author: STOKER, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Oliver Ray MAYBERRY, Defendant-Appellant.
    No. CR83-393.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 9, 1984.

      Donald W. Hebert, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty. and Donald Richard, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

The defendant, Oliver Ray Mayberry, was charged with the second degree murder of Jonathon Barriere, a violation of LSA-R.S. 14:30.1. After a jury trial, he was convicted of manslaughter, a violation of LSA-R.S. 14:31, and sentenced to eighteen years in the custody of the Department of Corrections. We affirm.

FACTS

The events leading up to the death of Jonathon Barriere occurred during the evening of August 14, 1982. The victim and the defendant lived in the same house in Grand Coteau along with the victim’s infant son and its mother, Joyce Lee; his mother, Ignatia Richardson; his sister, Pamela Barriere, and her infant son; his twelve year old brother, Bobby Richardson; and another man, Elhambra Olatunjgi. Also present the night of the shooting was Paul Guilbeau, Pam’s boyfriend.

The defendant, the victim, and Mr. Ola-tunjgi had been drinking beer most of the afternoon on August 14, 1982. Later that evening the defendant and the victim went out to buy some whiskey. According to the defendant’s testimony, he and the victim got a ride with Greg Miller. The defendant claimed that during an argument in the car, the victim pulled out a knife. The two returned home and, along with Mr. Olatunjgi, consumed a fifth of whiskey.

Sometime during the evening, the three men began discussing their weight, and the victim lifted both Mr. Olatunjgi and the defendant, apparently to demonstrate that they did not weigh much. Mr. Olatunjgi went to bed around 10:30 PM, and sometime after that an altercation broke out between the victim and the defendant. The State’s witnesses testified that in picking the defendant up the victim lost his balance causing them both to fall. The defendant claims that the victim lunged at him for no apparent reason causing the fall. A scuffle followed during which no real punches appear to have been thrown.

After stopping the altercation, Mrs. Richardson told everyone to go to bed. Shortly thereafter, the victim entered the bedroom shared by his brother, Bobby, and the defendant. The victim’s infant son, who normally slept with his parents, was asleep in the room at this time. The defendant claims that he heard sounds as if the victim were being held back from entering the room and, as he entered, the defendant claims to have seen a knife in the victim’s hand. The defendant fired four shots killing the victim. Bobby testified that the last three shots were fired after the victim had fallen. No knife was found.

On appeal, defendant argues that the trial court erred in:

1. Admitting into evidence a photograph of the victim which is alleged to be inflammatory and prejudicial;
2. Admitting into evidence photographs which were not revealed through discovery;
3. Denying a motion for mistrial made on the claim that the state introduced inculpatory statements outside the scope of its opening statement;
4. Denying a motion for mistrial based on improper evidence of a prior arrest of a defense witness;
5. Failing to sustain an objection to an improper statement of the law made by the prosecution in closing argument;
6. Allowing the questioning of potential petit jurors in the presence of the entire jury venire, and;
7. Convicting the defendant on insufficient evidence.

ASSIGNMENT NUMBER ONE

Defendant argues in this assignment that a black and white photograph of the victim was improperly admitted into evidence. (The photograph was identified as State’s Exhibit 9.) Defendant takes the position that because it was stipulated that he fired the fatal shots, the prejudicial effect of the photograph outweighed any probative value it may have had. We disagree.

The photograph in question shows the victim’s upper body. The only wound visible in this photograph is a grazing bullet wound on his cheek. Since the photograph is black and white no blood can be seen. The test for admissibility of allegedly gruesome photographs is whether their probative value outweighs any prejudicial effect and a trial court’s ruling in this regard will only be disturbed if the prejudicial effect of the photographs clearly outweighs the probative value. State v. Boyer, 406 So.2d 143 (La.1981).

We find that the photograph is not gruesome and could have had no prejudicial effect on the jury. In any event, the probative value clearly outweighed any prejudice which may have been created. Defendant claimed he fired on the victim in self-defense and that all shots were fired as the victim approached him. The path of the bullet indicated by the photograph supports the State’s version of the shooting, namely, that only the first shot was fired while the victim was standing. Thus, the photograph was highly probative as to the issue of self-defense and justification.

ASSIGNMENT NUMBER TWO

By this assignment defendant asserts that the trial judge erred in allowing certain photographs into evidence when the defense believed as a result of the State’s answer to a pre-trial discovery motion that no photographs would be introduced at trial. This objection was made only as to the photographs identified as State’s Exhibits 8A-C. The photograph discussed in Assignment Number One was objected to only on the grounds discussed above and State’s Exhibit 7A-F and H were admitted without objection. The photographs in Exhibit 7 merely illustrate the scene of the crime.

The photographs objected to show a bullet lodged in the baseboard of the bedroom in which the shooting occurred. This evidence supports the State’s theory of the crime. The State asserts in its brief that it only became aware of the bullet in the baseboard the day before trial. Defense counsel was informed at 8:00 AM on the day of trial that the photographs would be used. The photographs were made about 9:45 AM on the morning of trial.

Under LSA-C.Cr.P. art. 729.3, the State has a continuing duty to notify the defendant and the court of additional evidence. It appears that the State met this duty and gave notice of the additional evidence as soon as it came to light. Defense counsel made no motion for continuance to conduct additional discovery, but sought only to have the photographs excluded. We cannot say that the trial court abused its discretion under LSA-C.Cr.P. art. 729.5 in this case. See State v. Feeback, 414 So.2d 1229 (La.1982).

ASSIGNMENT NUMBER THREE

In this assignment defendant argues that he was entitled to a mistrial on the ground that the State improperly introduced an inculpatory statement without having mentioned it in the opening statement. For this argument defendant relies on LSA-C. Cr.P. art. 769 which provides in part:

“Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.”

The State relies on the mandate of LSA-C.Cr.P. art. 767 which provides:

“The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.”

Defendant argues that the Louisiana Supreme Court’s holding in State v. Whitmore, 353 So.2d 1286 (La.1977), makes it clear that the State should have either mentioned the inculpatory statement in its opening or not admitted it into evidence at trial. We disagree. In Whitmore, the defendant sought a mistrial on the ground that the State improperly mentioned his confessions in its opening statement. The Court held that because the defendant had been given notice of the State’s intent to use the confessions as required by LSA-C. Cr.P. art. 768 and because the confessions were admitted at trial “the defendant suffered no prejudice from the premature reference to them.” It is clear that the Court in Whitmore did not approve mention of inculpatory statements in the opening statement, but merely found it to be harmless error in that particular case.

In our case, the State properly complied with the clear mandate of LSA-C. Cr.P. art. 767 and refrained from mentioning any inculpatory statements in its opening statement. The defendant had been notified that the State intended to use the statements. This assignment of error is without merit.

