source: Caselaw Access Project

author: ROBERTSON, Justice,

license: Public Domain

text:
    Jacob HENDERSON v. STATE of Mississippi.
    No. 54662.
    Supreme Court of Mississippi.
    Feb. 8, 1984.

      T. Prank Collins, Collins & Dreher, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This case presents the question whether the rules of English grammar are a part of the positive law of this state. If they are, Jacob Henderson’s burglary conviction must surely be reversed, for the indictment in which he has been charged would receive an “F” from every English teacher in the land.

Though grammatically unintelligible, we find that the indictment is legally sufficient and affirm, knowing full well that our decision will receive of literate persons everywhere opprobrium as intense and widespread as it will be deserved.

II.

On May 15, 1982, the Maaco Paint Shop in Jackson, Mississippi, was burglarized. Jacob Henderson was arrested immediately thereafter, four items of stolen merchandise still in his possession.

On July 6,1982, Henderson was formally charged with business burglary in violation of Miss.Code Ann. § 97-17-33 (1972) in an indictment returned by the Hinds County Grand Jury. The indictment further charged that Henderson was a recidivist within the meaning of Miss.Code Ann. § 99-19-81 (Supp.1983). Henderson entered a plea of not guilty to all charges.

On February 9, 1983, this case was called for trial in the Circuit Court of Hinds County. In due course, the jury found Henderson guilty on the principal charge of burglary.

Immediately thereafter, the circuit court conducted a non-jury hearing on the recidivism issue. Without contradiction, the evidence established that Jacob Henderson had, prior to that date, been convicted of two separate felonies, both burglaries. Accordingly, under the authority of Section 99-19-81 the circuit court sentenced Henderson to serve a term of seven years without eligibility for probation or parole.

From this conviction and sentence, Henderson appeals.

III.

A.

The primary issue presented on this appeal regards the legal adequacy of the indictment under which Henderson has been tried, convicted and sentenced. That indictment, in pertinent part, reads as follows:

The Grand Jurors for the State of Mississippi, ... upon their oaths present: That Jacob Henderson ... on the 15th day of May, A.D., 1982.
The store building there situated, the property of Metro Auto Painting, Inc., ... in which store building was kept for sale or use valuable things, to-wit: goods, ware and merchandise unlawfully, feloniously and burglariously did break and enter, with intent the goods, wares and merchandise of said Metro Auto Painting then and there being in said store building unlawfully, feloniously and then and there being in said store building burglariously to take, steal and carry away; And
One (1) Polaroid Land Camera,
One (1) Realistic AM/FM Stereo Tuner
One (1) Westminster AM/FM radio
One (1) Metal Box and contents thereof,
the property of the said Metro Auto Painting then and there being in said store building did then and there unlawfully, feloniously and burglariously take, steal and carry away the aforesaid property, he, the said Jacob Henderson, having been twice previously convicted of felonies, to-wit:_

The remainder of the indictment charges Henderson with being a recidivist.

Henderson, no doubt offended, demurred. In support, he presented an expert witness, Ann Dreher, who had been a teacher of English for nine years. Ms. Dreher testified that, when read consistent with accepted rules of English grammar, the indictment did not charge Jacob Henderson with doing anything; rather it charged that goods, ware and merchandise broke and entered the paint store. The trial judge overruled the objection and the motion, but not without reservation. He stated:

[Tjhis same objection has been made numerous times. It is one of Mr. Hailey’s pets. [B]ut as far as I know no one has elected to appeal and I’m going to follow the decision whether it is grammatically correct or not. I have repeatedly begged for six years or five years for the district attorney not to use this form. It is very poor English. It is impossible English. ... In addition to being very poor English, it also charges him with the crime of larceny, which is not necessary to include in an indictment for burglary. I never did understand the reason for that. I again ask the district attorney not to use this form. It’s archaic. Even Shakespeare could not understand the grammatical construction of this indictment. But the objection will be overruled. Maybe it will take a reversal on a case of a similar nature where there is a serious offense as this one is by the fact that he is indicted as a habitual to get the district attorney’s attention.

B.

1.

In the trial court and on this appeal, Henderson insists that the meaning of the indictment may be obtained only within the strait jacket of accepted rules of grammatical construction of the English language. From this point of view, we are asked to examine the indictment and concentrate on the words "... unlawfully, feloniously and burglariously did break and enter .... ” Who, we are asked, when the rules of good grammar are employed, did this alleged breaking and entering?

There are two possible answers (again, looking at the indictment as would an English teacher). “Goods, ware and merchandise” are the most obvious choice. Those nouns proximately precede the verb(s) “did break and enter” (separated only by the familiar string of adverbs “unlawfully, fe-loniously and burglariously” — the district attorney, like other lawyers, never uses one word when two or three will do just as well). Thus read, the indictment charges that Goods, ware and merchandise, not Jacob Henderson, burglarized the Maaco Paint Shop on May 15, 1982.

More properly, however, the words “Goods, ware and merchandise” are seen as the tail end of a largely unintelligible effort to describe something else: the store building. A perceptive English grammarian would conclude that it is “the store building there situated....” which is charged with the burglary, for those words seem to constitute the subject of the nonsensical non-sentence we are charged to construe.

Even so, whether the indictment charges that “Goods, ware and merchandise” or “The store building there situated” ... “unlawfully, feloniously and burglariously did break and enter .... ” matters not to Jacob Henderson. His point is merely that the indictment does not charge that he did the breaking and entering.

Were this a Court of nine English teachers, Henderson no doubt would prevail.

The indictment does contain at the outset the charge “That Jacob Henderson ... on the 15th day of May, A.D., 1982.” We have another non-sentence. The unmistakable period after 1982 is used by astute defense counsel to nail down the point— that the indictment fails to charge that Jacob Henderson did anything on May 15, 1982. Again, we must concede that grammatically speaking counsel is correct. The period after 1982 grammatically precludes the possibility that the indictment charges that Jacob Henderson did break and enter. Either the words “did break and enter” would have to precede the period, or the name Jacob Henderson would have to appear following it. Neither is the case.

Recognizing that the period is important, the State argues that in reality the indictment consists of one long sentence, written albeit in legalese instead of English. The State argues that “the period grammatically disjoined the first part of the sentence from the second”, conceding that we are indeed confronted with “a patently inappropriate period”. This, of course, prompts Henderson to analogize the state’s argument to Lady Macbeth’s famous “Out damned spot! Out, I say!” W. Shakespeare, Macbeth, Act V, sc. 1, line 38. The retort would be telling in the classroom or in a court of the literati. Alas, it has meager force in a court of law.

2.

With no little temerity, we insist that the correct statement of the question before this Court is: Does the indictment conform to the requirements of Rule 2.05, Uniform Criminal Rules of Circuit Court Practice. That rule provides:

Rule 2.05
FORM OF THE INDICTMENT
The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.
An indictment shall also include the following:
(1) The name of the accused;
(2) The date on which the indictment was filed in each court;
(3) A statement that the prosecution is brought in the name and by the -authority of the State of Mississippi;
(4) The county and judicial district in which the indictment is brought;
(5) The date and if applicable the time, on which the offense was alleged to be committed. Failure to state the correct date shall not render the indictment insufficient;
(6) The signature of the foreman of the grand jury issuing it; and
(7) The words “against the peace and dignity of the state”.

We have no significant prior constructions of Rule 2.05. We have referred to it with little comment in Osborne v. State, 404 So.2d 545, 548 (Miss.1981), Dalgo v. State, 435 So.2d 628, 630 (Miss.1983), and in Joshua v. State, 445 So.2d 221 (Miss.1984).

For better or for worse, nothing in Rule 2.05 requires any adherence to correct grammatical form. We know of no constitutional or natural law that might supplement Rule 2.05 with the rules of good grammar.

Rule 2.05 states that “formal or technical words are not necessary”. Correct grammar, however desirable, is similarly unnecessary. So long as from a fair reading of the indictment taken as a whole the nature and cause of the charge against the accused are clear, the indictment is legally sufficient.

The instant indictment, however inartfully worded, clearly charges Jacob Henderson with the crime of business burglary. It informs Henderson that the burglary is alleged to have occurred on May 15, 1982. The indictment names the business burglarized as Maaco Paint Shop operated by Metro Auto Painting, Inc. It charges that the crime occurred within the First Judicial District of Hinds County. Further, the indictment identifies the items of property said to have been stolen in the course of the burglary.

Viewing the indictment under Rule 2.05, we find it legally adequate. It provides Henderson with a “written statement of the essential facts constituting the offense charged” in language which is “plain, concise and definite”, albeit grammatically atrocious. Beyond that, the indictment notified Henderson of “the nature and cause of the accusation against him”.

Establishment of a literate bar is a worthy aspiration. ’Tis without doubt a consummation devoutly to be wished. Its achievement, however, must be relegated to means other than reversal of criminal convictions justly and lawfully secured.

The assignment of error is rejected.

IV.

