source: Caselaw Access Project

author: ROBERTSON, Justice, for the Court: ROY NOBLE LEE, Presiding Justice, HAWKINS, Justice, BOWLING, Justice,

license: Public Domain

text:
    James Vincent MOFFETT v. STATE of Mississippi.
    No. 55052.
    Supreme Court of Mississippi.
    Aug. 22, 1984.

      J.W. Miller, Biloxi, David Seth Michaels, New York City, for appellant.
    Edwin Lloyd Pittman, Atty. Gen., William S. Boyd and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Jackson, for appellee.
   ROBERTSON, Justice, for the Court:

I.

On the evening of December 27, 1980, a white, female, self-service gas station attendant was robbed, shot and killed while on the job in Gulfport, Mississippi. Two days later James Vincent Moffett was arrested on an unrelated charge, but in due course thereafter was indicted on the charge of capital murder arising out of this incident. Trial saw a Harrison County jury on July 15, 1981 find Moffett guilty of capital murder and sentence him to death. Moffett appeals his conviction and sentence.

The primary questions before us today arise out of the manner in which the trial judge allowed the State to handle its witness, Garland Mose Johnson, at trial. First, the trial judge erroneously allowed the State to cross-examine its own witness and subsequently to impeach him with an inconsistent, prior, unsworn, out-of-court statement. Second, the trial judge erroneously allowed the State to have the statement admitted as evidence, whereupon the prosecuting attorneys proceeded to argue to the jury that it should be used to find guilt. We reverse.

II.

On the evening of December 27, 1980, Helen Allen was working her job at the Coastal Energy Station in Gulfport. This establishment is self-service gas station comprised of gasoline pumps and a small booth for the cashier. Helen Allen was the cashier in the booth.

The evidence reflects that at approximately 10:00 p.m. that evening, someone came up to the booth where Helen Allen was working, fired one gunshot through the plexi-glass wall of the booth into the head of Helen Allen and thereby killed her.

Shortly thereafter, Barbara Tenneson, who lived in an apartment complex nearby, came to the service station to buy a pack of cigarettes. She could not see the attendant. Along with an unidentified man who was waiting to buy gasoline, Mrs. Tenne-son waited for the attendant to appear. In a little while, the would-be gas purchaser gave up and left. About the same time, Mrs. Tenneson’s husband came to the service station and both of them looked around. When they could not find the attendant, Mr. Tenneson thought something must be wrong and the police were called. After about thirty minutes from when Mrs. Tenneson first came to the gasoline station, she and her husband discovered Helen Allen’s body on the floor in the Cashier’s booth. Mrs. Tenneson testified that the cash register was wide open with no money in it.

Police officer Charles Rogers testified that he was not sure if the cash register had any money in it but that there was money on the counter — how much he did not know. Detective Ernest R. Cook of the Gulfport Police Department testified there were several stacks of currency on the counter and that the drawer of the cash register had money in it. There was no usable fingerprint evidence at the crime scene. There were no ballistics reports admitted as evidence in this ease.

III.

The most damaging evidence adduced against Moffett at his trial came through the witness Garland Mose Johnson, said to be Moffett’s half-brother. Without the introduction into evidence of the transcription of an interview with Johnson had by law enforcement authorities on March 2, 1981, the case against Moffett would have been weak to say the least. Hence the dispositive issues on this appeal surround the Johnson testimony.

Johnson was arrested on December 29, 1980, several hours before Moffett’s arrest. Johnson’s arrest was on charges unrelated to the capital murder with which we are here concerned. Johnson remained in custody in Harrison County continuously from December 29, 1980 until Moffett’s trial in July of 1981.

On March 2, 1981 Johnson was interviewed by Detective Cook. Sitting in as a witness was Detective Parham Bridges. The interview was video taped.

The substance of the interview was Johnson’s statement to the effect that at about 10:00 or 10:30 on the evening of December 27, 1980, he and Moffett drove to and parked in the area of an apartment complex known as Medallion Apartments. Moffett was driving the car. Johnson says Moffett left, although he (Johnson) did not know where Moffett was going. Johnson slid over into the driver’s seat and turned the radio on low. Minutes later Johnson says he heard a gunshot. “All of a sudden I see him [Moffett] come running back to the car. So he jumps in and says ... let’s go to north Gulfport.”

Because the Medallion Apartments are located only a stone’s throw from the self-service gas station and because Johnson’s statement refers to the incident as having occurred shortly after ten o’clock on the evening of December 27, 1980, this statement substantially implicates Moffett in the robbery and murder. The State assumed that it had a reliable witness who would place Moffett at the scene of the crime at or about the time of the crime.

On June 30, 1981, Moffett’s attorneys interviewed Johnson. At that time Johnson said that he knew nothing about the robbery or murder, that on the evening in question he had been with Moffett, and that neither he nor Moffett went any where near the Medallion Apartments or the self-service gas station. Johnson told Moffett’s attorneys that he had given the police the statement of March 2, 1981, but that what he had said at that time was untrue.

On Friday, July 10, 1981, the attorneys for Moffett again interviewed Johnson. At this time Johnson was still in custody and had several charges pending against him unrelated to the capital murder with which we are here concerned. The record also reflects that there was at the time pending against Johnson a charge of accessory after the fact to the capital murder of Helen Allen. At that time Johnson was represented by counsel, and the interview was conducted with the advice and consent of Johnson’s counsel. The interview was tape recorded although not video taped.

In this July 10, 1981 interview, Johnson insisted again that he knew nothing of the December 27, 1980, shooting and corroborated Moffett’s alibi as he had indicated he would do earlier. He again explained that he gave the March 2, 1981 statement without the advice of counsel and because he was scared. He says he was afraid he was going to be charged with the Allen murder and this is the reason he decided to point the finger at his half-brother, James Vincent Moffett.

The capital murder trial of James Vincent Moffett was scheduled to begin in Circuit Court in Gulfport on the morning of July 13, 1981. At approximately 9:00 that morning, defense attorneys advised the district attorney what Johnson’s testimony would be. In anticipation of the State’s calling Johnson as a part of its ease in chief, the defense requested of the trial judge a preliminary ruling that the State be precluded from pleading surprise and, more specifically, that the State be precluded from treating Johnson as an adverse witness and thus subjecting him to leading questions on cross-examination. The trial judge held that the matter was premature until such time as Johnson actually took the stand.

The next day, July 14, 1981, Garland Mose Johnson was called by the State as its first witness following the noon lunch recess. The defense again sought a preliminary ruling regarding the manner in which these prosecuting attorneys could examine Johnson, and again the trial judge held that the matter was premature.

On direct examination, Johnson then testified under oath that on the evening of December 27, 1980 he was at the apartment of Kimberly Butler, that he received a call from Moffett at about 10:30 or so, that Moffett asked Johnson to come pick him up, that Johnson borrowed a car from a next-door neighbor and drove to Sally’s Bar in north Gulfport to pick up Moffett, that Moffett made a phone call to his girl friend and later wife, and that Johnson then took Moffett home.

Once it became apparent that this was what — and all — Johnson was going to say happened on the evening of December 27, 1980, the prosecuting attorney began inquiring about the video-taped interview of March 2, 1981. Johnson admitted that he had made the March 2, 1981 statement, admitted that what he said at the time was quite different from his in-court, under-oath testimony of July 14, 1981, and stated unequivocally that everything he had said on March 2, 1981 to law enforcement authorities was untrue.

At this point the prosecution pleaded surprise and sought the right to cross-examine Johnson. The defense objected, insisting that the State had called Johnson as its witness, that the State therefore vouched for his credibility, was precluded from asking him leading questions on cross-examination, and certainly could not impeach him. Defense counsel further insisted that the State was not in fact surprised, that the State knew as early as 9:00 on the preceding morning what Johnson’s testimony would be, and that the State put Johnson on the witness' stand knowing full well how he would testify.

An extensive in camera hearing followed, during the course of which the trial judge viewed in its entirety the video tape of the March 2, 1981 interview and listened to the audio tape of the July 10, 1981 interview. The trial judge ruled that the State was surprised and would be allowed to cross-examine and impeach the witness.

The prosecuting attorney then commenced a searing cross-examination of Johnson regarding the March 2, 1981 statement. Again, Johnson admitted that he made the statement, insisted that its contents were untrue, and reiterated that he made the statement because he was afraid that he would be charged with the murder. At no time did Johnson either deny having made the March 2, 1981 statement or admit under oath that any of its contents were true.

At the conclusion of the cross-examination, the State offered into evidence a five-page typed, transcript of the March 2, 1981 interview. The defense objected, urging that the statement could be used only to impeach the witness’ general credibility and not as substantive evidence. The prosecuting attorney seemed to concede the point stating:

Judge, for the purposes of, I’m not attempting to use this as substantive law [evidence (?)] because I think we’ve already made out a prima facie case with the testimony of Kimberly Butler. You know, I think I can, without his testimony, you know, in other words, without his testimony, I can get the jury.

The trial judge withheld the statement from the jury at that time. Subsequently, the statement was received into evidence and the State did in fact rely heavily on the statement as substantive evidence particularly in its final argument to the jury.

IV.

In this context, we are presented on this appeal with two distinct though interrelated questions:

(1) On these facts, was the State “surprised” so that it was entitled (a) to ask Johnson leading questions and (b) to impeach Johnson’s credibility?

(2) Assuming arguendo an affirmative answer to these questions, was the State entitled to have received into evidence the unsworn, out-of-court statement made by Johnson four and one-half months prior to trial?

A.

At common law a party was prohibited from impeaching his own witness. This has been the general rule in Mississippi. Moore v. Chicago, St. Louis & New Orleans R.R. Co., 59 Miss. 243, 248 (1881); Bove v. State, 185 Miss. 547, 554, 188 So. 557, 558 (1938); Manning v. State, 188 Miss. 393, 398, 195 So. 319, 320 (1940). The party calling the witness is said to vouch for his credibility. The underlying premise is that, a trial being a search for the truth, a litigant has no business presenting a witness whose credibility is open to serious doubt.

