author: vSTOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Scott Andrew BEHN, Defendant-Appellant.
    No. CR83-499.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      John M. Crochet, Rogers, St. Romain & Oubre, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   vSTOKER, Judge.

Scott Andrew Behn, defendant-appellant, was charged and found guilty by a jury of unauthorized use of a movable (a 1979 Ford Van), having a value of over $1,000, in violation of LSA-R.S. 14:68. The State then filed a bill of information charging that the defendant was a second offender under the Habitual Offender Law, LSA-R.S. 15:529.1. After a hearing on the second offender bill the trial court sentenced the defendant “to- serve three years in the Department of Corrections”.

The assignments of error with which we have to deal are as follows as taken from the brief filed on behalf of defendant-appellant:

“ASSIGNMENTS OF ERROR
“I. The trial court erred in allowing evidence [of] the value of the. movable to be introduced where such evidence was beyond the scope of the State’s opening argument.
“II. The trial court erred in charging the jury and receiving its verdict without the defendant being present.
“HI. The sentence imposed was cruel, unusual and excessive.
“IV. The court failed to state for the record the consideration[s] taken into account and the factual basis therefor in imposing sentence.
“V. (Supplemental assignment of error raised in Motion for Delayed Appeal). The sentence imposed as reflected in the minutes is illegal insofar as it imposes two concurrent terms of three years with the Department of Corrections whereas the defendant was charged with only one count of unauthorized use of a movable as a habitual offender.”

FACTS

As may be seen from the assignments listed, the defendant makes no complaint as to the sufficiency of evidence necessary to prove his guilt in the overall sense. The only complaint relative to the finding of guilty is that raised by assignment number one. Such facts as are necessary to understand each assignment of error will be set forth under our discussion of each assignment.

Assignment of Error No. 1.

The defendant alleges that the trial court erred in allowing the State to present evidence of the value of the movable taken because the value was not specifically mentioned in the opening statement by the State. It is correct that the opening statement contains no mention of the value of the van. However, the State attempted to elicit information from the owner concerning the value of the van. At this point the defendant objected to such testimony as being beyond the scope of the opening statement. The objection was overruled by the trial judge.

Defense counsel relies on LSA-C.Cr.P. art. 769 which provides:

“Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.
“If the state offers evidence that was inadvertently and in good faith ommitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.”

It is well established that the State must set forth its theory of the case only in “general terms” in the opening statement. LSA-C.Cr.P. art. 766; State v. Chapman, 410 So.2d 689 (La.1982). It is not necessary that the State detail every shred of evidence in an opening statement. It is sufficient for the State to give a general description of the evidence it plans to introduce. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982).

In his opening statement the prosecutor set forth in detail what the State intended to prove in the case: that the defendant, Scott Behn, took a truck, without permission, on November 10, 1982. LSA-C.Cr.P. art. 769, supra, allows the court to admit evidence which the prosecutor inadvertently and in good faith omits from his opening statement. There is no allegation of bad faith on the part of the prosecutor, and the chain of events make it obvious that the exclusion was inadvertent. In all earlier matters the prosecutor clearly indicated the State’s intent to prosecute a felony.

On January 3, 1983, the defendant was arraigned on the charge, at which time the defendant requested a jury trial. This indicates that the defendant was aware of the felony offense. Also, prior to trial, the clerk read the bill of information to the court and the jury, clearly indicating that the charge was “unauthorized use of a movable of the value of over $1,000.” The defendant was not surprised and his rights were not prejudiced.

The trial court did not abuse its discretion in allowing in the testimony.

Assignment of Error No. 2.

The defendant alleges that the trial court erred by continuing with the proceedings while he was absent. After closing arguments, the prosecutor and defense counsel met in chambers to review the proposed jury charge. After the conference in chambers it was discovered that the defendant could not be located, as he had escaped from the holding room where he had been placed. Defense counsel refused to waive the defendant’s presence, and objected to the court proceeding in his absence. The trial judge determined that he would proceed, but, upon defense counsel’s request, he admonished the jury to disregard the defendant’s absence. The trial court charged the jury, and, following its deliberation, received the guilty verdict without the defendant being present.

The defendant argues that LSA-C.Cr.P. art. 831(5) was violated by the trial judge. This article provides in pertinent part:

“A defendant charged with a felony shall be present:
# * 5⅜ * SjS ⅜
“(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and”

However, the defendant need not be present at the rendition of the verdict if he voluntarily absents himself. LSA-C.Cr.P. art. 831(6). The defendant admits in his brief to this court that the absence was voluntary; therefore, the rendition of the verdict in the defendant’s absence was not improper.

The remaining issue is whether the trial judge could charge the jury with the defendant absent. Another exception to the Article 831(5) requirement that the defendant be present at all proceedings is set forth in the LSA-C.Cr.P. art. 832 which provides: -

“A defendant charged with a felony not punishable by death cannot object to his temporary voluntary absence at the proceedings listed in Article 831 if his counsel was present. However, the defendant may always object to his absence at the arraignment or plea to the merits, provided the objection is made before the commencement of trial.”

The defendant feels that this exception should not be applicable to the instant situation. While he concedes the absence was voluntary, he contends it was not temporary. The basis for this contention appears to be based on the intent of the defendant. The defendant contends he did not intend for his escape to be temporary, and therefore, his absence should not fall within the exception of Article 832. However, as the State points out, this would allow the defendant to manipulate the judicial process.

In this case defendant’s counsel was present at all proceedings in which the defendant chose to absent himself. The charging of the jury was not adversarial in nature and did not require any input by the defendant. Also the defendant’s further presence could hardly have altered the outcome of the trial.

The evidence presented was clear and overwhelming. The defendant’s voluntary removal of himself during the final phase of the proceedings was temporary and falls within the ambit of Article 832.

Assignment of Errors Nos. S, 4, & 5.

Assignments of error numbered 3, 4 and 5 all relate to the sentence imposed by the court and will be discussed together.

Apparently defendant was not sentenced prior to the time of the filing of the habitual offender bill on March 18, 1983. A hearing on the habitual offender bill and for sentencing was held on April 6, 1983. The defendant admitted that he was the same person named in minutes offered in evidence by the State covering the first offense. Counsel for defendant made a plea to the court for leniency on behalf of defendant. Immediately thereafter the trial court proceeded with the sentencing, and the following is the entire statement given by the trial judge relative to the sentence reflected in the transcript:

“THE COURT: Well, as I appreciate it, I was the Judge in this matter. He didn’t see fit to stay around, and so forth, and there wasn’t an insanity defense for me to even consider. I’ll sentence the defendant to serve three years in the Department of Corrections.”

Although the trial judge appears to have intended to impose only one sentence, the minutes covering the April 6, 1983, hearing and sentencing are not in conformity with the utterance of the court. Insofar as is pertinent the minute entry in the court minutes for April 6, 1983, relative to defendant reads as follows:

"State Charges: #15214-82 Unauthorized Use of a Movable
Vs. No. 15214-82 & #4189-83 Habitual Offender 4189-83
Scott Andrew Behn The defendant appears with counsel, John Crochet, Esq., this date for sentencing. Evidence adduced. At this time, the defendant through counsel admits that the defendant is the same person as the person referred to in the Court minutes introduced dated October 14, 1982 and October 28, 1982. Statement to the Court by Mr. Crochet. Asst. District Attorney Wayne Frey, makes a statement to the Court. For complete colloquy, see Court Reporter’s transcript. Thereafter, the Court sentences the defendant to serve three (3) years in the custody of the Department of Corrections on each charge, the sentences to run concurrently with each other.” * * * [Emphasis added]

Evidently the drafter of the minutes interpreted the trial court’s action as having imposed two sentences. The drafter of the minutes may have made this assumption because the State, in its opening statement on April 6, 1983, referred to the two docket numbers shown at the beginning of the minutes. The prosecutor also stated: “The matter is here, Your Honor, for sentencing, at this point, on the habitual offender and unauthorized use charges”.

The defendant urges in his brief that the imposition of two separate concurrent sentences as reflected in the minute entry is illegal. This objection was not timely urged as one of defendant’s original assignments of error. We denied defendant an out-of-time appeal on this point. The sentence as it appears in the minutes is illegal on its face. As such it is a patent error which this Court of Appeal should consider without the necessity of an assignment of error. LSA-C.Cr.P. art. 920(2).

LSA-R.S. 15:529.1 governs the filing of an habitual offender bill and the effect of a finding by the court that the defendant is an habitual offender. When a defendant is sentenced under this provision of law, only one sentence should be imposed. It is for the new crime only, but the sentence will be more severe than it otherwise would be had the defendant not been adjudged an habitual offender. The habitual offender proceeding is in the nature of an enhancement of penalty, rather than a prosecution for a crime. State v. Stott, 395 So.2d 714 (La.1981); State v. Walker, 432 So.2d 1057 (La.App. 3rd Cir.1983).

Under the circumstances we have noted, and since we affirm the conviction, we will remand the case to the trial court for resentencing of the defendant to clarify the trial court’s intentions. It is possible that the trial court meant to impose an enhanced penalty of imprisonment of three years, a single penalty, and that the minutes simply are in error. However, we are of the opinion that a resentencing will be the appropriate mode of correcting the error. Upon resentencing the trial court can make clear to the drafter of the court minutes that only one offense and one sentence is involved.

