author: SUGG, Retired Justice,

text:
    Percy BURNS v. STATE of Mississippi.
    No. 54159.
    Supreme Court of Mississippi.
    Oct. 5, 1983.

      Wendell Hobdy Bryan, II, Amory, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before BROOM, P.J., ROY NOBLE LEE and BOWLING, JJ., and SUGG, Retired Justice.
   SUGG, Retired Justice,

for the Court:

Appellant was convicted in the Circuit Court of Monroe County for possession of marijuana with intent to transfer or distribute it and was sentenced to serve a term of twenty years imprisonment and fined $10,-000.

STATEMENT OF FACTS

On October 7,1981, John C. Robinson, Jr., a deputy sheriff of Monroe County, was on duty in the sheriff’s office. He observed appellant walk away from one of the cell windows of the women’s section of the jail, enter his car, and leave. When appellant did not come by the office to request permission to see any person in jail or to inquire about visiting hours, the deputy became suspicious and unsuccessfully attempted to stop appellant. As appellant drove away he obtained a description of the automobile and the license plate number. The deputy then checked the number of the license plate through the National Crime Information Center (NCIC) and received information it was stolen. He notified all the units of the sheriff’s office by radio that the license plate was reported as stolen, and gave the number of the license plate and a description of the automobile.

J.C. Robinson, Sr., another deputy sheriff, received the radio message, saw the automobile in question and stopped it. The officer asked appellant for his drivers license and the registration of the automobile. Appellant gave him a registration that did not correspond with the license plate on the car so the officer advised appellant that the plate had been reported stolen. Appellant replied that he had found the license plate and put it on the automobile. The officer then asked appellant to follow him to the sheriff’s office to see if they could get the matter straightened out. Upon arrival at the sheriff’s office appellant gave an explanation about the license plate. One of the officers then checked the vehicle identification number (VIN) through the NCIC computer and received information that the automobile was stolen.

The two Robinsons, father and son, then conducted a search of the automobile. They opened the trunk of the automobile with a key which they found in the glove compartment. They opened a brown grocery sack which was in the trunk of the automobile in which they found 107 hand-rolled cigarettes and 32 plastic bags containing a green leafy substance later identified as marijuana. Inside the passenger compartment of the car the officers found a pair of sunglasses, a pick-type plastic comb and a map. They also found a couple of bags containing men’s clothing and one empty suitcase in the trunk of the automobile. Following the search of the automobile Officer Robinson, Jr. placed appellant under arrest, read him his Miranda rights, and had him sign a waiver. Appellant was arrested on the charge of possession of more than one ounce of marijuana.

Appellant testified that he borrowed the car on October 4 from Ola Hanley in St. Louis. He testified that he did not have any luggage with him, that he had not looked in the trunk of the automobile, and did not know that marijuana was in the automobile. He stated that when the police stopped him he followed the officer to the sheriffs office, “to get the license plate straight.” On cross-examination the following questions and answers were given:

Q. Now, Ola Hanley apparently didn’t like the idea of you going off from St. Louis with her car, did she?
A. No, sir, I don’t believe so.
Q. You sort of figured what she had done, hadn’t you?
A. I had an idea.
Q. And what is that idea that you had?
A. That I messed up when I took her car.

Appellant also testified that he had previously pled guilty to armed robbery and burglary. Appellant testified that he was working at Jones Shell as a mechanic on Monday through Friday of each week and said he left St. Louis on Saturday but did not report for work on the following Monday, Tuesday or Wednesday.. He was asked if he didn’t “bring this stuff down here” to make a little more money than he could make on the job. His response was “When I seen that that was when they brought it out of the office.”

Officer Robinson, Jr. testified, that after he received information from the NCIC computer that the car had been reported as stolen, he took custody of the car. He was then asked the following question: “Now, when a car is taken into custody, is it a normal and customary procedure to make an inventory of the vehicle for the safekeeping of the valuables contained therein?” The question was objected to as leading but the objection was overruled. Officer Robinson then answered, “Yes, sir,” and related the details of the search resulting in finding the marijuana.

ASSIGNMENTS OF ERROR

Under the first three assignments of error appellant argues that the marijuana should not have been admitted into evidence because, (1) it was seized as a result of an illegal arrest, (2) it was seized as the product of custodial questioning when he had received no Miranda warnings, and (3) the inventory search exceeded the limits of any allowable inventory.

The state’s response to appellant’s argument is that he had no standing to object to the search of the automobile because it was stolen. After the state’s witness had testified about the information received from the NCIC computer without objection, the marijuana was offered in evidence. Appellant objected, and his objection was overruled. In overruling the objection, the trial judge stated,

More particularly to this case, however, is the fact that the information known to the officer of the sheriff’s department was that the vehicle was, in .fact, stolen and therefore it would appear that this defendant had no legitimate expectations of any right to the privacy of the vehicle, especially the rear compartment of it, for the simple reason it did not belong to him

Initially, we note that the automatic standing rule announced in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was abolished and Jones was expressly overruled in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

In Slyter v. State, 246 Miss. 402, 149 So.2d 489 (1963), this Court held that evidence seized from the search of a stolen automobile is admissible in evidence, and stated:

The appellant next argues that the court erred in admitting the testimony of Sam Ivy regarding the search and inspection of the automobile and in admitting in evidence the samples of hair and blood recovered therefrom. He further argues that the court erred in permitting evidence that the automobile was stolen. Here the appellant objects to the search on the ground that the officers did not have a warrant, therefore, the testimony showing the automobile was a stolen car was admissible for the reason that appellant could not complain of the search of the car. This Court has held in many instances that for one to be in position to complain of an illegal search one must either be the owner or in the lawful possession of the property searched. Rose v. State, 222 Miss. 699, 76 So.2d 835 and authorities there cited. (246 Miss. at 409, 149 So.2d at 492)

In Williamson v. State, 248 So.2d 634 (Miss.1971) this Court held that the defendants in that case had standing to object but stated,

This does not hold true, however, when a trespasser is in possession of a stolen automobile. Slyter v. State, 246 Miss. 402, 149 So.2d 489 (1963).

There is no doubt appellant was in possession of a stolen automobile because in closing argument his attorney stated,

It is in evidence and we don’t dispute it, he has got a conviction for armed robbery, he has got a conviction for burglary and larceny and he was down here in a stolen car.

Appellant’s counsel further stated:

Now, I invite the state to come up here and tell you how it is you are supposed to believe that he knew the stuff was in the trunk, he was in a stolen car.

Appellant argues that the information received from the NCIC computer does not constitute proof and suggests that, if in fact the car was stolen, it would have been simple for the state to have obtained proof of it by getting the owner to testify that the car was stolen. In this argument appellant overlooks the fact that one of the state’s witnesses was permitted to testify without objection about the information received from the NCIC computer that the automobile was stolen. In Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457 (1943) this Court held:

[HJearsay evidence, where admitted without objection, may properly be considered and given its natural and logical probative effect, as if it were in law competent evidence .. . Hearsay evidence admitted without objection may be regarded as sufficient to establish a fact in controversy. (194 Miss, at 566, 11 So.2d at 459).

See also, Mississippi State Highway Com. v. Robertson, 350 So.2d 1348 (Miss.1977); Roberts v. Interstate Life & Accident Insurance Company, 232 Miss. 134, 98 S.Ct. 632 (1957); Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472 (1957). Appellant did not object to the testimony about the information received from the NCIC computer that the car was stolen. Later when the state offered the marijuana in evidence through the testimony of Joe Lee Williams, Jr., a forensic scientist who examined the marijuana, appellant objected to the introduction of the marijuana on the three grounds set forth in the first three assignments of error.

Appellant argues that the search was made as the result of the custodial questioning when he had not been given his Miranda warnings. The search was not made on the basis of custodial questioning but rather on the information received by the sheriff’s office from the NCIC computer.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) and in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969) the United States Supreme Court held that a person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.

We therefore hold that the search was legal and that appellant’s fourth amendment rights were not violated because the marijuana was found in a stolen automobile.

In the fourth and fifth assignments of error, appellant argues the evidence was insufficient to support his conviction because it did not prove that he is guilty beyond a reasonable doubt and the verdict of the jury was against the great weight of the evidence.

Appellant’s defense at trial was that he had not looked in the trunk of the automobile where the marijuana was found and he did not know that marijuana was in the automobile. The state’s case showed that there were two bags of men’s clothing in the automobile, defendant had stolen the automobile in St. Louis, brought it to Mississippi, he had been on the road for three days, and the officers found 107 handrolled marijuana cigarettes and thirty-two bags of marijuana in a paper sack in the trunk of the automobile. The state argues it was highly unlikely that the owner of the automobile would have reported it stolen if the owner had placed marijuana in the automobile, and it was unlikely that the appellant traveled for three days without changing clothes when a change of clothes was in the trunk of the automobile.

The evidence presented a conflict for the resolution of the jury. In Bingham v. State, 434 So.2d 220 (Miss.1983), we reaffirmed the holding of numerous cases that the resolution of conflicts in evidence are for the jury and not the appellate court. Accordingly, we find no merit in these assignments of error.