We recognize today that the rule is not in favor. It has become riddled with exceptions. See, e.g., Hall v. State, 250 Miss. 253, 165 So.2d 345 (1964) (“The State is not bound by the testimony of a witness who unexpectedly proves hostile).” It has been abrogated altogether in civil cases. Rule 43(b)(4) Miss.R.Civ.P., effective January 1, 1982, provides that the “credibility of a witness may be attacked by any party, including the party calling him.”

We are aware that there are pending before the Court at this time proposals that the rule be abrogated in all eases, not just civil. Those proposals are not made in this case. The State concedes that the rule still exists and remain enforceable in criminal cases, insisting only that this case falls within the well-recognized “surprise” exception. Indeed, if ever there be a case where the underlying premise of the rule is valid, it is when the State is selecting its witnesses in a capital murder trial.

All therefore agree that the State had no right to cross-examine Johnson and further to impeach Johnson on cross-examination, absent a showing that the State was genuinely surprised by Johnson’s testimony and that he had become unexpectedly hostile. The foundation which the State was required to lay in this case has been described authoritatively in Hall v. State, 250 Miss. 253, 165 So.2d 345 (1964):

The party must first show that the evidence as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the details being described to him in detail. Underhill’s Criminal Evidence Vol. 1, 5th ed., p. 547.

250 Miss, at 264, 165 So.2d at 350.

On the other hand, where the witness’ repudiation of his prior statement is well known to the State’s attorney prior to the time the witness is called to testify, there is in fact and in law no surprise—and hence the State’s attorney cannot and may not claim surprise. Hall v. State, 250 Miss. 253, 263, 165 So.2d 345, 350 (1964); see Allison v. State, 447 So.2d 649, 650 (Miss.1984) (state must establish that it was taken by surprise); Young v. State, 425 So.2d 1022, 1028 (Miss.1983) (“evidence indicating surprise” necessary); Gardner v. State, 368 So.2d 245, 248 (Miss.1979) (“unexpectedly hostile”); Hooks v. State, 197 So.2d 238, 239-40 (Miss.1967) (must show that evidence has “taken him by surprise); Rutland v. State, 170 Miss. 650, 653-54, 155 So. 681, 681-82 (1934) (must be a situation where prosecutor was “deceived or mislead by fraud or artifice”). '•

The facts of this case make it clear that the foundation requirements for coming within the exception to the general rule have not been laid. The prosecution called Johnson to the stand as its witness as a part of its case in chief. The prosecuting attorneys knew well when Johnson was placed on the stand what his testimony would be, and, more specifically, that his testimony would be unfavorable to the State. The prosecuting attorneys knew that Johnson would repudiate his March 2, 1981 statement. They had known this for some 30 hours before Johnson was called. Under these circumstances, it was error for the trial judge to have allowed the district attorney, first, to cross-examine the State’s own witness and, second, to impeach his credibility regarding his direct testimony of what did and did not happen on the evening of December 27, 1980. See Young v. United States, 97 F.2d 200 (5th Cir.1938) (error to admit prior statements where prosecutor knew before placing witnesses on the stand that they would recant).

B.

A technically distinct, though practically linked question arises out of the trial judge’s ruling allowing the transcript of the March 2, 1981 statement to be received into evidence. Having concluded that the leading questions asked on cross-examination were improper and that the State did not come within the exception to the rule so as to be entitled to impeach its own witness, the trial court compounded the error by allowing the unsworn out-of-court statement to be used as substantive evidence against Moffett.

It is hornbook law, firmly embedded in the case law of this State, that unsworn prior inconsistent statements may be used for impeachment of the witness’ credibility regarding his testimony on direct examination. The prior inconsistent out-of-court statements made by one not a party may not be used as substantive evidence. Ellis & Williams, Mississippi Evidence 46 (1983); Davis v. State, 431 So.2d 468, 473 (Miss.1983); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Sims v. State, 313 So.2d 388, 391 (Miss.1975); Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964).

Where the non-party witness admits having made the prior, out-of-court statement, the statement where reduced to written form, should never be introduced into evidence.

If the witness confesses or admits having made prior inconsistent statements, ordinarily there is no necessity for further proof, as by the admission of the prior inconsistent written statement.

Davis v. State, 431 So.2d 468, 473 (Miss.1983); Sims v. State, 313 So.2d 388, 391 (Miss.1975); Hammons v. State, 291 So.2d 177, 179 (Miss.1974); Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964); see Hubbard v. State, 437 So.2d 430, 434 (Miss.1983) (“obviously for impeachment purposes”); Murphy v. State, 336 So.2d 213, 216-17 (Miss.1976) (defendant entitled to instruction that prior inconsistent statement may not be used as proof of guilt).

Magee v. Magee, 320 So.2d 779 (Miss.1975) said of this rule:

[But impeachment] does not mean that the out-of-court statement became evidence on its merits or had any probative value_ The rule seems to be universal that the impeaching testimony does not' establish or in any way tend to establish the truth of the matters contained in the out-of-court contradictory statement.

320 So.2d at 783. See also 3 Wigmore, Evidence (3d ed. 1940) § 1018, n. 2.

The reason for this rule is apparent. One of the major premises underlying our rules of evidence is that no evidence may be credited which is not purified via the witnesses’ oaths that the evidence is true. These out-of-court statements have not been purified via this authentication process. While fairness dictates that wide latitude necessarily be allowed in cross-examination (assuming, of course, the witness is one the party has the right to cross-examine in the first place), the function of the prior inconsistent statement is to impeach the credibility of the witness’ direct testimony. It is to suggest to the fact finder that the direct testimony may not be true because the witness may not be worthy of belief with respect to the matter as to which he has testified.

There is a more practical reason why the statement should not have been given to the jury. The average juror will have a difficult enough time without the statement sitting in his lap keeping distinct in his mind that which he has heard as evidence and what he has been told may be considered for impeachment only. Many suggest it is folly to think juries can — or will even attempt to — keep this distinction in mind. Indeed, here we have a powerful, practical reason undergirding the rule discussed above that a party may not impeach his own witness. McCormick, Evidence § 38, at 75-76 (2d ed. 1972).

What the State was allowed to do in this case was to argue as substantive evidence the factual scenario attributed to Johnson by virtue of the March 2, 1981 interview when no witness at trial has stated on oath that those facts are true and correct. Given the underlying premises of our rules of evidence, such may not be permitted, particularly where the defendant is on trial for his life and where, if anything, the benefit of any reasonable doubt must be given the defendant. Williams v. State, 445 So.2d 798, 814 (Miss.1984); Gambrell v. State, 92 Miss. 728, 736, 46 So. 138, 139 (1908).

We note that the trial judge correctly instructed the jury that the impeaching statement could not be considered as substantive evidence touching Moffett’s guilt or innocence. Instruction No. D-21 provides:

The Court instructs the jury that if a witness recants, under oath, a prior un-sworn statement that witnesses credibility may then be impeached by the use of that prior inconsistent unsworn statement. However, that prior inconsistent unsworn statement cannot be considered by the jury as substantive evidence in the case. The prior inconsistent unsworn statement can only be used to show credibility.

We have considered whether this instruction may have cured the error. Upon reflection, this instruction makes us wonder why the prior unsworn statement was ever admitted in the first place, for the trial judge obviously knew what the law was on the point. Considering that the prior un-sworn statement was the sole support for a central issue in the case and considering the fact that the prosecuting attorney vigorously argued it as a reason why the jury should find Moffett guilty, the error was not cured.

Without the version of the facts related by Johnson on March 2, 1981, before the court as substantive evidence, the State’s case falls apart. The only other evidence the State offered implicating Moffett in the capital murder consists of the single hearsay statement by the witness Kimberly Butler that Moffett told her that “him and a partner tried to rob a gas station and a woman was shot in the process.... ” No other evidence even comes close to putting Moffett at the scene of the crime on the evening in question or otherwise implicating Moffett.

The two errors we have found regarding the testimony of the witness Garland Johnson, to-wit: allowing the prosecuting attorney to cross-examine and impeach Johnson and allowing the prior inconsistent out-of-court statement to be received as substantive evidence against Moffett, become crucial. No resort to notions of “death is different” or “heightened scrutiny,” see, e.g., Williams v. State, 445 So.2d 798, 810 (Miss.1983); Laney v. State, 421 So.2d 1216, 1217 (Miss.1982), is necessary for us to conclude that such errors so infected the proceedings below that Moffett has been denied a fair trial.

The judgment of July 15, 1981, entered by the Circuit Court of Harrison County, adjudging James Vincent Moffett guilty of the crime of capital murder and sentencing him to suffer death in the gas chamber shall be, and it hereby is, reversed and this case is remanded to the docket of the Circuit Court of Harrison County, Mississippi, for a new trial on all issues.

REVERSED AND REMANDED.

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

ROY NOBLE LEE, P.J., and HAWKINS, J., specially concur.

BOWLING, J., dissents.

PATTERSON, C.J., and WALKER, P.J., not participating.

ROY NOBLE LEE, Presiding Justice,

specially concurring:

The crucial questions in this case are (1) whether the State was taken by surprise, according to the facts and the law, when its witness Garland Johnson, changed his statement implicating Moffett; and (2) whether the trial court erred in admitting Johnson’s out-of-court statement, which was used as substantive evidence. The questions have been addressed in a scholarly manner by Justice Robertson in the majority opinion, citing cases decided by this Court over a period of years, clearly holding that the answer to question (1) is no, viz, the State was not taken by surprise, and permitting cross-examination was error, and that the answer to question (2) is yes, viz, the court erred in admitting Johnson’s out-of-court statement to be used as substantive evidence. I agree with the majority opinion deciding those questions and join it with this concurring opinion to emphasize the correctness of it.

