author: DAN M. LEE, Justice,

text:
    Vernon Lee SCOTT v. STATE of Mississippi.
    No. 54131.
    Supreme Court of Mississippi.
    Feb. 22, 1984.

      William A. Brown, Joel P. Walker, Walker, Brown & Brown, Hernando, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of DeSoto County wherein the appellant, Vernon Lee Scott, was found guilty of murder. Scott was indicted in the February, 1981 term of the DeSoto County Grand Jury. The indictment charged him with the December 6, 1980 murder of W.C. “Dub” Turner. Upon the jury’s verdict finding Scott guilty of murder the court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. From that conviction and sentence he brings this appeal. We reverse.

On December 6, 1980, W.C. “Dub” Turner died as a result of being shot twice by a .22 caliber pistol. Turner was killed during a scuffle between himself and Vernon Lee Scott. The events leading up to the shooting are not in dispute but, as we often find, there is more than one version of the shooting itself and the events immediately thereafter.

Scott testified that on the fateful evening he was in the apartment of his girlfriend, Viola Person. Just as they were about to eat dinner Dub Turner came to Ms. Person’s door to ask Scott to help him fix his stereo. Scott told Turner that he would be over after dinner. Moments later, Scott changed his mind and he and Ms. Person walked across the hallway to the Turners’ apartment. Scott stated that because he had repeatedly been asked to show Turner how to operate his stereo-that he told Turner that he ought to get another one. In response, Turner stated that it was his money and that he would keep his tape player. Scott then told him that if he had so much money then he should pay him (Scott) for helping to fix Turner’s car. Turner replied that he would pay Scott with a .22. Scott testified that at the time Turner said this he was lying on the couch. Turner then pulled a gun from under the pillow on which he was reclining and fired it in Scott’s direction. This is the point at which the testimony becomes conflicting.

Scott testified that as he and Turner were scuffling, Turner called for his wife, Willie Mae Turner, to “Come here and get this Nigger off of me.” Scott stated that the weapon went off once while Willie Mae was hitting him with a stick at which time she quit hitting him, Scott also testified that the gun discharged twice more after she stopped hitting him. He was certain that all in all Turner had fired the gun four times. After the last shot, Scott claims that he wrested the gun away from Turner, took it to an outside door where he pointed it at the ground and squeezed the trigger a couple of times. Neither time did the gun go off. Scott testified that he did this to assure that there were no more live rounds in the weapon. As Scott started to leave Turner said “Don’t take my gun.” Scott replied, “Well, I don’t want your gun, Dub.” With that Scott threw the gun on the floor of the Turner apartment.

Cagón Simmons, another apartment resident, had been summoned by Ms. Person during the fracus. As Scott left he asked Simmons if anyone was hurt in the Turner apartment to which Simmons replied, “No.” Scott stated that he went to Ms. Person’s apartment for approximately fifteen to twenty minutes and was determined to have a talk with Turner the following day. Scott was certain that Turner’s behavior was the result of drunkenness. Viola Person’s testimony corroborated Scott’s story.

Cagón Simmons was the primary witness for the state and as such he told a different story. Simmons testified that he had been summoned by Viola Person and followed her down to the Turners’ apartment where he found Scott and Turner fighting. Simmons stated that when he walked into the apartment Willie Mae Turner was whipping Scott on the back with a chair. As the two were wrestling the gun went off twice and the second time it fired Willie Mae Turner sat down. Simmons stated that Scott then took the gun away from Turner, stepped eight to ten feet away, turned and shot Turner. Simmons testified that after this Scott told him to leave the apartment and go home. Simmons claimed he left the apartment just before Scott. Simmons denied that anyone asked him if the Turners were okay.

Following all of the evidence the jury deliberated and found Scott guilty of murder. The trial judge later sentenced him to a life sentence in the custody of the Mississippi Department of Corrections.

In reviewing Scott’s conviction, we turn first to the instructions given to the jury. Of great concern to this Court is Instruction S-l which reads:

The Court instructs the jury that the killing of a human being is an excusable homicide if, the Defendant acts (sic) which caused the death of W.C. Turner, was a result of sudden combat, without taking undue advantage and without the use of a dangerous weapon and not in a cruel and unusual manner.
If you find from the evidence beyond a reasonable doubt that W.C. Turner’s death was caused by being shot with a gun wielded by the Defendant, Vernon Lee Scott, and that it was not in necessary self-defense, and it was not in sudden combat, and he the said Vernon Lee Scott did take undue advantage, then you shall find the Defendant guilty as charged by writing your verdict on a separate sheet of paper. (Emphasis added.)

Scott argues that the instruction is faulty because it fails to mention all of the circumstances in which a killing is legally excusable. Section 97-3-17 of the Mississippi Code Annotated (1972) lists those conditions under which a killing is excusable:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c) when committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

As is obvious from the reading of Instruction S-l the sole excuse listed in that instruction is subsection (c) of § 97-3-17. The instruction completely fails to mention accident, misfortune, the heat of passion, or any sudden and sufficient provocation. Although Instruction D-4 did mention those factors, it does not remedy the defect in S-l. This is so because S-l is conclusive in nature and therefore in homeless conflict with an instruction like D-I/. which lists other occasions in which a homicide may be excusable. When a jury is given instructions which are in hopeless conflict this Court is compelled to reverse because it cannot be said that the jury verdict was founded on correct principles of law. Pittman v. State, 297 So.2d 888 (Miss.1974).

This Court is also troubled by the granting of Instruction S-8 which reads:

The Court instructs the Jury that in order to justify a homicide on the plea of self-defense, there must be something shown in the conduct of the deceased indicating a present intention to kill or do some great personal injury to the slayer and imminent danger of such intention being accomplished; mere fears or beliefs are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him or doing him some great bodily harm.
A party may have an apprehension that his life is in danger and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the Jury may determine the reasonableness of the ground upon which he acted. (Emphasis Added)

Recently, in Robinson v. State, 434 So.2d 206 (Miss.1983), this Court condemned an instruction similar to S-8. This is so because the instruction is self contradictory and confusing. The troublesome part is the first sentence of the final paragraph. If a party has “an apprehension that his life is in danger” and believes “the grounds of his apprehension just and reasonable” a homicide committed by that party is in self-defense. These are the grounds upon which a claim of self-defense must be predicated. Shinall v. State, 199 So.2d 251 (Miss.1967); Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964). A party acting upon this principle does not. “act at his peril.” Of course, it is for the jury to determine the reasonableness of the ground upon which the defendant acts but if the defendant’s apprehension is reasonable, there is no peril.

Our decision today should be a clear indication that instructions such as S-8 are condemned and should not be used upon a retrial of this matter.

This Court is also troubled by the granting of Instruction S-7 which reads:

The Court instructs the Jury that every willful killing of a human being, not in necessary self-defense and not justified by law is either Manslaughter or Murder is done deliberately with malice aforethought, Manslaughter is done without malice or deliberation, but in the heat of passion, by use of a deadly weapon, without authority of law and not in necessary self-defense.
If you, the Jury, find from the evidence in this case, beyond a reasonable doubt, that W.C. Turner died as a result of his having been shot by the Defendant, VERNON LEE SCOTT, through the use of a deadly weapon, while VERNON LEE SCOTT, was angry and in the heat of passion, and that the shooting was not in necessary self-defense, then you shall find the Defendant guilty of manslaughter.

Because S-7 is somewhat confusing in that it may be read to mean that every killing is either manslaughter or murder we trust that it will not be repeated at retrial.

A century ago in Ingram v. State, 62 Miss. 142 (1884) this Court cautioned district attorneys against submitting too many instructions. We now repeat that warning. An over zealous attempt to define the law often results in merely misleading and confusing the jury. As we stated in Ingram,

If fewer instructions were given and greater care was observed in framing them, it would be most favorable to the interest of the state in the administration of the criminal laws. In many cases it would be wise to give no instructions at all for the state, and. in none is it prudent to give too many. By this course convictions would be just as numerous and reversals would be rare.

62 Miss., at 145.

During the cross-examination of Scott’s girlfriend, Viola Person, an incident occurred which must not be repeated at retrial. That incident, was an attempt by the district attorney to impeach Ms. Person’s testimony by use of her grand jury testimony. During the cross-examination of Ms. Person, the district attorney asked her several times if she had not told the grand jury a different story. At least four times he gave his version of what he asserted that she had told the grand jury. Also, each time she denied having told a different story to the grand jury.