Before trial Henderson filed a motion in limine wherein he sought to restrict questioning of prospective jurors during voir dire examination. Specifically, Henderson urged that the prosecutor be barred from inquiring, in the presence of the entire panel, regarding a prospective juror’s involvement with criminal acts as either victim or perpetrator. On appeal, Henderson claims that the failure to grant the motion prejudiced the defendant in that the questioning created an aura of rampant crime in the streets in the minds of the jury-panel.

Henderson argues that the rule of evidence, which prohibits the discussion of other criminal behavior of the defendant, is based on the same logical premises as is this assignment of error. We beg to differ. Suffice it to say that we divine no reason in common law or common sense that would support Henderson’s point.

The assignment of error is denied.

AFFIRMED.

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

      . It cannot be gainsaid that all the perfumes of Arabia would not eviscerate the grammatical stench emanating from this indictment. Cf. W. Shakespeare, Macbeth, Act V, sc. 1, lines 56-57.

      . This is not the first time this Court has placed its collective head on the grammarian’s chopping block by insisting upon the clarity of a meaning clearly untenable under correct grammatical construction of language. We did this with an inartfully drafted regulation of the State Tax Commission, Columbia Gulf Transmission Co. v. Barr, 194 So.2d 890, 894 (Miss.1967). We have done it with pre-Rule 2.05 indictments. State v. Lee, 111 Miss. 773, 72 So. 195, 196 (1916); Morgan v. State, 13 Smedes & M. (21 Miss.) 242 (1849).

      . We agree with the trial judge that the language in the indictment charging larceny is unnecessary surplusage.

      .Our attention has been called to numerous pre-Rule 2.05 cases, principal of which is Kelly v. State, 204 Miss. 79, 36 So.2d 925 (1948). Many of our older cases required that an extremely strict interpretation be given criminal indictments. Suffice it to say that those cases decided before August 15, 1979, the date our Uniform Criminal Rules of Circuit Court Practice were adopted, should be read with great caution. Nothing in Rule 2.05, however, or in what we say here should be construed to undermine our familiar rule that the failure of an indictment to charge an essential element of the crime does constitute a fatal defect. See Copeland v. State, 423 So.2d 1333, 1336-37 (Miss.1982); Joshua v. State, 445 So.2d 221 (Miss.1984).


author: DAN M. LEE, Justice,

text:
    Grady HARRIS v. STATE of Mississippi.
    No. 54714.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Rehearing Denied March 14, 1984.
    Merrida P. Coxwell, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, HAWKINS and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

Grady Harris was convicted in the Circuit Court of the First Judicial District of Hinds County on the charge of attempted armed robbery. He was sentenced to twenty-five (25) years in the custody of the Mississippi Department of Corrections with fifteen (15) years suspended. Following that conviction and sentence, Harris brings this appeal and assigns as error the following:

Point I: The indictment is fatally defective for the reasons that (a) it charges appellant attempted to steal, rob, seize, take and carry away said money; (b) fails to charge sufficient overt acts.
Point II: The evidence is sufficient to prove the appellant committed an overt act toward the commission of the crime of attempted armed robbery.
Point III: The appellant was prejudiced and denied a fair trial by the prosecutor’s closing argument which diverted from the facts and appealed to sympathy, bias and passion.
Point IV: The Court committed reversible error by refusing to grant appellant’s instructions 12 and/or 13 defining a lesser included offense.

On September 8, 1982, at approximately 10:00 p.m., Grady Harris, the appellant, entered the rear service door of the Pizza Hut located on Robinson Road in Jackson, Mississippi. He carried a gun and had a shower cap over a portion of his face as he walked in a crouched position. Janet Huffman, senior shift leader at the Pizza Hut, was counting money at her desk in the back part of the establishment when Harris appeared and pointed his gun at her. Huffman then called to Terry Wigley, the cook on duty in the front part of the building, to call the police. Harris went to the front of the building to force Wigley, at gunpoint, to come back to where he was holding Huffman. While Harris was gone Huffman dropped the money in a desk drawer. Both Wigley and Huffman were afraid that they were going to be killed. By this time customers in the Pizza Hut had become alerted by the disturbance. The shower cap fell from Harris’ face, giving Huffman and Wigley a clear view of him, and Harris suddenly ran out the back door. Huffman and Wigley then locked the doors and called the police, giving a full description of Harris, his clothing, the gun, shower cap, and his car.

Between 10:30 and 11:00 p.m. that evening Harris was stopped by the Jackson Police who were able to match the descriptions supplied by Huffman and Wigley. In the car they found two shower caps. The car was also occupied by Charles Jones.

Harris later gave an oral statement to Officers Tom Wilson and Ronald Patton after signing a waiver of rights. In that statement Harris admitted that he had planned to rob the Pizza Hut that evening. He also stated that he put a shower cap over his head, went into the building, pulled out a gun and demanded money. He completely exonerated Charles Jones from any involvement in the attempted robbery.

Harris’ first assignment of error is that the indictment which charged him with this crime is fatally defective for two reasons: (1) It charges both attempted robbery and the completion of the offense; and (2) it fails to charge sufficient overt acts. These issues may be settled by reference to § 97-3-79 Miss.Code Ann. (Supp. 1983):

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than than three (3) years.

Comparison of the above quoted code section and the indictment reveal that in Mississippi both an attempt to take and an actual taking of another’s personal property against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon constitutes robbery. Therefore, the wording of the indictment comports with the law as defined by § 97-3-79 Miss.Code Ann. (Supp.1983).

Harris next argues that the evidence was insufficient to prove the commission of an overt act for the crime of attempted armed robbery. This argument is without merit. Evidence for the state indicated that Harris entered the back door of the Pizza Hut wearing a shower cap over his face and pointing a pistol at the employees. On facts substantially similar to these, this Court has upheld a conviction of attempted armed robbery. Perry v. State, 435 So.2d 680 (Miss.1983). In Perry we stated:

Appellant contends that the state failed to prove a specific intent to take money, since the evidence only showed that appellant entered the building and pointed a gun at an employee while his partner assaulted the other employees, and that, no demand having been made for money, those acts could indicate the probability of other offenses such as kidnapping, rape, or murder, rather' than robbery. That argument is frivolous.

435 So.2d at 681.

In the instant case there is even more evidence than in Perry that it was Harris’ intent to commit a robbery. Here, Harris gave a statement to Officers Tom Wilson and Ronald Patton admitting that he intended to rob the Pizza Hut. Viewing the evidence in a light most favorable to the verdict and applying common sense, we find no merit in this assignment of error.

We have reviewed the other assignments of error and find them without merit. Therefore, based on all of the foregoing, we hereby affirm Harris’ conviction and the sentence imposed by the lower court.

AFFIRMED.

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


author: WALKER, Presiding Justice,

text:
    Ernest LENOIR v. STATE of Mississippi.
    No. 54078.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Rehearing Denied March 14, 1984.
    Wendell Hobdy Bryan, II, Amory, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten and Anita Mathews Stamps, Sp. Asst. Attys. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   WALKER, Presiding Justice,

for the Court.

This is an appeal from the Circuit Court of Monroe County, wherein the appellant was indicted and tried for murder. The jury returned a verdict of manslaughter and the appellant was sentenced to serve a term of twelve years in the custody of the Mississippi Department of Corrections.

At trial the state introduced Officer Larry Jefferies of the Aberdeen Police Department. He testified that on September 27, 1980 he received a call about 2:10 p.m. that there had been a shooting at 600 Catlee Street. Approximately three minutes later, he arrived at the home of Beatrice Hale, where he found James Robert Wilson, the victim, lying across the front porch dead.

Officers West and Jefferies, along with Chief Williams, testified that no weapon was found on or near the victim.

The appellant first contends that his conviction must be reversed because it is against the overwhelming weight of the evidence. This contention is without merit. The state produced ample evidence to support the jury’s verdict. When there is conflicting evidence, it is up to the jury to resolve these conflicts. In this case we are unable to say the verdict is manifestly against the weight of the credible evidence. See Maiben v. State, 405 So.2d 87 (Miss.1981).

The appellant next contends that his conviction must be reversed because the trial court granted Instruction S-3 and failed to grant Instructions D-4 and D-5. All of these instructions deal with the appellant’s self-defense claim. Instruction S-3, which was granted, provides:

The Court instructs the Jury that to make a homicide justifiable on the grounds of self-defense, the danger to the defendant in this case, Ernest Lenoir, must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend and in fact, apprehend a design on the part of the deceased to kill him or to do him some great bodily harm, and, in addition to this, that there was imminent danger of such design being accomplished; and hence, mere fear, apprehension, or belief, however sincerely entertained by one person, that another designs to take his life or to do him some great bodily harm will not of itself justify the fromer (sic) in taking the life of the latter party. A party may have an apprehension that this life is in danger, and believe the grounds of his apprehension just and reasonable, and yet, he acts at his peril; he is not the final judge; the Jury may determine the reasonableness of the grounds upon which he acted.