In addition, I disagree with the reasoning and many of the statements contained in the dissenting opinion. While most of the Bench and Bar recognize that the caseloads of all courts have been greatly increased and the final disposition of cases, particularly criminal, have been slowed and hindered by decisions and rulings of the Federal system, I do not consider this court, or trial courts of this state, to be “on the brink of disaster” because of our caseloads.

The Mississippi law, which decides the principal questions in this case, has been firmly and unhesitatingly applied for more than one hundred years in both criminal and civil cases. We must follow the law or abolish it, or adopt rules of evidence. The law must be followed in this ease.

Surprise

Surprise in a courtroom trial means that an attorney, when calling a witness subpoenaed by him, is genuinely taken aback and surprised due to the fact that the witness has, on the witness stand, changed his previous testimony, statement, or evidence given to the attorney, and at a time when the attorney has not shown a lack of diligence in keeping himself apprised with what the witness would testify to. Similarly, where the witness will not cooperate when he has been cooperative, or is sullen or adamant against the questions of the attorney, he is a hostile witness. Under those circumstances, and those alone, may the attorney claim surprise, categorize the witness as hostile, and then cross-examine him. No logical or reasonable grounds for surprise, in my opinion, appear in this case, related to the witness Garland Johnson.

On Friday, July 10, 1981, the defense attorneys for Moffett, having previously interrogated Garland Johnson, as they were required to do in preparing their client’s defense, received from Johnson, for the first time, a written statement, wherein he repudiated and denied as true material facts which he related to the State investigating officers in a video-taped statement on March 2, 1981. It is understandable that over the weekend, it would have been difficult to contact and apprise the prosecuting attorneys of that fact. The record is silent thereasto.

The Moffett case was set for trial on the following Monday, July 13, 1981. Prior to the case being called for trial, the record shows that the attorney for Moffett contacted District Attorney Necaise, told him of the statement (tape) and wanted him to listen to it. When the matter was discussed before the trial judge, the district attorney stated to the court:

BY MR. ROSE: * * * *
Now, the reason why I’m I’m apprising the Court of this fact is because when this man takes the stand and he recants that statement, so that Mr. Ne-caise can’t plead surprise on it. That he’s given full notice of this statement.
* * ⅜ * * *
BY MR. NECAISE: Judge, uh, that, Mr. Rose can’t, uh, Mr. Rose came in my office this morning, uh, shortly before Court time, and wanted me to listen to a tape. And I asked him a tape of what? And he said a tape of Garland Johnson recanting his testimony.
And I asked him was it on video and he said no. And I told him that I was going to stick with the one that I had on video. And I didn’t even listen to his. (R. 168-169)

The trial judge also confirmed what the district attorney said in the following colloquy with the defense attorney:

BY THE COURT: (Interposing) No. You advised him in the Courtroom yesterday, after the Jury was picked, as I recall.
BY MR. ROSE: No, Your Honor.
BY MRS. HENDERSON: No, sir.
BY MR. ROSE: Yesterday, at nine o’clock.
BY THE COURT: (Interposing) That’s right. Before we started trial, before we started picking a jury.
BY MR. ROSE: . I advised Mr. Necaise that we had a tape recording of this young man...
BY THE COURT: (Interposing) You’re correct. Made last Friday, where he recants. (R. 627-628)

The attorney for Moffett obviously did all he could to get the matter before the district attorney, who was the person interested. As stated above, the district attorney insisted on the trial proceeding, the jury was voir dired and the trial judge declined to hear the defense attorney’s position until the district attorney called Johnson to the stand, began to interrogate him, and then claimed surprise. He then said to the Court:

BY MR. NECAISE: At this time, I plead surprise because the Defendant, this Co-Defendant here, Garland Johnson, gave a five page typewritten statement, that is also on video, and I would ask the Court, the Court is observing his demeanor here today and I would ask the Court to, uh, to permit me to, uh, uh, plead surprise and to treat this witness as a hostile witness and attempt to impeach him on his prior inconsistent statement.
Now, I say this to the Court, I am not attempting, if Your Honor please, to impeach him on substantive evidence. But, I am attempting just to impeach him on a prior statement that he gave and I would ask the Court to allow and to let the record also show that the witness is now crying on the witness stand, for the purposes of the record. (R. 625-626)

The trial judge ruled in favor of the district attorney and permitted him to cross-examine the State’s witness. (R. 715)

Subsequently, the district attorney offered in evidence the statement obtained by the State from Johnson, which was strenuously objected to by Moffett’s attorney on the ground that it could not be used as substantive evidence and was highly prejudicial. The five-page typewritten statement was marked as “State’s Exhibit 7” and admitted into evidence.

The district attorney stated further with reference to substantive evidence the following:

BY MR. NECAISE: Judge, for the purposes of, I’m not attempting to use this as substantive law because I think we’ve already made out a prima facie case with the testimony of Kimberly Butler. You know, I think I can, without his testimony, you know, in other words, without his testimony, I can get to the jury.

In arguing the case to the jury, the district attorney argued the said statement as substantive evidence.

Thus, without question, the district attorney was not surprised by the witness Johnson’s change of testimony, and, obviously did not wish to talk with Johnson prior to calling him to the stand in an effort to make out his claim of surprise.

The cases cited and relied upon in the majority opinion mandate that permitting the prosecuting attorney to proceed with cross-examination of Johnson on the claim of surprise and introduction of the State’s video-taped and written statement from him, constituted reversible error.

Former Jeopardy

The question of jeopardy is raised and discussed for the first time in the dissent. The district attorney, after declining to hear or see the July 10 statement of Johnson, only claimed surprise. He never mentioned jeopardy. The trial judge permitted cross-examination by the district attorney and introduction of the statement of Johnson to the State, but never thought of, or mentioned, jeopardy. The attorney general’s office, in briefing the case and the questions discussed here, never mentioned or relied upon jeopardy.

The district attorney was advised prior to any voir dire or jury selection that the witness Johnson had recanted his statement to the officers, and the defense attorneys moved the court to forbid the prosecutor from pleading surprise. The district attorney could have requested either a continuance, which the court probably would have granted, or a dismissal of the indictment. Such actions would not have barred subsequent trial or re-indictment. See Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33 (1977); McNeal v. Hollowell, 481 F.2d 1145, 1149 (5th Cir.1973); Smith v. Mississippi, 478 F.2d 88, 93 (5th Cir.1973); [jeopardy attaches when jury empaneled]; and Jones v. State, 398 So.2d 1312, 1317 (Miss.1981) [discussing Crist v. Bretz, if charge dismissed before jury empaneled when jeopardy has not attached].

There was no jeopardy at the time the district attorney was informed of the recantation of witness Johnson. However, the State decided to proceed with the case at a time when he knew the status of the witness Johnson and was not surprised that Johnson had changed his statement.

Conclusion

While I recognize that people, judges and justices see questions differently, I am convinced that the majority opinion correctly announces the law applicable to the facts of this case. As a district attorney for twelve years in a five-county district, and as a trial lawyer for many years, the writer has encountered and dealt with, dozens of times, the exact questions now before us. From my examination of cases and records in this Court for almost nine years, I see little difference in people, defendants, and human behavior now from when I began the practice of law. I am confident that so long as judges decide, and attorneys try, cases according to the law, society has nothing to fear.

I concur with the majority opinion.

HAWKINS, Justice,

specially concurring:

I concur in reversal.

I do not agree, however, that the circuit judge committed error in permitting the state, under the circumstances in this case, to ask leading questions of Johnson, or to develop the fact that he had made, and the content of, previous contradictory statements.

In deference, I share Justice Bowling’s trepidation that the majority is placing an undue restriction on the circuit judge in exercising discretion as to when leading questions will be permitted. Indeed, the majority acknowledges the rule it here follows is subject to criticism.

Except as herein noted, I agree with the majority opinion.

BOWLING, Justice,

dissenting:

The news media have seldom discussed dissenting opinions from this Court. This is understandable as it probably is thought that the dissenter is just a “sore toe.” I state on my oath that this is not true here. The non-lawyer citizens of this state need to know what I am here saying. It is important for their future and their relations with the Courts.

It is hard for one judge on this Court to have guts enough to write a dissent against all others in opposition to what might seem clear law. Such a judge, when that dissent is distributed among the judges, is subjected to abuse and scurrilous attacks on his ability and intentions.

The people of this state should know in plain and unmistakable terms that the case load of this Court is on the brink of disaster. This carries with it the future of the trial courts. This has been caused to a large extent by our confusing the laws that have to be followed by the trial courts, as we are doing in the case now under consideration. Another cause for the condition of the courts is that they, in the past few years, have been made into “mini” federal courts, which adds to time and expense of trying to carry on a real court’s business.

Preliminary proof of what I am saying in connection with this dissent is that when I came on the Court there were a little over 400 cases pending on the merits. Today there are close to 1100. This does not include the barrels of extra matters, such as post-conviction petitions, extraordinary writs, etc. I hasten to say that I am not placing the entire blame on this Court. I am only trying to emphasize that what the majority is causing in the case now under discussion will result in a most harmful situation in the trial courts, insofar as criminal prosecution cases are concerned. Killers do not gather witnesses to verify the killing. Thus, the witnesses to prove a murder are scarce. This brings us directly into a discussion as to what really is held by the majority opinion and what its effect shall be.

As in many criminal cases, whether murder, assault, burglary, robbery, manslaughter or any other crime, there frequently is only one principal witness. We have such a situation here in the person of Garland Johnson. This witness is the half-brother of the person prosecuted for the alleged brutal murder of Helen Allen, while she was working on her job at a self-service gas station.

As set out in the majority opinion, Johnson on March 2, 1981, gave a lengthy, video-taped statement to law enforcement officers. He clearly informed them he was sitting in the car when Moffett went toward the station. Johnson heard a gun fire, and Moffett ran back to the car. Johnson then drove him away to North Gulfport. The statement was much in detail.