We note that a single sentence of three years imprisonment, which the trial court appears to have intended, is less than the penalty which he might have given as an enhanced penalty. In fact, it does not exceed the maximum imprisonment which might have been given under LSA-R.S. 14:68 without enhancement which is three years. With enhancement the sentence could have been for as much as six years, i.e., twice the maximum for a first conviction under LSA-R.S. 14:68. See LSA-R.S. 15:529.1A(1). Inasmuch as the case will be remanded for reimposition of sentence, we decline to consider at this point defendant’s assignment of errors 3 and 4. We reserve to defendant the right to reurge these assignments after the reimposition of sentence by the trial court.

For the foregoing reasons the conviction of the defendant is affirmed. The sentence imposed is set aside, and this matter is remanded to the trial court for resentenc-ing of the defendant as a habitual offender consistent with the views expressed above. There is reserved to the defendant, upon resentencing, the right to again file an appeal on the assignments of error listed above as assignments numbered 3 and 4 should the defendant deem such application for relief appropriate.

CONVICTION AFFIRMED: SENTENCE SET ASIDE AND CASE REMANDED FOR RESENTENCING.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Isaac SMITH, Defendant-Appellant.
    No. CR 83-594.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 23, 1984.

      Dee D. Drell, Gold, Little, Simon, Weems & Bruser, Alexandria, for defendant-appellant.
    Edward E. Roberts, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The defendant, Isaac Smith, was convicted of second degree murder, a violation of LSA-R.S. 14:30.1. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant appeals the conviction. He assigns five errors. The first assignment, which attacks the constitutionality of the non-unanimous verdict (11-1), was raised for the first time in the appellant’s brief. It was not raised in the trial court and, therefore, has not been properly preserved for appellate review, State v. Zeno, 322 So.2d 136 (La.1975), and will not be considered.

Of the remaining four assignments three involve the sufficiency of evidence and the other assigns reversible prejudice to the prosecutor’s improper closing arguments.

We affirm the conviction. We will discuss the lack of merit of the assignments of error after first narrating the basic facts as they appear in the record.

FACTS

The shooting for which the defendant was convicted of second degree murder took place between 9:00 and 10:00 o’clock P.M. on July 24, 1981, at 2260-B Sycamore in the Karst Park public housing project in Alexandria, Louisiana. The defendant, Isaac Smith, and the victim, Judy Williams, had been living together for about two years at this address.

On the night of the victim’s death defendant and three male companions were inside the home drinking beer and listening to the radio. The victim was outside in the back yard talking to two juveniles and smoking. There was some testimony she was smoking Kool cigarettes; one witness stated that the victim and one of the juveniles were smoking marijuana. From time to time the victim entered the house and asked her husband and his friends if they needed anything. Each time she then returned outside through the back door.

Some time between 9:00 and 10:00 o’clock P.M. defendant got up and went outside where Judy was. At this time the victim was talking to the two juveniles in a field from 60 to 100 feet behind the house. Defendant walked up to the victim and said something to her, then both of them began walking back toward the house. This is when the shooting occurred.

She was killed by a .22 caliber bullet which entered the left side of her forehead from a weapon fired from two to six inches away. The weapon disappeared after the shooting.

Defendant testified. He said that the shooting was either an accident or a suicide because the victim killed herself with her own gun. He said she had been talking suicide and was preparing to leave him because of the attentions he had been paying to another woman. According to defendant, when he approached her in the field that night she was crying and he asked her to come inside; she then produced the weapon in her left hand and started scratching her head with the barrel. He attempted to get the gun away from her and it went off.

The two juveniles with the victim at the time of the shooting testified that the defendant walked up to her and told her to come inside, whereupon she responded, “For what? I haven’t done nothing.” These witnesses stated that as the two adults began to walk toward the house, the defendant pulled a gun and shot her in the head. On cross-examination the witness Cleophas Peterson admitted that he never actually saw a gun; he saw defendant’s hand move from behind him and saw the flash. The other juvenile, Amelia Green, could describe the gun only as a little, black pistol; she admitted that she did not see the gun well because of the darkness, and that she did not see where the gun came from. However, she repeatedly testified that the gun was in defendant’s possession and that he shot the victim with it.

The victim fell down at the place where she was shot and died there. Defendant walked back to his house. Later he backed his car near the body intending to take the victim to the hospital, but he was dissuaded by some persons in the gathering crowd. He then went inside the house, changed trousers from short pants to blue jeans, then drove to his grandmother’s house on a road outside Alexandria.

A police officer who was among the first on the scene noted that the victim was lying in the grass clutching a crumpled cigarette pack in her left hand. At about the same time the ambulance and a paramedic arrived. The victim’s pulse was checked at her neck and it was found that she was dead. A coroner’s investigator directed that the body be placed in a body bag and taken to the morgue. None of these persons saw anyone wash the hands of the victim. Gunshot residue samples were taken from the victim’s hands in the morgue and analyzed. The analysis showed no trace of gunshot residue.

The defendant was later apprehended at his grandmother’s house. He testified he called the sheriff’s office from there, identified himself and gave his grandmother’s address. The dispatcher on duty neither remembered nor had a record of such a call. The deputies who brought the defendant in said they found him because they were looking for him and not because they were directed to his location.

Gunshot residue samples were likewise taken from defendant’s hands and analyzed, with negative results. Defendant testified he did not wash his hands that night.

As stated earlier, the bullet removed from the victim’s head was a .22 caliber and all witnesses, including defendant, stated the weapon was a pistol. Defendant testified that Judy had a pistol and that a day or two before the shooting at a time while she was temporarily absent from the house, he found it and took it to his car where he hid and locked it in the trunk. At no time earlier during the evening before the shooting was either the victim or the defendant seen to be in possession of a weapon. The victim stood in the backyard for ten to twenty minutes talking with the two juveniles and, briefly, with a third person who passed by. None of these three saw the victim in possession of a gun. The victim was wearing a sun dress with no pockets and she was not carrying a purse. She was holding a package of cigarettes and a lighter and, according to one witness, she was holding a small towel to her jaw to comfort a toothache.

The three men in the house with the defendant testified for the defendant. The three persons who conversed with the vie-tim outside before the shooting testified for the State. None of these six witnesses noticed anything unusual about the victim’s behavior. She was not crying. She did not appear upset. Only defendant testified that she was distraught and talking suicide.

We will now examine the assignments of error.

Assignments of Error Nos. 2, 3 and 5

The defendant asserts that the testimony used to convict him was not credible, and that also there was an insufficiency of evidence to support a finding of guilt. For these underlying reasons the defendant asserts that the trial court erred in denying his post verdict motion for acquittal and alternatively for a new trial.

The State’s proof that the defendant committed the crime of second degree murder rests largely upon the testimony of the two eyewitnesses to the shooting, Cleophas Peterson and Amelia Green. Peterson was fifteen and Green was sixteen at the time of the shooting. They testified in essence that they saw the defendant pull a gun and shoot the victim. Peterson also stated that before the shooting he had been standing there with the victim smoking Kool cigarettes. This testimony was contradicted at trial in the following respects: the defendant stated that he did not pull a gun and did not shoot the victim; he testified that she shot herself. Cynthia Peterson testified that Cleophas Peterson and the victim were in fact smoking marijuana.

The testimony of one of the eyewitnesses was also attacked on cross-examination. At that time, Cleophas Peterson admitted that at the time of the shooting it was dark, that he could not see the gun coming out of the defendant’s pocket, and that he had assumed that the defendant shot the victim since he saw the defendant’s right hand move from behind him and then saw the flash from a gun. Thus, the credibility of one of the eyewitnesses for the State was assailed by contradictory testimony.

It is well-settled that whenever there is conflicting testimony as to factual matters, the question of credibility of witnesses is within the sound discretion of the trier of fact; such factual determinations will not be disturbed on review unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981); State v. Coleman, 432 So.2d 323 (La.App.1st Cir. 1983); State v. Walker, 432 So.2d 1057 (La.App.3rd Cir.1983).

The instant case may be analogized to State v. Walker, supra. In that case, only the defendant’s testimony negated the fact that he was the perpetrator. The Court held that there was no abuse of discretion in the trier of fact assigning greater credibility to witnesses other than the defendant, who testified in a self-serving manner. Similarly, in the instant case, there appears to be no abuse of discretion in the jury’s assigning greater weight to the testimony of the two eyewitnesses’ version of the facts rather than the defendant’s.

The standard of review of sufficiency of the evidence is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, could have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

In the instant case, the evidence, when viewed in a light most favorable to the prosecution, shows that Cleophas Peterson and Amelia Green saw the defendant with a gun in his hand shoot the victim in the head. The defendant’s claim that the victim was holding the weapon in her left hand and committed suicide is rebutted by the fact that the corpse was found to have a crumpled cigarette pack in the left hand. Moreover, at the time of her death the victim reportedly did not have a gun, and had a dress on without pockets or a waistband in which to conceal a gun, and she was not carrying a purse. Thus, there was both direct and circumstantial evidence showing that the defendant committed the crime, and that the victim did not commit suicide.

