text:
    Kwasi Morila SEITU v. STATE of Mississippi.
    No. 54301.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Firnist J. Alexander, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben Anderson, Judge.

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

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Bobby J. BROOKS v. STATE of Mississippi.
    No. 54313.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Bobby J. Brooks, pro se.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

Affirmed.


text:
    James Ferrell COLEMAN v. STATE of Mississippi.
    No. 54381.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Van Slyke, Gaddis & Stewart, Jefferson B. Stewart, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

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

Affirmed.


text:
    E.J. HOLLIS and United States Fidelity & Guaranty Co. v. Jerry Earl JEFFERSON.
    No. 54284.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    John Paul Moore, Starkville, for appellants.
    Ben F. Hilbun, Jr., Starkville, for appel-. lee.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

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

Affirmed.


text:
    Thomas S. WEEMS, Jr. v. Connie DeLASHMET (Weems).
    Nos. 53764, 54608.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Beach, Luckett & Ross, Stephen L. Beach, III, Jackson, for appellant.
    George E. Agnew, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

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

Affirmed.


text:
    Quinn ALLEN v. Janet Marie HOWARD, Mother & Next Friend.
    No. 53862.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Felts, Russell, Adams & Lueckenbach, Nathan P. Adams, Jr., Greenville, for appellant.
    Dyer, Dyer & Dyer, Gaines S. Dyer, Greenville, for appellees.
   Appeal from County Court, Washington County; Joseph E. Wroten, Judge.

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

Affirmed.


author: ROBERTSON, Justice,

text:
    Stevie Joe SANDERS v. STATE of Mississippi.
    No. 54320.
    Supreme Court of Mississippi.
    Aug. 10, 1983.

      Maynard, Fitzgerald & Bradley, Richard B. Lewis, Thomas H. Pearson, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

The Circuit Court of Coahoma County, Mississippi, has developed a rather formal and generally laudable procedure for handling guilty pleas in criminal cases. Each defendant wishing to enter the plea must complete a form entitled “Confession of Guilt and Petition of Defendant for Court to Accept Plea”. He must then file it with the clerk of the court. The form includes, among other things, a paragraph requiring that the accused confess his guilt to the crime to which he is pleading guilty.

Stevie Joe Sanders was indicted for the crime of robbery. On the afternoon of February 10, 1982, after consultation with his attorneys, Sanders decided to plead guilty. He completed the standard petition form which, as indicated above, contained an admission that he was guilty of the crime of robbery. Miss.Code Ann. § 97-3-73 (1972).

Later that same evening, Sanders changed his mind. He decided that he would not plead guilty but would claim his constitutional right to trial by jury. Notwithstanding, the petition is marked “Filed” on the date of February 11, 1982, and is signed by Sanders’ attorney and by a deputy circuit clerk. Because of Sanders’ change of heart, of course, the guilty plea was never accepted by the trial court.

On July 28,1982, Sanders was put to trial before a circuit court jury. In the course of that trial, the state offered as evidence the confession portion of the guilty plea form. Via a pretrial motion to suppress as well as timely objection at trial, Sanders had urged that, because he had withdrawn the guilty plea, no part of the form should be admissible against him. The trial court, however, excised those portions of the form dealing with the plea of guilty but received into evidence the remaining portion of the form which amounted to a confession of guilt.

In due course, Sanders was found guilty of robbery. He was later sentenced to serve a term of fifteen (15) years in the custody of the Mississippi Department of Corrections. On this appeal, he assigns numerous errors, only one of which — that relating to the admission of the “Confession of Guilt” portion of the guilty plea petition — we need discuss.

This case is controlled by Rule 3.03(6) of the Uniform Criminal Rules of Circuit

Court Practice. That Rule provides in relevant part

Inadmissibility of withdrawn guilty plea. The fact that the defendant may have entered a plea of guilty to the offense charged, and later withdrew the plea, may not be used against him in a subsequent trial of the cause.

Engaging in a bit of judicial legerdemain, the trial judge held, first, that the guilty plea had never been formally tendered, and, second, in any event, that the only portion of it being received into evidence was the confession of guilt, not the plea of guilty. This reasoning is disingenuous at its best. The context in which Sanders signed the form was his consideration, after consultation with his attorney, that he would enter a plea of guilty. He later changed his mind, which was certainly his prerogative, and decided not to plead. Nothing in our disposition of the issue tendered here turns on how we may characterize this change of mind — as a decision not to file the plea or, on the other hand, as a withdrawal of a guilty plea.

We hold that Rule 3.03(6) precludes use against a defendant at trial of a guilty plea not finally and lawfully accepted by the trial court. This includes a plea contemplated but never formally entered. It includes a plea offered but withdrawn. It includes a court prescribed form plea of guilty which incorporates a confession of guilt never finally approved by the trial court. Until final and lawful acceptance by the trial court, the plea is unconditionally subject to revocation or cancellation by defendant. And where revoked or canceled in any way, shape, form or fashion, Rule 3.03(6) precludes use against the defendant at trial.

We further hold that Rule 3.03(6) precludes use against the defendant at trial of statements made with and inextricably bound up with a plea offered but never finally accepted. This preclusion covers statements on a printed pre-prepared form such as that utilized here wherein the defendant is required to confess guilt. It would include oral statements made by the defendant to the court in the course of interrogation as the court is considering a tendered plea — should the plea be rejected, withdrawn or for any reason vacated.

Under the facts and circumstances of this case, the entire form entitled “Confession of Guilt and Petition of Defendant for Court to Accept Plea” signed by Stevie Joe Sanders on February 10, 1982, constitutes a guilty plea with Rule 3.03(6). That form is not severable. No part of it was admissible against Sanders at trial. Timely objection having been made, we hold that the trial court erred in receiving the “confession of guilt” portion of the form into evidence. Accordingly, Sanders’ sentence is vacated, his conviction is reversed, and this case is remanded for a new trial on all issues.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . We emphasize that the Circuit Court’s pre-printed form had to be completed by a defendant pleading guilty. It was not optional. In the confession of guilt portion of the form, the following language appears:
      “I understand this confession of guilt may be admitted as evidence against me in any trial of this case.”
      Again, the defendant has no choice but to sign the form as a pre-condition to consideration of his plea being considered by the Court. We hold that this sentence in the form is inoperative against the defendant. It institutes an impermissible entailment of the defendant’s guilty plea and his right to withdraw same prior to acceptance. In this setting the confession of guilt and plea of guilty are in the eyes of the law indistinguishable. The plea of guilty may be withdrawn at any time prior to final acceptance, and so may the forced confession of guilt.

      . Nothing in this opinion should be taken to criticize the Circuit Court’s plea procedure which asks the defendant to admit his or her guilt. It is proper and quite desirable that the Court inquire into the defendant’s guilt before accepting a tendered plea. What we hold improper here is the trial court’s refusal to allow withdrawal of the confession of guilt along with the plea.


author: ROY NOBLE LEE, Justice,

text:
    Kenneth William WHEAT v. STATE of Mississippi.
    No. 54174.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Earl B. Stegall, John F. Hester, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Kenneth William Wheat was found guilty in the Circuit Court of Harrison County, Mississippi, on a charge of capital murder. The jury was unable to agree upon his sentence and the trial judge, Honorable Ruble Griffin, sentenced him to life imprisonment.

Wheat was indicted for the capital murder of Teresa C. Hayes Mayer and Joseph M. Mayer in separate indictments. He was tried first on the indictment for capital murder of Mrs. Mayer and was sentenced to life imprisonment December 7, 1979. Subsequently, he was tried for the capital murder of Joseph M. Mayer, was found guilty, and was sentenced by the jury to death. That sentence and judgment were entered January 18, 1980.

Joseph M. Mayer and Teresa C. Mayer were married July 28, 1979, in Paducah, Kentucky, and they went from there via Memphis, Tennessee, to the Mississippi Gulf Coast on their honeymoon, arriving in Gulf-port Sunday afternoon, July 29,1979. They were not heard from again until their bodies were found in a wooded area north of Gulfport on July 81, 1979.

The capital case in which the death penalty was imposed, although tried subsequently to the present case which resulted in a life sentence, has already been presented to this Court and the judgment and death penalty were affirmed on October 2, 1982, in Wheat v. State, 420 So.2d 229 (Miss.1982).