Appellant’s trial was set for Monday, July 13, 1981. On May 27, 1981, this Court rendered an opinion, through Justice Hawkins, in the case of Jones v. State, 398 So.2d 1312 (Miss.1981). One of the principal questions in this case was when double jeopardy took effect in a criminal trial when something happened to the prosecution’s case. For the benefit of the non-lawyers double jeopardy means that any further prosecution is prohibited. In the Johnson case, the Court through Justice Hawkins, said:

Mandated by decisions of the United States Supreme Court, the rule in this state beginning with this case, is that double jeopardy attaches in any criminal proceeding at the moment the trial jury is selected and sworn to try the case.

On June 30, 1981, the month after the above opinion was published, one of the attorneys for Moffett paid a visit to the principal witness, Johnson. As revealed in the majority opinion, Johnson is alleged to have “recanted” his prior statement to the law enforcement officials during that visit.

A study of the later taped statement given another of the attorneys on July 10, 1981, reveals that in the taped statement, Johnson, in answer to a question about the June 30 interview, stated “and, uh, he just wanted to make a few ... you know, pointers as favors to me about what’s happening and what could happen.”

The record reveals that, as stated in the majority opinion, Johnson was placed on the stand as the state’s witness and when his testimony got to the part about his knowledge of what Moffett did, Johnson remembered none of what he originally had said in his video-taped statement. He stated in front of the court, the jury, attorneys and all others that he was nervous and scared and started to cry. The record shows that members of his family were sitting on the front row immediately in front of him. At one point, the district attorney asked the court to admonish the people in the audience from making gestures toward the witness Johnson.

As revealed by the majority opinion, the trial court saw and heard the video-taped statement of Johnson taken by the law enforcement officers on March 2, 1981, and heard the taped statement taken by Mof-fett’s attorney on July 10, 1981. They both are in the record.

In the taped statement by Moffett’s attorney on July 10, Johnson was asked “What are you scared of, Garland? Just tell me what you are scared of.” Johnson replied, “If I go on with my original statement.” He was then immediately asked, “Now what is your original statement?” Johnson answered, “That we did it.”

WHAT DOES THE MAJORITY HOLD AND WHAT IS THE EFFECT OF THAT DECISION?

The majority opinion holds that when the district attorney was asking questions of the witness Johnson, and Johnson started acting peculiar and refused to follow his original statement, that the district attorney could not plead surprise and cross examine Johnson about his inconsistencies. All at a time when Johnson was saying he was scared and was crying.

The majority cites cases on this age-old question of a witness surprising the attorney at the trial by giving testimony different from that theretofore stated. Without a doubt, the trial judge knew of the legal principle involved. He promptly sent the jury from the courtroom and questioned the attorney about the situation. He looked and listened to the video-taped statement of March 2 and listened to the taped statement of July 10. He made comment before his ruling about the clear and convincing type of statement revealed in the video-tape and the uncertainty, hesitation and often not understandable language of the June 30 tape. His opinion was that under the authorities, the state was sufficiently surprised as to what Johnson had thrown into the case to permit the district attorney to inquire of Johnson regarding the March 2 video-taped statement. The majority holds this reversible error. The underlying reason for the majority’s holding is the decision by the majority that the state was sufficiently warned about what Johnson’s changed testimony would be so that the prosecution could not claim the technical legal issue of “surprise.”

We need to go back a little further in discussing this question of surprise. We already have discussed certain questions and answers at the taking of the July 10 taped statement by one of Moffett’s attorneys. This as a result of the June 30 interview of Johnson by another Moffett attorney. Also present was a professional criminal investigator. This occurred after the opinion of this Court holding that jeopardy attaches after the jury has been selected.

The only instance shown in this record of any pre-trial notice to any law enforcement personnel of Johnson’s change of heart was the district attorney himself stating after the jury was impaneled, sworn and sent to the place of sequestration, that immediately before trial, one of the attorneys mentioned to him that they had a taped conversation showing testimony different from that held by the state. The case was ready for trial. It is significant that Moffett’s attorney did not give the court any benefit of this information. He did not file any motion, oral or written, to call this to the court’s attention, or to impress it on the prosecuting attorneys. The next mention in the record of any notice to the state was after the jury had been selected following a full day’s voir dire examination, empaneled and sworn and sent off to be sequestered for the night. Appellant’s attorneys then, for the first time, stated its motion to the court regarding the alleged notice to the state and asked for a ruling from the court that the state could not be surprised by whatever Johnson testified later. This was after 5:30 p.m. on Monday, July 13. Johnson testified at 1:00 p.m. on Tuesday, July 14. This was approximately one-half of that time element recited in the majority opinion. I make no point of this as I think it is immaterial.

The point is that nothing concrete was done and no serious legal, judicial or courtroom procedure was performed by attorneys for Moffett until after the full day’s court procedure and the jury selected, empaneled, sworn and sequestered. Above all, after jeopardy had arrived.

It is interesting to note that prior to Johnson’s testimony and after the start of the trial, one of Moffett’s attorneys stated into the record that he wished to withdraw the motion he had filed to require the state to reveal the identity of informants. Why was that motion dictated before the court? It was well known at that time that there was only one informant and it was Johnson. Could there have been a desire to have taken Johnson from any possible limelight at that stage of the trial?

I do not propose to discuss in detail the many cases of this Court on the narrow issue decisive of the case by the majority, except to point out that there is no “iron clad rule” on that issue. It is a general principle of law. Each ease stands on its own footing. Was there in reality surprise? If it was only minimal surprise, was there any prejudice caused thereby? Was the situation so engulfed with uncertainty as to prevent a discretion exercised by the trial judge as was done here? I am forced to quote from the majority opinion and fully adopt that quote as it discusses the legal principle involved. It said: “We recognize today that the rule is not in favor. It has become riddled with exceptions.” As stated above, the trial judge found in effect that there really wasn’t “surprise” sufficient for appellant to take advantage of it to go Scot free. Even if the double jeopardy question does not come into play, how could the state have any chance of ever getting a conviction [assuming for this argument the guilt of appellant, which I do not now attempt to decide.] The state certainly could not rely on the jury believing Johnson after what has occurred. Moffett has been successful in this endeavor.

This Court long, long ago in the case of Dunlap v. Richardson, 63 Miss. 447, (1886), made it clear that an accused could not take advantage of the technical principle of surprise when it was brought about by fraud or artifice. This principle was further discussed in Rutland v. State, 170 Miss. 650, 155 So. 681 (1934).

We already have discussed what the trial judge heard in the June 30 taped statement when he said, “He just wanted to make a few, you know, pointers as favors to me about what’s happening or what could happen.” We have already discussed the. record disclosure of gestures made by persons in the audience to the witness while he was crying. Of course, Johnson’s family was also Moffett’s family.

I do not say that fraud was perpetrated in this case. I am trying to point out where under our authorities for many years, the trial court has certain discretion in applying this legal principle of surprise. It is not the prerogative of the defendant accused to handle the matter in such a way that he can holler “no surprise” and the accused walks out of the courtroom.

The trial judge in this case set out in detail the elements which did not automatically give Moffett’s attorneys the right to yell “no surprise” and permit Johnson to walk away from the witness stand without the jury having the benefit of this uncertain, unimaginable and suspiciously changed testimony of Johnson. This in my opinion, is one of those cases where the court had a discretion. He was not made a robot by prior opinions of this Court.

The trial judge, after carefully reviewing the video-taped statement of March 2 and listening carefully to the taped statement of July 3, related the clear and convincing impression he received from the videotaped statement as contrary to the contradictory and unbelievable statements of the July 10 taped statement. In using what, in my opinion, was the clear discretion under all the circumstances that existed, the trial judge held that “the district attorney was not apprised of any of it [the July 30 taped statement] he and Mr. Hewes, until the trial started. So I think the proper predicate has been laid for surprise.”

I carefully have studied all of the cases cited in the majority opinion and in the briefs filed by both appellant and the state. Nowhere have I found that this Court has attempted to describe the terms “surprise” and “hostility.” Some of the cases relied on by appellant do state that in order for a party’s witness to be cross examined, his lawyer has to be “surprised” and the witness has to be “hostile.” There is certainly no difficulty in describing “hostility” and, to me, there is no difficulty in stating that the witness Garland Johnson was “hostile” to the state as shown by the record. How then can we say that hostility should have been “surprise” to the state. Surprise is harder to define than hostility. The prior cases have emphasized “hostility” rather than “surprise.” In Gardner v. State, 368 So.2d 245 (Miss.1979), [cited in the majority] the Court said:

However, when a witness proves unexpectedly hostile to the party who has called him, he may be cross-examined provided a proper foundation for such is laid.

In Hall v. State, 250 Miss. 253,165 So.2d 345 (1964), [a case cited by the majority opinion], this Court said:

It should be stated, however, that this Court has held that the State is not bound by the testimony of a witness who unexpectedly proves hostile. Witnesses may be cross-examined or impeached by the party calling them when they prove to be hostile.

I respectfully contend that under the undisputed facts shown in this record, the trial judge did not abuse his discretion when he permitted the state to examine Johnson regarding his original video-taped statement. Johnson at that point was hostile. As indicated by the trial judge, the history of appellant’s contention of “no surprise” does not show that anyone, including the trial judge, thought the state’s “surprise” was sufficient to prohibit examination of this hostile witness regarding his prior statement.

During all of this discussion, we have to bear in mind that when the court finally was brought into the matter, jeopardy had “set in.” Had the trial judge not used what I say was his clear discretion in permitting examination about the video-taped statement, the defendant at that point could have put his hat on and walked out of the courtroom. A directed verdict of acquittal would have been mandated. That is the situation now whether he has the hat or not, he will walk out of the courtroom. This is admitted by the majority opinion where it says, “Without the evidence of the facts related by Johnson on March 2, 1981, before the court as substantial evidence, the state’s case falls apart.”