ASSIGNMENT NUMBER FOUR

Defendant argues that a mistrial should have been granted when the State introduced evidence of a prior arrest to impeach a defense witness in violation of LSA-R.S. 15:495. The evidence objected to was brought out during the following colloquy between the prosecutor and defense witness, Patrick Bruno:

“Q. Mr. Bruno, where do you live, now?
A. In Grand Coteau.
Q. You live in Grand Couteau?
A. Yes.
Q. Today, you’re living in Grand Co-teau?
A. No, sir, I’m living in St. Landry Parish.
Q. Where were you living when Jonathan Barriere was killed?
A. In Grand Coteau.
Q. Were you in Grand Coteau at the time?
A. Yes, sir.
Q. You weren’t living somewhere else?
A. No, sir.
Q. You were sleeping in Grand Coteau every night at that time?
A. Yes, sir.
Q. This was August 15th, you weren’t in Lafayette at that time?
A. The night of the shooting, I was in Lafayette.
Q. Where were you in Lafayette, the night of the shooting?
MR. HEBERT: Your Honor, I’m going to object to the relevency of where he was.
THE COURT: Objection is overruled.
A. In Lafayette Parish Jail.”

After this testimony was given defendant moved for a mistrial which the trial judge denied.

The jury could infer from the above testimony that Mr. Bruno was under arrest on the night of the shooting, but the questioning was not specific as to the reason he was in the parish jail. The State wanted to dispel the impression that Mr. Bruno was in the community on the night of the shooting. Even assuming that this questioning is protected by LSA-R.S. 15:495, the defendant’s rights were not so prejudiced so as to require a reversal of the conviction.

Mr. Bruno’s testimony was introduced for the purpose of showing the dangerous character of the victim. However, he testified only that the victim was known as a bully. He had never seen the victim actually get in a fight or threaten anyone with a weapon. The other defense witness who testified as to the victim’s character had also never seen the victim actually fight or threaten anyone with a weapon. He characterized the victim as a “loud, boastful fellow.” The testimony of these defense witnesses does little to overcome the State’s showing that the defendant did not act in self-defense. Thus, the trial court’s error, if any, was harmless. See State v. Connor, 403 So.2d 678 (La.1981), and State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977).

ASSIGNMENT NUMBER FIVE

In this assignment defendant argues that the trial court erred in failing to sustain his objection to an improper statement of the law made by the prosecutor in closing argument. The objectionable statement is as follows:

“... The Judge will tell you that you have an obligation of retreat if there has been provocation, you have the obligation to get away ...”

Upon defendant’s objection, the court gave the following admonition to the jury:

“The objection is overruled, but I will instruct the jury that I will instruct you as to what the law is that you are to consider or apply to the facts as you find them to be. That if what I tell you is the law disagrees with what one of the attorneys may argue what the law is, or even what you think the law should be, then you are to follow the law under your oath as I give it to you.”

Any erroneous implication from the prosecutor’s uncompleted statement was clarified in the charge to the jury. The judge’s immediate admonition that he would instruct the jury as to the law prevented any prejudice against the defendant. In any event, the evidence presented did not support the defendant’s assertion of self-defense. State v. Tolbert, 390 So.2d 510 (La.1980).

ASSIGNMENT NUMBER SIX

Defendant argues in this assignment that he suffered prejudice as a result of the trial court’s permitting the questioning of potential jurors in the presence of the entire venire. In particular, he complains that a prospective juror who had been a deputy, sheriff tainted the venire by his statement that he would possibly give more weight to a State’s witness rather than a defense witness. This individual was rejected by the defense.

No objection regarding this matter is apparent from the record, a fact which will preclude review on appeal. See LSA-C.Cr.P. art. 841. However, we note that it has not been shown that the defendant was prejudiced by the former deputy’s remarks. Defense counsel did not question any other members of the venire as to whether they had heard the remarks or whether they would be influenced by them. State v. Cushenberry, 407 So.2d 700 (La.1981). Absent a showing of prejudice, this assignment of error must be found meritless.

ASSIGNMENT NUMBER SEVEN

Defendant’s final claim is that the verdict is contrary to the law and the evidence. He asserts that the evidence was insufficient to establish that the defendant did not act in self-defense. We disagree.

In support of this claim defendant cites State v. Patterson, 295 So.2d 792 (La.1974). In that case, all witnesses testified that the victim was approaching the defendant with a knife at the time of the shooting. That is not the case here. Only the defendant asserts that the victim was armed with a knife and was approaching him. The altercation between the two was completely over according to all witnesses except defendant and the eyewitness testified that three shots were fired at the victim after he had fallen. The only evidence presented concerning the dangerous character of the victim consisted of verbal assaults, no physical confrontations. This character evidence was rebutted by the Grand Coteau Chief of Police who testified that the victim did not have a bad reputation in the community.

In reviewing this matter under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we find that the jury could have easily found beyond a reasonable doubt that the defendant did not act in self-defense. The evidence was sufficient to support the verdict.

For all of the above reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

DOMENGEAUX, J.,

concurs — see my concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App.1983).


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    JESSE F. HEARD & SONS, INC., Plaintiff-Appellant, v. AMYX GRAVEL COMPANY, et al., Defendants-Appellees.
    No. 83-402.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Blackwell, Chambliss, Hobbs & Henry, Sam 0. Henry, III, West Monroe, for plaintiff-appellant.

      Gaharan & Wilson, Joseph P. Wilson, Cornett & Perkins, Dan B. Cornett, Jena, for defendants-appellees.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

Jesse F. Heard & Sons, Inc. (hereafter Heard), the general contractor of a hospital construction project, brought this suit for breach of contract against two material suppliers, Amyx Gravel Company, Inc. (hereafter Amyx Gravel) and Amyx Concrete Company, Inc. (hereafter Amyx Concrete), seeking judgment in solido for damages in the amount of $4,751.00 plus attorney’s fees. Heard contends that Amyx Gravel is liable as an original party to the alleged contract with Heard and, that Amyx Concrete, although not originally a party, is liable as the assignee of Amyx Gravel.

Amyx Gravel and Amyx Concrete answered by general denial and further asserted the defenses that the intended commutative contract is void as containing a purely potestative condition; and, in the alternative, that even if the contract is enforceable, plaintiff actively breached the contract and defendants are therefore entitled to recission or set off. Additionally, Amyx Concrete filed a reconventional demand against Heard for damages resulting from the breach of a separate and distinct contract.

