author: PRATHER, Justice,

text:
    Jimmy HICKS, Sr. v. STATE of Mississippi.
    No. 54585.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    James P. Streetman, III, Barnett & Streetman, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The defendant, Jimmy Hicks, Sr., was convicted in the Circuit Court, First Judicial District of Hinds County, of the crime of sexual battery (MCA § 97-3-95 (1972) (Supp.1983)), with his twelve year old natural daughter, Remona Hicks, and sentenced to twenty years in the Mississippi Department of Corrections. Hicks appeals and assigns:

(1) That the trial court erred by allowing prosecutrix, Remona Hicks, to testify about incidences of sexual battery between her and her father which occurred prior to the act alleged in the indictment; and

(2) That Mississippi Code Annotated section 97-3-95 (1972) (Supp.1983) is unconstitutional in that it is overreaching, over-broad, and places an unfair burden on the defendant, denying him due process of law.

I.

The defendant was charged in the indictment with unlawfully committing a sexual penetration of Remona Hicks on November 9, 1981, in violation of Mississippi Code Annotated section 97-3-95 (1972) (Supp.1983), which statute is as follows:

A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or' physically helpless person; or
(c) A child under the age of twelve (12) years.

Section 97-3-97 defines sexual penetration as:

(a) “Sexual penetration” includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.

Remona Hicks, a twelve year old female, was at home with her father, twelve year old sister, and six year old brother on the night of November 9,1981, while her mother was at work. On that night Jimmy Hicks had sexual intercourse with his daughter, but without her consent. The first time that he had intercourse with her was in September, 1981. Also, on three other occasions between that time and November 9, he had sexual intercourse with her. The only incident for which Hicks was indicted was the one that occurred on November 9. The prosecutrix was qualified as to her knowledge of what “sexual intercourse” meant and she testified as to all these incidents, over objection. Remona’s sister corroborated her testimony as to the father’s taking Remona alone into a bedroom on one occasion.

II.

The issue presented is whether or not in cases of sexual battery prosecuted under section 97-3-95, Mississippi Code Annotated (1972) (Supp.1982), prior sexual acts with the same person and of the same kind as that involved in the main transaction are logically relevant to the issue being tried and, thus, admissible at trial.

Appellant contends that the twelve year old victim’s testimony relative to four separate and prior instances of sexual penetration were inadmissible in his prosecution for sexual battery. The testimony developed (1) that each prior act of sexual penetration was performed with the same youthful victim; (2) that each incident occurred at the victim’s home during a time in the day or night when the complainant’s mother was at work; (3) that each one of the incidents occurred within a two and a half month timeframe; (4) that each involved actual penetration of the defendant’s penis into the vaginal orifice of his daughter; (5) that each act of sexual penetration occurred without the consent of the victim; and (6) the defendant, during three of the four prior acts of intercourse, achieved an orgasm.

The general rule in Mississippi is that in criminal prosecutions evidence which shows that the accused is guilty of the commission of other offenses at other times is not admissible. Brooks v. State, 242 So.2d 865 (Miss.1971). But, the rule has exceptions: “Evidence of other crimes is admissible to prove identity of the defendant, scienter or guilty or criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae.” Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); Whitlock v. State, 419 So.2d 200 (Miss.1982).

The Brooks case, also stated:
Accordingly, evidence is generally held to be admissible which shows or tends to show prior offenses of the same kind committed by defendant with the prosecuting witness. The courts assign various reasons for the admission of this evidence such as corroboration of the offense charged, to show the intimate relation between the parties, the lustful disposition of defendant toward the prosecuting witness, and the probability of his having committed the offense charged. An exhaustive annotation in 77 A.LR.2d 841,852 (1961), discusses many cases from other jurisdictions upholding this rule.

We hold that the cases of Speagle v. State, 390 So.2d 990 (Miss.1980); Davis v. State, 367 So.2d 445 (Miss.1979); and Brooks v. State, supra, controls the posture of the present assignment of error. The holdings in these three cases were highlighted in Otis v. State, 418 So.2d 65, 68 (Miss.1982), where we find the following:

The State argues that such evidence was admissible to show the lustful, lascivious disposition of the appellant to rape the prosecutrix. In Speagle v. State, 390 So.2d 990 (Miss.1980), the defendant was tried for incest, and the Court stated that other acts of sexual relations between the defendant and the victim were admissible for that purpose.
Davis v. State, 367 So.2d 445 (Miss.1979), a case involving the “crime against nature” with an eleven year old female child, held that it was not error for the victim to testify that the defendant had subjected her to the same acts on former occasions, in view of the nature of the offense and the circumstances.
In Brooks v. State, 242 So.2d 865 (Miss.1970), the defendant was convicted of statutory rape. The Court held that, in cases involving females under the age of consent, evidence of other sexual acts were admissible. English v. State, 206 Miss. 170, 39 So.2d 876 (1949), was partially overruled.... [418 So.2d at 68].

There is no practical distinction between the facts in Speagle, Davis and Brooks and those existing in the case sub judiee. The acts constituting the offenses charged are essentially the same because all involved a form of sexual penetration which today would be clearly proscribed by section 97-3-95.

III.

The second issue involves the constitutionality of Mississippi’s sexual battery statute as being overbroad, and over-reaching. Also, he alleges that this 1980 statute gives the State advantage as to proof and that the criminal acts that it is designed to cover are covered under other more extensive sections of the code.

We hold that the statute which expressly and clearly proscribes the sexual penetration of another person without his or her consent is unambiguous. We find no constitutional invalidity of this statute on the charge made here of Hicks.

On this record, we find no error.

AFFIRMED.

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


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    Velma M. SPARKMAN v. John Robert SPARKMAN.
    No. 54520.
    Supreme Court of Mississippi.
    Dec. 14, 1983.

      Charles H. Ramberg, Samuel L. Walters, Jackson, for appellant.
    No brief for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

Valma M. Sparkman appeals from a decree of the Chancery Court of the First Judicial District of Hinds County awarding custody of her son to the father, John Robert Sparkman. Finding the Chancellor erred, we reverse and render.

Valma M. Sparkman and John Robert Sparkman, Blacks, married May 19, 1974. Meakil Sparkman, a boy, and Rujuhnda, a girl, ages six and three respectively at the time of trial in June, 1982, were born to the marital union. Valma and John Robert separated in October, 1981, and her complaint for divorce was filed in April, 1982, charging habitual, cruel and inhuman treatment.

John Robert cross-complained charging adultery. At a temporary hearing prior to trial, the Chancellor permitted the boy to remain with the father and the girl to remain with the mother.

At the divorce hearing, John Robert testified he had moved to Indianapolis, IN, where he was employed. Meakil stayed with John’s sister, who had an apartment and a 12-year-old son, during the day.

Valma was also employed at a local day care center and their daughter was kept at another day care center while she worked.

Following trial, the Chancellor awarded custody of the little girl to Valma and the boy to John Robert, with each parent, upon paying the traveling expense, having the right to one month’s visitation during the summer of the child in the other’s custody.

Valma challenges the decree insofar as it awarded custody of the boy to John Robert.

John Robert has filed no brief and made no appearance.

In an ordinary case, such failure would be tantamount to a confession of error by the appellee, and in and of itself it would justify our reversing and rendering judgment for the appellant. See Burt v. Duckworth, 206 So.2d 850 (Miss.1968), and Lawler v. Moran, 245 Miss. 301, 148 So.2d 198 (1963). This is a child custody case, however, and we examine further.

This Court has never adopted any per se rule to the effect that children should not be separated, in the absence of a showing of absolute necessity for the child’s welfare. See the following cases for the rule in Florida: Collier v. Collier, 384 So.2d 697 (Fla.App.1980) and Doane v. Doane, 330 So.2d 753 (Fla.1976). The above rule comes from Arons v. Arons, 94 So.2d 849 (Fla.1957).

We did state, however, in Mixon v. Bullard, 217 So.2d 28 (Miss.1968) albeit by dicta:

The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests. 218 So.2d at 30-31.

This expresses a common sense recognition of the ordinary facts of life, that in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children to be separated.

If there were any special circumstance in this case, we believe the Chancellor would have set it out in his opinion. There is nothing in this record to indicate any compelling reason to depart from this salutary practice of our courts.