Appellant contends in his sixth assignment of error that the court erred in allowing his previous criminal convictions to be shown at the trial. His arguments are not well taken because under section 13—1— 11 Miss.Code Ann. (1972) evidence of prior convictions may be introduced to impeach a witness.

In his seventh assignment of error appellant argues that the court erred in allowing the prosecutor to ask the defendant, “It wasn’t the first time you had taken things, was it?” This Court has held such questions are error but not reversible error. See Murray v. State, 266 So.2d 139 (Miss.1972) for collation of cases so holding. We note that in the cross-examination of appellant the state properly questioned him about his previous convictions and on the basis of these questions, elicited answers that appellant had pled guilty to armed robbery and burglary and larceny. We hold that the question, although improper, does not constitute reversible error.

In his eighth assignment of error appellant contends that the court erred in allowing the state’s expert from the Mississippi Crime Laboratory to testify as to the reason for marijuana being classified as a Schedule 1 Controlled Substance.

The reason for the marijuana being classified as a Schedule 1 Controlled Substance by the legislature was not relevant on the question of the guilt or innocence of appellant. We hold that it was error to permit the testimony, but in this case it was harmless. However, in a close case on facts such testimony might be prejudicial and inflammatory, and the state should refrain from introducing such testimony.

In the ninth assignment of error, appellant contends that the court erred in allowing the prosecutor to question the defendant whether he had asked an investigator to get his clothes out of his trunk and then failed to present any evidence that the appellant had made the request. The record shows the following questions and answers pertaining to this assignment of error:

A. I had a little money, I could have bought me some.
Q. In three days, you didn’t buy or change your clothes, is that right?
A. It was three days I didn’t.
Q. It is your testimony that you left all your clothes at home, is that right?
A. Yes, sir.
Q. Do you remember asking Investigator Boozer to get your clothes out of the trunk of that car for you?
A. No.
Q. You didn’t ask him that?
A. No, sir, I didn’t.
Q. Do you remember talking to him?
A. I don’t even know him.
Q. You never heard of him?
A. I don’t know none of the officers.
Q. But you did talk to some officers?
A. Well, the only time I talked to them they had me in the office and asked me about the marijuana.
Q. But you didn’t ask him to get your clothes for you, did you?
A. No, sir, because I didn’t have any in there.

After the state and the defendant had rested, appellant’s counsel made a motion for a mistrial based on the above ques-, tions. Appellant’s counsel, in arguing the motion, stated he assumed the prosecution would attempt to show in rebuttal that the appellant had asked an officer to get his clothes out of the trunk of the automobile, but the state did not call any witness to show appellant made the request. Appellant argues that it was an attempt to place nonexistent evidence before the jury, and was highly prejudicial to him.

In Collins v. State, 408 So.2d 1376 (Miss.1982), the Court reversed and remanded for a new trial and stated:

The reference to non-existent testimony, the innuendos arising from the defendant’s not calling witnesses, which were readily available to the state, and the beliefs of the assistant district attorney, again not supported by the evidence, were such that they could not be removed, in our judgment, from the minds of the jurors by the judge’s admonishments. As is evident this case presents a close question as to the guilt of Collins. (408 So.2d at 1380)

In Stewart v. State, 263 So.2d 754 (Miss.1972), defendant was questioned about a series of burglaries, with no evidence presented to show that he committed the burglaries. Other prejudicial errors were present in Stewart, so this Court reversed and remanded for a new trial.

This is the most serious argument of appellant for a reversal; however, the evidence of his guilt was not close as in Collins and other prejudicial matters did not appear as in Stewart. We hold that this was error hut are of the opinion that it was harmless error.

In his tenth assignment of error, appellant contends that the court erred in overruling defendant’s objection to improper closing argument by the state. We have carefully considered this and find that the state’s attorney was merely repeating some of the argument previously made to the jury by defense counsel as follows:

My very distinguished opponent in this case, the very able trial lawyer, Hob Bryan, has told you first of all that he has no argument with the facts of the State’s case. Now ask yourself, did you hear argument with the facts you were to hear; did you hear protestations? There is no argument, — ask yourself, is that really what happened here and I agree we are not here to decide if Percy is a nice fellow.
BY MR. BRYAN: Your Honor we object on the basis of that comment and move for a mistrial. He is apparently referring to my efforts to get evidence suppressed.
BY JUDGE GARDNER: Overruled.

In opening his argument, appellant’s counsel stated:

Ladies and gentlemen of the jury, we have here somewhat of an interesting case and I am here to tell you that everything that you heard from the witness stand here today is true. The Defendant has absolutely no argument with anything that any witness for the State testified to. We agree, and couldn’t agree more, that everything that the police officers have said, everyone from the Narcotics Department has said, is true and we are not disputing the testimony of anybody. We agree with what the police officers have said; we agree with everything that the State’s witnesses have said. What I am here to tell you is that the State has not proven their case, they have not proven Percy Burns guilty beyond a reasonable doubt. Now on voire dire I asked you and all of you said that we weren’t here to determine if Percy Burns was a nice fellow or not. I am not asking you to invite Percy Burns home for supper, we are not here to decide if he is a nice fellow or a mean fellow....

Appellant contends that the argument of the state’s attorney quoted above was a reference to his attempt to suppress evidence against him. We do not view the remarks of the state’s attorney in such light, but are of the opinion that the state’s attorney were merely reiterating some of the statements made by appellant’s own counsel as a preface to his closing argument. We find no merit in this assignment of error.

In his eleventh assignment of error appellant argues that his sentence was more than permitted by statute.

Burns was indicted for possessing, with the intent to distribute or deliver, a quantity of marijuana. No quantity was set forth in the indictment. The state concedes in its brief that appellant was erroneously sentenced and stated the following:

As revealed by the record in this cause, the charge as laid in the indictment does not specify the amount or quantity of the marijuana involved in the commission of the offense. Therefore, in view of those decisions rendered by this Court in Broadus v. State, 392 So.2d 203 (Miss.1980) and White v. State, 374 So.2d 225 (Miss.1979), appellee must concur with appellant insofar as it is urged that this cause be remanded to the trial court for the imposition of an appropriate sentence not to exceed that prescribed by § 41-29-139(b)(3), Miss.Code Ann. (1972).

Our statutory law provides for two different crimes involving the possession of marijuana with intent to deliver or distribute, each with different penalties, depending on the amount of marijuana in question.

(1) If less than a kilogram but more than an ounce of marijuana is possessed with intent to deliver, a defendant could receive 20 years imprisonment and a $30,000 fine. Section 41-29-139(b)(2) Miss.Code Ann. (1972). (2) If one ounce or less of marijuana is possessed with intent to deliver a defendant may receive a maximum of three years and a $3,000 fine. Section 41-29-139(b)(3) Miss.Code Ann. (1972).

The indictment did not specify the amount of marijuana in possession of appellant. Appellant could have been indicted under either of the two statutes heretofore mentioned. We are unable to ascertain from the indictment which one of the two statutes appellant was indicted under; therefore, we are compelled to apply the rule laid down in Grillis v. State, 196 Miss. 576, 17 So.2d 525 (1944) in which the Court stated:

The case, then, is one for the application of the rule that when the facts which constitute a criminal offense may fall under either of two statutes, or when there is substantial doubt as to which one of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment. (196 Miss, at 586, 17 So.2d at 527).

Accordingly, we hold that the sentence imposed was excessive and we remand the case for resentencing under section 41-29-139(b)(3) Miss.Code Ann. (1972). The maximum sentence allowed under this section is imprisonment for three years and a fine of $3,000.

Conviction affirmed, but remanded for resentencing.

AFFIRMED AND REMANDED.

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

      . Sitting pursuant to Section 9-3-6 Miss.Code Ann. (Supp.1982). The opinion is adopted as the opinion of the Court.


source: Caselaw Access Project

author: BROOM, Presiding Justice,

license: Public Domain

text:
    Magid TORABI v. J.C. PENNEY, INC., V. Taylor & Johnny James.
    No. 54517.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    Charles Jad Mikhail, Clinton, for appellant.
    Suzanne N. Saunders, Saunders, Todd & Maddan, Jackson, for appellees.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   BROOM, Presiding Justice,

for the Court;

Shoplifting accusation leveled at Magid Torabi based upon events within J.C. Penney, Inc. store is the basis of Torabi’s tort action appealed from the Circuit Court of the First Judicial District of Hinds County, the Honorable Charles Barber presiding. Torabi sued J.C. Penney, Inc. (Penney’s herein), and its security officers, V. Taylor and Johnny James, alleging that they wrongfully accused Torabi of shoplifting from Penney’s, falsely imprisoned, and detained him. Mississippi Code Annotated § 97-23-51 (1972), was relied upon by defendants Penney’s and the security officers. The lower court sustained the defendants’ motion for a directed verdict and entered judgment for them. We reverse.

On his appeal, appellant/plaintiff Torabi argues that the lower court erred by (1) “directing a verdict in favor of defendants”, and (2) “placing the burden on appellant to show lack of probable cause for the actions of appellees”.