At the conclusion of the trial, the trial judge rendered judgment on the main demand in favor of defendants, Amyx Gravel and Amyx Concrete, and against plaintiff, Heard, dismissing its demands. On the reconventional demand, the trial judge rendered judgment in favor of plaintiff-in-re-convention, Amyx Concrete, and against defendant-in-reconvention, Heard, in the principal sum of $1,871.51. Plaintiff has perfected a devolutive appeal. Defendants neither appealed nor answered the appeal.

FACTS

During 1977, Heard, a general contractor, submitted a bid for the expansion and renovation of the LaSalle General Hospital in Jena, Louisiana. In formulating its bid, Heard contacted a number of subcontractors and material suppliers, including Amyx Gravel. Heard requested from Amyx Gravel quotations on the price per unit of certain materials required by the bid specifications for the construction project.

On October 27, 1977, after Heard was awarded the construction contract, it prepared a written purchase order on a company printed form and submitted it to Amyx Gravel. This document was signed by an officer of Amyx Gravel and subsequently signed and accepted by an officer of Heard. Heard commenced construction of the hospital project and began ordering various quantities of some of the materials described in the document from Amyx Gravel.

During 1977, Amyx Gravel owned and operated a ready mix concrete plant, a hot mix plant, and a sand and gravel mining operation together with trucks, bulldozers, a wash plant and other heavy equipment incidental to such an operation. The shareholders of Amyx Gravel were Dewey Amyx, Viva Amyx and Charles Sidney Amyx.

Amyx Concrete was incorporated on April 17, 1978 by Marcia W. Cooksey, Henry L. Cooksey and Charles 0. Williams, the latter being a CPA retained by Amyx Gravel. Thereafter, on May 8, 1978, Amyx Gravel conveyed some 20% to 25% of its total assets, particularly the concrete plant, equipment related to the concrete business, office supplies and the lease of its former office space to Amyx Concrete. This sale makes no mention of the assumption by Amyx Concrete of any debts or obligations of the vendor, Amyx Gravel. The remainder of its assets were thereafter sold to an unrelated party. Amyx Gravel collected its accounts receivable, paid its accounts payable and made a final settlement with the Internal Revenue Service. Its normal business activities ceased on April 17, 1978. Its corporate status continued on thereafter until its charter was revoked by the Louisiana Secretary of State for failure to make required annual reports.

In transacting business, Amyx Concrete continued to use Amyx Gravel invoices and statements which they had purchased but imprinted upon them the notation “please make check payable to Amyx Concrete Company, Inc.”. They also continued to occupy the same office space and use the same telephone number as Amyx Gravel, but changed the post office box number. Heard began placing orders for materials for use in the hospital construction project with Amyx Concrete and making their checks payable to Amyx Concrete.

The evidence reflects that there were several price changes over the course of the construction project. The earliest was in April of 1978 when the price per unit for dirt was adjusted on the invoice from $2.50, as was reflected by the purchase agreement with Amyx Gravel, to $3.00 per yard. Heard paid this increase. In October of 1978, Heard began receiving adjusted invoices for concrete from Amyx Concrete at a rate of $2.00 per yard higher than that reflected on the purchase agreement with Amyx Gravel. Heard nevertheless paid the October statements based on the price reflected in the October 27, 1977 purchase agreement with Amyx Gravel. On November 29, 1978, Amyx Concrete made demand upon Heard for payment of the October statement in full. In response, on December 4, 1978, Heard advised Amyx Concrete that it considered the prior payment to be proper as it was in accord with the October 27, 1977 purchase order executed by Amyx Gravel which was attached. Amyx Concrete advised Heard that it was unaware of any contract between Heard and Amyx Gravel, denied any contractual liability thereon and thereafter, refused to deliver the concrete at the lower price. Heard continued to place orders paying the increased price by separate check. The total amount of these payments is the amount claimed by plaintiff in these proceedings, i.e., $4,751.01.

The question of Heard’s liability on the reconventional demand arises out of a separate and distinct transaction. In August or September of 1978, Heard contacted an officer of Amyx Concrete and advised him that his company would need an estimated 800 yards of lightweight concrete for the project. This product is mixed with a special aggregate material, which is used only in that type of concrete. Thereafter, Amyx Concrete made a special purchase of 600 yards of the lightweight aggregate required to mix the lightweight concrete. Heard ultimately poured only 640 yards of the lightweight concrete and Amyx Concrete was left with 115 to 120 yards of the aggregate.

PURCHASE ORDER AS AN ENFORCEABLE CONTRACT

Plaintiff contends that the trial judge erred in failing to find a binding contract between the parties. In his written reasons for judgment, the trial judge made the following findings:

“The purchase order document between the Heard Company and the Gravel Company is said to be a binding contract but it is not for two reasons. The first, I believe, is because the agreement was not supported by consideration. The test for the presence or absence of consideration is a simply (sic) three-inquiry process. One must first ascertain what promise is the one sought to be enforced. Then one must ask who is or was the promisee of that promise. Finally, was that promisee given consideration. The promise sought to be enforced is the promise by Amyx Gravel Company to deliver materials at stated prices., The promisee, according to the plaintiff, was itself and in this case, the plaintiff gave nothing in return for that promise. It did not order specific quantities of materials or limit the period of time for which it would be bound to make orders or even limit the job for which the material would be used. Instead, it viewed itself linked to Amyx Gravel Company only by a potes-tative condition which seems by implication to have been that, ‘We will buy all we want from you unless we can get a better deal elsewhere, ’ ” (tr. ¼-⅛5)

The plaintiff introduced the purchase order, made a part of this opinion as Appendix I, which it contends evidences the agreement between Heard and Amyx Gravel. The instrument recites that Amyx Gravel obligates itself to deliver certain materials at a certain price per unit in accordance with plans, specifications and addenda nos. 1, 2 and 3. Those plans, specifications and addenda were not made part of the record but Mr. Heard testified that these specifications and addenda provided no specific or estimated quantities of the materials to be used in the construction project. The instrument further recites that Heard accepts the agreement and orders the listed materials at the prices and on the terms set forth.

Plaintiff relies on the case of Caddo Parish School Board v. Cotton Baking Co., 342 So.2d 1196 (La.App. 2d Cir.1977) in which the court found a particular agreement enforceable as a bilateral commutative contract over defendant’s objection that the agreement was a unilateral revocable promise to sell, which the defendant had revoked before timely acceptance. The court in Cotton concluded that the existence of a simple, resolutory potestative condition was not such a stipulation as to make the obligation depending on such condition null. The agreement in the Cotton case specifically provided that Cotton obligated itself to fill orders for bread products placed by the Board for a year at the price quoted and that the Board obligated itself to purchase all of its bread products for the year from Cotton.

The purchase order in this case provides no expression of Amyx Gravel’s intent to obligate itself to provide all or any specific amounts at the listed prices nor of Heard’s intent to obligate itself to buy all or any specific quantities.

