text:
    Randy RIDEOUT v. Tony Bruce KNIGHT.
    No. 55371.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    Garland D. Upton, Columbia, for appellant.
    H. Alex Brinkley, Aultman, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Marion County wherein the appellant, Randy Rideout, filed a complaint seeking damages for the alleged negligence of the appellee, Tony Bruce Knight, which allegedly resulted in a traffic accident in which Rideout was injured. Following the completion of Rideout’s case, the court sustained Knight’s motion for a directed verdict. On this appeal, Rideout argues that the granting of the directed verdict was error. We agree and, therefore, must reverse this cause.

The first witness was Tony Knight, called adversely. Knight testified that on June 10, 1980, he was traveling north on Highway 13. He saw two boys on bicycles about five hundred yards ahead of him. They were also traveling north side by side. One of the boys looked over his shoulder and saw Knight approaching. Thereafter, the bicyclists got single file. Knight testified that he slowed his Jeep down so that southbound vehicles could pass him before he attempted to pass the bicyclists. After the southbound vehicles got around him, Knight attempted to pass the bicyclists. Knight admitted that he did not sound his horn as he went past the bicyclists and he did not entirely clear the bicyclists’ lane. Knight’s testimony was that at the point of impact he was straddling the center line with his Jeep. At impact the right door on Knight’s Jeep came off.

Knight admitted saying, “Oh, my God, what have I done?” to Linda Pittman soon after the accident.

Jimmy Stringer, an officer with the Mississippi Highway Patrol, testified that he investigated the accident. When he arrived he found Randy Rideout lying in the middle of the highway. Rideout’s head was in a pool of blood. Stringer testified that visa-bility that day was “real clear.” Stringer also testified that Knight’s Jeep was damaged on the right door handle. He stated that there was no indication of any impact to the front of the Jeep. Knight told Stringer that he had swerved to the left to avoid the collision but was obviously unsuccessful. Officer Stringer did not issue a citation.

Randy Rideout, the plaintiff, testified in his own behalf. He stated that on June 10, 1980, he was riding his bicycle and his friend Steve Akins was riding a bicycle just in front of him. Rideout testified that he knew he did not swerve in front of the Jeep but that he had lost any memory of just how the accident had occurred. Rideout suffered head injuries and a deep gouge in his left arm.

Linda Pittman testified that she came upon the scene of the accident soon after it occurred. She saw Rideout lying in a pool of blood in the middle of the road. Officer Stringer asked her to accompany Knight to the hospital. She rode with Knight in his Jeep and testified that the right door was missing. Knight told her that as he passed the bicyclists the door on the right side of his Jeep flew off.

Other testimony adduced at trial related to Rideout’s injuries and is not relevant to the issue of causation. Following the close of Rideout’s ease the trial court sustained Knight’s motion for a directed verdict.

The sole issue on this appeal is whether the granting of the directed verdict was correct. The standard of review when this Court addresses the propriety of a directed verdict was set out in the oft cited Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975);

We have held many times that in passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. We have also stated in considering a motion for a directed verdict that it should be overruled even though a verdict in favor of the plaintiff would be contrary to the overwhelming weight of the evidence. King v. Dudley, 286 So.2d 814 (Miss. 1973).

319 So.2d at 655.

The circuit court found that the evidence adduced for Rideout would not have sup-. ported a verdict for him and that therefore the directed verdict was proper. We are of the opinion that the learned circuit judge erred. Granted, evidence adduced for Rideout was slim; however, it was established that Knight did not sound his horn as he passed the bicyclists. Knight admitted that he had not entirely cleared the bicyclists’ lane of traffic as he passed them but was only straddling the center line. Knight stated to Linda Pittman that he thought he was past the bicyclists when the impact occurred and the door of his Jeep flew off. This may be considered an admission by Knight that he was unaware of the location of his vehicle in relation to the bicyclists as he passed them, thereby supporting Rideout’s theory that Knight failed to keep a proper lookout and pass at a safe distance.

Additionally, because Rideout testified that he did not swerve into the path of the Jeep and because Knight admitted impact, we are of the opinion that the jury could have found that Knight did not give sufficient clearance to the bicyclists as he passed them. Furthermore, we refer to § 63-3-609 Miss.Code Ann. (1972) which requires that the driver of a vehicle passing another vehicle proceeding in the same direction shall pass to the left thereof “at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” Section 63-3-207 states that the traffic regulations embodied in the state code are equally applicable to persons riding bicycles. Therefore, under the laws governing the use of the state’s roadways, Knight was obligated to pass Rideout at a sufficiently safe distance. It was a question of fact for the jury as to whether Knight negligently failed to do this.

From the facts adduced at trial we are of the opinion that the jury could have found that Knight failed to pass at a safe distance, failed to keep his vehicle under control, failed to maintain a proper lookout for other persons using the highway and, failed to use reasonable care in overtaking and passing Rideout.

Therefore, we hereby reverse this cause and remand to the Circuit Court of Marion County for proceedings consistent with this opinion.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice,

license: Public Domain

text:
    James THOMAS, et al. v. MUNSON MACHINERY COMPANY, INC. (Formerly Munson Mill Machinery, Inc.)
    No. 54577.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    Don 0. Gleason, Ocala, Fla., Frank W. Hunger, Lake, Tindall, Hunger & Thack-ston, Greenville, for appellants.
    Fred C. DeLong, Jr., Campbell & De-Long, Greenville, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

James Thomas filed suit in the Circuit Court of Washington County, Mississippi, against Munson Machinery Co., Inc., [Mun-son] formerly Munson Mill Machinery, Inc., for personal injuries sustained while he was cleaning the interior of a chemical mixer. The declaration was based on strict liability in tort and general negligence. Upon a stipulation of fact by the parties and agreement that the case be submitted to the trial judge on the issue of whether or not a summary judgment should be granted, the trial judge, Honorable B.B. Wilkes, found that there was no material issue of fact and, on a question of law, the plaintiff had not stated a case against Munson. Therefore, the trial judge sustained the motion for summary judgment, dismissed the declaration, and the plaintiff Thomas has appealed here.

The sole question before this Court is whether or not the lower court erred in sustaining appellee’s motion for summary judgment.

The record before the lower court on the motion for summary judgment consisted of (1) the plaintiffs declaration and the defendant’s answer thereto, and (2) the stipulation of the parties. The lower court considered the stipulation as if it were a joint affidavit of the parties which fully complied with all the requirements of Rule 56 respecting affidavits. In making a finding of fact, the lower court adopted verbatim the stipulation of the parties, pertinent parts of which are set forth in the Appendix.

The chemical mixer, alleged to be the defective culprit in this case, was manufactured prior to 1959 by appellee, was sold by it during the year 1959 to Olin-Mathison Corporation [Olin], and was shipped to Olin’s plant in East Omaha, Nebraska. Before the mixer could be operated and used, an electric motor, electrical motor starter and switches were required to be installed in it. When sold by appellee to Olin, the mixer was not equipped with any of those parts, and it was the responsibility of Olin to acquire and install the electrical parts before Olin could put the mixer into operation. Appellee did not manufacture the electrical motor, motor starter, wiring and switches, or sell them to Olin, nor did it participate in the selection by Olin of those parts and equipment, or in the installation of such parts in the mixer by Olin. Appel-lee specifically advised Olin in writing at the time Olin purchased the mixer:

It is suggested that a suitable fused disconnect switch be installed in the power line ahead of the motor starter so that in the event of repairs being needed, it will be possible to shut off power so that there will be no chance of accident.

At sometime subsequent to installation of the electrical equipment in the mixer, Olin moved the machine from its plant in Nebraska to its plant in Washington County, Mississippi, and reinstalled it for use in the Mississippi plant. Appellee did not participate in any manner in the moving or reinstallation of the machine in Mississippi. The accident in which appellant was injured, occurred in 1973 in Washington County, Mississippi, approximately thirteen (13) years after the sale of the mixer by appellee to Olin. Appellant contends that the mixer was defective in that (1) it was not equipped with any fail-safe device which would prevent the mixer from operating when the door was open, (2) it was not equipped with any device which would shut off the mixer after part of a human body was caught in it, so as to minimize the injury, and (3) there was nothing on the mixer warning users that it was in an unreasonably dangerous condition by reason of the other alleged defects.

