author: ROY NOBLE LEE, Justice, DAN M. LEE, Justice, ROY NOBLE LEE, Justice,

text:
    William WILEY v. STATE of Mississippi.
    No. 54642.
    Supreme Court of Mississippi.
    Jan. 4, 1984.
    Rehearing Denied May 16, 1984.

      James D. Franks, Hernando, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   PART I

GUILT PHASE

ROY NOBLE LEE, Justice,

for the Court:

William Wiley was indicted and tried in the Circuit Court of DeSoto County, Honorable Andrew C. Baker, presiding, on a charge of capital murder. In a bifurcated trial, he was found guilty of capital murder and was sentenced by the jury to suffer the death penalty. He has appealed to this Court, assigning seven (7) errors in the trial below.

J.B. Turner operated a small convenience store in rural DeSoto County, Mississippi, usually keeping the store open from 7 a.m. until 12 p.m. Shortly after closing the store on August 21, 1981, Mr. Turner and his daughter were outside the store when they were both shot at close range with a .20-gauge shotgun. Mr. Turner was shot once in the chest and once in the back with small shotgun pellets and his daughter, Mrs. Patricia Harvey, was shot about the head and upper chest, but survived.

Mr. Turner had a money sack in which he carried $350 to $400. The money was taken by the assailant. Deputy Sheriff B.A. Herron arrived at the scene shortly after the shooting. Mr. Turner was lying near the building on his back, face up, and was dead. Mrs. Harvey was in a sitting position nearby, bleeding about the face and was blinded and seriously injured. Subsequently, an investigation at the scene disclosed three spent .20-gauge shotgun shells and one unfired, live round. A green army fatigue cap was discovered near the scene. Four days later, a .20-gauge pump shotgun was found by Max Wallace, a personal friend of the victim, in the weeds and bushes behind the convenience store. He did not remove the shotgun, but summoned officers from the sheriff’s office who took possession of the gun.

Two and one-half weeks later, William Wiley was arrested in Memphis, Tennessee. He confessed to the robbery and murder. Wiley led officers to a place where he threw away the money bag after taking the money from it. He then took them to an old Pontiac automobile near his girlfriend’s house and showed them where he kept the shotgun hidden prior to the robbery-murder.

I.

Were comments of the trial judge during the cross-examination of B.A. Herron prejudicial?

During the cross-examination of Deputy Sheriff B.A. Herron, the appellant’s attorney interrogated him as to whether or not it was normal procedure to tape the interrogation of someone suspected of committing a crime. Mr. Herron had recorded the interrogation of appellant. Five pages of the record were consumed in the cross-examination on that particular point and questions were asked him as to whether or not he remembered testifying a week previous in another case that he taped the interrogation of a defendant. His answers were “probably no” and that “he did not remember.” Finally, the district attorney objected and the following colloquy ensued:

Q. That is not what I’m asking you. I’m asking you what you told the Jury, made up of people just like this, last week, under questioning by Mr. Kelly?
A. I don’t remember.
Q. You don’t remember?
A. No, sir.
Q. You don’t remember back last week? You remember the questioning. Is that correct?
A. I remember he asked a similar question.
Q. Well, you just got through stating that you remembered the question. Do you remember the question or not?
A. Well, he asked about a tape recorder, but I don’t remember what I answered.
Q. Do you remember him asking you if it was your normal procedure to tape record interrogation of a person who was suspected of a crime? Do you remember him asking you that?
A. Yes, sir.
Q. You remember the question. Is that correct?
A. Yes, sir. He asked me that question.
Q. But, you don’t remember your own answer. Is that correct?
A. I don’t normally do it.
Q. I’m not asking you that. I’m asking you whether you know your answer or not.
A. No, sir. I don’t know exactly what I told him that morning.
Q. Do you know approximately what you told him that morning? Did you tell him “yes” or “no?”
A. I told him “no” probably.
Q. You told him “no probably” or you probably told him “no?”
A. Either way. I don’t normally tape a — use a tape recorder.
Q. Are you trying to be evasive, Mr. Herron?
A. No, sir. I just don’t normally use a tape recorder.
ASSISTANT DISTRICT ATTORNEY (Mr. Williams):
Your Honor, he’s doing his dead level best to answer the question.
THE COURT: He’s answered it, I think, five or six times, and I don’t think it’s going to be any. different, Mr. Franks, and we’ll move on to something that might be a little bit more beneficial to the Jury.
COUNSEL FOR DEFENDANT (Mr. Franks): I’m sorry, Your Honor, I’ll move on but I wasn’t aware that.
THE COURT: Well, if I thought that you could ever get him to change his mind, I’d let you go on all day, but I think, Mr. Herron has answered the question just the way he remembers it and I ’don’t see any point in dwelling any longer.
COUNSEL FOR DEFENDANT (Mr. Franks): Well, was his answer “yes” or “no” or he didn’t remember. I hon- ■ estly do not know what his answer was.
THE COURT: Well, let him repeat it one more time.

A. I don’t normally take a statement— take a tape recording.

COUNSEL FOR DEFENDANT (Mr. Franks): Your Honor, that’s what I’m getting at. That’s not the question I asked him.
THE COURT: Well, do you have anything to refresh the witness’s memory with, Mr. Franks? I sat here in this box and conduct the trial and I swear before God I don’t know what his answer was, nor whether he does or not, I don’t know. Have you got anything to impeach his testimony with, fine, but, just as far as verbal argument, I don’t think you're going anywhere. COUNSEL FOR DEFENDANT (Mr. Franks): Your Honor, all I want is to get a definitive answer. There’s certainly plenty of impeachment proof.
THE COURT: Well, if you have something, let’s go with it. If you’ve got something, you know, impeachment— this is cross examination — that’s the purpose of it.

It is understood how the trial judge became worn and probably provoked at such a long cross-examination of the witness on a matter which, in our opinion, was immaterial and irrelevant. Appellant’s counsel apparently was trying to impeach the witness on an immaterial matter, which is not permitted under our trial procedure. Carlisle v. State, 348 So.2d 765 (Miss. 1977); Sims v. State, 313 So.2d 388 (Miss. 1975).

We do not think the trial judge’s remarks prejudiced the jury and they did not constitute reversible error. In addition, no record was made of any objection to the statement of the trial judge. Therefore, the point was not preserved and, consequently, was waived. Smith v. State, 434 So.2d 212 (Miss.1983). It is the duty and responsibility of the trial judge to control and channel the interrogation and arguments of attorneys so as to insure an efficient and orderly trial. Carr v. State, 208 So.2d.886 (Miss.1968).

II.

Did the lower court err in allowing into evidence, over appellant’s objection, testimony and documentary evidence of the defendant’s confession?

The trial court granted appellant a suppression hearing upon a challenge by him that the confessions were not admissible because appellant had requested an attorney during the Miranda warnings. Appellant further claims a violation of his Miranda rights.

Appellant was advised of his Miranda rights on September 4, 1981, by Memphis Police Officer Williams; September 7,1981, by Investigator Radford, at which time he filed a waiver of rights; twice on September 10, 1981, by Officer Stewart prior to giving the confession; and last on September 11, 1981, by Deputy Riley before leading officers to the money bag and automobile in which he had hidden the shotgun.

Appellant testified that, at the outset of the Miranda warning given him by Officer Stewart on September 10, he stated he wanted an attorney. However, all the officers present testified that appellant did not ask for an attorney and that, if he had so indicated, they immediately would have ceased questioning and would have provided him with the opportunity to obtain counsel. The cross-examination of appellant reflects positively and emphatically that he was aware of his constitutional rights and his right to an attorney and that he did not ask for or want an attorney during that time.

The trial judge found that the appellant was properly advised of his constitutional rights under Miranda and that the confession was free and voluntary. The evidence overwhelmingly supports the finding of the trial judge and there is no merit in this assignment of error. Harrigill v. State, 381 So.2d 619 (Miss.1980); Curry v. State, 328 So.2d 328 (Miss.1976); and Clemons v. State, 316 So.2d 252 (Miss. 1975).

III.

Did the lower court err in admitting into evidence, over timely objection, certain items claimed to be “fruit of the poisonous tree?”

The appellant contends that the evidence found by the officers as a result of the confession and appellant’s leading them to it, was “fruit of the poisonous tree,” citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), because the confession was inadmissible.

Since we hold that the confession was admissible and there is no merit in Assignment II, this assignment likewise is without merit.

IV.

Was the testimony of Coroner Roger Jones as to the findings of the coroner’s jury prejudicial?

Appellant contends that the court erred in admitting certain testimony of Coroner Roger Jones as to the cause of Mr. Turner’s death. That testimony follows:

Q. You held a Coroner’s Inquest?
A. Yes, sir.
Q. Was the cause of death determined?
A. Cause of death was determined by the Jurors. It was a gunshot wound to the chest.
Q. Did you as County Coroner sign the Certificate of Death of J.B. Turner?
A. Yes, sir. I did.
Q. On that Certificate of Death, there’s a portion for cause of death. Was that filled in by you?
A. Yes, sir.
Q. And, what was the cause of death certified by you on the Certificate of Death?
A. Gunshot wound to the chest.
Q. Mr. Jones, were you able to determine the type of gun — whether it was a rifle or a shotgun?
A. Yes, sir. It was a shotgun.

The verdict of a coroner’s jury is not admissible in evidence on the trial of a defendant charged with murder. In Blackwell v. State, 166 Miss. 524, 529, 146 So. 628, 629 (1933), this Court said:

[T]he general rule is that the finding of a coroner, or the verdict of a coroner’s jury as to the manner and cause of the death of the deceased, is not admissible in evidence for any purpose.