In my opinion, the entire matter was handled so that the state’s case would fall apart on a legal technicality improperly used. In 81 Am.Jur.2d, Witnesses § 619, p. 629, we find, “Moreover, it has been held that a party may impeach his own witness, not only where he is surprised by his testimony but also where in the judgment of the court, the circumstances appear to require it in the interest of justice.”

In its contention that under a “second-prong” of the error, the court should not have permitted the state to introduce the transcription of the March 2 video-taped statement. The opinion stated [with tongue-in-cheek, I hope] that the juror would have a “difficult enough time without the statement sitting in his lap keeping distinct in his mind that which he has heard as evidence and what he has been told may be considered for impeachment only.” Only one exhibit was introduced in evidence. There were fourteen jurors, including two alternates. In the event the statement was in one juror’s lap, there were thirteen empty laps.

Undisputedly, the trial court gave the jury clear instructions that it was not to consider the reading of the transcription itself as substantial evidence, but could consider all questions and answers during' the examination of Johnson about his statement. This included everything that was in the statement. How could a juror intelligent enough to serve on a jury misunderstand such instructions?

WHAT IS THE ULTIMATE RESULT OF THE MAJORITY’S HOLDING?

There are certain elemental rules of human behavior. Not the least of which is that a person accused of a crime does not wish to be confined or executed because of it. There are persons other than the accused who share that opinion. There were certainly such persons admittedly in this case. His defense was an alibi. A number of persons testified on his behalf. The majority opinion opens the way for any accused criminal to go scot-free where there is only one primary witness to convict him in front of a jury. I would hazard a guess, that no witnesses, particularly those surrounded by people such as those in this case, would laugh at a suggestion from anyone talking for the accused, that the witness would look nice at the bottom of a deep hole in the bayou with a concrete block around his neck. Some people are naive enough to believe that such things do not happen. We have a further human situation that in many cases, and certainly where confinement and life are at stake, “money talks.” There are many ways that one primary witness may be “gotten to.” The opinion in this case paves the roadway to that result in most any case similar to that now before us.

With deference to my learned colleagues, I am convinced that the reason given by the majority for reversing, and in effect releasing, appellant’s conviction is erroneous. As hereinbefore stated, I cannot make a robot out of the lower courts and hold that the trial judge in this case did not have the discretion to do as he did. I would affirm.

      . The true picture is to compare the "at issue” cases, which are those cases already submitted for decision, or awaiting argument.

      . It is inconceivable that any attorney, prosecutor or defense, in an important criminal case, particularly a capital murder case, would not have a brief conference with his witnesses on the day before or the morning before trial.

      . The conduct of defense counsel in this case, as officers of the court, was not commendable. Johnson was a state witness. The fact he changed his story raises questions.


author: SULLIVAN, Justice, for the Court:

text:
    Arthur Lee CHRISTIAN v. STATE of Mississippi.
    No. 54347.
    Supreme Court of Mississippi.
    Aug. 29, 1984.

      Johnnie E. Walls, Jr., Walls, Buck & Irving, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   SULLIVAN, Justice, for the Court:

Arthur Lee Christian was convicted of rape by the Circuit Court of the First Judicial District of Bolivar County, Mississippi, in violation of Mississippi Code Annotated § 97-3-65(2) (Supp.1983). When the jury was unable to fix a penalty, the court sentenced Christian to a term of thirty-five (35) years imprisonment with the Mississippi Department of Corrections. We affirm.

Christian assigns the following three errors which he contends were committed by the trial court:

1. The Court erred in refusing to direct a verdict for appellant, or, in the alternative, granting him a new trial inasmuch as he was convicted on the uncorroborated testimony of the prosecutrix.

2. The Court erred in refusing appellant’s instructions numbered D-2, D-3 and D-5, relating to the duty of the victim to resist.

3. The verdict of the jury is contrary to the overwhelming weight of the evidence.

Christian is a 23-year old black man who lives in Bolivar County, Mississippi, and the victim is a 17-year-old white high school student who also resides in Bolivar County, Mississippi.

Christian admits the fact that he and the victim had sexual intercourse some time between 11:30 p.m. and 12:45 a.m. on the rainy evening of October 7-8, 1981, in her 1981 Cutlass automobile on a country road known as Waxhaw Road in Bolivar County. •His defense to the charge of rape was the consent of the victim. The victim testified to the contrary that Christian blocked her path with his automobile on a narrow highway and forced her to drive him, abandoning his car, to a lonely spot on the Waxhaw Gin Road, where he forcibly raped her by threatening to kill her.

In summary, the victim testified that on the afternoon of October 7, 1981, she went to Gunnison, Mississippi, to visit her boyfriend at his grandmother’s home. At about 11:30 p.m. she parted company with her boyfriend and began returning to her own home in her brown 1981 Cutlass automobile. As she was about to turn onto, the main street in Gunnison, Mississippi, which leads to Highway 1, a car went past her and she had to stop in order to avoid being hit. She continued down the main street in Gunnison to the intersection of Highway 1, where the same car that had nearly hit her had stopped and the driver’s arm was out of the window waiving her down. She did not stop but went around the car and headed down Highway 1 at a speed of about 40 to 45 miles an hour. At this time she was passed by the same automobile traveling at a high rate of speed.

As she proceeded down Highway 1 just before it reached the Waxhaw Gin Road crossing she saw the same car parked diagonally in the middle of the road blocking both lanes. She did not attempt to pass around the vehicle on the shoulders of the road because they were narrow, muddy, and they sloped into a ditch. When she stopped, a man got out of the car and approached her vehicle. She cracked the window about 6 inches to see what he wanted. While they were conversing, he glanced into the back seat of her vehicle and she instinctively turned around to look also. When she turned back around he had reached his arm through the window, unlocked her door and was opening it. Her attempt to lock the door immediately was unsuccessful because she drove with the seat pulled up close to the wheel which put the door lock behind her. According to the victim, Christian took her keys, told her to unlock the passenger door and then went back to his car. He drove his car off Highway 1 and parked on the Waxhaw Gin Road, facing towards the Gin. She stated that she did not flee from her car at this point because she knew of no buildings, homes, or woods in the area in which to seek refuge and she figured that he could outrun her anyway.

He returned to her car and told her to turn onto Waxhaw Gin Road because he lived two miles down the road and wanted her to take him home. She started to continue down Highway 1 but he grabbed the steering wheel and forced her to turn the car down Waxhaw Road. As they passed the Gin, he said that he had to get back to Arkansas because he was “wanted”. He told her to stop on a curve after the Gin where he said he could make it from there. She did so. He then told her to turn off the lights and the car motor. When she refused, he reached over and did it himself.

Next he ordered her to take off her clothes, but she said no. When he threatened to undress her himself, she told him she would comply, as she was frightened and did not want him to touch her. He told her that he had a gun, as she began to undress, and that he would kill her if he had to. He got into the back seat and undressed and told her to get in the back seat and lie down. He then held her down and had sexual intercourse with her twice. She testified that she was too frightened to resist because he said that he had killed two other people and it wouldn’t hurt him to kill her. She explained that she did not scratch him because she did not have fingernails to scratch with and she did not fight because he was bigger than she was. When she resisted his third act of intercourse, he began to reach for a gun he said he had in the front seat, so she submitted again. After the third time, she crawled to the front seat and tried to get her clothes on, but could not. She opened the door to get out and dress and he grabbed her wrist, telling her to get back in the car. She hurriedly dressed and returned to the driver’s seat.

He told her to turn her car around and drive back to his car. She testified that he repeatedly asked her if she would tell anybody what happened and warned her that if she did, he would come back and kill her. When she could not find a place to turn around, he became angry and moved from the back to the driver’s seat, turned the car around, and returned to his vehicle. After he got out of her car and repeated his warning, she moved back to the driver’s seat, turned on to Highway 1 toward Gun-nison, and sped to her boyfriend’s house. Her assailant turned his car around and fell in pursuit but, because she had a head start, she reached the Gunnison exit before he could catch her. In her last view of him, she saw his car turn onto another road that goes by Amiel Earp’s house.

She identified Christian as the man who had raped her that night and further stated that she had never seen him before that night. It was her testimony that she submitted to Christian because she believed that he had a gun, had killed two other people, and would kill her if she put up a fight.

Her boyfriend testified that he followed her out of town on that night, as was his custom, when he stopped to get a Coke. By the time he headed down Highway 1 he could see no car lights ahead. He testified that, in order to make a U-turn on Highway 1 he had to go down to Waxhaw Gin crossing and use part of the Waxhaw road to complete the turn. At the intersection he saw a cream-colored Chevrolet Impala with a black top parked on the Waxhaw Gin Road. He recognized this car as belonging to Christian, whom he knew.

He testified that when the victim reached his house and told him what happened, she was shaking and crying uncontrollably. He and his father took her to Rosedale, Mississippi, to report the rape, where he gave Deputy Estes a description of Christian’s Impala. Deputy Estes testified that her condition at the time was “hysterical”. They then proceeded to Pace to pick up her mother and went to Delta Medical Clinic in Greenville. Her mother testified that she repeatedly sobbed, “if I tell you, he’ll kill me”.

Christian’s version at trial of the events of the evening in question was as follows. As he was leaving Gunnison on the main street at about 11:30 p.m., he recognized an automobile following him up to the Highway 1 intersection. When the car pulled alongside, the driver turned on the interior light and he recognized her as “this lady I had been going with”. He stated that no conversation occurred; she just waved her hand for him to follow. He followed her down Highway 1 and passed her before they reached the Waxhaw turnoff. He put his turn signal on and she blinked her lights, in response, so he stopped there. He walked back to her car, and talked with her. He testified that they had planned the rendezvous in advance and that she told him she wanted to be with him. He moved his car from Highway 1 onto Waxhaw Gin Road where she pulled up beside him. He got into her ear and they drove down Wax-haw Gin Road a half a mile or more. There they parked on the road and chatted for a while. Then, at her instigation, they undressed, got into the back seat and engaged in sexual relations twice.