The appellant argues that the phrase “imminent danger of such design being accomplished” cuts off his right to act in self-defense, since it does not point out that the imminent danger may also be “apparent.” This same argument was presented in Jones v. State, 418 So.2d 832 (Miss.1982), wherein the Court stated:

Although the above instruction is not perfectly written, we find appellant’s argument lacks merit as similar instructions have been approved by this Court in many cases including: Bright v. State, 349 So.2d 503 (Miss.1977); Turner v. State, 220 So.2d 295 (Miss.1969); Coleman v. State, 22 So.2d 410 (Miss. (1945); Bailey v. State, 174 Miss. 453, 165 So. 122 (1936); Callas v. State, 151 Miss. 617, 118 So. 447 (1928).
The inclusion of the adjective “apparent” preceding the term imminent danger may be desirable but its omission does not constitute reversible error in this case.

418 So.2d 833. Although the instruction is not perfect as written, it adequately informed the jury of the appellant’s self-defense claim. Accordingly, the trial court committed no error in this regard.

In Robinson v. State, 434 So.2d 206 (Miss.1983), although this Court did not condemn a similar instruction and reverse the case, we said:

Although a majority of the Court is of the opinion that the instruction does correctly state the law, several other Judges are of the opinion that it is too long, redundant and confusing.
In the future, it might be wise for district attorneys to substitute the following instruction for the one quoted above:
The court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

Being of the opinion that the remaining assignments of error are without merit, the judgment and sentence of the Circuit Court are affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Robert BLAIR v. STATE of Mississippi.
    No. 54734.
    Supreme Court of Mississippi.
    Feb. 8, 1984.

      Mager A. Varnado, Jr., Gulfport, for appellant.
    Bill Allain, Atty- Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

Robert Blair was convicted in the Circuit Court of Harrison County, First Judicial District, of armed robbery and sentenced to twenty (20) years in the custody of the Mississippi Department of Corrections. He appeals and assigns as error that the court:

1. overruled his motion for a .continuance;

2. overruled his motion to quash the indictment;

3. overruled his motion to cause witness to confer with defense counsel;

4. overruled his motion for funds with which to investigate and prepare the defense;

5. overruled his motion to quash the jury panel;

6. refused to grant a defense instruction on simple robbery and grand larceny; and

7. allowed the prosecutor to question a defense witness as to irrelevant matters.

On August 21, 1981, the prosecutrix was employed as a cashier at a Majik Mart Store in Gulfport. She was alone in the store about 4:00 o’clock a.m., when a man came in and spoke with her for a few minutes. While she had her back turned to him, he seized her by the hair, displayed a pocketknife with its blade exposed, and told her he would stab her if she did not accompany him to the back room of the store. She was also told that he had previously killed three people.

In this room the prosecutrix was raped and told by her assailant that he wanted the money from the store safe. In fear for her life, the prosecutrix opened the safe and the cash register from which the money was taken. A case of beer and several cartons of cigarettes were also taken. Having loaded his booty in her car, the man got into it and departed.

At trial Blair admitted the larceny of the money, beer and cigarettes but denied the use of force or threats of force in their taking. He also testified the prosecutrix consented to having sexual intercourse with him.

Blair argues first that the trial court improperly overruled his motion for a continuance. In that motion Blair stated that he needed additional time to complete investigation of the case and to establish contact with his father, who was working in Southeast Asia. The court overruled the motion, noting that defendant’s counsel had already made five attempts to contact Blair’s father, all to no avail.

The record reveals the trial court thought Blair’s hope of getting financial assistance from his father was forlorn and more importantly could not be concluded within a reasonable time. We are therefore of the opinion the court was within its discretion in denying the motion and that Blair was not prejudiced thereby. Norman v. State, 385 So.2d 1298, 1302 (Miss.1980); Saucier v. State, 259 So.2d 484, 486 (Miss.1972).

Blair’s second proposition can be disposed of by observing that his request for a preliminary hearing was made after the grand jury returned the indictment against him. “The nature and purpose of a preliminary hearing is to determine whether probable cause exists to hold a person to await proper action of the grand jury.” Glass v. State, 278 So.2d 384, 387 (Miss.1973). This question had therefore been decided before Blair raised it. We find no merit in this assignment of error.

Further, we are of the opinion the court committed no error in overruling Blair’s motion to cause a state’s witness to confer with defense counsel. In Scott v. State, 359 So.2d 1355, 1360 (Miss.1978), it is stated:

A defendant is entitled to access to prospective witnesses; however, this right exists coequally with the right of a witness to refuse to say anything.... We hold that the trial judge did not have the authority to require the witness to submit to a private examination by defense counsel.

As in Scott, the witness in this ease was unwilling to talk with defense counsel. The trial court therefore properly refused to require her to confer with Mr. Varnado, Blair’s attorney.

Fourthly, Blair argues the court improperly overruled his motion for funds with which to investigate and prepare the defense.

This Court has never held that the state has the duty of providing indigent criminal defendants with private investigators. See Bullock v. State, 391 So.2d 601, 607 (Miss.1980); Laughter v. State, 235 So.2d 468, 472 (Miss.1970). This assignment is therefore without merit.

In his fifth assignment of error, Blair contends the jury panel should have been quashed because the prosecutor’s opening statement referred to crimes other than the one for which Blair was on trial. The pertinent part of that statement is set out below:

At that point, she said that she saw this knife, and that he said he was going to take her back in the back of the store. That he took her back in the back of the store against her will back there, and while back there in the back of the store made her cut off the lights and everything back there, and committed an assault upon her back there. She will testify about that. And after he did that, he told her he was going to rob her, and then he somehow came up with a screwdriver. At that point, she saw the screwdriver there in his hand, and she’ll describe it for you and the knife.... Then after he took her back in the back, he brought her out and told her that he wanted her to open up the safe, that he wanted the money. That he was going to rob her of the money, and that he knew there was some thousand dollars in there. He told her if she didn’t comply with him throughout all this that he’d kill her. That he’d killed some three other people. And she heard him say that, and that was the reason, based upon that, that she was cooperating with him. Getting him anything that he wanted at that point. (Emphasis Added).

After the prosecutor had completed his statement, defense counsel moved the court to quash the panel. The court ruled the other crimes were part of the res ges-tae and overruled defendant’s motion. When the state presented evidence of other crimes in its case in chief, defendant made no objection.

In general, the prosecution is not allowed to show a defendant committed crimes other than the one for which he is on trial. However,

... There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge.

Johnson v. State, 416 So.2d 383, 386 (Miss.1982), quoting Gray v. State, 351 So.2d 1342 (Miss.1977).

In Oates v. State, 421 So.2d 1025, 1029 (Miss.1982), we implicitly extended this rationale to include statements made by the district attorney on opening statement.'

We hasten to say, however, that reference to a crime other than that charged in the indictment is not proper in all multi crime situations, but is limited to those closely connected by a sequence of events within a short time span and are so intertwined that one cannot be reasonably extricated from the other. In this case the victim was first accosted when her assailant seized her hair, placed a knife at her throat and directed that she accompany him to a rear store room. After the assault the prosecutrix was permitted to robe herself while the assailant remained just outside the door. When she re-entered the public area of the store the defendant held a screwdriver in his hand instead of the pocketknife with which he had previously threatened her. The reference to the assault in the opening statement by the state’s attorney was not error in our opinion because it was part of the res gestae and was appropriate to show the prosecu-trix’ state of mind, specifically the fear engendered in her by which both the assault and the robbery were accomplished. We therefore think this assignment of error is without merit.

In his sixth assignment of error Blair argues that the court erroneously refused to grant a defense instruction on simple robbery and grand larceny.

We dispose of this assignment of error first by observing the court did grant a simple robbery instruction. Secondly, no testimony, including Blair’s, supports a grand larceny instruction. Therefore, our opinion is this contention is meritless. Pittman v. State, 297 So.2d 888, 893 (Miss.1974).

Finally, the appellant contends the court erred in overruling his objection to improper cross-examination by the state’s attorney.

It need be remembered the defendant testified he was not guilty of rape because the prosecutrix consented to having sexual intercourse with him. He also admitted he had taken the goods and money for which he was indicted but that the larceny occurred without the use of force. Moreover, he testified that he was acquainted with the prosecutrix, having previously had intercourse with her; that he had assisted her in the Majik Mart Store and had frequently engaged in conversation with her. This evidence was offered to establish that they were not strangers to each other as the prosecutrix had testified.

In corroboration of this testimony he offered Laurie Middleton as a witness. Laurie testified that she had seen the defendant in the store talking to the prosecutrix on several occasions. On cross-examination she was asked if she were married or had ever been married. After a reply in the negative, she was asked how many children she had and responded that she had two. An objection was interposed by defense counsel but was overruled. This ruling is now contended to be reversible error.

We note, although there was no objection, that the witness was also asked whether her mother and her boyfriend lived together in the same house, to which she responded affirmatively but with the qualifying statement they were to be married the following week.

Mrs. Shirley Middleton, Laurie’s mother, testified she had seen the defendant and the prosecutrix engaged in conversations and that they were acquainted. No questions were asked her, however, concerning her living with her boyfriend.

We are of the opinion that this cross-examination of Laurie Middleton on an irrelevant point was reversible error.