The testimony by the coroner that “Cause of death was determined by the Jurors. It was a gunshot wound to the chest.” was inadmissible. However, the error was harmless because other evidence in the case, both direct and circumstantial, established beyond reasonable doubt that the death of Mr. Turner was proximately caused by a gunshot wound to the chest. Cause of death may be established not only by a physician or pathologist, but by lay and circumstantial evidence.

V.

Did the lower court err in admitting into evidence, over objection, a picture of the appellant?

When the officers accompanied appellant to the place where he discarded the money bag taken from Mr. Turner, he was handcuffed and a restraint chain was placed around his waist and legs. When appellant found the spot where the money bag lay, the officers took a photograph of him pointing to the money bag. Appellant contends that the photograph was prejudicial because it indicated to the jury that appellant was dangerous. (He was handcuffed and in chains).

We do not think that the photograph constitutes a tabloid as has been held in some cases where individuals not connected with a crime are shown holding, or pointing, to an item of evidence. The record indicates that when the officers left with appellant, it was a customary police caution to handcuff and chain the prisoner for the protection of the officers and him. The photograph showed no more than the testimony indicates. It had probative value in corroborating appellant’s confession and in showing his cooperation with the investigating officers to find the item of evidence. Wall v. State, 413 So.2d 1014 (Miss.1982).

VI.

Did the lower court err in admitting two photographs of deceased’s body to corroborate the coroner’s testimony?

Appellant last contends that photographs of Mr. Turner’s body prejudiced the jury against him and that the court erred in admitting them in evidence.

The photographs had probative value. They showed the location, kind and condition of the wounds on Mr. Turner’s chest and back, and were relevant to the cause of death and the manner in which the wounds were inflicted.

We are of the opinion that the lower court did not abuse its discretion in admitting the photographs in evidence. Hubbard v. State, 437 So.2d 430 (Miss.1983); Hill v. State, 432 So.2d 427 (Miss.1983); Palmer v. State, 427 So.2d 111 (Miss.1983); Shearer v. State, 423 So.2d 824 (Miss.1982).

The judgment of the lower court on the guilt phase is affirmed.

AFFIRMED.

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

PART II

SENTENCING PHASE

DAN M. LEE, Justice,

for the Court:

Wiley, has assigned only one error in regard to the sentencing phase of his trial. He argues that the prosecutor improperly commented on the reviewability of the death sentence during closing arguments to the jury. Because we find merit in this argument we must reverse Wiley’s sentence of death and remand this cause for a new trial on the sentencing phase alone.

During the prosecutor’s initial remarks of his final argument he made the following statement:

Now I don’t know what Mr. Franks [the defense attorney] will say. He’ll probably attempt to put you gentlemen in the role of a hangman. I don’t know, but the lawyers that I’ve tried eases against in the past have done it and that’s unfair because you’re not., (Emphasis added)

Following the prosecutor’s initial argument, defense counsel responded with an argument which included the following:

I want you to remember that if he’s sentenced to life in prison, you’re not giving him life, you would be sentencing him to spend the rest of his life in prison in Parchman, Mississippi. That is not letting somebody off. I don’t care what Mr. Williams will call it, I don’t care how he wants to phrase it, that is not letting somebody off.... When you get through there’s not going to be somebody to walk up to you and say, “Yes, you made the correct verdict,” or “No, you made an incorrect verdict.” It’s your decision and one that you will have to live with. You vote for — you vote to have William Wiley executed, you’re going to have to live with that. You are also going to have to live with it, if you don’t. If you vote to send him to prison for the rest of his life, that’s something else you’re going to have to live with.

These comments were followed by the prosecutor’s final argument in which he stated:

He [defense counsel] tells you, and I wrote his words down, that the State wants to kill a man and that you’ll have to live with this the rest of your life. He’s attempting to put you in the role of a hangman. It’s unfair. It’s totally unfair. He knows just as well, like I know and every other person that’s familiar with the Court system, that any decision you render is automatically reviewable.

At this point the defense counsel objected and moved for a mistrial. The trial judge overruled the objection and denied the motion.

This issue is a point we have written on many times in the past months; but, in an effort to make absolutely clear the intent of our holdings, we will again discuss the subject at some length.

In California v. Ramos, — U.S. -, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the United States Supreme Court held that informing a jury of the governor’s power of commutation does not deprive a defendant of a fair trial. This holding was a cautious one in that it addressed only the commutation issue and, more importantly, expressly reserved to the individual states the right to determine what post-sentencing matters are properly placed before a jury. Therefore, the Ramos decision provides us no guidance other than pointing to the direction of the forest; we are free to choose our own path.

The path chosen as the law of this state is the one, which, in our opinion, will prove to lead most directly to a fair determination on the issue of sentencing. Our course was set in Howell v. State, 411 So.2d 772 (Miss.1982), wherein we held that a prosecutor’s argument which informed the jury that their verdict was subject to a right of appeal constituted reversible error. The rationale of the Howell decision is designed to secure the individual juror’s sense of responsibility for the fate of the accused.

In Hill v. State, 432 So.2d 427 (Miss. 1983), our holding followed the Howell path but we failed to reverse because of a procedural bar, i.e., failure of Hill’s attorney to object at trial to the improper comments. The procedural bar notwithstanding, we used strong language to indicate that arguments such as the one now before us are highly disapproved of and not good practice:

Any argument by the state which distorts or minimizes this solemn obligation and responsibility of the jury is serious error. Every attorney knows the jury verdict is indeed the last word on a factual dispute. Neither the circuit judge nor this Court is authorized to set aside a jury verdict on conflicting evidence, or a disputed factual issue. Moreover, in a death penalty case a jury should never be given false comfort that any decision they make will, or can be, corrected.
In Howell v. State, 411 So.2d 772 (Miss.1982), which was not a death penalty case, we condemned a “last word” argument.
A prosecutor making this sort of argument is asking for a mistrial. (Emphasis added). [432 So.2d at 439].

The rationale of these decisions holds true today and we will not here waiver from its course. The role of juror in a capital murder trial brings with it an awesome responsibility. Fortunately, few of us are ever required to make the decision whether to end another human being’s life; however, that is precisely the question confronting jurors following a guilty verdict in a capital case. Such decision is so ominous that it becomes almost trite to attempt to assess the introspection, concern, and solemnity that accompany it.

Because of the importance of the jurors’ deliberations we must be cautious in avoiding any actions which tend to reduce the jurors’ sense of responsibility for their decision. They must not be permitted to look down the road for someone to pass the buck to. Arguments by a prosecutor which relate the reviewability of a jury’s verdict have exactly this dangerous effect. Jurors faced with the portentous duty of deciding an accused’s fate will take comfort in the fact of review. They may view their role as merely advisory, a view that can prove fatal to an accused.

Under our law the jury is the sole player in the judicial process who may vote to send an accused to die. They alone make that determination and all review is then conducted with a presumption of its correctness. While a jury is not literally “the hangman,” only they may supply the hangman’s victims. All notions of justice require that the jurors as individuals, and as a body, recognize and appreciate the gravity of their role.

It has been argued that the prosecutor’s comments in the instant case were invited when defense counsel argued that the jury should vote to sentence Wiley to “spend the rest of his life in prison in Parchman, Mississippi.” This notion is meritless. The only statutory alternative to imposition of the death sentence is life imprisonment. Miss.Code Ann. § 99-19-101 (Supp.1983). What twisted bit of logic it would be for us to hold that the defense counsel’s sole argument to save his client’s life is an invitation to error.

We conclude by noting the atrociousness of the crime William Wiley stands convicted of and the dedication of the prosecutors who seek to bring him and others like him to justice. There is no member of this Court who would not be loathe to see a vicious murder go unpunished, but that is not the point. We are here addressing the means by which we select and impose the punishment. Those means must not be tainted for they then become unjust and we surrender the very mandate which empowers us to pass judgment.

Nearly a century ago Justice Woods eloquently phrased the message behind today’s holding:

The fair way is the safe way, and the safe way is the best way in every criminal prosecution. The history of criminal jurisprudence and practice demonstrates, generally, that if every one prosecuted for crime were fairly and fully conceded all to which he is entitled, and if all doubtful advantages to the state were declined, and if adventurous forays into dangerous or unknown fields were shunned, and if the beaten paths were heedfully followed, there would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals. Hill v. State, 72 Miss. 527, 17 So. 375 (1895).

Therefore, in applying Justice Woods’ premise we are compelled to reverse Wiley’s death sentence. Further, we admonish prosecutors throughout the state that the convictions they strive to achieve are secure only when they confine themselves to argument tolerated under our rules of criminal jurisprudence. To step behind these rules, as did the argument in this case, is asking for a mistrial.

Based on the foregoing, the judgment of the lower court on the guilt phase is affirmed; however, the death sentence imposed at the conclusion of the sentencing phase is reversed and remanded for a new trial on the sentencing phase only.

REVERSED AND REMANDED AS TO THE SENTENCING PHASE ONLY.

PATTERSON, C.J., and HAWKINS, PRATHER and ROBERTSON, JJ., concur.

ROY NOBLE LEE, J., WALKER and BROOM, P.JJ., and BOWLING, J., dissent.

ROY NOBLE LEE, Justice,

dissenting as to Part II:

I think that the verdict of the jury and judgment of the lower court in imposing the death penalty on appellant should be affirmed and, therefore, I dissent from the majority opinion in the sentencing phase of the trial.