Rules for the interpretation of agreements are provided for in LSA-C.C. Arts. 1945 et seq. The intent of agreements is to be determined by the clear and explicit words of the contract. It is the common intent of all of the parties that is to be sought and determined; if there was a difference in this intent, there was no common consent and, consequently, no contract. LSA-C.C. Art. 1945. LSA-C.C. Art-1956 provides that when the intent of the parties is doubtful, the manner of its execution by either of the parties with the assent of the other furnishes a rule for its interpretation.

The manner in which Heard executed the agreement indicated that there was no intent on Heard’s part to bind itself to purchase all of the listed material required on the project from Amyx Gravel. The trial judge found that prior to the alleged breach of Amyx Gravel and/or Amyx Concrete that Heard elected to buy a significant amount of some of the materials listed on the purchase order from another contractor. The record supports the trial court’s findings and we find no manifest error in its conclusion that the purchase order did not evidence a binding contract between Heard and Amyx Gravel.

Having found no binding obligation on the part of Amyx Gravel, we need not determine whether the alleged obligation was assumed by Amyx Concrete.

AGREEMENT BETWEEN AMYX CONCRETE AND HEARD TO BUY LIGHTWEIGHT CONCRETE

On the reconventional demand, Amyx Concrete asserted its right to judgment in the amount of $1,871.51, representing the cost of the stockpiled lightweight aggregate ordered by them to fill Heard’s order for the lightweight concrete. Finding in favor of Amyx Concrete, the trial judge stated in his written reasons for judgment as follows:

“The discussions between the construction company and the concrete company were sufficient to serve as a basis for a contract. I think that since this was a special order made directly between Amyx Concrete Company and the Heard Company, and since the Heard Company intended for Amyx Concrete Company to be ready to furnish at least 800 yards of light concrete mix, then the agreement to use aggregate, which the concrete company made in this case, should be enforced. ”

Loy Heard, Jr., an officer of Heard, testified that he talked to Harold Cooksey, an officer of Amyx Concrete, and told him he would need about 700 or 800 yards of lightweight concrete. Harold Cooksey testified that Heard told him he would need about 800 yards. Harold Cooksey subsequently called a supplier in Baton Rouge to determine the amount of aggregate necessary to pour approximately 800 yards of lightweight concrete. The supplier informed him he would need 600 yards of aggregate. Cooksey placed the order for the 600 yards which was delivered to the plant.

Amyx Concrete contends, and the trial court apparently found from the above circumstances, reciprocal consent of both parties as to the thing, the price and the terms amounting to a contract to sell under LSA-C.C. Art. 2462. We find no manifest error in this conclusion. However, we do find that the trial court erred in concluding that Heard breached the agreement.

The record makes clear that the actual amount of lightweight concrete required for the construction project was unknown and had been estimated at between 700 and 800 yards. Both plaintiff and defendant-in-reconvention were aware and admitted in their testimony that the amount mentioned in negotiations was an estimate. Under such circumstances, we believe that a valid contract was entered into with the object of the contract being uncertain but ascertainable, the end result being that Heard was obligated to purchase and Amyx Concrete was obligated to furnish all of the lightweight concrete required for the project. Our conclusion in this regard is supported by the express provisions of LSA-C.C. Art. 1886 which provides:

“An obligation must have for its object something determinate, at least as to its species.
The quantity of a thing may be uncertain, provided it be capable of being ascertained. ”

It is undisputed that Heard did, in fact, purchase all the lightweight concrete required for the project from Amyx Concrete, although something less than the original estimate. Under such circumstances, we find no breach and no liability on the part of Heard for damages.

For the above and foregoing reasons, we reverse the judgment in favor of Amyx Concrete, plaintiff-in-reconvention, and against Heard, defendant-in-reconvention, dismissing the demands of Amyx Concrete. The judgment of the trial court is affirmed in all other respects. Costs on appeal are assessed against Amyx Concrete Company, Inc.

AFFIRMED IN PART AND REVERSED IN PART.

APPENDIX I'


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

text:
    Larry PICKETT, Alias Larry Barnes v. STATE of Mississippi.
    No. 53680.
    Supreme Court of Mississippi.
    March 30, 1983.
    Rehearing Denied Jan. 18, 1984.
    Alfred Lee Felder, Mack Brabham, McComb, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Pike County wherein Larry Pickett, alias Larry Barnes, appellant, was indicted, tried and convicted for the March 28, 1980, forcible rape of Ruby Marie Hood, a female over the age of twelve. Upon conviction, appellant was sentenced to serve a term of twenty-four years in the custody of the Mississippi Department of Corrections. We affirm.

On March 27, 1980, Ruby Marie Hood, prosecutrix, . a nineteen-year-old female, went with a friend, Benevelyn Andrews, to a nightspot in McComb known as the Bird Cage. They arrived at the Bird Cage at approximately 9:30 p.m. While there, the prosecutrix danced with the appellant once or twice.

At approximately 11:45 p.m., the two girls started to leave the lounge. The pros-ecutrix stopped to talk with a friend while Benevelyn proceeded outside where she was confronted by the appellant who asked if he could talk with her (Benevelyn’s) friend. When the prosecutrix came outside, appellant caught her by the arm. Be-nevelyn continued walking and informed the prosecutrix she would wait in her car. Appellant pulled the prosecutrix over by a car and then pushed her inside and locked the door. Ray Charles Jackson, who was seated in the back seat of the vehicle, held the door locked while appellant got inside. Appellant tried to kiss the prosecutrix and when she resisted, he slapped her. She began blowing the horn on the automobile, whereupon he slapped her again. Appellant jerked the prosecutrix between the front two seats, whereupon she screamed again only to be slapped by appellant. She then rolled down the car window and stuck one leg out trying to escape therefrom. While in the process of trying to escape, she lost one of her shoes. Appellant warned her not to scream or try to fight him. Otherwise he would kill her. Phila-mon Moore then entered the car on the driver’s side, started the engine and then killed it. Appellant told Moore if he didn’t want to be any part of it, he could get out. Moore then started the car again and drove to the Camellian Motel.

While enroute to the motel, there was some discussion about a $100 bill. Jackson passed the bill to appellant. The prosecu-trix did not know what the money was for or what happened to the money thereafter. When they stopped at a traffic light, the prosecutrix screamed again. Appellant told her if she didn’t shut up, he would blow her head off. She saw him pulling something from underneath the seat which she believed to be a gun.

They arrived at the motel at approximately 12:30 a.m. Appellant put his hand around the prosecutrix’s throat and told her if she screamed or ran he would kill her. The prosecutrix was pushed into a room. However, Moore did not get out of the automobile and left the scene.