The only direct evidence contradicting the eyewitness version of the facts was that of the defendant himself, who insisted that the victim had committed suicide. The jury obviously chose not to believe the defendant’s version of the incident. It is well-settled that a jury’s choice not to believe a defendant should not be upset by an appellate court on the basis that the conflicting version constituted insufficient evidence. State v. Tompkins, 403 So.2d 644 (La.1981); State v. Walker, supra.

These assignments of error are without merit.

Assignment of Error No. j

The defendant asserts that the trial court erred in failing to grant a mistrial because of prejudicial remarks during closing argument by the district attorney implying that should the jury set the defendant free, it would be setting him free to “kill again.”

The following excerpt from the record contains the remarks to which objection was made:

REBUTTAL ARGUMENT ON BEHALF OF THE STATE

BY MR. ROBERTS:

Fll be very short.
There are several points made by the defense that I would like to take issue with, and let me begin with the last point he made to you, where he reiterated a story, a tale, a story from his experience in defending people charged with crimes, and you remember it, he just told it to you. Two eye witnesses recanted their story and the man was set free.
I can tell you stories too. He doesn’t want me to tell you a story, but I can tell you stories of having tried people for murder, and having a jury set them free, and having them commit murder again. But Pm not going to inflame you with those type of stories.
BY MR. DRELL: Note my objection to that comment, Your Honor.
BY THE COURT: Let it be noted.

The defendant timely moved for a mistrial and argues that a mistrial was improperly denied. He relies on La.C.Cr.P. art. 770 which reads in relevant part:

“Art. 770. Prejudicial remarks; basis of mistrial
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

The instant case does not fall within the prohibition of Article 770(2). The purpose of paragraph (2) of that article is to prohibit reference to other crimes already committed. Here, the prosecutor referred vaguely to the possibility defendant might commit some future crime.

Defendant’s assignment is governed by C.Cr.P. art. 774:

Art. 774. Argument; scope
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Under this article, a resort to personal experience goes beyond the proper scope of argument. State v. Barrow, 410 So.2d 1070 (La.1982). Also, a prosecutor’s predictions as to the consequences of a not guilty verdict, or the societal costs of such a result, are clearly improper and should be avoided. State v. Barrow, supra. However, such remarks do not necessarily require reversal.

Before a case will be reversed on the ground of improper argument, the reviewing court must be thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Barrow, supra. State v. Morris, 404 So.2d 1186 (La.1981).

We note in the instant case that the trial court’s charges to the jury not once but twice emphasized that the arguments of counsel were not to be considered as evidence. Moreover, if the remarks can be construed as a resort to personal experience or a prediction of the consequences of the verdict, they were made only to refute like assertions made by defendant’s counsel in his argument. The State on rebuttal had the right to answer the argument of the defendant. C.Cr.P. art. 774. State v. Winn, 412 So.2d 1337 (La.1982). It has been held that if the defense initially makes an assertion in closing arguments not supported by the trial testimony, the State has the right to go outside the record to refute it in rebuttal. State v. Morris, supra. In the instant case the defense counsel had just ended his argument by relating a story about an innocent person who was almost convicted. The State was entitled to rebut the argument in some manner. The State chose to rebut by telling the jury that if defense counsel knew of cases where the innocent had been exposed to conviction, the State knew of cases where murderers had been freed to kill again.

Under the circumstances of this case we do not believe that the remarks were improper. Even if they were, however, we think it unlikely that the remarks influenced the jury or contributed to its verdict.

This assignment is without merit.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: CUTRER, Judge.

text:
    Symantha LEGER, Plaintiff-Appellant, v. Cason B. DELAHOUSSAYE, Jr., Defendant-Appellee.
    No. 83-1093.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 1984.

      Alfred S. Landry, Jr., Lafayette, for plaintiff-appellant.
    Vincent J. Saitta and Charles J. Bou-dreaux, Lafayette, for defendant-appellee.
    Before FORET, CUTRER and KNOLL, JJ.
   CUTRER, Judge.

MOTION TO DISMISS

The defendant-appellee, Doctor B. Cason Delahoussaye, Jr., moves to dismiss the appeal of plaintiff-appellant, Symantha Leger, on the ground that Leger has voluntarily and unconditionally acquiesced in the judgment thereby abandoning her right of appeal.

Leger filed suit against Doctor Delahous-saye seeking damages for an intentional tort. Doctor Delahoussaye filed an exception of prematurity in May of 1982. On August 18, 1983, after the submission of multiple memorandums directed to the exception by both parties the trial court sustained the exception of prematurity dismissing Leger’s action without prejudice. Pursuant to the ruling, Doctor Delahous-saye’s attorney prepared a document titled “Judgment of Dismissal” and forwarded the same to Leger’s attorney who signed the Judgment of Dismissal and returned it to Doctor Delahoussaye’s attorney. On August 23, 1983, said judgment was signed by the trial judge. Subsequently, the judgment of dismissal was amended substituting the notation “Approved as to Form Only” for the notation “Approved as to Form and Substance”. From the amended judgment Leger perfected an appeal to this court.

Doctor Delahoussaye filed a motion to dismiss this appeal alleging that Leger has voluntarily and unconditionally acquiesced in the judgment due to the alleged fact that her attorney signed a judgment prepared by the opposing counsel which contained the notation “Approved as to Form and Substance.”

Louisiana Code of Civil Procedure Article 2085 provides:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiescence in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

Acquiescence in a judgment is never presumed, and the party alleging abandonment must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce and to abandon his right to appeal. Hoyt v. State Farm Mut. Auto. Ins. Co., 413 So.2d 1003 (La.App. 3rd Cir.1982). Furthermore, appeals are favored in law, and forfeiture of a party’s right to appeal through acquiescence should be decreed only when the party’s intention to acquiece and to abandon his right of appeal is clearly demonstrated. Major v. Louisiana Department of Highways, 327 So.2d 515 (La.App. 1st Cir.1976).

In the present case we find that the mere words “approved as to Form and Substance” are not sufficient to show an intention on the part of Leger to acquiesce and to abandon her right to appeal particularly in light of the custom allowing the prevailing attorney to prepare the judgment. In the absence of further factual allegations of such manifestation, the motion to dismiss the appeal has no merit.

MOTION DENIED.


author: HAWKINS, Justice,

text:
    Roosevelt MYLES v. ROCKWELL INTERNATIONAL, a Self-Insurer.
    No. 53951.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    As Modified Peb. 28, 1984.
    John R. Coleman, Coleman, Breard & Walker, Tupelo, for appellant.
    Wade H. Lagrone, John S. Hill, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

This is a workmen’s compensation case. Six years have passed since the claimant suffered his injury. The claim was initially before the administrative judge for almost two years before resulting in a grant of temporary total disability for a period of three and one-half months. The full commission affirmed this determination but amended to allow a right to re-open for a new compensation order because, “no evidence has been developed to indicate that the claimant has sustained any permanent disability or wage earning loss as a result of his compensable injury.”

For over four years the administrative judge and full commission have been: reviewing the testimony of the original hearing, where examining physicians appeared by way of depositions; hearing testimony of subsequent examining physicians, psychiatrists and psychologists; listening to the claimant and to his family. They continue to fail to see the merits of Roosevelt Myles’ claim and therefore, we reverse and render.

The facts are clear. Myles was injured on the job at Rockwell International when a grinding rock fly wheel, with which he was sanding table tops, flew apart. The pieces of stone struck his face and chest. He was knocked unconscious. The blow broke his jaw, several teeth, caused a concussion and severe lacerations to his face, chest, arms and shoulders. These injuries required surgery and a week of hospitalization.

Myles had a good work history up to the time of this injury. He had grown up on his father’s farm and helped run it; served his country honorably for three years during World War II; returned to marry, move to Chicago, and raise and support a family by holding four steady jobs over a seventeen-year period. Myles has never been a recipient of welfare, unemployment, or Social Security. He always maintained a job, changing employment only when it bettered his position and pay. He worked for the railroad, a paint store, a hardware company, and Rockwell during his career.

All of the witnesses testified that since Myles was injured, he had been unable to perform any labor because of his condition. He attempted to return to his old job at Rockwell but was not allowed to operate the machine.

The physicians who treated Myles’ physical complaints shortly after the accident revealed their findings by way of deposition.

Dr. Tutor examined Myles in the emergency room of the hospital shortly after the injury. He found: lacerations in the temple region and upper lip; that Myles had been rendered unconscious and suffered a cerebral concussion; there was no sign of intra-cranial bleeding; that he had a facial fracture which Dr. Robertson was consulted for; and he gives credit for Myles’ subsequent discharge to Dr. Robertson. Examining Myles two months later, Dr. Tutor found no residual abnormality.