In order that we may examine the language of the defense attorney and the prosecuting attorney, in comparison, just as an expert examines two items of physical evidence on a microscope for comparison, I set forth the objectionable argument made by those attorneys. Appellant’s attorney stated the following:

Regardless of your verdict either way, it is something that you’re going to have to live with the rest of your life, and we told you this isn’t a T.V. show and it’s not. When you get through, there’s not going to be somebody to walk up to you and say, “Yes, you made the correct verdict,” or “No, you made an incorrect verdict.” It’s your decision and one that you will have to live with. You vote for — you vote to have William Wiley executed, you’re going to have to live with that. You are also going to have to live with it, if you don’t. If you vote to send him to prison for the rest of his life, that’s something else you’re going to have to live with. That is something that is never going to go away.
... I want you to remember that. I want you to remember that if he’s sentenced to life in prison, you’re not giving him life, you would be sentencing him to spend the rest of his life in prison in Parchman, Mississippi. This is not letting somebody off.
... I contend that you should do for yourself and your God and the people in your community, sentence this boy to prison for the rest of his life, but not to kill him. That would be wrong. Absolutely wrong. (Emphasis added)

In the prosecutor’s closing argument, responding to the argument of appellant’s attorney, the following comment was made:

Now, it’s not unusual and I told you it was going to happen, to try to put the jury in the role of a hangman in these type cases. He tells you, and I wrote his words down, that the State wants to kill a man, and that you’ll have to live with this the rest of your life. He’s attempting to put in the role of a hangman. It’s unfair. It’s totally unfair. He knows just as well, like I know and every other person that’s familiar with the Court system, that any decision you render is automatically reviewable. (Emphasis added)

The majority opinion cites Howell v. State, 411 So.2d 772 (Miss.1982), as prime authority for reversing the sentence of Wiley in the present case. Howell was convicted of armed robbery and was sentenced to eight (8) years with the Mississippi Department of Corrections. It is distinguished from this case. In closing argument, the district attorney stated five times in succession that a higher court would pass upon the case and that the jury verdict was not final. The statement was objected to by Howell’s attorney and was sustained each time. Yet, amazingly, the prosecuting attorney disregarded the ruling of the court and made the statement four additional times. They follow:

(1) Let me say this to you, Ladies and Gentlemen, your decision, if you find him guilty, will not be final ... There is a court above this that will look at this and see if you all made the right decision.

(2) The Supreme Court of the State of Mississippi has a right to look at this case and see if the laws have been followed in this case.

(3) He has the right to appeal and have another panel of judges, solely, to look at this issue. If they find that it wasn’t done properly, they will send it back or they can turn him loose, up there, if they find that ...

(4) You are not the final judges of this, and if he appeals it, he has the right to be out on bond....

(5) So they, you are not going to be the final judges. You are going to make a decision here in a short time as to what the verdict should be in this case, based upon the evidence that has come to you.

The Howell court specifically commented that the district attorney made an inaccurate statement of the law, which was misleading to the jury, when he said that the jury was not the final judge of the case and that Howell had the right to be out on bond, if he appealed, which was incorrect. The Howell court simply found that Howell did not receive a fair trial because of the continued and emphatic statements of the district attorney in complete disregard of the ruling of the court.

In Evans v. State, 422 So.2d 737, 746 (Miss.1982), responding to the argument of Evans’ attorney, the district attorney made the following statement: “You can sentence a defendant to life imprisonment but that’s your sentence ... that’s just your sentence, .... ”

Evans argued that the statement was an insinuation that, if the jury fixed the sentence at life, appellant would not serve life in the penitentiary. In holding that the statement was not reversible error, we said that, if the argument was improper, then it could be said the appellant's attorney provoked the comment in response to his argument.

In Gilliard v. State, 428 So.2d 576, 583 (Miss.1983), Gilliard’s attorney argued that approximately two weeks prior to the capital murder trial, Gilliard'was convicted of an armed robbery and received a sentence of thirty years, and, that if the jury in the capital murder case saw fit to give Gilliard life, he would be serving thirty years plus life. In answer to that argument, the district attorney said, “It doesn’t work like that about how long you are at the penitentiary, and he knows as well as I do, life is ten years and you are eligible then for parole.”

We held that the remarks of the defense attorney in this death penalty case amounted to provocation, caused the district attorney to respond as he did, and that the error did not require reversal.

In Edwards v. State, Miss.Sup.Ct. No. 53,800, 441 So.2d 84, Aff’d as to Guilt, Rev’d as to Sentence March 16, 1983, Pet. Reh. Den’d December 14, 1983 [Not Yet Reported], the question was before the Court again. In response to Edwards’ counsel saying that Edward would be in the penitentiary for the rest of his life, if so sentenced by the jury, the prosecuting attorney said:

And believe me, Mr. Stanfield nor I neither one knows what that means. He said to you that it meant — he said to you in this language: “Life imprisonment is the only answer. Let’s send him up there and let him stay there forever.” But he didn’t tell you that we are going to do that—
... All he said was that’s the answer. And maybe it is if that were so, but we don’t know that that’s so.
... Mr. Stanfield has not told you that putting him in life imprisonment is going to keep him up there permanently, even though he would have you to believe that by saying that’s the only answer.

In Edwards, the Court held that Edwards’ attorney invited the remarks from the district attorney and that such remarks did not constitute reversible error.

There are presently pending before this Court three capital murder eases where the death penalty was imposed and which have been argued, e.g., Walter Williams v. State, Miss.Sup.Ct. No. 54,294; Arthur Ray Lanier v. State, Miss.Sup.Ct. No. 54,-208; and Gregory Montecarlo Jones v. State, Miss.Sup.Ct. No. 54,067. In addition, the case of John Earl Booker v. State, Miss.Sup.Ct. No. 54,696, is pending, but has not been argued. The same question appears in those cases.

Therefore, four capital murder cases, where the death penalty has been imposed, may or may not be controlled by this Court’s decision on the same question, which the majority is reversing on the sentencing phase. In my opinion, a comparison of the error claimed in the case sub judice and those mentioned hereinbefore points out that the argument does not constitute reversible error here, and that it should be affirmed also on the sentencing phase.

The State, relying upon California v. Ramos, — U.S. -, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), urges that we recognize real differences in the guilt and sentencing phases of a capital murder trial and permit open view of all factors pertinent to sentencing, such as commutation or parole. However, I am unwilling to go that far, and to that extent, at the present time. I think that we must examine each record as it comes before us to determine whether or not on that record the appellant has received a fair trial and, on the particular point here, whether or not remarks or statements of the prosecuting attorney have resulted in prejudice to him to the extent that he did not obtain a fair trial. In my opinion, the present question passes muster.

The majority opinion refers to the awesome responsibility of jurors in a death case. In my view, the duty and responsibility of jurors in such cases are healthy and vibrant parts of our criminal judicial system. They are not duties and responsibilities to cringe from and to shirk upon flimsy excuses. The victim in a capital case, who has been robbed and brutally murdered, and civilized society, which has been violated and outraged, should not be looked upon as the “forgotten man.” Likewise, they deserve consideration and are entitled to share in the proper exercise of jurors’ duties and responsibilities. The State of Mississippi and its people, also, are entitled to a fair trial!

For the reasons stated, I would affirm imposition of the death penalty and I dissent from the majority opinion on Part II, the sentencing phase.

WALKER and BROOM, P.JJ., and BOWLING, J., join in this dissent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Death penalty imposed and affirmed.

        .Hill v. State, 432 So.2d 427 (Miss. 1983) is not authority for the question here. In that case, the district attorney said, "They know your word is not the last word. They know that." There was no objection to the statement of the prosecuting attorney and the point was not preserved for appellate review.

      . Reversed on other grounds.

      . Appellee’s Brief, at 8, sub judice.


source: Caselaw Access Project

author: ROBERTSON, Justice,

license: Public Domain

text:
    Arletha WINTERS v. STATE of Mississippi.
    No. 54093.
    Supreme Court of Mississippi.
    Feb. 15, 1984.

      Charles S. Head, Lee B. Agnew, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

On December 9, 1981, Thomas John McGee, then aged sixteen, made a bungling attempt to rob at gunpoint the Tinnin Road Grocery in rural Hinds County. In due course, Arletha Winters, defendant below and appellant here, and McGee were formally charged with armed robbery in indictments returned by the Hinds County grand jury. After McGee entered a plea of guilty, Winters was put to trial on the morning of February 23, 1982. After hearing all of the evidence and receiving the instructions of the court and the arguments of counsel, the jury found Winters guilty of the charge of armed robbery. The circuit court thereupon imposed a sentence of twenty-five years within the custody of the Mississippi Department of Corrections.

Displeased with the outcome of the proceedings below, Winters has appealed. We affirm.

II.

Arletha Winters, Thomas John McGee and one Betty Brown went to the Tinnin Road Grocery on December 8, 1981. The trio remained in the store for about half an hour on that day, playing pool and pinball in a back room. Mrs. Winnie Kelly, one of the proprietors of the store, remembered both Winters and McGee and was able to identify them at trial. Mrs. Kelly also remembered that the trio was traveling in a maroon Grand Prix automobile.

On the following day, December 9, 1981, Winters, McGee and Brown returned to the store at approximately 12:30 p.m. At that time, McGee walked into the store and pulled a gun on Mrs. Kelly, the sole store attendant present at the time. Mrs. Kelly yelled to her husband who was in the back. When he answered, she yelled back that there was a boy in the store with a gun on her. This apparently scared McGee, and he ran out of the store empty-handed.

Witnesses testified that McGee ran toward and got into the back seat of the same maroon Grand Prix automobile that had been there the day before. The car drove off slowly.

Thomas McGee testified that Arletha Winters had devised the entire operation. He said that Winters had arranged for the use of Ruby Brown’s automobile that day. He stated that Arletha Winters, who was five years his senior, planned the robbery and that she furnished the gun with which he attempted to rob the Tinnin Road Grocery. He testified that Winters was in the automobile at the time of the robbery attempt. When he got back to the car, McGee said that Winters asked him what had happened, and he told her that the robbery attempt had failed. The three then drove back to Jackson, and Winters took McGee home.