As early as 1881, this Court held that the veracity of a witness may not be impeached by showing her to be of unchaste character. Smith v. State, 58 Miss. 867, 874 (1881). Smith was followed by Tucker v. Tucker, 74 Miss. 93, 99, 19 So. 955 (1896). Further, in Mackmasters v. State, 81 Miss. 374, 33 So. 2 (1902), the court stated:

... The wife of defendant, Mrs. Nancy Mackmasters, was an important witness for him, and we think it was error to permit the district attorney to develop to the jury, in cross-examining her, that she was the mother of two children not born in wedlock. This had no relevancy to the issue and was too heavy a load to put on defendant before an average jury in so grave a trial.

When the court was again faced with this issue in Davis v. State, 87 Miss. 337, 39 So. 522 (1905), it followed Mackmasters with the following comment:

... Such testimony was utterly irrelevant to the issue before the jury, which was the guilt or innocence of the appellant of the crime of murder. The witness was not on trial, and it was incompetent to attempt to impeach her veracity by general proof of her unchastity.

These cases require us to reverse and remand this cause for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: ROY NOBLE LEE, Justice

text:
    Andrew DONALDSON v. PONTOTOC COUNTY WELFARE DEPARTMENT.
    No. 54732.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    Rehearing Denied March 14, 1984.
    Mauldin, Sneed & Mauldin, William M. Mauldin, Pontotoc, for appellant.
    Billy N. Owen, Blue Mountain, for appel-lee.
    Before WALKER, ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice

for the Court:

The Pontotoc County Welfare Department filed a petition in the Chancery Court of Pontotoc County, Honorable George F. Adams, presiding, on May 28, 1979, against Andrew Donaldson, seeking to determine paternity and for child support. Donaldson was personally served with process and a decree pro confesso was entered against him on June 14, 1979. Subsequently, Donaldson filed a motion to set aside the decree pro confesso and final decree under Rule 60(b)(6), Miss.Rules Civ.Proc. After full hearings, the lower court denied the motion and Donaldson has appealed here, assigning the following error:

The court erred in failing to set aside the previous decree pro confesso under Miss.Rules of Civil Procedure, Rule 60(b)(6).

The sequence of the proceedings in the lower court follow.

(1) Appellant was served with process on May 28, 1979, requiring him to answer the petition.

(2) At the next succeeding term of court, no answer was filed or appearance made and a decree pro confesso of paternity and child support was entered against him on June 14, 1979.

(3) On July 30, 1980, a petition for contempt citation was served on appellant.

(4) On August 27, 1980, an order was entered adjudging appellant in contempt of court and was entered by default.

(5) On January 4, 1982, a second petition for contempt citation was served on appellant. He obtained an attorney, filed an answer to the petition and denied that he was the father of the children and prayed that the two previous decrees pro confesso be set aside. ••

(6) On August 12, 1982, appellant filed a separate motion to set aside the decrees pro confesso, and the chancellor entered an order finding appellant to be in contempt of court.

The chancellor sustained appellant’s motion to set aside the decrees pro confesso to be considered as a motion under Miss.Rules Civ.Proc.Rule 60(b)(6), and, after a hearing, ruled that the prior decrees should not be set aside.

On the first citation for contempt, August 27, 1980, appellant was found in contempt of court and was ordered to serve a term of ninety (90) days in the Pontotoc County jail or purge himself of the contempt by paying the sum of $500.00 to the Pontotoc County Welfare Department. Appellant then paid the $500.00 and purged himself of that contempt.

A period of more than two and one-half years elapsed from the time appellant was first served with process on the petition until he filed an answer to the second contempt proceeding. Prior to filing the second contempt proceeding, appellant had been served with process on two occasions and had paid $500.00 to purge himself of his contempt.

Appellant contends that the decrees should be set aside for the reason that he was illiterate, could not read and write, and did not know the significance of the process which was served upon him. His employer testified on the hearing in appellant’s behalf and stated that when she went to get Donaldson out of jail she asked him why he had not brought the papers to her. The following conversation occurred between appellant and her:

Q. Do you mean Andrew?
A. Andrew, right. And I asked him, I said why in the world when these papers was brought to you didn’t you come and bring them to me. And he said, “Well, Miss Sheila, I’ve always been taught if I didn’t do anything wrong I didn’t have anything to worry about.” And said, “Zelda May kept saying she was gonna have me locked up.” And said, “I knew she couldn’t lock me up if I hadn’t done anything.” And said, “I threw them away.” And I said, “Well, Sonny, legally you can’t do that, you know, even if you hadn’t done anything; you have to go and tell them, you know, that you hadn’t done anything.

Appellant testified that he has a third-grade education and could not read or write but could print his name; that he was served with the papers in 1979, and that he “just didn’t never do nothing about it;” that he was taught that if he had done nothing wrong, he could just forget about the papers; that when he was taken to jail, he paid the $500.00 and was told the reason for his arrest; that he had lived with Zelma Bankston, mother of the children, and helped support the children at that time; that he was forty-three years of age at the time of the hearing and that he knew how to work and take care of himself; that he had been working at Crew Motor Company sixteen or seventeen years as a truck driver; that he paid his taxes; and that there were plenty of people around to help him with things he was having trouble understanding because of his inability to read, when he asked them.

Haskell Turner, a co-employee of appellant, who operated the shop, stated that he drew maps for appellant to follow on truck deliveries to Chicago and other places and that Donaldson managed to follow them very well; that he had drawn hundreds of such maps with highway numbers and landmarks on them, and delivered them to appellant, who used them as a truck driver; and that appellant occasionally brought papers for him to read, including overweight tickets from truck scales, to find out what should be done about them.

Appellant contends that Rule 60(b)(6) applies to his situation and concedes that the other five reasons in Rule 60(b) are not pertinent. (See Rule 60(b) — Appendix)

Appellant relies upon three eases discussing Rule 60(b)(6), Fed.R.Civ.P., as authority for his position, viz, Ackerman v. United States, 340 U.S. 193, 71 S.Ct. 109, 95 L.Ed. 107 (1950); Klapprott v. United States, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099 (1949); and United States v. Karahalias, 205 F.2d 331 (D.C.N.Y.1953).

In Klapprott, a naturalized citizen sought to have a default judgment of de-naturalization set aside after four years because he was in prison, had been ill, and had no means to support payment for counsel. It was argued that the claim should be barred by the one-year limitation provision under Federal Rule 60 because the petition showed, at most, excusable neglect. The United States Supreme Court held that the prayer should also be considered under Rule 60(b)(6) under the “Other Reason” clause inasmuch as petitioner was no more able to defend himself in the New Jersey court than it would have been had he never received notice of the charges and that the petition was not barred by the one-year limitation required for subsections (1), (2), and (3) under the Federal rule.

The respondent, in Ackerman, sought relief from a four-year-old denaturalization judgment under Rule 60(b)(6) because there had been no appeal on the advice of counsel and another individual. The United States Supreme Court held, however, that the failure to appeal was not a justifiable reason to be relieved from the judgment because the decision was “calculated and deliberate.” The Court noted that Ackerman could not compare to Klapprott because the choice in Klapprott was not freely made, and circumstances were extraordinary. 71 S.Ct. at 211, 213.

Karahalias also involved a respondent seeking relief from a default judgment of denaturalization. The Court pointed out that Federal Rule 60(b)(6) was meant to provide relief in situations of extreme hardship not covered under the other subsections. Karahalias was prevented from returning to the United States for nearly five years during World War II while his wife was critically ill. The Second Circuit Court of Appeals, in considering the importance of his interest in retaining his citizenship and contemplating that he was unable to do anything toward protecting his legal position, allowed the action to be revived.

We distinguish the case sub judice from Klapprott and Karahalias, supra, but are of the opinion that Ackerman gives some support to the decision of the lower court.

We are of the opinion that the substantive law prior to adoption of the Mississippi Rules of Civil Procedure would have afforded appellant no relief and would not permit the decrees to be overturned. Appellant, though uneducated and illiterate, had a wide experience in his employment and apparently knew how to get around and where to obtain advice and counsel. We do not think that Rule 60(b)(6) was intended to permit a person, such as appellant, to ignore a summons served upon him, not only in the original cause, but on petition to cite him for contempt. Also, an unreasonable period elapsed before he attempted to obtain any relief. Under the facts and circumstances of this case, we are of the opinion that Rule 60(b)(6) does not apply and that the lower court committed no error in denying the motion to set aside the decrees.

Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . Rule 60(b)(1), Fed.R.Civ.P., unlike the Mississippi rule, provides relief from judgment for mistake, inadvertence, surprise, or excusable neglect.


text:
    Shirley Ann MARASCALCO v. Robert MARASCALCO.
    No. 53955.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    R.E. Parker, Jr., David M. Sessums, Var-ner, Parker & Sessums, Vicksburg, for appellant.
    H.M. Yoste, Jr., William R. Lancaster, Bodron & Yoste, Vicksburg, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

On. April 16, 1981, Robert Marascalco, complainant below and appellant here, filed against his ex-wife, Shirley Ann Marascal-co, a petition to modify the child custody provisions of a final decree of divorce. He alleged a material change in circumstances since the July 11, 1979 divorce of the parties and the original decree’s vesting in his ex-wife of primary custody of the two minor children, namely, Laurie Ann Marascal-co, then age eight, and Amy Elizabeth Mar-ascalco, then age five. He argued that, as a result of this change of circumstances, custody of the children should be placed with him.