Testimony was that on January 2, 1982, Torabi went to Penney’s in Jackson Mall to exchange a suit he previously purchased there. He tried on two other garments and then was arrested by Penney’s security officers Taylor and James, who charged him with shoplifting. The city of Jackson municipal court, after hearing evidence, acquitted Torabi of the shoplifting charge.

Then Torabi filed the present tort action against Penney’s and security officers Taylor and James for malicious prosecution, assault and battery, false imprisonment, and slander in connection with Torabi’s arrest in Penney’s. In their answer, Penney’s and the two officers affirmatively pled that they had acted within their rights under § 97-23-51, supra. At the trial of the tort action in circuit court, plaintiff Torabi testified in his own behalf and called the two officers as adverse witnesses, after which Torabi rested his case. At that juncture, defense counsel moved for a directed verdict contending Torabi “failed to make out a prima facie case ... ”. In granting a directed verdict, the lower court stated it “did not feel that plaintiff had made a prima facie case”, and accordingly entered judgment exonerating Penney’s and the two security officers. Other facts will af-terwards be stated as needful.

DID PLAINTIFF TORABI MAKE OUT A PRIMA FACIE CASE SUFFICIENT TO GO TO THE JURY?

Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975), sets forth the rule applicable in deciding whether a directed verdict should be given:

[I]n passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled .

Id. at 655.

Appellees (defendants) rely upon § 97-23-51 which permits detention of a shoplifting suspect if such detention is “in good faith and upon probable cause based upon reasonable grounds ... ”.

Torabi testified that he went to Penney’s on the date in question to return a previously bought suit because his wife did not like the color. He went to the men’s department and discussed the matter with a Mr. Dykes, the store clerk who sold him the suit, and told Dykes that he wanted to exchange the suit. Dykes advised him to go ahead, after which, according to Torabi’s testimony, he left the old suit in a shopping bag on the counter and took another suit and sports coat from the rack into a dressing room where he tried them on. Then he decided he would buy the sports coat and so advised store clerk Dykes. As he waited for Dykes, he continued browsing and held up a pair of black trousers to himself, and replaced them on the rack. Then he decided to take his shopping bag from the counter back to the dressing room and again try on the original suit he previously purchased.

As Torabi came out of the dressing room, security guard Taylor asked “What’s in your bag?”. Torabi replied it was his old suit, at which time the other security officer James looked in the bag and inquired about the pin-stripe suit which Torabi had first taken into the dressing room and tried on. Torabi advised him that he had tried the suit on and left it in the dressing room. According to Torabi, while he was accompanying the officers back to look, they twisted his arm and arrested him and wouldn’t listen when he tried to make explanation. Then Officer Taylor asked him if he was Iranian, and when Torabi answered affirmatively, Taylor (according to Torabi’s testimony) told him he would hang him on $50,-000 bond. Torabi was taken by the officers to the security office where, according to him, they promised to help him if he would confess, which he refused to do. Then they had him pull his clothes down to see if he had any other items concealed on his person, which turned out negative. He was taken to the city jail — booked, photographed and fingerprinted.

Called as adverse witnesses by Torabi, security officers James and Taylor testified to the following. James noticed Torabi entering the store carrying a non-Penney’s bag with a brown suit in it. James followed Torabi into the men’s dressing room where Officer James (acting as if he were a customer) tried on a pair of slacks and was tying his shoes when he heard paper rustling. He looked and saw newspaper and Torabi’s bag on the floor in a nearby dressing room. His suspicion having been aroused, James looked into Torabi’s open dressing room and (after Torabi exited) the officer looked into the bag. There the officer saw a brownish-gray pin-stripe suit in the same bag in which he had previously seen a different brown suit. At the checkout counter, Officer Taylor joined Officer James. There Taylor looked into Torabi’s bag and asked Torabi what was in his bag.

Torabi’s testimony was substantiated by store clerk Dykes, who stated that he kept Torabi’s shopping bag at the counter, while, with his permission, Torabi tried on another suit and sports coat. According to store clerk Dykes’ testimony, as the officers came by his desk with Torabi, he (Dykes) told them they were making a mistake. Dykes further testified that he told Torabi to find what he wanted and indicated that it was permissible for Torabi to try on the other items.

Applying the rule of Paymaster, we are bound here to favorably consider and accept as true all of the testimony introduced by Torabi and to indulge him “all favorable inferences”. Having carefully considered the testimony and applied that rule to the testimony, we think the lower court incorrectly ruled that a prima facie case had not been made out by the plaintiff’s proof, a portion of which was documentation of plaintiff Torabi’s acquittal in municipal court. Allen v. Ritter, 235 So.2d 253 (Miss.1970); State Life Insurance Company of Indianapolis, Indiana v. Hardy, 189 Miss. 266, 195 So. 708 (1940); Whitfield v. Westbrook, 40 Miss. 311 (1866).

Accepting as true the testimony introduced by the plaintiff together with reasonable inferences, there was proof of (1) institution by appellees of the criminal charge against Torabi in city court, (2) termination of the proceedings in Torabi’s favor, (3) at least a reasonable basis upon which a jury could find “malice in instituting the proceedings”, (4) want of probable cause for the criminal proceedings, and (5) damages suffered by Torabi. See Harvill v. Tabor, 240 Miss. 750, 128 So.2d 863 (1961).

Of course at remand, after Torabi’s presentation of proof, appellees will be entitled and obligated in their defense to present testimony, if they can, establishing their qualified privilege pursuant to § 97-23-51, supra. Pertinent is Jarjoura v. Fred’s One & Two Dollar Store, Inc., 370 So.2d 696 (Miss.1979), which held that the evidence there went to the question of whether the store manager acted in “good faith and upon probable cause based upon reasonable grounds in ascertaining that appellant was guilty of shoplifting”. As stated in Fred’s one & Two Dollar Store, Inc., the “trial judge should have submitted the issues to the jury under proper instructions.” Therefore, the appeal is meritorious and requires reversal.

REVERSED AND REMANDED.

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

BOWLING, J., not participating.


author: WALKER, Presiding Justice, HAWKINS, Justice,

text:
    Gloria Lynn ARD and Melinda Sue Ard, Minors by and through Mrs. Alvin Ard, Paternal Grandmother and Next Friend v. Catherine R. ARD, Executrix, In the Matter of the Last Will and Testament of Virgil A. Ard, Deceased.
    No. 53927.
    Supreme Court of Mississippi.
    Oct. 12, 1983.

      Stanford Young, David Slaughter, Waynesboro, for appellants.
    Louis M. Bishop, Waynesboro, for appel-lee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Wayne County, Mississippi wherein that Court dismissed appellants’ challenges to the last will and testament of Virgil A. Ard. We affirm.

The appellants have assigned as error that the trial court erred in finding the testator was competent when the will was executed. We have carefully considered this assignment and find it to be without merit. The chancellor’s ruling was based on conflicting testimony and there was more than ample testimony upon which he could base his finding that Virgil Ard was competent at the time of the execution of the will.

The appellants also contend the trial court erred in not finding that the will was procured through fraud and undue influence. The sole beneficiary under the last will and testament of Virgil Ard is his wife of approximately four years, Catherine Ard, to the exclusion of his two teenage daughters, Gloria Lynn Ard and Melinda Sue Ard. In Genna v. Harrington, 254 So.2d 525 (Miss.1971), this Court held:

It is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse, but the mere fact that there is a close relationship between the parties in a marriage does not mean that one’s influence upon another is undue influence.
In order to set a will aside upon the grounds of undue influence on the part of a spouse, it must be shown that the devi-see spouse used undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and to prevent him from being a free agent.

254 So.2d at 528-29.

After a careful reading of this record, we are of the opinion the chancellor did not err in not finding that the will was procured as a result of fraud or undue influence.

Therefore, the judgment of the chancery court is hereby affirmed.

AFFIRMED.

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

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

HAWKINS, Justice,

specially concurring.

This case leaves a gnawing doubt, which could have been averted.

Mr. Ard was desperately, indeed terminally ill. His doctor had prescribed demer-ol, a highly addictive drug, for the relief of acute pain, and vistaril, a drug given to patients under severe emotional stress or in a state of extreme agitation. Vistaril is also prescribed for patients who are mentally disturbed.

Mr. Ard, in this extreme condition, was totally dependent on his wife, the stepmother of Gloria Lynn and Melinda Sue Ard. Under these circumstances, counsel was called upon to prepare Mr. Ard’s will. The attorney may not have known just how sick Mr. Ard was, but he certainly knew, or should have known, he was a gravely ill man. The occasion called for the utmost in privacy and a quiet conference restricted to counsel and Mr. Ard. Thus, counsel could have best assured himself the wishes expressed by Mr. Ard were genuine and under no extraneous influence.

Yes, counsel did not talk to Mr. Ard in private about the will. The only discussion he had with Mr. Ard in the will’s preparation was over the telephone. Counsel could not have known who was present at the other end of the line where Mr. Ard was speaking.

