text:
    Terry Lester BAKER v. STATE of Mississippi.
    No. 54333.
    Supreme Court of Mississippi.
    Aug. 22, 1984.

      W.F. Holder II, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen. and Catherine
    Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice, for the court:

Terry Lester Baker and Anita Baker, husband and wife, were jointly indicted and tried in the Circuit Court of Harrison County, Honorable J. Ruble Griffin, presiding, for the murder of Christopher Darden Baker, five-week-old child of the Bakers. Terry Lester Baker was found guilty of manslaughter, and the jury was unable to agree as to Joyce Baker’s guilt. The lower court sentenced Baker to seventeen (17) years in custody of the Mississippi Department of Corrections.

Baker has appealed to this Court and assigns four (4) errors in the trial below. The first three assignments of error present the same question, viz, the death of Christopher Darden Baker was excusable under Mississippi Code Annotated § 97-3-17(a) (1972), was not the result of culpable negligence which would support a conviction of manslaughter, and the verdict of the jury was against the overwhelming weight of the evidence.

Appellant and Anita Baker were ages 18 and 16, respectively. Christopher Darden Baker was born April 11, 1981, and died May 21, 1981, at the approximate age of five (5) weeks. Anita Baker was two months pregnant at the time of marriage.

Evidence favorable to the prosecution reflects that on the afternoon of May 20, 1981, appellant and Anita Baker went to the Outrigger Lounge in Gulfport about 5:30 p.m. They remained there until approximately 9:15 p.m., although each one left the interior of the establishment several times during that period. While at the lounge, appellant drank eight (8) cans of beer. Prior to going there, appellant had taken drugs consisting of a “Black Molly” and a “pink football.”

Later in the evening and night, after the Bakers had returned home, according to appellant, he was bouncing baby Christopher on the bed and tossed him in the air, then fed the child and put him to bed. The child stopped breathing, and appellant attempted to resuscitate him without success. The Mobile Medic unit was called, the medics were unable to detect that the child was breathing, they administered emergency respiration, and transported him to the emergency room at Gulfport Memorial Hospital.

Dr. Ronald T. Bruni was called to examine and treat the child and was able to revive the child's breathing with the aid of a resuscitator. The child improved to a slight extent, but expired at 4 a.m. Dr. Bruni testified that he saw the child about 1:45 a.m. on May 21, 1981; that the child was not able to maintain normal breathing on his own; that he was pale, had multiple bruises around the eyes and a large bruise across the left forehead; that the child was not making any movements, and had a very gray pulse that was weak and rapid; that the blood pressure was practically undetectable, and the child was in shock; that plasmonate was given to bring the child out of shock; that the respirator was adjusted and it became obvious there was something wrong with his head, which felt like a water balloon; and that he suspected the baby had sustained damage to the skull. There was swelling of the child’s brain and steps were taken, including various types of medication, to reduce the brain swelling. Blood tests revealed that the child had suffered considerable blood loss. He had stabilized some, still remained in shock, and all efforts failed to prevent him from expiring.

Dr. Bruni determined that there were skull fractures and old rib fractures, from X-rays which were taken, and he talked with appellant to ascertain a history of the injuries. Appellant volunteered that the child had struck his head on the steering wheel of their car about a week prior to being seen in the emergency room and denied that the child had lost consciousness, or had a bruise after receiving the blow. Appellant further related that he was told the child probably sustained broken ribs during the Ceasarian birth of the child. Dr. Bruni found four (4) fractured ribs and stated that, in his experience as a pediatrician, he had never seen a situation where a baby incurred four broken ribs in a section delivery. According to the doctor, he found that the entire gastro-intestinal tract of the baby showed it to be completely empty, which indicated that the baby had no food going into the gastro-intestinal tract for at least two (2) days. In his opinion, bruises on the child were received within the past twenty-four (24) hours.

The doctor testified that the child never breathed on his own; that his pupils were fixed and dilated at mid-point, meaning that there was severe damage to the brain which made it impossible for the eyes to react to light. Dr. Bruni’s final diagnosis was:

Q. Doctor, I’ll ask you to look at page 2 of your summary. Doctor, do you find that? Page 2?
A. Yes, sir.
Q. You see where it says final diagnosis?
A. Yes, sir.
Q. You have three possible reasons?
A. Yes, sir.
Q. Would you read those to me, please, doctor? Those are your determinations and your findings?
A. Yes.
Q. Would you read those for me, doctor, please?
A. It says, “Final Diagnosis, number one — multiple skull fractures with inter-cerebral bleedings; number two — possible battered child syndrome; number three — several old fractures of right rib cage.
Q. The baby never had a chance when it was brought to the Emergency Room, did it, doctor? Tell me. To survive.
A. Well, it’s probably correct.

Dr. Edward Matthew Rehak, a pathologist, performed an autopsy on the baby May 22, 1981. In brief, he found a large amount of fresh blood and clotted blood immediately below the scalp. There were multiple bone fractures of the top portion of the skull. Some were fractured, others were depressed, pushing down into the brain. He found massive hemorrhage in the brain cavity, both subdural and sub-arachnoid. The hemorrhage covered the cerebral cortex, cerebellum, and the spinal cord extending down. He found four (4) fractured ribs on the right side of the thorax encompassing ribs 4, 5, 6 and 7, and that the gastrointestinal tract was completely empty showing no evidence of any food, which was unusual. Microscopic study indicated that the rib fractures were probably between two and three weeks old and, in the doctor’s opinion, could not have been as old as five weeks. He attributed the cause of death to massive hemorrhage in the scalp and the subdural and subarach-noid space with multiple skull fractures and depressed skull fracture. In his opinion, the skull injuries resulted from blunt trauma.

Appellant took the stand in his own behalf at the trial. On cross-examination, he testified to the following:

Q. You took this five week old baby that you’d just dropped, you picked him up, he was crying, gave him a bottle, he took a little of it, you changed his diaper, and then put him in the bed?
A. (No response.)
Q. That what you’re saying?
A. Yes.
Q. And he went on to sleep?
A. Yes, sir.
Q. And the baby never woke up again, did he?
A. No, sir.
Q. You could have thrown him up above your head?
A. Yes, sir.
Q. How tall are you?
A. About 5’11”.
Q. And the bed was what?
A. Two foot.
Q. You’re 5’11”, and the baby was going up above your head? So, the baby had to fall roughly three and a half to four feet to the bed, and then another, at least six feet to the floor from where you [were] throwing him? Isn’t that true?
A. No, sir. I broke the fall. I tried to catch him.
Q. You broke the fall?
A. Some of it.
Q. But he did fall approximately six feet from where he started down from above your head, at least six feet until he finally came to rest on that tile floor?
A. Yes, sir.
Q. That’s be about six feet?
A. Yes, sir.

The appellant contends that Mississippi Code Annotated § 97-3-17(a) (1972) excuses his conduct. It states:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent; ....

Smith v. State, 197 Miss. 802, 818-19, 20 So.2d 701 (1945), discusses culpable negligence and sets forth the following rule:

Culpable negligence should be construed to mean a negligence of a higher degree than that which in civil cases is held to be gross negligence, and must be a negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt.

Under all of the evidence presented to the jury, there was an issue as to the guilt or innocence of the appellant. The lower court correctly submitted that question to the jury, and the verdict and judgment are not contrary to the overwhelming weight of the evidence.

Under Assignment IV, the appellant contends that the district attorney, in closing arguments, made prejudicial statements which biased and prejudiced the jury against him. Statements made by the appellant’s attorney and the district attorney follow:

Ladies and Gentlemen of the Jury, you pay the prosecutor with your taxes, but he’s supposed to use some discretion in the cases he brings before you as jurors. These two kids, two little kids, 16 and 18, how many of us have teenagers like that, as sitting before you, and the prosecution is asking you to convict them of murder.
It ought to shock the conscience to think that Albert Necaise would come into this courtroom to prosecute these two little kids on murder.
In response, the district attorney stated:
The grand jury meets back here and they hear the evidence. The grand jury is made up of people like you in the county. They sat right there and they heard the evidence. They heard both of their statements. They didn’t appear, but their statements were read to the grand jury. Every piece of evidence that we had, that we gave you all, every piece of it was given to the grand jury with the exception of the Dixon boy’s testimony. His testimony was not given to the grand jury. The grand jury is made up of twenty people. They didn’t decide the guilt or innocence. That is not their responsibility. Their responsibility is what charge should these people, or if they should be charged, tried, what should they be tried for? That jury said they should be tried for murder.
(Objection by appellant’s attorney overruled).
That’s what they said they ought to be tried for. His Honor comes out to try the case, put on the evidence, and His Honor says the jury has an alternative. They can bring in one of three verdicts. (R. 357-359)

In Gilliard v. State, 428 So.2d 576, 584 (Miss.1983), we said that although the remarks there made were improper, the remarks of the defense attorney were sufficient provocation to excuse the district attorney’s response. We have carefully considered the statements of the attorneys for appellant and the State and, in our opinion, the district attorney’s remarks do not constitute error.