Afterwards, Christian testified that he told her that he would not see her anymore and she replied that she did not want to break it up. She returned him to his car and he drove back toward Gunnison in order to return home by the less direct but better paved road which passes by Amiel Earp’s house.

Christian admitted at trial to having lied to the police officers who arrested him later that evening on several incriminating points. First, he lied about the clothes he had on that night which matched the victim’s description. The pants and underwear also had blood stains on the crotch which connected him with the victim who had started her period that evening. Second, he lied when he told them he had gone to Gunnison in a gray Malibu and denied owning his car, which fit the victim’s and her boyfriend’s description. Third, he denied that he had had sex that night. Fourth, he lied when he told the officers that he had not been on Highway 1 or Waxhaw Gin Road that night. He testified that he told these lies because it is unpopular for whites and blacks to have sex, and also because he was sleepy during the interrogation.

At the close of the state’s case, appellant’s counsel moved for a directed verdict which was overruled. After all the evidence was in, the appellant renewed his motion for a directed verdict and the court again overruled the motion.

The jury found Christian guilty of rape but was unable to fix the penalty. The next day, April 22nd, 1982, the court sentenced the defendant to a term of thirty-five years with the Mississippi Department of Corrections.

That same day, defendant filed a written waiver of his right to appeal. On April 23, after the end of the April term of circuit court, Christian’s present attorneys requested the court’s permission to file a motion for a new trial or a judgment non obstante veredicto in order to perfect his right to appeal. On April 29, 1982, defense counsel filed a motion for a new trial. The record does not reflect what action the trial court took on either of these requests.

DID THE COURT ERR IN REFUSING TO GRANT APPELLANT’S INSTRUCTIONS NUMBERED D-2, D-3, and D-5?

As assignment number 1 and assignment number 3 lend themselves to joint discussion, we will begin with appellant’s assignment of error number 2.

The trial court rejected instructions D-2,' D-3 and D-5, and instead granted instruction C-25, which states:

The Court instructs the jury that while the victim of a rape has a duty to use all reasonable physical resistance available to her, under the circumstances then and there existing, to prevent from being raped, physical resistance on the part of the victim is not necessary if the proof shows beyond a reasonable doubt that she surrendered because of fear arising out of a reasonable apprehension of death or great bodily harm.
Instruction D-2 reads:
The Court instructs the jury that a mere tactical surrender by an alleged rape victim in the face of an assumed superior force is not enough. The complaining witness must resist with all physical resources reasonably available to her under the existing circumstances.
Thus, if you find from the evidence in this case that the complaining witness, ..., did not resist with all physical resources reasonably available to her in the existing circumstances, you shall find the defendant not guilty.

Instruction D-2 embodies the law as stated in Moss v. State, 208 Miss. 531, 45 So.2d 125 (1950); and Lee v. State, 322 So.2d 751 (Miss.1975), to the effect that a mere tactical surrender in the face of an assumed superior physical force is not enough, but that the victim must resist with every resource available. Appellant has emphasized that the victim admits that she never saw a weapon and did not show any signs of having been physically abused. The trial court’s instruction C-25 embodies this Court’s most recent decision upon the element of force in rape cases, Davis v. State, 406 So.2d 795, 801 (Miss.1981), and Fields v. State, 293 So.2d 430 (Miss.1974). Instruction D-2 was properly refused because it fails to indicate, as in Davis, that force is not a necessary ingredient of rape if the failure of the victim to resist resulted from reasonable apprehension that she would be greatly injured or killed if she resisted.

Appellant’s refused instruction D-3 states:

The Court instructs the jury for the defendant that the victim of an alleged rape should resist an attack to force sexual intercourse upon her by every physical power she may have, but, if it is undertaken by the State to show she did not resist because of threats or placing her in fear, the State must prove all such threats beyond all reasonable doubt, also that the threats made, taking into consideration the deforment (sic) and demeanor of the defendant as shown, as to whether or not the female was actually put in fear of her life, and that such fear of the defendant caused her to submit to his advances and were of a character to cause her to give up her virtue.

This instruction is flawed because it identifies itself as being given by the defendant, in violation of Rule 5.03, Uniform Rules of Circuit Court. Further, the instruction was properly refused because court instruction C-25 required the jury to find that “the proof shows beyond a reasonable doubt that she surrendered because of fear arising out of a reasonable apprehension of death or great bodily harm”. Instruction D-3 was thus cumulative with instruction C-25 and the trial court is not required to grant several instructions on the same question in different verbiage. Jones v. State, 381 So.2d 983, 991 (Miss.1980).

Appellant’s requested instruction D-5 states:

The Court instructs the jury that before you can convict a Defendant in this case you must believe from the evidence beyond a reasonable doubt that the Defendant willfully, forceably and against the will of the prosecutrix, ..., raped her and if you have a reasonable doubt arising out of the evidence or from the want of evidence as to whether this is true or not, then it is your sworn duty to return a verdict of not guilty.

This instruction also contains the same defect as instruction D-2 in its failure to indicate that force is not a necessary ingredient of rape where the victim’s failure to resist was due to a reasonable fear of great bodily harm. The court properly refused to grant instruction D-5.

DID THE COURT ERR IN REFUSING TO GRANT Á DIRECTED VERDICT FOR THE APPELLANT OR, IN THE ALTERNATIVE, GRANT HIM A NEW TRIAL, INASMUCH AS HE WAS CONVICTED ON THE UNCORROBORATED TESTIMONY OF THE PROSECUTRIX?

and

WAS THE VERDICT OF THE JURY CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE?

A procedural problem exists in connection with the motions for directed verdict. In Banks v. State, 394 So.2d 875, 877, this Court held that,

A motion for a directed verdict on the grounds that the state has failed to make out a prima facie case must state specifically wherein the state has failed to make out a prima facie case. In the absence of such specificity, the trial court will not be put in error for overruling same.

In this case, defense counsel made a general motion for directed verdict on the ground that the state failed to sustain its burden of proof. Defense counsel’s argument in support of his motion was not included in the record, so the record does not reflect what he asserted were the specific defects in the state’s case. Defense counsel renewed the same general motion after all the evidence was in “for the same reasons that we outlined [at the close of the state’s proof]”. Assuming that defense counsel argued that the state had failed to prove all the elements of the crime charged, the particular deficiencies he saw in the state’s case are not in the record.

Banks v. State sets out the controlling principle on the question of directed verdict, and for that reason we cannot say the court committed error in denying the motion. Assuming arguendo that defense counsel had met the test of Banks, we are satisfied that the assignment would still be without merit.

The standard of review in judging the sufficiency of the evidence on a motion for directed verdict requires that we accept as true all the evidence favorable to the state, together with reasonable inferences arising therefrom, to disregard the evidence favorable to the defendant, and if such evidence would support a verdict of guilty beyond a reasonable doubt, the trial court’s denial of the motion must be affirmed. Carroll v. State, 396 So.2d 1033, 1035 (Miss.1981).

Under this rule the evidence in this case is sufficient to support a guilty verdict. The conflict between the testimony of the appellant and the prosecutrix was properly resolved by the jury. Lee v. State, supra, at 753.

There is no merit to the complaint that Christian was convicted on the uncorroborated testimony of the prosecutrix. This Court recognizes as corroborating evidence the victim’s physical and mental condition after the incident, as well as the fact that she immediately reported the rape. Brooks v. State, 242 So.2d 865, 868 (Miss.1971); Lang v. State, 230 Miss. 147, 159, 87 So.2d 265 (1956). Also, the totally uncorroborated testimony of a rape victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence. Otis v. State, 418 So.2d 65, 67 (Miss.1982), Davis v. State, supra, at 801. In Davis, we found that the element of force had been proven even though, as in this case, there was no weapon used and there was no sign of external injury. Id. at 801.

The appellant’s first assignment of error also asserts that the trial court erred in refusing to grant a motion for a new trial. As pointed out in the statement of facts, no motion for a new trial was filed with the court before the end of the term of court. The record also shows that the trial court failed to enter an order nunc pro tunc allowing appellant’s counsel to file a motion for a new trial after the term of court had ended. The trial court cannot be held in error on a matter which was not properly presented for its decision. Ponder v. State, 335 So.2d 885 (Miss.1976).

As to whether or not the verdict of the jury was contrary to the overwhelming weight of the evidence, Christian did not present this issue to the trial court by way of a motion for new trial before the end of the term of court, nor did he receive permission to file such a motion after the court term ended. In order to contend on appeal that the verdict is contrary to the overwhelming weight of the evidence, the appellant must have first presented the issue to the trial court in a motion for a new trial. Ponder v. State, 335 So.2d 885 (Miss.1976).

We, therefore, conclude there is no merit to appellant’s assignments of error number 1 and number 3.

In summary, the trial court did not commit error in refusing to grant the three requested instructions, as they were either defective and/or cumulative. Further, it was not error to deny the motion for a directed verdict or, in the alternative, the motion for a new trial. In circumstances such as these, the testimony of the prose-cutrix was enough to get to the jury. Further, the verdict of the jury is not contrary to the overwhelming weight of the evidence. A proper jury issue was made and presented to the jury and that jury properly resolved it. We, therefore, affirm.

AFFIRMED.

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

PATTERSON, C.J., not participating.


text:
    John Henry WARREN v. STATE of Mississippi.
    No. 55070.
    Supreme Court of Mississippi.
    Sept. 5, 1984.

      Jerry L. Mills, Pyle, Harris, Dreher & Mills, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J. and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

John Henry Warren, was convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, under Mississippi Code Annotated § 97-3-65 (Supp. 1983), of forcible rape, and the jury by its verdict prescribed and the court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. He appeals, claiming that the verdict was against the overwhelming weight of the evidence.

We affirm.

