text:
    Bailey VANDERBILT v. CITY OF HOLLY SPRINGS, MS.
    No. 54773.
    Supreme Court of Mississippi.
    March 21, 1984.
    Rehearing Denied May 30, 1984.
    Alvin 0. Chambliss, Oxford, for appellant.
    Eugene D. Brown, Jr., Crutcher, Spencer & Brown, Holly Springs, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   AFFIRMED.


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice,

license: Public Domain

text:
    Reginald CARTER v. STATE of Mississippi.
    No. 54,791.
    Supreme Court of Mississippi.
    March 28, 1984.
    Rehearing Denied May 30, 1984.
    John L. Clay, Jackson, for appellant.
    Bill Allain, Atty. Gen., Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Reginald Carter was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Honorable H. Breland Hilburn, presiding, on a charge of robbery, and was sentenced to twelve (12) years in custody of the Mississippi Department of Corrections. He appeals to this Court and assigns the following errors in the trial below:

(1) The lower court erred in failing to grant appellant’s motion for a mistrial.
(2) The verdict of the jury is against the overwhelming weight of the evidence.
(3) The sentence by the court of twelve (12) years was excessive and against the overwhelming weight of the evidence.

On December 27, 1982, Mrs. Linda Nipper was assaulted in the parking lot of Mississippi Valley Gas Company between 3:00 and 3:30 p.m. by a black male person, who snatched her leather purse and fled with it. The purse had shoulder straps which were wrapped around the victim’s arm, and, during the robbery, the victim was pulled to the pavement and dragged until the straps finally came loose from her arm. The purse contained $2.00 in cash, two checks payable to utility companies, and miscellaneous items of personal property.

Mrs. Nipper described the assailant as weighing 160 lbs., approximately 6 ft. in height, about twenty-three (23) years of age, and dressed in a three-quarters length burgundy leather coat and a knitted cap with a bill on it.

Elwin J. Williams drove to the scene in his automobile and recognized that a robbery was in progress. He attempted to hit the assailant with the car in order to prevent his escape, but was unable to do so. The police were immediately notified and an investigation was initiated.

The next day, appellant was seen by Officer Thomas S. Hunter, who had been given a description of the robber. He was cruising in a police car, summoned another officer to aid him, and appellant was arrested. At the time, appellant was wearing a three-quarters length burgundy leather coat, a cap, and fit the description given the police by Williams and Mrs. Nipper. Appellant was positively identified as the robber by Williams and Mrs. Nipper at a five-man lineup, and they made a positive in-court identification of him.

At the trial, on cross-examination, the following questions were asked and answers given by Officer Thomas S. Hunter:

Q. And the only reason you arrested Mr. Carter is because of the description you got over the radio, is that correct?
A. Correct.
Q. Is a six foot black male, 160 to 170 pounds, uncommon in your area?
A. No, it’s not.
Q. So about the only reason you arrested him was because he had a burgundy coat on, is that right?
A. A general description, and the way he acted when he saw the patrol car.
Q. The way he acted?
A. When he ducked between the buildings.
Q. And that’s when he walked away from you?
A. Right.

On redirect the following exchange took place:

BY MR. WINGATE:
Q. Officer, Counsel asked you one question just then. He asked you did you have any other reason to make an arrest of him. And what was your answer to that?
A. Oh, he was wanted on a petty larceny charge, also.

The above answer of Officer Hunter was objected to and the appellant moved for a mistrial. The trial judge overruled the motion for mistrial but instructed the jury as follows:

BY THE COURT:
The jury will be instructed to disregard o the last remark, which means that when you retire to consider your verdict, anything that the Court instructs you not to consider or that you are to disregard means that you are not to utilize that when you retire to render a verdict; and you are instructed to disregard the last remark by the witness.

i.

The appellant first assigns as error that the court erred in refusing to grant a mistrial and that the appellant was prejudiced by the State’s showing he had been charged with petty larceny, a separate crime from the one for which he was being tried.

The State may not introduce evidence of another crime separate and distinct from the crime charged and for which the accused is being tried, except to show identity, guilty knowledge, intent or motive, or where the offense charged is so interwoven with other offenses that it cannot be separated. Harrington v. State, 336 So.2d 721 (Miss.1976); Younger v. State, 301 So.2d 300 (Miss.1974); Hosey v. State, 300 So.2d 453 (Miss.1974).

In Reddix v. State, 381 So.2d 999 (Miss.1980), the prosecuting attorney made reference to a previous trial of the defendant and the appellant objected and moved for a mistrial on account of same. This Court held that, since there was no request that the jury be instructed to disregard the testimony, no reversible error was committed. See also Carrol v. State, 391 So.2d 1000, 1002 (Miss.1980) and Clanton v. State, 279 So.2d 599, 562 (Miss.1973).

The jury is presumed to follow the instructions of the trial judge. In the case sub judice, the trial judge instructed the jury to disregard the answer of the witness Hunter, he complied with the law in doing so, and we are of the opinion that no reversible error was committed. Also, at the conclusion of the State’s case, the appellant .neither testified nor introduced evidence to refute that presented by the State, but immediately rested. Therefore, in our opinion, evidence of guilt was overwhelming against the appellant, and, from that evidence, the jury could not reasonably have found any verdict other than that of guilt.

II.

The appellant contends second that the verdict of the jury is against the overwhelming weight of the evidence. In' discussing the first question, we have determined that there is no merit in the second assignment of error and that the verdict of the jury was supported by the overwhelming weight of the evidence.

III.

Appellant contends third that the sentence of twelve (12) years was excessive and amounted to an abuse of discretion on the part of the lower court. We have held many times that when a sentence of the trial court is within the limits fixed by the statute, this Court will not reverse on the ground that the lower court imposed an excessive sentence and abused its discretion. Contreras v. State, 445 So.2d 543 (Miss.1984); May v. State, 435 So.2d 1181 (Miss.1983).

Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice, BOWLING, Justice, ROY NOBLE LEE, Presiding Justice,

text:
    Arthur Ray LANIER v. STATE of Mississippi.
    No. 54208.
    Supreme Court of Mississippi.
    April 11, 1984.
    Rehearing Denied May 30, 1984.

      Jim W. Rose, Rose & Woodfield, William Bethea, III, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, Albert Necaise, Gulfport, for appellee.
   PATTERSON, Chief Justice,

for the Court:

Arthur Ray Lanier was convicted in the Circuit Court of Forrest County upon an indictment charging him with the murder of Buford Dedeaux, a policeman of Gulf-port, who was “acting in his official capacity ... (as) a peace officer ...” in violation of Mississippi Code Annotated, § 97-3-19(2)(a), (Supp.1982). Lanier was sentenced to death. The homicide occurred in the First Judicial District of Harrison County but was transferred to Forrest County on a motion for change of venue. On this appeal Lanier argues (among other contentions) his arrest was illegal; videotaped inculpatory statements were improperly admitted into evidence, as was the weapon used in the homicide; erroneous selection of the jury; erroneous jury instructions; the sufficiency of the evidence to convict; the final argument of the district attorney; the lack of aggravating circumstances; and the constitutionality of the capital murder statute, § 97-3-19(2)(a).

For understanding of the issues a summary of the evidence follows which will be supplemented with exact testimony where necessary for discussion.

Policeman Dedeaux was shot to death by the defendant in the first hour of June 8, 1979, in the First Judicial District of Harrison County, near the city limits of north Gulfport. After being shot Dedeaux requested assistance by radio but died shortly after the arrival of assisting officers. When the first policeman arrived he found Dedeaux in his policeman’s uniform lying mortally wounded on the driver’s side of his police car. At the scene, the following evidentiary items were found: a yellow bicycle, a green ditty bag, a blue watchcap, several spent .22 calibre cartridge casings and Dedeaux’ service revolver. The homicide apparently occurred about 12:30 a.m. and Lanier was arrested about 5:00 p.m. the same day at his grandmother’s residence in north Gulfport. He was fully advised of his Miranda rights and at approximately 1:10 a.m. on Sunday, June 10, 1979, made a videotaped statement in which he admitted shooting Dedeaux under the circumstances hereinafter related.

Lanier stated that while riding his bicycle, he was stopped by Officer Dedeaux and directed to empty the ditty bag. In complying Lanier removed a pistol from the bag and Dedeaux drew his gun and fired at him. He stated that he fired at Dedeaux while running backwards but was not sure if any of the shots had actually struck Dedeaux, who entered the patrol car and radioed for help. Lanier then stated that he threw the gun away and returned to his grandmother’s home. Following this statement, Lanier assisted the officers in locating the gun he had thrown away.

THE ARREST

The first argument of the defendant is that the trial court erred in permitting the jury to view and hear the videotaped statement in which he admitted shooting De-deaux. He filed a motion to suppress “because, among other things, there was no probable cause for arrest.” The trial judge conducted a hearing on the suppression motion and overruled it. The defendant contends the arrest warrant for his arrest was invalid and aside from it there was not probable cause for his arrest. He argues the warrant was invalid because the affidavit of the district attorney did not set forth sufficient facts to establish probable cause for its issuance and additionally, the warrant was issued by a deputy court clerk who was neither a neutral nor detached magistrate as required by law. In responding the state urges there was probable cause for the arrest either with or without the warrant.

The following facts were established during the suppression hearing. After being shot, Dedeaux radioed other officers that he needed help, and when assistance arrived on the scene they found Dedeaux lying on the front seat of the patrol car mortally wounded. The lights of the police car were not on and Dedeaux expired without regaining consciousness.