The appellant complains about the verdict of manslaughter and the fact that the jury sent a note to the trial judge inquiring whether it could find one of the defendants guilty of involuntary manslaughter. The judge answered the question in the affirmative. We are of the opinion, that no reversible error occurred from that incident.

The judgment of the lower court is affirmed.

AFFIRMED.

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

PATTERSON, C.J., not participating.

      . The principle has been restated many times and recently in Gray v. State, 427 So.2d 1363 (Miss.1983).


source: Caselaw Access Project

license: Public Domain

text:
    Joseph BERRY v. STATE of Mississippi.
    No. 54297.
    Supreme Court of Mississippi.
    Aug. 22, 1984.
    Rehearing Denied Sept. 26, 1984.

      William 0. Townsend, Pearl, Wayne Burnett, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   WALKER, Presiding Justice, for the court:

This cause comes as an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi. Joseph Berry was indicted and tried for the murder of Jerry Fulton. The jury found Berry guilty of murder, and the trial judge sentenced appellant to a term of life imprisonment in the custody of the State Department of Corrections.

Berry testified that he killed Jerry Fulton in self-defense. He and Fulton had gone away from the other workmen at the building supply company and were shooting dice. According to Berry’s testimony Fulton became angry when he began to lose money to the appellant and threatened to kill the appellant. It was Berry’s testimony that when Fulton started coming toward him he was afraid and pulled a gun from the front of his pants and shot at Fulton. Three of four shots hit Fulton. The pathologist who performed the autopsy testified that either of two of the shots could have killed Fulton.

There was no eyewitness testimony other than that of the appellant. The State’s principal witness was the pathologist. He testified that two of the shots entered the victim’s body on the left — one in the left shoulder and one behind the left ear. The appellant later testified that the decedent was coming straight towards him but turned slightly after the first shot.

The only other witnesses for the state were the police officers who arrived after the shooting was reported.

No weapon was found on the deceased.

Appellant cites four errors on appeal. The first two are as follows:

(1) The court refused to grant appellant a peremptory instruction directing a verdict for appellant; and

(2) The court erred in failing to instruct the jury that since the appellant was the only eyewitness to the homicide that his version of the killing if reasonable must be accepted as true by the jury unless substantially contradicted in material particulars by credible witnesses for the State or by physical facts or by facts of common knowledge.

In both of these arguments appellant relies on the Weathersby rule found in Weathersby v. State, 165 Miss.207,147 So. 481 (1933). This Court has repeatedly stated that it is a rare case which meets the requirements of Weathersby. Edge v. State, 393 So.2d 1337, 1340 (Miss.1981); Null v. State, 311 So.2d 654, 657 (Miss. 1975). This is not one of them.

Berry’s self-defense claim was based on his constant fear of the deceased. Berry testified that he was afraid of Fulton and had on another occasion had a “run-in” with him. However, he further testified that he had a .38 calibre loaded pistol in his belt when he and Fulton went to a secluded area to gamble. Also, there was testimony that the two men had eaten lunch together on the day of the shooting. These are hardly the acts of a man claiming to be in constant fear of another. Furthermore, Berry’s testimony was that Fulton was facing him when he shot, but the pathologist testified that two shots entered from the victim’s left side — one entering three inches behind the left ear. From this, the jury could have found that the deceased was not “coming toward” appellant at all.

The evidence above as to self-defense was not conclusive and at most created a question for the jury. Accordingly, the trial court was correct in refusing appellant’s request for a peremptory instruction of not guilty.

(2) Appellant was not entitled to a jury instruction on. the Weathersby rule. As this Court pointed out in Null v. State, 311 So.2d 654, 658 (Miss.1975) “whether an accused is entitled to the benefit of the Weathersby rule is a question for the court and is not a proper subject of an instruction to the jury.”

(3) The lower court erred in excluding evidence offered by the appellant as to the decedent’s reputation for peace and violence in the community in which he lived.

The general rule is that the character or reputation of the deceased is not admissible in a murder case. An exception to this rule is where there is doubt as to who was the aggressor. Freeman v. State, 204 So.2d 842, 844 (Miss.1967). But this exception is limited. Specific acts of violence committed by the deceased are not admissible to show deceased’s bad reputation. Arrington v. State, 366 So.2d 246 (Miss.1979); Shinall v. State, 199 So.2d 251 (Miss.1967) and Newsome v. State, 197 Miss. 797, 20 So.2d 708 (1945).

In the present case the witness was allowed to state that the deceased’s reputation for peace and violence was “bad.” It was only when the witness testified as to specific acts that the testimony was objected to and excluded. The lower court properly excluded the offered evidence of specific acts committed by the deceased.

(4) The lower court erred in refusing to grant appellant’s jury instruction on self-defense.

Appellant’s argument reads as though this refused instruction was the only instruction offered on self-defense. Appellant’s jury instruction D-10 was rejected as being repetitious when considered with other instructions given. We agree. As this Court stated in Holden v. State, 399 So.2d 1343, 1345 (Miss.1981):

It is a familiar rule that all instructions must be considered together, and if the instructions considered as a whole fully instruct as to the state’s burden of proof, the refusal of an instruction will not constitute reversible error. Sloan v. State, 368 So.2d 228 (Miss.1979).

The Court further stated in Hughes v. State, 420 So.2d 1060, 1062 (Miss.1982):

The instruction the court gave on self-defense did not conflict in any way with the requested defense instructions. The circuit judge adequately informed the jury on the law of self-defense. We see no need in this case for the trial judge to further delineate some aspect of the affray, which defense counsel were still free to argue to the jury, using as their text the self-defense instruction the court did give. Holmes v. State, 201 Miss. 509, 29 So.2d 312 (1947).

A review of the instructions given in the present case establishes that the law relative to self-defense was amply covered.

For the above stated reasons, the judgment and sentence of the lower court are affirmed.

AFFIRMED.

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

PATTERSON, C.J., not participating.


text:
    Richard L. GEORGE v. Terry Glenn WINSTEAD, et al.
    No. 54354.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Rehearing Denied Sept. 26, 1984.
    Walter T. Rogers, Meridian, for appellant.
    Lyle V. Corey, Corey & Corey, Meridian, for appellees.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before BOWLING, HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    Creed BUCK, Jr. v. STATE of Mississippi.
    No. 54353.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Rehearing Denied Sept. 26, 1984.
    C. Emanuel Smith, Mayfield & Smith, Tupelo, W. Howard Gunn, Jerry Askew, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner and Leyser Morris, Sp. Asst. Attys. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Joe O. Sams, Sr., Judge.

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

AFFIRMED.

PRATHER, J., not participating.


author: SULLIVAN, Justice, for the Court:

text:
    Mary Ann Moore TORRENCE v. Quinton Alvin MOORE.
    No. 55304.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Harry L. Kelley, Jackson, for appellant.
    Pat Donald, Morton, for appellee.
    Before HAWKINS, PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

This case rises on appeal from the Chancery Court of Scott County, Mississippi. These parties were married each to the other on May 14, 1976. One son, Quinton Ryan Moore, was born to them on October 11, 1977. The parties separated July 7, 1980, and were divorced on grounds of irreconcilable differences on December 2, 1980. By agreement, they had joint custody of their son, with each of them being the paramount custodian for equal periods of time on a monthly basis. Both parties have now remarried to other people. Ap-pellee has one child by his marriage, who was six months old at the time of the hearing, and two step-children, a boy aged eight and a girl aged five at the time of the hearing. The appellant has no children from her marriage to Mr. Torrence.

As their son approached school age, both parties sought modification of the custody arrangement as the alternating custody would be detrimental to the child during his school years. Appellant testified that it would be in the child’s best interest to be in the custody of only one of the parents, and appellee testified to the same thing, except he conceded that it would be best for his son that one parent have custody of the child even if the appellant was granted custody though he preferred it.

At trial both sides conceded the fitness of the other. The issue, therefore, was squarely presented to the chancellor of what was in the best interest of the child.

The appellant relied on the presumption of the “tender years” doctrine, the fact that she was the mother of the child, and the testimony of Linda Wilbourn, Ph.D in clinical psychology, who testified that the child was experiencing anxiety about his unstable home environment and difficulty in adjusting to the other children in the home. Dr. Wilbourn testified further that traditionally the mother is the better custodian of a child up to the age of twelve or thirteen. She further opined that it is better for a child to live with the mother than a stepmother.

Dr. Wilbourn’s testimony was based on one interview with the child and with the appellant as well as a series of tests given to the child. She did not interview appellant’s new husband, nor did she interview the appellee nor the appellee’s new wife. On this background information, Dr. Wilb-ourn testified:

1. That a clinical history is important in diagnosis but her entire knowledge of the child came from that one session and her opinion, insofar as it is based upon individual factors is based upon the information gathered at that one session;

2. That her opinion is primarily based upon her predisposition toward maternal custody of young children;

3. That the fact that appellant frequently kept the child in the presence of appellant’s father, who drank regularly and heavily, would not alter her opinion that appellant should be granted paramount custody of the child;

4. That the child’s close emotional ties to his half-brother, stepbrother and stepsister would make no difference in her opinion that appellee should have the paramount custody of the child.