The facts are fully stated in that opinion, they apply as well to the present case, and will not be set out again. There are five assignments of error here. Four are identical to those briefed and argued in the first Wheat case. The fifth error assigned is whether or not the lower court erred in admitting evidence concerning the testimony of Wheat’s extradition from the State of Florida. We find no merit in that argument and Wheat, supra, answers the other four assignments.

The callous and senseless murders of these young people, who had the inalienable right to life and the pursuit of happiness, were atrocious and heinous beyond description. In reflecting upon the species Homo sapiens, now supposedly advanced to an enlightened and civilized age, we cannot help but wonder — how could it ever enter into the heart of man to take the lives so brutally of two such innocent young people! The judgment of the lower court is affirmed.

AFFIRMED.

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


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

text:
    Robert Earl MAY, Jr., Alias Bubba v. STATE of Mississippi.
    No. 53707.
    Supreme Court of Mississippi.
    Aug. 10, 1983.

      Ronald Reid Welch, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   ROY NOBLE LEE,

Justice, for the Court:

This is the second appeal of Robert Earl May, Jr. (Bubba May) from a sentence of twelve (12) years in the custody of the Mississippi Department of Corrections for armed robbery. On the present appeal, May presents the following contentions:

I. Sentence to 12 years in the custody of the Mississippi Department of Corrections is not “in the best interests of the child and the public welfare; and constitutes cruel and unusual punishment as applied to Robert Earl “Bubba” May, Jr.
II. Renewed sentence of twelve years in the Mississippi State Penitentiary, Department of Corrections, constitutes an abuse of discretion, a failure to follow the mandate of this Court and the law of this case, a violation of statutory law, and denies appellant equal protection and due process of the laws of this State and of the United States of America.

May was bom April 9, 1964. On December 26, 1978, at the age of 14 years, he and three other black males, ages 17, 18 and 25 years, one of whom was armed with a shotgun, committed a robbery in Lincoln County, Mississippi. Upon indictment and arraignment, all four entered pleas of guilty and each was sentenced to twelve (12) years in the custody of the Department of Corrections. Public criticism resulted from May’s sentence, due to his age, and the court granted his motion to withdraw the guilty plea and entered a plea of not guilty for him. After a trial on the merits, appellant was found guilty by a jury and again was sentenced by the court to twelve years.

That conviction and sentence were appealed to this Court and the judgment of conviction was affirmed, but the case was remanded to the lower court for hearing further evidence of extenuation or mitigation at the sentencing phase, since the record then before us did not indicate the judge’s knowledge of the alternatives mentioned in the sentencing hearing. There was no way for this Court to determine what the trial judge considered. In remanding the case, we said:

We think the Legislature, in providing alternative methods of sentencing of minors, intended in cases involving special circumstances surrounding a minor defendant, that the trial judge consider seriously' those alternatives enumerated in the statute and that the presence or absence of facilities for care of a minor offender be considered in mitigation of the punishment provided by statute. In our opinion, in addition to his consideration of the expert testimony, which became a part of the record on the sentencing phase, the trial judge should have placed in the record the sources and facts of his study and should have permitted appellant’s counsel to introduce evidence of the presence or absence of facilities at Mississippi State Penitentiary for care of the appellant, and the availability of other institutions or facilities which could be utilized by appellant. Therefore, we remand the cause to the lower court for hearing further evidence of extenuation or mitigation and for sentencing not inconsistent with this opinion. (Emphasis supplied) [398 So.2d at 1340].

The record presently before us indicates that May’s counsel introduced extensive evidence, exhibits and documents bearing upon the matter of extenuation and mitigation of the sentence; that the trial judge had full and complete knowledge of the facts and circumstances surrounding appellant and of the alternatives available to him in imposing sentence; and that he seriously considered them. Excerpts from his finding and opinion follow:

So the Court is aware that there are some facilities within the State of Mississippi. There are public and private elementary and secondary schools in the county of the defendant’s residence and throughout the State of Mississippi. The Court is aware that there are two State supported training schools located at Columbia and at Oakley, under the jurisdiction of the Department of Youth Services in Mississippi, and the Judge has visited each and observed their limited facilities. The Court is aware of the regional mental health services: the State Hospital at Whitfield; East Mississippi at Meridian, and the Ellisville State School at Ellis-ville, Mississippi; the North Mississippi Retardation Center at Oxford, and the Hudspeth Retardation Center at Whitfield. Each serves useful purposes and provides special facilities and treatment for those in their care.
The Court is aware that under the provisions of Section 43-21-159(3) of the Mississippi Code of 1972 as amended, known as the Youth Court Law, alternative sanctions are provided wherein it is provided that if any child shall be convicted by a Circuit Court, the Trial Judge, if he deems it for the best interest of such child and the public welfare, may, in his discretion and in lieu of other statutory punishment, commit such child to any state institution now or hereafter established for delinquents, or may commit such child to the county jail for any term not in excess of one year, or he may suspend sentence and release on probation under such terms and conditions as he may prescribe, and said Court shall have the power to change the custody of such child and terminate jurisdiction over said child in the same manner as is provided in that Chapter for the Youth Court.
This Court is aware the state institutions established for delinquents are at Columbia, Mississippi and at Oakley, and are under the jurisdiction of the Department of Youth Services. Section 41-21-605 of the Mississippi Code of 1972, as amended, being also a part of the Youth Court Law, provides that the training school may retain jurisdiction of the child until the child’s 20th birthday but for no longer. The superintendent of a state training school may parole a child at any time he may deem it in the best interest and welfare of such child. The Court is aware of the Juvenile Justice and Delinquent Prevention Act and the Congressional passage of the 1980 Amendment thereto, with reference to removal of juvenile offenders from adult jails within 7 years.
Armed Robbery is a very serious offense as evidenced by the penalties provided by the Legislature, and should not be depreciated by like sentences or sympathy for the offender. The seriousness of the offense is not based on the status of the person who commits the offense or the status of the victim, nor on the amount taken. The Trial Judge must determine under the Youth Court Law whether it is deemed in the best interest of the defendant and the public welfare to sentence the defendant to a state institution for delinquents or to the county jail for any term not in excess of one year, or to suspend the sentence and release on probation.
This Court does not find and does not deem that it is in the best interest of the public welfare to sentence this defendant to a state institution for delinquents or to the county jail or to suspend the sentence and release on probation, and hereby specifically finds.
In determining the sentence, the Court has considered not only the aspect of Parchman for the commission of the unlawful act, but the need for personal deterrence, that is, placing the defendant in custody for a term to prevent his repetition of the offense for the time in custody. The aspect of public deterrence has been considered, that is, to deter other persons from the commission of the same or similar offenses. The Court has also considered the need and time for rehabilitation so that the defendant may realize that he has done wrong and can become trained in more productive and lawful work. The Court has also considered other sentences in this and other districts of the State of Mississippi for the offense of armed robbery. Other defendants, black and white of approximately your present age of 17, have received the same or greater terms of sentence upon conviction of the offense of armed robbery.
No one connected with this Court bears any ill will toward you, Robert Earl May, but we cannot condone what you did. Bring the defendant around to be sentenced.

Under the assignments of error, May contends that the sentence to twelve years in the custody of the Mississippi Department of Corrections is not in the best interest of May and the public welfare and constitutes cruel and unusual punishment as applied to him. He also contends that the trial court abused its discretion in imposing sentence, violated statutory law, denied equal protection and due process under the laws of Mississippi and the United States, and failed to follow the mandate of this Court in imposing sentence.

The lower court found on the sentencing hearing involved here that it was not in the best interest of the public welfare to sentence appellant to a state institution for delinquents, or to the county jail, or to suspend the sentence and release him on probation. He also compared May's sentence to sentences of other young persons convicted of crime.

We stated in May v. State, supra, at 1337, citing Mississippi decisions, that this Court has held in many cases the imposition of sentence is within the sound discretion of the trial court and that we will not review the sentence so imposed, if it is within the prescribed limits of the statute. See Mansell v. State, 403 So.2d 871 (Miss.1981); Henderson v. State, 402 So.2d 325 (Miss.1981); Yazzie v. State, 366 So.2d 240 (Miss.1979); and Ainsworth v. State, 304 So.2d 656 (Miss.1975).

Those cases also stand for the proposition that such a sentence is not violative of statutory law or constitutional prohibitions. See White v. State, 374 So.2d 843 (Miss.1979) and Upshaw v. State, 350 So.2d 1358 (Miss.1977).

