder of Winn. Probability is not proof beyond every reasonable doubt, as is required in a circumstantial evidence case. We are, therefore, required to reverse Hester’s conviction and order that she be discharged.

REVERSED AND APPELLANT DISCHARGED.

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


author: ROBERTSON, Justice,

text:
    Gary P. DUNGAN and Judy Dungan v. DICK MOORE, INC.
    No. 54557.
    Supreme Court of Mississippi.
    Feb. 13, 1985.

      Ben Barrett Smith, D. Ronald Musgrove, Batesville, for appellants.
    R.M.P. Short, Sardis, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This brouhaha arises out of a secured transaction under which the seller has repossessed and sold a mobile home said, ineffectually, by the buyer to have 52 identifiable defects. The proceedings move from the unusual to the bizarre as at practically every step — service of replevin process, the purported redemption of the mobile home, the proceeding under what was formerly known as a writ of inquiry — errors were committed (although in fairness to the trial judge it readily appears that in these somewhat intricate areas of the law he received little or no help from counsel). In the end, having regard only for the points properly preserved for appeal and the assignments of error presented, the judgment below which is to the effect that the buyers are entitled to no damages as a result of the alleged wrongful repossession of their mobile home must be affirmed.

II.

On August 7, 1981, Gary P. Dungan and Judy Dungan, husband and wife, (sometimes hereinafter “Dungans”), purchased from Dick Moore, Inc., a corporation having its principal place of business in Memphis, Tennessee, (sometimes hereinafter “Moore”), one Del Rio mobile home. The Dungans were Defendants below and are Appellants here. Dick Moore, Inc. was the original Plaintiff below and is the Appellee here.

The Dungans made a downpayment of $5,860.00. The balance of the purchase price was financed via a mobile home retail installment contract éxecuted between Moore and the Dungans and providing for the payment of the unpaid balance of $14,-089.76 in 95 monthly installments of $288.72 each. The contract provided that Moore held a security interest in the mobile home to secure performance by the Dun-gans of their obligations under the retail installment contract.

Shortly thereafter, the Dungans took delivery of the mobile home and occupied it as their place of residence near Enid in rural Yalobusha County, Mississippi. After the Dungans had made only one of the installment payments called for by the contract, a dispute arose between the parties regarding the condition of the mobile home. The Dungans stopped making their monthly payments and claimed that there were at least 52 identifiable defects in the mobile home for the repair of which Moore was responsible. Moore denied this but nevertheless attempted to make repairs. As a result neither party has been satisfied, and, indeed, they have gravitated to the point where a barely civil state of warfare exists.

By February of 1982, the Dungans were six months in arrears in their payments. Invoking rights secured to it by law and by its agreement with the Dungans, Moore took steps to enforce its security interest. On February 17, 1982, Moore commenced this civil action by filing its complaint for replevin in the Circuit Court of Yalobusha County, Mississippi. The record reflects that prior to this time the Dungans had moved out of the trailer and were living in rental housing in Memphis.

On March 1, 1982, the Circuit Court entered a default judgment in favor of Moore and against the Dungans in the replevin action. Shortly thereafter, Moore physically obtained possession of the mobile home and moved it to Memphis. On March 30, 1982, Moore sent a registered letter to the Dungans advising them of the amount owed and indicating that liquidation was imminent. Immediately thereafter, the Dungans filed a motion to set aside the default judgment. They did not, however, seek to enjoin or restrain the sale. Despite actual knowledge that the default judgment in replevin was being contested, Moore sold the mobile home on April 9, 1982, for the sum of $11,200.00.

Some two months later the motion to set aside the default judgment was heard. At the hearing it developed that the process upon which the judgment had been predicated was defective. On May 31, 1982, the Circuit Court entered its order vacating the default judgment the effect of which was to reinstate Moore’s original complaint for replevin. That matter was then set for hearing on its merits on June 3, 1982.

Prior to the June 3 hearing, the Dun-gans, purporting to act under the authority of Miss.Code Ann. § 89-1-59 (Supp.1984), tendered to Moore all amounts due and owing as of that date under the retail installment contract. The Circuit Court regarded this tender as having redeemed the mobile home and, on June 14, 1982, entered an order dismissing Moore’s complaint for replevin and further provided, in pertinent part:

10. That the Plaintiff [Dick Moore, Inc.] shall return, within five (5) days of this date, unto Defendants the 1981 Del Rio 80” OVA 76” FLR x 14, 3T2 Twimscs 11354 Mobile Home which was taken from Defendants by Plaintiff on or about 8 March 1982.
11. That in the alternative, if Plaintiff fails to return Defendant’s [the Dun-gans] 981 Del Rio 80’ OVA 76” FLR x 14 3T2 Twimscs 11354 Mobile Home, the Court order Plaintiff to pay unto Defendants the reasonable value of said Mobile Home.