Dr. Wilbourn admitted that the child, Ryan, suffered no adverse effects as the result'of living with his father, stepmother, stepbrother, stepsister and half-brother.

Appellant contends that the chancellor ignored the testimony of the expert. Appellant cites Ballard v. Ballard, 434 So.2d 1357 (Miss.1983), and Cheek v. Ricker, 431 So.2d 1139 (Miss.1983), which we appreciate to be sound law, but which are inapplicable to the facts of the present case.

Appellant urges that of the eleven factors to be considered in determining custody, as set out in Albright v. Albright, 437 So.2d 1003 (Miss.1983), the chancellor ignored and did not consider the following six: (1) the age of the child; (2) the health and sex of the child; (3) the determination of the parent that has had the continuity of care prior to the separation; (4) which parent has the best parenting skills; (5) the emotional ties of the parent and the child; (6) other aspects being relevant.

Appellant also urges the novel idea that, all other factors being equal, the parent without children should be awarded custody over the parent that has other children. This is offered by the appellant for the limited function of serving as a “tie-breaker” as it were.

Appellee’s testimony established evidence of a close and loving relationship between him and his son evidenced by the following: (1) that appellee has, over an extended period of time, taken his son on numerous hunting and fishing trips; (2) he has taught his son gun safety; (3) he has taught his son water safety and secured for him swimming lessons; (4) he has at all times seen to the religious and spiritual training of his son; (5) he has taught his son financial values through the granting of an allowance and the maintaining of a savings account; (6) he includes his son in a wide range of family activities which have included over the years numerous picnics, trips to the Gulf coast, trips to the state fair, eating out, riding horses, playing games, going to movies, Easter egg hunts, Christmas programs at the church, birthday parties, etc.; (7) he has provided for his family and his son, Ryan, a comfortable and suitable home in a wooded area near Morton which provides for the child a comfortable and safe environment in which to grow up; (8) he has made a concentrated effort to see that the educational needs of his son are met, one instance of which was his sending his son to kindergarten and paying all the expenses therefor at a time when the appellant wouldn’t allow the child to attend kindergarten even at the father’s expense; and (9) appellee gives his son individual attention, goes on walks with him and discusses the child’s problems with him when he thinks the child is troubled.

Appellee has employment stability, having worked in construction for the past 12 years and with the same company for the past 4 years. He has advanced to a supervisory position in his company. Appellee is a Sunday School teacher, superintendent of Sunday School classes, an administrative board member and on the council of ministries at his church. His son attends church with him on a regular basis when in his custody.

DID THE CHANCELLOR COMMIT ERROR IN AWARDING THE CUSTODY OF THE MINOR CHILD TO THE FATHER?

No. Two limiting factors have always been applied to the “tender years” doctrine and they are critical in this case. Amis, Divorce and Separation in Mississippi, (1957), Section 8.05, page 217, says:

In all cases where any child is of such tender age as to require the mother’s care for its physical welfare, it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.

A child of 7 has been held by this Court to be long past the age prior to which it requires attention of such character from the mother. Duncan v. Duncan, 119 Miss. 271, 80 So. 697 (1919).

Since Dillard v. Wright, 19 Miss. 445 (1848), we have refused to disturb the finding of a chancellor on conflicting evidence unless it is clearly wrong. Even if we do not agree with the chancellor or might arrive at a different conclusion, if we cannot say with reasonable certainty that his findings were manifestly wrong and against the overwhelming weight of the evidence, we are still bound by his findings. Richardson v. Riley, 355 So.2d 667 (Miss. 1978).

In reviewing the record in the comprehensive verbal opinion rendered by the chancellor from the bench at the conclusion of this trial, we are unable to say that the chancellor did not consider all eleven of the determining factors cited by this Court in Albright, supra. We certainly cannot say that he ignored the six factors set out in appellant’s brief.

It cannot be said that the chancellor disregarded the testimony of Dr. Wilb-ourn. When we consider all of the circumstances surrounding the testimony of that expert, we are of the opinion that the chancellor accepted her testimony, accorded it appropriate probative value, and then made his decision after a consideration of that testimony. In this regard, it cannot be said that the chancellor is in error because he refused to substitute his judgment as to the best interest of the child with the judgment of a professional witness. The ultimate determination of the best interest of the child is a determination to be made by the court. In his excellent bench opinion, the chancellor found that the advent of school age was a material change in circumstances that rendered the split custody of the child useless and even harmful to the child. The chancellor further found that, considering all of the evidence presented to him, the proof was overwhelming that the best interest of the child would be served by modifying the prior judgment of joint custody and placing the child in the custody of his father, the appel-lee. This he did, even though finding that either parent would be fit and suitable to have the care, custody and control of the child.

We cannot say this decision is manifestly wrong and certainly it is not against the overwhelming weight of the evidence. We cannot say that the chancellor did not properly apply the law to the facts as he found them. Therefore, we affirm the decision of the lower court.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER _ and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


author: PRATHER, Justice, for the Court: DAN M. LEE, Justice,

text:
    OLD SECURITY CASUALTY INSURANCE COMPANY, a/k/a American Continental Insurance Company v. Cora CLEMMER and Hubert Clemmer.
    No. 54272.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Charles M. Merkel, Merkel & Cocke, Clarksdale, for appellant.
    Robert L. Williams, Hernando, for appel-lees.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice, for the Court:

This action by Cora and Hubert Clemmer seeks to recover liability insurance proceeds for compensatory, punitive, and property damages awarded to the Clemmers against the insured of Old Security Casualty Insurance Company in a previous tort action. To collect the judgment, a writ of garnishment was issued by the Circuit Court of DeSoto County against the insurance company as garnishee. Old Security Casualty Insurance Company appeals from the circuit court judgment asserting that the policy limit for one person with bodily injury was exceeded.

I.

On July 27,1977 Cora Clemmer was driving an automobile in a northerly direction on U.S. Highway 61 in DeSoto County, Mississippi, following Hubert Clemmer, her husband, who was operating another vehicle. Ezekial Curry was traveling in a southerly direction on the same highway and sideswiped Hubert Clemmer’s vehicle and crossed the centerline and struck Cora Clemmer’s car in her lane of traffic. Hubert Clemmer sustained no personal injury.

Curry carried liability insurance coverage with Old Security Casualty Insurance Company which provided bodily injury limits of coverage of $10,000.00 for each person per occurrence, and bodily injury limits of $20,000.00 for two or more persons as the result of any one occurrence. The policy also provided property damage coverage up to a limit of $5,000.00 per occurrence.

Cora and Hubert Clemmer filed a tort action against Ezekial Curry. Mrs. Clem-mer sought compensatory and punitive damages. Mr. Clemmer sued for property damage to the vehicle driven by his wife and punitive damages for loss of consortium. The jury awarded Mrs. Clemmer $20,000.00 compensatory damages, Hubert Clemmer $10,000.00 property damage, but no damages for loss of consortium. The plaintiffs collectively were awarded punitive damages in the amount of $50,000.00. Neither the defendant nor his insurer appealed.

After the judgment became final, the Clemmers filed a suggestion for writ of garnishment against Old Security as garnishee, which suit was contested and is the subject of this appeal. The trial judge awarded the Clemmers the full amount of $25,000.00 from the limits of all coverages of the policy, including the $20,000.00 “per occurrence” limit for bodily injury and $5,000.00 “per occurrence” property limit. Old Security paid into court $13,800.00 for which it acknowledged liability, but contested the additional award of $10,000.00 for the “per occurrence” bodily injury coverage.

The appellant admits in its brief that the jury verdict to Hubert Clemmer of $10,-000.00 would entitle Hubert Clemmer to a judgment against the garnishee defendant in the full amount of the property damage limit of $5,000.00, less any prepaid portion. Likewise, Cora Clemmer is entitled to a judgment against the garnishee defendant for the full amount of the bodily injury limit of $10,000.00 per person, less any prepaid portion by Old Security.

II.

The question addressed here is whether an award of punitive damages to a second person (the husband) invokes the “per occurrence” limit for all damages arising from bodily injuries to “two or more persons as a result of any one occurrence?”

The pertinent provisions of the Old Security Casualty Insurance Company policy in question are as follows:

Coverage A Bodily Injury Liability: Coverage B- Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by any person; injury to or destruction of property, including loss of use thereof, hereinafter called “property damage”; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile_

The policy further provided a definition for the limits of the company’s liability as follows:

Limits of Liability: The limits of bodily injury liability stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to “each occurrence” is, subject to the above provision respecting each person, the total limit of the company’s liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence. (Emphasis added).
The limit of property damage liability stated in the declarations as applicable to “each occurrence” is the total limit of the company’s liability for all damages arising out of injury to or destruction of all property of one or more persons or organizations, including the loss of use thereof, as the result of any one occurrence.

Under the express policy language, the limit of Old Security’s liability for “bodily injury” sustained by any one person is $10,-000.00. If two or more persons suffer bodily injury, the per occurrence clause of the policy limits Old Security’s aggregate bodily injury liability to $20,000.00. That clause never comes into play, however, until there are at least two claimants who have sustained bodily injury. Here there is only one such claimant, Cora Clemmer.