The chancellor listened carefully and patiently to all of the evidence, and made two not insignificant alterations in the original custody order, each favorable to Robert. Not content, Robert presents us with another of those appeals which naively intimates “that we possess more of the wisdom of Solomon than the chancellor”. Cheek v. Ricker, 431 So.2d 1139, 1141 (Miss.1983). Our task is made all the more complex here by the fact that we are asked to alter custody today on the basis of a record made at a hearing held May 25, 1981, some 33 months ago. Common sense tells us that surely any change in custody we might make in such a context would be disastrous for the parties and more importantly for the two minor children.

Though we keep well in mind our familiar rules regarding our scope of review in these cases, we are disturbed by the record before us. There is a sense in which we sit as “chancellors” in cases such as this. See, e.g., Eggleston v. Landrum, 210 Miss. 645, 654, 50 So.2d 364, 367 (1951); Case v. Stolpe, 300 So.2d 802, 804 (Miss.1974). Because as appellate judges we are necessarily blinded to all that has happened since May 25, 1981, we affirm. As chancellors we remand for an up to date consideration of the best interests of these two minor children.

II.

Robert and Shirley were divorced on July 11, 1979. The divorce was granted on grounds of “irreconcilable differences”. See Miss.Code Ann. § 93-5-2 (Supp.1983). Incident to the divorce proceedings, the parties agreed that the primary custody of the two minor children, Laurie Ann Maras-calco and Amy Elizabeth Marascalco, would be vested in their mother, Shirley Ann Marascalco. Robert Marascalco, their father, was given reasonable visitation rights.

Shortly after the divorce decree was entered, Robert remarried and moved to Gainesville, Georgia, where he is engaged in the practice of medicine as an orthopedic surgeon. Shirley Ann and the two children moved to Grenada where they initially lived with Shirley’s mother. Approximately a year later Shirley and the children moved to Jackson where they resided at the time of the hearing below.

No useful purpose could be served by reciting the details of the testimony at the bitterly contested adversary proceeding below. Still, an important context for this appeal is the evidence that, off and on for years, Shirley has had a serious drinking problem. The chancellor did not find Shirley’s drinking sufficient to require a change of primary custody. He did, however, find enough of a change of circumstances to request that

the Madison County Welfare Department shall make periodic, but unannounced inspections of the conditions, circumstances and environment in which these children live while in the custody of their mother, Shirley Ann Marascalco. The said welfare department shall report to this court the results of these inspections.”

The chancellor assessed against Robert attorney’s fees in the amount of $1,000.00 plus costs.

Robert has perfected his appeal to this Court and urges that we reverse the decree of the chancellor and vest in him the permanent care, custody and control of the two minor children.

III.

The rules regulating our scope of review in cases such as this are well established and familiar.

First, a decree for child custody should not be modified so as to change custody from one parent to the other unless, subsequent to the original decree, there has been a material change in circumstances which adversely affect the child’s welfare. Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983); Cheek v. Ricker, 431 So. 2d 1139, 1143 (Miss.1983); O’Neal v. Warden, 345 So.2d 610, 612 (Miss.1977). Put another way, a change of circumstances which does not adversely affect the welfare of the child would, as a matter of law, be an immaterial change. In modification cases, as in original awards of custody, we never depart from our “polestar consideration: the best interest and welfare of the child”, Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

Second, findings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence. See, e.g., Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983); Cheek, v. Ricker, 431 So.2d 1139, 1143 (Miss.1983); Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983). With respect to issues of fact where the chancellor made no specific finding, we assume that the chancellor resolved such issues in favor of appellee. Cheek v. Ricker, 431 So.2d 1139, 1143-1144 (Miss.1983); Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (Miss.1947).

In considering child custody modification cases, the chancellors must necessarily allow full and complete proof with respect to all circumstances and conditions directly or indirectly related to the care and custody of the children, existing, first, at the time of the original decree of divorce, and, second, at the time of the modification hearing.

Applying our established principles of appellate review, we have no choice but to affirm the decree entered by the learned chancellor on July 6, 1981. We specifically applaud the chancellor's creativeness in requesting the assistance of the Madison County Welfare Department in assuring that the best interest of these children were protected. While we have before us nothing that has occurred since the July 6, 1981 decree — such being the nature of appellate proceedings — we trust that the Madison County Welfare Department has been more than cooperative and express our appreciation to the dedicated servants of that agency for their concern and assistance.

IV.

This does not end the matter. As is apparent from the record before us, these children have lived the better part of their lives in a volatile environment. While we affirm the decree of July 6, 1981, we remand the case to the Chancery Court of Warren County, Mississippi and direct that a hearing be held as soon as may be reasonably practicable. At that hearing the chancellor is directed to inquire into the circumstances of the children at this time and to determine whether the present custody arrangement is in their best interests. The chancellor, of course, is empowered to make such decree as may be appropriate by reference to the facts and circumstances disclosed at such a hearing.

Our direction for an updating custody hearing hardly suggests that matters respecting the custody of these children can only be resolved by litigation in an adversary context. We earnestly solicit the parties, each acting out of primary concern for the welfare of the children, to consider the possibilities of presenting to the chancellor an agreed decree (which may or may not alter the decree of July 6, 1981). Our directions that the chancellor hold a full evidentiary hearing on the present circumstances of the children is made because of our realistic apprehension that the parties will no more be able to agree today than they were almost three years ago. See Cheek v. Ricker, 431 So.2d 1139, 1142-1143 (Miss.1983).

Within thirty days of the issuance of this Court’s mandate, Robert Marascalco shall pay to Shirley Ann Marascalco the sum of $500.00 as attorney’s fees incident to this appeal. All costs incident to this appeal are also taxed to Robert Marascalco.

We further direct, with respect to the evidentiary hearing which we have directed that the chancellor hold as soon as is reasonably practicable, Robert Marascalco should be directed to pay to Shirley Ann Marascalco a reasonable attorney’s fee to be set by the chancellor under all of the circumstances then appearing, plus costs, regardless of whether a change in the custody of the children be ordered or not.

AFFIRMED AND REMANDED.

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

      . The chancellor altered the custody provisions of the prior decree so that the children would spend the bulk of their summer vacations with Robert at his home in Gainesville, Georgia, plus alternating holidays. On this appeal no one complains of this modification of the original custody arrangements.


author: HAWKINS, Justice,

text:
    Karen Lee BLUE, Lawrence G. Andrews, et ux v. Wilbur D. BLUE, Mrs. Esther Blue, and Wilbur D. Blue, Administrator of Estate of Ronald D. Blue, Deceased.
    No. 54127.
    Supreme Court of Mississippi.
    Feb. 22, 1984.
    Walter J. Phillips, Gex, Gex & Phillips, Nicholas M. Haas, Bay St. Louis, for appellant.
    John L. Galloway, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellee.
    Before WALKER, P.J., HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice,

for the Court:

This case is an interlocutory appeal in a land partition suit from the Chancery Court of Hancock County decreeing that a former property settlement contained in a divorce decree terminated the joint tenancy in realty owned by Mrs. Karen Lee Blue and her then-husband Ronald D. Blue. Finding the chancellor correct, we remand for further proceedings consistent with the chancellor’s and our own ruling.

FACTS

On February 20, 1978, real property in Hancock County was conveyed by warranty deed to Ronald Dale Blue and wife Karen Lee Blue, “as an estate in the entirety with right of survivorship and not as tenants in common.”

On November 3, 1978, an agreed decree was rendered by the Chancery ■ Court of Hancock County awarding Mrs. Blue a divorce decree from Mr. Blue. This decree recites the following:

5. That the parties have agreed to a property settlement which provides as follows:
(A) That the defendant shall have possession of the house of the parties in Pearlington, Hancock County, Mississippi, for a period of six months from date. Defendant will be required to maintain and keep current the insurance and taxes on subject property. At the end of the six-month period the parties agreed to sell said property at an agreed price with the net proceeds to be divided equally, failing in which, a partition suit will be filed requesting the court to order a sale to the highest and best bidder.

Mr. Blue died intestate on January 13, 1979, and his heirs-in-law instituted this suit to partition the realty.

In the meantime, Mrs. Blue had executed a warranty deed to Lawrence G. and Gladys J. Andrews, and this couple were likewise made party defendants to the partition suit.

While it might have been better expressed, it is clear Mr. and Mrs. Blue by their property settlement agreement, solemnized in the divorce decree, intended that their property, following the divorce, would be owned by them as tenants in common, with each owning an undivided one-half interest, subject only to Mrs. Blue’s right of possession for six months. This decree terminated not only their marriage but their tenancy by the entirety, and any joint tenancy as well. For facts with a slightly different twist, but holdings consistent with the holding we now make, see: Wray v. Langston, 380 So.2d 1262 (Miss.1980); Roberts v. Roberts, et al., 381 So.2d 1333 (Miss.1980).