The June 14, 1982 order further provided that a hearing would be held via a writ of inquiry to determine what damages may have accrued to the Dungans.

The mobile home which was the subject of the contract was, as indicated above, a 1981 Del Rio mobile home. The testimony was undisputed that when repossessed it was in a damaged condition although who was responsible for the damage was hotly disputed. In any event, within five (5) days of the June 14, 1982 order, Moore tendered to the Dungans a new 1982 Del Rio mobile home of the same size, shape, design and floor plan, and comparably furnished and equipped. It is undisputed that the 1982 mobile home tendered was in better condition and was of greater value than the 1981 home. This tender was refused by the Dungans.

The hearing on the matter of the Dungans’ damages was held in the Circuit

Court of Yalobusha County, Mississippi, on August 18,1982. At that hearing the Dun-gans established that between February and June of 1982 they had been living in Memphis and had been paying a monthly rental of $270.00. They had also incurred a charge for the storage of furniture in the amount of $26.00 a month. The Dungans offered no testimony that they had moved out of the home because it was uninhabitable or because of Moore’s alleged failure to make requested repairs.

Following the hearing the Circuit Court entered its order finding as follows:

The Defendants had moved out of the trailer prior to the replevin action and were living in Memphis, Tennessee.

Plaintiff, Dick Moore, Inc., offered to replace the mobile home that was replev-ined and sold with a new 1982 model mobile home, within the time frame of the Court’s order dated June 14, 1982.

Defendants refused to accept such offer of Plaintiff.

The Court then found and held that the Dungans had “totally failed to prove any damages” and dismissed the writ of inquiry. From that order the Dungans have perfected the instant appeal.

III.

The events leading up to the hearing, which is the subject of this appeal, reflect a more than modest misunderstanding of the law on the part of everyone involved. A reference to a few basics is necessary.

A.

The Dungans granted to Dick Moore, Inc. a security interest in the original mobile home. In relevant part, this transaction is governed by Article 9 of the Uniform Commercial Code. While we recognize that an argument could be made that Tennessee’s version of the UCC could be made applicable, the parties throughout seem to have conceded that Mississippi law

should govern and, accordingly, we will proceed by reference to Article 9 of the Mississippi UCC. Miss.Code Ann. §§ 75-9-101 et seq. (1972).

The Dungans made one payment on their obligations to Moore and stopped payment on the check for the second. By February of 1982, the Dungans were six months in arrears. Under such circumstances, Moore had a right to the possession of the mobile home. Miss.Code Ann. § 75-9-503 (1972).

Moore’s entitlement to possession is a matter of substantive right emanating from the application of the provisions of Section 75-9-503 to the fact of the failure of the Dungans to make the payments required in the note. The UCC provides that one procedure whereby the secured party such as Moore might obtain possession is “by action”, in this instance by an action in replevin. Miss.Code Ann. § 75-9-503 (1972); see General Electric Credit Corp. v. Fred Pistone, Jr., Inc., 68 Misc.2d 475, 326 N.Y.S.2d 898 (1971). The statute also provides that a secured party may proceed without judicial process if this can be done without breach of the peace.

On March 8, 1982, Moore obtained possession of the mobile home. A secured party after default may sell the collateral by public or private proceedings. Miss. Code Ann. § 75-9-504(1) and (3). Moore immediately gave notice to the Dungans of its intention to sell the mobile home. The Dungans acknowledged that they received this notice. The mobile home was subsequently sold by Moore for $11,200.00. The Dungans have in no way suggested any deficiency in the sale proceedings or any other violation of their rights accorded by § 75-9-504 or any other provision of Article 9 of the UCC. The sale was held on April 9, 1982.

An aspect of the point bears emphasis. The Dungans sought to vacate the default order for a replevin because of a defect in process. That defect called into question Moore’s procedural right to possession of the mobile home under the re-plevin statutes only. Moore’s substantive right to possession of the collateral existed by virtue of Part 5 of Article 9 of the Mississippi Uniform Commercial Code, and, more particularly, Section 75-9-503. If the Dungans had substantial rights to avoid the repossession and sale of the mobile home, it was incumbent upon them to move to enjoin the sale or otherwise assert the basis of those rights prior to March 30, 1982 — the deadline fixed by Moore in the notice of sale.

The record reflects that a hearing was held, on May 30, 1982, on the Dun-gan’s motion to set aside default judgment, although no transcript of those proceedings has been furnished to us (as no assignment of error here is predicated thereon). That hearing, of course, was held some fifty days after Moore had sold the mobile home. There is nothing before us to indicate that the Dungans made any contest of Moore’s substantive right to the possession of the mobile home under Section 75-9-503. To be sure, Moore had notice of the pending motion to vacate when it conducted the sale and in a sense proceeded at its own risk. The risk Moore ran, however, was that there might be a subsequent judicial determination that, as a matter of law, Moore was not entitled to possession of the mobile home. A mere defect in the procedure whereby Moore acquired possession unaccompanied by a showing of the lack of any substantive defense on the part of the Dungans should have been ineffective to undergird the order of June 3, 1982, that the mobile home be returned to the Dun-gans.