When they got inside, appellant tried to pull the prosecutrix’s clothes off, but she pulled away. The prosecutrix then disrobed and appellant slapped her on the bed. Appellant and Jackson undressed. Jackson then allegedly raped the prosecutrix. At this point, two other men entered the motel room and forcibly had sexual relations with the prosecutrix. Appellant then allegedly raped her. She was also forced to perform various other sexual acts with Jackson.

After everyone but appellant had left, he began pleading with the prosecutrix not to tell anyone. She dressed and was then taken to another room at the motel where Jackson and the other two men were asleep. Appellant offered to call the prose-cutrix a cab; however, she persuaded him to allow her to call Benevelyn. Appellant put $6 in her shoe for gas. The prosecu-trix then left the motel room to wait on Benevelyn. It was around daybreak at this time.

Benevelyn picked up the prosecutrix shortly thereafter. She was crying and shaking. Her hair was messed up and her face beaten up. She was taken to Beneve-lyn’s boy friend’s house where her mother was called and told to meet them at the police station. The prosecutrix’s mother corroborated Benevelyn’s testimony as to her emotional state as well as her physical appearance.

Dr. Benjamin Cranford, III, testified that the prosecutrix was crying, hysterical, and having difficulty speaking at the time of her examination. His findings were consistent with the history given by the prose-cutrix. Valium was prescribed to control her anxiety and hysteria.

Appellant’s witnesses admitted the sexual acts; however, they denied such was done against the prosecutrix’s consent. According to Ray Charles Jackson, the prosecutrix was paid for her services. Jackson testified he got the $100 bill out of the prosecutrix’s purse and it was only because she had stayed out so late that she became upset. Jackson denied that any violence was involved.

The jury returned a verdict of guilty as charged, whereupon the appellant was sentenced to serve a term of twenty-four years in the custody of the Mississippi Department of Corrections.

I. Did the trial court err in permitting testimony as to the prosecutrix’s reputation in the community for truth and veracity?

In rebuttal, the state produced two ministers who testified that the prosecutrix’s reputation in the community for truth and veracity was good. Appellant contends such was error because appellant did not directly attack the prosecutrix’s character for truth and veracity during the trial.

In Tiner v. State, 214 Miss. 551, 59 So.2d 287 (1952), this Court stated:

The appellant’s attorney also assigns as error the action of the court in permitting the State to prove the general reputation of Wardlaw for honesty and integrity. But no objection was made to that testimony when it was offered. It is only in exceptional cases that this Court will consider assignments of error based upon the admission of testimony which was not objected to at the time it was offered. However, in view of the fact that the same testimony may be offered on a new trial, we do say here that the court should not have permitted the State to prove in rebuttal Wardlaw’s general reputation for honesty and integrity under the facts shown by the record. The defendant had not put Wardlaw’s reputation in issue. The defendant had merely denied that the alteration in the check had been made prior to the time that he delivered the check to Wardlaw. The main question of fact which the jury had to decide was whether the defendant or Wardlaw had told the truth about the check. And under these circumstances it was highly prejudicial to the defendant to permit the State to bolster Wardlaw’s testimony by having the sheriff testify as to his reputation for honesty and integrity. The exact question that we have before us here was passed upon by the Court in the case of Brewer v. Mullins, 97 Miss. 353, 52 So. 257, and in the case of McEwen v. State, 132 Miss. 338, 96 So. 690.
(214 Miss, at 556-57, 59 So.2d at 289-90) (emphasis ours).

Appellant argues that the mere contradiction of the prosecutrix’s testimony by his witnesses was insufficient to justify the admission of testimony in support of her reputation for truth, honesty and integrity. Tiner, supra, arid 81 Am.Jur.2d, Witnesses § 639 (1976).

While we agree with the appellant that the mere contradiction of a witness’s testimony is insufficient to justify the admission of testimony of general reputation for truth, honesty and integrity, an examination of the record leads us to conclude that the prosecutrix’s character for truth and veracity was directly assailed by defense witness Ray Charles Jackson. Jackson testified as follows:

Q. And you’re telling this Jury, and it’s as true as everything else you’ve said, that she’s lying?
A. Damn right she’s lying.
Q. Damn right she’s lying?
A. That’s right.
BY MR. STARRETT:
No further questions.

This was not a case where appellant denied that the alleged incident occurred. Rather his whole defense was predicated on the fact that the sexual acts complained of were engaged in voluntarily by the pros-ecutrix in return for money. Appellant’s witness went much farther than merely contradicting the prosecutrix’s testimony. Jackson asserted she (prosecutrix) was lying. Upon these facts we believe the trial court properly admitted the testimony as to the prosecutrix’s reputation in the community for truth and veracity because her character for such was directly attacked by the appellant.

II. Did the trial court err in the manner of presenting the array of jurors to the appellant for selection?

Appellant objected to the racial composition of the special venire, prior to trial, contending that of the twenty-three jurors who were present, eighteen were white, which was not a fair representation of the racial balance in Pike County. The court overruled appellant’s motion, reciting that the special venire was drawn in open court indiscriminately as the law provided.

On motion for new trial, appellant alleged that the makeup of the jury was unfair in that once the special venire was exhausted, the jurors presented to the appellant were not from a random panel, but instead were a series of jurors excluded from previous cases and who had not yet served on the jury.

In overruling appellant’s motion, the trial court stated:

BY THE COURT:
Let the record show that in selection of the 12 to serve on this jury, the defendant exercised 10 peremptory challenges. The State exercised 11. The panel to try the case was agreed to by both sides, and the defense accepted the panel, and it is only after the ballgame is over and the score has been posted that now the defendant comes back and wants to claim that the toss of the original coin was unfair and that is just not true. The jury was selected in exactly the same manner we have selected every jury in this Court in several years, and that is when it went to the regular panel, then the defense or the State was tendered and then the defense tendered those from the regular panel in the same manner that every other jury has been selected, and it’s in the order in which the jurors have been impaneled on Monday, the first day they come. So as to that complaint, I see no merit whatsoever.

Only one juror, aside from the alternate juror, was selected from the regular panel.

In Arnold v. State, 171 Miss. 164, 157 So. 247 (1934), we held:

We are further of the opinion, however, that it was the duty of the appellant in this case to have interposed his objections at the time the special venire was being drawn from the jury box as it was then constituted, and, not having done so, he waived the point.
(171 Miss, at 169, 157 So. at 248).

See also Fermo v. State, 370 So.2d 930 (Miss.1979) (holding a challenge to selection of grand jury foreman on grounds of racial discrimination made after trial untimely); Watkins v. State, 262 So.2d 422 (Miss.1972) (holding an acceptance of jury precluded challenge to its composition); and Holloway v. State, 242 So.2d 454 (Miss.1970) (holding the failure to voice an objection until jury selection had been completed and jury was seated in box ready for trial to begin effectively waived any challenge thereto).