This question appears not to have arisen in this jurisdiction as of yet. Federal courts permit the introduction of grand jury testimony to impeach a witness where there is a transcript of that proceeding and where the witness is available for examination. Young v. United States, 406 F.2d 960, 132 U.S.App.D.C. 142 (1968). Such is not the case here. In the instant case the district attorney's attempts to impeach Viola Person amounted to nothing more than hearsay testimony on his part. There was never any transcript of the grand jury proceedings introduced at trial to establish that Ms. Person had made conflicting statements, indeed, no such transcript existed in this record. The district attorney could have simply made any incriminating statement he chose and repeatedly asked Ms. Person had she not made that statement before the grand jury. Without a transcript of the proceedings the only rebuttal to the district attorney’s line of questioning becomes the witness’ denial. This carries with it two inherent prejudices. First, the jury is far-more likely to believe that the witness did indeed make those statements before the grand jury simply because the district attorney is insistent that she did. The district attorney then becomes a witness against the defendant. Second, the use of this tactic effectively denies the defendant of the right to counsel as his attorney is barred from attending the grand jury proceedings whereas the district attorney is not. Therefore, the defense attorney has no way of preparing to examine a witness or to rebut the district attorney’s accusation. Because due process has been defined as “fundamental fairness” and this proceeding is fundamentally unfair we hold that allowing a district attorney to accuse a witness of making conflicting statements before a grand jury without offering any proof to that effect amounts to a denial of due process.

Another incident occurred in relation to Ms. Person’s testimony which should not be repeated during retrial. In rebuttal, the state put on Officer Bethune in an attempt to impeach Ms. Person’s testimony. During Officer Bethune’s rebuttal testimony he began reading from a written statement. He testified that these were notes that he had made as he talked with Viola Person but that he had never shown them to her. Over Scott’s objection the trial court admitted Officer Bethune’s notes into evidence. This was error for two reasons.

First, in Cutshall v. State, 203 Miss. 553, 35 So.2d 318 (1948), this Court set forth the predicate necessary for a witness to use a writing to refresh his recollection or as past recollection recorded. It must appear that the witness has no present memory of the event. If the witness can refresh his memory by simply reviewing his writing, then he is to testify from his own memory. If, however, a review of the writing does not refresh the witness’ memory and he testified to making the record at the time of the transaction and that he would not have made it if it had not been true he will be permitted to testify directly from a memorandum. Clearly that predicate was not laid in this case. Officer Bethune never acknowledged having faulty memory of the events. He simply began a spontaneous reading from his version of Ms. Person’s statement to him.

Also, allowing the jury to have Officer Bethune’s notes while it deliberated amounts to an improper bolstering of his testimony. We trust that this error will not occur upon retrial.

Therefore, based on all of the foregoing, we hereby reverse the conviction and sentence of Vernon Lee Scott and remand this cause to the Circuit Court of DeSoto County for proceedings- consistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Larry Aubron HARRIS v. STATE of Mississippi.
    No. 54726.
    Supreme Court of Mississippi.
    Feb. 22, 1984.

      Michael D. Cooke, Lake Wales, Fla., David R. Sparks, Sparks & Colburn, Tupe-lo, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Tishomingo County wherein the appellant, Larry Harris, was found guilty of manslaughter. Harris was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections. From that conviction and sentence he now brings this appeal. We reverse.

It is undisputed that on the evening of Sunday, February 15, 1981, Larry Harris and his nephew, Gary Berryman, went to the house of Clyde Harris, Larry’s uncle. Larry went in the house and Gary waited outside in the truck. Moments later, a shot was fired and Clyde Harris was fatally wounded. Larry Harris then ran to a nearby field where he stayed and drank whiskey for approximately an hour and one-half to two hours at which time he returned to the Clyde Harris residence and surrendered himself.

At trial, Larry testified that the shooting was an accident. He stated that the .25 caliber pistol with which his uncle was killed was intended as a replacement gun for his uncle. Larry wanted to give Clyde the pistol because he had lost one of his shotguns sometime previously. He testified that as he pulled the gun out of his back pocket and handed it'to his uncle the gun accidentally discharged.

This version of the events was contradicted only by a statement Larry Harris gave to law enforcement officers shortly after his surrender. In that statement, Harris states that he went to see his uncle about a dog. In his statement Harris says that when his uncle asked him “What dog?” Larry reached in his pocket to pull out the gun to'give Clyde and that it must have scared Clyde because “The first thing I know' he was trying to hit me and the gun, like I say, it shot him.” Under the state's version of the events Larry Harris killed his uncle in a dispute over the dog.

The two central questions to this appeal revolve around certain motions made prior to trial. The first of these was a motion to suppress Harris’ statement. Harris claims that at the time he gave the statement he was so intoxicated that he could not knowingly and intelligently waive his right to counsel. Two hearings were held on the motion to suppress, each of which resulted in a different conclusion.

At the first suppression hearing Officer David Huggins, an investigator with the Mississippi Highway Patrol, testified that he conducted the interrogation of Harris the evening of the shooting. Officer Huggins said that he read Harris his rights and that Harris appeared to understand them. In Huggins’ terms, “He was in good shape.” Huggins stated that Harris had told him that he had had a drink but he did not appear to be under the influence of alcohol. . Huggins indicated that Harris’ eyes were clear and that his speech was distinct with nothing to indicate any physical or mental impairment. Huggins tape-recorded the interrogation and the tape was played at the suppression hearing.

Larry Harris testified on his own behalf at this hearing. He stated that he had been drinking whiskey for a day and a half before the shooting. He also stated that he had been taking pills which were prescribed for his wife’s cold during the same period of time. Harris denied having any memory of the events which transpired before he entered his uncle’s house. Neither could he remember signing the waiver of rights, hearing his rights read to him, nor signing the statement.

Officer Terry Sherron testified that the interrogation of Harris began thirty to forty-five minutes after the arrest. Officer Sherron stated that in his opinion Harris was under the influence of alcohol or medication at the time he gave his statement. Sherron based his opinion upon his observation of Harris’ eyes were red and his speech was slow. In Sherron’s opinion Harris did not understand what he (Harris) said in the interrogation.

Sheriff Amos Estes also testified at this hearing. The sheriff initially stated that he believed that Harris understood what was happening during the interview; however, he later stated that he could not say for certain that Harris appreciated what was happening. Sheriff Bates testified that Harris had red eyes and a mumble in his talk. He stated that Harris was not deliberately talking slow and that in his opinion Harris acted like he was under the influence of alcohol or drugs.

Following this testimony the court ruled that Harris’ confession would be suppressed. The court stated in its opinion that its decision was based upon the equivocating testimony of Officers Sherron and Sheriff Bates, one of whom testified that Harris did not understand what was happening at the interrogation, and the other who testified that he was not certain that Harris understood. An order was entered suppressing the confession.

Shortly thereafter, the state filed a motion for rehearing. In this motion the grounds for the rehearing were: (1) Deputy Sherron’s testimony was a surprise; (2) Officer Huggins was called away following his testimony and unavailable for recall at the time of the initial hearing; (3) the existence of additional witnesses who observed Harris sometime before he gave the statement. On January 7, 1982, the court entered an order granting the motion for rehearing and setting a new hearing date.

At the second hearing, essentially the same testimony was elicited with the addition of three new witnesses for the state. Deputy Mike Kemp testified that he saw Harris in a patrol car shortly after his apprehension. He stated that he heard Harris tell other officers where the gun involved in the shooting was located. Kemp was of the opinion that Harris’ speech was not slurred and that he was not under the influence of drugs. Kemp admitted that his contact with Harris was “minimal.”

Roy Crowe, a family member present in the Clyde Harris household following the shooting, testified that when Larry Harris returned to the household he was not drunk. Crowe admitted however that he had observed Harris for less than two minutes from a distance of twelve to fourteen feet. Crowe described his contact with Harris at the time as “I heard him say a few words and walk in and out.”

The Rev. Jerry George was also present in the Clyde Harris household following the shooting. He stated that he smelled liquor on Larry Harris’ breath but that Harris was not “staggery.” Rev. George stated that Harris appeared to be drinking but was not drunk and that his speech was not slurred. Rev. George admitted that he could not tell anything about Harris’ mental state at the time he gave his statement. In fact, Rev. George admitted that he was around Harris for only about one minute and had no direct conversation with him.

Following the taking of this additional testimony and the reexamination of all those present at the first suppression hearing, the judge ruled that although Larry Harris was under the influence at the time he gave his statement, he was not intoxicated. The judge stated that in his opinion the tape-recording of the interrogation does not indicate that Harris was intoxicated. Therefore, he ruled that Harris’ statement was given freely and voluntarily.

Because we must reverse Harris’ conviction on his second assignment of error, we do not address specifically whether the trial judge abused his discretion in granting a second suppression hearing or whether he erred in his finding that the statement was freely and voluntarily given. Rather, we suggest to the learned trial judge that upon proper motion a new suppression hearing be held prior to the retrial of this cause.

Harris’ second assignment of error particularly troubles this Court and requires us to reverse his conviction. This assignment of error stems from Harris’ second pretrial motion. That motion, a motion to produce, requested all books, papers, documents, accounts, letters, photographs and all other tangible items of evidence. On October 27, 1981, the trial court entered an order requiring that the state “produce all items requested in defendant’s motion to produce.” This the state failed to do.