INTERLOCUTORY APPEAL AFFIRMED, CASE REMANDED TO THE CHANCERY COURT OF HANCOCK COUNTY FOR FURTHER PROCEEDINGS.

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


text:
    Ronald Lee TIPTON v. STATE of Mississippi.
    No. 54145.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    Harry Jonas Rosenthal, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Simpson County; L.D. Pittman, Judge.

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

AFFIRMED.


text:
    Molly W. COX v. MONROE ALLEN CONTRACTORS, INC.
    No. 54758.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    Donald L. Kilgore, Alford, Thomas & Kilgore, Philadelphia, for appellant.
    Grace Watts Mitts, T. Kenneth Watts, Eppes, Watts & Shannon, Meridian, for ap-pellee.
   Appeal from Circuit Court, Clarke County; Henry Palmer, Judge.

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

AFFIRMED.


text:
    Johnny Singler BURGESS v. HALTER MARINE, INC., et al.
    No. 54098.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    Stanford Young, David Slaughter, Waynesboro, for appellant.
    Grier J. Gregory, David Strain, Bryant & Stennis, Gulfport, for appellees.
   HAWKINS, Justice,

for the Court:

Johnny S. Burgess appeals from an order of the Circuit Court of Jackson County sustaining the motion to dismiss his declaration filed against Halter Marine, Inc., a Louisiana corporation, and its corporate directors Harold Halter, James Dubisson, Joseph LeBlanc, Floyd Naguin, William Im-bert and Charles Lugenbuhl. Finding the declaration stated a cause of action, we reverse and remand.

Burgess filed a declaration against the defendants on May 4, 1981. He alleged that on May 5, 1975, he was employed by Halter Marine Fabricators, Inc., of Moss Point, Mississippi, a separate corporate entity to the corporate defendant, to work on a ship owned by the defendants, and while thus employed was injured when he fell into an open, unguarded hole on the ship. He further alleged the injuries received resulted from the failure of the defendants to fulfill the following non-delegable duties:

A. To provide proper care, supervision and instruction of the installation procedure involved in the ship’s construction.
B. To provide necessary and competent safety personnel to conduct proper safety inspections of the work area involved to see that potential hazards were eliminated or to warn against said hazards.
C. To provide necessary and competent emergency medical personnel to assist any injured worker and to see that said workers are immediately taken to emergency facilities upon the occurring of an injury.

The defendants answered, and filed a “Motion to Dismiss in the Nature of a Plea in Bar”. In support of this motion the defendants set out that Burgess had received workmen’s compensation benefits, that he had elected his remedies, and was barred by the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. 905(a). By plea in bar the defendants alleged Burgess was employed by the corporate defendant, and in their answer they denied plaintiff was employed by Halter Marine Fabricators, Inc.

Counsel argued the motion before the circuit judge in a proceeding in which no testimony or other evidence was offered, following which the action was dismissed.

The circuit judge based his ruling on the failure of the plaintiff to allege any duty or obligation owed him by the defendants. The circuit judge was bothered by the failure of the plaintiff to allege any contract between his employer and the defendants which would allow him on the ship, and nothing was shown giving the reason, in the first place, for working on the vessel.

In the order sustaining the motion to dismiss the court gave two reasons to support it: (1) the workmen’s compensation received by the plaintiff was his exclusive remedy, and (2) “the Plaintiff’s Declaration wholly failed to allege there existed any duty as between the Plaintiff and the Defendant herein, which is cognizable at law."

It is of interest that on appeal neither party specifically argued the "second reason the circuit judge gave in his order of dismissal.

The briefs address the exclusivity of remedy. The first question posed is whether plaintiff, after receiving workmen’s compensation from his employer, is barred from suing for negligence on the part of the ship’s owner. The answer is that he is not. This contention is fully answered in Jones & Laughlin Steel Corporation v. Pfeifer, — U.S. —, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983), even if the owner of the vessel was one and the same person or corporation as the plaintiff’s employer. Another reason that the Act does not bar plaintiff, under the allegations of his declaration, is that he alleged he was employed by a different corporation than the defendant corporation. It is premature for us to make further exposition on the LHWCA in this opinion.

Appellees’ counsel further argued that the LHWCA barred Burgess because his declaration alleged his injuries came about from failure of his fellow employees to perform non-delegable duties. This may very well be the case, and in such event Burgess will be barred under the Act. See: 33 U.S.C. 905(b). This will have to be developed by proof, however. The declaration may be read that plaintiff was injured as a result of some act or omission on the part of the ship’s owner aside from any act of fellow employees, as admittedly it may be read otherwise.

The most serious flaw in the declaration the astute circuit judge observed. A trial court’s frustration with a declaration such as this, couched in vague, ambiguous language, is certainly understandable. Again, proof on this matter may mean a brief sojourn for the plaintiff in the circuit court. For the time being, we hold plaintiff has alleged enough, barely, to stay in court. He will be subject to pleas to make a more definite statement, and of course proof on the matter.

The declaration was filed one day before plaintiff was barred by the Mississippi statute of limitations. If we affirmed, he would forever lose his opportunity for his day in court.

This is a case of admiralty and maritime jurisdiction. Because it has been brought in personam only, it is cognizable in the courts of this state under the “Savings-to-Suitors” clause of the Federal Judicial Code. 28 U.S.C. § 1333(1).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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

      . The original declaration was amended January 3, 1982, and the recitations are from the amended declaration.

      . The Court acknowledges with gratitude the candor of appellees' counsel, who cited Jones & Laughlin in oral argument. If it is any comfort to him, he would have lost on this point, anyway, for the last reason stated.

      .Except we do note from the declaration a marked tendency to make an “unseaworthy” claim which could be barred by Section 905(b) of the Act. See: Scindia Steam Navigations Co., Ltd. v. Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981).


text:
    Alfred LEWIS v. STATE of Mississippi.
    No. 54122.
    Supreme Court of Mississippi.
    Feb. 29, 1984.
    V.T. Valias, Jackson, for appellant.

      Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court for the First Judicial District of Hinds County. The appellant was convicted of uttering a forged instrument and sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections. From this judgment and sentence, the appellant perfected an appeal to this Court.

On September 27, 1980 the appellant entered the Jitney Jungle Store located at 1204 West Capital Street in Jackson. He presented a check in the amount of $150.00 and asked that it be cashed. The check was drawn on Diamond Services, Inc. and made payable to Calvin D. Johnson. For identification the appellant presented a current Mississippi driver’s license bearing the name of Calvin Johnson.

On notice that Jitney Jungle had received forged checks from Diamond Services, Inc., Mr. H.R. Addison, the store manager, detained the appellant and called the police. The appellant then tried to leave, but was prevented from doing so by Mr. Addison.

Thereafter, Officer J.K. Webb as well as Detective Rochester of the Jackson Police Department arrived. In response to a question by Officer Webb, the appellant stated that his name was Calvin Johnson. Officer Webb then asked the appellant to give the address and date of birth that appeared on the driver’s license bearing Calvin Johnson’s name, but the appellant was unable to do so.

As the officers started to leave with the appellant, however, they noticed a wallet in the chair where appellant had been sitting. Officer Webb looked inside the wallet and found a North Carolina driver’s license, which was issued to Alfred Lewis and contained a photograph of the appellant. Through old arrest records the police later determined that Alfred Lewis was indeed the appellant’s real name.

At trial Lewis denied any knowledge that the check was forged. He testified that on September 27 he was walking down Capital Street in Jackson when he hitched a ride from an unknown man in a white Ford. The man had casts on both his left arm and left leg. Stating that he had trouble getting in and out of the car, the man asked Lewis to cash a check for him. Lewis agreed. He then took the check and went into the store. When problems developed in cashing the check, Lewis tried to go to the car and get the man, but was stopped by the store manager. Lewis further testified that from the store office he could see through a window into the parking lot and noticed the white Ford drive away.

After hearing all the evidence, the jury returned a verdict of guilty. Urging reversal on appeal, the appellant first complains that the trial court erred in allowing into evidence his statements made while in custody but before being informed of his constitutional rights. At trial, both Officer Webb and Detective Rochester testified that the appellant was not given the Miranda v/arning until after he was taken to the police station. Both officers also testified that the appellant told them his name was Calvin Johnson. The appellant argues that under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) admission of this testimony was error since these statements were made during a custodial interrogation and before being informed of his constitutional rights. This argument is without merit. In the present case the officer arrived shortly after the crime was committed and found the appellant being detained by the store manager. Under such circumstances Miranda does not preclude an arresting officer from asking the detained individual his name, although he has not yet been advised of his constitutional rights as prescribed by Miranda, supra. This is true even though a person gives a false name at the time he is arrested, and the officer’s testimony in this regard is admissible in evidence. Cf. Pennington v. State, 437 So.2d 37 (Miss.1983); Yazzie v. State, 366 So.2d 240 (Miss.1979).