Finally, counsel had other matters to attend to at the time the will was executed and was not present. The persons present when the will was executed were: the attorney’s son, a layman who perhaps had some acquaintance with Mr. Ard, another person of no previous acquaintance, and Mrs. Ard. The will was executed .in a hospital room with Mrs. Ard, the sole beneficiary, sitting on the foot of the bed. Mrs. Ard was the one person in direct conflict with these two children.

There was an issue of fact, and I cannot say the Chancellor was manifestly wrong, and therefore concur in affirming.

I do have deep concern, however, at the cloud of suspicion, and perhaps hatred, existing between the parties which could have been avoided.

DAN M. LEE, J., joins this opinion.


text:
    Robert D. McKENSTRY v. STATE of Mississippi.
    No. 54474.
    Supreme Court of Mississippi.
    Oct. 19, 1983.
    J. Ronald Parrish, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Cezar YOUNG v. STATE of Mississippi.
    No. 54454.
    Supreme Court of Mississippi.
    Oct. 19, 1983.
    John E. Shaw, Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.

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

BOWLING, J., not participating.


author: BEATTY, Justice.

text:
    James BLACK, Jim Blan, Jesse Gilliam, Joseph Machen and Mabel Rooney, individually and as representatives of all members of the Gulf Fishing and Boating Club, Inc. v. Mrs. Russell GLASS, et al. GULF FISHING AND BOATING CLUB, INC. v. Mrs. Russell GLASS, et al. Rosemary BENDER v. GULF FISHING AND BOATING CLUB, INC. June Marie DRAGO, et al. v. GULF FISHING AND BOATING CLUB, INC.
    81-976, 81-977, 81-1004 and 81-1007.
    Supreme Court of Alabama.
    July 8, 1983.
    Rehearing Denied Sept. 23, 1983.

      Robert E. Gibney of Kilborn & Gibney, Mobile, for appellants/cross appellees.
    James E. Moore, George A. Tonsmeire, Jr., Vincent A. Noletto, Joseph O. Kulakow-ski, and John A. Courtney, Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee/cross appellant Mrs. Rosemary Bender.
   BEATTY, Justice.

At issue in these cross appeals is division of the proceeds from sale of the corporate assets of a dissolved private club. The trial court allocated 65% of the proceeds to the so-called active members and 35% to the inactive members. Both groups appealed. The inactive members (also referred to herein as defendants or appellees) seek a pro rata distribution of the proceeds; the active members (plaintiffs-appellants) claim that the trial court should have distributed the proceeds to them alone. In addition, the case of one club member, Mrs. Rosemary Bender, has been treated separately throughout the proceedings and is discussed separately below. We affirm in part, reverse in part, and remand.

PACTS

These proceedings began in August 1980 when the Gulf Fishing and Boating Club, Inc. (Club), filed a petition in Mobile Circuit Court (1) to invoke the trial court’s authority to supervise and approve the Club’s voluntary dissolution under the applicable provision, Code of 1975, § 10-8-165(3), of the Alabama Non-Profit Corporation Act and (2) seeking a declaratory judgment regarding the validity of the inactive members’ claim to share in the distribution of the corporate assets, the Club’s position being that only the active members were entitled to make that claim. The first aspect of the petition was uncontested and dissolution proceedings took place. After further hearings the trial court on May 21, 1982, issued a decree which provides in part as follows:

“This cause coming before the Court on the aspect of this case which calls on the Court to determine what persons shall be entitled to share in the net assets of the Club upon its final dissolution, it being shown to the Court that earlier in the proceedings in this cause the Club has taken proper and appropriate steps toward final dissolution, which were approved by this Court by Order entered on January 26, 1981, and that the last remaining properties of the Club, consisting of a substantial and valuable tract of land located on Dog River in Mobile County, Alabama, has been sold with the approval of this court, and the sale confirmed by this Court on November 17, 1981 for a sale price of One Million One Hundred Thousand Dollars, and that all that now remains to be done before the final dissolution of the Club is to determine those persons who will be entitled to share in the net proceeds received from the sale of the assets of the Club and any other funds which are the property of the Club upon its dissolution.

“It quickly evolved and became apparent to the Court upon the opening of this hearing that the contest as to what parties shall be entitled to share in the assets of the Club upon dissolution is between those parties, forty-five (45) in number, who were active dues paying members of the Club at the time the final decision to dissolve the corporation was approved, all of whom individually had purchased and held a ‘Certificate of Membership’ in the Club, (which certificate the Court will hereinafter discuss) which group for convenience the Court will designate as the Plaintiffs; and those parties who were not active dues paying members of the Club at the date of the final decision to dissolve the corporation, but who had purchased and paid for a ‘Certificate of Membership’ in the Club, but had retired from active membership at some date prior to the date on which the action to dissolve was taken. This group numbers sixty-four (64) persons whom the Court shall call the Defendants. A number of this group appeared by counsel, some appeared pro se, and some twenty-six (26) made no appearance at all.

“There is a third category, consisting of one individual, namely Mrs. Rose Mary [sic] Bender, the widow of Tom Bender, whose husband paid membership dues faithfully until the time of his death, and after his death Mrs. Bender continued to pay his dues under a widow’s membership privilege in the Club up to and through the date of the decision to dissolve the Club, but her husband was not required, under a special agreement with the Club, to purchase a ‘Certificate of Membership’, even though this was a strict membership requirement which was complied with by all other members of the Club in both the above categories.

“Evidence was offered at this hearing by all of the above categories, both by oral testimony in open Court, and by exhibits and documents submitted into evidence, among which was a ‘Certificate of Membership’, as well as written and oral stipulations offered from time to time during the hearing.

“The Court, having heard, reviewed, and considered all of the legal evidence presented at the hearing, now makes the following Findings of Fact, conclusions of law, and judgment on the case:

“1. The Court finds that the Gulf Fishing and Boating Club is a long standing, social and recreational Club, having been established either before or shortly after the turn of this century, and that it acquired and continued to own a large tract of land on the North side of Dog River which runs through Mobile County into Mobile Bay. Around the year 1960, the Club was in financial difficulties and being, in the opinion of the Members of the Club, in urgent need of repairs and improvements to the Club House, and a fresh water swimming pool on the premises for the enjoyment of the members and their children. No funds were available for these necessities, so the Club decided, as a means of raising the necessary funds to finance these improvements, to issue and sell to members of the Club, and to make it a requirement of membership for future members, a 'Certificate of Membership’, for a price of $250.00 each, this price being payable either on time, or in cash, but in all events to be paid in full before the Certificate would be issued to the purchaser. A total of one hundred nine (109) Certificates were issued and sold, representing the classes of holders referred to above. Each Certificate carried a provision that it was issued subject to the Constitution and By-Laws of the Club and any changes which might later be made therein. That provision is worded as follows:

“ ‘This Certificate is purchased and held subject to all the terms, conditions and limitations contained in the charter, constitution and by-laws of the Gulf Fishing and Boating Club, Inc. Any changes, additions or amendments of said charter, constitution and by-laws hereafter made shall become and be a part of this Certificate of Membership and shall be binding on the holder of this certificate.’

“The Certificate also contains a specific provision that ‘In the event of dissolution of the Gulf Fishing and Boating Club, Inc., the assets of the corporation, after payment of all obligations shall be distributed among the members of the corporation holding Certificates of Membership on a pro rata basis.’ If therefore, in the final analysis, there is at the time of the dissolution of the Club, a conflict between these two quoted provisions of the Certificates, the Court must determine which provision shall prevail.

“At the time the Certificates of Membership were initiated, which from the evidence was around the year 1960, the ByLaws of the Club provided that upon dissolution of the Club, the net assets would be ‘equally divided among the active members of the Club in good standing at the time of dissolution’ which class was defined as active dues paying members. However, around the year 1971, the Club, which continued to have financial difficulties, entered into an agreement with the Elks Lodge in Mobile under which the Elks would operate and be in charge of the Club premises, and members of the Gulf Fishing and Boating Club would have to become members of the Elks in order to continue to have the use and enjoyment of the Club facilities. Thus the Club became practically inactive at that time, and the dues were reduced to the amount of $10.00 per year, and about the only activity of the Club for its members was the annual membership meeting. In 1973 the By-Laws as to membership were amended to provide for two categories of membership, one being ‘ACTIVE MEMBERS,’ this group being defined as those members who hold Certificates of Membership and are paying dues. The other category of members was ‘INACTIVE MEMBERS,’ which group was defined as those members holding Certificates of Membership but not paying dues. This classification gave membership status in good standing to all holders of Certificates, even though they were not paying dues. Then, in March of 1980 the Active Members of the Club amended the By-Laws by deleting completely the category ‘INACTIVE MEMBERS,’ and restricting membership only to those members holding Certificates who were currently paying dues. If this amendment to the By-Laws was permitted, it would have the effect of eliminating the membership status of the Inactive Members so that they could not qualify under the provision of the Certificate of Membership referred to above which provides that in the event of dissolution the assets of the corporation shall be distributed among the ‘Members of the Corporation’ holding Certificates of Membership on a pro rata basis. It is the contention of the defendants [i.e. appel-lees, 26 of whom made no appearance and 38 of whom are participating in this action] that this 1980 amendment of the By-Laws by the Active Members [i.e. appellants, 45 in number] who are the plaintiffs in this cause, was made with the deliberate intention of trying to deprive the Defendants of their vested right which they claim to possess as holders of Certificates of Membership to share in the assets of the corporation upon dissolution, and they contend that it amounted to a deprivation of their property rights without due process.