In our opinion, Mississippi law has stated principles which control this case. State Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966). State Stove was the manufacturer of hot water heaters. One such heater was installed by the firm of Yates and Gary. Subsequently, the heater exploded, destroying the Hodges residence and its contents, and Hodges brought suit for damages against State Stove, the manufacturer, and Yates and Gary, the installer. State Stove had installed two thermostats controlling two heating units in the water heater and a plastic dip tube or pipe designed to carry cold water from the top to the bottom of the tank, all said installations being performed at State Stove’s factory as a part of the manufacturing process. The completed hot water heater was sold and shipped in a cardboard box and was ultimately purchased by Yates and Gary and installed by them in the Hodges residence.

State Stove included written instructions, which accompanied the water heater, and specified that a combination temperature and pressure relief valve should be placed on the water heater by the person installing it. Yates and Gary did not follow those instructions but, instead, they put only a pressure relief valve and check valve on the water heater and no temperature control valve. Seven months after the water heater was installed in the Hodges home, the explosion and fire occurred.

The facts established in State Stove indicated that (1) the two thermostats installed by State Stove at the factory failed to work properly; (2) this allowed the temperature in the tank to rise to a point where the plastic dip tube melted, preventing cold water from passing from the top to the bottom of the tank; (3) which in turn permitted pressure to build up to a point where the hot water heater exploded; and (4) if Yates and Gary had installed a temperature control valve, as instructed by State Stove, it would have cut off the heating units before such pressure built up and, therefore, the explosion would not have occurred. In State Stove, the Court held:

State Stove has no liability here, under Restatement section 402A, (1) because the water heater as manufactured was not in “a defective condition unreasonably dangerous to the user or consumer or to his property”; and (2) because it was not expected to and did not reach the Hodges “without substantial change in the condition in which it * * * (was) sold.” (3) Further, the negligent failure of Yates and Gary, through their agent Pittman, to follow the instructions of the manufacturer in installing the water heater, by failing to use a temperature relief valve, was the intervening, sole proximate cause of the explosion.
* * sjc He * *
However, it is undisputed that, if Yates and Gary had followed the instructions of State Stove, the combination valve with a temperature control would have prevented the temperature in the tank from reaching the point where steam would be produced (312 degrees F.), when the explosion resulted, and where the dip tube would melt. The chancery court erred in not attaching significance to this important fact.
Further, the heater was not expected to and did not reach the Hodges “without substantial change in the condition in which” the manufacturer sold it. State Stove clearly directed the installer to place a combination valve on it_ Subsequent installation of safety valves by another is in this sense a substantial change in condition....
* * * * * *
And finally, the failure of Yates and Gary to install the prescribed and required temperature relief valve, which would have prevented the explosion, was an intervening, sole proximate cause of the damages suffered by complainants. [Citations omitted].
E.I. Du Pont de Nemours & Company v. Ladner, 221 Miss. 378, 73 So.2d 249 (1954), is directly in point on this issue. There the manufacturer of the chemical compound gave express notice to the processor not to use it for cattle feed. The processor ignored this warning, and its failure to heed it was the intervening, sole proximate cause of the purchaser’s damages.

189 So.2d at 121, 122, 123.

Appellant cites Ford Motor Co. v. Matthews, 291 So.2d 169 (Miss.1974), wherein the Court discussed intervening third party negligence and quoted from the opinion that “It is therefore said that the defendant is to be held liable if, but only if, the intervening cause is foreseeable.” However, in Matthews, this Court distinguished that case from State Stove in the following language:

State Stove, supra, is distinguishable in one very key aspect — the majority of the Court found that there was no defect in the heater when it left State Stove’s hands. Here, the safety switch system was defective when it left Ford’s hands, as shown by the evidence in this case. Admittedly, the failure of the contractors to install the safety device in State Stove was comparable to the failure of Ray Brothers to remedy the defect in the safety switch system, but in State Stove this negligent omission was found to be the only cause of the accident. In the case at bar, while Ray Brothers’ negligence was a secondary cause of the accident, it was not the only cause. The case at bar necessarily involves a weighing of two contributory causes, whereas no such question was involved in State Stove.

291 So.2d at 175-76.

We are of the opinion that the lower court properly applied the law to the undisputed (stipulated) facts of the case; that it correctly held there was no material issue of fact to be submitted to a jury; and that judgment was correctly entered in favor of the appellee Munson. Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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

APPENDIX

E. The Court specifically finds as fact the following:

1. Prior to 1959, Defendant manufactured the chemical mixer which is the subject of this lawsuit.

2. In 1959, the mixer in question was sold by Defendant to Olin-Mathison Corp. and shipped to Olin’s plant at East Omaha, Nebraska.

3. In order for the mixer to be used (operated) by Olin, it was necessary for it to be connected to an electric motor, and for an electrical motor starter and switches to be installed.

4. The mixer, as sold by Defendant and as purchased by Olin, was not equipped with any electric motor, motor starter, wiring or switches. To the contrary, after it purchased the machine, Olin acquired from third party or parties the necessary electric motor, motor starter, wiring and switches, and Olin then installed all of same, connecting them to the mixer.

5. Defendant did not manufacture or sell the electric motor, motor starter, wiring or switches which were in use originally or which were in use at the time of Plaintiff’s accident.

6. Defendant did not participate in any way in the wiring or installation of the mixer by Olin, in either Nebraska or Mississippi.

7. Defendant did not participate in any way in the selection by Olin of the electric motor, motor starter, wiring or switches which Olin used in connection with the mixer, or in the installation of any of same by Olin, in Nebraska or in Mississippi.

8. Defendant did specifically advise Olin, in writing, at the time Olin purchased the mixer,

It is suggested that a suitable fused disconnect switch be installed in the power line ahead of the motor starter so that in the event of repairs being needed, it will be possible to shut off power so that there will be no chance of accident.

9. The actual manner in which the installation was done by Olin in Nebraska is unknown.

10. Some time later, Olin moved the mixer from its plant in Nebraska to its plant in Washington County, Mississippi, and re-installed it for use in the Mississippi plant. Again, Defendant did not participate in any way and the manner in which the re-installation was done is unknown except that it was done in such manner that the motor did start as described in paragraphs 1(13) and 1(14) below.

11. The accident in question occurred in 1973, at the Washington County, Mississippi, plant approximately 13 years after the sale of the mixer by Defendant to Olin.

12. It is unknown whether or not any alterations, modifications or changes were made by Olin in the mixer, or in the electric motor, motor starter, wiring or switches, between the time Olin first installed all of same, in 1959, in Nebraska, and the time of the accident in question, in 1973 in Mississippi.

13. The accident in question occurred when Plaintiff was standing in front of the repair hatch or door to the mixer, with part of his body inside the mixer to perform repairs or maintenance, with the electric motor shut off and not running, when said motor started suddenly and caused the mixer to start turning.

14. The motor started as aforesaid either because of a malfunction of the motor, motor starter, wiring or switches, or because some part of Plaintiff’s body accidentally came into contact with the starter switch and started the motor.

15. In this suit, Plaintiff alleges that the mixer was defective in that (1) it was not equipped with any fail-safe device which would prevent the mixer from operating when the door was open, (2) it was not equipped with any device which would shut off the mixer after part of a human body was caught in it, so as to minimize the injury, and (3) there was no warning on the mixer warning users that the mixer was in an unreasonably dangerous condition by reason of the other alleged defects as set out above in this paragraph.

16. On January 31, 1979, Olin Corporation filed herein its Petition to Intervene, so as to assert against Defendant its alleged rights to reimbursement, subrogation and exoneration under the Mississippi Workmen’s Compensation Act, and shortly thereafter said Petition was granted so that Olin Corporation became an intervening party in this suit. Subsequently, on or about August 21, 1980, Defendant propounded to Olin Corporation certain written interrogatories herein, a true and correct copy of which is attached to and made a part of the formal stipulation herein. Olin Corporation has never answered said interrogatories for the reason, as stated by its attorney herein to the attorneys for Plaintiff and Defendant, that the information sought by the interrogatories relates to times so long past that none of the said information is available and same cannot be ascertained by Olin. Said representation made by Olin’s attorney is true, and it is impossible to obtain the information sought by said interrogatories from any source, since said information was known solely by Olin Corporation and/or by its agents and employees who cannot now be identified by Olin.

17. Based upon the alleged defects as set out in paragraph 15 above, Plaintiff claims that Defendant is liable for his injuries under both strict liability in tort and negligence theories.

18. Defendant denies that the mixer was defective in any way and denies that it is liable to Plaintiff under either of Plaintiff’s theories.