REVERSED AND RENDERED FOR APPELLANT.

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


author: BROOM, Presiding Justice,

text:
    Terry Lynn WITHERSPOON v. STATE of Mississippi.
    No. 54620.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Rehearing Denied Jan. 11, 1984.
    Daniel P. Self, Jr., Franklin M. Coleman, Self & Jordan, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   BROOM, Presiding Justice,

for the Court:

Manslaughter is the offense for which the defendant, Terry Lynn Witherspoon, was convicted in the Circuit Court of Lauder-dale County, the Honorable Lester Williamson presiding. Trial was upon a murder indictment and after the lesser offense (manslaughter) conviction, the court sentenced the defendant to fourteen (14) years in the custody of the Mississippi Department of Corrections and suspended the last six (6) years, with the last five (5) of those years on supervised probation. On her appeal she assigned a number of errors, but we deem it appropriate to discuss only the matter of jury dispersal, and find no merit to other arguments. We affirm.

Facts of the homicide are largely without dispute but show that on Thanksgiving day, 1981, the defendant shot and killed her husband, McKinley Witherspoon. She testified that he was drunk and that she shot him four times after he pulled her out of her daughter’s bed.

Chief issue is whether the trial judge abused his discretion in refusing to sequester the jury, and in his refusal to order a new trial on account of a communication coming to a juror during a recess of the trial. Less than 48 hours in advance of trial, the defense moved the court to prohibit jury dispersal, although Rule 5.07 of the Uniform Circuit Court Rules provides that such motions should be filed 48 hours in advance of the trial. Barnes v. State, 374 So.2d 1308 (Miss.1979).

The issue under consideration here relates to an occurrence involving a communication to a juror outside the court’s presence. During a recess, juror Edna Grant was walking between the bank' where she was employed and the courthouse at about 9:15 A.M., when a black man approached her. What then occurred is set forth in the following excerpt of testimony given by her on motion for new trial:

“You’re one of those jurors, aint you?” And I didn’t say anything. I just kept walking, and then he said, “Ya’ll are going to find her guilty, ain’t you?” I told him I didn’t know, we hadn’t heard all the evidence to say whether she was innocent or guilty, and I kept walking and he went on around me and the only thing he said was, “She’s guilty. She shot him in cold blood,” or something like that. And then I came on over here to the Court House.

When Mrs. Grant went to the jury room, she told the jurors what had happened as indicated above. There was some discussion as to whether or not she should report the matter to the judge, but she thought that it was a negligible remark not serious enough to require telling the judge. Another member of the jury asked her if the incident would affect her decision on the case, and she answered that it would not. Next morning, a juror asked her again whether or not the incident would affect her verdict, and she answered in the negative.

Mrs. Grant did say that the incident worried her because she lived alone with two children and did not know whether to expect anything further from the black man. However, she positively testified that she did not consider the incident as being serious or warranted bringing it to the court’s attention.

Upon the posture presented and the facts before us, we are unwilling to hold that the jury process was in any sense so contaminated or tainted as requiring reversal. The trial judge considered the matter and refused to order a mistrial and we cannot say that his ruling warrants reversal. To hold that reversal upon these facts is required would be tantamount to saying that almost any trial could be aborted by having someone suddenly appear wherever a juror might be and blurt out that the defendant was guilty and ought to be convicted.

Trial judges are vested with much discretion in the conduct of judicial proceedings. Turner v. State, 220 So.2d 295, 297 (Miss.1969), cert. den. 396 U.S. 834, 90 S.Ct. 92, 24 L.Ed.2d 85. We will look with favor upon the action of a trial judge in deciding whether a mistrial or new trial should be ordered on account of an unauthorized communication to a juror. His rulings on such matters will generally not be ground for reversal except in cases where there is an abuse of such discretion below. Pepper v. State, 200 Miss. 891, 898, 27 So.2d 842, 845 (1946). No such abuse occurred in this trial. Accordingly, affirmance is required.

AFFIRMED.

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

DAN M. LEE, J., dissenting.

      . The sentence is somewhat novel in stating “with the last six (6) years suspended and the last five (5) years suspended on supervised probation”. It is in apparent accord with Mississippi Code Annotated § 47-7-37 which limits probation to five (5) years.

      . We point out the rule in this state that jurors will not be allowed to impeach the verdict rendered by them. Ratliff v. Nail, 231 So.2d 798 (Miss.1970).


author: WALKER, Presiding Justice, ROBERTSON, Justice,

text:
    Mack Arthur KING v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, et al.
    No. 53027.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Wilbur 0. Colom, Colom, Mitchell & Co-lom, Columbus, James E. Rocap, III, Washington, D.C., for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellees.
   ON APPLICATION FOR LEAVE TO FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS

EN BANC.

WALKER, Presiding Justice,

for the Court:

On December 4-5, 1980, Mack Arthur King was tried, convicted and sentenced to suffer death in the manner provided by law in the Circuit Court of Lowndes County, Mississippi. On October 27, 1982, the Supreme Court of Mississippi affirmed the conviction and sentence. King v. State, 421 So.2d 1009 (Miss.1982). On December 1, 1982, the Supreme Court of Mississippi denied petitioner’s petition for rehearing. On January 81,1988, petitioner’s family filed in the United States Supreme Court a petition for a writ of certiorari to the Supreme Court of Mississippi. On May 2, 1983, that petition was denied. Petitioner’s execution date was scheduled for July 13, 1983, but was stayed pending disposition of this application for leave to file a petition for writ of error coram nobis in the Circuit Court of Lowndes County, Mississippi.

King’s application for leave to file a petition for writ of error coram nobis asserts that it should be granted for the following reasons:

A.

THE FAILURE TO INSTRUCT THE JURY THAT IT COULD IMPOSE A LIFE SENTENCE EVEN IF THE AGGRAVATING CIRCUMSTANCES OUTWEIGHED THE MITIGATING CIRCUMSTANCES VIOLATED PETITIONER’S CONSTITUTIONAL RIGHTS.

This proposition was presented in part by appellant’s proposition three of appellant’s brief on direct appeal to this Court from his conviction and sentence and the Court found no merit to the contention as presented. Thereafter, his petition for rehearing was denied.

To the extent that said issue was presented on direct appeal and ruled on by this Court after consideration on the merits, it may not be relitigated again on this petition for writ of error coram nobis. Wheat v. Thigpen, 431 So.2d 486 (Miss.1983).

Further, to the extent that his present contention was not alleged as error and briefed on direct appeal, the issue may not now be raised for the first time on this petition for writ of error coram nobis as it is procedurally barred. Wheat, supra.

B.

THE SENTENCING INSTRUCTION IM-PERMISSIBLY SUBJECTED PETITIONER TO A MANDATORY IMPOSITION OF THE DEATH PENALTY.

This proposition may not now be raised on petition for error coram nobis for the same reasons stated in Section A above.

C.

THE SENTENCING INSTRUCTION IM-PERMISSIBLY FAILED TO INSURE THAT, IF THE DEATH SENTENCE WERE IMPOSED, IT WOULD BE IMPOSED BY A JURY THAT HAD DECIDED THAT THE AGGRAVATING CIRCUMSTANCES — WHEN DISCOUNTED BY THE MITIGATING CIRCUMSTANCES — WERE STILL SUFFICIENT TO IMPOSE THE DEATH PENALTY.

This proposition may not now be raised on petition for writ of error coram nobis for the same reasons stated in Section A above.

D.

THE SENTENCING INSTRUCTION IM-PERMISSIBLY SHIFTED THE BURDEN TO THE PETITIONER TO PROVE THAT THE DEATH PENALTY SHOULD NOT BE IMPOSED.

This proposition may not now be raised on petition for writ of error coram nobis for the same reasons stated in Section A above.

E.

THE FINDING BY THE JURY OF THE “ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL” AGGRAVATING CIRCUMSTANCE VIOLATED PETITIONER’S CONSTITUTIONAL RIGHTS.

This proposition was not presented on direct appeal. Therefore, it is now procedurally barred and may not be raised for the first time on this petition for writ of error coram nobis. Wheat, supra.

F.

THE MISSISSIPPI SUPREME COURT’S REVIEW OF THE SENTENCE IN THIS CASE VIOLATED STATUTORY AND CONSTITUTIONAL REQUIREMENTS.