The appellant next contends that the trial court erred in allowing testimony that he had a prior arrest. The appellant elicited the testimony on cross-examination of Detective Rochester and cannot now be heard to complain that it was error.

The appellant’s remaining assignment of error is without merit.

For the above reasons, the case is affirmed.

AFFIRMED.

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


author: JONES, Justice. MADDOX, Justice,

text:
    ALABAMA HIGH SCHOOL ATHLETIC ASSOCIATION v. Larry ROSE, a minor who brings this action through his father and next friend, William Rose.
    82-1256.
    Supreme Court of Alabama.
    Jan. 6, 1984.
    Rehearing Denied Feb. 3, 1984.
    Melton & Espy, Montgomery, George Ford, Gadsden, for appellant.
    Jack Floyd, Gadsden, for appellee.
   JONES, Justice.

Plaintiff Larry Rose, a minor, initiated these proceedings on August 24, 1983, by and through his father and next friend, William Rose. Named as Defendants were the Alabama High School Athletic Association (AHSAA); Emma Sansom High School; Dr. Fred Taylor, as Superintendent of the Gadsden City Board of Education; and the Gadsden City Board of Education.

The initial complaint alleged that Rose had been declared ineligible to participate as a student athlete at Emma Sansom High School for the 1983-84 school year, and sought an order enjoining Defendants from enforcing the ineligibility ruling. All Defendants filed motions to dismiss. The trial court granted the motions, with the exception of that of AHSAA, ruling that “the Complaint in this case will be heard only on the allegations of arbitrariness, collusion or fraud.”

Subsequent to a hearing, the trial court, on September 7, 1983, temporarily enjoined AHSAA from enforcing its ineligibility ruling against Rose. On September 9, 1983, the trial court denied AHSAA’s motion to stay the preliminary injunction, and AH-SAA filed with this Court its notice of appeal and a petition for writ of mandamus or, in the alternative, for stay of preliminary injunction. On September 20, 1983, we granted AHSAA’s petition for writ of mandamus, and ordered that the preliminary injunction in favor of Rose be dissolved. On October 5, 1983, on consideration of Rose’s application for rehearing, we vacated that order of September 20, and reinstated the preliminary injunction. Today we have quashed the writ issued on September 20, 1983. This opinion is addressed to the appeal by AHSAA. We emphasize that the only issues presented on this appeal are the trial court’s jurisdiction to issue a preliminary injunction and, assuming that jurisdiction, the propriety, vel non, of the interlocutory order granting a preliminary injunction.

We affirm.

FACTS

We recite the following factual findings of the trial court:

“1. The plaintiff is a minor sixteen years of age. William Rose is the father, natural guardian and custodian of the plaintiff. The plaintiff has been enrolled as a student at Emma Sansom High School in Gadsden, Alabama, since September 10, 1982. Plaintiff will enter the 11th grade at Emma Sansom High School on the first day of the school year 1983-84. The plaintiff has remained a student of Emma Sansom High School all during the 1982-83 school year.

“2. The plaintiff participated in the football program of Emma Sansom High School as a student athlete during the 1982-83 school year. Prior to his participation the defendant AHSAA ruled that the plaintiff was eligible to participate in the football program of Emma Sansom High School for the 1982-83 school year.

“3. The plaintiff has completed one year’s attendance at Emma Sansom High School. The plaintiff’s parents have their permanent residence in the Emma Sansom High School zone of the Gadsden School District.

“4. During the 1982-83 school year, and during the summer months following the same, the Executive Director of the defendant AHSAA received repeated telephone calls from three local high school coaches in an effort to convince the Executive Director of the defendant AHSAA that the plaintiff was ineligible for athletic participation; that based upon the assertion of the coaches, and without making further investigation or inquiry, the Executive Director of AHSAA became convinced that the plaintiff was ineligible. When the Executive Director of AHSAA was first contacted by Emma Sansom High School and by the plaintiff concerning his eligibility, the Executive Director of AHSAA announced that he had made his decision that. the plaintiff was ineligible, and although said Executive Director allowed the plaintiff to journey to Montgomery to discuss the matter, announced that he was 98% sure that his decision would be to declare the plaintiff ineligible. Without further investigation, the defendant AHSAA, through its Executive Director, issued a ruling on August 3, 1983, that the plaintiff was ineligible to participate as a student athlete at Emma Sansom High School for the 1983-1984 school year, on the grounds that the plaintiff’s family move into the Emma Sansom school zone in September, 1982, was not a bona fide move or change of residence because the plaintiff’s parents did not remain there for six months or more after the move.

“5. Thereafter, Emma Sansom High School through its principal, James Gidley, appealed the ruling of the Executive Director of defendant AHSAA to- the Sixth District Athletic Board of the defendant AHSAA, which Board is empowered to hear, de novo, appeals from the ruling of the Executive Director.

“6. That prior to the appeal hearing before the Sixth District Athletic Board, which was to be a de novo appeal hearing, the Executive Director of the defendant AHSAA contacted personally two of the four members of the Sixth District appeal board, discussed the plaintiff’s case with them, and received a commitment from said two Board members that they considered the plaintiff ineligible and that they would so rule after the hearing, said decision being made by said two Board members before any evidence had been presented to them at the hearing. The hearing before the Sixth District Athletic Board lasted approximately 45 minutes. A third member of the Sixth District Athletic Board was not present when the hearing began but came into the meeting after some 30 minutes of testimony had expired, and yet the third member of the Athletic Board sat in deliberation in the plaintiffs case with the other Board members and joined with the other Board members in a unanimous decision against the plaintiff and his eligibility.

“7. At the hearing of the Sixth District Athletic Board, the Executive Director of defendant AHSAA appeared at the hearing as the proponent to substantiate his ruling. After the evidence and facts had been presented to the Sixth District Athletic Board, the Board went into closed session to deliberate its decision. At the time the Board went into its deliberation, the Chairman of the Sixth District Athletic Board required the plaintiff, representatives of Emma Sansom High School, and all other interested parties to leave the room; however, the proponent Executive Director of the AHSAA remained with the Athletic Board during its deliberations, entered into the deliberations and discussions of the Board, spoke in favor of his position of ineligibility, and attempted to influence the Board to sustain his position. The Executive Director of the defendant AHSAA attempted to influence the Board and denied the plaintiff his right to an impartial, unbiased decision. The Executive Director of defendant AHSAA is a dominating force in athletic circles in Alabama and exerts great influence over coaches and member schools, and exerted influence over the deliberations and members of the Sixth District Athletic Board in its decisions in the plaintiff’s case.

“8. That the actions of the Executive Director of defendant AHSAA, the actions of defendant AHSAA, and the actions of the Sixth District Athletic Board denied the plaintiff a fair and impartial hearing or decision, and denied the plaintiff his right to due process under law. The acts and decisions of the defendant AHSAA, its Executive Director, and the Sixth District Athletic Board were the result of collusion and arbitrariness.

“9. That on September 10, 1982, the plaintiff and his parents moved from rural Etowah County into the Emma Sansom High School district. The plaintiff enrolled at Emma Sansom High School on September 10, 1982. The plaintiffs parents moved to Gadsden to reduce their living costs and so that the plaintiffs father would be close to his employment at Republic Steel Corporation. They moved into a home in the 2800 block of West Meighan Boulevard. The household furniture of the family was moved to the new residence; all members of the plaintiffs family resided in the new residence; the original residence in rural Etowah County was closed and was not used by the family. At the time of the move, the plaintiffs father was attempting to sell or lease the rural home on which the plaintiffs family owed a large monthly mortgage indebtedness payment. Shortly after moving to the new residence in Gadsden, Alabama, both the plaintiffs father and mother were laid off from their employment and the family had no income except unemployment compensation benefits. The economic conditions in Etowah County at the time were bad, and unemployment in Etowah County exceeded 20%. Because of the economic conditions the plaintiffs father was unable to sell or lease his former rural home, and he was required to continue to make the monthly mortgage indebtedness payments on the same. Because of financial hardship, it was necessary for the plaintiffs family to temporarily move from the home in the 2800 block of Meighan Boulevard, which m°ove occurred on November 14, 1982. The move was a temporary one, and the plaintiff and his family resided with the maternal and paternal grandparents of the plaintiff in addition to partly residing in the old rural home. The move into rural Etowah County was on a temporary basis for economic and financial reasons. During the time the plaintiffs family temporarily lived in rural Eto-wah County, the plaintiff remained a full-time student at Emma Sansom High School.

“10. That the move of the plaintiff’s parents to the City of Gadsden, Alabama, on September 10, 1982, was a bona fide move by said family.”