At trial, the state attempted to introduce both the'pistol and the projectile removed from Clyde Harris’ body. At that point, Harris’ attorneys objected and there was an argument by counsel to the trial court on the admissibility of those items. Neither the gun, the projectile nor the report from the Mississippi Crime Lab was produced for the defense. Following the argument, the trial court held that he would allow the items to be introduced in evidence and issued the following ruling:

Well, frankly, gentlemen, if there were an issue here, that this gun did the shooting, I would sustain the objection, that it would not be allowed to be presented because the gun and the projectile had not been presented as required under the order and the results of the tests either one, I think, would be sufficient but since it is not an issue here, whether or not this gun did the shooting, I am going to allow the testimony to proceed and overrule the objection because of those reasons, that there has been a change here in this county of the county attorneys in the last six months and we have different county attorney here in Tishomingo County than what we had when this evidence was being processed so I am going to be rather lenient in letting this evidence in but I do want the record to reflect that it appears to the court that there is really no issue in this case that this is the gun that fired the fatal shot and for that reason I can see no reason not to let it in, it is not felt to be prejudicial. The objection will be overruled, (sic)

Therefore, the trial court allowed the weapon to be introduced in evidence because there was no dispute that this was the weapon that fired the fatal shot. This ruling reflects that the trial court completely misunderstood the intention of Harris’ motion to produce. As Harris’ sole defense was that the gun discharged accidentally, his purpose in having the weapon produced was to provide him with an opportunity to have it inspected to determine its susceptibility to accidental discharge. Although his efforts to do so were sanctioned by the order of the trial court directing the state to produce the weapon, they were later stymied by the combination of the state’s refusal to produce the weapon and the court’s subsequent ruling. The fact that there had been a change in county attorneys was wholly irrelevant to the defendant’s right to require production. The court is not free to suspend the rules of discovery of the court because of a change in elected officials.

In Box v. State, 437 So.2d 19 (Miss.1983), this Court reversed Box’s conviction because of the state’s failure to comply with its obligation to produce under Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. In Box, the trial court held a hearing on Box’s discovery motion four months prior to trial. Box had requested a list of the state’s witnesses and production of physical and tangible evidence in the custody of the state. Although his discovery request did not expressly use the word “photographs,” photographs did constitute part of the physical and tangible evidence which the court ruled Box was entitled to. The state never produced the photographs and at trial they attempted to introduce them into evidence. The trial court allowed them to be introduced over Box’s objection. On appeal, this Court said: “Prosecuting attorneys, as well as defense attorneys, must recognize the obligation to abide by discovery rules. A rule which is not enforced is no rule.” Box, 437 So.2d at 21. The holding in Box was expressly limited to the facts under that case; however, the facts in the instant case closely parallels it. In both cases the defense requested physical and tangible evidence in the custody of the prosecution. In both cases the trial court entered an order requiring the prosecution to produce the evidence. And in both cases the state attempted to introduce the evidence at trial after having failed to produce it.

In other recent cases we have reversed convictions where the state has failed to come forward with material it was obliged to produce. Ford v. State, 444 So.2d 841 (Miss.1984); Tolbert v. State, 441 So.2d 1374 (Miss.1983); Morris v. State, 436 So.2d 1381 (Miss.1983); Jackson v. State, 426 So.2d 405 (Miss.1983).

While it is true that the above cited cases deal with the failure to produce a statement of the defendant, the violation of the rule requiring discovery is no less obvious in the instant case. Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice in effect at the time of Harris’ trial read in pertinent part as follows:

The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(2) Copy of any recorded statement of the defendants to any law enforcement officer.
Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

Therefore, upon motion of appellant and the order of the circuit judge in this case to produce all tangible things, the prosecution had the affirmative duty of producing the weapon. They are not now free to claim that the defense had merely to request production one more time. Failure of the state to produce the weapon was a violation of both Rule 4.06 and the court’s order and had the effect of stymieing Harris’ ability to present his defense. Failure to comply with an order to produce renders that material inadmissible at trial and its wrongful admission renders a conviction reversible.

Harris also argues that the trial court was in error in failing to apply the Weathersby rule. In 1933 this pronounced the well-known rule of the case of Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). In Weathersby this Court stated that: “Where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” Harris argues that because he was the only witness to the shooting his version must be accepted as true. While he would have a good argument if his tape-recorded statement had been suppressed, the conflict between his statement and his testimony at trial leaves him unable to invoke the Weathersby rule.

Harris also argues that his conviction is reversible because of certain statements made by the trial court during the course of the trial. Because we have no doubt that these statements will not be repeated at retrial, we do not feel compelled to address the issue.

Based on all of the foregoing, we hold that Larry Aubron Harris’ conviction of manslaughter is hereby reversed and remanded to the Circuit Court of Tishomingo County.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULr LIVAN, JJ., concur.

      . Note that the version of Rule 4.06 now in effect would require disclosure of tangible items simply upon request of the defendant, without an order of the court.


author: ROY NOBLE LEE, Presiding Justice, ROBERTSON, Justice,

text:
    In re Robert C. GILLIARD, Jr. v. STATE.
    No. 53959.
    Supreme Court of Mississippi.
    Feb. 22, 1984.

      J. Ronald Parrish, Laurel, Lionel R. Barrett, Jr., Nashville, Tenn., for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Petitioner, Robert C. Gilliard, Jr., was indicted in the Circuit Court of the Second Judicial District, Jones County, Mississippi, during the September 1981 Term, for the capital murder of Grady Chance during the commission of an armed robbery at the Best Chance Package Store in Laurel, Mississippi.

Gilliard entered a plea of guilty to the charge and the trial proceeded on the sentencing phase. After hearing the evidence, receiving the instructions from the court, and argument of counsel, the jury found Gilliard guilty and sentenced him to death.

The judgment of the lower court was appealed to the Mississippi Supreme Court and was affirmed. Gilliard v. State, 428 So.2d 576 (Miss.1983). Gilliard did not file a petition for rehearing.

A petition for a writ of certiorari to the Supreme Court of Mississippi was filed in the United States Supreme Court and denied on October 3, 1983. Application for Leave to File Petition for Writ of Error Coram Nobis was filed in this Court November 7,1983, setting out twenty-nine (29) grounds for relief, and was responded to by the State on November 28, 1983. We address each of the grounds for relief hereinafter.

Section A.

I.

The Court Erred in Overruling Petitioner’s Motion for Change of Venue.

On direct appeal to the Mississippi Supreme Court, the petitioner assigned as error that the lower court erred in overruling his motion for change of venue. The lower court received evidence on the question, and it was thoroughly presnted there. On appeal to this Court, it was completely considered and addressed. Gilliard v. State, supra, at 578-79.

However, the petitioner now contends that the motion should have been granted and that denial of the motion was of constitutional magnitude and that petitioner was denied a fair trial in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States, citing Anderson v. State, 92 Miss. 656, 46 So. 65 (1908); Eddins v. State, 110 Miss. 780, 70 So. 898 (1916); and Bond v. State, 128 Miss. 792, 91 So. 461 (1922).

The question now before this Court is whether or not, under state procedure and law, petitioner may raise the question and attack the judgment on federal constitutional grounds. In Minor v. Lucas, 697 F.2d 697 (5th Cir.1983), Minor neglected to frame in state court the constitutional claims found in his federal habeas petition. The Fifth Circuit commented as follows:

It is far from certain, however, that Holloway [261 So.2d 799 (Miss.1972)] and Auman [285 So.2d 146 (Miss.1973)] stand for the proposition that the petitioner is barred from presently raising his federal constitutional claims in the Mississippi courts. The statement quoted above from Holloway was made at the close of the opinion after the court had specifically found that the petitioner’s federal constitutional claim was mer-itless. In Auman, the petitioner did not frame any of the issues he raised in his writ as federal constitutional claims, but rather framed his contentions as they apparently had been litigated in his direct criminal appeal.
Furthermore, there seems to be ample Mississippi precedent that the writ of error coram nobis is available to attack collaterally a judgment of conviction on federal constitutional grounds. See, e.g., King v. Cook, 287 F.Supp. 269, 272 (N.D.Miss.1968) (purpose of Mississippi’s writ of error coram nobis is to provide meaningful and effective procedure for protection of constitutional rights of those convicted of crime); Nelson v. Tullos, 323 So.2d 539, 543 (Miss.1975) (relief for a defendant who claims to have been convicted as a result of a deprivation of his constitutional rights is by a writ of error coram nobis).
We decline to resolve this question presented by the parties, but rather leave it to the state courts to determine whether petitioner’s federal constitutional claims will be entertained by way of a writ of error coram nobis. [697 F.2d at 698-99].

In Callahan v. State, 426 So.2d 801 (Miss.1983), quoting from In re Broom’s Petition, 251 Miss. 25, 168 So.2d 44 (1964), we said:

We first address the petition for writ of error coram nobis by recognizing a basic premise in this jurisdiction that such post-conviction petitions are limited in nature. Justice Ethridge, in case of In re Broom’s Petition, 251 Miss. 25, 168 So.2d 44 (1964), set forth the circumstances in which a writ for error coram nobis would lie. His opinion states:
The general scope of a petition for writ of error coram nobis, or motion in the nature thereof, is to bring before a court a judgment previously rendered by it, for the purpose of review or modification. There must be some error of fact and not of law affecting substantially the validity and regularity of the proceedings, which was not brought into issue at the trial. Such motion or petition is an extraordinary and residual remedy to correct or vacate a judgment on facts or grounds not appearing on the face of the record, not available by appeal or otherwise, and not discovered until after rendition of the judgment of conviction, valid on its face, but defective by reason of facts outside the record, which deprived accused without fault on his part of the constitutional right to a fair trial. [Emphasis added]. [251 Miss. at 32-33, 168 So.2d at 48].
With this background in mind, our Court has since ruled that the writ of error coram nobis will not be allowed to relitigate questions of law or fact already decided by this Court. Auman v. State, 285 So.2d 146 (Miss.1973). Moreover, “a defendant in a criminal trial may not deliberately hold back matters known to him at the time of his trial until after the affirmance of his conviction and then, for the first time, use them to begin the whole process all over again.” Holloway v. State, 261 So.2d 799, 800 (Miss.1972). [426 So.2d at 803].