Dr. Brown Robertson, a doctor of the ear, nose and throat, practices a specialty of treating traumatic injury to the face and facial bones. He saw Myles at the request of Dr. Tutor. Dr. Robertson treated Myles for his broken jaw and “through and through” cheek laceration. Although x-rays showed a fracture, treatment was primarily supportive. There was evidence of blood in the sinus. He saw Myles daily until his discharge from the hospital by Dr. McDuffie a week later. He continued to see Myles in his office for four months. He found on these subsequent visits that Myles had suffered broken teeth in the accident; had “only about 70 per cent capacity to open” his mouth; and that the fractures continued to be evident but that he “expected” them to heal completely. The doctor noted that Myles lumped the facial pain and headache together; that “the pain at the site of the injury is compatible with the type injury that he had”; that a post-traumatic headache would be compatible with the concussion suffered; and “felt like from the injury he was doing well.” Realizing the possibility of dizziness and headaches, Dr. Robertson felt Myles should not work equipment because he could injure himself. [Emphasis added]

Surprisingly this doctor, in his own words, “did not get around” to administering an audiogram despite having noted that Myles complained of not hearing well and the fact that his specialty includes the ear. The doctor stated, “a severe blow in the region that he received could cause damage to the hearing; it certainly could.”

Dr. Bowlin treated Myles for a pulmonary emboli, upon the request of a Dr. McDuffie, three months after the work-related injury. He corroborated the head injury, concussion and jaw fracture. He found a possible connection between the chest pains and head injury and x-rays did not exclude the possibility of leg and chest blood clots. Dr. McDuffie discharged Myles from the hospital.

Dr. Hawkes, a Memphis neurosurgeon, examined Myles five months after the injury at the request of Dr. McDuffie. He hospitalized Myles for nine days during which time observations were made and tests were run to observe his general condition, condition of skull and spine, eyes and nerves about the head, his motor functions, sensations, coordination and reflexes. An electroencephalogram and computerized brain scan were done. The results were a finding of reduced hearing and weakness of muscles in the lip; degenerative changes in the fifth and sixth vertebrae; a limitation of the neck and weakness of facial muscles due to the blow received. These were the only objective neurological findings made by Dr. Hawkes. Unfortunately, one will never know more about his findings than this. The deposition was taken at the request of Rockwell and no attorney was present to represent claimant Myles. It is difficult to comprehend how nine days of observation and testing could reveal so very little about Myles’ condition.

Also, unfortunate, is the fact that Dr. McDuffie, one of Myles’ treating physicians, was not deposed, submitted no report, nor did he appear to testify about Myles’ condition at any of the numerous hearings.

A two-page report by psychiatrist Jan Goff, submitted on behalf of Myles at the second phase of the first administrative hearing, shows findings one year after the injury. They include psychiatric symptoms of “discouragement of not being able to work, and some fearfulness of reoccur-rence of injuries_” Myles exhibited average cognitive functions for remembering dates and events. He walked with a limp. There was no family psychiatric illness, no evidence of malingering or of exaggeration of illness, no reason to doubt that he had pain. Based on this medical testimony, the administrative judge awarded Myles temporary total disability which the commission affirmed with an amendment insuring the right to re-open. They also granted Myles’ attorney compensation.

This Court has a difficult time finding that Roosevelt Myles was adequately represented when his attorney, at the initial hearing, had no medical testimony to present to the administrative judge and that five months later did not appear, but sent his brother to represent the claimant. The brother admitted knowing nothing about the case. Myles’ attorney also failed to appear for his claimant at the deposition of Dr. Bowlin, another attorney appearing for Myles; and in not showing up at all in Memphis at the deposition of Dr. Hawkes. Myles’ attorney introduced a report by Dr. Goff to the commission rather than have the psychiatrist appear in person. Dr. Goff lives and practices in Tupelo where the hearings were held before the administrative judge. His attorney also failed to take the deposition or testimony of Dr. Love or Dr. McDuffie, both treating physicians for Myles, and failed to explain in the record why their testimony is unavailable. Regardless of these oversights on the part of his attorney, the commission felt that his job had been adequately performed and awarded him 25 per cent of all compensation.

Myles, with a new attorney, petitioned for further hearings and submitted additional testimony which included that of Dr. Goff, Myles’ sister and daughter, and a report by clinical psychologist Barry Ritzier, Ph.D.

Dr. Goff, in testimony at a commission-ordered hearing to re-open before the administrative judge, reviewed his earlier report and substantially enlightened his earlier findings. He found that Myles complained of chest pains and back tenderness; his medical history showed a blood clot treated earlier by Dr. Bowlin. Myles walked with a limp, had pain in his legs, arms, and shoulders since the work injury.

Myles had significant symptoms that would impair his ability to function in a number of areas. He had a lot of difficulty concentrating, a slowing down — described as psychomotor retardation — physical slowdown. Myles could probably do some uncomplicated type of work but could not say what his capacity would be, but it certainly would be impaired. He could not do again what he had done before; he would be limited to a menial-type job and would be slower than average. Based on a 0-to-100 scale, he could not work on dangerous machinery at all.

Dr. Goff stated that the cause of the disability was the injury and subsequent symptoms arising from the accident; the psychiatric problems set in within three to four months of the injury and it is difficult to separate the physical from the psychiatric problems. “The injury and accident was a precipitating cause ... a precipitating force.”

Again, Dr. Goff found no evidence of malingering, and stated that the difference in the initial report and his recent findings showed changes that had been gradual and for the worse. Dr. Goff found in his first report and exam that Myles was depressed and had psychosomatic complaints,

And even though it had been a year after the injury, which is longer than the usual time for traumatic neuroses or depressions to carry on, I still believed that he had a reasonable chance for recovery. Several reasons ... seemed motivated to recover ... not trying to exaggerate or prolong his symptoms ... had a reasonably good work history ... there was a statistical reason that relatively few cases of traumatic neuroses, when the trauma involved an accidental injury in one episode, carry on and become chronic illnesses. However, this appears to be the case_that’s the exception, ... the ease of Mr. Myles_on 3-31-80, ... he had a moderate degree of psycho-motor retardation ... and ... difficulty remembering recent events_ He had a rather poor ability to concentrate and, in general, his affect appeared to be more depressed than I had seen him before. ... I found no evidence of psychotic type of disorganization and while the patient feels very apathetic, he denies any suicidal wishes. He describes having terminal insomnia, ... This is typical of an endogenous type of depression. Endogenous referring to a more chronic type of depression.... The patient is able to eat, but he is not enjoying eating, nor does he enjoy any of the other minor or major pleasures he used to engage in. His content still centered on his multiple physical complaints and he tends to express his depression in terms of aches and pains. I believe that touches on the reason for my difference of opinion. I thought that the patient was different. And it is based on the information that I have.

Dr. Goff states that his earlier prediction that Myles would get better was in error. He stated that the severity of Myles’ problem was different on the second exam. He said that at the first exam he would not have estimated the same degree of disability as then Myles exhibited a fairly typical post-traumatic syndrome, but the more recent interview revealed that the disability had increased. His opinion was based on his history and comparing how he was doing at the time he saw him as compared to the history taken from Myles and some other informants as to how he had done before the accident. These “informants” were Myles’ daughter and sister. The administrative judge delayed five months writing his opinion denying the petition to re-open and dismissing the cause, stating, “the opinion of Dr. Goff was based on hearsay ...”

The full commission delayed eight months in rendering its order to re-open Myles’ claim and they granted him the right to re-open because, in their opinion, “[the] claimant has not been afforded adequate opportunity to fully develop all pertinent and relevant proof related to his petition to re-open.” At the commission-ordered hearing testimony was again given by Dr. Goff. Myles’ sister and daughter also testified to clarify their statements referred to earlier as hearsay.

Myles’ sister, Thelma Mabry, stated that Myles had no past depression or psychiatric problems. He had always held a steady job since leaving the farm and never left one job without having acquired another. Prior to the accident, Myles was a good worker, loved to go to church, had good friends, loved and played with the children and kept his home in good shape, doing all the work around the house and yard. After the accident Myles was not himself. He does not have a good memory, does not socialize, does not attend church, is not energetic, and does not do his housework. He sits around and sleeps during the day, she helps with his household chores. He has not improved. He has not worked since the accident. He is 100 per cent disabled. Myles tried to go back to work a part of a week but could not stay. He has worsened in the past six months. He “goes down in his knees” and must use a cane when walking.

Myles’ daughter, Phyllis, stated that he has changed a lot since the accident. He is ill all the time, has no patience and is irritable. He was never like this before. He has to lay down and rest, does not get much sleep, is restless, has constant headaches, and has no appetite. She must put food before him and make him eat. Her father has always worked and never has drawn unemployment. Since the accident he has not gotten better. Before the injury he took “us children” everywhere but does not play or do things with “us” since the accident.

Again Dr. Goff testified, reiterated his earlier findings but added that:

The final diagnosis now is sort of a chain of events. The final diagnosis now is: (1) major depressive disorder. (2) He has psychogenic pain disorder. I believe, and there are probably some conversion reaction components in there. I do not know for sure whether the headaches that he complains of are on a post-concussion— that is physical injury — or whether they are on a post-traumatic psychiatric injury.