The petitioner did not raise this proposition on his direct appeal. Therefore, it is now procedurally barred from being raised for the first time on this petition for writ of error coram nobis.

G.

THE FAILURE TO TRANSCRIBE CLOSING ARGUMENTS OF COUNSEL AT THE SENTENCING PHASE VIOLATED PETITIONER’S CONSTITUTIONAL AND STATUTORY RIGHTS.

The petitioner did not raise this proposition on his direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.

H.

THE PROSECUTOR’S INFLAMMATORY EXHORTATIONS AT SENTENCING WERE CONSTITUTIONALLY IMPERMISSIBLE.

The petitioner did not raise this proposition on direct appeal. He is procedurally barred from raising it now for the first time on this petition for writ of error coram nobis. Wheat, supra.

I.

THE FAILURE TO REQUIRE THE JURY TO FIND THAT PETITIONER POSSESSED THE REQUISITE INTENT TO KILL THE VICTIM VIOLATES PETITIONER’S CONSTITUTIONAL RIGHTS.

This proposition was not raised on direct appeal. It is therefore procedurally barred from being raised for the first time on this petition for writ of error coram nobis. Wheat, supra.

J.

USE OF THE “COURSE OF A FELONY” AGGRAVATING CIRCUMSTANCE VIOLATED PETITIONER’S CONSTITUTIONAL RIGHTS.

This proposition was not raised on direct appeal. Petitioner is now barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.

K.

THE MISSISSIPPI SUPREME COURT’S REVIEW WAS UNCONSTITUTIONALLY DEFICIENT BECAUSE THE COURT COMPARED PETITIONER’S CASE ONLY TO OTHER CASES WHERE THE DEATH PENALTY HAD BEEN IMPOSED.

The petitioner failed to raise this proposition on direct appeal. He is now proeedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.

L.

THE PROSECUTOR’S USE OF HIS PRE-EMPTORY CHALLENGES TO STRIKE ALL POTENTIAL BLACK JURORS WAS PART OF A SYSTEMATIC, REGULAR PRACTICE RESULTING IN EFFECTIVE EXCLUSION OF BLACKS FROM PETIT JURIES.

The petitioner failed to raise this proposition on direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.

M.

THE RACIALLY DISCRIMINATORY ADMINISTRATION OF THE DEATH PENALTY IN MISSISSIPPI VIOLATES PETITIONER’S RIGHTS ON THE EIGHTH AND FOURTEENTH AMENDMENTS.

The petitioner failed to raise this proposition on direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.

N.

PETITIONER WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

The petitioner has asserted fourteen points (A through N) on which he relies in support of his claim of ineffective assistance of counsel at trial. Collectively, the allegations contained assertions of facts and factual conclusions which are unsupported by affidavits except the affidavits of Mack Arthur King and counsel which were made on information and belief except as to those things shown by the record. This does not comply with Rule 38 of the Supreme Court Rules of Mississippi. Riley v. State, 254 Miss. 487, 182 So.2d 397 (1966).

In the case of Willie Albert Smith v. State of Mississippi (Petition for writ of error coram nobis), 434 So.2d 212 (Miss.1983), after restating the substantive test to be employed in analyzing an ineffective assistance counsel claim, to-wit: (A) Whether counsel was reasonably likely to render effective assistance; and (B) Whether counsel in fact rendered effective assistance, we reiterated that a petitioner shoulders the burden of showing that in fact such assistance was not rendered and that a defendant was actually prejudiced by such failure. See Callahan v. State, 426 So.2d 801 (Miss.1983). We also recognized that the failure to assign the lack of effective assistance of counsel at trial would not constitute a procedural bar to subsequently raising the question either on appeal or in post-conviction relief proceedings such as this.

In Smith, supra, it was stated:
If, after affirmance on direct appeal, a defendant wishes to pursue a claim of ineffective assistance of counsel, he may file an appropriate post-conviction proceeding raising this question. See Read, slip opinion at 19. We held that, assuming that the petitioner’s claim stated a prima facie case, he would then be entitled to an evidentiary hearing at the trial court on this question. We also specifically held that “a petitioner desiring such a hearing must tender two tickets at the door: (a) a pleading complying with Rule 38, Mississippi Supreme Court Rules, and (b) a pleading stating facts which, if proved, would entitle petitioner to relief.”
In other words, one seeking to maintain the claim of ineffective assistance of counsel must comply with procedures set forth in Rule 38 of the Mississippi Supreme Court Rules and must state with specificity facts which, if proved at a hearing by clear and convincing evidence, would satisfy the substantive requirements which we set forth in Callahan. Stated differently, he must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different. Petitioner Smith has failed to comply with these requirements. He has pointed to several instances of alleged examples of ineffective counsel, but he has failed to allege with specificity that such “shortcomings were not the result of trial tactics or strategy but were indeed indicia of the fact that petitioner Smith was denied effective assistance of counsel. Likewise, he has not specifically alleged that he was actually prejudiced by such purported ineffectiveness. Under our rule set out in the Callahan case, a petitioner must allege and prove that but for the specific alleged facts set out in his petition, the result of the trial would have been different.
These requirements, although somewhat technical, are matters of substance and are vitally important both for this Court and for a lower court to be adequately apprised of the specific nature of a petitioner’s claim of ineffective assistance of counsel.... In pointing to specific alleged examples of ineffective counsel, petitioner Smith goes no farther than the record. He makes no allegations of facts outside the record which he intends to use in support of his ineffective assistance of counsel claim.... Likewise, no affidavits (except Smith’s) are attached as to his charge that trial counsel failed to make proper objections, failed to call proper rebuttal witnesses, failed to make “necessary investigations” and prepare for trial....
We are compelled to note that in the instant case, as is all too often the case in similar post-conviction relief efforts which come before this Court, the petitioner is in actuality merely seeking to relitigate his case. Such is not the proper function of post-conviction relief proceedings in Mississippi. The fair and orderly administration of justice dictates that a person accused of a crime be afforded the opportunity to present his claims before a fair and impartial tribunal. It does not require that he be given multiple opportunities to “take a bite at the apple.” Likewise, the orderly administration of justice does not require this Court to “lead a defendant by the hand” through the criminal justice system. It is this Court’s responsibility to provide a meaningful opportunity for defendant to raise his claims and have them adjudicated.
Smith neither subscribed nor swore to this petition as it was originally filed, as is required by Mississippi Supreme Court Rule 38. The only affidavit attached to the petition and brief in support thereof was made by Smith’s present attorney, who made his affidavit upon “information and belief,” not upon facts within his personal knowledge as required by Rule 38. (Emphasis theirs).

434 So.2d at 218-220.

Rule 38 of the Rules of the Supreme Court of Mississippi adopted through January 1983 and not otherwise amended, prescribes the procedure to be followed in applications for leave to file petitions for writ of error coram nobis under Mississippi Code Annotated section 99-35-145 (1972). That rule is as follows:

Every application for leave to file a petition for writ of error coram nobis in the lower court shall have attached thereto the original and two executed counter parts of the petition proposed to be filed in the lower court, which shall be sworn to by petitioner. Petitioner's affidavit shall designate specifically what facts, if any, 'alleged in the petition are within the personal knowledge of petitioner. When the petition contains allegations of fact not within the personal knowledge of petitioner, it shall have attached affidavit or affidavits of some other person or persons having knowledge of the facts which are not within the personal knowledge of petitioner. The failure to attach such affidavits of persons other than petitioner may be excused upon good cause shown. The petition shall state when the facts relied upon for issuance of the writ came to petitioner’s knowledge, and shall state sufficient facts to show that there was no want of reasonable diligence on the part of petitioner or his counsel. The petition shall be endorsed by a statement by petitioner’s counsel, if any, that he believes the petition for writ of error coram nobis is well taken, and should be issued. The application shall be supported by brief, and failure to file a supporting brief may be ground for dismissal. In the event leave is granted to file the petition, the original and one executed counterpart of the petition shall be withdrawn and filed in- the lower court. (July 28, 1975). (Emphasis added).