“In addition to the specific terms of the Certificate of Membership itself, the Court also heard evidence from numerous Certificate holders covering the circumstances surrounding their purchase of their Certificates, and representations made to them by the Club, or representatives of the Club, at the time they purchased their Certificates. The Court is convinced from the preponderance of the evidence that the holders of Certificates were given the impression by the Club that they were purchasing an ownership interest in the assets of the Club and that they would be entitled to share in those assets in the event the Club should ever be dissolved. In fact, there were several members who testified that they were purchasing their respective Certificates on a time payment plan, and when they decided to retire from active membership in the Club, they had not completed payment for their Certificates, and each of them testified that he completed the payment for his Certificate at the time he resigned from active membership in order to preserve his property rights under the Certificate, and each testified that the Club delivered his Certificate to him after he had in fact resigned from active membership. This action by the Club clearly indicated that the Club itself recognized the validity of the Certificate and the rights of a holder thereunder after the holder had become inactive in the Club.

“The Court takes note of the fact that, while there is ample evidence to show that Certificate holders generally were informed of their property rights in the Club by virtue of their purchase of the Certificate, there was no evidence offered that the Club also pointed out to purchasers of Certificates at the time of purchase that these property rights would be subject to any limiting provisions of the Constitution and/or By-Laws of the corporation or any amendments thereto. Some Certificate holders who were witnesses in the hearing, on examination testified that they knew or assumed that the Club had official ByLaws, but that they had never seen them, though they felt assured that they had a right to and would be permitted to see them if they had requested to do so.

“After the decision was made by the active members of the Club to dissolve the Corporation, the Club then decided to reimburse all holders of Certificates who were not then active dues paying members the initial cost of their respective Certificates, being the sum of $250.00, and request the surrender of the Certificate; and to this end, attempt was made by the Club to locate all Certificate holders in this category and the offer was made to them, informing them at the same time of the planned dissolution of the Club. Some of these Certificate holders accepted this offer and surrendered their Certificates, others declined. It is not known to the Court how many are in each of these categories; however, all those Defendants appearing through counsel, as well as counsel for the plaintiffs, have agreed that in the event the Court should rule that any of the Defendants be entitled to a share in the Club assets on dissolution, all Defendants, regardless of their individual status, and possible differences in the merits of their individual claims, should share equally with all other Defendants.”

“Having made the foregoing findings of fact from all of the evidence adduced at the hearing, the Court now proceeds to make findings of the law in the case as follows:

“1. The provision in the Corporation’s By-Laws which were in effect when the Certificates of Membership were initiated, which provided that only active members of the Club in good standing were entitled to share in the distribution of the assets of the Club upon dissolution, were inoperative and invalid as to those members of the Club who had purchased Certificates of Membership while that provision of the By-Laws was in effect but who had retired from active membership before the amendment of the By-Laws in 1973 which established a class of ‘Inactive Members’, for the reason that these holders of Certificates had purchased their Certificates under the impression and understanding given to them by the club that their ownership of the Certificate would entitle them to share in the assets of the Club upon its dissolution, without any mention or notice of the limiting factor in the By-Laws of the corporation in effect at that time which would strip them of this right upon their becoming inactive. The Court holds that the Club owed these Certificate holders the duty of notifying them that they stood to lose their property rights under this provision of the By-Laws if they became inactive, in order that they might protect and preserve their property rights, and by failing to give this notice the Corporation has forfeited any right to deprive these Certificate holders of their property rights under the expressed provision of the Certificate, and as represented to them upon their purchase thereof.

“2. The Court further finds that the amendment to the By-Laws in 1973 which established a new class of members called ‘INACTIVE MEMBERS’, which was defined in the amended By-Laws as those members holding Certificates of Membership but not paying dues, operated for the benefit of and included not only members of the Club who would resign from active membership after the enactment of this amendment, but also all of those Certificate holders who had resigned from active membership prior to the amendment establishing this inactive class of members, there being no difference between those who resigned prior to the amendment and those who resigned after the amendment insofar as their rights under the Certificate of Membership is concerned.

“3. The action of the active members of the corporation in attempting to amend the By-Laws in March of 1980 to completely eliminate the class of ‘Inactive Members’ was invalid and ineffective as to the rights of that class to share in the assets of the corporation upon dissolution under the provisions of their Certificates of Membership. The Court holds that this provision of the Certificate was a contract right which could not be divested by the unilateral action of the active members which action could clearly have no other purpose than to enrich themselves at the expense of the inactive members. Here again, the Court notes its observation in the findings of fact above that no notice was ever given to the Certificate holders of any provisions in the ByLaws which would limit, or even cut off, their property rights under their Certificate, whereas this property right was strongly presented to them in urging their purchase of the Certificate. Furthermore, the provision of the Certificate giving the holder the right to share in the assets of the Club upon dissolution, was explicit and without restriction, whereas the provision of the Certificate making it subject to the Constitution and By-Laws of the corporation and any amendments thereto was general in nature such as to require the corporation to inform holders of Certificates of any provision or amendment in the Constitution or By-Laws which would adversely affect this property right. This was not done. In these circumstances, therefore, the Court holds that the specific provision of the Certificate of Membership which gave to the holder the right to share in the assets of the Corporation upon dissolution override any provision in the Constitution or By-Laws of the corporation, or amendments thereto, which would limit, restrict, or eliminate this property right.

“4. It is the opinion of the Court, that with respect to the membership status of Mrs. Rose Mary Bender, the agreement between her late husband, Tom Bender, and the officials of the corporation granting him membership status without the necessity of purchasing a Certificate of Membership was invalid, for that there was no authority under the By-Laws covering requirements for membership which were in force at the time of the agreement, that would authorize this arrangement. However, since the late Mr. Bender did continue to pay his Club dues in reliance on this agreement throughout his life, and after his death his widow continued the payment of the said dues in similar reliance until the decision was made to dissolve the Club, equity would indicate that active membership status should be accorded to Mrs. Bender, and the Court so rules.

“5. However, the Court is cognizant of the equities involved in this proceeding, and is impressed with the fact that the Plaintiffs continued to stay with the Club and hold it together during the trying years from 1971 to the date of dissolution, even though the Club was practically inactive during that time, and in the opinion of the Court, equity requires that the Plaintiffs should receive a proportionately larger share as a class than the Defendants. It is the opinion of the Court and the Court so rules that the Plaintiffs, as a class, shall be entitled to and receive sixty-five (65%) percent of the total net assets of the Club upon final dissolution, and the Defendants, as a class, shall receive thirty-five (35%) percent of the said assets. The Court directs the attorneys for the Plaintiffs and for the Defendants, acting together, to determine the specific dollar amounts to which each individual in each class shall be entitled, and to make a written report thereof to the Register of this Court, who will, after the approval of the report by this Court, make distribution of the said funds in accord therewith.”

The decree went on to make detailed provision for the winding up of the Club’s affairs and the handling of the funds realized from sale of the Club’s assets.

Some additional factual background is the following. In September 1979 Hurricane Frederic destroyed the Club’s facilities. As a result the arrangement with the Elks was mutually cancelled, and in December of 1979 the Club’s board of directors appointed a “feasibility study committee” to consider the Club’s future. On June 8, 1980, the Club’s active members voted to adopt a plan of dissolution, calling for sale of the Club’s property and distribution of the proceeds to them in accordance with the by-laws. The Club then ceased to function except for a dissolution committee which notified the inactive members about their right to receive reimbursement for the purchase price of their certificates.

After post trial motions were denied on June 29,1982, appeals were filed, beginning with two separate notices of appeal on August 9,1982, by the Club and by five named active members. The latter claimed to appeal “individually and as representatives of all members of the Gulf Fishing and Boating Club, Inc., designated by the Circuit Court of Mobile County as ‘plaintiffs’.” The appellees, in addition to filing their own cross appeal, have moved to dismiss the appeals of the Club and the five named active members. We consider this matter before reaching the merits.

RIGHT TO APPEAL

The appellees seek dismissal of the Club’s appeal on the ground of untimeliness. They seek dismissal of the other appeal on the ground that the five named active members were never certified as class representatives under Rule 23, A.R. Civ.P., and failed to give notice of their appeal to the remaining 40 active members. We agree with the appellees that these five named individuals never appeared separately below, never obtained representative status pursuant to a Rule 23 class action certification, and accordingly have no standing to appeal. This conclusion, however, has no real effect, because we also conclude that the appeal by the Club is timely. Since the Club nas argued the position of the active members throughout this litigation, dismissal of the appeal of the five named active members does not affect their right.