Hubert Clemmer never even made a claim for personal or bodily injuries. His claims for property and punitive damages were successful, while his claim for loss of consortium was denied. For purposes of the insurance policy construction question presented here, Hubert Clemmer’s personal injury claim is $0.00. Resort to the $10,-000.00 of the bodily injury per occurrence coverage, remaining after Cora Clemmer’s claim is honored, may not be had.

Hubert Clemmer’s property damage claim resulted in a judgment in his favor in the original trial of $10,000.00. Under the per occurrence property damage coverage, Old Security is liable to Hubert Clemmer for $5,000.00 and $5,000.00 only, a point Old Security concedes.

In executing his order against Old Security, the trial judge relied solely on the holding of this Court in Anthony v. Frith, 394 So.2d 867 (Miss.1981). In Frith this Court held that the awarding of punitive damages against a liability insurance company was not against public policy.

We reaffirm our holding in Frith that an insurance company’s liability “for all damages arising from bodily injury” includes punitive damages. However, the extent or limit of that liability for punitive damage is governed by the agreement of the parties as reflected by the actual language in the policy of insurance.

The policy language with which we are here concerned states the extent of liability for all damages because of bodily injury to one person, Mrs. Clemmer, to be $10,-000.00; this limit is exhausted. The policy language states that the extent of liability for all property damage per occurrence for Mr. Clemmer to be $5,000.00; this limit is exhausted.

Nevertheless, the trial judge awarded a judgment against the liability insurance company of $25,000.00 representing the full property damage limit of $5,000.00 and the full per occurrence limit for bodily injury of $20,000.00, notwithstanding the fact that only one of the plaintiffs sustained personal injury. For the reasons explained above, so much of the judgment against Old Security as exceeds $15,000.00 ($10,-000.00 bodily injury payment to Cora Clem-mer and $5,000.00 property damage payment to Hubert Clemmer) was erroneously entered.

Other jurisdictions have addressed this question. In Williams v. Standard Accident Insurance Co. of Detroit, Michigan, 188 F.2d 206 (5th Cir.1951), the Fifth Circuit interpreted an insurance policy which provided for bodily injury liability of $5,000.00 for each person and $10,000.00 for each accident. Applying Louisiana law, the Court held that “ ‘(E)ach person’ refers to the person injured or killed and not to each person who may be damaged as a result of bodily injury inflicted upon or death suffered by one person.”

In United Services Auto Association v. Warner, 64 Cal.App.3d 957, 135 Cal.Rptr. 34 (1977) an analogous situation arises. In United Services a man’s wife was injured ■in an accident caused by another’s negligence. The husband was not involved in the accident and sustained no bodily injury. He brought an action seeking damages for loss of consortium. The insured’s policy provided bodily injury liability coverage of $50,000.00 for each person and $100,000.00 for each occurrence. The issue framed by the California Court was:

Does the claim for loss of consortium arise out of bodily injuries sustained by “one person” (the wife) so as to make the “per person” limit applicable; or is the claim for loss of consortium a claim for bodily injury to a second person (the husband) so as to invoke the “per occurrence” limit for injuries to “two or more persons as a result of any one occurrence.” _
However, the California courts have uniformly held that the “per person” limit applies to claims for loss of services and other consequential damages to a person related to the person suffering bodily injury in an accident. In Perkins v. Fireman’s Fund Indem. Co., [44 Cal. App.2d 427, 112 P.2d 670 (1941)] supra, the wife was injured in an automobile accident and claimed bodily injury; the husband who was not present and not involved in the accident sued for loss of services. In holding that the lower “per person” limit applied to both claims, the court stated: “An insurance policy, like any other contract, must be construed in its entirety and given a reasonable construction. A court cannot seize on the words ‘one person’, and give those terms a distorted meaning, when another clause in the policy expressly states what those terms mean. There is no ambiguity or uncertainty in the language used in the policy. Obviously, the words ‘one person’ refer to the injured person, and the words ‘one accident’ to the injury of several persons, regardless of how many may suffer loss by reason thereof.” (Perkins v. Fireman’s Fund Indem. Co., supra, 44 Cal.App.2d 427, 431, 112 P.2d 670, 672).

We conclude that the award for punitive damages to Mr. Clemmer, a second claimant, is not a claim for all damages arising because of “bodily injury” of a second person so as to reach the “per occurrence” coverage of this policy.

We, therefore, reverse the judgment of the circuit court insofar as the award of $10,000.00 punitive damages from the “per occurrence” coverage of this policy as exceeding the limits of liability established by the clear language of the policy. We affirm the judgment with reference to the $10,000.00 compensatory damage to Mrs. Cora Clemmer and the $5,000.00 property damage to Hubert Clemmer, less any amount prepaid into the court registry.

AFFIRMED IN PART. REVERSED IN PART.

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

WALKER, P.J., and DAN M. LEE and HAWKINS, JJ., specially concur.

DAN M. LEE, Justice,

specially concurring:

I have no real argument with the majority opinion; however, because I view today’s decision as a significant development in Mississippi jurisprudence, I have chosen to add my thoughts on its impact.

An insurance policy is a contract and as such, the extent of the insurer's liability is governed by that contract. In theory, once a policy has been purchased, there is a reservoir of money in the sum of the policy limit from which all claims are to be paid. Once that reservoir has been emptied the insurer has no further responsibility for the liability of the insured. In short, absent any independent bad faith on the part of the insurer, its liability is limited by the terms of the contract.

The insurance policy in the instant case contains three reservoirs of coverage. The first is in the amount of $10,000. This reservoir represents the total liability of the insured for damages to any single person arising out of bodily injury. The second reservoir surrounds the first. It represents a $20,000 sum from which the insured will be liable for damages to two or more persons arising from bodily injury. The third reservoir is the sum of $5,000 from which the insured covenants to pay all claims arising from property damage. As in all insurance policies, these reservoirs are defined by the nature and extent of the policy coverage.

In Anthony v. Frith, 394 So.2d 867 (Miss.1981), this Court held that it was not against the public policy to award punitive damages from an insurance company’s reservoir of liability where there was an award of compensatory and punitive damages arising from an injury and that reservoir was specifically designated to pay all claims arising from bodily injury. Today we hold that punitive damages are also recoverable from a reservoir specifically designated to pay claims arising from property damage. We also hold that the insurer’s liability to pay those claims is limited by the extent of the reservoir or coverage.

The jury determined that Mrs. Clemmer was entitled to $20,000 compensatory damages for her bodily injury. Mr. Clemmer was awarded $10,000 to compensate his property damage; however, he was awarded nothing for loss of consortium or damages arising from a bodily injury. Mr. and Mrs. Clemmer were collectively awarded $50,000 in punitive damages. In order to establish Old Security’s extent of liability for the Clemmers’ damages it is a simple matter to trace those damages to the appropriate reservoir established by the policy-

Mrs. Clemmer sustained the only bodily injury incurred as a result of this incident. Therefore, the $20,000 reservoir established as the total liability for the bodily injury of two or more persons is not relevant. The $10,000 reservoir established to pay for damages arising from bodily injury to a single individual is the appropriate source of coverage for Mrs. Clemmer’s damages. The $5,000 reservoir for coverage of all claims for property damage arising from a single incident is the source Mr. Clemmer must look to for satisfaction of his damages.

As previously stated, once a reservoir of coverage is exhausted an insurer acting in good faith has no further liability. As Mrs. Clemmer’s actual damages were determined to be $20,000 and the insurance coverage was limited to $10,000 the reservoir from which she may collect has been exhausted. Old Security cannot be liable for the excess $10,000 in actual damages. By the same token, the extent of Old Security’s liability for Mr. Clemmer’s $10,000 in property damage is limited to the $5,000 reservoir set aside for that purpose. Having acted in good faith, Old Security has no liability in excess of its policy limits. The trial court awarded the Clemmers $25,000, $20,000 from the per occurrence limit for bodily injury and $5,000 from the per occurrence property damage limit. This was improper. As there was only one person suffering bodily injury, the $20,000 reservoir never came into play. It may not be used to pay any excess in the judgment not covered by the applicable provisions of the policy. Certainly, had Mr. Clemmer’s property damage been under the policy limit of $5,000 any difference between his damages and the policy limit could be used to pay his punitive damages. Unfortunately for the Clemmers they have used up the extent of Old Security’s liability under the applicable contractually established policy limits. They may not now dip into another reservoir established by the policy which by the terms of that policy is not applicable to the damages suffered by the Clemmers.

Having set forth my views on the subject, I hereby specially concur in the majority opinion.

WALKER, P.J., and HAWKINS, J., join in this opinion.


author: DAN M. LEE, Justice, for the Court: HAWKINS, Justice, ROBERTSON, Justice, PRATHER, Justice,

text:
    Charles PANNELL v. STATE of Mississippi.
    No. 54226.
    Supreme Court of Mississippi.
    Sept. 5, 1984.

      Omar D. Craig, Arlen B. Coyle, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Lafayette County wherein the appellant, Charles Pannell, was convicted of the crime of aggravated assault upon his stepson, Jason Pannell. The sole issue presented by this appeal relates to the granting of an instruction requested by the State concerning the flight of a person from the scene of a crime. We reverse.