We resolve the question referred to in Minor, supra, and hold that a defendant in a criminal trial, who has litigated matters of fact and law at the trial, and whose conviction has been affirmed, may not, through a writ of error coram nobis, present and litigate the question again, even though then framed and placed in a setting of federal constitutional questions.

II. — IV.

The Court Erred in Failing to Excuse Certain Jurors for Cause at the Request of the Petitioner. ■

The Court Erred in Excusing Certain Jurors For Cause at the Request of the State.

The Court Erred in Failing to Quash the ■ Jury Panel Which Actually Rendered the Death Sentence in this Case Because of the State’s Use of Its Peremptory Challenges to Excuse All Persons of the Negro Race from the Panel Solely on the Basis of Their Race.

The questions A-II, A-III, and A-IV were raised and denied on the direct appeal. They were adjudicated and constitute res adjudicata and are procedurally barred. Smith v. State, 434 So.2d 212 (Miss.1983); Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Callahan v. State, 426 So.2d 801 (Miss.1982); Auman v. State, 285 So.2d 146 (Miss.1973); and In Re Broom’s Petition, 251 Miss. 25, 168 So.2d 44 (Miss.1964).

V.

Removal of Jurors with Scruples Against Capital Punishment.

Petitioner’s question A-V was not raised on direct appeal and it is procedurally barred. Smith v. State, supra; Edwards v. Thigpen, supra; Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); Callahan v. State, supra; and Holloway v. State, 261 So.2d 799 (Miss.1979).

Section B.

The Petitioner Should be Granted a New Trial in View of the Unconstitutional Aspects of His Plea of Guilty

In its response to this question, the State conceded the need for an evidentiary hearing for the purpose of resolving the volun-tariness of the guilty plea, although it did not concede that petitioner has met the pleading requirements established by this Court in Tiller v. State, 440 So.2d 1001 (Miss.1983), and did not concede the merits of petitioner’s contention that the plea was unconstitutional.

When we now consider this question, along with Section D, addressed hereinafter, we hold that petitioner be given an evidentiary hearing on the voluntariness of his guilty plea.

Section C.

Proposition I: Appellate Procedures

Proposition II: Alleged Arbitrariness of Death Penalty

Proposition III: Alleged Discriminatory Nature of Death Penalty

Proposition XIV: Trial Court’s Report

Question C-I, C-II, C-III and C-XIV were not alleged as error and raised on direct appeal. The questions may not now be raised for the first time on this Application for Leave to File the Petition for Writ of Error Coram Nobis and are procedurally barred. Smith v. State, supra; Edwards v. Thigpen, supra; Wheat v. Thigpen, supra; Callahan v. State, supra; Holloway v. State, supra.

Proposition IV: The Heinous, Atrocious, and Cruel Aggravating Circumstance.

Proposition V: The Failure to Instruct the Jury as to the Deal Made with a State Witness

Proposition VI: Closing Argument

Proposition VII: The Refusal of Instruction D-2

Proposition VIII: The Refusal of Instruction D-4

Proposition IX: The Refusal of Instruction D-6

Proposition X: The Refusal of Instruction D-9

Proposition XI: “Doubling Up” of Aggravating Circumstances

Proposition XII: The Heinous, Atrocious, and Cruel Aggravating Circumstance

Proposition XIII: The Refusal to Impose a Life Sentence

Petitioner’s questions C-IV, -V, -VI, -VII, -VIII, -IX, -X, -XI, -XII, and -XIII, were alleged as error and adjudicated on direct appeal. They are now res adjudica-ta, may not be relitigated on this petition and are procedurally barred. Smith v. State, supra; Edwards v. Thigpen, supra; Callahan v. State, supra; Auman v. State, 285 So.2d 146 (Miss.1973); In Re Broom’s Petition, supra.

Further, the questions C-IV, -VI, -VIII, -IX, -X, -XII, and -XII, either added a federal constitutional argument to that made on direct appeal, or reframe the direct appeal argument in federal constitutional terms. As we have stated and addressed on the question A-I, motion for change of venue, the principle there applies to these questions. They may not be reliti-gated on this petition for writ of error coram nobis and are procedurally barred.

Section D.

Petitioner was Denied the Effective Assistance of Counsel at His guilt and Sentencing Trials in Violation of the Sixth, Eighth and Fourteenth Amendments

Under the general question posed in Section D, petitioner has raised questions D-I through D-IX. The sub-question D-VI relates to the entry of the guilty plea at the first phase, or guilt phase, of the trial. The question is interwoven with the question of effective assistance of counsel. The State concedes that there should be an evidentiary hearing on question B and on question D, although the State does not concede the merits of petitioner’s allegations.

We are of the opinion that there should be an evidentiary hearing on question B and question D, guilty plea and, effectiveness of counsel. Therefore, the Motion and Application for Leave to File the Petition for Writ of Error Coram Nobis is granted as to the questions presented in Sections B and D.

APPLICATION GRANTED IN PART AND DENIED IN PART.

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

ROBERTSON, J., specially concurs.

SULLIVAN, J., not participating.

ROBERTSON, Justice,

specially concurring:

I concur unreservedly in the result reached in the majority opinion authored by Presiding Justice Roy Noble Lee. At several points, however, I differ as to the grounds that ought to be relied upon.

With respect to Section A [I — IV] and Section C [IV-XIII] of the majority opinion, I agree that claims which have been fully litigated at trial and adjudicated on their merits on direct appeal generally ought not be available for relitigation via post-conviction proceedings, even though framed with different terminology. Any such attempt at relitigation ought, in my view, be barred by familiar notions of collateral estoppel. See my special concurring opinion in Edwards v. Thigpen, 433 So.2d 906, 909-910 (Miss.1983); and my dissenting opinion in Evans v. State, 441 So.2d 520, 534 (Miss.1983).

I have carefully reviewed the claims presented under Section A[V] and Section C [I — III and XIV] and find them to be wholly without merit. I would deny those on their merits. It continues to escape me" why claims such as these, wholly lacking in substantive merit, should be dealt with on procedural grounds. See my special concurring opinion in Pruett v. Thigpen, 444 So.2d 819 (Miss.1984).

I concur in what has been said in Section B of the majority opinion. I concur further in what has been said in Section D to the effect that an evidentiary hearing should be held on the question of whether Gilliard has been denied his constitutional right to the effective assistance of counsel. See Read v. State, 430 So.2d 832, 836-842 (Miss.1983).


author: WALKER, Presiding Justice,

text:
    McGOLDRICK OIL COMPANY v. GREENE COUNTY.
    No. 54160.
    Supreme Court of Mississippi.
    Feb. 29, 1984.

      Warren Ashley Hines, Henderson, Duke & Dantone, Greenville, for appellant.
    Charles Burhorn, Leakesville, for appel-lee.
    Before WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, J.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from an order of the Circuit Court of Greene County, wherein the circuit judge sustained defendant’s motion to dismiss. From this order the appellant has perfected an appeal to this Court.

This case arises out of a collision which occurred on Highway 42 in Greene County, Mississippi. On August 8, 1980 the plaintiff’s mobile oil rig collided with a dump truck owned and operated by Greene County. The mobile oil rig was completely destroyed in this collision, resulting in a loss in excess of $300,000.00.

On January 7, 1982 the appellant filed its complaint in the Circuit Court of Greene County, seeking to recover for damages it sustained in the collision. The appellant alleged in the complaint that the collision was caused by the negligent operation of Greene County’s dump truck. Thereafter, the county filed a motion to dismiss on the grounds of sovereign immunity. This motion was sustained by the circuit judge.

On appeal, the appellant assigns as its only error that the trial court erred in dismissing its declaration on the grounds of sovereign immunity because the doctrine of sovereign immunity should be abolished. Since the filing of the briefs in this ease, the doctrine of sovereign immunity was abolished by this Court’s decision in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). However, the Pruett decision was made prospective, applying only to causes of action accruing on or after July 1, 1984. Accordingly, Greene County still enjoys the protection of sovereign immunity, and the Pruett decision will not benefit the appellant in this case.

Since this case is controlled by the decision in Pruett, it is affirmed.

AFFIRMED.

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


text:
    Ronald Ray RIGSBY v. STATE of Mississippi.
    No. 54737.
    Supreme Court of Mississippi.
    March 7, 1984.
    Mager A. Varnado, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.


text:
    Vera Elizabeth BROWN v. STATE of Mississippi.
    No. 54745.
    Supreme Court of Mississippi.
    March 7, 1984.
    Upton Sisson, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    Larry EDGE v. STATE of Mississippi.
    No. 54144.
    Supreme Court of Mississippi.
    March 7, 1984.
    John B. Farese, Farese, Farese & Farese, Ashland, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, J.
   Appeal from Circuit Court, Monroe County; Fred Wicker, Judge.