At trial, Winters vehemently denied any involvement in the robbery attempt, although in a post-arrest statement to law enforcement officers she acknowledged her presence at the scene. She suggested that McGee had implicated her in order to secure a more favorable treatment from the state for his involvement in the robbery. To be sure, the most substantial evidence implicating Winters was the testimony of McGee. For reasons set forth below, however, the McGee testimony was substantial and not inherently incredible. Suffice it to say that the jury resolved all credibility issues against Winters as it returned a verdict of guilty as charged in the indictment.

III.

A.

Winters charges here that the trial court improperly restricted her efforts to offer character evidence. The challenged rulings occurred as follows:

First, Ruby Brown, a friend of Winters, was asked:
Now, Mrs. Brown, do you know the general reputation of Arletha Winters in the neighborhood or in the community where she resides or has resided for commission of crimes such as she is being charged with here?

The state objected to this question, and the objection was sustained.

Second, Ruby Nell Winters, the mother of the defendant, was asked on direct examination:

Do you know her general reputation for the commission of crimes such as she’s charged with here?

Again, the state objected, and again the objection was sustained.

On this appeal, Winters charges that each of these rulings was error, that by virtue of each of these rulings she was improperly limited in her offer of character evidence and, as a result thereof, the case should be reversed and remanded for a new trial.

During the direct testimony of Ruby Brown, defense counsel inquired regarding Winters’ reputation in the community in which she lives for peace or violence. The witness answered that she knew of Winters’ reputation in this regard and that it was good. When the same matter came up on the examination of Ruby Nell Winters, defense counsel objected strenuously to being limited to a question regarding Winters’ general reputation in the community in which she lives for peace or violence. Defense counsel argued:

I’m saying it doesn’t have to be peace and violence. As a matter of right, she is entitled to her general reputation of character pertaining to traits of the type involved in the charges against her in this case.

The trial judge reiterated his ruling sustaining the objection to the form of the question propounded to Ruby Nell Winters as quoted above. Defense counsel declined to rephrase the question.

The defendant in a criminal prosecution, as a matter of right, may introduce evidence of his or her own good character. Rosser v. State, 230 Miss. 573, 577, 93 So.2d 470, 471 (1957). Proof of a character trait, however, may not be made by proof of specific past actions. The defendant is limited to offering testimony as to general reputation. Kearney v. State, 68 Miss. 233, 237-238, 8 So. 292, 293 (1890). Quoting from the Kearney case, this Court in Allison v. State, 274 So.2d 678 (Miss.1973) stated:

One accused of crime may introduce evidence of his character such as would make it unlikely that he would commit the crime with which he is charged, and having thus put his character in issue, it may in turn be attacked by the state. But neither the accused or the state may resort to particular facts to establish or refute the character thus put in issue. The reputation of the person, at most, what particular witnesses believe of him from his course of life, define the limits of the rule. One who puts his character in issue is supposed to be prepared to defend it by showing such habits as to generally impress the community or particular persons who knew him favorably. 274 So.2d at 682-83.

In Westbrooks v. State, 76 Miss. 710, 25 So. 491 (1892), the Court wrote:

Evidence of general character is admissible in criminal cases; but the evidence relating to such general character should be confined to the proper trait involved in the nature of the charge against the defendant.

76 Miss, at 713, 25 So. at 492.

Where the charge is armed robbery, the two character traits implicated are the accused’s reputation for peace or violence as well as his or her reputation for truth and veracity. In DeAngelo v. State, 187 Miss. 84, 192 So. 444 (1939), the Court made this point unequivocally clear:

The appellant is a young man, about twenty years of age, a high school graduate, and it appears that he has enjoyed a good reputation. Complaint is made of the ruling of the court below to the effect that the proof of good character and reputation should be limited to the trait of peace or violence. We think, however, that he was entitled to likewise prove his general reputation for honesty and integrity, since the crime of robbery involves that issue, as well as the issue of peace or violence.
187 Miss, at 95-96, 192 So. at 447.

Summarizing these authorities, the accused in a criminal case in this state may offer evidence of his or her general reputation in the community in which he or ‘she lives with respect to every general character trait substantially related to the nature of the charges in the indictment. On the other hand, counsel for the accused may not ask a witness about the accused’s reputation with respect to the commission of the crime he or she is charged with. It is proof of the character trait which is admissible, not proof of specific acts. More precisely, it is proof of the accused’s general reputation with respect to a character trait, not her reputation for the commission of specific acts (or specific crimes).

The reason for the rule is, we think, apparent. In a hypothetical armed robbery prosecution, the accused may well be a first offender. He may never have committed a robbery, armed or otherwise. A character witness asked regarding the accused’s general reputation for the commission of crimes of the sort charged in the indictment would have to reply that his reputation was good. This would be so, even though the accused had a horrible reputation for general honesty and peacea-bleness. The reason why the question, to-wit:

Do you know her general reputation for the commission of crimes such as she’s charged with here?

is objectionable is that, as phrased, it is extremely unlikely to elicit probative evidence regarding the accused’s propensity to commit the crime charged in the indictment. Moreover, an answer favorable to the accused could well be wholly consistent with a universally bad reputation with respect to those general character traits substantially related to the nature of the charges in the indictment.

Character evidence at best is of minimal probative value. If it is to be of any value at all, it must go to the heart of those character traits implicated by the offense charged. It must give the trier of fact a significant insight into the character of the accused insofar as it would make it unlikely that he would commit the crime with which he has been charged.

In this case, Winters called four witnesses Ruby Brown, Ruby Nell Winters, Isaiah Howard, and Eula Walton — each of whom testified before the jury that he or she knew of Arletha Winters’ general reputation for truth and veracity and that her reputation in that regard was good. In addition, Ruby Brown was allowed to testify that she knew Winters’ reputation for peace or violence in the community in which she lived and her reputation in that regard was good. The other three could have been asked questions of this general type had defense counsel so desired.

Obviously, defense counsel is not restricted to the use of the words “peace or violence” and “truth or veracity”. There is no magic in those words. Any words which carry the same general meaning and refer to the same general character traits may be employed.

Winters, however, did not seek to prove her reputation with respect to character traits only. She sought to prove her reputation with respect to the commission of specific crimes, to-wit: armed robbery. The trial court properly sustained the objection. We reject the assignment of error.

B.

Winters next assigns as error the trial court’s ruling allowing testimony regarding other crimes with which she had been charged, but not convicted, to be presented to the jury. Winters further argues that her motion for a mistrial after this evidence was offered should have been sustained.

There is no question but that substantial evidence of other criminal activity on the part of Arletha Winters was presented to the jury. This testimony related to other armed robberies, of none of which she had been convicted. Ordinarily this type of testimony is inadmissible. The issue here, however, is whether it was invited by defense counsel via his cross-examination of Thomas McGee, the accomplice.

McGee was the chief state witness against Winters. In an attempt to impeach the credibility of McGee, apparently by implying to the jury that McGee was trying to shift the blame to Winters (to save his own skin or for whatever reason) and that his testimony was therefore incredible and unworthy of belief, the following colloquy occurred:

Q. What did Arletha tell you? She told you that you rob the people and give her all the money?
A. Yes, sir.
Q. You are telling us the truth about that, too, aren’t you?
A. Yes, sir.
Q. What did you do with the money from the other people that you robbed?
A. Gave it to Arletha Winters.
Q. You gave all that to Arletha, too?
A. Yes, sir.

The fact that Winters and McGee had participated in eight other robberies was thus clearly before the jury. That fact was put before the jury by the defense. Then, on redirect examination, the state proceeded to drive a truck through the hole thus opened in Winters’ defenses. With little mercy, the state pounded home the idea that the robbery in question was only one of many committed by McGee and Winters, each time using the same modus operandi.

Evidence of prior offenses committed by a defendant, not resulting in convictions, is generally inadmissible either for impeachment purposes or as part of the state’s case in chief. Gray v. State, 351 So.2d 1342 (Miss.1977) (in the guilt phase of a capital murder trial, it was error to allow the state to show that the defendant was on parole for a prior offense); Mills v. State, 304 So.2d 651 (Miss.1974), (admission of testimony of other drug deals in a trial for delivery of marijuana held reversible error); Allison v. State, 274 So.2d 678 (Miss.1973), (admission of evidence of other crimes to impeach defendant charged with assault and battery with intent to kill held to be reversible error). Nothing we say here should be taken to signal a retreat from this well-settled rule.

On the other hand, where the defense attorney inquires into a subject on cross-examination of the state’s witness, the prosecutor on rebuttal is certainly entitled to elaborate on the matter. For exam-pie, in Jefferson v. State, 386 So.2d 200 (Miss.1980), the defendant’s attorney on cross-examination asked the prosecutrix in a rape case regarding a prior rape the defendant had allegedly committed. On redirect, the prosecuting attorney developed the details of the prior incident. On appeal, we held that evidence of the prior rape, though otherwise inadmissible, could properly be presented by the prosecution where the defendant has opened the door. See Simpson v. State, 366 So.2d 1085, 1086 (Miss.1979); Johnson v. State, 260 So.2d 436, 438 (Miss.1972). When allowing this sort of testimony, however, the trial judge should be careful to assure that the prosecution does not go beyond the scope of thé “invitation” extended by defense counsel. Based upon our careful review of the transcript in this regard, we find that the invitation was not exceeded. Accordingly, this assignment of error is denied.

C.

Finally, Winters challenges the sufficiency of the evidence to sustain her conviction. To be sure, the evidence was sharply disputed. The evidence offered by Winters was not inherently incredible. Still the jury chose to believe the state’s version of the facts.