      . 291 So.2d at 176, quoting from Prosser, Law of Torts § 44, at 272 (1971).


author: WALKER, Presiding Justice,

text:
    Tony Wells WEST a/k/a Samuel Tony Wells v. STATE of Mississippi.
    No. 55443.
    Supreme Court of Mississippi.
    Jan. 23, 1985.

      David M. Sessums, Varner, Parker & Sessums, Vicksburg, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III, and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Jackson, for appel-lee.
   WALKER, Presiding Justice,

For the Court:

Tony West was convicted of the capital murder of Kirby Phelps and sentenced to be executed. West was tried in the Circuit Court of Warren County. West appeals his conviction and sentence.

On December 13, 1982 West and Kenneth Avery Brock robbed and' killed Dr. Charles Scudder and Joseph Odum in Trion, Chattoga County, Georgia. West and Brock took their victims' jeep and headed west along Interstate Highway 20. At a rest stop at Bovina, Warren County, Mississippi they stopped to get some sleep. They were out of money and needed new transportation which was less distinctive than a jeep with a star on each side. Kirby Phelps, a 26-year-old Navy lieutenant, had also picked the Bovina rest area to stop and sleep on his way from Jacksonville, Florida to his mother’s home in Oklahoma City, Oklahoma.

On the morning of December 15, 1982 West and Brock woke up and saw Phelps’ car parked near them. They got out of the jeep and “jumped” Phelps who was asleep in his car. Brock held a gun on Phelps while West put handcuffs on him. The gun and handcuffs had been taken in the Georgia robbery. West then lead Phelps into the woods with the gun Brock had used. Brock unloaded the things from the jeep into Phelps’ Toyota.

West’s version of what happened next was that he only intended to handcuff Phelps to a tree but that when West undid one of the handcuffs Phelps came at him and West panicked and shot him. Phelps was shot three times in the head — once in the chin, once in the back of the head and once behind the right ear.

Phelps’ body was found 200 yards in the woods behind the rest area later the same morning by two men who were searching for civil war relics. The jeep taken from Georgia was later found abandoned 12 miles south of Tallulah, Louisiana.

Brock used Phelps’ identification to pawn the car’s stereo equipment and other things of value at a pawn shop in Austin, Texas.

Brock and West split up, and West went to Chattanooga, Tennessee. On the evening of December 25, 1982 West voluntarily surrendered to local police authorities. At the time of his arrest West had on a suit and pair of shoes which were identified as belonging to Phelps.

West was turned over to the sheriff of Chattooga County, Georgia. Chattooga County was where the deaths of Odum and Scudder occurred. West gave two statements to the Georgia authorities, one on December 25 and one on December 27, in which he admitted the facts as noted above.

After being tried and convicted of the murders of Scudder and Odum in Georgia, West was turned over to Mississippi authorities for his trial in the death of Kirby Phelps. On September 26 the jury found West guilty as charged.

The jury found the aggravating circumstances outweighed the mitigating circumstances and imposed the death penalty.

This case must be reversed.

The appellant makes thirteen assignments of error, two of which specifically relate to references to the murders which occurred in Georgia. The opening statement of the district attorney advised the jury that the appellant had participated in killing two people in Georgia. These killings occurred thirty-six or more hours prior to the killing in Mississippi. Portions of confessions by West were also allowed into evidence which referred to the Georgia killings and robbery.

These two assignments of error will be considered first.

THE LOWER COURT ERRED IN REFUSING TO GRANT A MISTRIAL BASED ON THE COMMENT OF THE STATE IN OPENING STATEMENTS; AND

THE COURT ERRED IN ALLOWING TESTIMONY REGARDING CRIMES IN GEORGIA FOR WHICH HE WAS NOT ON TRIAL.

It is a well settled rule that evidence of other crimes than the one for which the accused is being tried is inadmissible. Mason v. State, 429 So.2d 569 (Miss.1983); Johnson v. State, 416 So.2d 383 (Miss. 1982); Gray v. State, 351 So.2d 1342 (Miss. 1977).

There are exceptions to this rule. As stated in Blair v. State, 445 So.2d 1373, 1375 (Miss.1984):

In general, the prosecution is not allowed to show a defendant committed crimes other than the one for which he is on trial. However,
... There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge.
Johnson v. State, 416 So.2d 383, 386 (Miss. 1982), quoting Gray v. State, 351 So.2d 1342 (Miss.1977).
In Oates v. State, 421 So.2d 1025, 1029 (Miss.1982), we implicitly extended this rationale to include statements made by the district attorney on opening statement.
We hasten to say, however, that reference to a crime other than that charged in the indictment is not proper in all multi crime situations, but is limited to those closely connected by a sequence of events within a short time span and are so intertwined that one cannot be reasonably extricated from the other.

The rationale of this rule is that the issue before the jury is singular and to allow other evidence would divert the jury’s attention and prejudice the accused. As said in King v. State, 66 Miss. 502, 506, 6 So. 188, 189 (1889):

The general rule is, that the issue on a criminal trial, shall be single, and that the testimony must be confined to the issue, and that on the trial of a person for one offense, the prosecution cannot aid the proof against him, by showing that he committed other offenses. Whart. Cr. Ev., § 104; 1 Bish. Cr. Pro., § 1120 et seq. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him.

In Neal v. State, 451 So.2d 743 (Miss. 1984) this Court held the evidence of two other murders admissible. The State felt that it had a legitimate interest in telling a coherent story of the murder of Amanda Joy Neal. The confession of Neal would have been incoherent unless the complete story were told. Amanda Joy Neal, it could be argued, was killed because she was an eyewitness to the killing of her father. The other victim was also an eyewitness and presumably was murdered to leave no witness to the killing which had occurred immediately before.

In Johnson v. State, 416 So.2d 383 (Miss. 1982) a police officer was killed acting in his official capacity. This Court held that evidence of the burglary and attempted rape of an elderly Walnut Grove resident was properly admitted. The police officer was found soon after the incident lying face down in front of his patrol car about fifteen yards from the home where the break in and attempted rape occurred. This Court held that testimony of the earlier incident was admissible to prove motive and to show identity, and was also admissible as part of the res gestae.

Although the killing of Kirby Phelps occurred within a context of the aftermath of other murders, there was a separation of time and motive which set these events apart. These events were not so interrelated that the killings in Georgia were a necessary part of the story which occurred in Mississippi.

Although Wells and Brock were fleeing the Georgia authorities and used a gun and handcuffs taken from their Georgia victims in the Mississippi killing, there was the independent motive of robbery to explain their actions. The reason for Phelps’ murder does not necessarily follow from the prior killings. The story of what happened in Mississippi is not incoherent standing alone and not so intertwined that it could not be separated.

It was unnecessary, prejudicial to the appellant, and contrary to well established law of this State to present evidence of the prior Georgia killings to the jury in this case during the guilt phase of the trial. For this reason this case must be reversed.

Appellant also assigns as error, committed in the sentencing phase of his trial, exhibiting to the jury of the Georgia convictions which recited that appellant had been found guilty of capital murder and sentenced to be executed. Although the part relating to the sentence had been scratched out by the judge, it was nevertheless readable upon close examination.

The error assigned is stated as follows:

THE COURT ERRED IN SENDING STATE’S EXHIBITS A, B, C AND D IN THE SENTENCING PHASE OF TRIAL TO THE JURY SINCE THESE EXHIBITS CAUSED A 10-2 JURY TO KNOW THAT DEFENDANT HAD ALREADY RECEIVED THE DEATH PENALTY IN GEORGIA.

That portion dealing with sentence should have been excised in such a manner that the jury could not determine by examination that the appellant had been sentenced to death. The reason is that if the jury knows that the appellant is already under a sentence of death it would tend to relieve them of their separate responsibility to make that determination.

This Court has considered the responsibility of the jury in the context of remarks by the prosecution that the decision of the jury is not the “last word” on the sentence of the accused.

In Wiley v. State, 449 So.2d 756, 762 (Miss.1984) the Court said:

The role of juror in a capital murder trial brings with it an awesome responsibility. Fortunately, few of us are ever required to make the decision whether to end another human being’s life; however, that is precisely the question confronting jurors following a guilty verdict in a capital case. Such decision is so ominous that it becomes almost trite to attempt to assess the introspection, concern, and solemnity that accompany it.
Because of the importance of the jurors’ deliberations we must be cautious in avoiding any actions which tend to reduce the jurors’ sense of responsibility for their decision. They must not be permitted to look down the road for someone to pass the buck to. Arguments by a prosecutor which relate to reviewability of a jury’s verdict have exactly this dangerous effect. Jurors faced with the protentous duty of deciding an accused’s fate will take comfort in the fact of review. They may view their role as merely advisory, a view that can prove fatal to an accused.
Under our law the jury is the sole player in the judicial process who may vote to send an accused to die. They alone make that determination and all review is then conducted with a presumption of its correctness. While a jury is not literally “the hangman,” only they may supply the hangman’s victims. All notions of justice require that the jurors as individuals, and as a body, recognize and appreciate the gravity of their role.