Appellant has failed to show any prejudice he may have suffered from the manner in which the jury was selected nor has he alleged fraud in the manner that the jury was selected. Appellant, therefore, effectively waived any irregularity, if any, in the manner in which the array of jurors was presented to appellant for selection by failure to make a proper and timely objection. There is no merit in this assignment of error.

III. Did the trial court err in granting state instruction S-2?

Instruction S-2 stated:
The Court instructs the jury that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant had sexual intercourse with Ruby Marie Hood without her consent and against her will, and that she surrendered to the defendant and permitted him to have sexual intercourse with her because of fear arising out of a reasonable apprehension of great bodily harm at the hands of the defendant, then it is not necessary for you to believe that there was actual physical force on the part of the defendant, or physical resistance on the part of Ruby Marie Hood, in order for you to find the defendant guilty of rape.

Appellant contends this instruction should not have been given because it announced a purely abstract principle of law, was unsupported by the evidence and amounted to an improper comment upon the evidence.

Appellant does not contend that instruction S-2 was an incorrect statement of the law. While abstract instructions are generally condemned where such an instruction could not have confused or misled the jury, the granting of such does not constitute reversible error. Kitchens v. State, 300 So.2d 922 (Miss.1974).

The instruction, when read, is not confusing or misleading. Moreover, it was somewhat couched in terms of the facts in the present case and cannot be said to be totally abstract. While a more proper instruction might have been drafted, we do not believe the granting of instruction S-2 constituted reversible error.

Appellant also contends that the instruction was unsupported by the evidence because the proof showed that appellant was subjected to a great deal of physical brutality while S-2 told the jury physical force was unnecessary if the prosecutrix submitted to sexual intercourse because of fear arising out of great bodily harm.

The evidence presented clearly supported such an instruction. The prosecutrix was slapped, choked and threatened with her life if she did not succumb to the wishes of her assailants. She repeatedly testified she submitted to sexual intercourse because she was afraid due to appellant’s threats to kill her. We find no merit in this argument.

Finally, appellant contends instruction S-2 was an improper comment on the evidence which emphasized specific portions of the testimony. Appellant failed to object at trial to instruction S-2 on this ground. In Daumer v. State, 381 So.2d 1014 (Miss.1980), this Court stated:

Jury Instruction S-4 is said to be “confusing and improper because the term ‘culpable negligence’ was not adequately defined for the Jury.” In considering this part of defendants’ argument it is to be noted that the objection made at trial to S-4 was for the reason of “a total failure to show any negligence, much less culpable negligence,” but upon appeal they argue that S-4 is erroneous for reasons other than those assigned in the trial court. It has been the rule for some time that when an objection to an instruction is made at trial on one ground and on another ground on appeal, we will not accept such argument as grounds for reversal.
(381 So.2d at 1017).

The failure to object to instruction S-2 on this ground at trial precludes review of such on appeal.

Based on the foregoing, appellant’s conviction and sentence are hereby affirmed.

AFFIRMED.

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

ON PETITION FOR REHEARING

Petition for rehearing denied.

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

ROY NOBLE LEE, Justice,

dissenting:

I think the lower court erred in permitting testimony as to the prosecutrix’s reputation in the community for truth and veracity, and, therefore, I dissent from the majority opinion which holds that the lower court did not err in admitting such testimony.

Appellant Larry Pickett and Ray Charles Jackson were separately indicated for the forcible rape of Ruby Marie Hood, a 19-year-old female. Appellant’s trial was held beginning April 3, 1981, which resulted in his conviction. Jackson’s trial was held April 9, 1981, and he was convicted likewise. Pickett did not testify at his trial, but Jackson was called as a witness and voluntarily testified in Pickett’s behalf.

The prosecutrix contended that she was forcibly abducted and raped by Pickett and Jackson, while Jackson’s testimony was to the effect that she voluntarily accompanied them from the Bird Cage Lounge to the Camellian Motel where she voluntarily entered into sexual acts with them and was paid for her services. There is a sharp conflict in the testimony of the prosecutrix and Jackson upon which testimony the respective sides depended for their cases.

The following facts are uncontradicted in the record:

1. Pickett, Jackson and the prosecutrix got into an automobile outside the Bird Cage Lounge in a public place.

2. They went to the Camellian Motel, a public place, left the vehicle, and entered a room in the motel.

3. The prosecutrix disrobed.

4. Pickett, Jackson and at least one other person engaged in sexual acts with the prosecutrix during the evening.

When Jackson testified, he denied that force, threats, or violence were used against the prosecutrix. He stated that she voluntarily entered into the sex acts with him, Pickett and another individual. On cross-examination of Jackson, the prosecuting attorney asked questions and received responses as follows:

BY MR. STARRETT:
Q. And Ruby Marie Hood, you know, has made charges against Larry Pickett for rape?
A. She made some of them against me as well.
Q. You and Larry Pickett for rape?
A. Right.
And you’re telling this Jury, and it’s as true as everything else you’ve said, that she’s lying? Q.
A. Damn right she’s lying.
Q. Damn right she’s lying?
A. That’s right.

It is obvious that the prosecuting attorney had set a trap for the witness. If Jackson had denied the prosecuting witness was lying, he would have been admitting that Pickett and he forcibly raped her. In all of his testimony previous to that question, he had denied that they raped her and he simply answered the prosecuting attorney’s question in the affirmative and emphatically so.

The dissenting opinion characterizes the testimony of Jackson as an affirmative charge that the prosecuting witness was lying and that it constituted a direct attack on the character of the prosecutrix. If such were true, every denial by a witness of another witness’s testimony would amount to a character attack.

On the basis of Jackson’s answer to the prosecuting attorney’s question, the lower court permitted the State, over objection, to introduce two ministers whose testimony obviously was for the sole purpose of bolstering the testimony of the prosecutrix.