The appellees contend that the Club’s appeal cannot be timely because the Club ceased to exist on January 26, 1981, when the order of dissolution was entered. In our view the Club must be deemed to continue in existence beyond the date of the order of dissolution for purposes of this litigation. The language of the trial court’s decrees and the actions of the parties in pursuing the litigation in the Club’s name in order to resolve the problem of distributing its assets are consistent with this view. Moreover, even if the order of dissolution ended the existence of the Club for some purposes, under Code of 1975, § 10-3-172, we have no authority to allow the formal event of dissolution to affect the substantial rights of the parties in the manner urged by the appellees. This statute provides:

“The dissolution of a corporation shall not take away or impair any remedy available to or against such corporation, its directors, officers or members for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The members, directors and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right or claim. If such corporation was dissolved by the expiration of its period of duration, such corporation may amend its articles of incorporation at any time during such period of two years so as to extend its period of duration.”

See generally H. Oleck, Nonprofit Corporations, Organizations and Associations, ch. 42 (4th ed. 1980). Since the appellees have throughout asserted their claims against the active members by participating in litigation with the Club as the adverse party, we see no reason why the litigation should not be concluded on the same basis.

ARGUMENT OF ACTIVE MEMBERS

The trial court held — apparently as a matter of law — that the certificates of membership gave the inactive club members a vested “contract right” or “property right” to receive a pro rata share of the assets on dissolution and that these certificates overrode any other corporate documents limiting this right. The trial court also found as fact that the Club representatives “gave the impression” to purchasers that the certificates represented an entitlement to share in the assets of the Club upon its dissolution and further that subsequent actions by the Club ratified this impression. The active members dispute both the factual and legal conclusions.

First, the active members argue that the 1958 articles of incorporation, the certificates, and every version of the corporate by-laws by their terms all preclude the inactive members from sharing in the distribution of assets. On this view no conflict exists between the certificates and subsequent by-laws, with the result that no deprivation of vested rights could have occurred. The active members’ contention seems to be two-fold: (1) that since the certificates were expressly made subject to later amendments in the corporate charter and by-laws, no vested right could have accrued, and (2) that the inactive members cannot be considered to come within the meaning of the certificate provision referring to “members of the corporation holding certificates of membership.” (Emphasis added.) This second point is supported by the fact that both the 1973 and 1980 versions of the corporate by-laws provide “that any member failing to pay dues or bills within 60 days after they become due shall be automatically dropped from membership.” The inactive members had not paid dues and thus were arguably not members.

We cannot accept these contentions. First, the certificates purport to certify “membership”; no indication is given that this primary aspect of the certificates could be later voided by amendments to other corporate documents. In addition, the 1973 and 1980 by-laws do not specifically purport to nullify the certificates as proof of membership in some form. Thus, the term “members” in the certificate must be equated with “certificate holders.” The question then becomes whether the certificate provision giving “members of the corporation holding certificates of membership” a claim to distribution on a pro rata basis is affected by the earlier provision making the certificate subject to the corporate charter and by-laws as amended.

Corporate documents such as bylaws and membership certificates are equivalent to contracts among the members of the organization. H. deck, supra, at 985. Accordingly, normal rules of construction for contracts apply. The initial question is to determine, as a matter of law, whether the contract is ambiguous. Extrinsic evidence may be considered to resolve a latent ambiguity arising from some collateral matter outside the writing. If the contract is not ambiguous, then its interpretation is a matter of law for the court to determine without reference to extrinsic evidence. If the court instead finds the contract to be ambiguous, then its interpretation is a question of fact, and extrinsic evidence may be considered. Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932 (Ala.1983). If extrinsic evidence of surrounding circumstances does not clarify the ambiguities, then the contract must be construed against the party who drafted it. Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Ins. Co., 347 So.2d 95, 99 (Ala.1977). In the present case that party is the Club.

In our view the terms of the certificate and by-laws are ambiguous when read together. As noted by the trial court, the provision regarding distribution of assets is more specific than the general provision making the certificate subject to later amendments. It seems illogical to allow a later by-law amendment to nullify the one aspect of Club membership that was specifically stated in the certificates.

The first piece of extrinsic evidence that should be consulted in such a case is the 1958 articles of incorporation, to which the certificates and by-laws must conform. In relevant part, these provide:

“ARTICLE IV — MEMBERSHIP
“The classes of members in the Corporation and the qualification and method of selecting of which shall be set out in the By-Laws of the Corporation.
“ARTICLE V — GOVERNMENT
“(b) By-Laws. The members of the Corporation may adopt such By-Laws as they shall deem desirable and may amend the same from time to time as provided in said By-Laws, provided that said ByLaws are not inconsistent with these Articles of Re-incorporation or with the laws of the State of Alabama.
“ARTICLE IX — DISSOLUTION
“Upon any dissolution or final liquidation of the Corporation, distribution of the net assets of the Corporation remaining after payment of all the debts and obligations of the Corporation shall be made to the members of the Corporation then in good standing per capita, provided that no part of the net earnings thereof shall enure to any individual member.” (Emphasis added.)

The articles of incorporation do not answer the question posed above, since “in good standing” is not defined and it is left to the by-laws to set out the qualifications for members. Also relevant is the 1960 corporate resolution authorizing the certificates. This resolution provides in part:

“Be it further resolved that this corporation issue to members of this club who may purchase the same non-interest bearing debentures or preferred certificates upon payment for each certificate of the sum of $250.00 payment therefor to be made at such time and such manner as the Board may direct. Such certificate may be negotiated. All proceeds of each such debenture or partial payments therefor shall constitute a trust fund when received to be applied to a reduction of the principal and interest on the $30,000.00 loan referred to above. Holders of such debentures shall not by virtue thereof have any lien or mortgage on the properties of the corporation but shall, in event of liquidation of the properties, be preferred in payment from such proceeds in the liquidation to the end that such holders shall be paid the amount of debentures owned by them before there is any distribution among share holders or members of the assets in liquidation.
“Be it further resolved that to carry out the spirit and interest of this resolution the Board is empowered to provide all forms and terms to be incorporated into the debenture or preferred certificates and that the amount of such debenture offered or sold shall be unlimited. Any excess received above the amounts necessary to discharge the $30,000.00 loan may be used at any time for further capital improvements of the club properties.”

The last sentence of the first paragraph quoted appears to support the active members’ view in that a distinction is made between certificate holders who are “paid the amount of debentures owned by them” and “share holders or members” receiving the assets in liquidation. However, this resolution appears to have been loosely drafted. Its reference to shareholders is inconsistent with Code of 1975, § 10-3-125, which provides that a nonprofit corporation “shall not have nor issue shares of stock.” In addition, the resolution authorizes the board of directors to provide specific “forms and terms” for carrying out “the spirit and interest of this resolution.” In view of these facts, we do not see the resolution as a useful indicator of the meaning of the certificates.

It is next appropriate to consider the successive by-laws for indications of what parts of the certificate were meant to be subject to change. The by-laws of 1958, 1961, 1965 and 1973 all require distribution to “active members in good standing at the time of dissolution.” All versions of the by-laws prior to the arrangement with the Elks in 1970 defined active members as those who are approved for membership by the board of directors and pay the initiation fee.

After the Club entered into its arrangement with the Elks in 1970, the by-laws were amended in 1973 to provide for membership as follows:

“2.1 CLASSES. Membership in the Club shall consist of and include the following classes: active and inactive. All members shall be holders of Certificates of Membership.
“2.2 ACTIVE MEMBERS. Active members are ones who are in ‘good standing’ and who have purchased or are purchasing a Certificate of Membership (Debentures) as of September 18, 1970).
“2.3 INACTIVE MEMBERS. Inactive members are ones who have a paid-up Certificate of Membership but are no longer active in the Club as of September 18, 1970.
“2.4 TERMINATION OF MEMBERSHIP. The membership of any person may be terminated in either of the following ways:
“(a) Non-payment of dues and bills. Any member who fails to pay his indebtedness to the Club within sixty (60) days after the same becomes due shall be automatically dropped from membership.
“(b) For Cause... .
“(c) Discontinuation of Membership. Any member of the Club wishing to discontinue his membership will submit a letter of resignation to the Board.”

The 1973 by-laws make clear that, notwithstanding the provision for automatic termination of “membership” for nonpayment of dues, membership in the Club, active or otherwise, could be continued without payment of dues (as the trial court recognized). These by-laws for the first time refer to certificate holders, which are equated with members. Since none of the earlier by-laws had been amended to refer to the certificates and none had made a distinction between active and inactive members, it is arguable that the 1973 bylaws were simply intended to state the Club members’ understanding of their status ever since the certificates were issued. It is also possible that the 1973 by-laws were intended to redefine their status to reflect the fact that some could not be active members of the Elks Club. It is not clear from the trial court’s decree whether it viewed the 1973 by-laws as reflecting such an intent. In either case, these by-laws contain an internal contradiction when read with the certificates. Article 2.1 (defining membership) of the 1973 by-laws taken together with the certificate (giving distribution rights to all members) is inconsistent with Article 5.4 of those by-laws which limits distribution of the assets to “the active members of the Club in good standing at the time of dissolution.” If the latter provision is to control, then the active members are correct in arguing that the 1980 by-laws did not alter in any manner the distribution rights of the members by eliminating the inactive classification. Article 2.1 of the 1980 by-laws states: “Membership in the Club shall consist of those active members paying dues as prescribed, in ‘good standing’ and who have purchased, or are purchasing a Certificate of Membership (Debenture) as of September 18,1970.” Article 5.4 of the 1980 by-laws provides that the assets of the Club “shall be equally divided among the members of the Club at the time of dissolution.”