An investigation ensued in which Pren-tiss Smith, an official of the Harrison County Sheriff’s Department, participated. At the time his investigation began Dedeaux’ body had been removed but the quest revealed a yellow bicycle with a crescent wrench and key wired to the handlebars, a blue pullover hat on the hood of the police car, and a green “ditty bag.” These items were found either on or in the immediate area of the patrol ear. Continued canvassing of the neighborhood adjacent to the scene yielded no further clues.

At the request of police officials, a picture of the bicycle found at the scene was displayed on local television. In response to it, Jimmy Moore contacted Officer Smith at about 1:30 p.m., June 8, 1979. Smith was informed by Moore that he and Cyril Lindsey, a companion, had been watching television and recognized the bicycle as that of Lanier. Moore explained that he and Lindsey worked at the same company with Lanier and saw him ride the bicycle to work on Thursday morning, June 7. Moore and Lindsey were brought to the police station and identified the bicycle as that of Lanier. Moore and Lindsey also stated they had observed Lanier carrying the ditty bag and wearing the watchcap. These identifications linked Lanier to the homicide. The district attorney was informed of these facts and they formed the basis for the ensuing affidavit and arrest warrant.

At approximately 5:00 p.m. on June 8, Officer Prentiss Smith, who had previously participated in the investigation, served the arrest warrant by informing Lanier that he had a warrant for his arrest. The warrant was served upon Lanier at his grandmother’s home at which time he was informed of his “Miranda rights” by Officer J.D. Cook. When asked if he understood these rights Lanier responded that he did.

We are of the opinion that the arrest warrant was invalid because the deputy clerk had no authority to issue it. He was neither a judge nor a conservator of the peace as defined by Mississippi Code Annotated, §§ 99-15-3 and 99-15-5 (1972). Moreover Mississippi Code Annotated, § 9-9-27 (1972), provides that, “... any reputable citizen may make an affidavit charging crime before the judge of the county court, and such affidavit shall be filed with the clerk of the county court ...,” indicating as do the previous sections that the issuance of an arrest warrant is a judicial function. Nowhere do we find authority for a clerk or deputy clerk to perform such judicial function. See Martin v. State, 190 Miss. 32, 199 So. 98 (1940), and Porter v. State, 135 Miss. 789, 100 So. 377 (1924). The arrest warrant was invalid.

The state nevertheless contends that Lanier’s arrest was justified pursuant to Mississippi Code Annotated, § 99-3-7 (1972) and Mississippi Uniform Criminal Rules of Circuit Court Practice 1.02 as a warrantless arrest because the arresting officer knew a felony (homicide) had been committed and reasonable grounds to believe the person arrested had committed it. As mentioned the arresting officer had participated in the investigation and had knowledge of the facts then known by the authorities. While it is true in making the arrest the officer stated that he had “a warrant” for such, we do not think this invalidates the arrest if the officer then had knowledge of facts sufficient to constitute probable cause for a warrantless arrest. See United States v. Mahoney, 712 F.2d 956 (5th Cir., 1983), and Powell v. State, 394 So.2d 326 (Miss.1981), wherein this Court discussed the requirement of probable cause:

In Evans v. State, 275 So.2d 83 (Miss.1973), p. 85, in quoting from a United States Supreme Court decision, we stated:
“The Court pointed out in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948):
‘In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. * * ⅜ at 1890).’
“It has been said that ordinarily, when the trustworthy evidence makes it clear that an offense has been committed * * and then available evidence makes it reasonable to infer that the particular person not necessarily was, but may have been, one of the offenders, most discreet and prudent men would order that person’s arrest.” 394 So.2d at 328.

See also Jones v. State, 358 So.2d 414 (Miss.1978).

In Rome v. State, 348 So.2d 1026, 1027 (Miss.1977), we stated that “probable cause means more than bare suspicion, but does not necessarily require sufficient evidence to support a criminal conviction.” To the same effect see Powe v. State, 235 So.2d 920 (Miss.1970).

Officer Smith had knowledge that a homicide had been committed. The critical issue is whether there was sufficient evidence to create a reasonable probability that Lanier had committed the homicide. A brief return to the scene of the crime might be helpful. When the Gulfport officers responded to Dedeaux’ distress call they found a police car with Officer De-deaux lying near death in it with his service revolver on the ground. They also found a yellow bicycle, a blue cap, a green ditty bag and nine .22 calibre shell casings in the immediate vicinity. Later in the day they received information that Lanier had been observed riding the same bicycle on the morning preceding the homicide and that he wore a cap similar to that found on the hood of the police car.

We conclude the officer had probable cause to make the arrest without a warrant. Moreover, if it be assumed ar-guendo, that probable cause did not exist for either the issuance of the arrest warrant or the arrest, this does not of itself necessarily invalidate the subsequent confession. In Butler v. State, 296 So.2d 673 (Miss.1974), we held:

The fact that the arrest in this case was without probable cause does not automatically render the confession inadmissible, but it does require an examination of the facts to determine what effect the illegal arrest had upon the giving of the confession. Bell v. State, 274 So.2d 371 (Miss.1973); Keith v. State, 197 So.2d 480 (Miss.1967). 296 So.2d at 675.

A discussion of the arguendo hypothetical merges into the voluntariness of the confession and will be considered on that point.

THE CONFESSION

ADMISSIBLE OR INADMISSIBLE

In arguing the confession was involuntary Lanier directs our attention to the delay of 50 or 60 hours by the Gulfport Police Department in bringing him before'a judicial officer for his initial appearance pursuant to Mississippi Uniform Criminal Rules of Circuit Court Practice 1.04. He also contends the police officials continued to interrogate him after he had refused to waive his “Miranda rights,” and that the confession was obtained as a result of a promise to obtain psychiatric help for him. He asserts that if any of the above contentions be insufficient to suppress, that nevertheless the “totality of the circumstances” requires suppression.

The attack upon the admissibility of the inculpatory statement presents inter-related issues requiring some analysis from both Fourth and Fifth Amendment perspectives. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Hall v. State, 427 So.2d 957 (Miss.1983). Both the United States Supreme Court and this Court have held that the threshold issue in deciding admissibility requires a determination of the statement’s voluntariness. The test is whether the statement was obtained in violation of the requirement stated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If an arrestee is informed of his Miranda rights, and if upon a review of the “totality of the circumstances” it is determined that those rights were “scrupulously observed,” and the statement was not obtained as a result of force, threats, coercion, or promises, then the threshold requirement of the vol-untariness of the confession is satisfied. Brown v. Illinois, supra; Hall v. State, supra. See Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Lee v. State, 338 So.2d 399 (Miss.1976).

In short, the basic analysis in evaluating the admissibility of a statement involves several factors. Was the statement voluntary under Miranda? This question forms the sine qua non. Further inquiry goes to the legality of the arrest itself. If the arrest was legal, as we have heretofore held, and the statement voluntary, then it is valid evidence. If the arrest was illegal, (as posed in hypothetical) then the analysis must include a determination as to whether the statement was obtained by the exploitation of the illegal arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 824 (1979); and Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).

In making these determinations we consider, as did the trial court, that Lanier was arrested at about 5:00 p.m. on Friday, June 8, 1979, and was given the Miranda warning. He was then transported to the Harrison County Sheriffs office where a waiver of rights’ statement was read to him by Officer Smith. Lanier then stated that he wanted to talk to his mother before signing anything. Thereafter he was removed to the city jail where his rights were read to him by Officer Pell. Later at 7:00 p.m. Detective Johnson arrived at the police department and Lanier was again advised of his constitutional rights after which he stated that he understood and signed the form which was witnessed by his brother and Officer Johnson.

Lanier’s brother remained with him thereafter and according to Officer Johnson, Lanier agreed to make a statement and signed the form but then decided he did not like the word “waiver” and asked that it be deleted. After the deletion was made Lanier gave an oral statement denying that he had anything to do with the crime. At approximately 5:30 p.m. the next day, Saturday, June 9, Lanier was again given his Miranda warnings and moved from the city jail to the Gulfport Police Department, where he once again signed a waiver of rights form at about 8:00 p.m. after deleting the words “waiver of rights,” and answered some general questions after which he remained alone until nearly 11:00 p.m. At approximately 11:20 p.m. after again being advised of his rights, he asked for his mother who came to the police department at about 12:30 a.m. After Lanier had visited and talked with his mother, he signed a waiver of rights form and made the videotaped statement which is presently argued to be inadmissible because it was not voluntarily taken.

Our review of this record reveals beyond peradventure of doubt that Lanier knowingly and voluntarily waived his right to remain silent and, accordingly, the questioning to which he submitted was not constitutionally prohibited. Although he was not pleased with the “waiver of rights” language he nevertheless discussed the homicide in question with officers and gave a videotaped statement at approximately 1:10 o’clock on the morning of June 10, 1979, after he was warned of his constitutional prerogatives, after he had executed a formal waiver of those rights and after he had visited with his mother and who was present when the statement was given. We have scrutinized this record in great detail and are unable to discern any testimony indicating that the statement resulted from an assumed invalid arrest. We reiterate that it is our opinion there was probable cause for the arrest. We now hold there was no inducement or coercion to obtain the statement from Lanier by way of promise of hope or reward; nor do we find any evidence of physical or mental coercion for the statement through delay or any violation of Miranda v. Arizona, supra.