As in Smith, supra, we are unable to say from a reading of this record that trial counsel did not render effective assistance to King at the trial of this cause. Also as in Smith, counsel on appeal has made numerous allegations with reference to the availability of proof to support his fourteen (A-N) charges that trial counsel was ineffective. However, other than the affidavits of appellate counsel and the appellant himself, which were made on information and belief, except as to matters that appear in the record, there are no affidavits as required under Supreme Court Rule 38 of persons having knowledge of the facts and the details thereof upon which the appellant predicates his challenge to the effectiveness of trial counsel.

We are therefore of the opinion that the petition for leave to file a petition for writ of error coram nobis should be denied.

PETITION FOR LEAVE TO FILE A PETITION FOR WRIT OF ERROR COR-AM NOBIS IN THE CIRCUIT COURT OF LOWNDES COUNTY IS DENIED WITHOUT PREJUDICE.

BROOM, P.J., and ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.

ROBERTSON, J., PATTERSON, C.J., and HAWKINS and PRATHER, JJ., dissent.

ROBERTSON, Justice,

dissenting:

I.

I respectfully dissent from the manner of disposition of those points itemized in paragraphs A through M of the majority opinion.

Let me make clear my position. I would not at this stage hold that Mack Arthur King’s death sentence should be vacated or that he is entitled to any other substantive relief. The majority’s approach precludes our reaching the merits. Hence, I express no opinion on the merits except to say that King’s points are certainly not on their face so frivolous that they ought be dismissed summarily.

Because this is a case in which the penalty of death has been imposed, I would address King’s post-conviction, post-affirmance petition for writ of error coram nobis under the format I describe below.

II.

A.

Mack Arthur King’s conviction and sentence have been affirmed on direct appeal. King v. State, 421 So.2d 1009 (Miss.1982). Once any criminal conviction has been finally affirmed in this Court and the time for further direct review has expired, the state’s finality interest vests. It is by no means unreasonable or unfair that at this point an additional burden be placed upon the prisoner. He is not automatically entitled to yet another appeal.

Still I perceive no course of logic which would yield the conclusion that finality is the only interest then at stake. If it be shown that the prisoner’s conviction or sentence be infected by substantial violations of rights secured by the Constitution or laws of the United States or of this state; and if it further be shown either that had these violations not occurred, the proceedings at trial would have been substantially more favorable to the prisoner or, that there exists good cause why the points were not raised on appeal; then the force of the state’s finality interest is overcome. This is particularly so in a death penalty case.

Whenever a prisoner, who has been finally convicted in the courts of the State of Mississippi and whose conviction has been finally affirmed by this Court, seeks post-conviction relief in this Court, and where such prisoner claims that his conviction and sentence have been infected by violations of rights secured to him by the Constitution of the United States or by the Constitution and laws of the State of Mississippi, and where the issues presented were not procedurally preserved at trial or have not previously been tendered on direct appeal, the prisoner should be required to show either

(a) that there exists good cause why the point was not proeedurally preserved at trial, or raised on direct appeal, or both, as the case may be,

or

(b) that the rights violations asserted did in fact subject him to a substantial detriment at trial; that is, had the rights violations not occurred, the trial process — as distinguished from its outcome — would likely have been more favorable to him than it was.

Beyond that, there is no sound reason why this Court should erect a procedural rule which would bar it from noticing, on direct appeal or on post-conviction proceedings, plain error. This Court’s first duty is to administer justice. Particularly is this so in death penalty cases.

B.

In my view, our decision on King’s petition should be as follows:

First, with respect to all claims asserted which were adjudicated on their merits on direct appeal, the petition should be dismissed. The previous adjudication is final. Res judicata precludes relitigation in the courts of this state.

Second, with respect to non-constitutional claims which either (a) were not properly preserved at trial or (b) were not presented on direct appeal, those claims have been effectively waived. In its supervisory capacity over its own judgments, this Court has the capacity to notice errors of this sort. Our plain error rule applies here equally as it does on direct appeal. Suffice it to say that in the case at bar I detect no alleged non-constitutional errors sufficiently plain to be noticed here.

Third, with respect to those claims asserted by King which are of constitutional dimensions, federal or state, and with respect to which the claim either was not timely preserved at trial and/or presented on direct appeal, we should hear King’s claims, provided he can demonstrate either cause or prejudice. Again, the Court retains plain error powers even though neither cause nor prejudice be shown.

C.

Once we reach the merits of King’s constitutional claims, I would hold he must still hurdle the constitutional harmless error rule. Not all errors of unconstitutional proportions will require that the death sentence be vacated. Where we can say with confidence that constitutional errors were harmless beyond a reasonable doubt, it becomes our duty to leave the death sentence undisturbed.

In cases such as this, state harmless error rules have no force or effect. Federal constitutional law applies. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967). Chapman holds that:

“before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”. 386 U.S. at 24, 87 S.Ct. at 828.

Chapman was reaffirmed in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

“We do not depart from Chapman; nor do we dilute it be inference. We reaffirm it.” 395 U.S. at 254, 89 S.Ct. at 1728.

Only if there is a reasonable possibility that the constitutional error contributed to the conviction must it be set aside. Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). If all of this is true in a non-capital context, surely it is even more so where the defendant has been sentenced to die.

IV.

Because in Sections A through M the majority fail to employ this process or methodology in the adjudication of Mack Arthur King’s post-conviction, post-affirmance error coram nobis application — and not because the majority denies to King any relief, I dissent.

V.

There is a final point that needs to be mentioned. I object strenuously to footnote one on page one in the majority opinion. That footnote in effect amends and modifies nunc pro tunc a series of orders previously entered by the Court denying other condemned prisoners’ post-conviction applications for writ of error coram nobis. Those orders were entered at varying times over the past four years — at times when a part of the Court’s personnel was different.

If the Court wishes to alter the form or manner of disposing of such cases in the future, it may do so. To attempt to go back to different cases decided on different occasions in years past and say what was meant by the orders entered then is, in my view, wholly inappropriate.

I respectfully dissent.

PATTERSON, C.J., and HAWKINS and PRATHER, JJ., join in this dissent.

      . We address each issue raised on this petition because several of our orders disposing of post-conviction relief petitions which were denied without opinions have been erroneously interpreted to be decisions on the merits. Gray v. Lucas, 710 F.2d 1048 (5th Cir.1983); Jones v. Thigpen, 555 F.Supp. 870 (S.D.Miss.1983). In those cases, more or less routine orders were entered on the minutes by the Clerk of this Court. We do not consider those orders to be opinions of this Court and they do not mean that each issue raised was considered on the merits. In fact, the issues raised were, for the most part, procedurally barred. Such routine orders heretofore or hereafter entered by the Clerk of this Court would more appropriately be reviewed under the guidelines of Preston v. Maggio, 705 F.2d 113 (5th Cir.1983), and not under Miller v. Estelle, 677 F.2d 1080 (5th Cir.1982).

        Read v. State, 430 So.2d 832 (Miss.1983).

      . I have set forth the rationale supporting the cause or prejudice test articulated above in my dissenting opinion in Evans v. State, 441 So.2d 520, 524 (Miss.1983). There is no reason to repeat that discussion here. I emphasize that this hurdle ought be placed in the path of the condemned prisoner petitioner only on post-conviction proceedings. Where errors have gone unpreserved in connection with proceedings on direct appeal, a more liberal “deliberate by-pass” standard ought be applied. Hill v. State, 432 So.2d 427, 450-451 (Miss.1983) (Robertson, J., dissenting).

      . This “hurdle” will have more meaning in “cause” cases than in “prejudice” ones. Compare the “cause or prejudice” test described in Section 11(A) above. Suffice it to say that, where a prisoner has been “prejudiced” by a constitutional error in the sense described above, it is difficult to conceive how that error might be said to have been harmless.

      .The “reasonable doubt” concept has long been fundamental in the criminal law processes in this country. It is nowhere expressly stated in the Constitution. Still, there is no doubt that the entitlement of an accused, before he can be convicted and punished, to be found guilty beyond a reasonable doubt is a requirement of due process. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). By the same token, no conviction can stand in the face of substantial errors committed by the trial court, unless it can be said beyond a reasonable doubt that the error(s) did not contribute to the defendant’s conviction.


author: WALKER, Presiding Justice,

text:
    Karen Annette Jones McCUSKEY v. Hershel Franklin JONES, Jr.
    No. 54586.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Robert S. Reeves, Reeves, Smith, Jones & Price, McComb, for appellant.
    T. Patrick Welch, Roach, McMillan, Welch & Ott, McComb, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

The appellant brought this action in the Chancery Court of Pike County seeking modification of a divorce decree. She petitioned for custody of the parties’ minor child, Benjamin Dewain Jones, and an award of child support payments.