Also, in Williams v. State, 445 So.2d 798, 812 (Miss.1984) the Court said:

Sentencing a citizen to death is the responsibility vested by law in our juries. Any matter presented to such jurors which would allow them to shift their awesome responsibility to others is simply contrary to our law. That we have limited powers of appellate review in no way changes the fact that the primary and ultimate sentencing power is vested alone in the jury. We hold, therefore, that no argument may be made to the jury regarding appellate review of any other matter which might reasonably be expected to cause a juror to consider that he or she shares with anyone other than his or her eleven fellow jurors the responsibility of determining whether the defendant will be sentenced to death.

This jury should not have been given the false hope that their verdict was not the only and final determination of whether the death penalty would be imposed on West. The burden on the jury should not be lessened by reference to the actions of courts of review or, in this case, courts of other jurisdictions.

Appellant also assigns as error the following:

THE LOWER COURT ERRED IN REFUSING TO GRANT A CHANGE OF VENUE.

Mississippi Code Annotated section 99-15-35 (1972) requires that affidavits be filed in support of appellant’s motion for change of venue. None were filed in this case. This Court has held that this requirement is essential to the validity of the motion. Gentry v. State, 416 So.2d 650 (Miss.1982); Butler v. State, 320 So.2d 786 (Miss.1975); Fabian v. State, 267 So.2d 294 (Miss.1972); Wilson v. State, 234 So.2d 303 (Miss.1970); Thompson v. State, 231 Miss. 624, 97 So.2d 227 (1957); Purvis v. State, 71 Miss. 706, 14 So. 268 (1893). This defect in appellant’s motion was not noted by the trial court. The court considered and overruled the motion.

Assuming, but not deciding, that the motion is properly before the Court on review, it cannot be said that the court below erred. The matter of granting a change of venue is within the sound discretion of the trial judge. Myers v. State, 268 So.2d 353 (Miss.1972); Gallego v. State, 222 Miss. 719, 77 So.2d 321 (1955); Harrigill v. State, 381 So.2d 619 (Miss.1980); Billiot v. State, 454 So.2d 445 (Miss.1984). The refusal of a trial court to grant a change of venue will not be reversed unless it is shown that “there has been a clear abuse of discretion.” Saucier v. State, 328 So.2d 355, 357 (Miss.1976); Billiot, supra; Myers, supra,; Gallego, supra.

There was no error in denying appellant’s motion for a change of venue.

THE COURT ERRED IN FAILING TO GRANT DEFENDANT’S MOTION TO QUASH JURY PANELS.

In Myers v. State, 268 So.2d 353, 355-356 (Miss.1972) the Court stated that “the statutory method of selecting a jury is directory and unless there was fraud, or such a radical departure from the procedure prescribed by statute as to be unfair to the defendant or to prevent a fair trial or deny to him due process of law, the conviction will not be reversed.” As in Tolbert v. State, 402 So.2d 871 (Miss.1981) there was not assertion and nothing to indicate that the jury was biased, prejudiced or unfair in this case. All the United States Constitution or the Mississippi Constitution requires of a jury in a criminal case is that it be “impartial.” 402 So.2d 873. There is no merit to appellant’s assignment of error.

THE LOWER COURT ERRED IN DENYING THE MOTION FOR MISTRIAL BASED UPON THE EXTREMELY PREJUDICIAL REMARKS OF A PROSPECTIVE JUROR MADE BEFORE THE JURY PANELS.

As the record indicates, no objection was interposed by appellant’s counsel at the time the remark was made. The unsolicited question was not responded to and the jury was admonished to consider only the evidence developed during the trial. The juror also indicated that she could disregard whatever she may have read and reach a verdict based on the testimony and instructions.

There was no abuse of the trial judge’s discretion in overruling appellant’s motion.

THE LOWER COURT ERRED IN DENYING DEFENDANT’S MOTION FOR INDIVIDUAL VOIR DIRE.

Rule 5.02 Miss. Unif. Crim. R. Cir. Ct. Prac. (1979), provides:

In the voir dire examination of jurors, the attorney shall direct to the entire venire questions only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked.

Appellant’s contention that he should have been allowed to individually voir dire jurors out of the presence of the others is not supported by the decisions of this Court. The procedure followed by the trial court has been repeatedly upheld. Billiot v. State, supra; Speagle v. State, 390 So.2d 990 (Miss.1980); Gray v. State, supra; Peters v. State, 314 So.2d 724 (Miss. 1975).

There was no error in overruling appellant’s motion.

THE COURT ERRED IN FAILING TO FIND MISSISSIPPI’S DEATH PENALTY, AS APPLIED, UNCONSTITUTIONAL.

This same question was considered in Gray v. Lucas, 710 F.2d 1048 (5th Cir. 1983), cert. denied, — U.S.—, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983). In that case extensive medical testimony was submitted along with graphic descriptions by witnesses to executions by cyanide gas. The court of appeals rejected Gray’s argument and concluded:

Accepting Gray’s proffered facts as proven, we ultimately conclude that they do not as a matter of law establish the eighth amendment claim asserted by him and, therefore, no evidentiary hearing is required. Traditional deaths by execution, such as by hanging, have always involved the possibility of pain and terror for the convicted person. Although contemporary notions of civilized conduct may indeed cause some reassessment of what degree or length is acceptable, we are not persuaded that under the present jurisprudential standards the showing made by Gray justifies this intermediate appellate court holding that, as a matter of law or fact, the pain and terror resulting from death by cyanide gas is so different in degree or nature from that resulting from other traditional modes of execution as to implicate the eighth amendment right.

710 F.2d 1061.

There is no merit to appellant’s assignment of error.

THE COURT ERRED IN ALLOWING IMPROPER REDIRECT EXAMINATION of gary McConnell.

The testimony of Gary McConnell was offered by the state in rebuttal during the sentencing phase. Appellant contends it was error to allow McConnell to testify on redirect examination in reference to a portion of the alleged confession of West taken on December 25, 1982. McConnell had not testified on this material during direct examination and was allowed to testify on this point over the objection of appellant’s counsel.

The general rule is that redirect is limited to matters brought out on cross-examination. Cole v. Tullos, 228 Miss. 815, 90 So.2d 32 (1956). See Tucker v. Tucker, 74 Miss. 93, 19 So. 955 (1896). Here, the questions on redirect were in rebuttal to the questions of the defense on cross-examination, and the defense was also allowed to recross-examine the witness. Moreover, the trial court has broad discretion in allowing or disallowing redirect examinations of witnesses.

There was no error in the redirect examination of McConnell.

THE COURT ERRED IN ADMITTING INTO EVIDENCE THE ALLEGED DECEMBER 25, 1982, STATEMENT OF THE DEFENDANT.

The statement was tape recorded and later transcribed. When the transcript was offered into evidence there was an objection made that the transcript had not been authenticated by the person transcribing it and that it contained references to crimes for which the appellant was not on trial. Gary McConnell who was present when the tape recording was made testified that the transcript fairly and accurately depicted what was on the tape. McConnell also indicated where the tape had been from the time it was made.

Appellant’s contention that the transcript was not properly authenticated and that the chain of possession of the evidence was not established is contrary to the record.

THE COURT ERRED IN ALLOWING TONY GILLELAND TO READ FROM A DOCUMENT NOT IN EVIDENCE, WHICH HAD NOT BEEN AUTHENTICATED ON WHICH REFERRED TO CRIMES FOR WHICH THE DEFENDANT WAS NOT ON TRIAL.

The court in its ruling limited the introduction of this document to matters pertaining to this case and sustained appellant’s objection to those parts containing reference to occurrences in Georgia. The record does not support appellant’s contention.

THE COURT ERRED IN GIVING INSTRUCTIONS S-l-B, S-2-A and S-2-B AND SENTENCING INSTRUCTION S-l.