Dr. Goff referred to the testimony of Dr. Hawkes which had been admitted into evidence previously where Dr. Hawkes diagnosed Myles’ headache as post-traumatic. Dr. Hawkes also diagnosed a concussion and Dr. Goff felt that to be significant. He explained:

It’s not like in some forms of physical medicine ... it’s a different disease — you know — it’s not like he had on one hand a kidney disease, and then now he has pneumonia. I see this along a continum, and as these disorders become stretched out, they do tend to become more in the range of depressive disorder. So that’s really why I’m changing the diagnostic wording into a depressive, insomatization because of the chronicity, and some changes in the symptoms — mainly towards the depressive quality — lack of interest, apathy, etc.
By definition of the text, it has become chronic.
He seems to be pretty much totally disabled.
I believe he’s been totally disabled the whole time.

The following was heard from Dr. Goff on cross-examination by Rockwell’s attorney:

Q. We are not dealing here with a psychiatric illness, neuroses, which is generally emotionally caused anyway, are we? You can say in a case of some psychiatric illnesses that a physical injury, a trauma, a blow, or something could actually cause psychiatric illness?
A. In this case, his injury falls into the category of severity that would cause a psychiatric illness in the average person that level of trauma. It’s considered that level of trauma. Injury, loss of consciousness, sud- • denness head injury is labeled severe in the diagnostic statistical manual, and then you have — when you have that level of trauma — then you have the probability of post-traumatic stress syndrome.
Q. And he has that?
A. Yes.

On further cross-examination Dr. Goff was asked if a secondary gain was an ingredient. He answered that usually, or almost always, there was. Dr. Goff explained secondary gain is a factor in a prolonged illness. He said that it always has to be weighed and that it can constitute a financial gain or a desire for emotional attention from the family or sympathy from friends. He stated that one always has to weigh the secondary gain as secondary to the primary gain which would be the reduction of tension, anxiety or depression. He reiterated that the secondary gain has to be weighed against the primary gain.

Q. And is it not true that this secondary gain — that’s the same thing as the subconscious desire for money or something else?
A. That could be one example of it, yes.
Q. Trying to get money out of this litigation, and finally succeeding in doing it — for instance, this would be a way to — you feel like this would be the acid test of determining how much of his condition is due to the secondary gain?
A. Well, it would be a test. I couldn’t say it would be acid test, but a test. It would help with the information.

There is reference to Myles’ inflexible personality in the record. Dr. Goff explained this by saying that Myles is “kind of an average guy who is fixed in a groove that was working for him ‘X’ number of years.” That it “makes him a bad candidate for psychotherapy.” He “doesn’t have the kind of flexibility which would allow a talking therapy to allow enough understanding to remove the symptoms.” That the most organic therapies are all you’re left with and that one could not expect much from such patients.

Dr. Goff stated that he had a problem when he first interviewed Myles and that while he agreed that Myles was disabled, he was unable to tell whether he was going to remain disabled. He said he did not think he could make a prediction on that with any reliability at that initial time.

In the administrative judge’s order, issued two months after the hearing, he denied any modification and dismissed the cause. He was clearly in error in his factual findings that:

Dr. Goff’s connecting [the injury to the illness] is nothing more than claimant’s own subconscious mind which could be motivated for reasons of his own to create and perpetuate a disability for which there is no physical reason, it should be clear that such a connecting link is not what is contemplated by the Act and cannot be considered “causally related” to the injury. A relationship between an event and a disability existing only by virtue of a connection made by a sick mind in order to collect compensation or sympathy from one’s friends is hardly considered what is essential to a claim for compensation.

And that:

Psychiatric claims by their very nature are to be regarded with suspicion and the evidence and support should be clear and convincing. What is presented in this case to the commission is a claim which was originally litigated on the basis of an alleged totally disabling physical injury. After claimant failed to acquire any testimony in support of that claim and after the decision had become final, he goes back to the psychiatrist some 15 months after his initial visit and some seven or eight months after his claim is denied and obtains an opinion that he has a depressive illness which occasions the filing of the Petition to re-open. This can only be viewed as an effort to relitigate the original case on a different theory. Since there is no evidence that claimant’s disability status is changed or that there was any genuine mistake in any determination of facts at the initial hearing, it seems clear that the commission does not have jurisdiction to re-open this case on either the grounds contemplated by § 71-3-53, Miss.Code Ann. (1972). Nevertheless, the commission has, in effect, “re-opened” this case and has allowed claimant to put on all his testimony which might touch upon the merits of the matter. Viewed in this light, claimant still fails to convince this Administrative Judge that there should be any change in the previous order of the commission because he has failed to show a causal connection between his psychiatric condition and the original injury within the meaning and contemplation of the compensation Act. His disease simply does not arise out of his employment and was not caused by his injury. [Emphasis added] The only connection between his condition and the injury is one that claimant’s mind, for reasons of his own and perhaps even for pure economic gain, chooses to make.

Myles’ attorney, on November 13, 1981, petitioned the full commission for a review but failed to get a response. On February 23, 1982, while waiting, he submitted to the commission, under Rule B-9, a report by clinical psychologist Barry A. Ritzier, Ph.D., of findings from the following tests administered to Myles: Weschler Adult Intelligence Scale, Rorschach, Bender Gestalt, House-Tree-Person Figure Drawings.

The test results clearly indicated “severe psychological dysfunction resulting from brain damage and a chronic post-traumatic stress disorder,” and a score of 66 on the I.Q. test, placing him in “the borderline to retarded range of intelligence. There has been a significant deterioration in intellectual functioning since the accident.” The “moderate to severe brain damage” usually accompanies “serious close-headed trauma of the sort sustained by Mr. Myles.” The damage in Myles’ case is located in the “lower central section of the brain — an area predominately affecting emotions and motivation.” His symptoms have “an organic, and well as a functional cause.”

A month later the commission affirmed the administrative judge’s order and denied the additional evidence submitted pursuant to Rule B-9. The Circuit Court affirmed without comment.

The administrative judge based his final opinion on North Mississippi Medical Center v. Henton, 317 So.2d 373 (Miss.1975). In that case, which interestingly enough also originated in Lee County, Justice Broom wrote for this Court. The issue was whether “there [was] sufficient evidence of a change in conditions to warrant the re-opening of the case and the issuance of a new compensation award.” The employee had been awarded compensation by the attorney referee. The Workmen’s Compensation Commission reversed, Lee County Circuit Court reversed and reaffirmed the award, and the Supreme Court reversed and reinstated the full commission’s order denying compensation.

The claimant complained of back injuries and the referee ordered temporary total disability compensation based on medical evidence. Later, the claimant filed a petition with the full commission to re-open on the grounds of a change in conditions pursuant to Miss.Code Ann. § 71-3-53 (1972). In the petition to re-open the claimant alleged that since her claim had been awarded, her employment with the medical center has been refused. Claimant stated that she could not obtain similar employment because of her back surgery. This Court stated:

The commission’s order held that a change in conditions must be supported by an actual physical change in the condition of the injured employee, and that the term was not intended to include “merely a change in the employment status or change in position of the employer as to the disability or value of the continued employment of the injured employee.” The Circuit Court, in its reversal of the commission’s order, noted that the term “change in conditions” encompassed more than just a change in physical conditions, and that the term could also include the change in employment conditions.
Decisions and awards of the Mississippi Workmen’s Compensation Commission may be reviewed by the commission within its sound discretion ... Upon proper proof of “change of conditions” or “mistake in the determination” of facts ... A change in conditions is usually considered to mean a change in physical conditions due to the original injury which affects an employee’s earning capacity or ability to work. 101 C.J.S. Workmen’s Compensation § 854 c (1958). A change in the claimant’s ability to get or hold employment or to maintain prior economic levels is by one outstanding text writer also considered to be a change in condition, even though the physical condition may remain unchanged. 3 Larson, Workmen’s Compensation Law § 81.31 (1973)_
In examining the record in this case, it is noted that at the hearing on the claimant’s petition to re-open, no additional medical evidence was presented which would support a finding that there had been a change in the claimant’s physical condition. Additionally, the claimant did not establish that she had been refused employment because of her disability. At 375. [Emphasis added]

Henton is not proper precedent for the facts of the instant case.

In Dunn, Workmen’s Compensation § 114, one finds the following:

Mental or nervous diseases. In most cases, the decision depends primarily upon testimony relating to objective physical findings and causal connection. But there is another type of case where the medical evidence fails to trace the claimant’s complaint to any physical cause, yet the claimant suffers disabling pain following an accident. In these cases, the discussion may turn to the theory of traumatic psychoneurosis as distinguished from compensation psychoneurosis or malingering. Awards have been allowed when an injury occurs and the claimant claims to suffer disabling pain, provided there is no evidence of malingering and the claimant’s testimony regarding pain is not contradicted or shown to be inherently improbable, incredible, unreasonable or untrustworthy and this result has been obtained despite the fact that the medical witnesses can find no physical basis for pain.

The above cites Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442 (1953), and M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300 (1952). In Reyer, Pearl River Circuit Court affirmed the Workmen’s Compensation Commission order denying benefits. Therein Mrs. Reyer was injured, along with several other employees, when the truck in which they were riding ran down an embankment and tilted over. Mrs. Reyer complained of aches and pains. Upon examination, the doctor found no external signs of injury.

His idea was that she had a neuritis. In a nerve injury there is no sign. A lick of the kind of which she received “could upset the central nervous system to the point she would suffer a lot from it.” 219 Miss, at 215, 68 So.2d 442.