The trial court, in finding that the 1973 by-laws equated active and inactive members, protecting the distribution rights of both, made no mention of the provision in those by-laws specifically allowing distribution only to active members. As a result, the trial court saw the 1980 by-laws as departing from the terms of the 1973 bylaws. If, however, the active members are correct in arguing that both the 1973 and 1980 by-laws restricted distribution to the active members, then the validity of those by-laws depends on how we resolve the ambiguity noted above: whether the certificate provision regarding distribution is to be independent of amendments to the bylaws. Because none of the language discussed above resolves this ambiguity it is necessary to consider the trial court’s factual findings.

The trial court found that representations were made to the certificate holders, leading them to believe that their claim to the assets on dissolution was indefeasible. The active members argue that the only testimony upon which such a conclusion could be based should have been excluded under the Dead Man’s Statute, Code of 1975, § 12-21-163. We find it unnecessary to consider the effect of this statute, because, assuming the testimony in question should have been excluded, the trial court had sufficient evidence upon which it could have based its conclusion. Specifically, the fact that Club members received certificates after retiring from active membership and then completing payment for their certificates, reveals a shared understanding that inactive members were to receive something more than reimbursement for the purchase price of certificates. This evidence is sufficient to resolve the ambiguity discussed above and show that the certificates were intended to create a right in all of the members to receive a pro rata share of the assets.

Since such a right existed, the amendments to the by-laws were subject to scrutiny to determine whether they improperly divested the inactive members of their claims. The traditional approach to this problem in the law of corporations is to determine whether such claims are “vested rights,” in which case they may not be altered. In the context of business corporations, it has been said:

“The ‘vested rights’ terminology has been attacked as being confusing and meaningless....
“The Model [Business Corporation] Act swept away the vested rights doctrine by providing in detail what amendments a corporation can make to its articles....
“However, even with the decline of the ‘vested rights’ approach, the courts have not held that a member of a corporation can be deprived, by amendment, of all rights created in the articles or by-laws. No definitive terminology has been developed. The courts and the writers have turned to the more indefinite tests of ‘fairness’, ‘good faith,’ ‘reasonableness,’ and lack of ‘constructive fraud.’ ...
“For example, in Topkis, Ex’r. v. Delaware Hardware Co., 23 Del.Ch. 125, 2 A.2d 114, 119 (1938), [involving the elimination of voting rights by amending the articles of incorporation] the Court of Chancery upheld the amendment:
“ ‘ * * * The question in such cases is whether the supposed advantage which the exercise of the power is said to intend to secure, is one that a court of equity would pronounce to be unfair to others who are affected thereby. Where as here the exercise of the power is one that is designed to change voting rights as allowed by the statute and the change is not aimed to accomplish an ulterior purpose beyond itself that can be denominated as inequitable, no ground exists for interference. * * * ’ 23 Del.Ch. at 135, 2 A.2d at 119.”

Dentel v. Fidelity Savings & Loan Assn., 273 Or. 31, 539 P.2d 649 (1975). It is clear that the trial court did find as a fact that the active members had an ulterior purpose that can be denominated as inequitable. Under the standard applied in the Dentei case, such a finding provides a basis for invalidating the amendments to the by-laws that affect the rights of the certificate holders to receive a pro rata distribution of assets.

We recognize that members or shareholders of a corporation are deemed to have constructive notice of the corporate by-laws and amendments to them, especially in a case such as this one where membership certificates specifically referred to bylaws as amended. See Supreme Commandery of the Knights of the Golden Rule v. Ainsworth, 71 Ala. 436 (1882); H. deck, supra, at 408; Mobile Press Register, Inc. v. McGowin, 271 Ala. 414, 124 So.2d 812 (1960). It is especially true, however, as noted above, that by-laws are traditionally subject to scrutiny under a standard of protecting vested rights or preventing unfairness. In modern corporation law such scrutiny is quite limited, because courts are reluctant to create doctrines that could interfere with the flexibility needed by commercial corporations to adjust to changing business conditions and needs. However, this reason for limited judicial scrutiny is inapplicable here, because cutting off the claims of the inactive members in no way serves the needs of a non-profit corporation that is going out of existence.

Moreover, a distinction can be made between by-laws that “are mere regulations governing the conduct of the internal affairs of the corporation,” and those “in the nature of a contract which are evidently designed to vest property rights inter se among all stockholders.” Bechtold v. Coleman Realty Co., 367 Pa. 208, 79 A.2d 661, 663 (1951). A general reservation of the power to amend is more naturally applied to the former class of by-laws and should be narrowly construed to avoid making “the contract subject to change in any essential particular at the election of one in whose favor the reservation is made.” Ayers v. Grand Lodge A.O.U.W. State of New York, 188 N.Y. 280, 80 N.E. 1020, 1021 (1907). See generally 8 W. Fletcher, Cyclopedia of the Law of Private Corporations, § 4177 at 622-23 (rev. perm. ed. 1982). This reasoning is applicable in the present context.

ARGUMENT OF INACTIVE MEMBERS

Although the trial court properly construed the certificates and by-laws for the reasons discussed above, it then departed from the provision it upheld by allocating only 35% of the proceeds to the inactive members instead of a pro rata share. We see no justification for this result. As discussed above, each certificate is a contract. The trial court had authority to construe the contracts but not to rewrite them on the basis of “the equities involved in this proceeding.” The parties discuss the circumstances of several individual members to argue that the result reached by the trial court was in fact inequitable. We do not consider these individual circumstances, because we have no authority to depart from the terms of the “contracts” as we have construed them.

MRS. ROSEMARY BENDER

The trial court found that Mrs. Bender was the widow of Tom Bender, who had paid membership dues until his death, after which she continued to pay dues under a widow’s membership privilege in the Club. Neither Mr. Bender nor Mrs. Bender had ever been required to purchase a certificate of membership. The trial court found this arrangement invalid because it was unauthorized under the by-laws. However, because Mr. and Mrs. Bender had relied upon the validity of the arrangement and had always paid their dues, the trial court concluded that “equity would indicate that active membership status should be accorded to Mrs. Bender and the Court so rules.” Mrs. Bender separately appealed and argues that the other active members should be estopped from denying her claim to active membership status. She asks that the trial court’s judgment be reversed insofar as it holds that the Club’s waiver was invalid and affirmed in its holding that she is entitled to share in the sale proceeds on the same basis as the other active members.

We agree with the conclusion of the trial court for a somewhat different reason. It is undisputed that the board of directors originally waived the certificate requirement in recognition of the fact that Mr. Bender had spent his own funds for improvement of a marina facility he was leaving to the Club. Thus, Mr. Bender did in fact supply the consideration required by the 1960 resolution, and all that the board did in effect was to dispense with the paper work of issuing the certificate. This substantial compliance with the corporate requirements, in combination with the subsequent actions by both the Benders and the Club, estops the Club from now denying Mrs. Bender’s membership. Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978). Those subsequent actions included the payment of dues, participation in Club affairs by the Benders, and the Club’s consistent treatment of them as members.

For the above reasons the judgment is affirmed in part and reversed in part, and the case remanded for further proceedings in accord with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.

      . The 1958, 1961 and 1965 by-laws contain the following provision regarding membership:
      “2.1 Classes. Membership in the Club shall consist of and include the following classes: (a) active, (b) associate, and (c) non-resident.
      “2.2 Active Member. Any person who (a) shall be approved for membership by the Board of Directors and (b) shall pay the initiation fee for new members as provided by the Board of Directors shall be known as an active member and shall be entitled to all the rights and privileges to which an active member is entitled as prescribed herein; provided, however, that at no time shall the active members of the Club exceed four-hundred (400) in number. Any wife or husband of a deceased active member in good standing at his or her death can become an active member upon notice without the payment of an initiation fee.
      “2.3 Associate Member. Any person who is the wife or husband or minor child of an active or non-resident member shall be known as an associate member and shall be entitled to all the rights and privileges of membership except the right to vote and to hold office in the Club.
      “2.4 Non-Resident Member. Any person (1) who qualifies as an active member and (2) who lives in an area as determined from time to time by the Board or the membership shall be known as a non-resident member and shall be entitled to all the rights and privileges of membership except the right to vote and to hold office in the Club.
      “2.5 Termination of Membership. The membership of any person may be terminated in either of the following ways:
      “(a) Non-payment of dues and bills. Any member who fails to pay his dues or indebtedness to the Club within sixty (60) days after the same becomes due shall be automatically dropped from membership. Any person whose membership has been terminated for reason of failure to pay his dues or indebtedness to the Club as provided herein may be re-instated only with the approval of the Board....
      “(b) For cause. ...”


author: FAULKNER, Justice.

text:
    Ex parte Daniel P. O’LEARY. (Re Daniel P. O’Leary v. State of Alabama).
    82-549.
    Supreme Court of Alabama.
    July 8, 1983.
    See also 417 So.2d 232.
    W. Kenneth Gibson, Fairhope, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   FAULKNER, Justice.