We need address, however, the contention of Lanier that he was promised mental health assistance. We think the argument advanced is out of context with the statement and assumes that the help offered was conditioned upon his confession. The record shows otherwise as is excerpted from the transcript:

“JOHNSON: O.K. Are you aware of what you’re saying?

“LANIER: Yes sir.

“JOHNSON: Are you saying it on your own free will?

“LANIER: Yes sir.

“JOHNSON: Without any promises or threats?

“LANIER: Did, uh, the only thing they said ’bout helpin’ me give me some mental help.

“JOHNSON: Well, if you need mental help, you know we’ll help you.

“LANIER: Well, I don’t know why I did it. I don’t know why.”

Lanier’s mother testified this colloquy was made prior to the confession and that the officers told her son they would give him help. It. need be noted the help was forthcoming whether the statement was given or not and there is nothing to indicate the officers made Lanier any promise for the purpose of inducing him to make his statement. In State v. Beck, 390 So.2d 748, 749 (Fla.App.1980), it is stated:

... non-particularized comments ... concerning medical or psychiatric assistance ... do not result in exclusion of a confession, so long as the aid is not offered in return for a consequent statement.

As stated, we are of the opinion the trial court did not err in denying the motion to suppress and did not err in later admitting it into evidence during the trial-in-chief.

THE STATEMENT

Cardinal to the disposition of this case is the statement of Lanier which was introduced by the state. Since Lanier did not testify at trial, the statement’s verbage is nakedly before us without explanation. It is extremely important because the court must determine from it whether Lanier was or was not entitled to a manslaughter instruction. Less opening remarks, the statement follows in pertinent part:

“(OFFICER) JOHNSON: Okay. What we’re concerned here with is the killing of Gulfport Police Officer Buford Dedeaux, and it happened early Friday morning, approximately 1:00 A.M., which would be the 9th of June, 1979. And you’ve been arrested and charged with Murder, and what I’d like you to do, in your own words is explain to me everything that happened that night.

“(OFFICER) DANIELS: ’Scuse me Tom, that’s the 8th.

“JOHNSON: Oh, is it the 8th?

“DANIELS: 8th of June.

“JOHNSON: Okay.

“DANIELS: Approximately 12:45.

“JOHNSON: Okay.

“DANIELS: 8th of June.

“JOHNSON: 12:44 A.M.

“DANIELS: Correct.

“JOHNSON: Okay. Uh, would you do that?

“(APPELLANT) LANIER: Yes sir.

, “JOHNSON: Okay.

“LANIER: Well, on that, on that particular night, no, thank you, I was riding around. I went to my brother’s house, took a bath, riding around on the bicycle. I took my bath. And, and I didn’t have nothin’ to do. I went to the club, drunk a little beer, and smoked some weed.

“JOHNSON: What club did you go to?

“LANIER: Club Shangri-Lai.

“JOHNSON: Okay.

“LANIER: And I just rode around, and I went back to my brother house. He was in the bed sleeping and I woke him up, and we chat, and he told me a friend of mine Kenny Martin told me to come by his house and uh I went by.

“JOHNSON: Alright, what were you riding on?

“LANIER: 10-speed bike.

“JOHNSON: That yellow one?

“LANIER: Yes sir.

“JOHNSON: Okay.

“LANIER: And uh, I ain’t have nothin’ on my mind you know. I was already loaded. And stop by and chat with him, couldn’t find no, no Marijuana cigarette paper so I got on my bike and I started ridin’. I stopped by this young lady house uh they call her Cochise. She had some paper, and I smoked a joint with her. I got a few little paper and put ’em in a uh little envelope I had with some Marijuana in it. I told her I’m gone take me a ride. I don’t know where I’m going. And I started ri-din’ and uh I ended up ridin’ down 25th and this, this police car was checking, checking out, checking the store when I was riding’. I even thought he was gonna stop me and had it on my mind and when he called me and stopped me, I got scared. I started thinking.

“JOHNSON: Alright, why were you scared?

“LANIER: I had a gun on me, some Marijuana, and influenced out, under influence of Marijuana, alcohol, and I was scared, I wasn’t thinking right. I had in my mind to keep on ridin’, don’t stop, but I stopped. I don’t know why and he asked me to take my stuff out the bag.

“JOHNSON: Was he out of the car?

“LANIER: He was out the car.

“JOHNSON: Where was he standing?

“LANIER: He was standing on the right hand side where I was, and uh, I started taking stuff out of my bag, and by that time I got some of the stuff out the bag, he had pulled his weapon out, and when I pulled mine out,

“JOHNSON: What did you pull out?

“LANIER: I pulled out a .22 automatic revolver holds ten rounds, you know ten shots in it and when he shot, saw the gun, he shot at me first. I got more scared. I thought he was gonna kill me, and I just froze, started pulling the trigger, and he went, he went to the car like there wouldn’t nothing wrong, started, got on the radio, called, called in for some backup, and I didn’t know he was hit, and I started running.

“JOHNSON: Where were you when he called?

“LANIER: I was ’bout twenty feet from the car.

“JOHNSON: From the rear of the car?

“LANIER: From the rear of the car. When I realized what I had done, I was halfway down the track. I throwed the gun away. I ran. I hid up in the box car after I jumped out, after I came up the water, got in the box car. I kneeled down and then I prayed to God, asked God please forgive me. I ain’t mean to shoot him please forgive me. I ain’t mean to shoot him, I know he had some kids cause I ain’t mean to do it (inaudible) cause I don’t know if I killed him or not. I don’t know if I hit him, but I know I done wrong. I asked him to forgive me. He told me to go on home. I went home and I ran all the way home, knocked on my grandma’s door. She opened the door and I went to sleep.

“JOHNSON: About what time was this that she answered the door?

“LANIER: It was ’bout, I really, I couldn’t say cause I, I, I left the young lady’s house ’bout.

“JOHNSON: Alright, the shooting took place at almost 1:00 o’clock.

“LANIER: Almost 1:00 o’clock? It was ’bout fifteen after one I guess cause I took time out and prayed, and I came home. She opened the door. I came in, said my prayers, asked God to forgive me again and look after his family if I killed him or if I hurt him. I didn’t know, really know. And I went to sleep. Asked, falling to sleep, asked my grandma to wake me up to go to work. I went to work and everybody, police was all around and uh, I thought that he was still living, and I heard he was dead. There wasn’t nothing I could do about it but just wait. I wouldn’t gone run. And,

“JOHNSON: Alright, the uh the hat, were you wearing a hat?

“LANIER: No sir. I wasn’t wearing no hat. Hat was in the bag.

“JOHNSON: It was in the bag. Okay, how did it get on the hood of the car, on the uh,

“LANIER: I put it on the,

“JOHNSON: On the fender of the car?

“LANIER: Fender? It was on the hood of the car. I don’t know how it got on the fender. Wind musta blowed it. All I know it was on the hood.

“JOHNSON: Okay, well, the hood, alright. How did it get there?

“LANIER: I put the hat on the hood.

“JOHNSON: Okay, uh, when you were talking to Officer Dedeaux, which way were you facing?

“LANIER: Facing 49.

“JOHNSON: Alright, and which way was he facing?

“LANIER: Facing me.

“JOHNSON: Okay. How, how close were you?

“LANIER: Believe 'bout four feet apart.

“JOHNSON: About four feet apart?

“LANIER: Yes sir.

“JOHNSON: Alright, how did the uh how far were you when, when you fired your first shot?

“LANIER: I don’t know. When, when he shot first, I backed up I think and probably back a couple of feet.

“JOHNSON: About two feet away?

“LANIER: I backed about two feet away from him.

“JOHNSON: Alright, do you know where your first shot went?

“LANIER: No sir. All I did, all I know I just shot. I don’t know if my eyes was open or not. And when I realized he was going to the radio, call for help, I ran, just kept running and then I look-, got down the railroad track a piece, I stopped and looked at my gun, and I throwed it away.

“JOHNSON: Alright, about where did you throw the gun?

“LANIER: Behind West Building Materials somewhere.

“JOHNSON: Alright, did you, you were running north on the railroad tracks?

“LANIER: Northwest.

“JOHNSON: Northwest? Alright, did you throw the gun to the right or the left? Did you throw.

“LANIER: To the right.

“JOHNSON: You threw it in an eastern direction?

“LANIER: Yes sir.

“JOHNSON: Okay, uh it go into some woods or uh,

“LANIER: Some woods I think.

“JOHNSON: Bushes or what?

“LANIER: Woods, bushes.

“JOHNSON: Do you think you could remember the place where you threw it?

“LANIER: Think so.

“JOHNSON: Okay. Are you willing to take us there and help us recover the gun?

“LANIER: Yes sir.

“JOHNSON: Okay. Is there anything else that you can remember?

“LANIER: No sir. No more than what I told.

“JOHNSON: Alright. Is there anything else you want to add?

“LANIER: No.

“JOHNSON: Okay.

“LANIER: Less ya’ll have you know questions.

“JOHNSON: Okay. Do you have anything, Chief?

“(OFFICER) PAYNE: Ray, exact, was it, the place where you and Officer De-deaux had your confrontation,

“LANIER: Yes sir.

“PAYNE: Were you near any stores? You said it was near 25th Avenue. What vicinity of 25th Avenue was it in?

“LANIER: Yes sir, it was ’tween Yeager’s and uh trailer lot.

“PAYNE: The car was up in the parking lot there between Yeager’s and the uh,

“LANIER: It’s like,

“PAYNE: Trailer lot?

“LANIER: It’s like he was coming out on 25th.

“JOHNSON: Which way?