She was discharged by her doctor and given “all of the time he thought the compensation commission would allow: that patients usually snap out of such condition.” The doctor stated that his retroactive opinion was,

That she received an injury to her nerves and the affected parts. He also testified that the medical profession depends upon neurologists to aid them in determining whether a patient suffers pain from a nerve injury. At 215-216, 68 So.2d 442.

Mrs. Reyer was examined by a neurologist who found that:

The above complaints are rather typical of a mixed neurosis. She shows both anxiety and conversion symptoms. The distribution of her pain is typical of a conversion psychoneurosis. It would be hard to differentiate between a traumatic psychoneurosis and compensation psychoneurosis in this case. It is doubtful that a wreck would have produced these symptoms in an individual that did not already have a neurotic personality makeup. It is possible that the accident was a precipitating factor. At 216, 68 So.2d 442.

We held in Reyer that the woman had received an injury and that there was conclusive proof that she suffered pain and would be unable to work, stating that:

The inability of doctors to put their fingers on the exact physical cause should not result in casting the claim overboard. ... The evidence for the claimant was neither disputed nor contradicted in its material features. It was not inherently improbable, incredible, unreasonable, or untrustworthy. In certain circumstances, it should not be arbitrarily and capriciously rejected. At 217, 68 So.2d 442.

To this writer, these facts and findings would be applicable in Roosevelt Myles’ case.

In the M.T. Reed Construction Co. v. Martin case cited in Dunn, above, a carpenter had sustained a broken leg which resulted in a shortening of that leg by one-fourth inch. His physician and surgeon did not anticipate pain and felt that normal functions would be restored. He felt that the claimant would suffer a ten per cent permanent disability, not to exceed twenty per cent. (See pages 215 Miss, at 474-475, 61 So.2d 300) The claimant and a second doctor testified that his disability was much greater. The claimant complained of swelling and pain and the necessity of taking pain relievers and the use of liniments and pads to reduce pain and swelling. This second doctor corroborated this testimony and found atrophy in the knee joint with evidence of edema. He stated that it would be hazardous for the claimant to do the job he had before and that his work would be unsatisfactory. He declined to state a percentage of disability, but stated that it was not his opinion that the claimant could recover. This Court found:

The evidence of the two doctors is not actually conflicting, but can be easily reconciled. One doctor, on the basis of his treatment and findings at the time of discharge, was of the opinion that the disability amounted to 10 per cent, which he subsequently increased to 20 per cent. This was, in effect, a prediction as to what would happen in the future. Against such prediction was the positive testimony of the other doctor, who found the knee to be swollen; that it fluctuated in size; that the claimant suffered pain; that he was unable to work; and that he can never recover. This evidence verified and confirmed the claimant’s version. At 476, 61 So.2d 300.

This Court stated that it had considered the whole evidence and that it had led to the conclusion that he was totally and permanently disabled. The recovery was limited, however, to a maximum period allowed when a loss of the use of a leg is found. (See page 478, 61 So.2d 300)

A considerable body of authority supports the proposition that the findings of fact by the Workmen’s Compensation Commission must be upheld so long as those findings are supported by substantial evidence. However, this Court has held that where there is no substantial evidence to dispute the claim of the employee, a decision by the commission denying an award should be reversed. See Nassar v. Latex Construction Company of Georgia, 256 So.2d 204 (Miss.1971).

In Masonite Corporation v. Fields, 229 Miss. 524, 91 So.2d 282 (1956), this Court found that when the decision of the Workmen’s Compensation Commission is clearly erroneous and adverse to the overwhelming weight of the evidence so that the commission’s order fails to carry out the beneficient intent and purpose of the Workmen’s Compensation Act, this Court must reverse the order of the commission. In support of this rule, they cite:

M.T. Reed Construction Company v. Garrett, 249 Miss. 892, 164 So.2d 476 (1964); Scott v. Brookhaven Wells Service, 246 Miss. 456, 150 So.2d 508 (1963); Shannon v. City of Hazelhurst, 237 Miss. 828, 116 So.2d 546 (1959); Russell v. Sohio Southern Pipelines, Inc., 236 Miss. 722, 112 So.2d 357, 113 So.2d 667 (1959); ...

In Hemphill Drug Company v. Mann, 274 So.2d 117 (Miss.1973), this Court reviewed the claim of a man who was seriously injured while operating a delivery vehicle. Mr. Mann had a fractured leg and several other lacerations, abrasions, and contusions. While he was awaiting surgery for the broken leg, he developed a psychosis which manifested itself in hallucinations, delusions, and depersonalization. His leg healed, but he was kept on drugs for his psychosis. A little less than a year later, he sustained another injury. The treating physician of this second injury stated that there was no connection between the broken leg and the subsequent fall, but that the overuse of his medication for his psychosis had caused an organic brain syndrome.

In addressing the issue of the compensa-bility of an emotional disorder aggravated by a work-related injury, this Court quoted Larson, The Law of Workmen’s Compensation, Vol. 1A, § 42.22, Page 622.162 (1967):

When there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held full disability including the effects of the neurosis is compensable. Dozens of cases, involving almost every conceivable kind of neurotic, psychotic, depressive, or hysterical symptoms or personality disorder, have accepted this rule.... Professor Larson also finds authority to indicate that when an emotional weakness precedes the aggravating physical injury, the claimant may be compensated to the extent his emotional weakness has worsened or to the extent a new, more serious psychological disorder is precipitated. The learned professor states: “As in other connections, pre-existing weakness in the form of a neurotic tendency does not lessen the compensability of an injury which precipitates a disabling neurosis.” [Larson, P. 26.168]

The test of causal connection between a work-related accident and a psychoneurosis subsequent to that accident is a test of “clear evidence.” See Hemphill, supra; National Metal Corp. v. Huffstatler, 184 So.2d 877 (Miss.1966); Powers v. Armstrong Tire & Rubber Co., 252 Miss. 717, 173 So.2d 670 (1965); Johnson v. Gulfport Laundry & Cleaning Co., 249 Miss. 11, 162 So.2d 859 (1964).

The record reveals that Roosevelt Myles is a 55-year-old Black man with a limited education. He served his country for three years during World War II, grew up on a farm and help run it both before the service and after, maintained a job continually for seventeen years, raised a family, and supported them. The initial finding of the attorney referee, affirmed by the commission, was that Myles had suffered a temporary total disability as a result of a work injury. The record had ample medical testimony to support this finding as well as uncontradicted medical evidence of continuing mental, emotional, and physical disorders subsequent to the accident and precipitated by only the accident. No proof of any other possible cause was presented.

Clearly an injustice has been working here: Myles’ injury occurred six years ago. In that time, he has received but a few months’ disability compensation. There is clear evidence that Myles was insufficiently represented by his initial attorney. It is also clear that the factual determinations of the attorney referee were in error, not supported by the testimony, and cannot be allowed to stand.

For the reasons stated, this case is reversed and rendered to award Roosevelt Myles total permanent disability with interest.

REVERSED AND RENDERED.

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


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    Jimmy BOYKIN v. Sue B. BOYKIN.
    No. 54588.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Robert C. Grenfell, Jackson, for appellant.
    E, Howard Eaton, Taylorsville, for appel-lee.
    ■ Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice,

for the Court:

Jimmy Boykin appeals from a divorce decree of the Chancery Court of Smith County in which the chancellor, after granting him a divorce from his wife, awarded possession of the home to the wife until she remarries or moves.

The only issue we address on this appeal is whether the chancellor erred as a matter of law, or was manifestly wrong in awarding possession of the residence to the wife. Persuaded the chancellor had authority to award possession to the wife and was not manifestly wrong, we affirm.

Mr. and Mrs. Boykin married on April 14, 1962, and lived together as husband and wife until they separated January 9, 1982. Two sons were born of their marriage, one 18 years of age at the time of trial,' and the other 14. She filed suit, he answered and cross-complained. The proof for both was rather weak, but the chancellor awarded the divorce to the husband, and there was no cross-appeal by Mrs. Boykin.

It was the desire of the younger son to remain with his father, and the chancellor awarded custody to Mr. Boykin. The older son desired to live with Mrs. Boykin.

The chancellor awarded possession of the home to Mrs. Boykin until she remarries or moves, and required Mr. Boykin to pay the monthly notes of $58.00 each, secured by a deed of trust against the home.

Mr. Boykin appealed, and alleges the chancellor erred in giving Mrs. Boykin possession of the home. The basis of his contention is that since the minor son is living with him, and he was awarded his custody, as a matter of law he was entitled to possession of the home. There is no Mississippi case directly in point.

We have recently held that a decree awarding possession of the marital residence to the wife may be construed as continuing alimony. McIlwain v. McIlwain, 441 So.2d 517 (Miss.1983, and not yet reported). Further, in a domestic relations case, there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.