Reverend Herman Abraham testified as follows:

Q. Are you familiar with her reputation for truth and veracity in the community?
A. I would say I am.
BY MR. FELDER:
We object to this line of questioning of this witness.
BY THE COURT:
All right. What’s your objection?
BY MR. FELDER:
It’s an attempt to bolster testimony of the witness on the part of the State. It’s inadmissible.
BY THE COURT:
Do you have any other objections? BY MR. BRABHAM:
No, sir.
BY THE COURT:
Let it be overruled.
BY MR. BRABHAM:
We also object on the ground that it is not proper rebuttal, Your Honor.
BY THE COURT:
Overruled.
BY MR. STARRETT:
Q. What is her reputation for truth and veracity?
A. She is a find [sic] young lady as far as I know. I know nothing of her—
Reverend J.M. Varnado testified as follows:
Q. Do you know Ruby Marie Hood?
A. Yes, I do.
Q. How long have you known Ruby Marie Hood?
A. Just about all her life.
Q. Are you familiar with her reputation for truth and veracity in the community?
BY MR. FELDER:
We object. Your Honor. The same objection. It is not proper rebuttal and is an attempt to bolster the testimony of the witness.
BY THE COURT:
I overrule the objection.
BY MR. STARRETT:
Q. The Court says you may answer?
A. Yes, she have a good reputation. I know because I am her pastor. I know her as a church member and she is a regular attendant at church.

In my opinion, the rebuttal testimony of the ministers was irregular, inadmissible, highly prejudicial, and constitutes reversible error.

In McEwen v. State, 132 Miss. 338, 96 So. 690 (1923), a similar question was presented in a forcible rape trial, and this Court said the following:

The previous chastity of the prosecu-trix was attacked by the appellant by the testimony of himself and another that each of them had previously had sexual intercourse with her on several occasions. The only testimony in denial of this was that of the prosecutrix herself. In order to bolster up the testimony of the prosecutrix and thereby induce the jury to believe her in preference to the appellant and his witness, the state was allowed to prove by a large number of witnesses that the prosecutrix bore a good reputation for truth and veracity. Her reputation therefor had not been attacked, was therefore not in issue, the evidence relative thereto was consequently not admissible, and was manifestly prejudicial to the appellant. Brewer v. Mullins, 97 Miss. 353, 52 So. 257. [132 Miss, at 344, 96 So. at 691],

In Tiner v. State, 214 Miss. 551, 59 So.2d 287 (1952), the Court considered an error which was not objected to on the trial where rebuttal testimony as to the truth and veracity of a witness was offered when the witness’s reputation had not been previously attacked just as in the present ease. The Court said:

The appellant’s attorney also assigns as error the action of the court in permitting the State to prove the general reputation of Wardlaw for honesty and integrity. But no objection was made to that testimony what it was offered. It is only in exceptional cases that this Court will consider assignments of error based upon the admission of testimony which was not objected to at the time it was offered. However, in view of the fact that the same testimony may be offered on a new trial, we do say here that the court should not have permitted the State to prove in rebuttal Wardlaw’s general reputation for honesty and integrity under the facts shown by the record. The defendant had not put Wardlaw’s reputation in issue. The defendant had merely denied that the alteration in the check had been made prior to the time that he delivered the check to Wardlaw. The main question of fact which the jury had to decide was whether the defendant or Wardlaw had told the truth about the check. And under these circumstances it was highly prejudicial to the defendant to permit the State to bolster Wardlaw’s testimony by having the sheriff testify as to his reputation for honesty and integrity. The exact question that we have before us here was passed upon by the Court in the case of Brewer v. Mullins, 97 Miss. 353, 52 So. 257, and in the case of McEwen v. State, 132 Miss. 338, 96 So. 690.
For the reason stated above, the judgment of the lower court is reversed and the cause remanded for a new trial. [214 Miss. at 556, 59 So.2d at 289],

In Brewer v. Mullins, 97 Miss. 353, 52 So. 257 (1910), which was a replevin suit involving the possession of a mule, the testimony was in sharp conflict, as in the case sub judice. On cross-examination by the attorney for Mullins, the latter was asked, over objection, whether Mullins was a truthful man, to which he answered that he was. In reversing the case, the Court said:

The court erred in permitting testimony to uphold the character of the witness Mullins for truth and veracity, when it had not been directly assailed. It was not an issue before the jury, and could not be made one, except by his adversary attacking it in the manner laid down by law. The issue of the fact before the jury seems to have been about evenly balanced. Under these circumstances, such testimony probably had influential weight with the jury. [97 Miss. at 353, 52 So. at 257],

The legal principle now before the Court has been long established and well recognized. It remains the law today. The violation and disregard of that principle should require reversal of the conviction and judgment entered here.

Therefore, I would sustain the petition for rehearing, withdraw the majority opinion, and reverse and remand the case for a new trial, and I dissent from the majority opinion.

Jackson v. State, 443 So.2d 803 (Miss.1983), a companion case to Pickett, was affirmed April 6, 1983, by an unpublished opinion stating that the decision was controlled by Pickett. In my opinion, Jackson should be reversed and remanded on petition for rehearing for the same reason as Pickett and my views expressed herein apply to Jackson.

WALKER and BROOM, P.JJ., join this dissent.

      . However, the State contends that force was used in each instance, while appellant contends that the prosecutrix acted voluntarily.


author: ROY NOBLE LEE, Justice,

text:
    Ray Charles JACKSON v. STATE of Mississippi.
    No. 53681.
    Supreme Court of Mississippi.
    April 6, 1983.
    Rehearing Denied Jan. 18, 1984.
    Mack Brabham, McComb, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

AFFIRMED.

WALKER and BROOM, P. JJ., and ROY NOBLE LEE, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

ON PETITION FOR REHEARING

Petition for rehearing denied.

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

Written opinion by ROY NOBLE LEE, J., in companion case of Larry Pickett v. State, 443 So.2d 796 (Miss.1983), adopted by dissenters herein.

ROY NOBLE LEE, Justice,

dissenting:

I think the lower court erred in permitting testimony as to the prosecutrix’s reputation in the community for truth and veracity, and, therefore, I dissent from the majority opinion which holds that the lower court did not err in admitting such testimony.

Appellant Larry Pickett and Ray Charles Jackson were separately indicted for the forcible rape of Ruby Marie Hood, a 19-year-old female. Appellant’s trial was held beginning April 3, 1981, which resulted in his conviction. Jackson’s trial was held April 9, 1981, and he was convicted likewise. Pickett did not testify at his trial, but Jackson was called as a witness and voluntarily testified in Pickett’s behalf.

The prosecutrix contended that she was forcibly abducted and raped by Pickett and Jackson, while Jackson’s testimony was to the effect that she voluntarily accompanied them from the Bird Cage Lounge to the Camellian Motel where she voluntarily entered into sexual acts with them and was paid for her services. There is a sharp conflict in the testimony of the prosecutrix and Jackson upon which testimony the respective sides depended for their cases.