“LANIER: He4 was, he was headed south.

“JOHNSON: Alright, which way was the car facing?

“LANIER: South.

“JOHNSON: Okay.

“LANIER: Front of the car was facing south.

“PAYNE: Which way were you heading?

“LANIER: South.

“PAYNE: You were heading south too? Do you remember how many times you shot the gun?

“LANIER: No sir. All I remember, I pulled the trigger one time. I don’t know how many times it went off.

“PAYNE: Did, did Officer Dedeaux discharge his weapon at you?

“LANIER: He fired at me first.

“PAYNE: How many times did he shoot his weapon?

“LANIER: I think once or twice. I don’t know. Every, everything happened so fast I don’t know.

“PAYNE: Does uh, Ma’am, would you like to ask your son anything?

“(LANIER’S MOTHER) FAIRMAN: (inaudible)

“JOHNSON: Pardon?

“FAIRMAN: Think I don’t know about what he’s saying, ask his daddy.

“LANIER: That ain’t gonna do it. I didn’t want to go down 25th, but uh I wasn’t thinking. I was just ridin’.

“JOHNSON: Were you scared.

“LANIER: After I was stopped.

“JOHNSON: That’s what I mean.

“DANIELS: Ray, where did, where was the gun at when uh Officer Dedeaux walked up to you? Where did you have the gun?

“LANIER: In the bag.

“DANIELS: In the bag?

“LANIER: It was concealed in the bag.

“DANIELS: Did he see the gun?

“LANIER: No sir. He said to, he saw the handle part when I pulled it out. He shot ’bout time I had, 'bout time he pulled his trigger, I had, I done had it, had my gun out. He shot. I shot back. I think I just shot one time but I don’t know how many times it went off.

“JOHNSON: Alright, did you shoot as you were running?

“LANIER: Running back.

“JOHNSON: You were running backwards?

“LANIER: I just, not backwards, kind of sideway, wasn’t too much to look at.

“JOHNSON: Do you remember which hand Officer Dedeaux, Dedeaux held his gun in?

“LANIER: Lefthand I think.

“JOHNSON: His lefthand?

“LANIER: Think so.

“JOHNSON: Okay. Do you have anymore questions?

“LANIER: Left, left or

“DANIELS: I have none.

“JOHNSON: Okay. Ray, the statements that you just gave, were they true and correct to the best of your knowledge?

“LANIER: In the name of Jesus my Lord, yes.”

DID THE COURT ERR IN REFUSING A MANSLAUGHTER INSTRUCTION?

Lanier contends the trial court erred in refusing him a manslaughter instruction. Instruction D-10 was requested and refused by the trial court. The reason or reasons for its refusal is not revealed by the record although we do observe instructions on self-defense were granted. The defendant cites in support of his contention Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), both of which unequivocally hold that a manslaughter instruction is proper and essential “when the evidence warrants.” This, of course, accords with this Court’s holding in Jackson v. State, 337 So.2d 1242, 1255 (Miss.1976), where we held that instructions on a lesser included offense, “should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.” See Dase v. State, 356 So.2d 1179 (Miss.1978); Lee v. State, 130 Miss. 852, 94 So. 889 (1923); and other cases to the same effect which are too numerous to mention. In fact this Court has held in the following cases that the homicide of a law enforcing officer can be manslaughter. See Williams v. State, 122 Miss. 151, 84 So. 8, 14 (1919) (homicide of a deputy sheriff); Jones v. State, 170 Miss. 581, 587, 155 So. 430, 432 (1934) (homicide of city policeman); Coleman v. State, 218 Miss. 246, 67 So.2d 304, 305 (1953) (homicide of a town mar-shall).

More recently in Spencer v. State, 348 So.2d 1030 (Miss.1977), a prosecution for the capital murder of a police officer under Mississippi Code Annotated, § 97-3-19(2)(a), (Supp.1976), it was held that manslaughter was an appropriate lesser included offense and that a manslaughter instruction should be granted on retrial to accord with the dictates of Jackson v. State. The state acknowledges the import of Beck v. Alabama, and Hopper v. Evans, but contends the evidence in this case does not warrant such an instruction and therefore there was no error in refusing it.

The state then contends, as we understand its brief, Mississippi Code Annotated, § 97-3-19(2)(a), (Supp.1974), only requires proof of (1) the victim was a peace officer or fireman acting in his official capacity; and (2) the defendant had knowledge that the victim was such officer to establish guilt of capital murder. From this it is argued the only method the defendant could meritoriously claim entitlement to a manslaughter instruction would be the lack of proof on either one or both of the two essential elements named to raise the homicide to capital status. It is then urged that the court should draw an analogy in this case to that which was held in Bell v. Watkins, 692 F.2d 999 (5th Cir.1982), a capital murder case of this state predicated upon the felony-murder doctrine. It was held in Bell that once the underlying felony is proved, there is no lesser included offense such as simple murder. This holding is the result of an analysis of Mississippi Code Annotated, § 97-3-19 (1972), which designates as capital any homicide perpetrated during an enumerated felony. Though admitting Bell to be inapposite the state nevertheless asks this Court to adapt such logic to the slaying of a peace officer or fireman while either is acting in an official capacity. We reject this analogy because § 97-3-19(2)(a) does not set forth an underlying felony as does § 97-3-19(1)(a), (b), (c) (Supp.1982), and moreover it overlooks this Court’s holding in Spencer v. State, 348 So.2d 1030 (Miss.1977), and Jackson v. State, 337 So.2d 1242 (Miss.1976), both of which authorize a manslaughter instruction in proper cases if warranted by the evidence.

In our opinion the issue is whether there was evidence in the record justifying a manslaughter instruction so that the jury might consider such lesser offense in its deliberation of this capital murder case.

In deciding this question it need be noted that Lanier’s statement (confession) was introduced by the state and in it Lanier stated, and repeated several times, that Officer Dedeaux fired first. There is no other evidence, as such, in the record since the defendant did not testify at trial. Lanier’s statements are corroborated to the extent that three empty cartridge hulls were found in Dedeaux’ revolver and a chemical test of the decedent’s left hand (Dedeaux was left handed) established that he had fired a handgun within a short time prior to his demise. Although it might be argued, as it was, that Lanier fired first inasmuch as Dedeaux, an experienced officer, would have injured or killed Lanier had he fired first because the two men were within point blank range, no more than four or five feet of each other. This assumption, if pursued, generates another inference which is that Lanier fired first mortally wounding Dedeaux and that the officer’s aim, in returning the fire, was faulty because of his wounds. Assuming these inferences to be valid, which we do not, the contradiction arising from the assumed inferences and Lanier’s statement introduced into evidence creates, at best, a conflict between inferences and testimony which could only be resolved by a jury under the guidance of proper instructions. Without the inferences the testimony is uncontra-dicted that Dedeaux fired first and because of this he was entitled to the manslaughter instruction.

Finally, in our opinion, the jury’s verdict of guilty of capital murder thereby rejecting Lanier’s theory of self-defense is not contradictory to his theory of manslaughter. Justifiable homicide, killing another, to protect one’s self from death or serious bodily injury under extreme and imminent circumstances does not necessarily exclude manslaughter. A jury might properly find from the evidence in a particular case that the threat of death or serious bodily injury was not imminently pending and thereby reject the theory of self-defense and the acquittal of a defendant. From the same facts a jury reasonably could, we think, if permitted to do so by a manslaughter instruction find a defendant not guilty of capital murder because the fatal shot was in response to a shot first fired by an officer in a tense, sudden confrontation arising without design of either party, thereby reducing the offense to manslaughter with a corresponding reduction in sentence.

We are of the opinion the evidence, our decisions, and due process of law entitled Lanier to an instruction on manslaughter. In view of this determination we do not reach other questions presented upon the sentencing phase of the trial. We therefore reverse on the guilt phase and remand for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

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

ROBERTSON and SULLIVAN, JJ., not participating.

BOWLING, Justice,

dissenting:

Respectfully dissenting, I shall attempt to show why, in my opinion, the majority are wrong in reversing this case because of the failure of the court to grant appellant its requested Instruction D-10 — the so-called manslaughter instruction. There are several reasons why there is no reversible error resulting from the refused instruction.

I have no quarrel with the authorities cited in the majority opinion. My first contention is that the refusal of the instruction was not error under those cases where they say that the “lesser included offense instruction should be given, if the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); and Jackson v. State, 337 So.2d 1242 (Miss.1976) and others.

It may be trite to remind that the facts of every case are different. There is no resemblance in the facts of the case sub judice when compared to all other cases. We therefore first need to analyze this case to determine whether or not the evidence required the giving of a manslaughter instruction to defendant under the above cited authorities.

We start with the undisputed capital murder requirement that appellant admittedly killed “a peace officer while such officer was acting in his official capacity ... with knowledge that the victim was a peace officer.” Mississippi Code Annotated, Section 97-3-19 (1974).

We next take note that appellant’s entire contention that the case justified “manslaughter” is based on the case presented by the state. We give appellant the benefit of every constitutional right against testifying or introducing no other evidence whatsoever.

We first note the physical facts that the deceased was in a well-marked law enforcement vehicle with a law enforcement canine in its cage on the rear seat and the deceased policeman was lying on the front seat of the said car which was located near the rear of a business establishment. The policeman had time to call on his radio for help prior to dying.

Other than the physical facts, the majority relies solely on the statement , of appellant given two days after the killing, which statement was introduced by the state and as mentioned above was never disputed, contradicted varied or explained by appellant at the trial.