The record discloses that the parties were divorced on August 23, 1979. Mr. Jones was given custody of the minor child while Mrs. Jones was given reasonable visitation rights. Since the divorce, both parties have remarried. The appellant has joined the Air Force and now resides in New Mexico with her current husband. The appellee still lives in Pike County.

The appellee filed a motion to dismiss, alleging that the entire complaint was based upon privileged communications between the appellee and his present wife, Diamond Jones. The chancellor overruled the motion to dismiss but entered an order that Diamond Jones would not be compelled to testify. Thereafter, the appellant’s attorney refused to proceed with the trial and the case was dismissed with prejudice.

The appellant perfected an appeal to this Court and assigns as her only error that the chancery court erred in refusing to allow Diamond Jones, wife of the appellee, as a witness on the grounds of marital privilege.

The only evidence in the record that discloses the nature of Diamond Jones’ proposed testimony is an affidavit signed by her, which states in pertinent part:

That she is the wife of Herschel Jones and that on at least three separate occasions during their two year marriage, her husband has blackened her eyes. He has grabbed, jerked, pushed, shoved, and knocked her down. He does this when he is in a rage. Also, he has punched holes in the plasterboard walls, has kicked cabinet doors, overturned kitchen table and thrown applicances (sic). He claims this is his alternative to venting his anger on affiant. All of this violent behavior has taken place in the presence of his son Benji.

At common law neither spouse could testify against the other, except in a prosecution for personal violence. State v. McMullins, 156 Miss. 663, 126 So. 662, 663 (1930). This rule has been altered by statute and the competency of a spouse to testify is today governed by Mississippi Code Annot-ed section 13-1-5 (Supp.1983), which provides that:

Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.

Clearly, this case does not involve a criminal prosecution of either spouse. Accordingly, Mrs. Jones’ testimony would fall within the statutory exceptions only if this action involves a controversy between her and her husband.

In Maiben v. State, 405 So.2d 87 (Miss.1981), the defendant was accused of murdering his father-in-law. At trial, his wife testified that he shot her father and then assaulted and threatened to kill her. Upon conviction, the defendant appealed and assigned as error the fact that his wife was allowed to testify against him. This Court held that the husband’s simultaneous assault on his wife at the time of the murder constituted a “controversy” under the statute and rendered the wife competent to testify, provided she was willing.

The appellee in the instant case is accused of assaulting his wife in the presence of his minor child on the occasions in question. While the assaults in Maiben were closely related to the crime, the assaults in this case actually form the basis of the lawsuit. These actions therefore constitute a “controversy” between Mr. Jones and his current wife under section 13-1-5. Although Mrs. Jones could not be compelled to testify in the present action against her husband, she would, if willing, be competent to testify as to his acts of violence on the occasions in question.

Therefore, the case must be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Isaac JENKINS v. STATE of Mississippi.
    No. 54612.
    Supreme Court of Mississippi.
    Dec. 21, 1983.
    Robert W. Sneed, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Judge.

Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

WALKER, P.J., BROOM, P.J., and ROY NOBLE LEE, DAN M. LEE and PRATHER, JJ., concur.

BOWLING, J., not participating.


text:
    James Lee TOLBERT v. STATE of Mississippi.
    No. 54036.
    Supreme Court of Mississippi.
    Dec. 21, 1983.
    J.B. Garretty, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

James Lee Tolbert was convicted of the crime of murder in the Circuit Court of Alcorn County and sentenced to a term of life in the Mississippi Department of Corrections.

It is only necessary for us to address one assigned error on this appeal, the failure of the state to furnish the defendant copies of statements made by the defendant after a court order to do so, but instead reserving these statements for impeachment purposes. Finding this to be reversible error. We reverse and remand.

On March 23,1981, Tolbert shot and killed Annie Katherine Boyd Cox with a pistol. Contrary to his contention on appeal, the evidence supports his conviction of murder.

On May 19,1981, Tolbert’s counsel filed a motion for production of documents. The motion was sustained by order of the Court dated May 22, 1981, which directed the state, among other things, to produce for inspection “any and all written documents or statements which the Defendant is alleged to have made in this cause which might be construed as a confession or admission of the crime charged ...”

One of the eyewitnesses to the slaying was Carolyn Brand. In cooperation with law enforcement officers, but unknown to Tolbert, she tape recorded three conversations with him, one in July, another in August, and the final on the eve of the trial in October, 1981. These recordings contained incriminating statements by Tolbert, encouraging her to testify in his favor.

At the trial, when Tolbert took the stand in his own defense, the state laid a predicate for the admission of the tapes by asking him if he had made certain statements to Brand, which he strongly denied.

In rebuttal, the state offered transcriptions of the tape into evidence.

Before the statements were offered to the jury, Brand testified in rebuttal that Tolbert contacted her in July, 1981, and when she went to see him he wanted her to change her testimony. According to her she was scared of him and promised to do so. When she left, however, she quite properly reported the matter to the law enforcement officers who arranged to make tape recordings of subsequent conversations she would have with Tolbert.

Two of the recorded conversations were over the telephone, another when they met person-to-person.

Counsel objected to the introduction of transcriptions of the tapes as being viola-tive of federal law, entrapment, but strangely did not list as a reason for his objection that to do so violated the order of the Court.

The circuit judge, however, did consider this point in his ruling, and held the state was not required to produce a “transcribed rendition of the taped conversations since they were to be used in rebuttal.”

The Court did exclude one of the transcriptions, but for another reason.- Relevant portions of the transcriptions of the remaining recorded conversations were admitted into evidence over the objection of defense counsel.

LAW

Most statements made by a defendant for which discovery is sought involve statements given to law enforcement officers. We are not required to address the question in this case of whether Tolbert’s conversations with Brand were to a law enforcement officer because the court order, as the circuit court recognized, covered all statements made by Tolbert.

We are faced with the narrow question of whether the fact that the statements were reserved for rebuttal removed them from the scope of the order.

Under our holding in Jackson v. State, 426 So.2d 405 (Miss.1983); and Morris v. State, 436 So.2d 1381 (Miss.1983), there is no distinction in an incriminating statement being offered by the state’s case in chief, or reserving it for rebuttal, the accused is nevertheless entitled to discovery so as not to be caught by surprise at trial. We recognize the unusual aspects of this kind of statement. The law enforcement officers are to be commended for their diligence, and we do not by this decision hinder any such investigation. The state was justified in refraining from informing the defendant of its recordings while the investigation and criminal activities of Tolbert were in progress. We must hold, however, that after a court has entered a discovery order, it must be complied with in some meaningful way. In this case, this would mean that at some point before trial began, Tolbert and his counsel should have been given an opportunity to listen to his recorded conversations, and make a transcription.

While we can easily see the way in which the state used the transcriptions was devastating to the defendant, a disclosure before actual trial began would not have hampered the state.

Following his conviction, Tolbert employed another counsel, who has assigned as error the failure of the state to furnish him with the statements violated the Court’s order. Among errors, he also assigns ineffective assistance of trial counsel. We are relieved not to be required to address this particular assignment.

We must hold the able and patient trial judge who heard this case did err in permitting the state to place in evidence before the jury the relevant portions of these incriminating statements in the absence of some meaningful discovery beforehand.

REVERSED AND REMANDED.

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


author: BOWLING, Justice,

text:
    FRANKLIN COUNTY COOPERATIVE v. MFC SERVICES (A.A.L.).
    No. 54026.
    Supreme Court of Mississippi.
    Dec. 21, 1983.
    John L. Maxey, II, Glenda W. Tomlinson, Cupit & Maxey, Jackson, for appellant.
    James H. Herring, Herring & Self, Canton, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   BOWLING, Justice,

for the Court:

Appellant Franklin County Cooperative filed a complaint against appellee, MFC Services (MFC) alleging a breach by appel-lee of an oral contract for the sale of a specified quantity of soybean seed. The lower court sustained appellee’s motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure (MRCP) and it is this action which is assigned as appellant’s sole assignment of error.