, The jury’s verdict of conviction no doubt substantially rests on the testimony of her accomplice, Thomas McGee. We have in numerous cases held that a conviction may be supported by the testimony of an accomplice, even when it is uncorroborated. See, e.g., Oates v. State, 421 So.2d 1025, 1031 (Miss.1982); Catchings v. State, 394 So.2d 869, 870 (Miss.1981); Jones v. State, 381 So.2d 983, 988 (Miss.1980). We only require that the accomplice’s testimony be reasonable and not improbable, self-contradictory or substantially impeached. Mason v. State, 429 So.2d 569 (Miss.1983); Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983). Consistent with these statements of law and all of our cases on this subject, the testimony of Thomas McGee was more than sufficient.

Under our system, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. E.g., Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980); Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983). Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that under the evidence, taken in the light most favorable to the verdict, no reasonable hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.

Similarly, we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. See Rule 5.16(1) and (2), Uniform Criminal Rules of Circuit Court Practice; Pearson v. State, supra, 428 So.2d at 1364. Because there is in the record before us substantial credible evidence suggesting Winters’ guilt, the circuit court correctly denied Winters’ motion for a new trial.

AFFIRMED.

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

      . As indicated above, Winters told law enforcement officers that she was in the maroon Grand Prix at the time and on the occasion in question. She denied knowing what McGee was doing when he went in to the store. Winters’ admission that she was at the scene with McGee and Brown partially corroborates McGee’s testimony-


author: DAN M. LEE, Justice,

text:
    MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE, State Capitol Commission and State of Mississippi v. Homer Lee HOWIE.
    No. 54767.
    Supreme Court of Mississippi.
    March 14, 1984.
    Rehearing Denied May 16, 1984.
    Randall L. Miller, Jimmy G. Dedeaux, William Patterson, Jackson, for appellant.
    Robert W. King, King & Spencer, Alfred N. Crisler, Crisler & Crisler, Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Hinds County wherein the chancellor found that the appellant, the Mississippi State Department of Public Welfare, was a holdover tenant on certain properties leased to it by the appellee, Homer Lee Howie. The chancellor ruled that by holding over, the Department had extended the lease for a period of one year and that Howie was entitled to rent payments for that period. The chancellor also assessed attorneys fees and a 5% late fee required under the lease. From that decision the State Department of Public Welfare brings this appeal, assigning numerous errors, many of which are repetitious. Because this cause must be reversed, we address only those issues which have some bearing on our decision.

On September 30,1980, Homer Lee How-ie filed a bill of complaint in the Chancery Court of Hinds County. Through his bill he charged the State Department of Public Welfare with holding over as a tenant. The bill sought specific performance of a lease renewal and rent in arrears based on the renewal of that lease. The Department of Public Welfare answered this complaint by filing a demurrer on February 10, 1981. At a hearing on this demurrer, the Department argued the defense of sovereign immunity and took the position that it could not be sued on the lease. Following the hearing the chancellor issued an opinion overruling the demurrer and holding that the doctrine of sovereign immunity is not a defense to a claim based on breach of contract.

Eventually the parties came to trial at which most of the facts were stipulated to in a document entitled “Undisputed Facts.” In essence, those facts are as follows:

1. Homer Lee Howie was the owner of the land and office building in question.

2. On June 18, 1979, Howie and the Department of Public Welfare entered into a lease agreement whereby the Department of Public Welfare agreed to lease office space from Howie.

3. Prior to the execution of the lease agreement the State Capitol Commission had reviewed the lease and authorized the Department of Public Welfare to enter into the agreement.

4. The lease was executed on behalf of the Department of Public Welfare by Jack Byars in his official capacity as Commissioner of the Department.

5. Between May 12, 1980, and June 30, 1980, there was an exchange of correspondence between Howie and Donald B. Roark, the Commissioner of the State Department of Public Welfare who succeeded Jack Byars. Each of these letters appear in the record. The sum and substance of these letters is as follows:

A. On May 12, 1980, Howie wrote to Roark and attached two copies of a proposed lease which in essence was identical to the lease under which the Department of Public Welfare and Howie had been operating. This lease was intended to replace the one the parties were currently operating under when it expired. The sole change in terms was an increase in the amount of rent.
B. On June 5, 1980, Howie sent a letter to Roark to inform him that the lease under which they were operating expired on June 30, 1980, and the premises were demanded to be surrendered on that date.
C. On June 5, 1980, Roark wrote to Howie and acknowledged that the lease under which they were operating expired on June 30 1980. Roark stated that the Department would be moving to new facilities in downtown Jackson in early August, 1980. Therefore, he stated it was not the intent of the Department of Public Welfare to renew their lease but that they would like to negotiate terms for the Department to remain in the leased premises for a maximum of 60 days following the expiration of the lease. This was to be in order to facilitate the moving to new offices.
D. On June 23, 1980, Howie wrote to Roark. In this letter he submitted an attached lease proposal and expressly withdrew any previous proposal or negotiation. The attached lease was for a one month carryover under the same terms and conditions as the lease they were then operating under. Howie notified Roark that should Roark fail to execute and deliver this lease prior to 5:00 p.m. on June 30th and fail to vacate the premises by midnight June 30th, Howie would .consider him a holdover tenant under the present lease. Howie notified Roark that should the Department fail to vacate the premises by 12:00 o’clock p.m. “By operation of law the present lease will be renewed for a one year term under the same terms and conditions as contained in the present lease.”
E. On June 27, 1980, Roark responded to Howie’s last letter by stating it was a physical impossibility for him to deliver an executed lease prior to 5:00 o’clock on June 30th as the next scheduled meeting of the Capitol Commission was tentatively scheduled for July 8th. Roark informed Howie that he did not have the authority to enter into a new lease for any period of time without the specific approval of the Capitol Commission. Roark did indicate that he intended to request authority from the Capitol Commission for a one month holdover for the entire space and a 31 month lease of a smaller portion of that space. Roark again emphasized that there were no facilities in which the Department would be able to move by June 30th and that it would be necessary for them to remain in the subject property for a period of approximately 60 days in order to move all of their personnel and equipment.

6. The Department of Public Welfare did not vacate the leased premises prior to the end of the term of the lease on June 30, 1980 and continued to use and occupy the leased property until July 31, 1980, at which time the premises were vacated.

7. Between the dates of July 1, 1980 and September 24, 1980, there was a further exchange of correspondence between the parties. The sum and substance of those letters is as follows:

A.On July 2, 1980, Howie wrote to Roark and stated that he took the position that the Department of Public Welfare, by remaining in the premises beyond the termination of the lease period, had by operation of law, renewed the previous lease on the entire space for a period of one year under the same terms and conditions as the lease dated June 18, 1979. Howie did offer to accept a lease on a portion of the office space then occupied by the Department and release the Department from any obligations on the remaining portion of the lease. As a condition to this offer Howie demanded that the Department vacate all of the office space not contemplated by the proposed new lease and that the new lease be executed and delivered prior to July 10, 1980. Howie took the position that should the Department fail to meet these conditions the previous lease would remain in effect by operation of law for a period of one year.
B. On July 9, 1980, Roark wrote to Howie in response to Howie’s letter of July 2nd. Roark informed Howie that at the scheduled meeting of the State Capitol Commission the Commission failed to approve the proposed amended lease. Roark informed Howie that the Commission had approved a continued occupancy of the entire office space for a one month period from July 1, 1980 through July 31, 1980 at a monthly rent equal to that under the expired lease. Roark also stated that the Capitol Commission would not approve the proposed lease of a portion of the office space. The Commission directed Roark to continue to negotiate for office space in Jackson as they considered the .lease of a portion of the premises a new and separate lease requiring the submission of additional comparative property prospects.
C. On July 18, 1980, Roark wrote to Howie confirming that the entire office space would be vacated before midnight on August 1, 1980.
D. A second letter dated July 18, 1980, from Roark to Howie informed Howie whom the Department had selected as a mover to transport the Department’s property.
E. On July 21, 1980, Howie wrote to Roark and stated that his position was the same as that stated in the letter of July 2, 1980. That is, that by operation of law the expired lease had been renewed as a result of the Department of Public Welfare’s failure to vacate the premises upon the expiration of the previous lease. Howie did agree to submit a lease on a portion of the office space for a 22 month term and agreed to cancel and release the remaining term of the present renewed lease if his proposed lease of part of the office space was executed and delivered prior to August 15th.
F. On July 28, 1980, Charles T. Kent, Director of Office of Business Services, wrote to Howie’s building manager, Keith Pigott, to request photographs of the building to accompany the lease proposal regarding the diminished portion of office space.
0. On August 5, 1980, Roark wrote to Howie to confirm that on July 31, 1980, keys and control of the office space were turned over to Mr. Pigott.
H. On August 12, 1980, Roark wrote to Howie to inform him that the Capitol Commission had denied the Department’s request to lease the diminished portion of Howie’s office space.
I. On September 15, 1980, Howie wrote to Roark to acknowledge the receipt of certain vouchers from the State of Mississippi made payable to Howie. Howie again informed Roark that he considered the Department to be holding over and subject to the renewed lease by operation of law. Howie stated that he was fully reserving his rights to assert the renewed lease and depositing the above received vouchers. These vouchers were applied to rent for the month of July, 1980 and utility charges for the period from June 21, 1980 through July 18, 1980.
J. On September 24, 1980, Robert W. King wrote to Roark to notify him that he had been retained by Howie to represent him in the matter of delinquent lease rentals due under the renewed lease. King made a demand for delinquent rentals for the months of August and September, 1980, together with a 5% late charge and attorneys fees. King also stated that the rent for the month of October would be due on October 1st.

8.At all times between May 12, 1980 and September 4, 1980 Donald Roark was the Commissioner of the State Department of Public Welfare.

9. During the original period of the lease the State of Mississippi paid its rent by vouchers issued in the due course of business.

10. On July 11, 1980, the State of Mississippi issued vouchers numbered 0013906 and 0013903 to Howie. These are the vouchers acknowledged by Howie in his letter dated September 15th.