Appellant argues that since nothing was taken from the person or presence of Kirby Phelps before he was murdered there was no robbery and any reference to robbery is error. While appellant correctly states that one of the essential elements of robbery is that the taking must be from the person or presence of another, the fact that the murder occurred prior to the taking does not lessen the crime. In Cobern v. State, 273 Ala. 547, 142 So.2d 869, 871 (1962), the Court stated:

Nor, under the best reasoned authorities, does the fact that the victim was dead at the time of taking her property militate against the conclusion of robbery. If the intervening time between the time of the murder and the time of taking of the property formed a continuous chain of events, the fact that she was dead when he took the property could not absolve the defendant from the crime of robbery. Coe’s case [State v. Coe, 34 Wash. 2d 336, 208 P.2d 863], supra; Carey v. United States, U.S. Ct. of App., Dist. of Columbia Cir., 296 F.2d 422; Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965; People v. Jordan, 303 Ill. 316, 135 N.E. 729; State v. Covington, 169 La. 939, 126 So. 431.

In appellant’s other argument under this assignment appellant contends that it was error to give instruction S-l. His argument is that the state was doubling up the aggravating circumstances by telling the jury in part B that the jury could consider that the murder was committed in the course of the commission of a robbery and that the murder was for pecuniary gain.

The lower court’s ruling is consistent with prior holdings where the jury verdict was allowed to stand and similar instructions upheld. Tokman v. State, 435 So.2d 664 (Miss.1983); Smith v. State, 419 So.2d 563 (Miss.1982); Voyles v. State, 362 So.2d 1236 (Miss.1978); Bell v. State, 360 So.2d 1206 (Miss.1978).

There was no error in granting these instructions.

THE COURT ERRED IN FAILING TO SUPPRESS THE ALLEGED CONFESSIONS OF THE DEFENDANT.

West’s argument is that he was denied sleep by the Georgia authorities from the time he was taken into custody until he made the statements and that he does not recall making them.

The court found that the statements were voluntarily made and that West was alert. The court noted that West was not contesting the truthfulness of the statements but only the voluntariness of his statements.

The trial court in this case was called on to make a factual determination, and this Court will not overturn a finding of fact made by a trial judge unless clearly erroneous. Neal v. State, 451 So.2d 743 (Miss.1984); cf. Ratliff v. State, 317 So.2d 403 (Miss.1975); Hall v. State, 427 So.2d 957 (Miss.1983).

All the officers present at the time the statements were taken testified at trial and apart from appellant’s testimony there was no indication that the confessions were not voluntarily made.

The State followed the procedure that requires that all persons present at the taking of a confession must testify when its free and voluntary character is in question. Kelly v. State, 414 So.2d 446 (Miss. 1982); McLeod v. State, 317 So.2d 389 (Miss.1975); Nabors v. State, 293 So.2d 336 (Miss.1974); Stevens v. State, 228 So.2d 888 (Miss.1969); Scott v. State, 382 So.2d 1091 (Miss.1980). The finding of the trial judge was not erroneous.

For the reasons stated above this case is reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION, et al. v. MUNICIPAL ENERGY AGENCY OF MISSISSIPPI.
    No. 55762.
    Supreme Court of Mississippi.
    Jan. 23, 1985.

      Bennett E. Smith, Jackson, for appellants.
    David R. Hunt, Sullivan, Hunt, Spell & Henson, Clarksdale, for appellee.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Leflore County, Mississippi wherein summary judgment was granted upon motion of appellee, Mississippi Energy Agency of Mississippi (hereinafter MEAM). Cross motion of appellant, Mississippi Public Service Commission (hereinafter PSC) for summary judgment was denied.

MEAM is a political subdivision of the State of Mississippi organized to supply electric power and energy to the cities of Canton, Clarksdale, Durant, Greenwood, Itta Bena, Kosciusko, Leland and Yazoo City. MEAM was created as a joint agency pursuant to section 9(1) Chapter 363, Mississippi Law 1978.

Mississippi Code Annotated section 77-5-713 (Supp.1984) of that Act made provision for application for licenses, permits, certificates or approvals. That section further stated in part:

... provided, however, nothing herein contained shall be construed to require a municipality to obtain any license, certificate, permit, or approval from the public service commission of Mississippi.

In Mississippi Code Annotated section 77-5-725(r) (Supp.1984) under “Rights and powers of joint agencies”, it is provided:

(r) To apply to the appropriate agencies of the state, the United States or any state thereof, and to any other proper agency for construct, maintain and operate projects in accordance with, and to obtain, hold and use, such licenses, permits certificates or approvals in the same manner as any other person or operating unit of any other person; provided, however, nothing herein contained shall be construed to require the joint agency to obtain any •permit, license, certificate or approval from the public service commission of Mississippi.

The question presented on this appeal is whether or not the Municipal Energy Agency of Mississippi (MEAM) must obtain a certificate of public convenience and necessity from the Mississippi Public Service Commission for the purpose of construction of electric generating facilities.

LEGISLATIVE HISTORY

In 1956 the Mississippi Legislature enacted the Public Utilities Act to vest authority in the PSC to regulate certain public utilities. Mississippi Code Annotated section 77-3-11(1) (1972) of the Act required a certificate of public convenience and necessity be obtained from the commission before the beginning of construction of facilities to generate, transmit, or distribute electric energy. However, Mississippi Code Annotated section 77-3-1 (1972) specifically exempts public utilities owned or operated by a municipality from the provisions of the Act, except as to extension of utilities greater than one mile outside the corporate boundaries. That exemption was carried forward in the Act through the last amendment in 1983. In 1983 there was enacted section 77-3-14 (a new section), which provides:

(1) Notwithstanding the provisions of section 77-3-11 and section 77-3-13, no public utility or other person shall begin the construction of any facility for the generation and transmission of electricity to be directly or indirectly used for the furnishing of public utility service in this state, even though the facility be for furnishing the service already being rendered, without first obtaining from the commission a certificate that the public convenience and necessity requires, or will require, such construction.

If there were no other statutory provision to consider, it would appear obvious that all generation and transmissions of electricity would come under the authority of the Public Service Commission.

The controlling rule of construction dispositive of this case is that each section of the Code dealing with the same or similar subject matter must be read in pari materia and to the extent possible each section of the Code must be given effect so that the legislative intent can be determined. Atwood Chevrolet-Olds, Inc. v. Aberdeen Municipal School District, 431 So.2d 926 (Miss.1983); Lamar County School Board of Lamar County v. Saul, 359 So.2d 350 (Miss.1978). It is clear that the Legislature created the Public Service Commission for the purpose of overseeing and regulating various public utilities, including the generation and transmission of electricity by the enactment of the original Public Utility Act in 1956 and subsequent amendments thereto.

When the original Public Utility Act became law, it contained a provision codified as Mississippi Code Annotated section 77-3-1 (1972) which provides:

Any public utility as defined in paragraph (d) of section 77-3-3, owned or operated by a municipality shall not be subject to the provisions of this article, except as to extension of utilities greater than one mile outside corporate boundaries after March 29, 1956.

This section exempts municipalities from the provisions of the Act.

At that time the generation of electricity by the joint efforts of several municipalities had not come into being in this State.

However, as above outlined, in 1978 the Legislature authorized two or more municipalities to join together for the purpose of owning and operating jointly, among themselves or others, facilities for the generation and transmission of electric power and energy. That Act specifically provided under Mississippi Code Annotated section 77-5-779 (Supp.1984) the following:

The foregoing sections of this article shall be deemed to provide an additional, alternative and complete method for the doing of the things authorized thereby and shall be deemed and construed to be supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing; provided, however, that insofar as the provisions of this article are inconsistent with the provisions of any other general, special or local law, the provisions of this article shall be controlling. Nothing in this article shall be construed to authorize the issuance of bonds for the purpose of financing the ownership of any facilities or any interest therein by any private corporation.

That provision of the joint municipal electric power and energy Act has been carried forward and is still in force and effect. In addition to that section bearing on the subject, the Legislature in 1984 amended section 77-5-725 entitled “Rights and powers of joint agencies” (MEAM) with respect to a matter not related to the issue presented in this opinion, and in doing so, carried forward that part of section 77-5-725(r) which provides:

To apply to the appropriate agencies of the state, the United States or any state thereof, and to any other proper agency for such permits, licenses, certificates or approvals as may be necessary, and to construct, maintain and operate projects in accordance with, and to obtain, hold and use, such licenses, permits, certificates or approvals in the same manner as any other person or operating unit of any other person; provided, however, nothing herein contained shall be construed to require the joint agency to obtain any permit, license, certificate or approval from the public service commission of Mississippi.