AFFIRMED.

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


text:
    Mary HARDY v. STATE of Mississippi.
    No. 54152.
    Supreme Court of Mississippi.
    March 7, 1984.
    Roy Pitts, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   Appeal from- Circuit Court, Winston County; Niles McNeel, Judge.

AFFIRMED.


text:
    In the Interest of R.T., a Minor.
    No. 55185.
    Supreme Court of Mississippi.
    March 7, 1984.
    Lester C. Franklin, Pascagoula, for appellant.
    Philip S. Weinberg, Pascagoula, for ap-pellee.
   Appeal from Youth Court, Jackson County; Emily Baker, County Judge.

Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


author: HAWKINS, Justice,

text:
    Rita Cavitt STEVENSON v. Annie Bell DANIELS, Administratrix of Estate of Payton Cavitt, Deceased.
    No. 54766.
    Supreme Court of Mississippi.
    March 7, 1984.
    Sarah A. O’Reilly, Bob Owens, Jackson, for appellant.
    Claude W. Milstead, Jack R. Davis, Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

Payton Cavitt died intestate November 11, 1982, a resident of the First Judicial District of Hinds County. His sister, Annie Bell Daniels, filed a petition for letters of administration on December 29, 1982, in the Chancery Court. She alleged Cavitt left surviving him the petitioner, Anna Mae Lee, another sister; George Cavitt, Jr., Johnny Cavitt, two brothers; and Maude Alice Sims and Herman Spann, Jr., children of Myrte Lynn Cavitt Spann, a predeceased sister.

After letters of administration had been granted, Rita Cavitt Stevenson, the appellant, filed a motion on March 2, 1983, to be declared an heir-at-law. The motion alleged that Mrs. Stevenson was the daughter of the decedent and Margaret Jean Owens, with whom he was cohabitating, and that the decedent during his lifetime acknowledged Mrs. Stevenson as his daughter.

The administratrix moved to dismiss the claim as barred under Miss.Code Ann. § 15-1-49, the six year statute of limitations. The motion to dismiss asserted Mrs. Stevenson was born September 1,1955, and therefore reached majority on September 1, 1976. The claim of heirship was filed more than six years after this date.

Following argument the chancellor entered a decree dismissing Mrs. Stevenson’s claim because it was barred under Miss. Code Ann. § 15-1-49.

The record in this case is limited to the' petition, motions and the dismissal decree. There appears to be no dispute, however, about the facts recited.

Is Mrs. Stevenson entitled to a hearing to establish in fact whether she is the natural daughter of the decedent born out of wedlock, and therefore an heir-at-law, or is she barred by the six year statute?

Of course, Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), held there could be no statutory discrimination against illegitimate children.

But, is Mrs. Stevenson still barred from asserting her claim under Miss.Code Ann. § 15-1-49?

She is not. This case is controlled by Kidd v. Kidd, 435 So.2d 632 (1983), wherein Judge Dan Lee, the author of the opinion, exemplified special understanding on this subject.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


author: ROY NOBLE LEE, Presiding Justice,

text:
    In the Interest of T.D.B., a Minor Child.
    No. 54772.
    Supreme Court of Mississippi.
    March 7, 1984.
    Jim W. Rose, Rose & Woodfield, Gulf-port, for appellant.
    No brief filed for appellee.
    Before ROY NOBLE LEE, P.J., PRATHER and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

This is an appeal from the Family Court of Harrison County, Honorable Michael H. Ward, presiding, by T.D.B., a minor, who was adjudicated to be delinquent and was committed to the custody of the Miss. Dept, of Youth Services for placement at an appropriate state training school.

The lower court found T.D.B. was delinquent after hearing a petition alleging that she burned a school building and possessed one ounce of marijuana. Appellant admitted the allegations of the petition, viz, that she started the fire from toilet tissue in the school washroom upon a “dare” from three other students. However, the record indicates she immediately summoned help and the fire was extinguished with little damage. Thirteen witnesses testified for appellant, including Dr. Thomas William Howard, a clinical psychologist, and members of the sheriff’s department.

The evidence reflects that appellant was mentally retarded to a degree; that family therapy would be the best approach to her problem; and that it would not be for her best interest to be confined in a juvenile training school. The lower court was of the opinion that

It would be in the best interest of this child not to go to Columbia Training School. She’s in the lower ten percent of the population of this country in intellectual capacity among her age. She did set a fire, but she immediately reported the same to the individuals at school, figures of authority. The training school would not help her, might do her harm, and her problems would be best served by her and her family being required to receive treatment and therapy from Dr. William Howard or some other clinical psychologist ....

The lower court was of the opinion that under Mississippi Code Annotated § 97-17-3 (1972) it had no alternative except to sentence appellant to at least six (6) months confinement at the training school. However, the court granted an appeal with su-persedeas to this Court.

Section 97-17-3 provides the following:

(1) Any person who wilfully and maliciously sets fire to or burns or causes to be burned, or who is a party to destruction by explosion from combustible material, who aids, counsels, or procures the burning or destruction of any state-supported schoolbuilding in this state ...
(3) Any person, who by reason of his age, comes under the jurisdiction of juvenile authorities and who is found guilty under subsection (1) of this section, shall not be eligible for probation unless and until at least six months’ confinement has been served in a state reform school.

The above section was amended by Chapter 256, 1958 Miss.Laws, to add Subsection (3), which provides for at least six months’ confinement without probation of a juvenile who was found guilty under Subsection (1). The Youth Court Act was amended by Chapter 506, 1979 Miss.Laws, and Chapter 550, 1980 Miss.Laws, and is now known as the “Youth Court Law,” Governing Mississippi Code Annotated §§ 43-21-101 through 43-21-651 (1972). That law grants broad powers to the Youth Court and the Family Court. Mississippi Code Annotated § 43-21-605 (1972) provides great authority and wide discretion to those courts in delinquency cases and disposition orders.

The appellant contends that the lower court committed two errors in its judgment:

(1) The Honorable Family Court judge erred in finding that the Youth Court Act of 1979 had not been repealed by implication. §§ 97-17-3, MCA (1972).
(2) The Honorable Family Court judge erred in ordering the minor child confined in the training school for a minimum period of six months while she is seriously handicapped by mental illness and retardation, contrary to § 43-27-25, MCA (1972).

We will address only the first assignment of error, since the record does not indicate that the appellant comes within Section 43-27-25, and because the lower court committed appellant to the custody of the Mississippi Department of Youth Services for placement at an appropriate state training school under the impression that Section 97-17-3(3) required him to do so.

Appellant argues that the Youth Court Law repeals by implication Section 97-17-3(3), and cites Jackson Municipal Airport Authority v. Shivers, 206 So.2d 190 (Miss.1968), and Ascher & Baxter v. Edward Moyse & Co., 101 Miss. 36, 57 So. 299 (1911). In Ascher, the Court said:

When two statutes cover, in whole or in part, the same subject-matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. Where, however, a later act covers the whole subject of earlier acts, and embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the Legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such subject-matter, even if the former acts are not in all respects repugnant to the new act. But in order to effect such repeal by implication it must appear that the subsequent statute covered the whole subject-matter of the former one, and was intended as a substitute for it. [101 Miss. at 45, 57 So. at 301].

Gulley v. Lumbermen’s Mut. Casualty Co., 176 Miss. 388, 166 So. 541 (1936), involved liability for privilege taxes authorized by a generally-worded statute. The Court quoted from State, ex rel. Knox v. Wyoming Mfg. Co., 138 Miss. 149, 103 So. 11 (1924) as follows:

[I]t was held in the third paragraph of the syllabus, “Where the legislature in a later act covers the entire scheme dealt with in former acts, the former act will be repealed by the later act, although there is some difference in the provisions of the two statutes. A subsequent statute not repugnant in its provisions to the former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statutes. [Citations omitted].” [176 Miss. at 401, 166 So. at 543-44].

Section 97-17-3 makes arson a violation of the law punishable by imprisonment in the state penitentiary from two (2) to. twenty (20) years. Subsection (3) provides that a juvenile, who is found guilty under Subsection (1) shall not be eligible for probation until the juvenile has served at least six (6) months confinement in a state reform school. Section 97-17-3 is enforced by indictment and trial in the circuit court. If the state succeeds in the prosecution, the accused is found guilty by a jury. Persons who, by reason of their age, come under the jurisdiction of juvenile authorities, and have violated the law, are not found guilty, but are adjudged delinquent.

The Youth Court Law provides exclusive original jurisdiction in the Youth Court for matters concerning delinquent children. It further provides for a disposition hearing procedure and disposition alternatives in delinquency cases. We think that the Youth Court Law enacted in 1979 and amended in 1980 was clearly intended to set forth procedures and rules for the disposition of youths adjudicated to be delinquent, and clearly supersedes Section 97-17-3(3). Therefore, we hold that the lower court was authorized to proceed under Section 43-21-605 which sets forth the disposition alternatives in delinquency cases.