11. The State of Mississippi also issued vouchers numbered 0081523 and 0091415 which represented pro rata charges for Howie’s operation and maintenance of the building, and parking lot and premises allo-cable to the Department’s office space for the month of July, 1980.

12. The Capitol Commission approved on July 8, 1980, the Department continuing to occupy the space it had been occupying in Howie’s building after June 30, 1980 and through July 31, 1980 and approved payment of rent for that period.

13. Prior to granting such approval, the Capitol Commission had been furnished copies of all of the correspondence between Roark and Howie up to that point.

14. Howie negotiated with several prospective tenants for a lease of portions of the demised premises but did not make a lease with such prospective tenants.

15. During the period from August 1, 1980 through June 30, 1981, Howie did lease certain portions of the space in his building formerly occupied by the Department who paid rent as follows: Travelers Insurance Co. rented 2,682.5 square feet at a rental of $1,900.10 per month through the month of June, 1981 for a total rent received of $19,001.00. Tennessee Gas rented 612 square feet for a period of December 8, 1980 through June 30, 1981 which generated rents totaling $3,387.10.

16. Howie has not filed a claim for his damages with the Mississippi State Auditor under § 7-7-33 of the Miss.Code Ann. (1972).

The only testimony offered at trial was that of Charles E. Hughes, an attorney at law. Mr. Hughes testified that he had been in a commercial practice since 1964 and had reviewed the file of the immediate action. He stated that he thought that a contingent fee of one-third of any sum collected was a reasonable fee. Mr. Hughes acknowledged that he had no knowledge of the amount of time Howie’s attorney had spent in preparation of the litigation. Hughes also testified that a contingent fee was not the only reasonable manner of billing in an action such as this.

Following the taking of all of the evidence the chancellor issued an opinion finding that the State Department of Public Welfare had renewed the expired lease by operation of law as a result of its holding over. The chancellor rendered a judgment in favor of Howie in the amount of $103,-623.50, together with a 5% late charge provided for under the lease and interest from the due date of such rents. The chancellor also awarded attorneys fees in the amount of $20,000.

The threshold question of this appeal is whether the chancellor erred in failing to hold that the State Department of Public Welfare was immune from suit under the doctrine of sovereign immunity. The Department argues that as a governmental agency it is immune from legal liability. This question was originally presented in the form of a demurrer to Howie’s bill of complaint. In a hearing on that demurrer the chancellor ruled that the doctrine of sovereign immunity does not apply where one is “seeking to exercise a property right that had its genesis in a solemn contract.”

Recently, in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), this Court prospectively abolished the doctrine of sovereign immunity. The Pruett decision is applicable to the case sub judice only in a very limited fashion. First, Pruett was a tort action based on negligence.

Second, the Pruett decision expressly held that the abolition of sovereign immunity was relevant only to those claims, demands, actions or causes of action that accrue on or after July 1, 1984. Therefore, Pruett is helpful only in that it indicates that this Court looks upon the doctrine of sovereign immunity with disfavor.

A case more directly on point, though not precisely, is Cig Contractors v. Mississippi State Building Commission, 399 So.2d 1352 (Miss.1981). In that case, Cig filed suit against the Mississippi State Building Commission seeking damages which were alleged to have resulted from the Commission’s breach of contract. The contract called for Cig to construct a portion of the chemistry building at University of Mississippi. Cig was responsible for the concrete, masonry, and general contracting work on the project. The suit claimed that the Building Commission had breached its duty to test and inspect the soil and that such breach required Cig to remove and reconstruct portions of work they had already completed. The Building Commission asserted that it was not subject to suit because of sovereign immunity. In addressing this claim, reference was first made to Chapter 280 of the Laws of 1956 which set forth the powers granted to the State Building Commission. Among those powers are the authority “To contract and to be contracted with and to sue and be sued.” The modern version of this code section is § 31-11-53 Miss.Code Ann. (1972).

It is important to note that in the statute which establishes the State Capitol Commission the express authority to sue and be sued is lacking. See § 29-5-1 Miss.Code Ann. (1972) in effect at the time of the lease agreement relevant to this appeal, and § 29-5-2 Miss.Code Ann. (Supp.1983), the revised section.

Although there .was statutory authority for holding that the State Building Commission was not protected by the doctrine of sovereign immunity, the opinion went further and indicated that the result was not likely to have been different absent such statutory authority:

Moreover, this writer doubts seriously that this Court would uphold a claim of sovereign immunity in contractual matters between a subdivision of the State and individuals doing business with it. The general rule is that when the legislature authorizes the State’s entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States § 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.

399 So.2d at 1355.

Based on the authority of Cig, the general law of contracts and common sense, we now hold that when the legislature authorizes the state’s entry into a contract the state necessarily waives its immunity from suit for breach of that contract. Therefore, the doctrine of sovereign immunity does not protect the State Department of Public Welfare from being held liable on its contract and the chancellor’s opinion in this regard was correct.

We next address whether the chancellor was correct in finding that by holding over, the Department of Public Welfare had renewed the expired lease. Essentially the question here is whether § 89-7-25 Miss. Code Ann. (1972), is the exclusive remedy available to a landlord whose tenant is holding over. That section provides as follows:

When a'tenant being lawfully notified by his landlord, shall fail or refuse to quit the demised premises and deliver up the same as required by the notice, or when a tenant shall give notice of his intention to quit the premises at a time specified, and shall not deliver up the premises at the time appointed, he shall, in either case, thenceforward pay to the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered as the single rent before the giving of notice could be; and double rent shall continue to be paid during all the time the tenant shall so continue in possession.

In all candor we acknowledge that our previous opinions on this subject have been somewhat less than consistent. In an effort to remedy those inconsistencies this opinion is intended to be dispositive on the issue.

The common law rule which Howie asserts and upon which the chancellor relied is expressed in the case of Tonkel v. Riteman, 163 Miss. 216, 141 So. 344 (1932):

It is firmly established that where, without a new contract, a tenant continues to occupy the property which he has held under an annual lease, he becomes liable as tenant for another year at the same rate and under the same terms. Love v. Law, 57 Miss. 596; Usher v. Moss, 50 Miss. 208. It is the duty of a tenant when his period of tenancy has expired to surrender the premises to his landlord or else to have procured a new contract, and, if he fails to do either, the landlord may treat him as a trespassor or as a tenant under the previous terms, according to the option of the landlord. In consequence of the foregoing principles, it is immaterial that the tenant may have notified the landlord that he will not renew the lease, or that he will remain only for a lesser period than that of the original lease or that he will pay a lesser amount in rent.

163 Miss, at 219, 141 So. at 344.

It is important to note that when Tonkel was decided the statutory predecessor to § 89-7-25 was in effect, although that decision failed to mention it. See Code of 1930 § 2225.

Six years later in Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556 (1937), this Court again addressed the remedy available to a landlord whose tenant was holding over. In Tepper Bros, the appellants filed eviction proceedings against the appel-lee in the Mayor’s Court in Canton. In that action they obtained a judgment of the property in statutory double rent. The ap-pellee appealed to the circuit court and the appellants filed notice that they would demand double rent under § 2225. Judgment was rendered awarding the appellants possession of the property and $600 as double rent for the period of time the premises were occupied after the expiration of this lease. While that action was proceeding, the appellants filed another declaration in circuit court seeking $2500 in actual damages (of which $360 was for rent) and $5,000 in punitive damages. After paying the judgment in the first cause the appellee pled estoppel and res judicata to the second suit. The appellants demurred to those pleadings and the demurrer was overruled. Upon those facts this Court held that the landlord may not recover both the double rent provided under § 2225 and damages in a separate action:

In our opinion, this statute affords an exclusive remedy as the measure of damages for holding over after notice to vacate. The statutory rule of construing laws is that where a statute enumerates the powers given, it must be held that it names all the powers dealt with therein, and that there is nothing implied, (authorities omitted)

178 Miss, at 664, 174 So. at 556.

More recently, in Crechale and Polles, Inc. v. Smith, 295 So.2d 275 (Miss.1974), this Court indicated that it recognized the continued validity of the common law remedy of imposing a renewal of a lease on a holdover tenant but declined to apply the remedy in that case because of the landlord’s actions which had amounted to an election to pursue another remedy. Therefore, our opinions have been a yes you can, no you can’t, yes you can, response to this issue.

We now hold that § 89-7-25 was intended by the legislature to provide the sole action for damages as the result of a tenant’s holdover. The common law rule has been abrogated once and for all and may no longer be used to impose the renewal of an expired lease. Obviously we must reverse the chancellor’s decision as it relates to this issue.

If Howie was not entitled to assert the renewed lease as the basis for his damages as we have held he may not, the question then arises what damages, if any, is he entitled to? To resolve this question we again refer to the case of Crechale and Polles, Inc. v. Smith, supra. In that case Crechale and Polles leased certain property to the Smiths. The lease was for a term of five years and expired on February 6, 1969. Near the end of the term of the lease Smith was informed that the building he intended to move to would not be complete until a month or two after the lease with Crechale and Polles expired. Smith attempted to arrange a month to month lease with Crec-hale and Polles so that he could remain in the building until his new premises were completed. On February 6, Crechale wrote to Smith notifying him that he was to quit and vacate the premises at midnight that day. On March 3rd Crechale accepted a rent check for the month of February. On April 19th Crechale’s attorney wrote Smith that Crechale was electing to treat the holdover as a renewal of the lease. Upon those facts we held:

We are of the opinion that once a landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month to month basis, but fails to pursue his remedy of ejecting the tenant, and accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month to month basis.

295 So.2d at 278.

In the instant case we see an almost identical factual situation. Howie wrote to Roark on June 5th and demanded that the premises be surrendered at the expiration of the lease. Howie never elected to pursue this remedy by having the Department evicted. Instead, he accepted vouchers dated July 11th for payment of the July rent. Howie’s failure to pursue the remedy of eviction created a month to month tenancy when he accepted the state’s payment of the July rent.