The real thrust of the appeal is whether or not this Court mandated the lower court to impose a sentence less than twelve years. The cause was remanded to the lower court “for hearing further evidence of extenuation or mitigation and for sentencing not inconsistent with this opinion,” since no complete record was made at the first hearing. We did not mandate the lower court to reduce or modify the sentence.

It is uncontradicted that in the present case, a record was made of everything desired by the State and May and that the lower court seriously considered them. The trial judge presiding at the hearing has wide experience in such cases; he observed and heard the appellant, together with his witnesses, from the time of indictment through proceedings extending over a period of four years; and, from all the evidence, and his knowledge of the ap-' pellant, it was his judgment that, the sentence of twelve years should be imposed. Under the law, as enacted by the Mississippi Legislature, construed by this Court, and now established precedent, we cannot say that the lower court committed reversible error in imposing the same sentence of twelve years.

The appellant was 14 years old when sentence was first imposed, and was 4 feet 10 inches tall, weighing 80 pounds. He is now 19 years old (April 9,1964), is 5 feet 10 inches tall and weighs approximately 132 pounds. According to the record, he is neither the youngest nor the smallest person sentenced to the custody of the Mississippi Department of Corrections. Leatherwood was 17, Tokman was 18 and Bell was 18 when they were sentenced to' death for capital murder, and the sentences were affirmed by a majority of this Court.

Therefore, for the reasons stated, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING and PRATHER, JJ., concur.

DAN M. LEE, J., specially concurs.

ROBERTSON and HAWKINS, JJ., dissent.

HAWKINS, J., concurs in dissent.

DAN M. LEE, Justice,

specially concurring:

The dissent and concurring dissent raise excellent points that deserve thorough consideration.

If May were fourteen at this time the opinion of the majority would indeed be bad precedent by this Court. However, due to a previous reversal of the case and other delays, appellant is nineteen years old now (born April 9,1964) and five feet, ten inches tall. I therefore join in the opinion of the majority because it can only be used as precedent for the sentencing of a nineteen year old youth.

ROBERTSON, Justice,

dissenting:

I.

Robert Earl (Bubba) May, Jr., comes before this Court, again complaining of a twelve (12) year sentence imposed upon him by the Circuit Court of Lincoln County. On his first appeal, May v. State, 398 So.2d 1331 (Miss.1981) (“May F), we vacated a 12 year sentence and remanded, instructing the trial judge on resentencing to consider seriously, among other things, in mitigation of punishment “the presence or absence of facilities for care of a minor offender”. May I, 398 So.2d at 1340.

With sincerest respect to my colleagues in the majority, I believe the trial judge once again has acted contrary to the mandate of the relevant sentencing statutes. Moreover, in my view the trial judge has acted inconsistently with both the spirit and the letter of the mandate of May I. I dissent.

II.

Defining crimes and prescribing punishments are exclusively legislative functions as a matter of constitutional law. This has long been recognized in Mississippi. In Gabriel v. Brame, Sheriff, 200 Miss. 767, 28 So.2d 581 (1947), the Court held

“that the authority to say what constitutes a crime, and what punishment shall be inflicted is in its entirety legislative question ...” [subject only to the strictures of the Eighth Amendment]. 200 Miss, at 773, 28 So.2d 582. [Emphasis added].

This rule has been affirmed in Howell v. State, 300 So.2d 774 (Miss.1974), and Up-shaw v. State, 350 So.2d 1358, 1360 (Miss. 1977).

“The exclusive authority of the legislature to determine crimes and fix the punishment therefor is without question.” 300 So.2d at 780. [Emphasis added].
“We hold that the authority to determine crimes and fix the punishment therefor is vested exclusively in the legislature...” 300 So.2d at 781. [Emphasis added].

See also, Miss. Constitution Ann. §§ 2 and 33.

The following language from Howell opinion is only an inch or two too broad.

The power of a legislative body with respect to punishment for crime is practically unlimited, and is controlled only by constitutional provisions. Subject to this qualification, the legislature, may fix, and where a particular punishment is prescribed, no other may be imposed. (21 Am.Jr.2d at 542). 300 So.2d at 781.

In Mississippi, as elsewhere, it is the legislature — and the legislature only — which has the power to define crimes and prescribe punishments. Upshaw v. State, 350 So.2d 1358, 1360 (Miss.1977).

Exercising its constitutional prerogatives, the legislature has prescribed a statutory sentencing scheme to which May is subject. That scheme is found in the interaction and combined reading of the general armed robbery statute, Miss.Code Ann. § 97-3-79 (Supp.1982), the mandatory time served statute, Miss.Code Ann. § 47-7-3(d) (Supp. 1982), and the Youth Court Act, Miss.Code Ann. § 43-21-159(3) (Supp.1982). This statutory scheme has been authoritatively construed in May I.

III.

A.

May I carefully considers the legislatively prescribed sentencing format applicable to the case of Robert Earl May, Jr. That format is found in a combined consideration of the General Armed Robbery statute, Miss.Code Ann. § 97-3-79 (Supp.1982), the mandatory time served statute, Miss.Code Ann. § 47-7-3(d) (Supp.1982), and the Mississippi Youth Court Act, Miss.Code Ann. § 43-21-159(3) (Supp.1982). The General Armed Robbery statute authorizes a sentence of no less than three years up to a maximum of life imprisonment. The Youth Court Act provides that persons such as May may be tried as adults but that, upon conviction

“The trial judge, if he deems it for the best interest of such child and the public welfare, may, in his discretion, and in lieu of other statutory punishment, commit such child to any state institution now or hereafter established for delinquents, or may commit such child to the county jail for any term not in excess of one year, or he may suspend sentence and release on probation, under such terms and conditions as he may prescribe, .... ” Miss. Code Ann. § 43-21-159(3) (Supp.1982)

In May I we held that the trial judge must exercise his sentencing discretion within these legislatively prescribed limits. We held expressly, under the facts and circumstances of this case, that the legislature had mandated that the trial judge seriously consider the alternatives described in these statutes. We further specifically held that the trial judge must consider in mitigation of the punishment prescribed in the General Armed Robbery statute the presence or absence of facilities for the care of a minor offender. 398 So.2d at 1340.

I have no doubt that May I correctly and authoritatively construes the Youth Court Act. At the very least May I and its mandates to the trial court constitute the law of the case. See Continental Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 468-482, 142 So.2d 200, 201-208 (1962).

B.

The dispositive question on this appeal is whether the trial court faithfully adhered to the mandate of May I. That mandate, to be sure, left the trial judge with considerable discretion. In no uncertain terms, however, May I placed limitations upon that discretion, the two most important of which were that (1) the trial judge should consider seriously the alternatives enumerated in the statute and (2) that the presence or absence of facilities for the care of a minor offender should be considered in mitigation of punishment.

Looking first to the May I mandate that the trial judge consider sentencing alternatives, I find no fault. The trial judge displayed a keen awareness of the alternatives available to him and he described those fairly for the record. I accept on faith that he gave these alternatives “serious” consideration.

On the second and more specific portion of the May I mandate, however, I find error. The trial court’s purported compliance here began with the receipt of substantial testimony on “the presence or absence'of facilities for the care of a minor offender”. That testimony related to Parchman as well as other state institutions, and to private facilities both inside or outside of the state of Mississippi. He considered testimony received at the September 18, 1981, hearing, as well as that received at the first hearing. The trial judge stated, “I have listened very carefully to the testimony that has been given here today ..., and I have reviewed all of the testimony that was taken ... [at the previous hearing]” .... “I have considered all of them [evidence in extenuation or mitigation of alternatives of sentence] and read all the material that has been furnished to me.”

The trial judge concluded by stating:

“For the safety of the law abiding members of our society, of all races, robbery by firearm just cannot be tolerated and is not going to be condoned. Armed robbery places the robber and the victim in great danger of death or great bodily harm.
So having considered all of the alternatives, having considered the information furnished to me and all the testimony that has been received, I deem that it is not in the best interest of the public welfare that alternative sentence be imposed, and I do hereby sentence you to 12 years in the custody of the Department of’Corrections of the State of Mississippi, with the hope and direction that the Department of Corrections places you in such facilities as may become available so that you may be trained in useful occupation, and that you can pursue educational opportunities insofar as your capacity may be; and it is my hope that you will be a good prisoner and will take advantage of those opportunities that will be offered to you to learn a trade, to further your education so that when you are dismissed from the State Penitentiary or from the custody of the Department of Corrections, that you will be able to pursue a productive law abiding occupation and make a good law abiding citizen.
That will be your sentence and you are committed to the Sheriff for the fulfillment thereof.”