On January 7, 1982, the manager of appellant telephoned appellee, talked with one Henderson, the employee of appellee who answered the phone, and received quotations on the prices of various kinds of soybean seed. Appellant thereupon placed an order for the purchase of 15,000 bushels of a designated variety of soybean seed at an agreed upon price (over $500) and delivery date. In concluding the conversation appel-lee’s employee stated that “If there is any problem, we will get back to you.” Following that initial telephone conversation, Henderson examined the notes she had made during the call and discovered that she had written down 1,500 bushels rather than 15,-000 bushels. In order to confirm the fact that the order was for 15,000 bushels, Henderson telephoned the manager of appellant and received confirmation of the correct amount. Henderson closed this second telephone conversation with the statement, “O.K., we will take care of it.”

The following morning Henderson informed her superior at MFC, Elmo Collum, of the receipt of appellant’s oral order. Collum was unwilling to accept the offer because of its unusually large amount, and he telephoned appellant’s manager to advise him that appellee would not accept appellant’s offer to purchase the seed. Also on that day, appellee’s general counsel, Milton Mitchell, telephoned appellant to confirm appellee’s unwillingness to accept the offer.

By letter dated January 11,1982, Mitchell wrote appellant and recounted the above facts in detail. In this letter, appellee adopted the position that no contract of sale had been formed since Henderson had allegedly expressed a condition precedent to acceptance of the offer, namely procuring the approval of her superiors. In its complaint filed in the court below appellant attached this letter as an exhibit evidencing appellee’s intention not to perform under the terms of the alleged contract.

MRCP 12(b)(6), the successor to the common law demurrer, provides that the defense of failure to state a claim upon which relief can be granted may, as here, be asserted by motion. We note that the comment which follows this Rule provides in pertinent part that to grant this motion “there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.” We are mindful of the current judicial practice favoring disposition of cases on their merits. Accordingly, we are of the opinion that the above criteria express the proper principles to be employed in passing upon a motion to dismiss under MRCP 12(b)(6).

The trial judge sustained the appellee’s motion to dismiss on the basis that the alleged oral contract did not, as affirmatively pled by appellee, satisfy our statute of frauds. Mississippi Code Annotated, Section 75-2-201(1) (1972), provides that a contract for the sale of goods for the price of $500 or more is not enforceable unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought. In his order sustaining the motion the trial judge emphasized the fact that Mitchell’s letter not only denied there was a contract, but also referred to the telephone conversations appellee had with appellant denying the existence of a contract.

The official comment to UCC § 2-201(1) states that “all that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction.” In Derden v. Morris, 247 So.2d 838, 839 (Miss.1971), we held that a memorandum must satisfy three requirements to take a case outside the statute of frauds. The memorandum or writing must (a) evidence a contract for the sale of goods, (b) it must be signed by the party against whom enforcement is sought, and (c) it must specify a quantity. We observe that Mitchell’s letter contains the statement Henderson made in closing her second telephone conversation with appellant, “O.K., we will take care of it.” This language clearly signifies acceptance on the part of appellee notwithstanding any secret intentions Henderson failed to express to appellant. In so stating we do not adjudge Mitchell’s letter as constituting a writing sufficient to render the contract enforceable under MCA § 75-2-201(1). We merely rule that the trial judge erred in sustaining appellee’s motion to dismiss as it deprived appellant of the chance to develop his case in furtherance of his claim. This ruling is consistent with our holding in Crawler Parts, Inc. v. Hill, 441 So.2d 1357 (Miss.1983), where we held it was error for the trial court to sustain the executrix’s motion to strike the claim against Channel’s estate. In that case we were of the opinion that the claimant was entitled to an eviden-tiary hearing so that a determination of the merits of appellee’s statute of frauds defense could be made.

Hence, when the complaint and the letter attached as an exhibit are measured by the above-stated rules governing consideration of a 12(b)(6) motion, it is apparent that appellant stated a set of facts supporting a common law action for breach of contract which, if proved, entitled him to relief. Appellant alleged an oral contract, a reduction of the terms of the contract to writing, anticipatory breach and damage.

Furthermore, we observe that pursuant to MCA § 75-2-201(3)(b), appellant might be able to obtain an admission by appellee or one of its agents that a contract for sale was made. This particular subsection provides that the admission can be made by “pleading, testimony or otherwise in court ...” (Emphasis added). In this regard, it is conceivable that appellant could obtain testimony relating to the parties’ course of dealing, if any, or the usage of trade observed in the filling of such seed orders. This, then, is an alternative method which the appellant should be afforded the opportunity of utilizing to enforce the alleged contract and so constitutes an additional ground for ruling that the trial judge committed reversible error in sustaining ap-pellee’s motion to dismiss under 12(b)(6). Accordingly, we hold that the motion to dismiss should have been overruled.

REVERSED AND REMANDED.

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

APPENDIX A

January 11, 1982

Mr. Fairl Bowlin, Manager

Franklin County Cooperative

Post Office Box 156

Meadville, MS 39653

Dear Fairl:

This will confirm my telephone conversation with you on Friday afternoon, in which conversation I advised you that MFC Services (AAL) (“MFC”) takes the position that no contract of purchase and sale has been made for the sale by MFC and the purchase by Franklin County Cooperative of 15,000 bushels of certified Davis soybean seed for delivery in April and May of this year. Accordingly, you are hereby advised that MFC has no intention to perform and will not perform the contract which you claim to have been made between MFC and your cooperative.

My discussions with Janet Henderson and Elmo Collum reflect the facts to be as follows:

On Thursday, January 7, 1982, you called MFC and due to the fact that Elmo Collum was not then available you talked to Janet, receiving quotations on various varieties of soybean seed. During that conversation, there was admittedly discussed by you and Janet the purchase by your cooperative and the sale by MFC of 15,000 bushels of certified soybean seed of the Davis variety for delivery in April or May at a price of $8.64 per bushel, f.o.b. the shipping point or a price of $9.04 per bushel delivered to your place of business.

You made a firm proposal to Janet for the purchase of the said seed on the terms stated and Janet advised you that “if there is any problem we will get back to you.” While you may have not so understood the purpose of that statement by Janet, the statement was made by Janet with the intention of procuring the approval of her superiors (Elmo Collum or Rush Reed) before making a firm acceptance or rejection of your offer.

Following that initial telephone conversation, when Janet started to make a written memorandum of the terms of the proposed purchase and sale which she had discussed with you she saw that in the notes made by her during that telephone conversation she had written down 1,500 bushels rather than 15,000 bushels. While Janet was almost absolutely certain that 15,000 bushels was correct rather than 1,500 bushels as reflected by her notes, in order to avoid a possible mistake Janet called you to confirm the fact that you wanted 15,000 bushels rather than 1,500 bushels. You, of course, confirmed the fact that you wanted to purchase 15,000 bushels. According to Janet’s best recollection, the second telephone conversation ended with her statement “O.K., we will take care of it.”

While you may have construed that statement as an acceptance of your offer, it was not so intended by Janet, who, in the light of the prior telephone conversation, intended by the statement to convey to you the understanding that if she had no problem in procuring the approval of Elmo Collum or Rush Reed, MFC would accept the offer and if there was a problem she would get back in touch with you.

Janet did not discuss the matter with Elmo Collum until Friday morning and Elmo was not .willing for MFC to accept the offer made by you due to the fact that MFC’s total potential production of certified soybean seed of the Davis variety in MFC’s own program is 24,000 bushels. Of that amount, MFC has already made firm contracts for the sale and delivery of 7,300 bushels, leaving MFC with a total of 16,700 potential bushels of certified Davis soybean seed which have not yet been cleaned nor bagged and have not passed the final certification test. MFC was, accordingly, not willing to accept your offer for there was no assurance that MFC would have 15,000 bushels of certified Davis seed to fill your order and for the further reason that if MFC accepted your offer MFC would then have no certified Davis seed to offer to its other member cooperatives. Elmo Collum, accordingly, advised you in his telephone conversation with you on Friday morning that MFC would not accept your offer. That advice was further confirmed to you by me in our telephone conversation on Friday afternoon.