B.

Prior to the June 3, 1982 hearing, the Dungans attempted to redeem the (already sold) mobile home, invoking the provisions of Miss.Code Ann. § 89-1-59, and for reasons not wholly apparent the trial court allowed the redemption. There are at least two problems with the trial court’s action. First, Section 89-1-59 allows redemption only if the proper sums are tendered

at any time before a sale be made under the terms and provisions of such instrument [deed of trust, mortgage or other lien] ... [Emphasis supplied]

Any right to redeem under Section 89-1-59 thus expired on April 9, 1982.

There is a more basic problem. Redemption of personal property subject to a security interest is governed by Article 9 of the UCC. Miss.Code Ann. § 75-9-506 (1972). Section 89-1-59 applies only to secured installment transactions which are not covered by the Mississippi Uniform Commercial Code. The UCC provision, Section 75-9-506, however, makes a substantially similar requirement that the redemption sums be tendered by the debtor “at any time before the secured party has disposed of collateral....” In any view, any right to redeem the Dungans had expired April 9, 1982.

In this context the Dungans purported redemption, on June 3, 1982, would appear to have been wholly ineffective. Furthermore, the replevin proceedings may well have become moot. Remembering that the replevin action was merely a procedure for the enforcement of a substantive right existing under other law, a mere defect in that procedure should not operate to divest Dick Moore, Inc. of its substantive right. The Dungans filed nothing with the court which in any way suggests that they have, or ever had, any defense to Moore’s substantive right to repossess the mobile home under Miss.Code Ann. § 75-9-503 or its right to sell it under § 75-9-504. There is much talk in the briefs and in argument to the effect that the mobile home was defective and that this constituted a breach of a warranty said to. have been imposed upon Moore. The implied suggestion is that this may have afforded the Dungans a defense on the contract. The point, however, has never been expressed by the Dun-gans in pleadings nor was it made the subject of proof nor a finding by the trial judge nor is it incorporated into any point raised on this appeal.

Whether Dick Moore, Inc. could, after April 9, 1982, have had the replevin proceedings dismissed as moot, however, is not before us. Though the basis for its so doing is highly dubious, the trial court allowed the redemption and entered the order of June 3, 1982, from which Dick Moore, Inc. has taken no appeal.

IV.

A.

Turning to the issues tendered via the Dungans assignments of error, we are faced here with an unsuccessful trial litigant’s challenge to the findings of fact made by a trial judge sitting without a jury. Such findings may not be disturbed on appeal provided there is in the trial record substantial supporting evidence. It matters not that on the same proof we as trial judges might have found otherwise. The findings of fact made by a trial judge sitting without a jury may not be disturbed or set aside on appeal unless manifestly wrong. See, e.g., Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss. 1983).

There is a corollary principle which is also important here. With respect to issues of fact where the trial judge made no specific finding but where a determination of such issue was arguably necessary to the ultimate resolution of the case, we are required by our prior decisions and by sound institutional considerations to proceed on the assumption that the trial judge resolved all such fact issues in favor of appellee. Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947).

These rules governing our scope of review well in mind, we note the Dungans’ insistence that the evidence was undisputed that they had incurred damages in the form of four months rent at $270.00 per month and four months storage of furniture at $26.00 per month. True, the evidence to that effect is undisputed. The trial judge, however, found as a fact that the Dungans had moved out of the mobile home and were living in Memphis, Tennessee, “prior to the replevin action”. This fact is well within the evidence. Indeed, the Dungans never denied it.

It is true that the trial judge made no finding regarding the reason the Dungans moved out of the mobile home and moved to Memphis. Under the principles cited above from the Cotton and Harris cases, we must presume the trial judge regarded that the Dungans moved out of the mobile home for a reason other than one which would render Moore liable for their rental and storage expenses.

Continuing in the same vein, the Dun-gans are faced with the trial court’s mixed findings of fact and conclusions of law that they “totally failed to prove any damages”. The order of the trial court does not explain fully the basis of this conclusion. Within the evidence and the findings which were made, the trial judge’s conclusion could be predicated (a) upon the premise that the rental and storage expenses incurred by the Dungans were not the proximate result of any breach of any duty owed by Moore to the Dungans or (b) upon the premise that the Dungans had failed to make the payments required under the contract, failed to establish a justifiable excuse therefor, as a result of which Moore was under the contract entitled to possession of the mobile home and as a result of which the Dungans would have no right to recover rental and storage expenses from Moore.