Now let us look at the glaring pronouncements by appellant in his statement. He affirmatively stated that he was “loaded” on drugs and alcohol. He positively stated that when the deceased policeman passed him in the police car, “I started thinking.” He was stopped in a partially secluded area by Officer Dedeaux. When Officer Dedeaux was trying to get to his radio, appellant was “ 'bout twenty feet from the car.” Officer Dedeaux was “ 'bout four feet” from appellant when the officer shot and made a remarkable miss. Appellant then “probably backed a couple of feet” and unloaded his ten-shot automatic pistol at the police officer.

Now comes the part of the state’s case, uncontradicted, unexplained and relied on by appellant to say “I only committed manslaughter.” When the investigating officers first arrived, appellant’s hat was on the fender of the car. Appellant contended that it was on the hood of the car “because I put it on the ... it was on the hood of the car. I don’t know how it got on the fend-er_ All I know is it was on the hood.” Again, “I put the hat on the hood.”

What we have, therefore, is the admitted, uncontradicted, unexplained and reiterated statement of appellant that he was “ ’bout twenty feet from the car”; the deceased and appellant were “ ’bout four feet apart” when the policeman allegedly fired the first shot; the appellant “probably backed a couple of feet” and then appellant, without contradiction or explanation, admitted reaching the car as the policeman was attempting to call for help and placed his hat on the hood of the car. We can take judicial notice that in addition to the positive statement that appellant placed his hat on the car’s hood, the hat certainly did not fly through the air for twenty-five feet and land on the hood. The appellant had to be advancing to a position beside the car to have placed his hat thereon at the time Officer Dedeaux was attempting to secure assistance, whether he was mortally wounded at the time or not.

The trial court had the above undisputed, uncontradicted and unexplained testimony of appellant introduced by the state to compare with the admitted proof of every requirement of capital murder; that is, “killing a police officer, acting in his official capacity with knowledge that the victim was a peace officer.”

We come to another point. At no time either prior to the trial below, during the trial, or before this Court has appellant contended that he killed Officer Dedeaux “in the heat of passion”. His sole defense and his sole requested instructions omitted this element, but on the other hand, he offerred a positive defense of “self-defense.” In appellant’s principal instruction No. D-9, given by the trial court, it is contended:

The Court instructs the jury that in deciding upon the guilt or innocence of ARTHUR RAY LANIER, you should determine what an ordinary and rasonable man might have reasonably inferred from all the facts and circumstances by which the evidence shows that ARTHUR RAY LANIER was at the time surrounded, and, in doing so must not try him in the light of subsequent developments, nor must you require of him the same cool judgment that the jury can now bring to bear upon the occurrence. The jury must put themselves, as far as possible, in ARTHUR RAY LANIER’s place, and then judge whether the danger was apparent, or should have been considered apparent by a man of ordinary caution and prudence in like condition.
The Court instructs the jury that although you may find in this case that ARTHUR RAY LANIER was armed at the time he was stopped by the deceased on the night in question, if you also believe that ARTHUR RAY LANIER never had any intent to kill Buford De-deaux, and that he was then and there faced with a situation where the deceased pulled his pistol and shot in the direction of ARTHUR RAY LANIER, and that ARTHUR RAY LANIER then and there reasonably believed that Buford Dedeaux was attempting to shoot him and that ARTHUR RAY LANIER had reasonable cause to believe and did believe that he was in imminent danger of being killed or receiving serious bodily harm at the hands of Buford De-deaux and that it was necessary to shoot at him to save his own life, then in that event you should find ARTHUR RAY LANIER not guilty. (Emphasis that of the writer of this opinion).

The Instruction D-10 called, the refused manslaughter instruction appears in the record as follows:

The Court instructs the Jury that if you find that the State has failed to prove any one of the essential elements of the crime of capital murder, you must find the defendant not guilty of capital murder, and you will proceed with your deliberation to decide whether the State has proved beyond a reasonable doubt all the elements of the lessor crime of manslaughter.
If you find beyond a reasonable doubt that Arthur Ray Lanier killed Buford Dedeaux, a human being, without malice but by his own action by the use of a deadly weapon, without uathority of law, and not necessarily in self-defense, then you shall find the defendant, Arthur Ray Lanier, guilty of the crime of manslaughter.

First, it is readily apparent that the refused instruction was completely inconsistent with the requested and given Instruction D-9. The latter emphasized “that it was necessary to shoot him to save his own life, then in that event you should find Arthur Ray Lanier not guilty.” The so-called refused manslaughter instruction required the jury to find that the shooting was “not necessarily in self-defense.” The only criteria that this instruction could have given the jury was that it should find for the defendant, if the shooting not necessarily in self defense was “without malice.”

The instruction obviously was based on Mississippi Code Annotated, Section 97-3-35 (1972), which reads as follows:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

The refused Instruction D-10 completely omitted an essential requirements of the statute; that is, that in addition to the killing being without malice, it absolutely required that it be “in the heat of passion.” There is an alternative in the statute wholly disconnected with the requirement that the killing be “without malice in the heat of passion;” and that is that it can either be “in a cruel or unusual manner” or “by the use of a dangerous weapon without authority of law and not in necessary self-defense.”

It is therefore inescapable that assuming appellant to have been entitled to a manslaughter instruction, the submitted D-10 was erroneous and properly refused. It did not require an essential element of manslaughter, statutorily required; that is, without malice, in the heat of passion. (Emphasis supplied). No other instruction on the issue of manslaughter was submitted to the court for consideration. Obviously, appellant recognized the inconsistency in saying first that, “I shot because he shot at me” and in the same breath saying, “I shot because I was in the heat of passion.” The appellant obviously placed all his eggs in one basket when he secured his principal instruction on self-defense and relied on that instruction to explain away his advancing twenty-two feet to the police car and placing his hat on the hood of the car at a time when according to appellant’s contention, the policeman had retreated “ ’bout eighteen feet” in an effort to perform his duties properly and in an effort to secure assistance either before or after being shot.

Appellant’s positive testimony through his statement, completely unrefuted, was that although he first retreated a couple of feet, he then advanced more than twenty feet to the car with Officer Dedeaux retreating in front of him. The statement reaffirmed by appellant through no denial was that during this time he emptied his ten-shot automatic pistol toward the retreating policeman.

With deference, the hereinabove discussed portions of evidence of appellant on his second contradictory affirmative defense of manslaughter completely overcomes his excuses for killing Officer De-deaux, “after thinking ..., while loaded on marijuana and alcohol, ... after removing his ten-shot automatic pistol from his ditty bag and after Officer Dedeaux shot first.”

Finally, we have pointed out that the submitted Instruction D-10 should not have been given because the undisputed and reaffirmed evidence of appellant through his statement did not permit a jury rationally to find other than the defendant killed Officer Dedeaux at a time when the latter was a peace officer, acting in his official capacity, and at a time that appellant knew that Mr. Dedeaux was so acting.

Next, as above discussed, we contend that the requested instruction was not legally correct and could not have been given.

Another distinct and separate reason for dissenting from the majority opinion is that with the situation of no proper manslaughter instruction submitted or given, this Court has held a number of times that a jury may return a verdict of manslaughter, although there is no instruction to the jury on this subject. Dobbins v. State, 207 So.2d 96 (Miss.1968); King v. State, 251 Miss. 161, 168 So.2d 637 (Miss.1964); and Triplett v. State, 159 Miss. 365, 132 So. 448 (1931).

Even though appellant hung his hat on “self defense” and deliberately left out of his contradictory defense of manslaughter that' it had to be done “in the heat of passion,” the jury could have returned a manslaughter verdict had it not found from the evidence and proper instructions that all the elements of capital murder were proven beyond a reasonable doubt. It is clear that the jury chose the latter proof, fully supported by the evidence, rather than finding that appellant deliberately shot to defend himself or shot in the heat of passion.

I would affirm.

WALKER and ROY NOBLE LEE, P.JJ., join in this dissent.

ROY NOBLE LEE, Presiding Justice,

dissenting:

In my judgment, the lower court did not commit reversible error when it refused Instruction D-10 requested by the appellant. Therefore, I dissent from the majority opinion and join the dissenting opinion of Justice Bowling, with additional comments.

Pertinent parts of appellant’s confession are set out in the majority opinion. Justice Bowling has analyzed them. Appellant said that he pulled his pistol out of the bag and, when Officer Dedeaux saw it, the officer shot. Law enforcement officers are trained to use such force as may be necessary to protect themselves, particularly, when a suspect has and displays a firearm. In the high risk crime area where appellant was stopped, Officer Dedeaux had the right to fire first when appellant pulled his gun from the bag. Indeed the officer would have been derelict, from his training and experience, had he not fired. However, the physical facts and inferences indicate a different scenario, as outlined by Justice Bowling.

In concluding, the majority opinion states:

Finally, in our opinion, the jury’s verdict of guilty of capital murder thereby rejecting Lanier’s theory of self-defense is not contradictory to his theory of manslaughter. Justifiable homicide, killing another, to protect one’s self from death or serious bodily injury under extreme and imminent circumstances does not necessarily exclude manslaughter. A jury might properly find from the evidence in a particular case that the threat of death or serious bodily injury was not imminently pending and thereby reject the theory of self-defense and the acquittal of a defendant. From the same facts a jury reasonably could, we think, if permitted to do so by a manslaughter instruction find a defendant not guilty of capital murder because the fatal shot was in response to a shot first fired by an officer in a tense, sudden confrontation arising without design of either party, thereby reducing the offense to manslaughter with a corresponding reduction in sentence.