O’Leary was convicted on a charge of possession of marijuana in the Circuit Court of Baldwin County on July 31, 1978, and sentenced to 15 years in the state penitentiary. The Court of Criminal Appeals of Alabama reversed and remanded for a new trial by holding that O’Leary was never arraigned on the charge for which he was indicted and convicted. O’Leary v. State, 417 So.2d 214 (Ala.Cr.App.1980). This court granted the State’s petition for writ of cer-tiorari and reversed the judgment of the Court of Criminal Appeals. This court held that there was sufficient evidence to support the trial court’s finding that O’Leary was arraigned. On remand, the Court of Criminal Appeals proceeded to review all issues presented on appeal other than the arraignment issue, O’Leary v. State, 417 So.2d 219 (Ala.Cr.App.1981), and decided those issues adversely to O’Leary and affirmed his conviction. Again, this court granted a petition for writ of certiorari to the Court of Criminal Appeals, O’Leary v. State, 417 So.2d 232 (Ala.1982), and affirmed.

This case is here on certiorari following later proceedings. The principal issue in this review that was discussed by this court in the last review is O’Leary’s contention that the Court of Criminal Appeals erred when it did not reverse the trial court’s ruling denying his motion for new trial based on false answers given by the jury foreman during the voir dire examination of prospective jurors. This was Justice Em-bry’s answer upon our earlier consideration of the issue:

“This issue was not addressed in the opinion of the Court of Criminal Appeals, although petitioner had argued it in his brief to that court. The issue was properly brought before this court, however, by petitioner’s additional or corrected statement of facts pursuant to ARAP 39(k). Bankston v. State, 358 So.2d 1040 (Ala.1978).

“During the voir dire examination, defendant’s attorney asked each juror about his or her jury duty experience, to which Mr. Morgan Odom, eventually selected as foreman of the jury, responded:

“ T was summoned twice, but never served.’

“Several months after defendant’s conviction, a question arose as to whether defendant had been properly arraigned for trial. In connection with the arraignment issue, defendant filed a motion to correct or modify the record. At a hearing on that motion, several witnesses, including Odom, were called to testify concerning the events which transpired on the morning of the arraignment.

“After specifically testifying that he had served on the jury for the defendant’s trial in July of 1978, Odom was cross-examined by defendant’s attorney, during which the following exchanges occurred.

“ ‘Q Mr. Odom, how many times have you been on a jury?

“ ‘A About four times to the best of my knowledge.

“ ‘Q How many times have you been on a criminal jury like the one in July last year?

“ ‘A I was on the July one last year, and I was on the marijuana one of the year before that.

“ ‘Q And that would have been in 1977?

“ ‘A Yes, sir.

“ ‘Q Do you recall anything else happening that morning?

“ ‘A Mostly routine. It was kind of a funny way of striking a jury. I just never seen one struck like that.

“ ‘All the questions that were asked. This and that, trying to prolong the court, looked to me like that.

“ ‘Q Do you remember anything about me saying something about wanting a continuance and one of my partners was in Washington at the United States Supreme court asking for a continuance?

“ ‘A You asked for a continuance or you heard from one and you didn’t get it, so they all prolonged waiting on your call or something.

“ ‘All these questions that lasted half a day, to me it seemed like it was just prolonging the trial and stalling for time. That’s my personal opinion.

“ ‘Q Were you the foreman of the jury?

“ ‘A Yes, sir.

“ ‘Q How many times have you been foreman of a jury?

“ ‘That’s the second time I have been foreman.’

“Although defendant’s attorney did not ascertain, by his questions, whether the four occasions of Odom’s jury service occurred prior to or after the trial of defendant in this case, it is evident from the quoted responses of Odom that he had served on a jury at least once prior to defendant’s conviction and, significantly, in a ‘marijuana case.’ It is further made clear that defendant’s trial was the second occasion on which Odom had served as jury foreman.

“Parties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes. Coalite, Inc. v. Weeks, 284 Ala. 219, 224 So.2d 251 (1969); Little v. State, 339 So.2d 1071 (Ala.Cr.App.1976), cert. denied, 339 So.2d 1073 (Ala.1976).

“However, ‘the failure of a juror to make a proper response to a question regarding his qualifications to serve as a juror, regardless of the situation or circumstances, does not automatically entitle one to a new trial.’ Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.1979); Radney v. State, 342 So.2d 942 (Ala.Cr.App.1976), cert. denied, 342 So.2d 947 (Ala.1976).

“Some cases have held that ‘[t]he proper inquiry in such cases is whether the defendant’s rights were prejudiced by such failure to respond properly.’ Radney, supra; Sheperd v. State, 57 Ala.App. 35, 325 So.2d 551 (1975). To be more correct, however, ‘[t]he test is not whether the defendant was prejudiced but whether he might have been.’ Beauregard v. State, supra.

“It is axiomatic, however, that a party seeking reversal on appeal must not only argue a valid ground of reversible error committed below, but must also have preserved that error for review by proper procedural mechanisms.

“At the trial level, defendant raised the discrepancy in Odom’s answers by way of an oral renewal, based on newly discovered evidence, of his earlier written motion for new trial. The oral renewal was made more than 30 days after judgment was entered on defendant’s conviction, even though the original motion for new trial was filed within 30 days of conviction.

“The 30-day statutory period for filing a motion for new trial is jurisdictional. Code 1975, § 15-17-5, Nikens v. State, 31 Ala. App. 297, 15 So.2d 633 (1943).

“Where a motion for new trial filed within 30 days of a judgment of conviction does not contain a ground relative to newly discovered evidence, a defendant is not in a position to make an assertion regarding newly discovered evidence by motion for new trial after expiration of the 30-day period, even though the new evidence could not have been discovered until after that time period had elapsed. The trial court therefore acted correctly in denying defendant’s motion for new trial as orally renewed. It is apparent this is the reason the appellate court did not address this issue. The oral motion to renew was both ineffective and, more importantly, too late.”

Following our decision in O’Leary v. State, 417 So.2d 232 (Ala.1982), O’Leary filed a petition for writ of error coram nobis and raised the question of false answers given by the jury foreman during the voir dire examination. The trial court, after a hearing, denied the petition. Its order was affirmed by the Court of Criminal Appeals, 428 So.2d 1379, without opinion, and that appellate court later overruled the application for rehearing. O’Leary sought review by filing his petition for writ of certiorari to the Court of Criminal Appeals. We have granted the writ.

The voir dire examination question was discussed by Justice Maddox in Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982). He wrote:

“One of the central issues in this case concerns the failure of five jurors to respond to questions submitted by appellant’s counsel and asked by the trial judge during the voir dire examination of the jury venire. Counsel for Burroughs contends that because the prospective jurors failed to answer the questions, appellant was unable to utilize its jury strikes effectively and was, therefore, prejudiced and is entitled to a new trial. Burroughs relies on the case of Ex parte Ledbetter, 404 So.2d 731 (Ala.1981), wherein this Court reversed both the Court of Criminal Appeals and the trial court and held that the trial court erred in not granting a new trial. In that decision, this Court stated that on the issue of whether the petitioner was prejudiced by a juror’s failure to respond to a question during voir dire, the ‘test is whether the petitioner might have been, not whether he actually was prejudiced.’ Id. at 733.
“The earlier case of Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970), did not address the effect of an improper answer or failure to answer questions on voir dire which had they been answered properly would have disclosed a challenge for cause. 286 Ala. at 167, 238 So.2d 330. Rather, Freeman established the standard to which this Court must adhere in reviewing the trial court in those circumstances. Quoting from Freeman:
“ ‘We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. This appears to be the general rule throughout the country....’”

This court, by adhering to the standard established in Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (Ala.1970), held that the trial judge did not abuse his discretion by denying a motion for new trial based on answers given by the prospective jurors during the voir dire examination.

In this case we follow the Freeman standard and opine that the false answers given by Odom resulted in probable prejudice to O’Leary. His answer to questions during the voir dire examination, along with his answers regarding jury service given at the motion to correct and modify the record in connection with the arraignment issue, are noted above in this opinion. Additionally, one of the grounds in the coram nobis petition was that Odom testified in a previous hearing that he observed O’Leary’s arraignment from the back of the courtroom. Subsequently, he became foreman of the jury that convicted O’Leary.

We hold that O’Leary is entitled to the writ of error coram nobis. The judgment of the Court of Criminal Appeals is reversed; and the case is remanded to that court for it to issue its order directing the trial court to grant the coram nobis writ.

REVERSED AND REMANDED WITH DIRECTIONS.

TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: PER CURIAM.

text:
    Daniel P. O’LEARY v. STATE.
    1 Div. 541.
    Alabama Court of Criminal Appeals.
    Aug. 16, 1983.
   PER CURIAM.

REVERSED AND REMANDED WITH DIRECTIONS ON AUTHORITY OF Ex parte O’Leary, ALABAMA SUPREME COURT, 438 So.2d 1372 (1983).

All the Judges concur.