Without doubt the trial court seriously considered the presence or absence of facilities for care of a minor offender. But May I directed more. May I directed that the presence or absence of facilities be considered “in mitigation of punishmenti”. 398 So.2d at 1340.

May I necessarily was premised on the fact that availability of facilities had not been considered at the first sentencing hearing. At the second sentencing hearing, substantial evidence was offered respecting this issue. In my view all of that evidence suggests mitigation of sentence. I find none which suggests to a rational sentencing authority an enhancement of punishment.

In my view, the trial court failed to comply with this portion of the May I mandate on this rationale:

(a) If the sentence originally imposed upon May was 12 years, and

(b) If this Court found that the presence or absence of facilities for care of a minor offender had not, consistent with legislative mandate, been adequately considered before the first sentence had been imposed, and

(c) If this Court vacated and remanded with instructions that the trial court seriously consider the presence or absence of facilities for the care and custody of a minor “in mitigation of the punishment provided by statute,” and *

(d) If the trial court were then instructed to hold a further hearing for “further evidence of extenuation or mitigation and for sentencing not inconsistent with this opinion”. 398 So.2d at 1340, and

(e) If at the hearing all of the evidence suggested mitigation of sentence, while no evidence suggested to the contrary — the state having offered no new evidence, and

(f) If at the conclusion of the second hearing the trial court imposed the same 12 year sentence as it had previously imposed (and this Court had vacated), then the conclusion is inescapable: the trial court has failed to comply with the instructions of this Court. Accordingly, the sentence imposed upon May ought once again be vacated. Because the majority sees the matter otherwise, I respectfully dissent.

HAWKINS, J., joins this dissent.

HAWKINS, Justice,

concurring in dissent.

I concur in the dissent of Justice Robertson and fully agree with everything he stated.

In deference to the majority and the Circuit Judge, the following observations are added.

May is a sixth grade drop-out, and a borderline case of mental retardation. When he was 14 years old, he accompanied three other black males in the robbery of a fireworks stand. Two wore stocking masks; May and the others were barefaced. Thirty-seven dollars was taken from the proprietor. All were caught shortly after the robbery, and all were older than May. In May I, May v. State, 398 So.2d 1331 (Miss.1981), we stated:

We think the Legislature, in providing alternative methods of sentencing of minors, intended in cases involving special circumstances surrounding a minor defendant, that the trial judge consider seriously those alternatives enumerated and that the presence or absence of facilities for care of a minor offender be considered in mitigation of the punishment provided by statute. [Emphasis added]. 398 So.2d at 1340.

On remand, the State offered no evidence on the issue.

The defense offered the following on remand:

Two Parchman witnesses, James Up-church, Deputy Warden, and Dr. Jiovanni Croce, Director of Psychiatric Services, testified. Their testimony, coupled with the evidence adduced at the first hearing, established without doubt that the Department of Corrections (MDC) maintained no programs or facilities at Parchman in any way geared to the special needs of borderline retarded youths. At Parchman MDC could do little more than warehouse youths such as May, hoping against hope that they would not be victimized by older, more experienced and more aggressive prisoners.

Alternatives were offered by the defense. The defense experts recommended that May be placed in “a family type setting”. The parents in such a setting would not be typical foster parents; rather, they would be persons with special training and skills. It would be their task to provide behavioral, social, educational and vocational nurture and guidance to the youth. The defense experts described such programs in the States of Georgia, Pennsylvania, and Massachusetts. A review of the record, however, makes it glaringly apparent that there are no such programs available in Mississippi.

In spite of this testimony, the Circuit Court again imposed a 12 year sentence.

Having been sentenced to 12 years for armed robbery, May will not be eligible for parole until he has served at least ten years. He will thus be at least 24 years of age when he is released from prison.

No one disputes the necessity for penitentiaries. We delude ourselves, however, if we think imprisonment for such a long period offers any probability of improvement of the individual. Statistics indicate quite the reverse. As many law enforcement officers have put it in the vernacular: “Parchman gives a man a Ph.D. degree in crime.” More often, the penitentiary does not rehabilitate a person, it simply postpones the release upon society of a much worse criminal than when he entered.

The Legislature recognized this over forty years ago when the Youth Court Act was first enacted. 1940 Miss.Laws Ch. 300. It was to avoid brutalizing a youth, as well as to make a positive effort towards rehabilitating the young, that prompted the legislation.

In this case no attempt is going to be made to use the State’s services, or any others that are available, in such a manner that this virtually feebleminded young man has any chance to be helped to become self-supporting and law abiding. The plain intent, if indeed not the mandate of the Legislature, has been obtusely ignored.

I see no infringement on the authority which should be given a Circuit Judge in sentencing to require the Youth Court Act providing alternatives in youthful offenders be seriously considered. Most Circuit Judges in my experience have been profoundly grateful for this law. In my view, it is a travesty of the Youth Court Act to assert that what we are affirming can be in the interest of society, much less May.

What chance are we offering May, or society, of his eventual rehabilitation? The one hope he, or society had, has now been removed by us. I would remand this case to the Circuit Judge instructing him to give meaningful consideration to our opinion in May I and to consider viable sentencing alternatives.

      . May v. State, 398 So.2d 1331 (Miss.1981).

      . Life sentence without eligibility for parole, imposed upon a 16-year-old youth convicted of armed robbery, was not cruel and unusual punishment in violation of the Eighth Amendment rights.

      . Honorable Joe N. Pigott.

      . Leatherwood v. State, 435 So.2d 645 (Miss.1983); Tokman v. State, 435 So.2d 664 (Miss. 1983); and Bell v. State, 360 So.2d 1206 (Miss.1978).

      . One was 17, another 18, and another 25. See May v. State, 398 So.2d 1331 (Miss.1981) for detailed statement of facts and May’s mentality.

      . Miss.Code Ann. § 47-7-3(d) (Supp.1982), provides that a person sentenced to prison for armed robbery for a term longer than ten years is not eligible for parole until he has served at least ten years.

      . More regretably, the harm was done four years ago when the Circuit Judge did not see fit to consider alternatives to 12 years in the penitentiary. His chances for improvement may have decreased with maturity. It is the precedent of this case which is disconcerting.


author: DAN M. LEE, Justice,

text:
    Ida NELSON, Pearlie G. Faulkner & William Nelson v. Isaac JAMES.
    No. 54338.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Angelo J. Dorizas, Jackson, for appellants.

      Sumners, Hickman & Rayburn, Richard C. Coker, S.T. Rayburn, Oxford, for appel-lee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is a certification case from the United States Court of Appeals for the Fifth Circuit. Pursuant to Mississippi Supreme Court Rule 46, the facts as shown in the certification from the Fifth Circuit are as follows:

On August 16, 1975, the parties to this appeal were involved in an automobile accident in Marshall County, Mississippi. On Monday, August 17, 1981, plaintiffs filed the complaint initiating this case, seeking damages for personal injuries allegedly caused by defendant’s negligent operation of his vehicle.
Defendant answered, claiming that the action was barred by the six year statute of limitations. Miss.Code Ann. § 15-1-49 (1972). The district court granted a motion to dismiss for that reason. This appeal presents only the question whether a claim filed on Monday when the statute of limitations expires on Sunday is timely.

Question certified:

When the last day of the six year statute of limitations for filing a personal injury action falls on a Sunday, is an action filed on the next day, Monday, timely?

Mississippi Code Annotated § 15-1-49 (1972) provides:

All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.