About 1:00 o’clock in the morning of June 25, 1982, the prosecutrix was awakened by a man putting a knife to her neck and demanding that she engage in sexual relations with him. Her pleas were unavailing as she attempted to convince him not to hurt her or the children in the house with her, including the child who was asleep in the bed beside her. In spite of this, and without her consent, the rape was accomplished. The prosecutrix submitted because of the presence of the knife and out of fear for her own safety and the safety of the children.

After the assault had concluded, the man took out a cigarette lighter, lit a cigarette, sat on the side of the bed smoking and conversing with the victim for about five minutes. He even asked her if he could come back again, saying that he would like to get to know her better. Then he left.

The prosecutrix described her assailant as weighing about 215 pounds, 6' 4" in height, and having hair on the chin like a goatee. She saw him by the light of the street light after he had left the porch of her home. On the night of the attack, he wore a blue flannel shirt and blue jeans.

Two months later, this same man returned. The prosecutrix was sitting on the nearby porch of her mother’s home when she saw the man come to her house. The man approached her at her mother’s house, and asked if she was [name omitted], claiming he knew her through a mutual friend. He said he wanted to get to know her better. The prosecutrix testified that she recognized her assailant by his physical appearance, his voice and the very words which he had spoken to her on the night he had raped her.

When the prosecutrix’s mother got up and went into the house, the man immediately left. He was later apprehended by the brother of the prosecutrix and ultimately arrested by the police. The prosecutrix identified John Henry Warren in the courtroom as the man who raped her on June 25, 1982.

The brother of the victim, testified that on the night of June 25, 1982, his sister came to his house in the early morning hours and told him that she had just been raped. She described her attacker as being tall, heavy-set, with a goatee, wearing a blue flannel shirt and blue jeans. The prosecutrix’s brother immediately searched the area and upon seeing a man meeting that description called out to him to stop. When the man did not stop, the prosecu-trix’s brother went to a nearby convenience store and called the police. He did not again on that night find the man that he thought matched the description given by his sister.

On August 21, 1982, the prosecutrix again came to her brother for help in catching the man who had raped her. On this occasion, her brother was successful and held the man until the police arrived. The prosecutrix’s brother identified the defendant, John Henry Warren, as the man he stopped in August of 1982.

Tommie Giles, a neighbor of the victim, was walking home some time after midnight on the night of June 25,1982. At the corner of Pleasant Avenue and Wood Street he encountered a black man who was about 6' 5" tall, weighing 200-225 pounds and of medium complexion. Giles got a light for his cigarette from the man, and testified that he recognized him as someone whom he had seen previously in the neighborhood.

After learning what had happened to the prosecutrix and after hearing the description of her assailant, Giles remarked that he had met someone fitting that description whom he had seen before on that very night. Two months later, in August, the same man Giles saw the night the prosecu-trix was raped, was apprehended by the police and Giles identified him as the defendant, John Henry Warren.

WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

Appellant concedes that Mississippi generally recognizes that the testimony of a person having heard a voice is competent and legitimate evidence to establish identity in both civil and criminal cases. Sparks v. State, 412 So.2d 754 (Miss.1982). However, appellant contends that in every case in Mississippi with the issue of voice identification in this state there has been substantial other evidence of guilt, and that as there is no substantial other evidence of guilt in this case the case is distinguishable and the verdict is rendered against the overwhelming weight of the evidence.

In Pickett v. State, 164 Miss. 142, 144 So. 552 (1982), the appellant points out that the time interval elapsing from the time of the crime to the voice identification was only one day as contrasted to two months in this case.

In Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), the complaining witness was approached by three men at 3:00 o’clock in the afternoon. She had the opportunity to see and hear each of the three for about thirty minutes before a pillow case was placed over her head and she was raped. Though she was unable to see who raped her, she was able to identify the defendant from having so recently seen him and heard his voice. Appellant contends that there the victim got a view of the defendants and heard their voices for some thirty minutes, while in the case sub judice the prosecuting witness heard the voice of the appellant for only about fifteen minutes and did not hear it again for some two months.

In Hurst v. State, 240 So.2d 273 (Miss.1970), the defendant was convicted of using profane and indecent language over the telephone. There too the identification of his voice was held competent. Appellant would have us distinguish Hurst on the basis that the complaining witness had received a number of indecent telephone calls made by the same voice. Also, there was other substantial evidence of guilt in that case.

In Lindsey v. State, 279 So.2d 913 (Miss.1973), the testimony of voice identification was again held admissible. The case can be distinguished factually, however, because there the evidence established that the complaining witness was familiar with the voice of the defendant. He lived near her home and over a period of two years she had heard him speak on several occasions. In the case sub judice, the prosecuting witness had never seen nor heard the appellant before the night of the rape, and did not hear him speak again until some two months later when he was arrested.

In Sparks v. State, 412 So.2d 754 (Miss.1982), this Court again recognized the general rule with respect to voice identification. However, once again the identification was based on familiarity through numerous subsequent conversations.

Based on his characterization of these voice identification cases, the appellant suggests that, unless it is established that voice recognition is based on some criteria or is done at a point so close in time as to make it reliable, testimony regarding it is simply insufficient to send a man to the penitentiary for life absent other substantial additional evidence of guilt.

This contention is simply without merit. While there are substantial differences in time in the cases cited by the appellant and the case sub judice, there is no authority for the proposition that the element of time has any application as to the validity or sufficiency of voice identification.

The test in Mississippi of the validity and competence of evidence of identification through voice recognition is a question for the jury to determine. Sparks v. State, supra, and Pickett v. State, supra.

The cases cited by the appellant himself clearly leave in the hands of the jury the probative value of voice identification testimony. Here the jury judged the value of the testimony, found the appellant guilty, and agreed that he should spend the rest of his natural life in the custody of the Department of Corrections.

As we stated in Pate v. State, 419 So.2d 1324, 1326 (Miss.1982):

Generally, it is the function of the jury to pass upon the weight and worth of the evidence and to determine the credibility and veracity of the witnesses. Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949); Henderson \v. State, 187 Miss. 166, 192 So. 495 (1939)] supra. Indeed, the jury is under no duty to believe the defendant’s denial where there is ample contradictory evidence. Campbell v. State, 278 So.2d 420 (Miss.1973); Robinson v. State, 228 So.2d 373 (Miss.1969). Thus, this Court has previously held that it will not set aside a jury verdict of guilty unless it is clear that the verdict is the result of prejudice, bias, or fraud, or that it is manifestly against the weight of the evidence. Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Clanton v. State, 49 So.2d 267 (Miss.1950).

In reviewing the evidence and challenges to the sufficiency of the evidence to support a conviction, the basic rule, restated in Carroll v. State, 396 So.2d 1033, 1035 (Miss.1981), is that:

[T]he Court is required to accept as true all the evidence favorable to the State, together with reasonable inferences arising therefrom, to disregard that evidence favorable to the defendant, and, if such evidence will support a verdict of guilty beyond reasonable doubt, the peremptory instruction should be refused. [Citations omitted].

The evidence presented by the state in this case is more than ample to support the verdict of the jury.

The appellant further contends that the jury’s verdict, including the sentence portion, must be supported by competent evidence and that the sentence in this case was against the overwhelming weight of the evidence. Appellant contends that this is so because no evidence was adduced which was related to the factors upon which a sentencing decision should be based, and, therefore, the verdict of the jury must be contrary to the weight of the evidence. The question raised by the appellant is not whether a jury instruction should have been granted but does the sentence portion of a jury’s verdict have to be based on evidence or is each sentencing jury free to impose a sentence of life imprisonment on whim and caprice?

We cannot find from a study of the record of this trial that this issue was ever presented squarely to the trial court, and we will not hold the trial court in error where the issue was not presented to him. Ponder v. State, 335 So.2d 885 (Miss.1976).

Assuming arguendo that this issue was squarely before us, it is without merit. This is so by virtue of the very language of § 97-3-65 Mississippi Code Annotated (Supp.1983), which says in part in paragraph 2 thereof:

..., upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; ...

This is not a situation in which the jury is called on to make a determination about the mitigating or aggravating circumstances. The Legislature has prescribed that, should the jury agree, then the sentence for rape under § 97-3-65 shall be life imprisonment. If the jury cannot agree, then the court shall affix the penalty at imprisonment in the state penitentiary for any term as the court in its discretion may determine less than life. There is no merit to this contention.

AFFIRMED.

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

PATTERSON, C.J., not participating.


author: DAN M. LEE, Justice, for the Court:

text:
    COVINGTON COUNTY, Mississippi, Board of Education of Covington County, Mississippi, et al. v. Myrtle P. PAGE, et al.
    No. 54279.
    Supreme Court of Mississippi.
    Sept. 5, 1984.

      John K. Keyes, Collins, for appellants.
    Thomas R. Crews, Thompson, Alexander & Crews, Jackson, Carroll Ingram, Ingram 6 Matthews, Hattiesburg, C. Glen Bush, Sam E. Scott, Heidelberg, Woodliff & Franks, Jackson, for appellees.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice, for the Court:

This controversy surrounds the ownership of the Southwest Quarter of the Northwest Quarter of Section 3, Township 7 North, Range 17 West, Covington County, Mississippi. More specifically, we are asked to address an order of the Chancery Court of Covington County which confirmed title to the subject property in the appellees and cancelled clouds upon that title where those clouds represented claims by the appellant, Covington County, to ownership of the land. A weighing of the equities involved in this cause leaves little room for doubt that the decision of the chancery court was correct.

On November 8, 1905, Tom Barnes and his wife, Sarintha Barnes, conveyed the subject property to J.A. Robertson as trustee for Betty A. Lott, beneficiary. B.S. Lowry was subsequently substituted as trustee. On November 23, 1906 Lowry executed a substituted trustee’s deed to Betty A. Lott.

On January 7,1911, Betty A. Lott deeded the subject property by warranty deed to J.E. Watson. Also on that date J.E. Watson and his wife, F.E. Watson, executed a deed of trust to J.E. Odum, president of the board of supervisors of Covington County as beneficiary, Melvin Purvis, Trustee.