Following its findings of fact, the trial court decreed:

“[T]hat a preliminary injunction be and the same hereby is issued to the defendant Alabama High School Athletic Association, its officers, member schools, agents, servants, employees, and attorneys, enjoining them from denying the plaintiff the opportunity of participating in the high school football program, season, and games of Emma Sansom High School for the 1983— 1984 season, as a student athlete, and from enforcing the ruling of the defendant AH-SAA of August 3, 1983, issued by its Executive Director, and the ruling of the Sixth District Athletic Board of defendant Alabama High School Athletic association of August 17, 1983, denying the plaintiff his eligibility to participate as a student athlete in athletic and football events and contests of Emma Sansom High School for the 1983-1984 season, and from imposing sanctions against the plaintiff or Emma Sansom High School, either jointly or severally, by way of forfeiture or otherwise of any game or contest in which the plaintiff participates, all until a final hearing in this cause.”

DECISION

In Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970), the Court stated:

“It is obvious that the purpose of the rule with, which we are here concerned, that is the residence requirement of students, is to prevent the transfer of a student athlete from one school to another without regard to the student’s home school district, whether such transfer be voluntary on the student’s part, or the result of enticement or recruitment. It cannot be argued but that the rule tends to maintain the truly amateur character of high school athletics.
“Participation in high school athletics is an extracurricular activity subject to regulations as to eligibility. Engaging in these activities is a privilege which may be claimed only in accordance with the standards set up for participation.
“The member schools are in better position to promulgate rules governing participation in high school athletics than anyone else, and are fully cognizant of the reasons underlying such rules.
“If officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school’s athletic teams, and the member schools vest final enforcement of the association’s rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association. See Tennessee Secondary School Athletic Association, et al. v. Cox, et al., [221] Tenn. [164], 425 S.W.2d 597; Morrison v. Roberts, 183 Okl. 359, 82 P.2d 1023; Robinson v. Illinois High School Association, 45 Ill.App.2d 277, 195 N.E.2d 38; State ex rel. Ohio High School Athletic Association v. Judges of the Court of Common Pleas, 173 Ohio St. 239, 181 N.E.2d 261; Sult v. Gilbert, 148 Fla. 31, 3 So.2d 729; State ex rel. Indiana High School Athletic Association v. Lawrence Circuit Court, 240 Ind. 114, 162 N.E.2d 250; Starkey v. Board of Education of Davis County School District, 14 Utah 2d 227, 381 P.2d 718.
“Of course, if the acts of an association are the result of fraud, lack of jurisdiction, collusion, or arbitrariness, the courts will intervene to protect an injured [party’s] rights. See 6 Am.Jur.2d., Associations and Clubs, Sec. 27, p. (Emphasis added.)

The fact that the case law of this State is less than extensive in this area speaks well of our entire system of amateur athletics— those who coordinate as well as those who participate. One can only hope that a sudden and recent proliferation of challenges by participants and member institutions of AHSAA is not a foreboding of things to come. Athletics and athletes belong in their own arena. A courtroom is not the proper field of competition.

The traditional philosophy in areas such as that now before us is much like that associated with religious societies and other voluntary associations — a hands-off philosophy. In other words, it’s their show; let them run it. See, e.g., In re Galilee Baptist Church, 279 Ala. 393, 186 So.2d 102 (1966). Even claimed violations of due process of law are viewed more liberally in favor of the association’s authority to administer its own rules and regulations. Kubiszyn v. Alabama High School Athletic Association, 374 So.2d 256 (Ala.1979).

Likewise, as Kilpatrick and Ku-biszyn indicate, the burden on the challenger to overcome the presumption favoring the Association’s absolute authority in the conduct of its own affairs is a heavy one. We reaffirm the Kilpatrick test to the effect that the Court’s jurisdiction in such matters is invoked when, and only when, the averments of fraud, collusion, or arbitrariness are supported by clear and convincing evidence; and the trial court’s acceptance of jurisdiction will be affirmed only where its order makes an unequivocal factual finding of one or more of those narrow, restrictive grounds, founded upon clear and convincing evidence.

The ultimate issue before us, then, given the trial court’s express finding of collusion, as allegedly perpetrated upon Rose by AHSAA and its executive director, is whether this jurisdictional requisite is amply supported by the evidence. After careful review of the findings of fact, tested against the testimony of record, we are convinced that the trial court’s jurisdiction was properly invoked and that its order granting a preliminary injunction was an appropriate exercise of its discretionary function.

AFFIRMED.

FAULKNER, ALMON, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, J., dissent.

MADDOX, Justice,

(dissenting).

The lower court based its preliminary injunction, in part, on the following finding:

“8. That the actions of the Executive Director of defendant AHSAA, the actions of defendant AHSAA, and the actions of the Sixth District Athletic Board denied the plaintiff a fair and impartial hearing or decision, and denied the plaintiff his right to due process under law.” (Emphasis added.)

This finding erroneously presupposed that a student athlete has a constitutional right to due process in the determination of his athletic eligibility by the AHSAA. As recognized in Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970), and Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir.1970), the privilege of participating in high school athletics is outside the protection of due process. Mitchell clearly so holds when it states as follows:

“For better or worse, the due process clause of the fourteenth amendment does not insulate a citizen from every injury at the hands of the state. ‘Only those rights, privileges and immunities that are secured by the Constitution of the United States or some Act of Congress are within the protection of the federal courts. Rights, privileges and immunities not derived from the federal Constitution or secured thereby are left exclusively to the protection of the states.’ The privilege of participating in interscholastic athletics must be deemed to fall in the latter category and outside the protection of due process." (Emphasis added.)

Mitchell, supra, 430 F.2d 1155, 1157, 1158.

This holding in Mitchell has been consistently followed in numerous cases. See Parish v. National Collegiate Athletic Ass’n, 506 F.2d 1028 (5th Cir.1975); Moreland v. Western Pennsylvania Interscholastic Athletic League, 572 F.2d 121, 123-24 (3d Cir.1978); Hamilton v. Tennessee Secondary School Athletic Ass’n, 552 F.2d 681, 682 (6th Cir.1976); Albach v. Odle, 531 F.2d 983, 984-85 (10th Cir.1976); and Walsh v. Louisiana High School Athletic Ass’n, 616 F.2d 152 (5th Cir.1980).

Scott also holds that a student-athlete such as Rose does not have a constitutionally protected due process right in the determination of his athletic eligibility by the AHSAA. In this connection, it was stated in Scott as follows:

“The Chancellor found that the complainant had not been notified of the final hearing before the Central Board of Control, and therefore had no opportunity to appear at such hearing. The appeals to the District Board and to the Central Board were processed by Cordova High School. The matter pertained to the internal affairs of the AHSAA. Only the school was a member of that association. Cordova, and all other members of the association, had vested the final enforcement of the rules of the association in the District Board and the Central Board. The complainant was not a member of the association. He had no standing in the proceedings. The fact that he was no,t notified of the hearing before the Central Board is of no consequence.” (Emphasis added.)

Scott, supra, 286 Ala. 129, 133, 237 So.2d 652, 653.

Since Rose did not have a due process claim against the AHSAA, there is no legal basis to support the finding by the lower court that the action of the AHSAA Executive Director or District Board “denied the plaintiff his right to due process under law.” The AHSAA could not deny Rose a constitutional right which did not exist. As stated in Walsh, supra:

“A student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement. As decided in Mitchell, it falls ‘outside the protection of due process.’ The district court properly denied the plaintiffs relief based on their due process claim.”

Walsh, supra, 616 F.2d 152, 159, 160.

In National Collegiate Athletic Ass’n v. Gillard, 352 So.2d 1072 (Miss.1977), the Supreme Court of Mississippi held that in determining the eligibility of a college football player by the NCAA that the player did not have a due process right under either the State or Federal Constitution. In that case the Supreme Court of Mississippi followed and quoted from Scott v. Kilpatrick, supra, by the Supreme Court of Alabama. The Court concluded as follows:

“The basic decision of the case then is the simple statement that Gillard's ‘right’ to engage in intercollegiate football is not a ‘property’ right that falls within the due process clause of either section 14 of the Mississippi Constitution or the Fourteenth Amendment to the United States Constitution, both of which are identical. The reason for this principle is found in the following cases: Howard University, et al. v. NCAA, 166 U.S.App. D.C. 160, 510 F.2d 213 (1975); Parish, et al. v. National Collegiate Athletic Ass’n, 506 F.2d 1028 (5th Cir.1975); Associated Students, Inc., etc. v. NCAA, 493 F.2d 1251 (9th Cir.1974); Mitchell v. Louisiana High School Athletic Ass’n, 430 F.2d 1155 (5th Cir.1970); Oklahoma High School Athletic Ass’n v. Bray, 321 F.2d 269 (10th Cir.1963); Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970); Sult v. Gilbert [148 Fla. 31], 3 So.2d 729 (Fla.1941); Sanders v. Louisiana High School Athletic Ass’n, 242 So.2d 19 (La.1970); State, ex rel. Missouri, State High School Activities Ass’n v. Schoenlaub, 507 S.W.2d 354 (Mo.1974); Tennessee Secondary School Athletic Ass’n v. Cox, 221 Tenn. 164, 425 S.W.2d 597 (1968).”

Gillard, supra, 352 So.2d 1072, 1081.

      . Appellate review by way of an appeal from an interlocutory order granting, or refusing to grant, an injunction is statutorily authorized by Code 1975, § 12-22-6.