The following facts are uncontradicted in the record:

1. Pickett, Jackson and the prosecutrix got into an automobile outside the Bird Cage Lounge in a public place.

2. They went to the Camellian Motel, a public place, left the vehicle, and entered a room in the motel.

3. The prosecutrix disrobed.

4. Pickett, Jackson and at least one other person engaged in sexual acts with the prosecutrix during the evening.

When Jackson testified, he denied that force, threats, or violence were used against the prosecutrix. He stated that she voluntarily entered into the sex acts with him, Pickett and another individual. On cross-examination of Jackson, the prosecuting attorney asked questions and received responses as follows:

BY MR. STARRETT:
Q. And Ruby Marie Hood, you know, has made charges against Larry Pickett for rape?
A. She made some of them against me as well.
Q. You and Larry Pickett for rape?
A. Right.
Q. And you’re telling this Jury, and it’s as true as everything else you’ve said, that she’s lying?
A. Damn right she's lying.
Q. Damn right she’s lying?
A. That’s right.

It is obvious that the prosecuting attorney had set a trap for the witness. If Jackson had denied the prosecuting witness was lying, he would have been admitting that Pickett and he forcibly raped her. In all of his testimony previous to that question, he had denied that they raped her and he simply answered the prosecuting attorney’s question in the affirmative and emphatically so.

The dissenting opinion characterizes the testimony of Jackson as an affirmative charge that the prosecuting witness was lying and that it constituted a direct attack on the character of the prosecutrix. If such were true, every denial by a witness of another witness’s testimony would amount to a character attack.

On the basis of Jackson’s answer to the prosecuting attorney’s question, the lower court permitted the State, over objection, to introduce two ministers whose testimony obviously was for the sole purpose of bolstering the testimony of the prosecutrix.

Reverend Herman Abraham testified as follows:

Q. Are you familiar with her reputation for truth and veracity in the community?
A. I would say I am.
BY MR. FELDER:
We object to this line of questioning of this witness.
BY THE COURT:
All right. What’s your objection?
BY MR. FELDER:
It’s an attempt to bolster testimony of the witness on the part of the State. It’s inadmissible.
BY THE COURT:
Do you have any other objections? BY MR. BRABHAM:
No, sir.
BY THE COURT:
Let it be overruled.
BY MR. BRABHAM:
We also object on the ground that it is not proper rebuttal, Your Honor.
BY THE COURT:
Overruled.
BY MR. STARRETT:
Q. What is her reputation for truth and veracity?
A. She is a find [sic] young lady as far as I know. I know nothing of her— Reverend J.M. Varnado testified as follows:
Q. Do you know Ruby Marie Hood?
A. Yes, I do.
Q. How long have you known Ruby Marie Hood?
A. Just about all her life.
Q. Are you familiar with her reputation for truth and veracity in the community?
BY MR. FELDER:
We object. Your Honor. The same objection. It is not proper rebuttal and is an attempt to bolster the testimony of the witness.
BY THE COURT:
I overrule the objection.
BY MR. STARRETT:
Q. The Court says you may answer?
A. Yes, she have a good reputation. I know because I am her pastor. I know her as a church member and she is a regular attendant at church.

In my opinion, the rebuttal testimony of the ministers was irregular, inadmissible, highly prejudicial, and constitutes reversible error.

In McEwen v. State, 132 Miss. 338, 96 So. 690 (1923), a similar question was presented in a forcible rape trial, and this Court said the following:

The previous chastity of the prosecu-trix was attacked by the appellant by the testimony of himself and another that each of them had previously had sexual intercourse with her on several occasions. The only testimony in denial of this was that of the prosecutrix herself. In order to bolster up the testimony of the prosecutrix and thereby induce the jury to believe her in preference to the appellant and his witness, the state was allowed to prove by a large number of witnesses that the prosecutrix bore a good reputation for truth and veracity. Her reputation therefor had not been attacked, was therefore not in issue, the evidence relative thereto was consequently not admissible, and was manifestly prejudicial to the appellant. Brewer v. Mullins, 97 Miss. 353, 52 So. 257. [132 Miss. at 344, 96 So. at 691].

In Tiner v. State, 214 Miss. 551, 59 So.2d 287 (1952), the Court considered an error which was not objected to on the trial where rebuttal testimony as to the truth and veracity of a witness was offered when the witness’s reputation had not been previously attacked just as in the present case. The Court said:

The appellant’s attorney also assigns as error the action of the court in permitting the State to prove the general reputation of Wardlaw for honesty and integrity. But no objection was made to that testimony what it was offered. It is only in exceptional cases that this Court will consider assignments of error based upon the admission of testimony which was not objected to at the time it was offered. However, in view of the fact that the same testimony may be offered on a new trial, we do say here that the court should not have permitted the State to prove in rebuttal Wardlaw’s general reputation for honesty and integrity under the facts shown by the record. The defendant had not put Wardlaw’s reputation in issue. The defendant had merely denied that the alteration in the check had been made prior to the time that he delivered the check to Wardlaw. The main question of fact which the jury had to decide was whether the defendant or Wardlaw had told the truth about the check. And under these circumstances it was highly prejudicial to the defendant to permit the State to bolster Wardlaw’s testimony by having the sheriff testify as to his reputation for honesty and integrity. The exact question that we have before us here was passed upon by the Court in the case of Brewer v. Mullins, 97 Miss. 353, 52 So. 257, and in the case of McEwen v. State, 132 Miss. 338, 96 So. 690.
For the reason stated above, the judgment of the lower court is reversed and the cause remanded for a new trial. [214 Miss. at 556, 59 So.2d at 289].

In Brewer v. Mullins, 97 Miss. 353, 52 So. 257 (1910), which was a replevin suit involving the possession of a mule, the testimony was in sharp conflict, as in the case sub judice. On cross-examination by the attorney for Mullins, the latter was asked, over objection, whether Mullins was a truthful man, to which he answered that he was. In reversing the case, the Court said:

The court erred in permitting testimony to uphold the character of the witness Mullins for truth and veracity, when it had not been directly assailed. It was not an issue before the jury, and could not be made one, except by his adversary attacking it in the manner laid down by law. The issue of the fact before the jury seems to have been about evenly balanced. Under these circumstances, such testimony probably had ihfluential weight with the jury. [97 Miss. at 353, 52 So. at 257].

The legal principle now before the Court has been long established and well recognized. It remains the law today. The violation and disregard of that principle should require reversal of the conviction and judgment entered here.

Therefore, I would sustain the petition for rehearing, withdraw the majority opinion, and reverse and remand the case for a new trial, and I dissent from the majority opinion.

Jackson v. State, Miss.Sup.Ct. No. 53,-681, a companion case to Pickett, was affirmed April 6, 1983, by an unpublished opinion stating that the decision was controlled by Pickett. In my opinion, Jackson should be reversed and remanded on petition for rehearing for the same reason as Pickett and my views expressed herein apply to Jackson.

WALKER and BROOM, P.JJ., join this dissent.

      . However, the State contends that force was used in each instance, while appellant contends that the prosecutrix acted voluntarily.