Therefore, applying the governing rules of construction that every statute must be given meaning unless found to be in hopeless conflict with another statute, we are of the opinion that the Act authorizing the creation of the municipal energy agency of Mississippi clearly specifically exempts the agencies created under the Act from obtaining a certificate of public necessity and convenience from the Mississippi Public Service Commission prior to the construction of facilities for the generation or transmission of electricity by such agencies.

Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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


author: SULLIVAN, Justice,

text:
    Leonard Roosevelt BAILEY v. STATE of Mississippi.
    No. 54572.
    Supreme Court of Mississippi.
    Jan. 30, 1985.

      Wade M. Baine, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., SULLIVAN and ANDERSON, JJ., and SUGG, Retired Supreme Court Justice

      . Sitting pursuant to Mississippi Code Annotated, Section 9-3-6 (Supp.1984).

   SULLIVAN, Justice,

for the Court:

I.

Leonard Roosevelt Bailey was convicted in the Circuit Court of Harrison' County, Mississippi, of burglary of a dwelling and was sentenced as an habitual offender to ten years imprisonment without parole. On appeal, he contends that he was deprived of his right to a speedy trial. We reverse on this issue, and thus we do not reach Bailey’s contention regarding depri-val of assistance of counsel and allegedly improper remarks by the prosecutor.

On April 10, 1981, Bailey was on parole from a controlled substance conviction. Aboút 9:30 that evening, David Gammel drove up to his home in Gulfport to discover a burglary in progress. He chased an automobile from the scene, which was later identified as Bailey’s, and he testified that he saw Bailey in his headlights for about five or ten seconds during that chase. Gulfport police detective Ford found Bailey’s automobile abandoned on a street corner in Gulfport. As Ford prepared to have the vehicle towed to the police station, a pickup truck with three men drove up, and Bailey got out. Ford placed Bailey under arrest.

Bailey’s parole was revoked as a result of this arrest on burglary charges, and he was returned to Parchman in April of 1981 to serve out the remainder of his sentence for the controlled substance conviction.

He appealed to the Parole Board at Parchman and was informed that until the detainer warrant lodged against him by the Sheriff of Harrison County was removed, he would not be eligible for parole. On July 24, 1981, Bailey mailed to the sheriff and the district attorney of Harrison County a document styled “Demand to be returned for trial/motion to dismiss/demand for trial/motion for appointment of counsel.” This document was prepared by the prison law library staff and contained an affidavit reciting the adverse conditions imposed on prisoners by detainers. This statement reads:

EFFECTS OF DETAINER: The detainer interferes with Affiant’s opportunities to participate in such programs as might decrease the length of his present term of confinement, or render the serving of it more bearable in that
(a) Mississippi Department of corrections inmates who have detainers lodged against them have reduced chances of being elevated to trusty status, and thus may lose opportunities to earn additional good-time or earned-time sentence reductions;
(b) Such inmates may not participate in the work-release program;
Furthermore, if affiant is held without trial on said detainer until his current sentence is completed, he will lose forever the chance that a sentence arising out of the detainer charge can be made to run concurrently with his present sentence.
The detainer, being unresolved, is a source of great anxiety to your affiant, causing him unrest and inability to plan for his future.

This document was filed with the Circuit Court of Harrison County on July 31, 1981, and was placed in Bailey’s controlled substance conviction file. Almost three months later, on September 24, 1981, the Harrison County Grand Jury indicted Bailey for burglary and as an habitual criminal. Detective Ford, the case officer, knew from having testified at the parole revocation hearing that Bailey had been returned to Parchman, yet no effort was made to serve Bailey with an arrest warrant or a copy of the indictment at Parchman.

On February 26, 1982, Bailey was released from Parchman and returned to Gulfport. He was arrested on March 29, 1982, and charged with the April, 1981, burglary. At arraignment on April 7,1982, he pled not guilty. His trial began on May 19, 1982.

A pretrial hearing was held on Bailey’s motion to dismiss for lack of a speedy trial. Bailey, an illiterate, testified that the Parchman Parole Board told him that the only way he would become eligible for parole again was to file a motion for speedy trial in order to remove the detainer. He did so in July, 1981, but when he heard nothing from Harrison County during the remaining seven months of his sentence, he assumed that the charges against him had been dropped. He testified that because no action was taken on his motion for appointment of an attorney and his demand for trial, he had been unable to locate several witnesses with information regarding the theft of his car on the night of the burglary. He had the names and street addresses of two people who knew about the theft of his car from letters he had received while he was in Parchman, which were read to him. When no response was made to his demand for a speedy trial, and operating on the assumption that charges must have been dropped against him, Bailey threw the letters away when he was released from Parchman.

Bailey’s father, Leonard Bailey, Sr., testified that on the evening of the Gulfport burglary his son was with him in Biloxi until Bailey, Sr. dropped him off near his home in Gulfport, whereupon Detective Ford arrested the defendant. Mr. Bailey could not directly confirm his son’s assertion that the younger Bailey’s car had been stolen.

The trial judge denied Bailey’s motion to dismiss on the ground that he was being tried within 270 days, not only of arraignment but of indictment. Further, the trial judge found that Bailey failed to demonstrate prejudice resulting from the delay. Bailey was then tried and convicted of burglary of a dwelling and was sentenced to ten years imprisonment without parole. Bailey was convicted more than a year after the crime had occurred.

II.

Dispositive of Bailey’s contention that he was denied the right to a speedy trial is our decision in Perry v. State, 419 So.2d 194 (Miss.1982). We reviewed the purposes of the speedy trial guarantee including enhancing the factfinding process by making more likely the ready availability of evidence and witnesses, preventing oppressive pretrial incarceration, and preventing the ineligibility of parole and meaningful rehabilitation for an accused who is in prison while charges are pending. Id. at 197-98.

We also set forth two distinct bases in law supporting a defendant’s right to a speedy trial, each of which is triggered by a different event. First, there is the statutory requirement found in Mississippi Code Annotated § 99-17-1 (Supp.1984), that, unless good cause be shown, an accused shall be brought to trial no later than 270 days from the date of the arraignment. Under this statute, any time prior to arraignment is not included to determine compliance with the statute. Davis v. State, 406 So.2d 795 (Miss.1981). In this case 42 days elapsed from the arraignment until the trial. In Perry’s case, 47 days elapsed from arraignment to trial. In both instances the state complied with the 270 day maximum period allowed by § 99-17-1. This is not, therefore, a 270-day rule case.

We pointed out in Perry v. State that compliance with the statute does not necessarily mean that the accused’s constitutional right to a speedy trial has been respected:

Obviously, if arraignment is delayed for a long period of time following arrest, or indictment, or charge, an accused’s right to a speedy trial could be denied even though there was strict compliance with the requirements of § 99-17-1.

419 So.2d at 198.

This Court must intervene to protect constitutional rights where the legislative requirements are inadequate.

The constitutional right to a speedy trial, unlike § 99-17-1, “attaches at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge, [citations omitted].” Perry, 419 So.2d at 198. We concluded in Perry that the constitutional right to a speedy trial attaches when a person has been accused, and that the lodging of a detainer against a prisoner suffices to make him an accused. Id. Thus, Bailey’s constitutional right to a speedy trial was likewise triggered when the detainer was lodged against him in Parchman. From the record it is apparent that the detainer was filed against Bailey prior to July 24, 1981, when he mailed his demand for trial to the sheriff and district attorney.

When the constitutional right to a speedy trial attaches, we are required to apply the balancing test found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine if the right to a speedy trial has been denied. Wells v. State, 288 So.2d 860 (Miss.1974). The Barker decision lists four factors to be considered:

1. Length of delay; 2. reason for the delay; 3. the defendant’s assertion of his right to a speedy trial; and 4. prejudice resulting to the defendant.

These factors are to be considered together with no one of them to be completely dispositive by itself.

1. Length of Delay:

Bailey became an accused as to the Harrison County burglary charges when a de-tainer was lodged against him at some point prior to his demand for trial on July 24, 1981. His trial took place on May 19, 1982. Using these two dates, the minimum delay Bailey experienced was 298 days, or almost ten months. In Perry, the delay was 19 months, or 566 days. Although that delay was nearly twice as long as in this case, Bailey’s trial was nonetheless delayed for almost ten months from his demand for trial, which is not an insubstantial period of time.