Counsel for Mr. Boykin argue cogently that because custody of the child was awarded to him, he is entitled to possession of the home. He cites several cases from Florida and Alabama to support this contention. See: Zeller v. Zeller, 396 So.2d 1177 (Fla.App.1981); McMaster v. McMaster, 379 So.2d 189 (Fla.App.1981); Weaver v. Weaver, 394 So.2d 378 (certiori denied Ex parte Weaver, 394 So.2d 380 (Ala.1981)) (Ala.Civ.App.1980); Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980); Ray v. Ray, 379 So.2d 627 (Ala.Civ.App.1980); Hausler v. Hausler, 382 So.2d 806 (Fla.App.1980); McDonald v. McDonald, 368 So.2d 1283 (Fla.1979); Alford v. Alford, 364 So.2d 1255 (Fla.App.1978); Bailey v. Bailey, 361 So.2d 204 (Fla.App.1978); and Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977). We construe these cases, at least insofar as they have any application in this state, that as a general rule it is better to award possession of the marital residence to the party who is given custody of the children.

This is not, however, nor should it be, a rigid rule requiring adherence in every ease. There are times when such a rule should be strongly emphasized, as just as patently there may be times when it is not so important.

The parties in this case had been married twenty years. Both are good citizens. The chancellor heard all the testimony, viewed the situation of the parties as only a trial judge can, and we are unable to say he was manifestly wrong under the facts of this particular case.

AFFIRMED.

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


text:
    MID-SOUTH PACKERS, INC. & American Motorists Insurance Company v. Billy WILSON.
    No. 54724.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    S.T. Rayburn, Richard C. Coker, Sum-ners, Hickman & Rayburn, Oxford, for appellants.
    David O. Butts, Jr., Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    Oscar Lee TODD and Fedison Todd v. STATE of Mississippi.
    No. 54644.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    John Grisham, Jr., Southaven, for appellants.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

Before BOWLING, PRATHER and ROBERTSON, JJ.

AFFIRMED.


text:
    Gordon G. CLARK, Carl Clark, et ux v. Naif JORDAN.
    No. 54172.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    Michael J. McElhaney, Jr., Megehee, Brown, Williams & Mestayer, Pascagoula, for appellants.
    William T. Reed, Wiesenburg & Reed, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

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

AFFIRMED.


text:
    Henry Allen CARADINE, Jr. v. STATE of Mississippi.
    No. 54771.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    James P. Vance, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


author: PRATHER, Justice,

text:
    STATE of Mississippi v. Darwin M. MAPLES.
    No. Misc. 1224-A.
    Supreme Court of Mississippi.
    Feb. 15, 1984.

      Louis J. Guirola, Jr., Pascagoula, for appellant.
    Richard W. Hamilton, Wright & Hamilton, Pascagoula, for appellee.
   ON PETITION FOR WRIT OF PROHIBITION

PRATHER, Justice,

for the Court:

This petition for a writ of prohibition, filed by the District Attorney of the Nineteenth Circuit District, seeks to prohibit the Circuit Court of Jackson County from granting an appearance bond to Bryan R. Burke, whose conviction is on appeal.

The question presented is whether the circuit court has lost jurisdiction to grant an appearance bond after Burke’s appeal to this Court was perfected. We hold that the circuit court did have such concurrent jurisdiction with this Court. Therefore, the writ of prohibition is denied.

I.

On May 5, 1983, Bryan R. Burke, whose appeal is presently pending, was convicted of attempted armed robbery in the Circuit Court of Jackson County, Honorable Darwin M. Maples presiding. On June 13, 1983, an advance certificate of appeal was issued to this Court advising of Burke’s conviction and sentence.

A petition to have an appearance bond set was heard on September 16, 1983, in the Circuit Court of Jackson County. The state’s position is that the circuit court lost jurisdiction since appeal had been perfected in this Court; the defendant, Burke, contends that the circuit court has jurisdiction for purposes of setting an appearance bond under Mississippi Code Annotated section 99-35-115 (1972), concurrent with this court.

Judge Darwin Maples granted an appearance bond to defendant Burke in the amount of $40,000.

This writ of prohibition asks that Judge Maples be prohibited from entering such an order without jurisdiction, that such appearance bond be set aside, and that the defendant, Burke, be remanded to the custody of the Jackson County Sheriff.

II.

Mississippi Code Annotated section 99-35-115 (1972) is dispositive here. That statute entitled “Bail after conviction of felony”, states:

A person convicted of treason, murder, rape, arson, burglary or robbery shall not be entitled to be released from imprisonment pending an appeal to the supreme court, unless it be so ordered by the court in which conviction is had, or by supreme court, or by the judge who presided at the conviction, or the judge of the district in which conviction was had, or a judge of the supreme court in vacation of said court; and the making of such order shall be a matter of discretion with either the court or judge to be exercised with the greatest caution, and only when the peculiar circumstances of the case render it proper. A person convicted of any felony other than those enumerated in the foregoing paragraph shall be entitled to be released from imprisonment on bail pending an appeal to the supreme court. (Emphasis added).

Two considerations need to be addressed here: (1) whether this conviction is one which permits bail as a matter of right or one which is discretionary with the judge and (2) what court has jurisdiction to grant bail.

As for the first question, the charge of attempted armed robbery and also armed robbery constitute the crime of robbery under Mississippi Code Annotated section 97-3-79 (Supp.1983) Harris v. State, No. 54,714, 445 So.2d 1369 (1984). Therefore, the defendant is not entitled to bail pending appeal as a matter of right. Bail after conviction of robbery, which crime also includes attempted armed robbery, is discretionary with the court or judge. Burke has no statutory right to bail, but may request it.

Secondly, the question is which court has jurisdiction to grant bail. The above statute lists several judges or courts which may grant bail in charges of treason, murder, rape, arson, burglary or robbery. The last sentence deals with “any felony other than those enumerated,” and this conviction falls within this category. However, in the other felony cases the courts or judges that are entitled to grant bail are not enumerated within that specific sentence. A reasonable interpretation of the entire section leads this Court to conclude that the request for bail in “other felony cases” may be submitted to the same enumerated list of courts or judges. We adopt this view.

However, the state’s contention here is that after perfecting of appeal the circuit court lost jurisdiction. This analysis fails to distinguish between losing jurisdiction of the sentence and having jurisdiction over the corpus of the defendant. The initial request for bail could have been submitted to any of the enumerated courts or judges. Their jurisdiction is concurrent by virtue of this statutory provision.

It is preferred procedure that the trial court address bail initially before presentation to this Court. Ex Parte Atkinson, 101 Miss. 744, 58 So. 215 (1912). Trial courts are familiar with the case, and in a better posture to address the amount of the bail bond. Although the statement is dictum, the Atkinson case, supra, stated that it was necessary that the initial application be presented to the trial court. The statute provides concurrent jurisdiction, and this Court so holds.

Although not controlling here, in Federal courts, appeal bond hearings are to be held in the trial court notwithstanding the fact that the jurisdiction of the court of appeals has attached by virtue of the appeal from the judgment of conviction. United States v. Provenzano, 605 F.2d 85 (3rd Cir.1979); Tyrrell v. United States, 191 F.2d 154 (9th Cir.1951):

The justification for such requirement stems from the trial court’s superior capacity, at least in the first instance, to gather and sift the pertinent information necessary to the correct determination of motions for release pending appeal. (United States v. Provenzano at 91).

III.

In this case, bond was granted by the judge that presided at the conviction. Since he had the authority and the jurisdiction to do so, such order was not error.

PETITION FOR WRIT OF PROHIBITION DENIED.

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


author: ROY NOBLE LEE, Justice,

text:
    Francisco Javier CONTRERAS v. STATE of Mississippi.
    No. 54084.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    William A. Pate, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Francisco Javier Contreras was found guilty in the Circuit Court of Harrison County, Honorable Ruble Griffin, presiding, on a charge of crime against nature, e.g., unnatural intercourse, and was sentenced to ten (10) years in custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns eight errors in the trial below.

I.

Was the statute under which appellant was convicted so vague, indefinite and uncertain that it denied appellant certain knowledge of the acts which are proscribed?

Appellant was indicted, tried and convicted under Mississippi Code Annotated § 97-29-59 (1972) which provides the following:

Every person who shall be convicted of the detestible and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.

Appellant contends that the statute is unconstitutionally vague and relies upon the Florida case of Franklin v. State, 257 So.2d 21 (Fla.1971), wherein the Supreme Court of Florida declared a similar statute unconstitutional for vagueness.

Although appellant did not raise the question in the lower court, and for that reason, it should not be considered here, we simply answer the point by referring to State v. Mays, 329 So.2d 65 (Miss.1976), where the exact question was decided by this Court and the statute was held to be constitutional. See also Davis v. State, 367 So.2d 445 (Miss.1979).

II.

Does the statute under which appellant was convicted unfairly discriminate against him in that it is applied to the punishment of males only, thereby denying him equal protection under the law?

This assignment of error follows Assignment I. We reject the contention of appellant on the authority of State v. Mays, supra, and Davis v. State, supra. See also Callahan v. State, 419 So.2d 165 (Miss.1982).

III.

Did the lower court err in overruling the appellant’s motion for mental examination and evaluation?

Appellant’s counsel filed a motion for mental examination and evaluation on June 9, 1980, which motion was overruled by the court. During the trial, appellant insisted that he be permitted to testify in the case against the advice of his trial counsel. Appellant now contends that he should have had a mental examination in order to determine whether or not he was competent to stand trial.