The facts surrounding the shooting are in dispute. All that is certain is that on May 23, 1981, Charles Pannell drove to the home of his former wife, Dorothy, and stepson, Jason Pannell. An incident occurred in which shots were fired and Jason Pannell was hit with numerous shotgun pellets from a shotgun admittedly fired by the defendant. Just how this incident came about is not relevant for purposes of this appeal. It is sufficient to state that Charles Pannell testified that he fired only after being fired upon by Jason Pannell and that Jason denied having fired any weapons. Furthermore, both Charles Pan-nell and his sister, Julia Waldrip, testified that she was with him at the time of the incident. Jason stated that he did not see any passenger in the defendant’s truck; however, this may be explained because Mrs. Waldrip testified that she got on the floorboard of the truck when the hostilities began.

The facts that are material to this appeal occurred after the shooting and are completely uncontradicted. Charles Pannell testified that following the "shooting he dropped off Mrs. Waldrip at her house and went directly to another sister’s house with whom he had been staying. Once there, he immediately phoned the sheriff’s office to report the incident. Pannell then made an unsuccessful attempt to contact his attorney. The following morning, after consultation with his attorney, Pannell voluntarily surrendered to the sheriff.

At trial, the State requested and was granted the following instruction:

Flight is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Charles Pannell, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the defendant.

Since 1928 when this Court first addressed the law of so-called flight instructions in the case of Ransom v. State, 149 Miss. 262, 115 So. 208 (1928), there has been a clear jurisprudential evolution. A review of our State’s legal history on this subject makes the wisdom of that evolution irrefutable.

In Ransom v. State, supra, our Court addressed the problem for the first time. Ransom was indicted for murder and convicted of manslaughter. From the facts recited in the opinion, it appears that Ransom intervened in a dispute between two others and fired a pistol, killing one Red Henry. Thereafter Ransom and the other combatant fled the scene. An instruction similar to the one now at bar was given to the jury. The opinion states that Ransom argued that his explanation of his flight was uneontradieted and therefore the presumption which might arise from the instruction would be improper. Interestingly and importantly the Court did not set forth any explanation for Ransom’s flight. The only mention of an explanation was in the form “It is argued that the appellant’s flight is explained.” Therefore, it is not apparent what the explanation was, if indeed there was one. The opinion went on to hold:

As we understand the law of flight, it is to be considered in connection with all the other evidence in the case, and the jury will determine from all the facts whether this flight was from a conscious sense of guilt, or whether it was caused from other things, and give it such weight as the jury thinks it is entitled to, in connection with all the other evidence in the case.

149 Miss, at 268, 115 So. at 210.

In Sims v. State, 164 Miss. 16, 142 So. 468 (1932), Granville Sims was convicted of murdering his wife. Sims gave two conflicting accounts of the shooting but did not explain his subsequent flight. This Court held that it was not error to give a flight instruction and that the circumstance of flight could be considered in conjunction with other evidence.

In Howard v. State, 182 Miss. 27,181 So. 525 (1938), this Court held that an instruction which read:

The Court charges the jury that flight is a circumstance from which guilt might be inferred

was calculated to mislead the jury into believing that flight was substantive evidence of guilt. The opinion stressed that because flight is a circumstance “consistent with innocence as well as guilt” it must be considered with the available material evidence, if at all. Howard marks the point at which our state’s law on this issue begins to evolve.

Eubanks v. State, 227 Miss. 162, 85 So.2d 805 (1956) is the first of the “modern” cases to address the issue. Clyde Eubanks was convicted of receiving stolen property. The jury was instructed as follows:

The Court instructs the jury for the State of Mississippi that unexplained flight is a circumstance from which an inference of guilt may be drawn and considered with all the other facts and circumstances connected with the case.
We there held:
The facts did not warrant the giving of this instruction. Appellant gave an entirely plausible and uncontradicted explanation of the reason why he was absent from the county for five weeks. The sheriff’s testimony to the effect that he could not locate appellant does not negative the uncontradicted status of appellant’s testimony in this respect. Instructions on flight, if given at all, should be used only in cases wherein that circumstance has considerable probative value. Moreover, such an instruction is primarily argumentative. Alexander, Mississippi Jury Instructions (1953), Sec. 2341. However even if the facts here had warranted an instruction on flight, this one is erroneous. It is practically a peremptory statement to the jury that appellant fled and that the jury could consider this with other facts in making an inference of guilt. It should have been qualified so as to be related to the facts of this case, and also to tell the jury it must first find the facts before it can use flight along with other circumstances to support an inference of guilt. 1 Alexander, Ibid., Sec. 2342.

227 Miss, at 168, 169, 85 So.2d at 806.

We next addressed this issue in Quarles v. State, 199 So.2d 58 (Miss.1967). Dotson Quarles was found guilty of manslaughter in connection with the death of Oliva Collins. Quarles was arrested in Chicago six days after discovery of Ms. Collins’ body in her Tallahatchie County home. It appeared from the evidence that Quarles had not left Tallahatchie County until at least five days after Ms. Collins’ death, and further, he was unaware of the discovery of her body at the time he left the county.

The trial court granted the following instruction: '

“The Court instructs the jury for the State of Mississippi that flight is a circumstance from which as a matter of law the inference of guilty knowledge and fear may be inferred and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Dotson Quarles, fled and remained in flight and hiding for a time after he killed Oliva Collins, if you do believe beyond a reasonable doubt that defendant did kill Oliva Collins, and if you further believe from the evidence in this ease beyond a reasonable doubt that he did kill Oliva Collins with the intent to kill and murder Oliva Collins, you may take such flight or hiding into consideration along with all the other evidence in this case in determining the guilt or innocence of said defendant, Dotson Quarles.”

Upon these facts we held:

This instruction should not have been given. It is confusing in form, capable of misleading the jury, and begins with an apparent assumption that Quarles “fled and remained in flight and hiding for a time after he killed Oliva Collins." Nor do we consider that the concluding portion of the instruction sufficiently removes this defect. It is “unexplained flight" from which, under certain circumstances, an inference of guilty knowledge may be drawn.

199 So.2d at 61.

Finally, in Craft v. State, 271 So.2d 735 (Miss.1973), Craft was convicted of the murder of Michaels. We reversed and held that the flight instruction was erroneously given. The facts in the opinion do not recite any attempt at flight by Craft; furthermore, the instruction was fraught with the same error as that condemned in Quarles v. State, supra.

From review of all of the aforementioned cases, it is clear that the law of flight instructions has significantly developed since the time of Ransom v. State when flight from the scene of a crime was dangerously close to being an element of a crime, or at least a substitution for proof of the accused’s involvement.

As we stated in Howard, supra, flight is a circumstance consistent with innocence as well as guilt. By requiring the jury to first find the facts of the case before considering the defendant’s flight, we prohibit a factor only marginally probative of guilt to rise to the level of the material element of the crime. Such a rule in no way hampers law enforcement and can only result in preventing juries from being confused, thereby lessening the prospect of convicting innocent persons who may have, for whatever reason, fled the scene of a crime.

Now, the application of the law to Charles Pannell. Since the date of Eu-banks, supra, we have consistently held that it is only unexplained flight which merits a flight instruction. Eubanks, supra; Quarles, supra, Craft, supra. That being the case, there is absolutely no foundation in the record before us on which to base a flight instruction. As previously stated, Charles Pannell testified that following the shooting he dropped off his sister at her home and went directly to another sister’s home with whom he had been staying. Once there, he immediately phoned the sheriff’s office to report the incident. Pannell then made an unsuccessful attempt to contact his attorney. The following morning after Pannell had the opportunity to discuss the matter with his attorney, and after that attorney spoke with the sheriff, Pannell voluntarily surrendered. Pannell’s explanation for his departure from the scene of the shooting was wholly uncontradicted and certainly not incredulous or unbelievable. Charles Pan-nell’s flight, if it was such, was completely explained and under the facts of this case no flight instruction was warranted.

As the rule has been stated in Eu-banks, supra; Quarles, supra; and Craft, supra, a flight instruction is to be given only in cases wherein that circumstance has considerable probative value. In the instant case the dispute primarily concerns whether Pannell’s claim of self defense was valid. There is no probative value in considering flight under these circumstances.

Based on all of the foregoing, we hereby reverse Charles Pannell’s conviction of aggravated assault and remand this case to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING and HAWKINS, JJ., concur.

HAWKINS and ROBERTSON, JJ., specially concur.

PATTERSON, C.J., PRATHER and SULLIVAN, JJ., dissent.

HAWKINS, Justice,

specially concurring:

I concur in the reversal of this case for the simple reason that a so-called “flight” instruction, in every case I have read, amounts to a comment upon, and emphasis of one particular part of the evidence. We have always condemned any instructions which did this.

A general instruction authorizing the jury to consider the conduct of the accused can cover this feature, and give the state full opportunity to address it in closing argument.