2. Reason for the Delay:

We noted in Perry that if the defendant causes the delay he will not be allowed to complain. Where the prosecution causes the delay unintentionally because of an overcrowded docket or understaffed prosecutors, this factor will not be weighed as heavily as where the delay is intended to injure the defendant’s case. However, we said in Perry that where the defendant has not caused the delay, and where the prosecution has declined to show good cause for the delay, this factor must be weighed against the prosecution. 419 So.2d at 199.

The state urges that good reason was shown for the delay in that the grand jury did not convene in Harrison County until September, 1981. In Macon v. State, 295 So.2d 742 (Miss.1974), and Diddlemeyer v. State, 398 So.2d 1343 (Miss.1981), we held that, in the absence of a showing of prejudice to the defendant, a delay attributable solely to this cause does not violate the defendant’s right to a speedy trial. Another reason for the delay was that the state failed to serve Bailey with a copy of the warrant and indictment in September, 1981, even though the case officer knew Bailey’s parole had been revoked and he had been returned to prison. In Barker v. Wingo, the Supreme Court said:

A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.

Id. 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. Therefore, we must consider the delays in this case caused by the state with the reminder that prejudice must be shown for Macon and Diddlemeyer not to apply.

3. The Defendant’s Assertion

of his Right:

Bailey, like Perry, asserted his right to a speedy trial and to appointed counsel by mailing a demand for same to the sheriff’s department and to the district attorney. In Perry, we held that mailing the document to the sheriff rather than to the circuit court was sufficient to assert his right, since it was the sheriff’s detainer that was holding the accused. We have previously stated that the state may not neglect or ignore the defendant’s request to be brought to trial. Cummings v. State, 219 So.2d 673, 675 (Miss.1969).

4. Prejudice to the Defendant:

Bailey was prejudiced by serving approximately IOV2 months in Parchman without the opportunity to participate in rehabilitation programs due to the pending burglary charges. In Perry, we rejected the claim of loss ,of opportunity for concurrent sentences as Bailey asserts here because Mississippi Code Annotated § 99-19-21 (1972), permits concurrent sentences only where the defendant is sentenced on two separate convictions at the same term of court. 419 So.2d at 199-200.

Bailey also argued the loss of opportunity to locate witnesses who disappeared pri- or to his trial. In Barker v. Wingo, supra, the Supreme Court noted that: “If witnesses die or disappear during a delay, the prejudice is obvious.” 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. The trial court concluded that Bailey did not demonstrate prejudice because he had three alibi witnesses who placed him away from the scene of the crime. Bailey argued at his pretrial hearing that two named witnesses had information regarding the theft of his car on the night of the burglary. Without an explanation of why Bailey’s car was used in the burglary, his alibi witnesses were of little use.

In balancing these factors, the length of delay, while not as protracted as in Perry, was nonetheless significant. The reason for the state’s failure to respond to Bailey’s request for trial was unsatisfactorily explained, since the state contended that it had no duty to respond to a matter for which Bailey had been detained but not indicted. The assertion of Bailey’s right to a speedy trial is plainly in the record, and was neglected or ignored by the state.

Finally, the prejudice to Bailey was threefold; he was ineligible for parole and disqualified from participating in rehabilitation programs because of the detainer. He was also unable to properly locate witnesses that would have substantiated his defense that someone stole his car and performed the burglary. The demonstrated prejudice in this case makes our holdings in Macon and Diddlemeyer distinguishable.

We find, therefore, that Bailey has presented a valid claim that he has been denied the right to a speedy trial under Barker v. Wingo, as applied in Perry v. State. When a defendant’s constitutional right to a speedy trial has been violated, the sole remedy is to reverse the conviction and dismiss the charges. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Turner v. State, 383 So.2d 489 (Miss.1980); Perry v. State, 419 So.2d 197.

Each case must rest on its own factual bottom and we hold that the facts of this case are indistinguishable in any material particular from Perry v. State. We conclude that there has been a clear violation of the defendant’s constitutional right to a speedy trial, and, therefore, the defendant must be discharged.

Having discharged the defendant on the speedy trial issue, the other issues of right to counsel and the prosecutor’s closing argument need not be addressed.

REVERSED AND DEFENDANT DISCHARGED.

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

      . Bailey was sentenced on July 26, 1982, prior to the effective date of the amended version of § 99-19-21 (Supp.1984), which reads:
      § 99-19-21. Sentence-prison terms to run consecutively unless imposed concurrently.
      When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.
      This amended statute, effective from and after March 14, 1983, does not expressly permit concurrent sentences only where the defendant is sentenced in two separate convictions at the same term of court.


author: ROBERTSON, Justice,

text:
    Alfonso WILLIAMS and Larry Williams v. STATE of Mississippi.
    No. 55188.
    Supreme Court of Mississippi.
    Jan. 30, 1985.

      Travis T. Vance, Jr., Eugene A. Perrier, Vance & Perrier, Vicksburg, for appellants.
    Edwin Lloyd Pittman, Atty. Gen. by Anita Mathews Stamps and DeWitt Allred, Sp. Asst. Attys. Gen., Jackson, for appellee.

      Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This case involves two brothers who were engaged in a small-time sale of an illegal controlled substance. On sharply conflicting evidence, the jury convicted and under our established rules applicable when we are considering on appeal the sufficiency of the evidence to support jury verdicts, we must affirm. In this sense, this case is unremarkable.

Here as in many other drug cases we find the State developing its case and presenting its evidence at trial through the use of a confidential informant. There is a disquieting feature of such activity in this case in that the informant, an ex-drug offender himself, was paid on a contingency fee basis. The potential for a miscarriage of justice in such cases is obvious.

Upon mature consideration of the matter, however, we have concluded that so long as the full facts and circumstances of the State’s arrangement with its “bounty hunter” are disclosed to the jury, we will not disturb a subsequent conviction. Here as elsewhere the question of the credibility of witnesses is uniquely within the province of the jury. Because the circumstances involving the paid confidential informant here were submitted to the jury, we affirm.

II.

A.

Larry and Alfonso Williams have been convicted of the sale of an illegal controlled substance, to-wit: marijuana in violation of Miss.Code Ann. § 41-29-139(a)(l) (Supp. 1984). That statute makes it unlawful in this state for any person to “sell, barter, [or] transfer” marijuana.

At the outset we note that substantial knowing participation in the consummation of a sale or in arranging for the sale may render one guilty of the illegal sale of unlawful controlled substances within Section 41-29-139. One who aids and abets another in such a context is an accessory before the fact and is guilty as a principal. Sanders v. State, 439 So.2d 1271, 1275 (Miss.1983); McGowan v. State, 375 So.2d 987, 990 (Miss.1979); Landers v. State, 304 So.2d 641, 642 (Miss.1974).

Moreover, the mere fact that no profit has been earned on the sale avails defendant nothing. In Boone v. State, 291 So.2d 182 (Miss.1974), the Court noted

It is certainly true that the defendant did not realize a profit on the transaction but Miss.Code Ann. § 41-29-139(c)(2) (1972) does not contemplate that the seller must realize a profit in order to be guilty of the sale of a controlled substance. The statute simply says that the crime occurs whenever a controlled substance is transferred or delivered in exchange for remuneration, whether in money or other consideration. 291 So.2d at 184.

B.

These principles well in mind, we consider the evidence, as we must, in the light most favorable to the State. On February 11, 1983, narcotics agent Bill Mayo and paid confidential informant Billy Saul-ters asked Alfonso Williams and Larry Williams to locate for them a quarter pound of marijuana. Prior to that time, Saulters had made the acquaintance of Larry Williams. Larry had subsequently introduced Alfonso, his brother, to both Agent Mayo and the confidential informer Saulter.

On February 11, 1983, the Williams brothers met with Mayo and Saulter in Vicksburg, Mississippi. Based on previous discussions between Alfonso and Mayo, the purpose was to consummate the purchase of marijuana. The Williamses instructed Mayo and Saulters to follow them, each twosome in their respective automobiles.

A short time later, the cars stopped and Larry got out of Alfonso’s car and got into the car with Agent Mayo. Alfonso was gone about twenty minutes and returned with an unidentified person, each in his respective car. During the interim, Larry conferred with Mayo and Saulters and assured them of the quality and quantity of the anticipated marijuana and also quoted the price of $210.00 for a quarter pound of the substance.

Upon Alfonso’s return, Agent Mayo and Saulter got out and transacted the sale with Alfonso and the unidentified person. Agent Mayo took the money out of his pocket and handed it to Alfonso who appeared to count it and then threw it on the seat of his car. Alfonso’s unidentified companion consequently handed him a brown bag containing the subject controlled substance. Agent Mayo and Saulter then proceeded back to their car, while Larry joined his brother Alfonso and the other unidentified person. The sales transaction was completed.