Appellant relies on Parkman v. Mississippi State Highway Commission, 250 So.2d 637 (Miss.1971), which involved the method of computation of time within which an appeal may be taken. The rationale extended there seems very persuasive of the fact that where the courthouse is closed by law, such a period is not to be counted in determining the time in which appeal may be taken. The Court held:

Although recognizing that some courts are not in accord, 86 C.J.S. Time § 14(6) (1954) asserts that the general rule is that, if the last day of the period allowed by law for taking a stated action in a judicial proceeding falls on a legal holiday, that terminal holiday should be excluded and the action may be taken on the following day. We also think that, if the following day is a Sunday (a legal holiday), the time for taking the appeal should be extended until the following Monday. See generally, Annot. 61 A.L. R.2d 482 (1958).
At common law, judicial proceedings which take place on Sunday are invalid, unless expressly authorized by statute. Accordingly, some Mississippi statutes authorize to be issued on Sunday general remedial writs, and writs of habeas corpus and attachments. Miss.Code 1942 Ann. §§ 1657, 2825, 2869 (1956); see also Miss. Const. § 72 (1890). On the other hand, a legal holiday is not ordinarily considered to be a “nonjuridical day” unless expressly made so by statute. See 50 Am.Jur., Sundays and Holidays §§ 73, 77 (1944). In Mississippi Saturday is not a nonjuridical day, in the sense that a court cannot act on that day. However, in the instant case we hold only that, when the clerk’s office is closed by authority of statute on a Saturday, and the clerk or his staff is not available in the courthouse on that legal holiday for the filing and approving of an appeal bond. Saturday will not be counted in determining the ten days within which an appeal shall be taken. (250 So.2d at 639) (Emphasis added)

86 C.J.S., Time § 14(9) (1954), in discussing the issue, provides in part:

In accordance with the general rule, if the first day of a period of limitation for commencing an action falls on a Sunday or on a legal holiday, the period is extended and the action may be commenced on the following secular or business day, and in at least one jurisdiction, if the last day for the commencement of an action falls on a Saturday during the months of July and August when public offices are legally closed to the transaction of business, the action may be commenced on the following business or secular day. The rule also applies whether the statute limits the commencement of a civil action or a criminal prosecution, and if the last day on the period in which an indictment may be found falls on a Sunday the indictment may be found on the following day. The rule of excluding terminal Sundays and holidays is applied in computing the accrual of a right of action from which a statute of limitations begins to run, so that, if the day on which the cause of action would have accrued falls on a Sunday, that day will be excluded, and the statute will begin to run from the following day.
The rule that terminal Sundays and holidays are not to be counted has been applied in determining the time for bringing suit to enforce a mechanic’s lien, suit on a negotiable instrument, a garnishment action, an action to rescind a policy of insurance, an action of tort to recover for damages sustained by reason of negligence, and an action to contest a will. (Emphasis supplied)

We might further note that the text is in accord with Miss.R.Civ.P. 6(a) that became effective January 1, 1982, which is as follows:

Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or any other day when the courthouse or the clerk’s office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day when the courthouse or the clerk’s office is closed. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Because there apparently has been no construction of section 15-1-49 as sought in the case at bar, this Court believes certification of this question should be accepted for a determination.

Therefore, the question certified
When the last day of the six year statute of limitations for filing a personal injury action falls on a Sunday, is an action filed on the next day, Monday, timely?

The answer is “Yes” it was timely filed.

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

      . Not in effect at the time of the filing in this case, August 17, 1981, nevertheless considered in order to provide more consistent and orderly precedent.


text:
    Larry D. JOHNSON v. H.K. FERGUSON & Aetna Casualty & Surety Company.
    No. 54319.
    Supreme Court of Mississippi.
    Aug. 10, 1983.

      Lester C. Franklin, Pascagoula, for appellant.
    J. Elmo Lang, Pascagoula, for appellees.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County wherein a decision of the Workmen’s Compensation Commission denying benefits to appellant was affirmed. There being no substantial credible evidence to support the order of the administrative law judge and Workmen’s Compensation Commission, we reverse.

On October 10, 1975, appellant Larry Johnson was employed as a laborer by ap-pellee, H.K. Ferguson Company. At about 10:30 that morning, Johnson was moving some large wooden frames used as cement forms. They were approximately three feet wide, seven feet long, six inches deep, weighed about forty pounds, were rectangular in shape and had a handle or hand grip located in the center. Because of their size, shape and weight, the easiest manner in which to carry a form was to grab the handle and lift it onto one’s back. Johnson was carrying a form in this manner when he stepped into a trench or uneven spot, causing him to lose his balance and fall to his knees, wrenching his back. Johnson immediately went to the company first aid station and from there was taken to the company physician, Dr. Thompson. Johnson was given a prescription for pain and he returned to work light duty the remainder of the day. The next morning he was unable to get out of bed because of back pain.

On October 14, 1975, four days after the accident, Johnson informed Ferguson that he desired to see a specialist and requested that they secure one for him. The following morning when he arrived at work Johnson was taken to an orthopedic surgeon, Dr. Daniel Enger. Dr. Enger admitted Johnson to the hospital where he remained for ten days. Dr. Enger diagnosed Johnson as having acute lumbosacral strain. After his discharge Johnson continued to complain of severe backache and was readmitted to the hospital by Dr. Enger on November 3,1975, where he again remained for ten days. On November 12, Dr. Enger discharged him with a diagnosis of an acute psychiatric disturbance and a lumbosacral strain. Dr. Enger released Johnson for light duty on December 8,1975, however, Johnson continued to complain of back pain and did not return to work.

Johnson filed a motion to controvert on February 13, 1976. After Johnson failed to appear at a scheduled pretrial conference on April 29, 1976, an order was entered on May 4 dismissing the cause without prejudice. Johnson then secured new counsel and on October 18, 1976, filed a motion for employer to provide additional medical attention and a motion to require employer to pay medical expenses incurred.

On February 10, 1977, Johnson’s cause came on for hearing. During this hearing the administrative law judge admitted the deposition testimony of Dr. Lohnes, a chiropractor who had treated Johnson. Dr. Lohnes testified that Johnson had an unusually straight spine and that the present painful condition- was related to the accident of October 10, 1975. On May 9, 1977, the cause was reopened for the purpose of admitting the deposition of Dr. Enger. This was Dr. Enger’s first deposition in this cause and was dated February 22, 1977.

In his deposition, Dr. Enger testified that he took x-rays of Johnson’s back and found a small narrowing in the L-5 disc space but that it had obviously occurred long before the accident. He further testified that the areas of pain complained of did not follow any particular back condition with which he was aware, including the disc rupture or fracture. Dr. Enger did state that to completely rule out either of these ailments would require performing a myelogram but that he did not choose to do so. To quote Dr. Enger:

I purposely avoided doing a myelogram due to the fact that I thought the patient had an underlying psychiatric condition. He was fitted with a lumbosacral back support and told I would see him as an out-patient in the office. I felt that if he persisted in having difficulty he may eventually require a myelogram for complete clearance, but I would be rather reluctant to recommend his at present ... I feel quite strongly as an orthopedic surgeon that if we went ahead and further investigated Mr. Johnson’s complaints, particularly going so far as a myelogram, we would only magnify his condition, and it was for this reason that I simply did not even consider sticking a needle into his back, except only as a last resort, and this never did develop.

Therefore, although he admitted that it was the sole diagnostic tool with which to achieve certainty in determining the existence or nonexistence of a disc rupture, he was adamant in his refusal to perform a myelogram.

Prior to an order on the merits, Johnson filed a motion to reopen, agreeing to take a myelogram on the advice of a Dr. Reuben Morris and moving that the carrier, appel-lee, be ordered to pay for it. The administrative law judge issued his findings of fact on January 3, 1978, along with an order denying the motion to reopen. The law judge’s findings of fact were that, 1) Johnson had sustained a compensable injury on October 10, 1975; 2) as a result of the injury Johnson was temporarily totally disabled from October 11, 1975, through December 8, 1975; 3) Johnson suffered no permanent partial disability or loss in wage earning capacity, and 4) any medical treatment after December 17,1975, was unrelated to the accident. The judge then ordered that Ferguson and the carrier pay Johnson $63 per week from October 11, 1975 through December 8, 1975, with credit for benefits already paid. The judge also ordered Ferguson and the carrier to pay all medical expenses related to the injury through December 17, 1975.

Johnson then filed a petition for review by full commission and subsequently a motion to open up hearing of full commission for receipt of new evidence. The full commission heard the case in review on August 14, 1978, and issued an interlocutory order dated March 30, 1979, which provided that they affirmed the law judge’s findings of fact regarding the occurrence of the injury and dates of temporary total disability. However, the commission remanded the case to allow Johnson to submit further evidence regarding additional medical treatment or diagnosis, additional temporary total disability, a date of maximum recovery, the existence of permanent partial disability, preexisting condition, and loss of wage earning capacity.

On remand, the law judge admitted the deposition testimony of Dr. Pickel, a psychologist who diagnosed Johnson as having a psychoneurosis conversion reaction with depression. Dr. Pickel thought Johnson’s condition resulted from personal problems and could not say with reasonable medical certainty that his symptoms were caused by the accident. He did however state that Johnson was not able to work. The law judge ruled the Workmen’s Compensation Act requires disability to be proven by medical findings and that a psychologist was not qualified to give testimony regarding a medical disability. He therefore denied the request for additional disability.