The judgment of the lower court is vacated, and this cause is remanded to it for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The lower court, in its finding, stated that it would be the order of that court for the minor child to stand committed to the custody of the Mississippi Department of Youth Services for placement at an appropriate state training school for a period of not less than six months. However, the order following that finding stated: "Finds that T.D.B. should be committed to the custody of the Miss. Dept, of Youth Services for placement at an appropriate state training school.”

      . There are exceptions where the circuit court has jurisdiction.


text:
    Mack Arthur KING v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, et al.
    No. 53027.
    Supreme Court of Mississippi.
    March 7, 1984.

      See also, 441 So.2d 1365.
    James E. Rocap, III, Washington, D.C., Wilbur 0. Colom, Colom, Mitchell & Colom, Columbus, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, William S. Boyd, III, and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Jackson, for appellees.
   WALKER, Presiding Justice,

for the Court:

ON PETITION FOR WRIT OF ERROR CORAM NOBIS

Mack Arthur King, pursuant to Mississippi Code Annotated section 99-35-145 (1972) by and through his counsel has petitioned this Court for permission to file a petition for writ of error coram nobis in the Circuit Court of Lowndes County for the purpose of determining whether the petitioner Mack Arthur King was denied effective assistance of counsel during the sentencing phase of his trial on a charge of capital murder in connection with the death of Lela Patterson on or about August 3, 1980.

PRIOR PROCEEDINGS

(1) On or about August 21, 1980, petitioner was indicted in the Circuit Court of Lowndes County for the crime of capital murder.

(2) On December 4-5, 1980, petitioner was tried, convicted and sentenced to death in the Circuit Court of Lowndes County.

On October 27, 1982, the Supreme Court of Mississippi affirmed the conviction and sentence of petitioner. King v. State, 421 So.2d 1009 (Miss.1982). On December 1, 1982, the Supreme Court of Mississippi denied petitioner’s petition for rehearing. On January 31, 1983, petitioner filed in the United States Supreme Court a petition for a writ of certiorari to the Supreme Court of Mississippi. On May 2, 1983, that petition was denied.

The petitioner, King, has now filed a petition seeking permission to file a petition for writ of error coram nobis in the Circuit Court of Lowndes County. The petition alleges numerous errors and omissions on the part of trial counsel and that such resulted in the petitioner being denied effective assistance of counsel as that term has been defined by this Court. Callahan v. State, 426 So.2d 801 (Miss.1983).

We have carefully examined King’s petition and are of the opinion that an eviden-tiary hearing should be held in the trial court and for that court to make findings of fact with reference to the numerous allegations of King’s petition; and, that after making a written finding of fact, the court should enter a finding as to whether the petitioner King was in fact denied effective assistance of counsel during the sentencing phase of his trial for capital murder.

If the court finds that King was not denied effective assistance of counsel, that finding should be immediately certified to this Court.

If the court finds that King was denied effective assistance of counsel, then the court should impanel a jury at the earliest convenient time for the purpose of conducting a rehearing on the question of whether King should suffer the penalty of death or be sentenced to life imprisonment.

KING’S PETITION TO BE ALLOWED TO FILE IN THE CIRCUIT COURT OF LOWNDES COUNTY A PETITION FOR WRIT OF ERROR CORAM NOBIS IS SUSTAINED.

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

      . and

      . Of course, the defendant and the State would have the right to appeal from such findings or order as in other cases.


author: JONES, Justice.

text:
    VULCAN FREIGHT LINES, INC. v. SOUTH CAROLINA INSURANCE COMPANY, INC.
    81-189.
    Supreme Court of Alabama.
    May 21, 1982.
    John R. Frawley, Jr., Birmingham, for appellant.
    W. Stancil Starnes and Randal H. Sellers, of Starnes & Atchison, Birmingham, for appellee.
   JONES, Justice.

This is an appeal by Vulcan Freight Lines, Inc., from a summary judgment: Vulcan claims the trial court erred in two aspects:

1) In its interpretation of certain coverage and exclusion provisions of a policy of liability insurance; and

2) In its failure to allow an alleged factual issue to be submitted for a jury determination.

A brief statement of the facts will suffice for the purposes of the issues presented.

Richard McKleroy was hauling freight for Vulcan from the U.S. Steel plant at Fairfield, Alabama, to the American Building Company at Eufaula, Alabama. The freight consisted of five 1,000-pound coils of painted steel. According to McKleroy’s deposition, as he approached Union Springs, Alabama, while traveling at about fifteen miles an hour, he came to a sharp right curve in the road. While McKleroy was going around the curve, the coils on the trailer shifted, broke loose from the pallets to which they were attached, and rolled off the trailer. During all of this (again, according to his deposition), McKleroy’s truck neither overturned nor collided with anything. The sole reason the coils came off of the trailer was the shifting of the load. After the coils were replaced on the trailer by means of a forklift, they were tied down with chains by McKleroy and he continued on his way to Eufaula.

A few miles south of Union Springs, for reasons unknown, one of the coils of steel came off the trailer again and rolled into the adjacent woods. It is without dispute, however, that the truck did not collide with anything and, on this occasion, it was almost dark. McKleroy could not obtain any help to reload this coil, so he continued on his way to Eufaula. At Eufaula, American Building Company refused to take possession of the cargo and refused to aid McKleroy in the recovery of the lost coil of steel.

On McKleroy’s return trip to Birmingham with the remaining coils, he stopped at the site of the second accident and tried to find the lost coil, but was unable to do so. The coil of steel which rolled into the woods was not found during a search conducted by U.S. Steel. Apparently, the coil was stolen. Its whereabouts is still unknown.

Vulcan’s claim against South Carolina Insurance Company is premised upon a policy of insurance containing the following pertinent provisions:

“THIS POLICY INSURES.
“The Insured's liability for loss of or damage to property insured hereunder directly caused by: ... (c) Collision, i.e., accidental collision of the vehicle with any other vehicle or object (the striking of curbing or any portion of the road bed or the striking of rails or ties of street, steam or electric railroads, or contact with any stationary object in backing for loading or unloading purposes, or the coming together of trucks and trailers during coupling or uncoupling shall not be deemed a collision); ...
“PROPERTY EXCLUDED.
“This policy does not insure the Insured’s liability for: ... (f) loss or damage caused by or resulting from theft of property that is not contained within a fully enclosed wood or metal cargo compartment of the transporting vehicle.”

Notwithstanding Appellant’s earnest insistence that we read some degree of ambiguity into the policy provisions quoted above, and thus construe its terms favorable to the insured, we are constrained to agree with the trial court’s interpretation that no insurance protection is afforded under the circumstances of this issue.

We find neither ambiguity in the policy language nor public policy considerations that cause us to effect a different result than that which obtained in Alabama Farm Bureau Mutual Casualty Insurance Company v. Goodman, 279 Ala. 538, 188 So.2d 268 (1966), where the following principle was laid down:

“In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability, and to impose whatever conditions they please upon their obligations not inconsistent with public policy; and the courts have no right to add anything to their contracts, or to take anything from them.”

Alabama Farm Bureau v. Goodman, 279 Ala. at 541, 188 So.2d 268.

Absent a factual dispute as to whether one or both of the incidents in question involved a collision as defined by the contract of insurance, the clear and unambiguous language of the policy precludes coverage for the claimed loss. Likewise, under the “Property Excluded” provision, it is equally clear that the theft of the one coil lost from the truck during the second incident is not covered.

Vulcan’s second contention of error is also without merit. Appellant’s counsel insists that a factual issue exists as to the collision coverage with respect to the initial loss of the five coils. McKleroy’s “no collision” testimony by deposition is contradicted by Plaintiff’s answer to Defendant’s interrogatory as to how the accident occurred, to which Plaintiff responded:

“Our truck had a tire blowout near Union Springs, Alabama, which proximately caused the truck to hit a concrete storm drain upsetting the load which caused the chains and binders to break and the load to fall off.”

Plaintiff maintains that this response was based on McKleroy’s earlier version of the initial incident in which all five coils were thrown from the truck.

The weakness of this contention is inherent in the nature of the two alleged contradictory statements. The record discloses only one statement by McKleroy — that contained in his deposition. The answer to the interrogatory is a statement signed by one Harvey J. Baker, Operations Manager, Vulcan Freight Lines, who possessed no firsthand knowledge of the incident in question.

Of the two statements — McKleroy’s deposition disclaiming any collision and Baker’s answer to interrogatories claiming a collision — only McKleroy’s statement is admissible evidence; and, thus, there being no genuine issue as to any material fact, the case was appropriately postured for summary judgment. A.R.C.P. 56(e); and Morris v. Morris, 366 So.2d 676 (Ala.1978).

Finding that the trial court ruled correctly on the questions of law presented, we affirm the judgment.

AFFIRMED.