ROBERTSON, Justice,

specially concurring:

If I regarded our rules regarding evidence of flight as sound, I would vote to affirm. Pannell offered an explanation for his “flight” but not one which the jury was bound to accept. On this and other issues, the accused’s credibility is for the jury to pass on.

My concern is that we allow evidence of flight to be presented to the jury at all, much less an instruction such as that under consideration here.

To be sure, our law has long recognized that unexplained flight is a circumstance suggesting guilt. The opinion of Justice Dan M. Lee traces this notion through our cases. That history reflects a gradual restriction of the use of flight evidence and instructions. My notion of the reason for this trend is a recognition in the collective subconscious mind of this Court that the premise upon which the rule has been based is flawed.

Flight is said to suggest a guilty conscience. The notion derives from the ancient proverb “The wicked flee when no man pursueth, but the righteous are as bold as a lion”. Proverbs 28:1.

That the proverb provides a less than accurate description of reality was recognized in Alberty v. United, States, 162 U.S. 499, 16 S.Ct. 864, 40 L.Ed. 1051 (1896). The facts of that case make the point. There involved was a black Indian, who was a former slave, charged with the commission of a murder in Arkansas in 1879. The trial judge, incredibly to my mind, had instructed the jury

The truth is — and it is an old scriptural adage that — ‘the wicked flee when no man pursueth, but the righteous are bold as a lion.’ Men who are conscious of right have nothing to fear. They do not hesitate to confront a jury of their country, because that jury will protect them; it will shield them, and the more light there is let in upon their case the better it is for them. 162 U.S. at 509, 16 S.Ct. at 868, 40 L.Ed. at 1056

Although refusing to hold the instruction erroneous per se, the Supreme Court did recognize that

it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that “the wicked flee when no man pur-sueth; but the righteous are bold as a lion.” Innocent men sometimes hesitate to confront a jury, — not necessarily because they fear the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves. 162 U.S. at 511, 16 S.Ct. at 868, 40 L.Ed. at 1056 More recently, some courts have continued to “doubt the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime”. Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963); Bailey v. United States, 416 F.2d 1110, 1114-1115 (D.C. Cir.1969); State v. Walker, 226 Kan. 20, 595 P.2d 1098, 1100 (1979).

The flaw in the premise that flight suggests a guilty conscience is its inconsistency with human nature and experience.

There are in 1984 reasons consistent with innocence why rational suspects may flee. One may be lack of confidence in the system. While administration of perfect justice should remain the heaven for which we reach, we are no more than realistic when we acknowledge that our reach exceeds our grasp. Our system is yet imperfect. An infinite variety of prejudices infect the fallible human beings who administer our laws. While we may have made great progress toward excision of imperfections from our system, we should not condemn a suspect who out of his or her life experiences does not perceive it so.

Moreover, a surface familiarity with Perry Mason stories reminds of the truth that circumstantial evidence may often point to the innocent. Many such innocents lack confidence that they can successfully endure the slings and arrows of arrest, incarceration, interrogation and prosecution— and accordingly flee.

Offering the defendant the opportunity to explain his flight compounds the felony. If the accused is innocent, his explanation will frequently subject him to highly prejudicial cross-examination. How can he afford to say before a jury that he fled because he lacked confidence that he would be treated fairly in the court system? Being scared in the face of circumstantial evidence is a perfectly human reaction on the part of an innocent, but admission of such leaves one vulnerable at the hands of a skilled prosecutor on cross-examination.

Reflection on the matter calls to mind many other problems with flight evidence and instructions, not the least of which is the practical question, what is flight? Where the evidence is in conflict or susceptible of more than one interpretation, the accused may in practical effect wind up being tried for flight, not the crime charged in the indictment.

A realistic assessment of flight evidence suggests that it will almost never be necessary to obtain a conviction of the guilty. On the other hand, its admission may seriously endanger the prospects for acquittal of the innocent.

Without belaboring the point, I would hold that evidence of flight should never be admitted. In the context of this case, I would hold that neither Model Jury Instruction No. 104.15 nor any other flight instruction should ever be given. I would reverse.

PRATHER, Justice,

dissenting:

I respectfully dissent from the majority view in this case. The majority bases reversal of this case upon the ground that factually a flight instruction should not have been given in this case.

I address first the factual basis in this case for the granting of this instruction. Here the defendant, who was a prior law enforcement officer, admittedly shot at the victim with his shotgun twice and knew that he hit the victim. The defendant denied being the instigator of the shooting, and his testimony was corroborated by his sister, Julia Waldrip.

On the contrary, the victim Jason Pannell testified to a different version. Jason stated that the defendant exited from his truck, threatened to kill him, fired two shots from a .22 caliber pistol followed by two shots with a .16 gauge shotgun. He did not see Julia Waldrip in the truck and fired no weapon. However, Ms. Waldrip got on the floorboard of the truck and could see nothing thereafter.

The physical evidence supported Jason Pannell’s testimony as to the location of the spent shells, and the evidence corroborated the fact that Charles Pannell had access to the pistol owned by another.

Nevertheless, the defendant left the scene, reported the incident by telephone even though he passed by the sheriffs office, attempted to contact his attorney, and upon failure to reach his attorney, left in another vehicle, a borrowed car, for his residence in the state of Tennessee. Knowing who represented the defendant on legal matters, the sheriff called the defendant’s attorney to ask about the defendant’s whereabouts. Upon his attorney’s advice, the defendant did return and contacted the sheriff. This testimony, although disputed, was before the Court.

Section 99-17-35, Mississippi Code Annotated (1972) sets forth the requirement for the trial judge to “instruct the jury upon the principles of law applicable to the case” in writing. Instructions should be granted only if they are applicable to the facts developed in the case. Norman v. State, 385 So.2d 1298 (Miss.1980).

These facts were sufficient for the court to submit the determination of an “unexplained” flight to the jury. The jury, not this Court, is the factfinder. Flight is to be considered with all other evidence in the case, and from all facts the jury will determine whether the fleeing was from a conscious sense of guilt or explainable cause and give it such weight as the jury thinks it deserves in determining guilt or innocence. In Ransom v. State, 149 Miss. 262, 115 So. 208 (1928), this Court said the flight instruction is to be considered in connection with all the other evidence in the case to determine “whether (the) flight was from a conscious sense of guilt, or whether it was caused from other things, and give it such weight as the jury thinks it is entitled to, in connection with all the other evidence in the case.” (115 So. at 210).

II.

Addressing now the form of the instruction sub judice, we have formerly stated that in determining whether to grant a flight instruction, the instruction should have: (1) probative value, (2) qualified as to the facts of the case (not abstract), (3) qualified to tell the jury it must find the facts before it can use flight, along with other circumstances, to support an inference of guilt. Further, this Court has stated it is “ ‘unexplained flight’ from which, under certain circumstances, an inference of guilty knowledge may be drawn.” Craft v. State, supra, Quarles v. State, supra. Eubanks v. State, 227 Miss. 162, 85 So.2d 805 (1956).

Working with the above guidelines, in 1977 the Circuit Court Judges of Mississippi have adopted the Mississippi Model Jury Instructions containing a flight instruction, No. 104.15 (1977). This instruction granted sub judice follows that model with adaptation to the facts of this case and removal of its abstract terms.

The model instruction omits the above element (3) which states that the instruction be “qualified to tell the jury it must find the facts before it can use flight, along with other circumstances, to support an inference of guilt.” This Court held in Quarles, supra, that this was a necessary qualifying part of a flight instruction. The model instruction omits this requirement.

As the circuit judges have submitted these model instructions to this Court, and we have approved them, I would now abandon this qualifying phrase and hold that it is not necessary to find the facts of the charge before the element of flight can be considered in determining guilt or innocence. Rather, I hold that the model instruction form is proper.

Therefore, in the case sub judice I would find the form of the instruction proper and hold that no error was committed by the trial court in granting this instruction for the jury’s factual determination.

PATTERSON, C.J., and SULLIVAN, J., join this dissent.


author: HAWKINS, Justice, for the Court:

text:
    Nolan MERRITT v. Bennie Lee DUEITT.
    No. 54385.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Rehearing Denied Sept. 26, 1984.
    Gerald A. Dickerson, Lucedale, for appellant.
    Michael K. Randolph, Bryan, Nelson, Allen, Schroeder & Randolph, Clifton S. Gad-dis, Hattiesburg, for appellee.
    Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice, for the Court:

Nolan Merritt appeals from a judgment in favor of Bennie Lee Dueitt for $5,000 rendered upon a jury verdict in Greene County.

The issues on this appeal are the competency of Dueitt to testify as to his damages and the sufficiency of the evidence to support the verdict. We affirm.

Dueitt was hauling pulpwood for a living and had to travel a certain road to get to the woods. Following a dispute with Merritt over use of the road by his truck, Merritt placed obstacles at the entrance to the road in such a manner they prevented Dueitt driving his pulpwood truck over the road. For a period of time it was possible for Dueitt to use an alternate road, but when bad weather set in, he was unable to get to the timber via the alternate route.