Johnson then filed another petition for review by the full commission dated April 17,1980, and a motion to transfer to administrative judge for review on newly discovered evidence dated November 6, 1980. The commission granted the second motion and eventually Johnson introduced the first deposition of Dr. Buckley, a neurosurgeon dated December 18, 1980, sixty-three days before the myelogram. Dr. Buckley testified that he had examined Johnson and was unable to determine the cause of his back pain. Dr. Buckley did note that Johnson’s left lower back became inflamed after five minutes of exercise. He testified that if no other explanation for the pain became evident that he would recommend doing a myelogram. Dr. Buckley further testified that a myelogram would show an “unusual presentation” of a disc rupture although a patient presented no evidence of a rupture.

In response to Dr. Buckley’s testimony the appellee introduced a second disposition of Dr. Enger. This deposition was dated January 7, 1981, and in it Dr. Enger reaffirmed his position that he would not perform a myelogram on Johnson. On February 4, 1981, the administrative law judge entered an order in which he closed the file. Five days later an order was entered which found that Dr. Buckley’s testimony in his first deposition was insufficient to support an award of permanent partial disability. Johnson petitioned to have the file reopened and the petition was denied.

Because of continued complaints of pain Dr. Buckley performed a myelogram on Johnson on the 19th of February, 1981. The myelogram revealed that Johnson had a disc rupture and deformed nerve root at L-4 and 5. On February 23, 1981, Dr. Buckley performed surgery and repaired Johnson’s herniated disc. Johnson then moved to reopen the record for the introduction of a second deposition of Dr. Buckley, taken April 23, 1981, subsequent to the surgery. The administrative law judge admitted Dr. Buckley’s second deposition solely on the basis of Rule 8. (The right of a party to complete the record for purposes of appeal). Following that the law judge entered an order dated May 18,1981, wherein he readopted his order of February 9, 1981, holding that Johnson’s proof was insufficient. Johnson has appealed that order as well as order of February 9, 1982, through the full commission and the circuit court and now seeks the review of this Court.

The standard of review governing an appeal to this Court from a decision of an administrative agency is that of substantial evidence. Where an order of the Workmen’s Compensation Commission is supported by substantial evidence such order will not be reversed. Halloway v. Prassell Enterprises, Inc., 348 So.2d 771 (Miss.1977); Universal Mfg. Co. v. Barlow, 260 So.2d 827 (Miss.1972). Our decision today in no way repeals, limits, or modifies that rule, rather, we take this opportunity to stress that the rule is fundamental to an orderly system of appellate review. Nevertheless, the rule is sufficiently flexible to permit the Supreme Court to examine the record as a whole and where such record reveals that the order of the commission is based on a mere scintilla of evidence, and is against overwhelming weight of the credible evidence the Court will not hesitate to reverse. Universal Mfg. Co. v. Barlow, supra. Such is the case sub judice.

The greatest evidentiary support for the decision of the commission is the testimony of Dr. Enger. In two depositions Dr. Enger testified that he originally diagnosed Johnson as having lumbosacral strain with an acute psychoneurosis. Dr. Enger’s diagnosis was based on personal subjective examinations of Johnson and a series of x-rays he ordered. He admitted that the sole diagnostic procedure available to conclusively rule out the existence of a disc rupture was a myelogram, however, in the face of Johnson’s continued complaints of pain he refused to perform that procedure.

The only credible evidence presented to the commission was the second deposition of Dr. Buckley. That deposition was taken after the rupture had been discovered through a myelogram and surgically confirmed and repaired. As the only witness to perform a myelogram and actually view the herniated disc, his testimony that the rupture was an “unusual presentation” capable of diagnosis only through a myelo-gram, was uncontradicted. Dr. Enger’s testimony in no way discredited Dr. Buckley’s opinion since Dr. Enger has not examined Johnson since before the existence of the herniated disc was confirmed. Indeed, Dr. Enger’s second deposition, representing the appellee’s final medical proof, occurred twelve days prior to the myelogram and sixteen days prior to surgery. There simply was no credible proof to contradict Dr. Buckley’s opinion that:

Since this patient’s symptoms have persisted in an unremitting way since his work injury of 1975, according to the medical history obtained, the ruptured disc found and operated on by me was caused by the job injury of 1975.

Further, there was no testimony offered by the appellee as to any other injury to appellant that would have explained the continued back problems being suffered by the appellant from the date of the injury, October 10,1975, up to the time of the discovery of the ruptured disc on February 18, 1981.

When an expert’s opinion is based upon an inadequate or incomplete examination, that opinion does not carry as much weight and has little or no probative value when compared to the opinion of an expert that has made a thorough and adequate examination. The subjective examinations of Dr. Enger and the x-rays conducted were little more than estimates when viewed in the light of the fact that Dr. Enger admitted that the ultimate diagnostic tool for discoverying an unusual presentation of a ruptured disc would be a myelogram.

This Court has spoken on expert opinion evidence where the expert had made an inadequate or incomplete examination. Gulf Insurance Company v. Provine, 321 So.2d 311 (Miss.1975); Kress and Co. v. Sharp, 156 Miss. 693, 126 So. 650 (1930). The facts in Provine are analagous to those at bar. There Provine was the owner of an aircraft which had sustained damage in a crash. Provine introduced the testimony of experts who testified that the plane was a total loss. They based this opinion on an examination of the aircraft’s skin, concluding that because the skin was wrinkled the tubular framework within was necessarily bent. The insurance company rebutted this evidence through the testimony of experts who removed portions of the skin and examined the frame itself, determining that it was not bent. The jury verdict reflected a finding that the plane was a total loss. We reversed and held:

The general rule is expressed by the text writer in 32 C.J.S. Evidence § 572(2), at 684-687 (1964), as follows:
Although in some jurisdictions when there is a conflict between scientific testimony and testimony as to facts, the trier of the facts must determine the relative weight, as a general rule proof of facts will outweigh opinions or estimates contrary thereto; and opinion evidence is without weight or probative value when in conflict with the physical facts, and, accordingly, such opinion evidence must give way to un-controverted physical facts contrary thereto, and should not be regarded as sufficient to create a substantial conflict in the evidence.
A statement of the result of actual measurement carries more weight than an estimate, at least where conflicting estimates and measurements are offered by the same person, or of chemical, laboratory, or other tests, although it will not necessarily prevail. (321 So.2d at 315)

This Court went further in Provine and quoted with approval the case of Kress & Co. v. Sharp, supra, as follows:

In the case of S.H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650 (1930), this Court in quoting from 1 Moore on Facts, section 415, 22 C.J. 738, 739, said:
“The testimony even of disinterested and unimpeached witnesses on the subjects of measurements, distances, and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurement.”
Opinion evidence of an unproven fact must therefore give way to actual mechanical or scientific proof of fact. The Kress case, supra, has been adopted and cited in the following cases: Illinois Central RR Co. v. Underwood, 235 F.2d 868 (5th Cir.1956); Henson Ford, Inc. v. Crews, 249 Miss. 45, 160 So.2d 81 (1964); New Orleans & N. RR Co. v. Burney, 248 Miss. 290, 159 So.2d 85 (1963); Russell v. Mississippi Central Railroad Co., 239 Miss. 741, 125 So.2d 283 (1960); Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So.2d 912 (1957); Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800 (1938). (321 So.2d at 315)

This rule is supported in other jurisdictions and applied to Workmen’s Compensation cases. The California Supreme Court addressed this issue squarely and stated:

Expert medical opinion, however, does not always constitute substantial evidence on which the board may rest its decision. Courts have held that the board may not rely on medical reports, which it knows to be erroneous (McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 92, 48 Cal.Rptr. 858, 410 P.2d 362), upon reports which are no longer germane (Jones v. Workmen’s Comp. App. Bd. (1968) 68 Cal.2d 476, 480, 67 Cal.Rptr. 544, 439 P.2d 648), or upon reports based upon inadequate medical history of examinations (West v. Industrial Acc. Com. (1947) 79 Cal.App.2d 711, 716, 180 P.2d 972; Blankenfeld v. Industrial Acc. Com. (1940) 36 Cal.App.2d 690, 698, 98 P.2d 584).

Place v. Workmen’s Compensation Appeals Board, 3 Cal.3d 372, 90 Cal.Rptr. 424, 475 P.2d 656 (1970). See also West v. Industrial Acc. Commission of California, et al., 79 Cal.App.2d 711, 180 P.2d 972 (1947).