I regret that the misunderstanding arose but, as stated, MFC denies that a contract for the purchase and sale of the seed was mutually agreed on and MFC will not fill your order therefor.

Yours very truly, /s/ Milton H. Mitchell Milton H. Mitchell

MHM/ph

      . See text of letter, Appendix “A”

      . § 75-2-201. Formal requirements; statute of frauds.
      (1)Except as otherwise provided in this section, a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
      (2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten (10) days after it is received.
      (3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
      (a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
      (b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of good admitted; or
      (c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2-606) [§ 75-2-606],

      . See MCA § 75-1-205.


author: ROY NOBLE LEE, Justice,

text:
    Anderson WHITE v. STATE of Mississippi.
    No. 54032.
    Supreme Court of Mississippi.
    Dec. 21, 1983.
    Eugene A. Perrier, Travis T. Vance, Jr., Vance & Perrier, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Anderson White was indicted, tried and convicted in the Circuit Court of Warren County, Honorable John E. Ellis, presiding, on a charge of arson, viz, setting fire to, and burning, his automobile for the purpose of defrauding the insurer. White was sentenced to serve eighteen (18) months in custody of the Mississippi Department of Corrections, ■ and he has appealed to this Court.

Appellant testified that on Christmas Day, 1980, he was en route to the home of a young lady who lived in the vicinity of Vicksburg. He was driving his automobile and, when approximately one-half (⅛) mile from the young lady’s house, smoke erupted from under the hood. Appellant stopped to inspect the engine and saw a small flame near the carburetor, which became larger and began to spread. He ran to a nearby house for help and, since there was no telephone at the residence, went to another house and asked the owner to call the fire department in Vicksburg. He returned to the car, which was burning rapidly. Shortly, the young lady whom he had started to see, drove up in the company of another male. They took appellant to a telephone where he again called the fire department. Within approximately fifteen (15) minutes the fire engine arrived. At that time, the fire had burned from the engine rearward into the automobile.

Members of the fire department, after extinguishing the flame, examined the automobile and there was nothing about it to indicate evidence of arson. A wrecker removed the charred car to Presley’s Wrecker Shop where it was stored in a fenced lot for safekeeping. The next day, fire investigators from Vicksburg Fire Department examined the vehicle in the lot but detected nothing suspicious. Three days later on December 29,1980, an investigator from the State Fire Marshal’s Office examined the vehicle. From that investigation, a part of the cushion on the rear seat was removed and forwarded to the State Crime Laboratory, and tests indicated the presence of gasoline.

Appellant also testified that the vehicle was in good condition; that he had improved it by adding certain parts, including two new front tires; and that recently he had the motor tuned. State Farm Insurance Company was the insurance carrier on the automobile and paid $6,400 in settlement of the loss, making the check payable to appellant and GMAC Finance Company. A total of $5,700 was owed on the automobile at the time of the fire. The most damaging evidence against appellant was that of Kenneth Dwayne Page, a wrecker driver for Presley’s Wrecker Service. He testified that on December 24, 1980, he had a telephone conversation with appellant, and was informed that appellant had wrecked his car and decided to get rid of it. He further testified:

And he said, “Well, how do people get rid of cars?” I said, “As for [sic] an insurance company, won’t replace is a burned car. If you burn a dash of a car or engine of a car or any part of a car you can’t really duplicate that or replace, you know, the whole dash. Before they’ll go to that expense, they’ll total it out.” So I told him, “The best thing to do is to burn it. But if you burn it, make sure you do it where the fire fighters won’t get there so fast. You’ll just have a whole lot of smoke and damage, you know, stuff they can fix.”

Page also testified that appellant asked him to help burn the car; that he refused; that after the car had burned, he asked appellant, if he had actually burned it, and appellant smiled and replied, “Man, you know I wouldn’t do that;” that appellant then told him his carburetor had backfired and caused the gas tank of the automobile to explode. This conversation was supposed to have been had with appellant approximately two weeks before the trial.

Evidence for the appellant showed that Page had been made aware of the fact that, if appellant was convicted of arson, Page would be eligible to receive $1,000 for cooperating and testifying on behalf of the State. Testimony of the investigator from the State Fire Marshal’s Office was inconsistent in connection with that offer of reward and it was impeached to some extent.

The appellant has assigned two errors in the trial below, which follow:

1. The lower court erred in denying the defendant a suppression hearing on the warrantless searches and seizures by the State of the automobile.
2. The lower court erred in not suppressing the evidence obtained by the State from the warrantless searches and seizures of the automobile.

Although the appellant asked for a peremptory instruction at the conclusion of all the evidence, he has not assigned as error refusal to grant that instruction.

Under the two assigned errors, the appellant contends that his automobile was searched and the piece of cushion was taken and tested without obtaining same with a search warrant. It is unnecessary to address those assignments of error in view of our conclusion in the case. We do note, however, that the vehicle had been stored in the lot for three days and the record does not indicate that, during such time, there was probable cause to believe- that arson was involved.

We have carefully examined the entire record and are of the opinion that the State of Mississippi failed to meet its burden of proof and failed to show that the appellant was guilty of arson beyond reasonable doubt. Edwards v. State, 217 So.2d 14 (Miss.1968); Pendergrass v. State, 193 So.2d 126 (Miss.1966); Ruffin v. State, 203 Miss. 1, 32 So.2d 882 (1949). Therefore, under Miss.Sup.Ct.Rule 6(b) we notice the plain error committed by the lower court in refusing to grant the peremptory instruction for appellant. Hemphill v. State, 313 So.2d 25 (Miss.1975); McMullen v. State, 291 So.2d 537 (Miss.1974). The judgment of the lower court is reversed, and judgment is rendered here in favor of appellant. McQueen v. State, 423 So.2d 800 (Miss.1982); Bennett v. State, 374 So.2d 803 (Miss.1979); Jones v. State, 368 So.2d 1265 (Miss.1979).

REVERSED AND RENDERED.

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

      . This was the first day of investigation by the State Fire Marshal’s Office.

      . The gas tank did not explode.


text:
    Tommy Lee JACKSON v. STATE of Mississippi.
    No. 53640.
    Supreme Court of Mississippi.
    Dec. 21, 1983.
    Don H. Evans, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   BROOM, Presiding Justice,

for the Court:

Murder while engaged in robbery is the offense for which Tommy Lee Jackson was found guilty at his trial in the Circuit Court of the First Judicial District of Hinds County. Mississippi Code Annotated § 97-3-19(2)(e) (Supp.1983). Instead of ordering the death penalty, the jury fixed the punishment as life imprisonment. We find that the evidence presented was sufficient to prove the charge set forth in the indictment, and no reversible error is shown. Accordingly, affirmance is required.

Shortly before 2:00 A.M. on the morning of March 26, 1981, the appellant, Tommy Lee Jackson, was seen running out of the men’s room of the Greyhound Bus Station on Lamar Street in Jackson, Mississippi. He drove away in a 1973 Malibu, white over blue, with heavy damage to the right front fender. William F. Hill was also seen leaving the bus station men’s room on the morning in question, bleeding considerably, distraught and muttering. In only a very few moments, he was dead of a heart attack. Tommy Lee Jackson was found and arrested within 15 minutes. In Jackson’s car, arresting officers found a plastic picture folder similar to those found in wallets which contained various pictures and a V.A. identification card belonging to Hill. Hill’s wallet was never found. An iron tire tool was also found behind the passenger seat of Jackson’s car. Jackson was charged with capital murder.

Contention of the prosecution at trial was that Jackson robbed Hill and beat him. The fatal heart attack resulted from the trauma and stress of the beating.

The restroom where the attack was alleged to have taken place was splattered with blood on the floor and door panels, indicating an extensive struggle where several blows would have been inflicted on the victim, Hill. Two eyewitnesses saw Hill and Jackson struggling in the restroom. Jackson had Hill around the waist and it appeared that Jackson had partially pulled Hill’s billfold out of Hill’s back pocket. When Hill exited the restroom after Jackson fled, Hill was heard to say “Why me”, and “he got me”. Within a few moments, Hill keeled over on the floor. Jackson hurriedly left the scene in a car.