Although Betty A. Lott had deeded this property to J.E. Watson on January 7, 1911, the property was assessed to her for the year 1911. The 1911 taxes remained unpaid and by a tax collector’s deed dated April 1, 1912, J.L. Warren, tax collector of Covington County, deeded the property to B.F. Lott, Betty A. Lott’s husband.

Because of a default of J.E. Watson, Covington County foreclosed on the deed of trust. Minutes of the Covington County board of supervisors meeting of October 8, 1913 reflect that J.W. Kelly was substituted as trustee in place of Melvin Purvis. Thereafter, J.W. Kelly gave notice of a trustee’s sale through issues of the Collins Commercial. Subsequently a substituted trustee’s deed was executed by J.W. Kelly on November 3, 1913 conveying the land to Sam Williamson as president of the Coving-ton County board of supervisors. An order of the board of supervisors recorded in the December, 1915 minutes authorized payment to J.W. Kelly for foreclosure of the deed of trust.

The appellees claim their title to this land stems from the tax collector’s deed to B.F. Lott. Following B.F. Lott’s death, a decree pro confesso ordering partition of his property was entered on October 26, 1926. Thereafter, a commissioner’s deed was given to A.J. Hooks. This deed was dated December 21,1926. By warranty deed A.J. Hooks conveyed the property to J.T. Knight the following day, December 22, 1926. The appellees are successors in title to J.T. Knight.

A certified copy of the minutes of the board of supervisors of Covington County was entered into the record which reflects that on March 4, 1940 the board of supervisors entered an order to remove a cloud on the title of the land and to give a deed to J.T. Knight. On that date a quitclaim deed was given from Covington County to J.T. Knight transferring any interest the county might have had in the subject property. The only act since that time which indicated that the county claimed possession or ownership of the land was the execution of an oil, gas and mineral lease to Union Oil Company of California on April 11, 1975.

The appellant, Covington County, urges a number of assignments of error on this appeal; however, we find it necessary to address only one, as our determination of that issue renders the other points inconsequential. The dispositive issue is whether the facts of this case make it ripe for application of the doctrine of equitable es-toppel. We have often explained that the following factual elements are a prerequisite to application of the doctrine:

(1) Belief and reliance on some representation;

(2) Change of position as a result thereof;

(3) Detriment or prejudice caused by the change of position. Scotch Plywood Co. of Mississippi v. Gardner, 452 So.2d 845 (Miss.1984); PMZ Oil Co. v. Lucroy, 449 So.2d 201, 203 (Miss.1984); Thomas v. Bailey, 375 So.2d 1049 (Miss.1979); Resolute Ins. Co. v. State, 290 So.2d 599 (Miss.1974).

The chancellor found as a fact that for each of the sixty eight years from the tax sale of April 1, 1912 until the time of trial, Covington County had collected ad valorem taxes on the subject property. Also, at the time the county executed its quitclaim deed to J.T. Knight, the appellees’ successor in title, there was a notation entered upon the minutes of the board of supervisors which stated that J.T. Knight and his grantors had claimed possession and ownership of the land for more than twenty-five years, that there was a cloud on the title to the land in favor of Covington County by reason of a foreclosed deed of trust in 1913, and that the land had ceased being used for county purposes for a long time, and that the county did not own or claim any right, title or interest to the land.

The doctrine of equitable estoppel is to be cautiously applied. It is a shield, not a sword. Perkins v. Kerby, 308 So.2d 914 (Miss.1975). In State v. Stockett, 249 So.2d 388 (Miss.1971), this Court addressed whether the doctrine of equitable estoppel may be applied pgainst the state and its municipalities. Quoting from a number of prior decisions of this Court, the decision in Stockett read in part as follows:

In City of Jackson v. Merchants’ Bank & Trust Co., 112 Miss. 537, 547, 73 So. 573, 575 (1917) this Court said:
This court, in the cases of Vicksburg v. Marshall, 59 Miss. 563, and Wither-spoon v. Meridian, 69 Miss. 288, 13 South. 843, indicates very clearly that the doctrine of equitable estoppel for the protection of individuals against injury of property, in proper cases, may be successfully invoked against municipalities. In Witherspoon v. Meridian, 69 Miss. 288, 13 South. 843, Chief Justice Campbell said:
We are easily persuaded that, with the facts of the instant case before him, that eminent jurist would have applied the doctrine of estoppel in pais; and we think the facts and circumstances here are sufficient to justify the application of the doctrine against the appellant municipality.

In Warren County v. Lamkin, 93 Miss. 123, 161, 46 So. 497, 511 (1908) we find the following statement:

It is apparent on casual examination that, if between private persons, recovery in this ease would be impossible. But a slice of sovereignty in the shape of a county as. plaintiff erects itself here, and, while there can be no criticism of the authorities in trying to recover what may be legally public property, still courts will be disposed, if they .can, to apply the same rules that the law applies as between the humblest and most unpretentious private citizens. This is incumbent on us, and exceptions in favor of sovereignty in matters of property on the application of the statute of limitations must have, of course, strict construction as against the sovereignty.

In Reliance Manufacturing Company v. Barr, 245 Miss. 86, 99, 146 So.2d 569, 574 (1962) the general rule is set out:

The authorities hold generally, however, that the defense of equitable es-toppel may apply to a state “in a proper case.” Courts have not attempted to define what is meant by the phrase “in a proper case”, and it has been pointed out that it is better that each case be controlled by its own facts. 31 C.J.S. Estoppel supra.
However, in view of what we have already said with respect to the Moore and Howie patents, we do not reach the question of whether the doctrine should be applied against the State in the present case or not. Nor are we presented with the question of whether or not it would be applied as against Mrs. Easterling and the other individuals who were parties to the 1936 litigation. (All emphasis added)

249 So.2d at 399, 400.

Considering the actions of the board of supervisors in giving a quitclaim deed to J.T. Knight and collecting ad valorem property taxes from Knight and his successors in title, this is an appropriate case to raise the shield of estoppel. The county ignored whatever title it may have had and assessed and collected taxes on the property from 1911 through 1982, the date of the lower court hearing. Admitting that it had no real interest to the land, the county attempted to clear the title in 1940 by delivering a curative quitclaim deed. Thereafter the county continued to assess and collect taxes from the Knights and their successors in title until 1975 when there was a possibility of oil exploration on the property. Suddenly the county arose from its slumber and attempted to assert an interest in the title to the property. Having awakened to the smell of oil, the county wanted to ignore the fact that it had extracted taxes for years along with the fact that it had executed a quitclaim deed thirty-five years prior. The collection of taxes and the signing of the deed are affirmative actions of the county which give rise to equitable estoppel in this case.

A party to a transaction may not induce another to act on a reasonable belief that he has waived or will waive certain rights which he is entitled to assert without being estopped to insist on those rights to prejudice the one misled. National Surety Corp. v. Vandevender, 235 Miss. 277, 108 So.2d 860 (1959). Once the county denied any interest in the property, gave a deed thereto and collected taxes thereon it could not void the effect of those acts by taking a position inconsistent with them. Wood Naval Stores Export Assn. v. Gulf Naval Stores Co., 220 Miss. 652, 71 So.2d 425 (1954).

The county had abandoned any claim to title to the property and will not now be allowed to assert that title to the detriment of the appellees who have acted in good faith and reasonably relied upon the county’s actions as representing such an abandonment. River Valley Company v. Deposit Guaranty National Bank, 331 F.Supp. 698 (N.D.Miss.1971). Undoubtedly, this is the “proper case.” See State v. Stockett, supra.

The county argues that the quitclaim deed was void for lack of consideration. As authority it cites Miss. Const, of 1890, ART. IV § 95 which reads:

Section 95. Lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies. Nor shall such land be sold to corporations or associations for a less price than that for which it is subject to sale to individuals. This, however, shall not prevent the legislature from granting a right of way, not exceeding one hundred feet in width, as a mere easement, to railroads across state land, and the legislature shall never dispose of the land covered by said right of way so long as such easement exists.

This provision has no application to the instant facts. The board of supervisors expressly denied that it had any interest, right or title to the subject property. The minutes of the board of supervisors’ meeting remove any doubt as to the county’s position regarding its interest in the land and reason for executing the quitclaim deed:

ORDER TO REMOVE CLOUD ON TITLE OF LAND AND TO GIVE DEED TO J.T. KNIGHT
It being made known to the Board of Supervisors of Covington County, Mississippi, in open session that J.T. Knight and his grantors have claimed possession and ownership of the land described as SWA of NWVi, of Section 3, Township 7 North, Range 17 West, containing 40 acres, more or less, situated in Covington County, Mississippi, for more than 25 years, and that there is a cloud on the title to said land in favor of Covington County by reason of a foreclosed deed of trust in 1913, and said land in ceasing to be used for county purposes for a long period of time and the county not owning or claiming any right, title or interest therein, on motion duly made, seconded, and carried it is hereby ordered that the President of the Board of Supervisors, acting in his official capacity, for said Covington County, Mississippi, be and he is hereby authorized and ordered to execute to J.T. Knight a quit claim deed to the above described land for the purpose of removing said cloud from his title, as provided by Section 216, Code of 1930.
So ordered in open session, this March 4th, 1940. (Emphasis added)

It should be clear then that the county did not “donate” land belonging to it in violation of § 95. Rather, the quitclaim deed was to quiet title to property the county claimed no interest in.

Therefore, based on all of the foregoing, we hold Covington County is estopped to assert title to the Southwest Quarter of the Northwest Quarter of Section 3, Township 7 North, Range 17 West, Covington County, Mississippi. The order of the chancellor is hereby affirmed.

AFFIRMED.

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

      . For an enlightening analysis of equitable es-toppel as applied to a governmental entity, see Justice Patterson’s special concurring opinion in Stockett at 401-403.