An apt analogy might run like this. The trier of the facts is charged to determine how many teeth are in a particular horse’s mouth. One expert horse dentist says it’s 36. Yet he acknowledges that he has not opened the horse’s mouth to make an accurate count. He opines that the horse is suffering from severe neurosis and would suffer a psychological setback if subjected to the in-mouth count. Another horse dentist, however, perseveres in the face of the horse’s neurosis, opens the mouth and counts only 32 teeth. A finding of fact that the horse had 36 teeth in its mouth would not be supported by substantial evidence.

Therefore, in the case sub judice the commission’s decision was not based upon substantial evidence and was against the overwhelming weight of the credible expert medical testimony. The administrative law judge’s refusal to consider the testimony of Dr. Richard Buckley was error. It follows that we must reverse and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    Ex parte William George BUCKNER. (Re: William George Buckner v. State of Alabama)
    81-612.
    Supreme Court of Alabama.
    Dec. 30, 1982.
    John W. Cooper, Mentone, for petitioner.
    Charles A. Graddick, Atty. Gen., and Helen Nelson and Elizabeth Evans, Asst. Attys. Gen., for the State.
   BEATTY, Justice.

This case presents the question of whether timely filing of an appeal bond is a jurisdictional prerequisite for appeal from a misdemeanor conviction in district court. We conclude that the circuit court’s jurisdiction of such an appeal does not depend on the filing of an appeal bond.

William George Buckner was convicted in the District Court of Shelby County of a misdemeanor, driving an overweight truck in violation of Code of Ala.1975, § 32-9-20. After the district court denied his motion for a new trial, Buckner filed a timely notice of appeal to the circuit court in accordance with Code of Ala.1975, § 12-12-70(b), which provides:

“A defendant may appeal from a final judgment in a criminal case by filing notice of appeal, together with any bond required by law or rule, within 14 days from the date of judgment or the date of a posttrial motion, whichever is later, unless the appeal is to an appellate court....” (Emphasis added.)

The State then filed in the circuit court a motion to dismiss, claiming the appeal “was improperly perfected in that notice of appeal was not accompanied by the appropriate bond as required by § 12-12-70(b) of the Code of Alabama.” The circuit court granted the motion to dismiss, and the Court of Criminal Appeals affirmed without opinion.

Under § 12-12-70(b) it is only a “bond required by law or rule” that must accompany the notice of appeal. Yet, the State has cited no law or rule requiring a bond to perfect an appeal. We must conclude that the filing of an appeal bond is not a jurisdictional requirement for appeal of a misdemeanor conviction from district to circuit court. This holding is consistent with the practice in the former county courts, where the purpose of the appeal bond was “not to confer jurisdiction on the circuit court but to enable the defendant to release himself from custody pending the appeal,” Ex parte Rodgers, 12 Ala.App. 218, 226, 67 So. 710, 713 (1915) (construing Code 1907, § 6725, Code 1940, Tit. 13, § 349, Repealed by Acts 1975, No. 1205, § 4-134). Similarly, our holding is consistent with present practice in appeals of misdemeanor convictions from circuit to appellate courts, for which Code of Ala.1975, § 12-22-171, makes posting bail discretionary with the defendant at any time pending the appeal.

We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    VIEW-ALL, INCORPORATED, an Alabama Corporation, George H. Deyo, Sam Grasso, John Poczabut and Leonard Sansone v. UNITED PARCEL SERVICE, et al.
    81-390.
    Supreme Court of Alabama.
    May 6, 1983.
    Rehearing Denied July 8, 1983.
    H. Darden Williams of Williams, Williams & Norton, and Charles S. Doster of Merrill, Porch, Doster & Dillon, Anniston, for appellants.
    James N. Brown, III, Birmingham, for appellees.
   PER CURIAM.

Plaintiff/Appellee United Parcel Service initiated this cause against defendant/appellant View-All, Inc., premised upon open account, and for work and labor done. The complaint was later amended to include as individual defendants, George H. Deyo, Sam Grasso, John Poczabut, and Leonard Sansone, in their capacity as directors of View-All. As ostensible class representative, United Parcel Service sought certification of this cause as a class action, alleging conversion, breach of fiduciary duty, and wrongful preference by defendants in their disbursement of monies to creditors of View-All, subsequent to the sale of its assets to Cerro Corporation.

The trial court granted the prayer for class action designation; added Magnavox CATV System, Inc., as a party plaintiff; and granted dismissal against certain remaining plaintiffs; and after an extensive • hearing, entered the following order:

“FINDINGS OF FACT
“CONCLUSIONS OF LAW AND JUDGMENT
“The Court, sitting without a jury, having heard the evidence presented in the above action, renders judgment for the Plaintiff and The Class represented by the Plaintiff, in the total amount of $71,-679.08, against the Defendants, George H. Deyo, Sam Grasso, Dr. John S. Poczabut and Leonard H. Sansone, jointly and severally.
“As the basis for its judgment, the court makes the following findings of fact and conclusions of law.
“1. The individual Defendants, George H. Deyo, Sam Grasso, Dr. John S. Poczabut and Leonard H. Sansone were directors of View-All, Inc., at all pertinent times pertaining to this action and exercised control over View-All, Inc. (hereafter ‘View-All’).
“2. At a time when it was insolvent, View-All was caused by its directors to sell its assets to Cerro Corporation for the Price of approximately $449,500, paid to View-All in cash. The directors loaned various sums of monies in substantial amounts to View-All with knowledge that View-All was insolvent at the time said loans were made. View-All’s insolvency continued from the time of such loans to after the time of the repayment of the loans.
“3. The Directors named in the preceding paragraph had knowledge of View-All’s insolvency, which existed for some time prior to the sale of all of View-All’s assets to Cerro Corporation. The Directors knew that View-All was still insolvent after the sale to Cerro.
“4. From the cash sales price, View-All was caused by its directors to pay some of its creditors. However, Plaintiff and The Class represented by Plaintiff were not paid the amounts owed each of them by View-All.
“5. The directors, instead of paying the creditors referred to above, caused View-All to pay themselves and other directors the sum of approximately $199,-401.92 in settlement of their own personal loans to View-All, which payments were made at a time when View-All was insolvent.
“CONCLUSIONS OF LAW
“The Defendants, George H. Deyo, Sam Grasso, Dr. John S. Poczabut and Leonard H. Sansone willfully disregarded their obligation to cause View-All to pay Plaintiff and The Class and instead fraudulently and jointly conspired to pay and did so pay themselves on their personal loans to View-All, thereby fraudulently violating the fiduciary duty owed by them as directors of View-All to Plaintiff and The Class.
“Each of said defendants, George H. Deyo, Sam Grasso, Dr. John S. Poczabut and Leonard H. Sansone, having jointly committed the fraud, is jointly and severally liable to Plaintiff and The Class for the full amount owed by View-All to Plaintiff and The Class, plus interest on said amount.
“All moneys recovered on the judgment rendered in this case shall constitute a fund for the benefit of the Plaintiff and the members of The Class as specified herein. Said funds shall be administered by counsel for the Plaintiff and The Class and a final report of such administration shall be filed with this Court.
“The total judgment awarded herein represents the amounts owed Plaintiff and each member of The Class by View-All together with interest at 6% per an-num from the date on which each debt owed Plaintiff and each member of The Class became due. The respective amount of the judgment to be distributed to Plaintiff and each member of The Class is as follows:
“Name of Class Member Amount of Judgment Awarded
“Wilford Wyler & Company $30,002.12
“Magnavox CATV Systems, Inc. 15,758.55
“Gamco Industries, Inc. 7,549.98
“Permag Dixie Corporation 97.66
“Jean B. Geist, surviving partner of View-All Pacific 15,179.67
“United Parcel Service 1,688.26
“Wong’s Circuits Company Ltd. 1,206.40
“Commercial Plastics & Supply Corp. 196.44
“$71,679.08
“It is by the Court ORDERED, ADJUDGED and DECREED THAT Plaintiffs, Wilford Wyler & Company, Magna-vox CATV Systems, Inc., Gamco Industries, Inc., Permag Dixie Corporation, Jean B. Geist, surviving partner of View-All Pacific, United Parcel Service, Wong’s Circuits Company, Ltd., and Commercial Plastics & Supply Corp. have and recover of the Defendants, George H. Deyo, Sam Grasso, Dr. John S. Poczabut and Leonard H. Sansone, the sum of $71,-679.08 together with cost of this proceeding for which let execution issue.
“It is by the Court, ORDERED, ADJUDGED and DECREED, that judgment is rendered against all other Class Action Plaintiffs and in favor of the Defendants.
“ORDERED, ADJUDGED and DECREED, this 3rd day of September, 1981.”