Having created a month to month tenancy by the acceptance of the July rent How-ie was entitled to nothing further. Under the law he could have had the Department evicted and sued for double rent — but he chose not to do this. Therefore, Howie was entitled to no relief whatsoever, having been paid all he was due for the July tenancy.

Of course, because we have held that the lease contract was not renewed and Howie was not entitled to any relief, the chancellor’s decision awarding attorneys fees and a late charge to Howie is also reversed. We have thoroughly examined the other assignments of error and find no merit in them.

Therefore, based on all of the foregoing, we hereby reverse and set aside the judgment awarded to Homer Lee Howie and render this cause.

REVERSED AND RENDERED.

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

BOWLING, J., not participating.

      . Of course, § 89-7-25 is the exclusive remedy to a landlord only insofar as money damages. The landlord is still free to evict a holdover tenant under § 89-7-27 Miss.Code Ann. (1972).


author: PRATHER, Justice,

text:
    Harold IVY v. STATE DEPARTMENT OF PUBLIC WELFARE, State of Mississippi.
    No. 54173.
    Supreme Court of Mississippi.
    April 11, 1984.

      Stephen P. Livingston, New Albany, for appellant.
    Billy N. Owen, Ripley, for appellee.
    Before ROY NOBLE LEE, PRATHER and SULLIVAN, JJ.
   PRATHER, Justice,

for the Court:.

This suit by the State Department of Welfare against Harold Ivy to establish paternity and seek support for a minor child was brought pursuant to Mississippi Code Annotated section 43-19-31 (1972) (Supp.1983). Harold Ivy appeals the judgment of the Chancery Court of Marshall County, Anthony Farese presiding, establishing paternity and ordering Ivy to pay $30.00 per month child support. We affirm.

The standard of proof required of the State Department of Welfare is questioned here.

I.

In July, 1974 Earnistine Pegues, mother of Rapheal Pegues, began dating Harold Ivy. Ivy admitted having sexual relations with Pegues numerous times, although he suggested that these occurrences were considerably less in number than testified to by Miss Pegues.

In April, 1975, Miss Pegues became pregnant and advised Ivy of this fact. Mr. Ivy admitted being told of the pregnancy sometime in December, 1974, at a time when Miss Pegues was four or five months pregnant, but admitted being unsure about the time of this disclosure. Likewise, he admitted his asking whether he needed to pay the medical bills, but denied asking if they would have to get married. Ivy stated that he last had sexual relations with Pegues in July, 1974 and was not with her at all in January, 1975.

On September 8, 1975 Miss Pegues gave birth to Rapheal. She first applied for aid for dependent children (ADC) support from the State Department of Public Welfare on October 14,1975, naming Harold Ivy as the father. Review of her application occurred every six months, and each time she named Ivy as the father.

Miss Pegues admitted having sexual relations with three other men during that period from 1974 through 1975. The first of these relations occurred in early 1974 and the latter two occurred in 1975, after Rapheal was born.

The chancellor found that Miss Pegues’ testimony was more credible and accurate based on the physical evidence. Ivy was unsure about the time periods of his relationship with Pegues, specifically, the month in which he claimed he was told of the pregnancy. The chancellor’s reasoning was that if Miss Pegues was four or five months pregnant in December, 1974, then the baby would have been born in April or May, 1975. Instead the baby was born in September, 1975, which led to the conclusion that impregnation was probably in January, 1975.

II.

We first address the authority of the State Department of Public Welfare to bring this action. Mississippi Code Annotated section 43-19-31 (1972) (Supp.1983), states:

The state department of public welfare is hereby authorized and empowered to establish a single and separate child support unit for th'e following purposes:
(a) To develop and implement a nonsupport and paternity program and institute proceedings in the name of the state department of public welfare or in the name of the recipient ...
(b) To secure support and establish paternity for any child or children receiving aid from the department, from a parent or any other person legally liable for such support who has either failed or refused to provide support, deserted, neglected or abandoned the child or children, ...
(e) To obtain restitution of moneys expended for public assistance from a parent or any other person legally liable for the support of any child or children receiving aid from the department....

Mississippi Code Annotated section 43-19-35 (1972) (Supp.1983), also provides in part that:

(1) By accepting public assistance for and on behalf of a child or children, the recipient shall be deemed to have made an assignment to the state department of public welfare of any and all rights and interests in any cause of action, past, present or future, that said recipient may have against any parent failing.to provide for the support and maintenance of said minor child or children for the period of time that assistance is being paid by said department; said department shall be subrogated to any and all rights, title and interest the recipient may have against any and all property belonging to the absent or nonsupporting parent in the enforcement of any claim for child support, whether liquidated through court order or not. The recipient shall also be deemed, without the necessity of signing any document, to have appointed the state department of public welfare to act in his or her name, place and stead to perform the specific act of instituting suit to establish paternity or secure support, collecting any and all amounts due and owing for child support, and endorsing any and all drafts, checks, money orders or other negotiable instruments representing child support payments which are received on behalf of the child or children, and retaining any portion thereof permitted under federal and state statutes as reimbursement for public assistance moneys previously paid to the recipient.

Statutes such as the ones above passed by our Legislature can be traced back to the Elizabethan Poor Law of 1576 (18 Eliz. I, c. 3). This ancient law represents the progenitor of modern paternity suits where the purpose was not solely for the protection of the child, but rather the indemnification of the parish for the expense of the child’s support. Clark, Law of Domestic Relations, 162 (1968); Commissioner of Social Services of City of New York v. Bailey, 79 A.D.2d 572, 434 N.Y.S.2d 24 (1980).

Cases interpreting statutes similar to ours indicate that the purpose behind their enactment was “to protect the state’s interest when it appears likely that the child is or will become a public charge....” or to “see that (T)hey did not become wards of the state.” State Ex Rel. Adult and Family Services Division v. Gilliland, 54 Or. App. 283, 634 P.2d 820 (1981); Fox v. Hohenshelt, 19 Or.App. 617, 528 P.2d 1376 (1974); D.S.S. v. Wolfe, 70 Misc.2d 590, 334 N.Y.S.2d 689 (1972). It has also been stated that such statutes are intended to “protect the public purse.” Commissioner of Social Services of City of New York v. Bailey, supra.

It is clear under our statutes that the state through the Department of Public Welfare may institute paternity proceedings to obtain repayment for support of a dependent child under the Aid to Dependent Children Program (ADC) from the person legally obligated to pay this support.

Ill

The question presented here is what standard of proof is required of the Department of Welfare to prevail in such support proceedings.

Appellant argues to this Court that the chancellor was manifestly wrong in his decision because the Department of Welfare’s case was not proved by clear and convincing evidence, which standard is argued to be the applicable one under another statute Mississippi Code Annotated section 91-1-15 (1972) (Supp.1983), Descent Among Illegiti-mates.

The filing of a paternity suit is usually for one of two reasons. The purposes are to establish an illegitimate child’s right of heirship from the putative father and to secure child support payments.

By statute, the standard of proof in an heirship proceeding brought after the death of an intestate is based upon clear and convincing evidence. Mississippi Code Annotated section 91-1-15 (1972) (Supp. 1983).

However, section 91-1-15 makes a distinction between paternity proceedings brought before the death of the intestate and such proceedings brought after the death of the intestate, stating in part:

(3) An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:
(iv) Paternity or legitimacy was established by clear and convincing evidence. (Emphasis added).

In Crosby v. Triplett, 195 So.2d 69 (Miss. 1967), an action was brought to have plaintiff, Edna Crosby, recognized as an heir at law of the deceased, Robert Triplett. Triplett died intestate leaving as his sole surviving heir, his wife Carrie Triplett. Plaintiff Edna Crosby contended that she was an illegitimate daughter of Robert Triplett and that before his death he had acknowledged her as his daughter, thus making her Robert Triplett’s legitimate child.

Under these facts, this Court held that: “The evidence to support a finding of paternity must be clear, convincing and unambiguous.” (Id. at 71). Finding that the evidence was clear, convincing and unambiguous, the court reversed and rendered judgment for the plaintiff.

Clearly in an heirship proceeding instituted after the death of an intestate, the burden of proof upon a plaintiff is by clear and convincing evidence. Mississippi Code Annotated section 91-1-15 (Supp.1983). Appellant urges that the same burden should be upon the Department of Public Welfare here in a support suit. The reason given for this position is that the paternity adjudication in the support action also establishes the paternity issue for an heirship proceeding. The timing of these actions — one during the lifetime of a person and the other one after the death of an intestate— justifies the imposition of different burdens of proof.

This Court has held in cases such as the one sub judice where the purpose is to seek support for the child, during the lifetime of the putative father, the burden of proof has been held by this Court to be by the preponderance of the evidence. Hull v. Jackson, 238 Miss. 870, 121 So.2d 4 (1960); Graves v. Gambrell, 184 Miss. 61, 185 So. 238 (1939); Welford v. Havard, 127 Miss. 88, 89 So. 812 (1921).

IV.

We reaffirm the holding in Crosby v. Triplett, supra, stating that the standard of proof in heirship cases brought after death of the father is by clear convincing and unambiguous evidence. However, where the paternity proceeding is brought before the death of the putative father to establish a right to child support the standard of proof is by the preponderance of the evidence. This interpretation is in line with both our former decisions and also Mississippi Code Annotated section 91-1-15 (1972) (Supp.1983).

This Court will reverse a chancellor only when he is manifestly wrong. Harris v. Sellers, 446 So.2d 1012, (Miss. 1984); Voss v. Stewart, 420 So.2d 761 (Miss.1982); Richardson v. Riley, 355 So.2d 667 (Miss.1978). Noting the appellant’s uncertainty about important dates, we cannot say that the chancellor here was manifestly wrong when he decided that the evidence favored the appellee by the preponderance of the evidence, since the mother’s testimony was corroborated by the physical facts. The preponderance of the evidence supported the chancellor’s finding.