On the witness stand, Larry Williams acknowledged that all four men went in search of the subject drug and that the transaction was physically made between Mayo and Saulter, who paid consideration, and Alfonso and the unidentified individual, who gave them, in exchange, 2.8 ounces of marijuana. Alfonso Williams admitted that he had arranged the whole scenario.

C.

On June 5, 1983, the Grand Jury of Warren County returned an indictment charging Alfonso Williams and Larry Williams with the sale and transfer unto Bill Mayo of an illegal controlled substance, to-wit: 97 grams of marijuana for the sum of $190.00, in violation of Miss.Code Ann. § 41-29-139 (1972).

The case was called for trial in the Circuit Court of Warren County, Mississippi, on June 28, 1983. The defense offered by the Williamses were that they had been engaged by Saulters to work for the State, that they indeed set up the sale in order to enable the authorities to “bust” the unidentified third person, and that Saulters had doublecrossed them by implicating them in an illegal controlled substances transaction.

The case against Larry Williams and Alfonso Williams was presented to the jury which in due course found each guilty of the sale of more than one ounce of marijuana as charged in the indictment. On June 30, 1983, each of the William's brothers was sentenced by the Circuit Court to serve a term of three years in the custody of the Mississippi Department of Corrections. Miss.Code Ann. § 41-29-139(e)(2)(C).

Following denial of the usual post-trial motions, this appeal has been timely perfected.

III.

The Appellants Williams challenge the sufficiency of the evidence to support their respective convictions of the sale of marijuana. In so doing each appeals the trial court’s denial of his alternative post-trial motions for judgment of acquittal notwithstanding the verdict or for a new trial.

The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the evidence supporting the verdict of guilty. Where a defendant has moved for, the trial court must consider all of the evidence — not just the evidence which supports the State’s case — in the light most favorable to the State. Pharr v. State, 465 So.2d 294, 301 (Miss.1984); May v. State, 460 So.2d 778, 781 (Miss.1984); Sadler v. State, 407 So.2d 95, 97 (Miss.1981). The credible evidence which is consistent with the verdict must be accepted as true. Spikes v. State, 302 So.2d 250, 251 (Miss.1974).

The State must be given the benefit of all reasonable inferences that may be drawn from the evidence and which are consistent with the verdict. Glass v. State, 278 So.2d 384, 386 (Miss.1973). If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion is required. Pharr v. State, 465 So.2d at 301; May v. State, 460 So.2d at 781. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury’s verdict allowed to stand. Pharr v. State, 465 So.2d at 301; May v. State, 460 So.2d at 781.

In other words, once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part from that the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical jur- or could find beyond a reasonable doubt that the defendant was guilty. Fairchild v. State, 459 So.2d 793, 798 (Miss.1984); May v. State, 460 So.2d at 781; Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). When we apply this standard to the evidence in the record, we may only state that the trial judge correctly denied both Larry Williams and Alfonso Williams request for a peremptory instruction as well as the subsequent motion of each for judgment of acquittal notwithstanding the verdict of the jury.

The motion for a new trial is somewhat different. That motion is addressed to the sound discretion of the trial court. Pharr v. State, 465 So.2d at 301-302; Fairchild v. State, 459 So.2d at 798-99; Neal v. State, 451 So.2d 743, 760 (Miss. 1964). Under our practice, the trial court, in its discretion, may grant a new trial if such is required in the interest of justice or if the verdict is contrary to law or the weight of the evidence. Rule 5.16, Unif. Crim.R. of Cir.Ct.Prac.; Neal v. State, 451 So.2d at 760; Fairchild v. State, 459 So.2d at 799. Having due consideration for the controlling substantive rules of law and their application to the evidence recited at the outset of this opinion, we hold that the trial judge acted well within his discretion when he denied the separate motions of Larry Williams and Alphonso Williams for a new trial.

IV.

The relationship between the State and the confidential informant Billy Saulters calls for a special comment. The evidence reflects that Saulters is a past drug offender himself who has done time in the Mississippi State Penitentiary. Saulters for all practical purposes had become a bounty hunter for the State who was paid by the scalp. Unlike many other undercover agents or confidential informants who are paid on a straight salary, or nothing at all, the evidence reflects that Saulters was paid on a per bust basis with the amount of his fee to escalate as the type of illegal controlled substance involved increased in perceived dangerousness.

The record further reflects that, upon his release from custody, Saulters had had a difficult time securing employment. He had to work as the State’s paid bounty hunter because he could find no other work. Indeed it appears that Saulters had the strongest possible motivation for arranging a significant number of drug “busts” per month — he had no other way to feed and financially support his family.

It goes without saying that the credibility of the testimony of such a witness is a matter of serious concern. Beyond that, we find little uplifting in the State’s decision to enter into such an unseemly arrangement with an ex-convict. In this context, we have considered carefully whether we ought to sanction convictions obtained through the employment of the services and, particularly, the testimony of such drug bounty hunters.

We find in the State of Florida the reversal of a drug conviction because the state used a confidential informant paid on a contingency fee basis. State v. Glosson, 441 So.2d 1178 (Fla.Dist.Ct.App.1983). It is tempting to second the statement of the Glosson Court that:

We cannot tolerate such behavior under our system of constitutional protections. 441 So.2d at 1179.

We find also that the United States Court of Appeals for the Fifth Circuit has traditionally taken the position that contingency fee confidential informants are almost as detestable as the drug offenders they would ferret out. Williamson v. United States, 311 F.2d 441 (5th Cir.1962), holds that, in the absence of justification or explanation, a conviction based on evidence of an informer hired under a contingent fee arrangement may not stand. In condemning this practice the Fifth Circuit observed “the opportunities for abuse [in this practice] are too obvious to require elaboration”. 311 F.2d at 444.

Beyond these cases, we find little support for the cause of Larry and Alfonso Williams on this issue. Williamson has been severely restricted by the Fifth Circuit in recent years. United States v. Lane, 693 F.2d 385, 388 (5th Cir.1982). It is now limited to situations where the specific defendant was picked out for the informer’s efforts by a government agent. Brown v. Edwards, 721 F.2d 1442, 1454 (5th Cir.1984). It does not appear that Williamson has been followed in any other circuit, or that it has been sanctioned by the Supreme Court of the United States.

Turning to our own law, we find first that our legislature has authorized the payment of confidential informants. Miss. Code Ann. § 41-29-160 (1972) provides, in pertinent part:

The director [of the Mississippi Bureau of Narcotics] is authorized to pay any person such sum or sums of money as he may deem appropriate for information concerning a violation of this article from funds appropriated for the Bureau of Narcotics.

Nothing in the statute prohibits a contingency compensation arrangement.

This Court has had frequent occasions to affirm criminal convictions obtained through the efforts of informants employed by police to purchase narcotics from persons suspected of involvement in illegal controlled substances. See Alston v. State, 258 So.2d 436, 438 (Miss.1972); Howell v. State, 246 So.2d 95, 96 (Miss.1971).

It is generally recognized that the prosecuting authorities may use informants and pay them, in that it is often necessary for the government to use artifices and strategem to ferret out criminal activities. United States v. Ramirez, 710 F.2d 535, 541 (9th Cir.1983) (citing Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932)).

Having due regard for the difficulties confronting law enforcement officers with respect to the enforcement of our laws respecting the sale of controlled substances, Miss.Code Ann. §§ 41-29-101, et seq. (Supp.1984), we would be remiss in our duties were we to bar the testimony of contingency fee informants.

There is an antidote for the legitimate concern regarding the credibility of such witnesses which is consistent with the public interest in effective law enforcement. The function of judging the credibility of witnesses has historically been vested in the trier of the facts. Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). In criminal prosecutions, of course, that is the jury. Warren v. State, 456 So.2d 735, 738 (Miss.1984); Browning v. State, 450 So.2d 789, 791 (Miss.1984); Pate v. State, 419 So.2d 1324, 1326 (Miss.1982); McCormick v. State, 279 So.2d 596, 597 (Miss. 1973). Where, as here, the full facts and circumstances of the State’s arrangement with its bounty hunter witness are disclosed to the jury and where that witness is subject to cross-examination we will not disturb on this account a subsequent guilty verdict. The conduct of the Bureau of Narcotics will have to reach a level of outrageousness not present here before we will consider and take further action.

AFFIRMED

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