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


author: TORBERT, Chief Justice. SHORES, Justice

text:
    Sadie FOSTER v. GREER AND SONS, INC. Sadie FOSTER v. LINCOLN ELECTRIC COMPANY, INC. Sadie FOSTER v. INTERNATIONAL PAINT COMPANY, INC. Sadie FOSTER v. ALABAMA POWER COMPANY, INC. Sadie FOSTER v. PETTIBONE CRANE CO., INC. Sadie FOSTER v. MARINE AND INDUSTRIAL SUPPLY CO., INC.
    82-403 to 82-408.
    Supreme Court of Alabama.
    Jan. 27, 1984.

      Michele Gaudin and Patrick D. McArdle of DeSalvo & McArdle, New Orleans, La., and Timothy Grogan of Montiel, White & Grogan, Mobile, for appellant.
    T. Dwight Sloan of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Alabama Power Co.
    Charles J. Fleming and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Pet-tibone Crane Co. Inc.
    Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for appellee Marine and Industrial Supply Co., Inc.
    A. Neil Hudgens and Michael S. McGlo-thren, of Brown, Hudgens, Richardson, Whitfield, & Gillion, Mobile, for appellee Lincoln Elec. Co.
    Joseph J. Boswell, Mobile, for appellee Greer & Sons, Inc.

      . There was an order entered March 10, 1982, stating that the trial court in entering the order granting defendant Alabama Power Company’s amended motion to dismiss on December 21, 1981, relied not only on the ground set forth in the amendment but also on the grounds in the original motion. Even if the court did rely on other grounds in dismissing Alabama Power, it does not affect the outcome of this case, since there would still not be a valid dismissal of International Paint, which had raised only the unauthorized practice of law ground. Therefore, the orders of dismissal as to the other defendants were not final and appealable in the absence of a proper 54(b) order. Further, we question the validity of this order, because it was entered without giving plaintiff an opportunity to argue the merits of the other .grounds specified in Alabama Power’s motion to dismiss, thereby depriving plaintiff of her right to procedural due process. Taylor v. Taylor, 292 Ala. 569, 298 So.2d 8 (1974).

   TORBERT, Chief Justice.

This is a personal injury case arising from the alleged wrongdoing of nine fictitious and named defendants. Two of the original defendants were dismissed early on, and this appeal does not concern them. One defendant, sued under the name “Bur-is Erie Crane Company, Inc.,” was never served. The original and amended complaint was signed and filed by out-of-state attorneys who had not obtained pro hac vice admission or obtained licenses in Alabama. Defendant Greer and Sons, Inc. made a motion to dismiss the complaint on the ground that the improperly signed complaints failed to invoke the jurisdiction of the court. The trial court dismissed the complaint as against Greer and Sons on October 23, 1981, stating as its ground the fact that plaintiffs counsel were not licensed to practice law in Alabama. Defendant Lincoln Electric’s similar motion to dismiss was granted on October 28, 1981. Defendants Pettibone Crane and Marine and Industrial Supply were dismissed on November 20, 1981, after making similar motions.

On December 4, 1981, plaintiff, Sadie Foster, filed a notice of appeal as to the dismissal of Greer and Sons and Lincoln Electric. Subsequently, the trial court dismissed the remaining served defendants, Alabama Power Co., Inc. and International Paint Co., Inc. Plaintiff appealed from the dismissal of Pettibone .Crane and Marine and Industrial Supply on January 4, 1982; and appealed from the dismissal of Alabama Power and International Paint on March 19, 1982. The trial court entered Rule 54(b), A.R.Civ.P., orders as to Lincoln Electric, Greer and Sons, Pettibone Crane, and Marine and Industrial Supply after appeals were taken from the dismissal orders.

All those appeals were dismissed by this Court on the ground that there was no final judgment or proper order under Rule 54(b), A.R.Civ.P., except that the order dismissing the appeal as to Alabama Power was granted because it was not taken within the time required under the rules. The orders by the trial court dismissing the complaint were essentially identical, and only the appeal regarding Alabama Power was in fact filed after the 42 days allowed for appeal had apparently run. After this Court dismissed the last of those appeals on December 13, 1982, the trial court, on motion of the plaintiff, dismissed “Buris Erie Crane Company” on January 31, 1983, and plaintiff filed these present appeals on that same day.

Once again we fail to reach the merits of these appeals. An understanding of the reasons for our dismissal of the earlier appeals is useful in understanding our decision in dismissing these present appeals.

The plaintiff first appealed from the dismissals by the trial court of Greer and Sons and Lincoln Electric on December 4, 1981. At that time Alabama Power, International Paint, and “Buris Erie Crane” were still defendants in the trial court. An order in an action involving multiple parties or claims that fails to adjudicate the rights or liabilities of all the parties is ordinarily not a final order and therefore will not support an appeal. A.R. Civ.P., Rule 54(b); Tubbs v. Brandon, 366 So.2d 1119 (Ala.1979). The orders dismissing Greer and Sons and Lincoln Electric were interlocutory, since they did not adjudicate the rights or liabilities of all the parties, and, therefore, they were not ap-pealable.

Rule 54(b), however, allows the trial court, in its discretion, to enter a final judgment “as to one or more but fewer than all of the claims or parties ... upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” A.R. Civ.P., Rule 54(b). In this case there was no such 54(b) order entered at the time the appeal was taken. The 54(b) orders entered after the appeal was taken were nullities, since the trial court was without power at that time to enter them. Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979). The appeal regarding Greer and Sons and Lincoln Electric was, therefore, properly dismissed.

The appeal as to Pettibone Crane and Marine and Industrial Supply was also dismissed for lack of a final judgment, there being, again, no proper 54(b) order. At the time the appeal was filed as to these defendants, the trial court had not yet dealt with International Paint or “Buris Erie Crane”; therefore, the orders of dismissal were not final judgments. Tubbs, supra. Again the trial court’s attempt to create finality with a 54(b) order was ineffectual, since the trial court was without power to enter it after the appeal had been taken. Thames, supra.

Plaintiff next appealed from the trial court’s dismissal of Alabama Power and International Paint. The appeal, insofar as it regarded Alabama Power, was dismissed by this Court because it was not filed within 42 days of the dismissal order. The appeal, insofar as it regarded International Paint, was dismissed for lack of a final judgment. Although the appeal was properly dismissed as to both defendants, our reason for dismissing it as to Alabama Power was not correct.

There was no valid trial court order dismissing Alabama Power and International Paint on the ground that the complaint failed to invoke the court’s jurisdiction. This is true because the trial court was without jurisdiction to enter such an order. The trial court first acted on the Greer and Sons motion to dismiss, which only alleged ' that the complaint signed by unlicensed attorneys failed to invoke the jurisdiction of the court. After hearing oral argument only on that motion, the trial court dismissed the complaint as to Greer and Sons on the ground that plaintiff’s counsel were not licensed to practice law in Alabama. The trial court next granted Lincoln Electric’s motion to dismiss, which raised only the same ground. All other served defendants were dismissed after making similar motions, or after amending existing motions to include the ground alleged by Greer and Sons. None of the trial court dismissal orders entered after the order dismissing Greer and Sons stated the grounds for dismissal, but we conclude— given the sequence of events in the trial court — that the subsequent orders were granted on the same ground.

Plaintiff’s appeal from the dismissal of Greer and Sons and Lincoln Electric came after the trial court had also dismissed Pettibone Crane and Marine and Industrial Supply, but before any action was taken as to Alabama Power or International Paint. The issue on that first appeal, as stated by the appellant in her brief on that first appeal, was “whether the complaint filed and signed in the trial court on behalf of the Alabama plaintiff-appellant constituted a valid appearance so as to invoke the jurisdiction of the trial court.” The rule has been stated many times that when an appeal is taken the trial court may proceed only in matters entirely collateral to that part of the case which has been taken up by the appeal, but can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court. Reeves v. State, 419 So.2d 217 (Ala.1982); Osborn v. Riley, 331 So.2d 268 (Ala.1976); Barran v. Roden, 263 Ala. 305, 82 So.2d 398 (1955). This is an application of the general rule that jurisdiction of a case can be in only one court at a time. Walker v. Alabama Public Service Comm’n, 292 Ala. 548, 297 So.2d 370 (1974).

The issue on the first of plaintiff’s prior appeals was whether the improperly signed complaint invoked the trial court’s jurisdiction. Even though we later dismissed that appeal for lack of a final judgment and therefore for lack of jurisdiction in this Court, until that determination was made, this court and the trial court were ’bound by the presumption that this Court did have jurisdiction. Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979). The action taken by the trial court after the first appeal did involve different defendants, but the issue was the same, and for purposes of the present problem, the identity of the defendants was immaterial. The dismissal order was entered strictly as a result of the allegedly improper conduct by the plaintiffs attorneys. If the complaint failed to invoke the jurisdiction of the trial court as to any defendant, then it failed to invoke the jurisdiction of the trial court as to all defendants. That jurisdiction question was before this Court when the trial court attempted to act by dismissing the last two served defendants on that ground. We conclude that the trial court was without jurisdiction to enter any orders dismissing the remaining defendants on the ground that because the plaintiffs counsel was not authorized to practice law in Alabama the complaint failed to invoke the jurisdiction of the trial court. Therefore, the trial court orders dismissing Alabama Power and International Paint on that ground were nullities. Cf. Thames, supra; Gibson v. Edwards, 245 Ala. 334, 16 So.2d 865 (1944).