Forensic investigation revealed that the extensive amounts of blood on the floor of the restroom was type A and could have been Hill’s but not Jackson’s. Small amounts of blood were on Jackson’s face and left hand, presumably from his wrestling match with Hill in the restroom. It was also type A. Cause of death, according to forensic pathologist Dr. Rodrigo Galvez was cardiac arrest resulting from stress compatible with blows to Hill’s head.

The restroom in question is shown in the record to have limited access. No one can enter unless either the ticket agent presses a button which releases an electric security lock or someone inside happens to be coming out. A stairwell leads to the restroom doors after one has entered the secure door from the main lobby which consists of two flights of twenty steps.

Jackson claimed to have entered the secure door as a large black man was leaving. He testified that, as he entered the men’s room, he saw Hill lying on the floor and blood splattered everywhere. As Jackson leaned over Hill to determine his condition, Jackson contends that Hill grabbed him and they struggled. Jackson’s version was that Hill was trying to rob him, but the jury did not accept his version.

We have examined all assignments of error and find them to be without merit. Upon conflicting evidence, the jury accepted the state’s theory and rejected Jackson’s. Gangloff v. State, 242 Miss. 168, 134 So.2d 481 (1961). Having carefully studied all the testimony and arguments, we have concluded that the jury verdict was adequately supported by the evidence which established Jackson’s guilt beyond a reasonable doubt. No reversible error was pointed out in the briefs or oral argument. Accordingly, af-firmance is required.

AFFIRMED.

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

      . Recently affirmed here in an opinion authored by Roy Noble Lee, J., was Jackson v. State, 440 So.2d 307 (Miss.1983), a robbery conviction which offense occurred at the same place as the present offense. The defendant in both cases is the same.


text:
    Kenneth FREY & Buell M. Nunnery, Jr. v. Lucille A. ABDO.
    No. 54633.
    Supreme Court of Mississippi.
    Dec. 21, 1983.

      R.V. Kimble, Jr., Harty & Kimble, Green-ville, for appellant.
    Philip B. Terney, Robertshaw & Meri-deth, Greenville, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   BROOM, Presiding Justice,

for the Court:

Lease contract interpretation: whether, after default in rent payments, lessee is liable for future rents, is the salient feature of this case appealed from the Circuit Court of Washington County, the Honorable Gray Evans, circuit judge, presiding. Jury trial was waived. Key language of the lease contract is the following:

It is further agreed that in default of any one or more of said rental payments, or any part thereof, this lease may be declared forfeited by the Lessor at her option, in which event the Lessee shall be liable for all rents remaining unpaid under this lease agreement... .

When the lessee failed to pay the monthly rent due in June, 1982, the lessor sued for rent for the remainder term of the lease contract. Ruling of the lower court was that the lessee was liable for all remaining unpaid rent, including rent already accrued when the lease was declared forfeited, plus that to accrue under the remaining thirteen months, until the end of the lease term.

The lease in controversy is dated September 2, 1980, and by its terms Lucille A. Abdo leased certain property to Farm and Home Supply, Inc. A primary three-year term was provided by the contract with rent payments of $1500 per month. Payments were timely made until June, 1982, when lessee Farm and Home failed to pay the rent and no further payments have been made. When Farm and Home failed to pay the rent due in June, 1982, Mrs. Abdo filed suit to collect rent for the remainder of the term. Farm and Home and its guarantors, the appellants, Kenneth Frey and Buell M. Nunnery, Jr., defended on the ground that under the terms of the lease no rent was owed except for the amount past due at the time suit was filed.

Before us for decision is the following question: Under the lease contract are the lessee and its guarantors liable for remaining rent payments coming due after lessor Mrs. Abdo filed the suit? Stated differently, are the lessee and its guarantors relieved of liability because the lessor, Mrs. Abdo, declared the lease forfeited and sued to collect all rents due for the entire term?

Appellants Frey and Nunnery, guarantors of the lessee’s rent payments, initially argue that the trial court erred in accelerating payments not yet due, and they assert that nowhere in the lease contract does the time of the accrual of any liability change. Without such an acceleration clause the lessor, upon default by lessee, would generally have to wait until each installment is due before suing for that particular installment. See, e.g., 52 C.J.S., Landlord and Tenant § 568, p. 742 fn. 8 (1968); Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884, 885, fn. 2 (Fla.App.1979). Some courts, however, are reluctant to enforce acceleration clauses in leases reasoning that they create an “unenforceable penalty”. 49 Am.Jur.2d, Landlord and Tenant, § 558, p. 538 (1970). In this regard, the immediate discussion will be concerned with the narrow query of whether this particular lease contained such a clause.

In interpreting an acceleration clause in a mortgage contract, we previously stated,

It is a recognized principle that a contract to accelerate the maturity of a debt gives a harsh remedy, and that in order to be effective, it should be clear and unequivocal, and that if there is a reasonable doubt as to the meaning of the language employed, preference should be given to that construction which will prevent the acceleration of maturity.

Boatright v. Horton, 227 Miss. 698, 708-09, 86 So.2d 864, 868 (1956). See also Adams v. Graham Stave and Heading Co., 160 Miss. 266, 135 So. 198 (1931). Thus, in order to find an acceleration clause in the instant lease agreement, the contractual language must clearly and unequivocally set forth such a clause. Careful reading of the above-quoted passage of the lease reveals no such clearly and unequivocally stated clause. Reasonable interpretation of the quoted provision allows lessor, upon the default by the lessee, to forfeit the lease, but whether it allows acceleration of amounts to become due in the future is not clearly stated. The provision could give two results: (1) the Lessor could immediately collect all the payments that are past due, or (2) the lessor could immediately collect all payments that the lease provides for — both past due and due in the future.

Inasmuch as the lease is susceptible to two interpretations, the rule of Boatright v. Horton, supra, resolves the doubt in favor of that construction which would prevent acceleration. Thus we hold that the lease agreement did not contain an acceleration clause and any payment not yet due before suit was brought was not yet actionable.

Like the preference with regard to acceleration clauses, “[i]n the absence of clear language to that effect, Courts will not construe a lease as providing that upon reentry or forfeiture, the tenant shall remain liable for unaccrued rent.” 49 Am. Jur.2d Landlord and Tenant § 1056, p. 1021 (1970). (emphasis added). See also Knight v. OMI Corporation, 568 P.2d 552 (Mont.1977); Rohrt v. Kelly Mfg. Co., 162 Tex. 534, 349 S.W.2d 95 (1961). Here, lessor Abdo’s contention to the contrary notwithstanding, the lease agreement is not clear. Not persuasive is her contention that inclusion of the word “all” makes the language clear. The lease uses the term “all rents remaining unpaid” in the same sentence in which it speaks of default of one or more past rental payments. Thus, the lease is simply not clear as to whether the lessee remains liable for “all" rents accrued and unpaid (past) at the time of default, or “all” rents unpaid at time of default, whether accrued or not. In the absence of clear and unambiguous language imposing liability upon lessee for future rents as well as past rents on the default, we will construe the present lease so as not to impose such a liability on the lessee.

Having decided that the lease in question does not contain an acceleration clause nor expressly preserve the lessor’s right to collect future unaccrued rents upon default of the lessee, we adopt the following rule as dispositive of the instant case:

It is the general rule that the termination of a lease does not terminate accrued liabilities, including accrued rent, even under a provision or option for termination, but it does terminate liabilities to accrue in the future, such as rent, except where by express provision in the lease termination is not to affect the accrual of such liabilities.

49 Am.Jur. Landlord and Tenant, § 1013, p. 985 (1970). Thus we do not reach the issue of whether lease agreements as well as possession of the demise upon the default of lessee are valid and enforceable. We point out that cases on this issue are conflicting. See Adams v. Graham Stave and Heading Co., supra; 52 C.J.S. Landlord and Tenant § 568 p. 742 (1968).

Accordingly, we affirm the lower court’s holding the lessee and guarantors liable for all rentals at issue which accrued before the lessor filed suit on July 28, 1982, and declared the lease forfeited. We reverse and render as to the judgment providing liability of the lessee and guarantors (appellants) for rentals accruing subsequent to July 28, 1982.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

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

      . Generally, when the lessor elects to forfeit and terminate the lease because of the lessee’s default, the lessee is absolved from all further liability. This rule would seem to give support to the interpretation that all of the past due amounts become immediately payable.