That conclusion is seriously flawed. A bifurcated trial was held. During the guilt phase, after being instructed on appellant’s right of self-defense, the jury could have found appellant not guilty, or, following the majority line of thinking, could 'have found appellant guilty only of simple murder. Instead, the jury found appellant guilty of capital murder. We cannot say the evidence does not support that verdict. Therefore, a proper manslaughter instruction would have afforded appellant no relief.

Appellant’s theory of what occurred (officer shot first) was before the jury, during the sentencing phase of the trial. It was for consideration by the jury as a proper mitigating circumstance. The jury could have fixed life imprisonment, but, again, appellant’s defense was rejected and the death penalty was imposed. We cannot say the jury was wrong.

I think the jury was instructed properly, the manslaughter instruction correctly was refused, and the conviction and judgment of the lower court should be affirmed.

Therefore, I respectfully dissent from the majority opinion.

WALKER, P.J., and BOWLING, J., join this dissent.

      . A typed transcript of the videotaped statement is included in the record. The videotape was viewed and heard by the jury.

      . This suppression hearing was conducted by the Honorable Kosta Vlahos, Circuit Judge of Harrison County, although the Honorable Jack Weldy, the Circuit Judge of Forrest County, presided over the trial on the merits.

      . It should be noted that four of Lanier’s other assignments of error, i.e., those relating to the admissibility of the gun, the application of the Weathersby rule, the failure of the trial court to grant a directed verdict, and the question of the aggravating circumstances presented to the jury in the sentencing phase of the trial are all directly affected by the determination of the admissibility of the confession.

      . Appellant had po mark whatsoever on him. It is wholly unbelievable that a trained, experi-encbd officer, such as Dedeaux, would miss at four feet unless he was already injured.


text:
    Betty W. RUSHING v. BUBBA OUSTALET FORD, SUBARU, INC., a Mississippi Corporation.
    No. 54834.
    Supreme Court of Mississippi.
    May 2, 1984.
    Rehearing Denied May 30, 1984.
    John M. Deakle, James F. Thompson, Hattiesburg, for appellant.
    Leslie Scott Sheffield, Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appel-lee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF CLINTON, Mississippi: Marvin MUIRHEAD, J.D. Cox, and Carolyn Moore, et al. v. CITY OF CLINTON, Mississippi.
    No. 55264.
    Supreme Court of Mississippi.
    May 9, 1984.
    Rehearing Denied May 30, 1984.

      Russel D. Moore, III, Moore, Royals & Hartung, Jackson, for appellants.
    L. Arnold Pyle, Jerry L. Mills, Pyle, Harris, Dreher & Mills, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

This appeal is from a final decree of the Chancery Court, First Judicial District, Hinds County, Mississippi, ratifying and approving an ordinance adopted by the Mayor and Board of Aldermen of the City of Clinton dated February 2, 1982. The appellants have assigned the following errors in the trial below:

(1) The City of Clinton has totally failed to show any need to expand.
(2) Sections 15, 16, 17 and 18, Township 6 North, Range 1 West, being the north and northeast area of the presently existing City of Clinton boundaries are not reasonably in the path of Clinton’s growth pattern.
(3) The evidence did not disclose any health hazards existing in Sections 15, 16, 17 and 18, Township 6 North, Range 1 West, and hence does not constitute a basis to justify annexation.
(4) The City of Clinton has failed to demonstrate a financial capability to make the improvements and provide municipal services as promised.
(5) Sections 15, 16, 17 and 18, Township 6 North, Range 1 West, have no need of the services offered by the City of Clinton.
(6) The lower court erred in overruling appellant’s motion to reopen for the purpose of introducing newly-discovered evidence.

The City of Clinton was comprised of 6,238 acres prior to the proposed annexation, and the area ordered to be annexed constitutes 9,310.7 acres. After a lengthy hearing, the chancellor rendered the following opinion, which states the facts of the case and the basis of the decree:

“At a regular meeting of the Board of Aldermen of the City of Clinton, Mississippi held on February 2, 1982 an ordinance was duly enacted extending and enlarging the corporate limits of the City. The said ordinance was published according to law in the Clinton News, the newspaper having a general circulation in the City of Clinton and Hinds County, Mississippi. On February 11, 1982 the City filed its petition in this Court for ratification, approval and confirmation of the ordinance. A certified copy of the ordinance, together with the requisite map was attached to the petition. The ordinance defines with certainty the territory proposed to be included in the corporate limits.

“In accordance with the terms and provisions of Section 21-1-27 Mississippi Code of 1972, the ordinance in general terms described the proposed improvements to be made in the territory proposed for annexation, the manner and extent of such improvements and the approximate time within such improvements are to be made. It is stated that the City shall make the following improvements in the territory proposed for annexation within a reasonable time, not to exceed five years from the effective date of the ordinance, unless delayed by war or military preparedness: A. Improve existing streets and drainage; B. Install water lines, water service, sewage disposal lines, sewage treatment facilities, and street lighting where necessary and economically feasible; C. Said services to be furnished in the same manner and to the same extent as such services are being furnished to the present citizens of the municipality.

“The ordinance further sets out a statement of the municipal or public services which the City proposes to render in the annexed territory and to the same extent as such services are being furnished to the present citizens of the municipality, such services to begin on the effective date 'of the ordinance, to-wit: A. Police protection; B. Fire protection; C. Garbage removal; D. Trash and other debris removal; E. Pest control; F. Maintenance of existing streets; G. The right to exercise the ballot in municipal elections upon registering and meeting all statutory and constitutional requirements and upon approval under the Voting Rights Act of 1965, and the use and benefits of all other municipal services and facilities furnished all present citizens of the municipality of the City of Clinton, Mississippi; including, but not limited to the use of its public parks, recreational facilities, the use of the library facilities, and the use and benefit of all other municipal services and facilities furnished by the City of Clinton to all of the present citizens of the municipality.

“On February 16, 1982 this Court entered an order fixing the date for hearing for said petition; that is to say, April 27, 1982. Thereupon, notice to all persons interested in, affected by, having objections to, or being aggrieved by the ordinance was given by publication according to law. Further notice by posting was given in the manner prescribed by statute.

“The Court finds that the ordinance and the petition for ratification or approval and confirmation thereof are in accord with the provisions of the statute in such cases made and provided.

“Of the people living in the territory sought for annexation approximately thirty individuals signed the objections filed in this cause. No industries filed any objection.

“A joint Answer of the Clinton Municipal Separate School District and the Hinds County School District was filed. The basis of this Answer was a Consent Decree that had been entered in the United States District Court for the Southern District of Mississippi, Jackson Division, in Civil Action Cause Number 4075(J). The effect of this Consent Decree is to fix the boundaries of the Clinton Municipal Separate School District. All of that part of the territory sought for annexation which lies outside of the Clinton Municipal Separate School District as fixed by the Consent Decree will be excluded in the territory to be annexed.

“Thereafter, the large number of individuals, approximately seventy-five living in Section 22, Township 6 North, Range 1 West, Hinds County, Mississippi, petitioned for inclusion into the City of Clinton, Mississippi.

“Thereafter, the City of Jackson, Mississippi filed an Objection with respect to Sections 15 and 22 of Township 6 North, Range 1 West, Hinds County, Mississippi and that territory south of the railroad right-of-way which is immediately to the north of and roughly parallel with McRa-ven Road as shown on a map which is attached to the Objection as Exhibit A.

“It should be noted that most of the objectors live in Section 17, Township 6 North, Range 1 West, Hinds County, Mississippi. This section lies immediately to the north of the present city limits of the City of Clinton.

“After hearing motions and other preliminary matters and after depositions this case came on for hearing on the merits. The testimony was concluded and the matter was taken under advisement to afford the Court time to review the testimony and for the parties who desired so to do to file briefs.

“The burden of proof was on the municipal authorities to show that the proposed enlargement is reasonable. Section 21-1-33, Mississippi Code 1972.

“In a proceeding under Section 21-1-33 the Chancery Court is governed entirely by and its powers are limited to the language of the statute. It is empowered, (1) to approve, ratify and conform the ordinance if found to be reasonable; (2) to modify the proposed enlargement for contraction by decreasing the territory to be included or excluded, or (3) to deny in toto the proposed enlargement or contraction if found to be unreasonable.

“The maps, charts and other exhibits as well as oral testimony shows the following: Area one is situated to the east of the City of Clinton and to the west of the City of Jackson. This is an area where the City of Jackson objects to the City of Clinton expanding. This area is Section 15 and 22, Township 6 North, Range 1 West. Most of the people living in this area signed a petition for inclusion in the expansion. This area is at the present time not included in either the City of Jackson or the City of Clinton and while Section 15 has very few people living in it at the present time these people will have a substantial savings in their fire insurance. They have asked to be included and in the Court’s opinion this area is reasonably in the path of the growth of the City of Clinton and the Court is of the opinion that the annexation of this parcel would be reasonable.

“Area two would be that area which lies immediately to the north of the present city limits of the City of Clinton. This area is where the strongest objection is made to inclusion. The basic reason for the objection is that this area or at least part of this area and really a small part is presently developed, has adequate streets, possibly not as good as could be provided by the City of Clinton. The objectors in this area are actually very few when the entire area is considered. The objectors in this area basically live around Spring Lake. Virtually all of the lots around Spring Lake have been developed, residents are located thereon, they have water and septic tanks. They feel that they have adequate fire and police protection. Of this area two of the objectors live in a small area and to exclude any part of area two would be in effect create an island to be located surrounded by the City of Clinton but being outside the City of Clinton itself even though these people object to the annexation of part of this parcel. The Court finds that the annexation of this entire parcel to be reasonable.