The appeal, as it regarded International Paint, was, therefore, properly dismissed for lack of a final judgment (actually, there existed not even a valid interlocutory order of dismissal), and the appeal as it regarded Alabama Power should have been dismissed for the same reason. The time for filing an appeal, as set out in Rule 4(a), A.R.A.P., cannot begin to run until there is a final judgment. The procedural complexity of this case, the result in no small part of the attempt to prematurely appeal in a piecemeal fashion the jurisdictional question, led to our assignment of the wrong reason for the dismissal. Only when we had the entire record of the proceedings in the trial court with respect to all defendants was it possible to discern the true posture of the case.

These present appeals are, therefore, due to be dismissed for want of a final judgment. At the time these present appeals were taken, the trial court had jurisdiction to enter orders dismissing all of the defendants. The orders dismissing Greer and Sons, Lincoln Electric, Pettibone Crane, Marine and Industrial Supply, and “Buris Erie Crane” may be taken as proee-durally valid; but there has not yet been a procedurally valid order dismissing Alabama Power or International Paint. The trial court’s orders dismissing Alabama Power and International Paint on the unauthorized practice of law ground were nullities at the time they were entered and are of no effect at this time. Upon remand, trial court can create finality as to all defendants by dismissing Alabama Power and International Paint: or, by entering proper 54(b) orders with respect to the previously dismissed defendants, it can create finality as to those defendants. Alternatively, the trial court can vacate the prior dismissals and proceed to trial.

The adoption of our rules of civil procedure, which provide for the liberal joinder of claims and parties, created the need for a vehicle to allow an appeal from an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Rule 54(b) is that vehicle. It allows the court to enter a final judgment immediately if, under the circumstances, to wait until the entire case is decided would create injustice. Its non-use or improper use can lead to the kind of problems encountered in this case and can create, rather than eliminate, unnecessary delay.

In light of the purpose behind Rule 54(b), we take this opportunity to announce a new procedure in this Court. When it appears from the record that the appeal was taken from an order which was not final, but which could have been made final by a Rule 54(b) certification, we will remand the case to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and, if it so chooses, to enter such an order and to supplement the record to reflect that certification. The judgment will be taken as final as of the date the 54(b) certification is entered. This should not be viewed as an attempt to promote the improper use of Rule 54(b), but only as a means of advancing the policy behind Rule 54(b) in a proper case. Rule 54(b) certifications should be granted only in exceptional cases and “should not be entered routinely or as a courtesy or accommodation to counsel.” Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978).

This approach does not conflict with the rule stated in Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979). It is still true that the trial court is without jurisdiction to enter a Rule 54(b) certification after an appeal is taken. However, if this Court remands the case to the trial court for the opportunity of making such a certification, the trial court will have the limited jurisdiction to enter a 54(b) certification if, in its discretion, it decides the entry of such a certification is appropriate. Adoption of this procedure will advance the policy considerations underlying Rule 54(b) by speeding up the process of reaching the merits in a proper case. It eliminates the inconvenience and cost of dismissing the appeal and then taking a new appeal after obtaining the Rule 54(b) certification.

The dissenting opinion expresses a desire to reach the merits. We also regret not being able to reach the merits. Overruling Thames, supra, however, would not allow us to reach the merits in this case. Assuming that the Rule 54(b) orders did validly create final judgments, we would fail to reach the merits because these present appeals would not have been timely filed. The time for filing notice of appeal began to run at the latest on December 13, 1982, when this Court dismissed the last of the premature appeals. Notice of appeal filed on January 31, 1983, would not have been timely and these appeals would be dismissed.

The concern of the dissenting Justices that a party could oust the circuit court of jurisdiction at any time by filing notice of appeal from an interlocutory order is well taken, but it is not unique to a multiple-party or multiple-claim situation. The problem exists in even the most simple single-party, single-issue litigation if a party decides to attempt an appeal from an interlocutory order. The Code of Professional Responsibility and Rule 38, A.R.A.P., should act as deterrents to the attorney who attempts to gain an unwarranted delay or continuance by manipulating this procedure. Under our holding in the instant case, the trial court only loses jurisdiction over the issues involved in the appeal.

The dissent would allow the trial court to create finality after an appeal is taken. Such a holding would only create more confusion. An appellate court should be able to determine from the record if an order is final. Otherwise, it might dismiss an appeal as premature, when in fact the trial court had taken the steps necessary to create finality.

These appeals are due to be, and they hereby are, dismissed.

APPEALS DISMISSED.

MADDOX, FAULKNER, EMBRY and ADAMS, JJ., concur.

ALMON, J., concurs in the result.

JONES, SHORES and BEATTY, JJ., dissent.

SHORES, Justice

(dissenting):

I dissent.

Rule 1 of the Alabama Rules of Civil Procedure states in mandatory terms that this Court is to construe the rules to secure the just, speedy, and inexpensive determination of every action. It has been observed that it is impossible to overstate the significance of this part of Rule 1. “There probably is no provision in the federal rules that is more important than this mandate.” 1 C. Lyons, Alabama Practice § 1.6 (1973), quoting 4 Wright & Miller, Federal Practice and Procedure, Civil, § 1029 (1969). The Alabama rule is identical to the federal rule in this regard and so is Rule 1, A.R. A.P., and the Committee Comments to that rule correctly state the philosophy of both the Rules of Civil Procedure and the Rules of Appellate Procedure:

“As is the case with the ARCP, it is the policy of these rules to disregard technicality and form in order that a just, speedy and inexpensive determination of every appellate proceeding on its merits may be obtained.”

If this policy has not been disregarded in this case, I cannot imagine a more extreme one.

This case has been in process now for more than three full years, and this plaintiff has yet to get a determination of whether she is in court or not in court.

I would reach the merits of this case and decide whether the trial court erred in dismissing each defendant on the ground that the filing of the complaint by lawyers not licensed in Alabama failed to invoke the jurisdiction of the court. In addition, I would overrule Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979). If the appeal to this Court by one of the defendants was due to be dismissed because the judgment appealed from lacked finality and, thus, would not support an appeal, leaving this Court without jurisdiction to entertain the appeal, then the trial court had jurisdiction to enter the Rule 54(b) order. Where was jurisdiction? If not here, because the judgment appealed from lacked finality, then it had to be in the circuit court, thus enabling the trial judge to enter a valid 54(b) order. I cannot accept the majority’s holding that the trial court was without jurisdiction to enter a 54(b) order simply because a premature notice of appeal had been filed. If that is true, a party could oust the circuit court of jurisdiction at any time by filing a notice of appeal from any interlocutory order and, if that conferred jurisdiction here until we dismissed the appeal, and we took as long as we did in this case to rule on the motion to dismiss, a full year, substantial justice would not be served but thwarted.

I would hold that once the trial court entered 54(b), A.R.Civ.P., orders, the appeal here was proper and allowed us to reach the merits. In other words, where as here, an appeal is already pending at the time the 54(b) order is entered, that appeal is validated as then being an appeal from a final judgment. In effect, this is what the majority opinion suggests as the appropriate procedure for questionable 54(b) dismissals in future cases. Why not make that procedure applicable to the instant case?

To suggest that prior appeals in this case which were prematurely dismissed cannot be reinstated because of some imaginary, out-of-term problem is to suggest that this Court is without authority to correct its own error. I would reinstate each of the improperly dismissed appeals and decide all of the appeals on their respective merits.

JONES and BEATTY, JJ., concur.

      . We are extremely reluctant to dismiss these' appeals again. Our failure to reach the merits will continue the delay experienced by the plaintiff in her quest for compensation for her serious injuries. The delay is the result of the alleged wrongdoing of her attorneys. Failure to obtain a license or obtain pro hac vice admission njay be a possible criminal violation, but such violation should not serve to punish the plaintiff by dismissal. Cf. Owens v. Bank of Brewton, 53 Ala.App. 529, 302 So.2d 114 (1974).

      . The adoption of an amendment to Rule 54(b), A.R.Civ.P. effective March 1, 1982, changed the significance of having an unserved defendant in multiparty litigation, where all served defendants have been dismissed. Prior to that amendment of Rule 54(b), the existence of the un-served defendant prevented the dismissals of the served defendants from being a final appealable judgment. See Ford Motor Credit Co. v. Carmichael, 383 So.2d 539 (Ala.1980). The March 1, 1982, amendment to Rule 54(b), in conjunction with an amendment to Rule 4(f), A.R.Civ.P., effective the same date, changes the prior effect of Rule 54(b), so that no longer does the existence of an unserved (and undismissed) defendant forestall the finality that would otherwise attach upon the disposition of all served defendants.

      . We see no legal barrier to such an approach. In Morris v. UHL & Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir.1971), the court of appeals entered an order allowing the trial court to enter a 54(b) order. In Cold Metal Process Co. v. United Co., 351. U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956), the Supreme Court, in reaching its decision that the certification in that case was not an abuse of the trial court's discretion, noted, without comment, that the court of appeals had permitted the District Court to enter a Rule 54(b) certification after the appeal was taken.