In any event, the trial judge’s findings, both the overt and the inferred variety, to the effect that the Dungans suffered no damages were well within the evidence.

B.

Much is made both in the briefs and at oral argument of the fact that Moore failed to deliver the original 1981 mobile home within the five (5) days time frame provided in the June 14, 1982 order. That the trial judge let Moore get away with tendering a new 1982 mobile home instead of the old broken down 1981 model is assigned as error.

It is true that the order, of June 14,1982, ordered Moore to within five (5) days (a) either return the 1981 mobile home or (b) pay to the Dungans “the reasonable value of said mobile home”. Because Moore had sold the 1981 home, he tendered a new 1982 mobile home. The Circuit Court’s order of November 2, 1982 makes it clear that the Court regarded this tender as having been in substantial compliance with the June 14, 1982 order.

It is true that the 1982 mobile home tendered did not exactly fit the terms of either of the alternatives provided in the June 14, 1982, order. It is likewise true, however, and wholly undisputed by the Dungans that the new 1982 mobile home (a) was of greater fair market value than the 1981 home, (b) was in a better condition in the sense that it did not have the damages or defects of the 1981 home, (c) contained the same design, shape, features, furniture and equipment as the 1981 home, that is, there were no homely amenities pertaining to the 1981 mobile home that were not also available with the new 1982 mobile home, and (d) carried the same warranties as were given with the 1981 home.

In other words, what was tendered to the Dungans in mid-June of 1982 was a mobile home better and more valuable than the one that they previously had and was subject only to the terms and conditions that had been applicable to the repossessed mobile home. The tender was rejected and, as became apparent at oral argument, the reason was that the Dungans were not nearly so much interested in having a satisfactory mobile home to which they were certainly entitled under the original August 7, 1981 contract as they were in maintaining what they perceived as a good juicy lawsuit.

The Dungans’ precise assignment of error here is the purported failure of the Circuit Court to follow its order of June 14, 1982. In the face of proof that what was tendered was in kind the same as that to which the Dungans were entitled under the June 14 order and was of even greater value than that to which they were entitled, we find no basis for affording the Dungans any relief. The circuit judge who entered the June 14, 1982 order was certainly more aware than anyone else what it meant and we regard it as wholly within his prerogative to determine that this order had been complied with by the tender of the new 1982 mobile home.

Beyond that, the Dungans complain that the order of November 2, 1982, had the effect of voiding the original retail installment contract. This notion we can only assume is predicated upon the fact that the order allowed the Dungans to withdraw the money they had put up in escrow. The net effect of the aftermath of the trial proceedings was that the Dungans were without a mobile home and were out some $6,000.00 for the downpayment and the one monthly payment they had made. This predicament, however, was of the Dungans own making for they were tendered a perfectly usable mobile home which to any rational person would have been more valuable and desirable than the one originally sold to and occupied by the Dungans but they refused it; which only goes to prove that in lawsuits as elsewhere you can lead a horse to water but you can’t make him drink.

AFFIRMED

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

      . As an incident to the closing of the retail installment sale and secured transaction back on August 7, 1981, Gary P. Dungan had executed and delivered to Moore a Landlord's Waiver which, in pertinent part, provided:
      ... in the event that it becomes necessary, under the terms of the aforementioned instruments, for the Company [Moore] to take possession of the said merchandise and any accessories pertaining thereto, then the Undersigned [Dungan] will make no objection to the removal of the said merchandise from the premises, nor to the performance of whatever acts are necessary for such removal with the use of such facilities as may be on the premises.

      . The hearing which is the subject of this appeal was held in the Circuit Court on August 18, 1982, pursuant to the Dungan’s motion for writ of inquiry filed following entry of the June 3, 1982, order which had ordered Moore to return the mobile home or its value to the Dungans. Inasmuch as this action was commenced on February 17, 1982, it is wholly subject to the Mississippi Rules of Civil Procedure. Rule 81(e) provides generally that writs as forms of proceedings have been abolished, effective January 1, 1982, and that the "forms of relief formally obtainable under writs ... shall be obtained by motions or actions seeking such relief”.
      Although technically there has been no such thing in Mississippi as a writ of inquiry since January 1, 1982, here as elsewhere we will overlook errors in nomenclature and concern ourselves with the substance of the matter. Where under our prior practice the procedure of a writ of inquiry would have been appropriate, parties may now obtain the relief formally obtainable by filing motions or commencing actions seeking such relief. We will treat the motion for writ of inquiry filed July 26, 1982 as though it were a motion for assessment of damages and we will treat the hearing of August 18, 1982 as though it were a hearing held upon the Dungan’s motion for assessment of damages. See Rule 55(b), Miss. R.Civ.P.