“Area three is located to the west of the present city limits of the City of Clinton, Mississippi. It is primarily commercial and is partially developed. This area has no objection to the annexation except one objection and that is an objection of John Huleseboseh. This objector’s property is located in the immediate southwest corner of this area. All of the land sought to be annexed which lies to the west of the present city limits immediately with the exception of the property owned by objection John Huleseboseh, the Court finds to be reasonable. The area owned by John Huleseboseh has already been excluded by Order of this Court dated February 2, 1983. This land is vacant or if it is not vacant it has only one residence located thereon. For the reasons stated, this area will be excluded.

“Area four is located to the south of the present city limits of the City of Clinton, Mississippi. No individual objectors have objected to the expansion of the City. However, this is an area where the City of Jackson has objected. Some of this land actually lies to the west of the present City of Clinton. It does not at the present time adjoin the City of Jackson but it appears that it is at least two miles from the present City of Jackson. Seven objectors live in this area: the objectors being George Miles, Gladys Miles, H.B. Nicholas, Charles and Lanata Sullivan, Nelson and Lavene McCarty. The expansion into this area is reasonable except for the property of objectors, George Miles, Gladys Miles, H.B. Nicholas, Charles and Lanata Sulliva, Nelson and Lavene McCarty, who live in this area. Actually, the City of Clinton has very little to offer since this land is within the flood plain or most of it is in the flood plain and accordingly they will be excluded from the territory sought to be annexed as heretofore mentioned. That area which is included in the description of the property described in Civil Action 4075(J) as heretofore mentioned will likewise be excluded. The George Miles, et al property as shown on Exhibit 0-GM6, all of that land will be excluded.

“While the objectors offered testimony to show that they do not want any of the improvements offered by the City of Clinton as they presently have lights, water, they feel adequate fire protection, septic tanks, and, of course, they would have to pay taxes to the City of Clinton if the City expanded in their direction. The Supreme Court of the State of Mississippi found this argument not to be well taken. See Texas Gas Transmission Corporation v. City of Greenville, 242 So.2d 686 [(Miss.)]. The Supreme Court has also found that the arguments that these objectors would not receive benefits commensurate to the increased tax burden was not well taken. See Kennedy v. The City of Kosciusko, [203 Miss. 4] 33 So.2d 285.

“There is adequate testimony that the City of Clinton has sufficient financial abilities to pay for the improvements sought. The City of Clinton has found that the expansion herein sought is in and as required by the public convenience and necessity. The record reflects and the Court finds that the City has met the burden of proof of public convenience and necessity for the expansion as heretofore set forth. The Court finds that the enlargement herein sought is reasonable, that reasonable public and municipal services would be rendered in the annexed territory within a reasonable time, that the improvements set out in the ordinance will be completed within a reasonable time not to exceed five years from the effective date of the ordinance.

“A judgment will be drawn and submitted approving, ratifying and confirming the proposed enlargment. Said judgment shall contain a description of the territory annexed. A map or plat of the territory so approved ratifying and confirming for annexation will be filed among the papers in this cause.

“THIS the 29th day of April, 1983.”

The appellants and the appellee cite Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960), which sets forth the following criteria for a municipal expansion case:

(1) the city’s need for expansion; (2) whether the area to be annexed is reasonably within the path of such expansion; (3) the potential health hazard from sewage and water disposal; and (4) the city’s financial ability to make improvements and furnish municipal services as promised. Texas Gas Transmission Corp. v. City of Greenville, 242 So.2d 686, 690 (Miss.1971).

Appellee contends that the proof established the requirements of Dodd, while appellants argue to the contrary. After carefully considering the record in the case, consisting of eight (8) volumes and numerous exhibits, we cannot say that the chancellor was manifestly wrong in his finding and, in our opinion, there are no reversible errors in the record. Extension of Boundaries (Wise) v. City of Biloxi, 361 So.2d 1372 (Miss.1978); Clark v. Magee, 234 Miss. 252, 105 So.2d 753 (1958); and Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717 (1949).

Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., not participating.


author: PATTERSON, Chief Justice,

text:
    Sarah HOWARD v. Marion T. YOUNG, III.
    No. 54845.
    Supreme Court of Mississippi.
    May 9, 1984.
    Rehearing Denied May 30, 1984.
    Richard T. Phillips, Smith & Phillips, Batesville, for appellant.
    Jack P. Dunbar, Edward A. Moss, Cynthia I. Mitchell, Holcomb, Dunbar, Connell, Chaffin & Willard, Clarksdale, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Sarah Howard brought a negligence action against Marion T. Young, III, in the Circuit Court of Quitman County for injuries sustained in an automobile collision. After Howard put on her proof, the case was submitted to the jury, which failed to reach a verdict. The court entered an order of mistrial and continuance on September 16, 1982.

The following week Young moved for judgment notwithstanding the mistrial. On February 2, 1983, the court sustained the motion and dismissed Howard’s complaint with prejudice. Aggrieved, Howard appeals.

This ease arises from a two-vehicle collision which killed three of the five people involved. One of the survivors was Sarah Howard, who was asleep at the time of the crash. The other is the defendant Marion T. Young, III. There were no other witnesses to the collision. Due to these circumstances, the facts are sketchy and not greatly disputed. Most of them, as revealed by the pretrial order, were established by the pleadings or by stipulation or admission, including the following:

At approximately 1:00 o’clock a.m., on Saturday, April 18, 1981, Marion Young was driving his pickup truck in a southerly direction on Highway 3, approaching Darling, Mississippi. He was alone.

At that time Sarah Howard was a passenger in the back seat of a green Dodge Colt station wagon, driven by Iris Rice Sims, approaching Darling from the south.

The pickup and the station wagon collided at or near the intersection on Highway 3 in Darling.

As a result of this collision Sarah Howard incurred hospital bills totaling $25,-010.04. At the time Howard was 23 years old and had a remaining life expectancy of 52.8 years.

The insurer for Iris Rice Sims paid Howard $7,000.00, her pro rata share of the policy limits. Howard then brought this action against Young, alleging the collision was the result of concurrent negligence on the part of Young and Sims.

The posture of this case requires us to consider the evidence in the light most favorable to Howard and to disregard any evidence on the part of Young which is inconsistent with evidence favorable to Howard. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969). We conclude evidence presented by Howard and set out below constitutes a prima facie case of concurrent negligence on the part of Young which should have been submitted to the jury.

Young testified that on the morning of the collision he was traveling south on Highway 3 at approximately 55 miles per hour. As he approached the Darling intersection, which he knew to be a dangerous one, he began to decrease his speed in preparation for a right turn. Before making the turn, he decided differently and returned his foot to the accelerator. At that point the crash occurred. Young testified further that although his headlights illuminated the way approximately 70 yards ahead of him and although there were no obstructions to his vision, he did not see Sims’ vehicle at any time before the collision. He also testified that had he seen the automobile in time, he would have been able to avoid it by turning either to the left or the right. Physical evidence revealed extensive damage to both automobiles but especially to the front right side of Sims’ vehicle. The crash occurred in Young’s lane of traffic.

We are of the opinion this evidence could support a reasonable inference that Young was negligent in failing to maintain a proper lookout and that this negligence was a proximate contributing cause of the collision. We therefore reverse the judgment notwithstanding the mistrial and remand the case so that the jury may determine the factual issues.

We are of the further opinion the jury should be permitted on retrial to consider the issue of Young’s speed as it relates to the question of negligence. We reach this decision in view of the testimony that the collision occurred on a particularly dark night at an intersection Young knew to be dangerous. The evidence also reflects the Sims’ automobile was struck in the right front quadrant indicating the driver of it had possibly reduced speed to make a left turn at the intersection. This aspect of the testimony should be considered in conjunction with Young’s statement that he was driving at approximately 55 miles per hour. There is physical evidence, additionally, and that is the great damage to the automobiles shown by the photographs which could be indicative of excessive speed. All of this was relevant to the issue of concurrent negligence which was improperly excluded by the trial court. Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553 (1938).

For the foregoing reasons the judgment is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

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


author: DAN M. LEE, Justice,

text:
    Robert Elton BOLEWARE v. Virginia Ann BOLEWARE.
    No. 54196.
    Supreme Court of Mississippi.
    May 16, 1984.
    Bill Waller, Sr., Waller & Waller, Jackson, for appellant.
    David Shoemake, Collins, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Covington County wherein the appellant, Robert Boleware, was ordered to pay the cost of his son’s college tuition. The chancellor based his ruling on an agreed modification of a divorce decree between the parties. Feeling aggrieved by the chancellor’s ruling that he must pay the cost of his son’s college education, Robert Boleware brings this appeal.

Robert and Virginia Boleware were divorced on December 15, 1975. Custody of their two children was awarded to Virginia Boleware. On January 10, 1980, an order modifying the final decree was entered in which the chancellor stated that he was advised that the parties agreed to this modification. The order stated that Robert Boleware was to pay Virginia $300 in reimbursement for college tuition expenses of the parties’ oldest child, Mitchell. The other relevant portion of the decree reads as follows:

IT IS FURTHER, ORDERED, ADJUDGED AND DECREED BY THE COURT, that the respondent, Robert Elton Boleware, be and he is hereby ordered to pay and be responsible for the payment of all college education expenses of the minor children of the parties, said expenses to include all college tuition, all books and materials in their course of study, and room and board, said expenses to be paid directly to the educational institution upon receipt of appropriate evidence of expense of said institution.