AFFIRMED.

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


text:
    Audley Jackie DOWNS, Jr. v. STATE of Mississippi.
    No. 54830.
    Supreme Court of Mississippi.
    April 25, 1984.
    J.W. Kellum, Sumner, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Tallahatchie County wherein the appellant, Audley Jackie Downs, Jr., was found guilty of receiving stolen property. Downs was sentenced to four (4) years in the custody of the Mississippi Department of Corrections and also ordered to pay a fine of $250. From that conviction and sentence he brings this appeal and assigns as error the trial judge’s refusal to allow witness Donald Dutton to testify.

The facts surrounding the crime of which Downs was convicted are not relevant for purposes of this appeal; however, for purposes of clarity they will be briefly set forth. It appears from the testimony of the State’s witnesses that Downs solicited Stoner Pam, Jr. to steal a thirty gallon drum of Treflan herbicide from Pam’s employer. Along with his brother, Carl Pam, Stoner Pam broke into a tool shed owned by his employer, Jim Wilbourn, and took a thirty gallon drum of Treflan. The Pams then took the drum to Eddie Martin’s house and left it there for the appellant Downs. According to Stoner Pam he was subsequently paid $200 for the drum. Testimony revealed that the drum of Treflan was worth in excess of $900.

Following the State’s case in chief, the defense attempted to put on testimony of Donald Dutton. Apparently Dutton was to testify that Stoner Pam told him that Downs had nothing to do with the theft of the Treflan. As Dutton began to testify, the district attorney objected to his being called as a witness. The basis of the objection was that Dutton had not been listed as a defense witness pursuant to the rules of discovery and in particular, Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. In response, Downs’ attorney told the trial court that the reason Dutton’s name had not been produced for the State was that Dutton had not come to his office until that morning, the morning of the trial. The defense attorney stated that prior to that morning he had no knowledge of Dutton’s existence nor the facts to which he was going to testify. Therefore, he argued that he could not have produced Dutton any sooner. The trial judge then referred to Rule 4.06 and stated that in his opinion the rule left the matter to his discretion. He then ruled that Dutton had come forth too late and that it would not be proper to allow him to testify as the State had not been provided his name under the rules of discovery.

At two subsequent points in the record the court explained its ruling. Following the close of the taking of evidence and the conference regarding the granting of the instructions, the court made a statement into the record which explained why the court file in this case does not reflect the occurrence of any discovery. The learned judge stated:

Being that this indictment was just handed down on March 7th; however, at a prior term of court, the defendant was indicted in cause No. 2580, which was the same charge arising out of the same transaction, that the court has previously sustained a demurrer in 2580 thus resulting in the new indictment, 2588. The discovery that the court makes reference to in its ruling in this cause, 2588, will be reflected by the court file in cause No. 2580.

The trial judge further expounded on his ruling and the basis for his exclusion of Dutton’s testimony following Downs’ motion for a new trial. The court stated that Cause No. 2580 and Cause No. 2588 “are exactly the same charge with the exception of the indictment in 2580 which did not allege ownership of the property stolen.” The court held that the discovery conducted in Cause No. 2580 was sufficient to invoke the requirement of Rule 4.06 which obligates the defendant to reciprocably supply the name of his witnesses if he requests the same from the State. The court stated:

I don’t think its any question on the part of either side as to who the witnesses would be for both the state and the defendant based on discovery conducted in 2580.

At the heart of this appeal lies the question of whether the discovery conducted under one indictment can be said to have “spilled over” to a trial on a second indictment on the same charge where a demurrer to the first indictment was properly sustained.

Neither side has been able to cite authority to support the proposition that the discovery under the first indictment does not spill over to the second indictment. In fact, our research on this subject has also provided us with little guidance; however, common sense and notions of fair play guide us in our decision.

Once an indictment has been successfully demurred to because of its failure to sufficiently charge the accused of a crime, it has no effect. Discovery proceedings instituted under such an indictment are of no use under a subsequent indictment. Should a second indictment which does sufficiently allege the material allegations of the crime then follow, the judicial process has begun anew. Although it may charge the same crime, the second indictment is distinct from the first and proceedings may not be relied upon at trial on the second.

Rule 4.06 states in part:

If the defendant requests discovery under this rule, the defendant shall, subject to constitutional limitations, disclose to the prosecutor and permit him to inspect, copy, test and photograph, the following information and material which corresponds to that which the defendant sought and which is in the possession or control of the defendant or his counsel:

(1) Names and addresses of all witnesses in chief proposed to be offered by the defendant at trial;

Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice.

From an analysis of the above quoted rule, it is clear that the defendant is under no obligation to disclose to the prosecutor the names of his witnesses unless “the defendant requests discovery under this rule.” The defendant’s obligation is obviously reciprocal in nature. If he doesn’t ask for anything, he doesn’t have to give anything.

Because Downs did not request discovery under the second indictment he was not obligated to reveal the names of his witnesses. The State, therefore, had no right to claim surprise. It necessarily follows that the learned circuit judge was in error when he ruled that Dutton was not eligible to testify.

We note that although not raised on this appeal, Instructions S-l and S-2 are suspect in that they may constitute improper comments on the evidence. We therefore recommend serious consideration be given before they are used upon remand should the State chose to retry this cause.

Based on all of the foregoing, we hereby reverse and remand this cause 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.


author: BOWLING, Justice,

text:
    James E. McCONNELL, Jr. v. Nancy Lea McCONNELL.
    No. 54821.
    Supreme Court of Mississippi.
    April 25, 1984.

      John W. Crowell, Gholson, Hicks & Nichols, Columbus, for appellant.
    J. Tyson Graham, Graham & Segrest, Columbus, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

Appellant James E. McConnell, Jr., filed his bill of complaint in the Chancery Court of Lowndes County against appellee Nancy Lea McConnell, his former wife, asking for alternative relief.

The complaint alleged that both parties owned an undivided interest in two commercial lots in the City of Columbus, Mississippi; appellee having secured her title by a deed from appellant. It was requested that the court enjoin Nancy McConnell to reconvey her recorded interest in the property to appellant or in the alternative that the property be partited pursuant to the provisions of Mississippi Code Annotated, Section 11-21-1, et seq. (1972).

Appellant and his brother were engaged in the moving business and owned the subject property in equal shares as tenants in common. In 1965, the business was threatened by litigation and the McConnell brothers conveyed their interest to their respective wives. At that time, appellant and appellee evidently were enjoying a blissful marital relationship. Somewhere along the line, that situation changed and the bliss disappeared, resulting in a divorce for the parties prior to the filing of the present suit. Appellant contends in this suit that his former wife should be made to recon-vey the one-half of the property in question now in her name to appellant, or for alternative relief as hereinbefore stated.

In October 1977 appellant bought his brother’s interest in the business and secured a loan for that purpose. Two other loans were made to appellant which has resulted in three mortgage instruments on the subject property. Appellee went along with appellant and subjected her interest to the liens resulting from the loan instruments.

At the conclusion of the brief hearing, the chancellor rendered his opinion denying both alternative prayers for relief and dismissed the bill of complaint. He also dismissed appellee’s cross claim requesting rent subsequent to the time she received title to one-half of the property.

The court in its opinion stated “that in the absence of proof that subject property cannot be partited in kind, the petition for partition will be denied.” The chancellor found that “the court finds that partition proceedings are punitive in nature and that a forced sale under current economic conditions might not bring a reasonable price for the subject property;” and “the parties have been unable to agree on a minimum value for the subject real estate and the court finds that it has the discretion under these circumstances to deny the partition and does hereby decline to do so.”

In his order the chancellor stated:

It is, therefore, ordered, adjudged and decreed that the complainant’s request for cancellation of the defendant’s interest in the subject real estate, as well as the complainant’s request that the subject real estate be partitioned, should be and it is hereby denied.

Ironically, both parties agree that appellant has a right to force a partition of the property. This clearly is set out in the above cited code sections and in the following authorities, to wit: Higginbotham v. Short, 25 Miss. (3 Cushm.) 160 (1852); Hathaway v. North, 190 Miss. 697, 1 So.2d 490 (1941); Garrett v. Colvin, 11 Miss. 408, 26 So. 963 (1899); Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58 (1949). See also 59 Am.Jur., Partition, Section 30 at 793.

It is admitted by both parties that the property cannot be partitioned in kind as it would require commercial buildings to be cut in some manner, by saw or otherwise, which, of course, would be about as ridiculous as the above statement. It is elementary and authority is not needed for the proposition that this Court is on record as interpreting the statutes to require partition in kind when that can be done. It. cannot be done here, but contrary to the lower court’s opinion, a partition sale is mandated.

The evidence in the record tends to show that the proceeds from the loans establishing the liens on the property in question were used solely by appellant and the corporate structure operating the moving business on the property. Appellee, therefore, is entitled to protection after partition from the proceeds of her partited interest being subjected to the loan liens. The chancellor has this authority, in addition to his equitable powers, by the provisions of MCA § 11-21-9, which states:

The court may adjust the equities between and determine all claims of the several co-tenants as well as the equities and claims of encumbrancers.

and MCA § 11-21-33, granting the court the power to determine owelty and grant liens for that purpose.

We, therefore, reverse and remand the cause to the Chancery Court of Lowndes County for a hearing to conform to the statutes requiring partition of the property in question by sale. At said hearing the facts surrounding the loans mentioned above should be developed fully and the court should enter its decree that would result in full protection of appellee’s interest without charging her with loan funds received and solely used by appellant and his corporation.

REVERSED AND REMANDED.

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