View-All appeals from that judgment. We reverse.

FACTS

View-All was an Alabama corporation with its principal place of business in Anni-ston, Alabama. The company manufactured components for sale to the cablevision industry. The business was never successful and was insolvent almost from the date of its inception.

The individual defendants herein were, at all times material to these proceedings, directors and controlling shareholders of View-All, holding approximately 80% of the company’s outstanding stock. In addition to their initial capitalization of View-All, the defendants/directors, from time to time since the date of its origination, personally advanced monies to View-All for the purpose of keeping it solvent. Debentures and personal loans of the defendants/directors totalling $312,700 were capitalized during 1973 by turning them into stock to reduce the debt of the corporation.

The insolvency of View-All was such that it sought a sale of its assets to Cerro Corporation. Thereafter, a sales contract was entered into on or about March 8, 1974. Following bulk sales notice to all creditors of View-All, the sale to Cerro was consummated for approximately $449,500.

SUMMARY OF DISTRIBUTION OF FUNDS FROM ASSETS SALE:
Asset Sale Price 03/08/74 $449,500
Banks/secured creditors 103,000
GTE Sylvania 24,000
Payment of Jones judgment 12,400
Payment to trade accounts (net settlement) 77,600
Payment on principal of shareholder notes 133.000
Subtotal balance 99,500
Offset by Cerro for accrued items, etc. 3.000
Deposit to Escrow 06/06/74 96,500
Final payment Fed. and Ala. taxes 8,400
Payment Emkay Mach. Co. judgment 14,000
Payment to former View-All sales reps 3,400
Attorney fees (settlement) 6,300
Payment to additional trade accts. (settlements) 2,700
Final payment on principal of stockholder notes 63,200
Interest received on escrow funds 1.500
99,500

The plaintiffs herein are parties who received no monies in either the March or September 1974 payments. View-All was later dissolved.

IN PERSONAM JURISDICTION

Certain nonresident defendants were served by certified mail. The crux of the supporting affidavit was to the effect that the nonresident defendants “were officers, directors, stockholders or otherwise in control of” View-All, so as to support in per-sonam jurisdiction in the courts of this state.

Defendants’ challenge to the sufficiency of such service of process, and to the propriety of jurisdiction, is bottomed upon the allegation that the individual defendants’ mere presence on the board of directors of an Alabama corporation is insufficient to meet the “minimum contacts” mandate of ARCP 4.2(a)(2)(I).

Professor Moore summarizes the current constitutional requirements in this area as follows:

“The first requirement is that there must be some minimum contact with the state which results from an affirmative act of the defendant. But it is not necessary that the defendant have been in the state or that it have had agents there... .
“In addition to some minimum contact with the state, it must be fair and reason-. able to require the defendant to come into the state and defend the action. [I]n determining what is fair and reasonable, the court may consider factors associated with the doctrine of forum non conveniens, but need not give them overriding importance....
“Based as they are on notions of fairness and reasonableness, the Supreme Court decisions do not permit a simple generalization of the rule pertaining to in personam jurisdiction over foreign corporations. ...
“If there are substantial contacts with the state, for example a substantial and continuing business, and if the cause of action arises out of the business done in the state, jurisdiction will be sustained. If there are substantial contacts with the state, but the cause of action does not arise out of these contacts, jurisdiction may be sustained. But if there is a minimum of contacts, and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction. If there is a minimum of contacts and the cause of action does not arise out of the contacts, there will normally be no basis of jurisdiction, since it is difficult to establish the factors necessary to meet the fair and reasonable test.”

2 J. Moore, Federal Practice, Para. 4.25, pp. 4-258 through 4-267 (2d Ed.1982).

Under the “minimum contacts” standard of in personam jurisdiction, maintenance of the suit must not offend “traditional notions of fair play and substantial justice.” Williams v. Barrington Ford, 402 So.2d 903 (Ala.1981); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Admittedly, the simplicity of such language rarely obtains in its application. We think, however, that Defendants here were engaged in a substantial and continuing business within this state, and that plaintiffs’ claim arose out of this course of action. Consequently, we hold there did exist the requisite minimum contacts to require each individual defendant to come within the boundaries of this state and answer plaintiffs’ allegations. International Shoe Co. v. Washington, supra. See McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

FRAUD AND CONSPIRACY

Appellees (plaintiffs below) contend in their complaint that appellants, by giving themselves preferences over other creditors from the proceeds of the sale of the assets of View-All Products, Inc., converted funds which belonged to View-All, and that this amounted to fraud as regards the various appellees. The trial court agreed, finding that such a preference constituted a violation of the directors’ fiduciary duty owing to the creditors as a class. We disagree.

There can be no doubt that a cause of action for fraud will lie by a creditor against the directors of a corporation if such action is supported by the evidence. E.g., O'Connor Mining & Manufacturing Co. v. Coosa Furnace Co., 95 Ala. 614,10 So. 290 (1891).

The mere fact of the giving of preferences to themselves by the directors does not, however, in and of itself, constitute fraudulent conduct. At common law, the settled rule in this state allowed an insolvent corporation to make a transfer of its assets to one or more of its directors in payment of bona fide debts due from the corporation, thereby preferring such directors to other creditors in payment of its corporate debts. Corey v. Wadsworth, 118 Ala. 488, 25 So. 503 (1897). The trial court never found the debts to the directors not to be bona fide, and, on the contrary, referred to them in its order several times as personal loans.

Any relief available to the plaintiff class/appellees exists in Ala.Code 1975, § 10-2-201, by which the legislature adopted the “trust fund doctrine,” which had been repudiated by this Court at common law.

Section 10-2-201 provides:

“§ 10-2-201. Assets of insolvent corporations.
“The assets of insolvent corporations constitute a trust fund for the payment of the creditors of such corporations which may be marshaled and administered in courts having jurisdiction in equitable matters in this state. (Acts 1959, No. 414, p. 1055, § 75.)”

Under the trust fund doctrine, the directors and officers of an insolvent corporation cannot give themselves a preference in the payment of corporate debts over other general creditors; however, as a creditor of the corporation, he is not subordinate to other creditors of the same class merely by virtue of being a director or stockholder. First National Bank of Birmingham v. Huddleston, 239 Ala. 528, 195 So. 755 (1940).

In other words, the relief available to the plaintiff class/appellees is not a dollar-for-dollar recovery of the debts owed them by the corporation from the directors who gave themselves preferences. The relief in equity is a marshaling of all the assets of the insolvent corporation for a pro rata administration to all creditors, including the director/creditors. The relief is an equitable one and does not depend on the fraudulent conduct or lack of good faith on the part of the directors.

To invoke the equity jurisdiction of the court under § 10-2-201, a complaint must allege the insolvency of the corporation and ask for the relief of marshaling and administering the assets. Cassells Mills v. First National Bank of Gadsden, 187 Ala. 325, 65 So. 820 (1914). This is no less true under our current Alabama Rules of Civil Procedure.

The complaint in the instant case falls short in that regard. Whether such relief is still timely is a determination to be made by the trial court on remand.

We emphasize that our determination of the instant case is made pursuant to Ala. Code 1975, § 10-2-201. This section was repealed and no comparable section was enacted by the new Alabama Business Corporation Act, Ala. Acts 80-633. We make no determination here how a similar question would be decided under the current statute.

The instant case is, therefore, due to be reversed and remanded in accordance with the foregoing instructions.

REVERSED AND REMANDED.

All the Justices concur.

      . Defendants originally omitted Magnavox CATV System, Inc., from a list furnished by the trial court of plaintiffs answering defendants’ interrogatories.

      . Interrogatories propounded by defendants were answered by approximately 20 of the original class action plaintiffs. On motion by defendant View-All, the action was dismissed as to all plaintiffs not answering the interrogatories.

      . An information statement given the stockholders of View-All shows that loans totalling $225,000 by the defendants/directors were contributed to the company in December 1971 to retire certain debts and increase working capital. An additional $20,000 was loaned in 1972 to increase working capital, and $12,000 was paid individually by the directors in settlement of a lawsuit against the company.

      . Of this amount, $252,404.80 was initially paid by Cerro to View-All. The difference between the purchase price ($449,500) and the amount actually received by View-All ($252,404.80) was apparently paid directly by Cerro to secured creditors.