He testified there were 300 cords of wood remaining which he could have cut and hauled had he been able to travel the better road in his truck. He testified he was unable to find work elsewhere. Thus, whatever income Dueitt could have derived from cutting and removing pulpwood was lost. At the time he would have received $31 a cord for cutting and hauling 300 cords, and his expenses were generally one-third of his receipts. He testified his gross receipts for 1981 were $21,300, and his expenses that year were $7,000.

Merritt argues that Dueitt’s testimony was incompetent, being based upon speculation. Dueitt had many years experience in the pulpwood business; it was his means of livelihood. He was certainly competent to give an opinion as to the number of cords of pulpwood remaining which he was prevented from cutting and hauling. His credibility was subject to attack on cross examination.

Merritt’s argument that the proof of damages was purely speculative likewise fails. Dueitt testified he was unable to find work elsewhere during the period of time he could have cut and hauled the 300 cords.

We do not, by this opinion, intimate that the issue of damages or mitigation thereof, if any, could not have been better presented. It is unfortunate that in proving their client’s damages lawyers frequently falter. A little more preparation of their case on the facts and law regarding damages can prevent serious injury to their clients.

Yet, a jury issue was made by competent evidence as to the amount awarded Dueitt. We said long ago in Billups Petroleum Company v. Hardin’s Bakery Corporation, 217 Miss. 24, 63 So.2d 543 (1953), suggestion of error overruled, 217 Miss, at 39, 64 So.2d 764. “The rule that damages, if uncertain, cannot be recovered applies to their nature, and not to their extent. If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.” 217 Miss. 37, 64 So.2d 764.

There can be no question as to the certainty of Dueitt’s being damaged by having his mode of ingress and egress blocked. For a Mississippi pulpwood hauler, he gave a pretty good standard as to the measure.

AFFIRMED.

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

PATTERSON, C.J., not participating.


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    RED ENTERPRISES, INC., a Mississippi Corporation v. PEASHOOTER, INC., a Louisiana Corporation.
    No. 55043.
    Supreme Court of Mississippi.
    Sept. 5, 1984.

      Merrida P. Coxwell, Jr., Houghton F. Elias, Jr., Stanfield & Holderfield, Jackson, for appellant.
    John M. Mooney, Jr., Mark Simon, Sullivan, Sullivan, Blount & Mooney, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice, for the Court:

The Circuit Court of Rankin County, Honorable R.L. Goza, presiding, directed a verdict in favor of Peashooter, Inc. and against Red Enterprises, Inc. in the sum of fifteen thousand dollars ($15,000) on a promissory note, and five thousand dollars ($5,000) attorney’s fee, aggregating twenty thousand dollars ($20,000). Judgment was entered in that amount, and Red Enterprises, Inc. has appealed to this Court.

The sole question presented on the appeal is whether or not the lower court erred in refusing to allow appellant the right to amend its answer or to grant a continuance.

Appellant executed a demand promissory note April 30, 1981, in the amount of $15,-000 payable to appellee. The note provided for reasonable attorneys’ fees. On March 7, 1983, appellee filed suit in the Circuit Court of Rankin County, Mississippi, alleging that the appellant had failed to make any payments on the note, and sought judgment in the full amount of $15,000, together with reasonable attorneys’ fees. The appellant answered the complaint on April 6, 1983, denied that it owed appellee anything by reason of the promissory note, but failed to state the affirmative defense of accord and satisfaction.

When the appellee rested its case, appellant attempted to prove accord and satisfaction, viz, that it had sold appellee a one-half (½) interest in a 1972 International Harvester tractor with a Great Dane trailer. Appellee objected to the introduction of that evidence on the ground that accord and satisfaction is an affirmative defense, was not affirmatively pled, and that appel-lee was not prepared to meet the defense. Appellant had not denied execution of the note and its only defense to the suit was accord and satisfaction and payment. The lower court sustained the objection to the introduction of such evidence, but permitted appellant to make a proffer of same and state its defense. At the conclusion of the proffer, the lower court directed a verdict and entered judgment for the appellee in the sum of $20,000.

The appellee relies upon Rule 8(c), Miss. Rules of Civil Procedure, which states:

Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge' in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been proper designation.

Appellant contends he should have been permitted to amend his answer under Rule 15(b), Miss.Rules of Civil Procedure, which states:

Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.

Appellee argued to the lower court and here that permitting appellant to amend its answer and plead accord and satisfaction during the trial would result in prejudice to it. Prejudice relied upon was that appellee is a non-resident party; it would be economically prejudicial for the president of the corporation to be required to return to the State of Mississippi for another trial; and the county would be required to select new jurors. The appellant contended that the president of the company, Peashooter, Inc., one Tommy Wilmouth, was present in court; that he was the only person from appellee corporation who had knowledge of the accord and satisfaction agreement, since he was the individual who entered into the agreement on behalf of appellee; and that no prejudice would result to appel-lee. Further, appellant requested the court to continue the case, in the event the court was of the opinion prejudice would result to appellee, and to assess all costs against appellant.

In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), Foman sued to recover on an oral promise made by his father. Suit was dismissed on the ground that the oral agreement was unenforceable under Massachusetts law, and Foman sought to amend the complaint to recover quantum meruit. The First Circuit Court of Appeals affirmed the district court and denied Foman leave to amend because there was nothing to show that the district court abused its discretion. The United States Supreme Court reversed, stating:

Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded ... if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. [371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226]

We see no conflict between the rules set out supra. Rule 8(c) simply provides that certain affirmative defenses be set forth as affirmative matter. Rule 15(b) provides how and when amendments to the pleadings may be made, and that “The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.”

We recognize that the matter of amendments to pleadings is properly addressed to the discretion of the lower court. Deposit Guaranty National Bank v. D.A. Biglane, 427 So.2d 945 (Miss.1983); Helton v. Evans, 208 So.2d 778 (Miss.1968). Also, granting or denying continuances is within the sound discretion of the lower court. Bay Springs Forest Products, Inc. v. Wade, 435 So.2d 690 (Miss.1983); Rogers v. Rogers, 290 So.2d 631 (Miss.1974); F.B. Walker & Sons, Inc. v. Rose, 223 Miss. 494, 78 So.2d 592 (1955). Notwithstanding, Rule 15(b) provides that the Court is to be liberal in granting permission to amend when justice so requires.

In the case sub judice, we do not find that, in granting the amendment, prejudice would have resulted to the appellee, as opposed to the proposition that justice required the amendment. The appellant denied that it owed the amount of the note to appellee, even though it did not deny having executed the note. The logical conclusion left was that payment had been made. Simple interrogatories would have shown why appellant contended he did not owe the amount of the note. The president of Peashooter, Inc. was physically before the court and, apparently, was the only person from Peashooter, Inc. who knew about the alleged accord and satisfaction agreement.

We are of the opinion that, under the facts of this ease, the lower court should have granted the amendment setting up accord and satisfaction and the failure to do so constituted reversible error. The judgment of the lower court, therefore, is reversed, and the cause is remanded to the lower court for a new trial.

REVERSED AND REMANDED.

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

PATTERSON, C.J., not participating.


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    Timothy Lenwood GARDNER v. STATE of Mississippi.
    No. 54204.
    Supreme Court of Mississippi.
    Sept. 5, 1984.

      Tyree Irving, Walls, Buck & Irving, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Tallahatchie county, wherein the appellant was convicted of armed robbery and sentenced to serve a term of 15 years in the custody of the Mississippi Department of Corrections. From this conviction the appellant perfected an appeal to this Court and assigns as error the following:

I. The Court erred in permitting rebuttal witness, Jay Clark, to answer questions by reading from his notes.
II. The Court erred in permitting the state, on cross examination of Richard L. Gardner, to represent to the jury that the defendant had given a written statement, and in allowing the State to use a purported written statement in cross-examination of the witnesses.
III. The Court erred in not granting a mistrial when the prosecutor asked a defense witness the following question: “And you have no explanation for Tim’s statement to the officers that Dick told him ‘We did it’ ”.
IV. The verdict is against the overwhelming weight of the credible evidence.
V. The Court erred in permitting into evidence Exhibits S-l through S-4 because they are not relevant to the charge and are of an inflammatory nature.

On March 11, 1981 Mr. O.M. Martin was found shot to death at his Charleston scrap iron business. Mississippi Highway Patrol Investigators Jimmy Dees, A.D. Gatewood, and Jay Clark were dispatched to the scene. Through their investigation they learned that John Earl Booker, Kermit Jones, and Tim Gardner, the appellant, had been seen at the scrapyard that day.

On March 12, 1981 Investigators Gate-wood and Clark questioned the appellant. Also present was Mr. Richard Gardner, Tim’s grandfather. The officers informed Tim of his constitutional rights, and he agreed to waive these rights and make a statement. Since Tim was only 14 years old, the officers asked Mr. Richard Gardner if he had any objections to Tim making a statement. Mr. Gardner responded that he had no objections. Thereafter, the officers questioned Tim and took notes on what he said. No tape recording was made of the interview.