Robert Boleware has taken the position that since Mitchell turned 21 years old it is no longer his obligation under the decree to pay for Mitchell’s college expenses. At the time Robert ceased paying for Mitchell’s expenses, Mitchell was 21 years old and needed five more semesters of college before he could graduate with a degree in architecture.

Some light may be shed on this controversy by reference to our decisions in Rankin v. Bobo, 410 So.2d 1326 (Miss.1982); Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980); Wray v. Langston, 380 So.2d 1262 (Miss.1980); and Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960). In Rankin v. Bobo, we.held:

It is settled that a chancery court may adjudge that one or both parents provide the means for a college education for their children. Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960). When the father’s financial ability is ample to provide a college education and the child shows an aptitude for such, the court may in its discretion, after hearing, require the father to provide such education. The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case. Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980).

410 So.2d at 1328.

Because each case is dependent upon the “proof and circumstances” it presents, we turn now to the chancellor’s opinion in this case. The chancellor based his ruling on the agreed modified decree which he held obligated Robert Boleware to be responsible for the college education expenses of Mitchell because “the parties at that time intended this agreement that was submitted to the Court to require that it extend beyond the 21 years.” Having reviewed the decree and all of the attendant facts and circumstances, we find no error in the chancellor’s ruling.

Virginia Boleware’s cross-appeal of the chancellor’s denial of attorneys fees to her is without merit as the chancellor expressly found that Robert Boleware was not in contempt.

Based on all of the foregoing we hereby affirm the chancellor’s order requiring Robert Boleware to pay for Mitchell’s college education expenses and the denial of attorneys fees to Virginia Ann Boleware

AFFIRMED ON DIRECT AND CROSS-APPEALS.

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


author: WALKER, Presiding Justice,

text:
    Charlie TUGGLE, Jr. v. Ralph E. WILLIAMSON, et al.
    No. 54220.
    Supreme Court of Mississippi.
    May 16, 1984.

      Bobby Owens, Owens. & Byrd, Nausead Stewart, Jackson, for appellant.
    Thomas L. Kesler, Sams & Kesler, Columbus, for appellees.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   WALKER, Presiding Justice,

for the Court.

The appellant, who is an inmate at the Mississippi State Prison at Parchman, Mississippi, appeals from an order of the chancery court confirming a special commissioner’s sale of a small parcel of land owned by him in Lowndes county.

This litigation began as a suit to partition a piece of real property located in Lowndes county. The appellant owned an interest in the property and, therefore, was made a defendant to the action. Since Mr. Tuggle is a prisoner, the chancery court appointed' a guardian ad litem to represent him in the suit. As a result of the suit, the property was partitioned in kind, and the appellant received a portion of the property based on his proportional interest.

On appeal the appellant challenges, among other things, the authority of the chancery court to impose an attorney's lien on the real estate for services rendered by the attorney acting as his guardian ad li-tem.

The decree of partition under which the attorney’s fees were awarded and the lien was imposed was entered on July 15, 1981. Thereafter, Thomas Kessler, the guardian for Charlie Tuggle, instituted a suit to enforce his attorney’s lien. On December 7, 1981 a final decree was entered ordering the sale of Mr. Tuggle’s portion of the real estate to satisfy the lien. The property was sold, and on January 4, 1982 the special commissioner returned a written report of the sale to the chancery court. On July 30, 1982 the chancellor entered an order confirming the sale.

The appellee has made a motion to dismiss on the grounds that the appeal was not perfected within 45 days from the decree ordering the sale of the property. The appellant, on the other hand, argues that the appeal was timely since it was made within 45 days of the order confirming the sale.

In support of his motion, the appellee contends that the time to perfect an appeal in such matters runs from the decree ordering the sale, not from confirmation of the sale.

In Worthy v. Graham, 246 Miss. 358, 149 So.2d 469 (1963) the Court was presented with an appeal from an order confirming a foreclosure sale. Discussing whether the appeal was timely made, the Court quoted from Griffith’s Mississippi Chancery Court Practice:

“When a bill is filed to subject lands to a lien and the amount due is found, the land declared subject to the lien and ordered sold to satisfy the same, this is a final decree and is appealable as such. A decree on a bill to enforce a vendor’s lien which purports to be made on a full hearing on the bill, exhibits and other proceedings in the case and establishes the right of complainant to enforce his claim against the land, and appoints a commissioner to sell it, unless within a specified time the defendants pay the complainant the sum found due, and all costs, and directs the commissioner in case of sale to report his proceedings at the next term is not an interlocutory, but a final decree; and this is the rule as to any foreclosure of a lien; so that after such a final decree the jurisdiction of the court ceases as to any adjudication on the merits, although the jurisdiction does not cease as to those steps necessary or proper to be taken to execute the decree, — the court necessarily retains the power to enforce and execute its own decrees, otherwise it would be idle to render them.”

246 Miss. 363, 149 So.2d 469. The Court then held that the appeal was not timely made since it was not perfected within 90 days of the decree ordering the foreclosure sale.

As in Worthy, supra any appeal on the merits of this case should have been made from the decree ordering the sale. Since no appeal was perfected within 45 days of entry of this decree, the appeal must be dismissed. Accordingly, it is not necessary to discuss the appellant’s assignments of error.

However, we note that the appellant has raised serious questions regarding the validity of the deed because of lack of authority of the chancery court to impose an attorney’s lien on real property. Under the common law, courts were without power to impose an attorney’s lien on real estate. Mississippi follows the common law rule except where changed by statute. In this instance, there is no statute changing the common law rule. See Martin v. Harrington, 57 Miss. 208 (1897). Consequently, the chancellor was without authority to impose an attorney’s lien. Any sale made to enforce the erroneously imposed lien would convey no valid title.

For the foregoing reasons the appeal should be dismissed without prejudice to the appellant to pursue any other appropriate action.

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

PRATHER, J., not participating.


text:
    J.L. MARTIN, et al. v. Clinton B. MALONE, et ux.
    No. 54268.
    Supreme Court of Mississippi.
    May 16, 1984.
    Louie M. Bishop, Mark S- Howard, Bishop & Howard, Waynesboro, for appellants.
   Appeal from Chancery Court, Wayne County; J. Shannon Clark, Chancellor.

Matthew Harper, Jr., Thomas J. Holi-field, Laurel, for appellees.

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

Affirmed.


text:
    Louis CALDWELL v. Cheryl LOWELL.
    No. 54887.
    Supreme Court of Mississippi.
    May 16, 1984.
    Kendall Reeves, Gulfport, for appellant.
    William T. Welch, Gulfport, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   Appeal from Family Court, Harrison County; Michael H. Ward, Judge.

Affirmed.


text:
    Rickey A. REDDEN & Bobbie Redden v. Richard V. SCARBOROUGH.
    No. 54250.
    Supreme Court of Mississippi.
    May 16, 1984.
    Crockett Lindsey, Lindsey & Wood, Gulf-port, for appellants.
    Larry L. Lenoir, Gulfport, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Affirmed.


text:
    Stella J. THURMAN v. STATE of Mississippi.
    No. 54836.
    Supreme Court of Mississippi.
    May 16, 1984.
    John Robbins, II, Brandon, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and ROBERTSON, JJ.
   Appeal from County Court, Rankin County; James W. Smith, Jr., Judge.

Reversed and Remanded.

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


text:
    John David BEASLEY v. STATE of Mississippi.
    No. 54884.
    Supreme Court of Mississippi.
    May 16, 1984.
    John T. Cotter, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Affirmed.


text:
    Harris Edward TURNIPSEED v. Donna McGee TURNIPSEED.
    No. 54240.
    Supreme Court of Mississippi.
    May 16, 1984.
    G. Jyles Eaves, Eaves & Eaves, Louisville, Howard Dyer, III, Rabun Jones, Dyer, Dyer & Dyer, Greenville, for appellant.
    Chatwin M. Jackson, Jr., Kosciusko, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Chancery Court, Choctaw County; John C. Love, Jr., Chancellor.

Affirmed.


text:
    Hilda SIMMONS v. Paul LUNCEFORD.
    No. 54241.
    Supreme Court of Mississippi.
    May 16, 1984.
    Fred A. Ross, Jr., Stephen L. Beach, Beach, Luckett & Ross, Jackson, for appellant.
    Donald V. Burch, Daniel, Coker, Horton & Bell, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and PRATHER, JJ.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Affirmed.

DAN M. LEE, J., not participating.


text:
    Floyd O. BARNHILL, et al. v. B.G. HULL, Executor, et al.
    No. 54253.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied May 30, 1984.
    James C. Mayo, Fair & Mayo, Louisville, for appellants.
    J. Hoy Hathorn, Hathorn & Hathorn, Louisville, for appellees.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

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

Affirmed.


text:
    Gordon KIRKMAN v. Danelle GILLESPIE, et al.
    No. 54873.
    Supreme Court of Mississippi.
    May 16, 1984.
    Ben F. Hilbun, Jr., Starkville, for appellant.
    Beverley B. Mitchell, Colom, Mitchell & Colom, Columbus, for appellees.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   Appeal from Chancery Court, Oktibbeha County; W.E. Bearden, Jr., Chancellor.

Affirmed on Direct and Cross-appeal.