At trial, Investigator A.D. Gatewood appeared on behalf of the State. He testified that during the March 11, 1981 interview Tim told the following story: Two days before the robbery and shooting of Mr. Martin, the appellant, along with John Earl Booker and Kermit Jones, planned to rob Mr. Martin. On the morning of the robbery, they went to the scrapyard, where they helped a customer of Mr. Martin’s load tin onto a truck. They then left the scrapyard and went to a nearby Sonic drive-in restaurant. After getting something to drink, the three returned to the scrapyard. Tim entered through the front to see if everyone had left. He was told by Mr. Martin to leave, and exited via a path in the rear of the yard. He did not see Booker or Jones and went on home. Later that day he went to Kermit Jones’ house. Kermit told him that they had “done it”. Booker and Jones then gave him $100.00 and told him to keep his mouth shut.

Kermit Jones also testified on behalf of the State. He stated that Booker had told him and Tim of a man with lots of money. Booker needed help robbing the man, and both Kermit and Tim agreed to help. Tim’s duty was to enter through the front of the scrapyard and get Mr. Martin to go around to the back. On the day of the robbery, Tim entered the scrapyard as planned, but was not present when the robbery or the killing occurred.

Mr. Richard Gardner testified on behalf of the defendant. He testified that he was present when investigators Clark and Gate-wood questioned his grandson, but never heard Tim admit that he helped plan the robbery.

The defendant took the stand on his own behalf and testified that he did not assist in the planning or the commission of the robbery. On the day of the robbery, he and Kermit Jones were supposed to go to the Smoky community to meet some girls.

When he went to Kermit’s house that morning, Kermit stated that he had to go to Martin’s scrap iron place with John Earl Booker to get some parts for Booker’s car. Kermit suggested that Tim go with them and they would leave for Smoky after-wards. They went to the scrapyard, where they helped a man load tin onto a truck and were paid $7.50 each. They took the money and went to the Sonic for lunch. After they finished eating, Booker stated that he had forgotten to get the parts for his car and needed to go back to the scrapyard to do this. Tim said that he would go on home and wait for Kermit, but Kermit persuaded him to go with them to the scrapyard. When they got there, Booker pulled out a gun, stating that he intended to sell it. He asked Tim to go look for a man with a “good buddy” cap on. Tim went through the front entrance to the scrapyard, and saw Mr. Martin welding at the back of a truck. A mini-bike frame that he had been wanting for some time caught his attention, and he went to look at it. When Mr. Martin asked what he wanted, Tim replied that he would like to buy the mini-bike frame. Mr. Martin told him to come back the next day and he would see what he could do. Tim then exited through a path in the rear of the scrapyard. Since he did not see either Booker or Jones, he assumed that they had left. He then followed the path home.

Later that day Tim went to Kermit’s, but was told by his sister that he was not there. That same afternoon he went to play basketball and passed Kermit’s house on the way. Kermit was out front and motioned him to stop. He went over to meet Kermit, who told him that “we did it”. Kermit then went on to explain that they had robbed Mr. Martin and that Booker had taken some $400 from him. Booker then came out of the house and caught the two of them talking. He gave Tim $100 and told him that he was to keep his mouth shut. Booker still had the gun, and threatened both Kermit and Tim if they said anything about the robbery or the killing.

This was the first that Tim had heard of the killing.

The next day Tim went with his grandfather to City Hall to talk to the police. He voluntarily gave a statement, but never told the officers that he had helped plan the robbery two days before it happened. What he did tell the officers was this: After the robbery Kermit told him that Booker had stated two days before the robbery that he planned to rob Mr. Martin, but Kermit did not believe him.

After hearing all of the evidence, the jury returned a verdict of guilty.

I.

On appeal, the appellant first complains that the court erred in permitting rebuttal witness, Jay Clark, to answer questions by reading from his notes. The appellant contends that using the notes in this manner was improper, since the notes were not admitted into evidence. Further, he contends that reading the notes was neither present recollection revived nor past recollection recorded. The State agrees that the notes do not constitute past recollection recorded, but argues that use of the notes by Investigator Clark did qualify as present recollection revived.

The general rule regarding the use of memoranda or notes to refresh present recollection is set forth in Torcia, Wharton’s Criminal Evidence (13th ed. 1973) § 416:

A memorandum may so stimulate the memory of a witness as to permit him to testify on the basis of a present recollection. The memorandum may be used for this purpose even though it would not itself have been admissible in evidence. The witness, whose memory is thus being refreshed, must know that the facts set forth in the memorandum were correctly stated therein.
Since it is not the memorandum that is the evidence, but the recollection of the witness, the author of the memorandum may be a person other than the witness.
The memorandum used to refresh a witness’ present recollection need not be an original writing; a mere copy of the original is sufficient. Indeed, when a copy of a memorandum has been used, the original need not be produced.
According to some courts, a memorandum to refresh a witness’ present recollection may be used only if it was made at or about the time of the event recorded. Other courts require merely that it be made at a time when the facts were fresh in the witness’ mind. Under another view, if the witness’ memory is actually refreshed by the use of a memorandum, thereby enabling him to testify on the basis of present recollection, it matters not when the memorandum was made.
Since it is the witness’ present recollection, not the memorandum, which is the evidence, the memorandum itself is not admissible, nor may the contents thereof be read to the jury_ (Emphasis added)

Unlike the general rule, Mississippi has not prohibited a witness from reading his memorandum to the jury. In Pearson v. State, 176 Miss. 9, 167 So. 644 (1936), the State called to the stand a court reporter who had been present when the defendant made statements to the district attorney. The reporter took shorthand notes of the statements and read to the jury from these notes. Affirming the trial court’s decision to allow the reporter to read the notes to the jury, this Court stated:

In effect, Sligh was merely delivering statements made in his presence which he took down in shorthand. It is permissible for a witness who has made a memorandum in writing on the hearing to refresh his memory by reading it, if he has testified as a witness as to the correctness of the matter.

176 Miss. 23, 167 So. 644. A similar issue was before the court in the more recent case of King v. State, 342 So.2d 892 (Miss. 1977). In that case the defendant signed a waiver of his Miranda rights, and then agreed to answer questions asked by the Winona Chief of Police. A secretary was present during the questioning and took shorthand notes of what transpired. At trial the Chief of Police used a transcription of the secretary’s shorthand notes to refresh his memory. On appeal, this Court held that the statement was properly admitted, noting that any questions regarding the accuracy of the statement were for the jury to resolve.

From these cases it is clear that Mississippi does allow a witness to read to the jury from notes used to refresh his memory. Accordingly, the appellant’s first assignment of error is without merit.

II.

The appellant next complains that “the court erred in permitting the State, on cross-examination of Richard L. Gardner, to represent to the jury that the defendant had given a written statement, and in allowing the state to use a purported written statement in cross-examination of the witness.” Specifically, the appellant contends that it was error for the assistant district attorney to ask the witness: “Well, you’ve had the statement that was taken and reduced to writing. You know what I am referring to, don’t you?”

On direct examination by defense counsel, Mr. Gardner testified that the officers had a pen and yellow pad and were taking notes when they questioned Tim. Furthermore, the officers testified that they took notes, and these notes were later reduced to typewritten form. Under these circumstances there was no implication that Tim had given a written statement. Accordingly, no prejudice resulted to the appellant from this question or the use of the notes by the prosecutor.

III.

The appellant next contends that the court erred in not granting a mistrial when the prosecutor asked a defense witness the following question: “And you have no explanation to members of this jury for Tim’s statement to the officers that Dick told him ‘We did it’?” When the prosecutor asked the question, defense counsel objected and the objection was sustained by the trial court. Defense counsel then made a motion for a mistrial, which was overruled.

Since the trial judge sustained the first objection, no prejudice resulted to the appellant from the question. This court has held that where an objection to a question is sustained and no request is made that the jury be instructed to disregard the question, there is no error. Reddix v. State, 381 So.2d 999 (Miss.1980); Clanton v. State, 279 So.2d 599 (Miss.1973).

IV.

The appellant next contends that the verdict is against the overwhelming weight of the evidence. This assignment of error is without merit, as there was sufficient testimony to link the appellant with both the planning and commission of the robbery, if believed by the jury, which evidently they did.

Finally, the appellant contends that the court erred in permitting into evidence exhibits S-l through S-4 because they are not relevant to the charge and . are of an inflammatory nature. These exhibits are photographs of the crime scene, and were also in issue in the case of Booker v. State, 449 So.2d 209 (Miss.1984). In that case we held that the photographs were not gruesome or likely to arouse the emotions of the jurors. As in Booker, the trial court properly overruled the appellant’s objections to the introduction of these photographs.

For the above reasons, the judgment of the Circuit Court finding the appellant guilty of armed robbery is affirmed. However, in view of the fact that the appellant was only fourteen years of age at the time of the commission of the crime and was only fifteen years of age at the time of sentence, justice requires that the trial court consider alternative sentences provided for under the Youth Court Act and make a record of that consideration and ultimate findings as outlined in May v. State, 398 So.2d 1331 (Miss.1981).

For this reason, this cause is reversed and remanded to the trial court for further proceedings consistent with this opinion on the question of sentence only. Affirmed as to guilt.

AFFIRMED AS TO GUILT; REVERSED AND REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS

OPINION ON THE QUESTION OF SENTENCE ONLY.

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

PATTERSON, C.J., takes no part.