The motion was not sworn to and was not accompanied by an affidavit. No evidence was offered to show probable cause that the appellant was mentally incapable of assisting counsel in his own defense. We are of the opinion that the trial judge did not commit error in overruling the motion for mental examination. Burrill v. State, 328 So.2d 334 (Miss.1976).

IV.

Did the court err in allowing the State to amend the indictment during the trial to change the nature of the act complained of, and in overruling appellant’s subsequent motion for mistrial?

The indictment charged that appellant used force in obtaining the victim to perform the unnatural act. The evidence shows conclusively that no physical force was used. The State moved the court to amend the indictment by deleting the word “forcing” and appellant contends that the amendment changed the indictment and constitutes error. The amendment was simply one of form and was properly allowed by the court. Porter v. State, 339 So.2d 564 (Miss.1976); Hannah v. State, 336 So.2d 1317 (Miss.1976); Shelby v. State, 246 So.2d 543 (Miss.1971).

V.-VI.

Did the court err in overruling appellant’s jury instructions D-l, D-5 and D-12?

Did the court err in overruling the defendant’s motion for a new trial?

We have carefully considered the refused instructions D-l, D-5 and D-12 and are of the opinion that the court did not commit error in refusing those instructions. All questions referred to in the motion for new trial were specifically passed upon, the appellant received a fair trial, and the court did not err in overruling that motion.

VII.

Did the court err in overruling appellant’s motions for directed verdict at the close of the state’s case and at the end of the trial?

At the conclusion of the State’s case, the appellant filed a motion for directed verdict which was renewed at the conclusion of all the evidence. We do not address the question of directed verdict at the close of the State’s case, since it is elementary that when an accused proceeds to introduce evidence, the motion is waived. However, we consider the motion at the conclusion of all the evidence.

Appellant’s 19-year-old daughter testified on the trial. She positively stated that she and the appellant engaged in the acts of fellatio and cunnilingus. Appellant, while admitting the evidence leading up to those acts, denied that they engaged in them. There was an issue for the jury, the testimony of the victim was accepted by the jury, and we are of the opinion that the verdict is sustained by the evidence. Goldman v. State, 406 So.2d 816 (Miss.1981); Banks v. State, 394 So.2d 875 (Miss.1981); Warn v. State, 349 So.2d 1055 (Miss.1977).

Appellant argues that the sexual battery statutes, Mississippi Code Annotated §§ 97-3-95, et seq. (1972), as amended, should supersede and take precedence over § 97-29-59 [appeared in Hutchinson’s Code of 1848 as Ch. 64, Art. 12, Title 7 (1920) ], the section under which he was indicted; that such practices are common between persons of the same and opposite sexes; that public morals in this modern day condone and permit the acts charged against him.

The sexual battery statutes, as mentioned above, were enacted subsequent to the violation for which appellant was convicted. Section 97-3-103 provides that the sexual battery statutes shall not be held to repeal, modify or amend any other criminal statute of this state. One exception to the sexual battery statutes appears in Section 97-3-99 which provides that a person is not guilty of any offense under said sexual battery statutes, if the alleged victim is that person’s legal spouse and he and the victim are not separated and living apart.

The complete answer to this argument of appellant is that the courts interpret statutes and decide the law. The enactment, modification, amendment or repeal of statutes are for the legislature.

VIII.

Did the court err in the imposition of the maximum sentence because it took into consideration crimes of which the appellant was never convicted?

Appellant contends that in imposing the maximum sentence of ten (10) years upon him, the lower court asked about other crimes involving the appellant and that he considered those matters not of record in passing sentence upon him. After some comment leading up to the sentencing of appellant, which is customary with many trial judges, the judge said, “... but, really, from what I heard, I think the maximum sentence would be in order, from what I heard today; ...”

The sentence was within statutory limits. This Court has held many times that the trial judge will not be put in error nor will he be held to have abused his discretion in the sentence, if it is within the limits fixed by statute.

There being no reversible error in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . The record indicates that there was some confusion as to whether or not the trial judge granted the motion. He told appellant’s counsel that he was positive a mental examination had been granted and that the attorney failed to furnish an order for same and failed to follow up the . request.

      . 1983 Miss.Laws, Ch. 429, effective March 29 (1983).

      . Though not with his daughter.


author: WALKER, Presiding Justice,

text:
    Gene LEVY v. Julius S. McCAY, Mary Helen Cagle, Linda Faye Wallace, Raymond Owens a/k/a Ellis Ray Owens, L.T. Brantley, Jr., A.B. Brantley, R.M. Brantley and Marlene Brantley Patterson, et al.

    No. 54691.
    Supreme Court of Mississippi.
    Feb. 15, 1984.
    M. Charles May, Jackson, for appellant.
    John Arthur Eaves, Eaves & Eaves, Jackson, for appellees.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

      . Raymond Owens was the only named defendant who was represented at the hearing on this matter. On appeal, he is the only appellee to file a brief.

   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, wherein the Chancellor denied confirmation of a tax deed held by the appellant, Gene Levy. From this judgment Levy perfected an appeal to this Court and assigns as error the following:

The court erred in invalidating the tax deed under the equity powers of the chancery court when the sale conformed to the laws.

On September 19, 1977, the property in question was sold by the tax collector of Hinds County for the ad valorem taxes due thereon for the year 1976. The highest bidder and purchaser at the tax sale was Gene Levy, appellant.

On September 16, 1980, the appellant brought suit in chancery court to confirm his tax deed. Interested parties were served with process and a hearing was held on April 14, 1981. The appellant introduced evidence that the 1976 taxes on the subject property were in arrears; that a tax sale had been conducted according to law; that he was the highest bidder and purchaser at the tax sale; that the owners had failed to redeem the property within two years; and that he held a tax deed properly executed by the Hinds County Chancery Clerk.

The appellee, Raymond Owens, defended on the grounds that he offered to pay the taxes in September of 1977 but was told that someone else had already paid them. He also testified that he tried to pay the taxes again in 1978 and 1979. Each time he was told that the taxes had been paid by someone else. This testimony was corroborated by Emma Owens, the appellee’s daughter, who testified that she went with her father to pay the taxes in September of 1977.

On October 15, 1982 the chancellor filed an opinion and final decree allowing Raymond Owens to repay the back taxes with interest and, provided he did so within sixty days, voiding the tax deed.

The appellant contends on this appeal that the chancellor erred in voiding the tax deed. He argues that the exclusive grounds for invalidating a tax deed are set forth in Mississippi Code Annotated section 27-45-23 (1972), which provides in pertinent part:

No such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for the taxes, or that the taxes for which the land was sold had been paid before sale, or that the sale had been made at the wrong time or place. If any part of the taxes for which the land was sold was illegal or not chargeable on it, but part was chargeable, that shall not affect the sale nor invalidate the conveyance, unless it appear that before sale the amount legally chargeable on the land was paid or tendered to the tax collector.

Since the appellee proved none of the above statutory grounds, the appellant contends that the statute prohibits the voiding of his tax deed.

However, in Union Savings Bank & Trust Company v. City of Jackson, 122 Miss. 557, 84 So. 388 (1920), this Court stated:

In our opinion the constitution itself con- . fers the right of redemption. The legislature may impose reasonable conditions on the right to redeem under the constitution, but the right cannot be defeated by the legislature neglecting or failing to provide a scheme by which it may be done. The courts will afford a remedy in case the legislature furnishes none, and equity has jurisdiction of a suit to redeem independent of the legislature.

122 Miss. 573, 84 So. 388. (Emphasis added). See also Carmadelle v. Custin, 208 So.2d 51 (Miss.1968).

With this principle in mind, we turn to the question of whether the chancery court properly exercised its equity powers in voiding the appellant’s tax deed.

In Kelly v. Coker, 197 Miss. 131, 19 So.2d 519 (1944) the taxpayers testified that they went to the chancery clerk’s office on two occasions to pay the taxes and redeem their property. On each occasion the clerk told them “there was no tax due on the place, it had been paid.” The Court set aside the tax deed, holding that an offer to redeem, when refused either arbitrarily or through an unintentional misrepresentation of facts, takes away from the state the power to convey title for nonpayment of taxes.

McClain v. Meletio, 166 Miss. 1, 147 So. 878 (1933) is another case where the clerk informed a taxpayer that there were no outstanding tax sales on his property. The evidence showed that the taxpayer failed to make a formal tender, but had been ready and able to pay the taxes. The Court held that no formal offer to redeem was necessary under the facts, noting that the law does not require a vain and useless thing.

The Court was again faced with this issue in James v. Tax Investment Company, 206 Miss. 605, 40 So.2d 539 (1949), wherein it stated:

This case is no different in principal from McClain v. Meletio, 166 Miss. 1, 147 So. 878; Kelly v. Coker, 197 Miss. 131, 19 So (2d) 519; Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.(2d) 771; McNatt v. Hyman, Miss. [204 Miss. 824] 38 So.(2d) 107, not yet reported in State Reports; and Brannon v. Lyon, 86 Miss. 401, 38 So. 609. In those cases it was held that statutes allowing land to be redeemed from tax sales are to be liberally construed in favor of the person seeking to redeem, and that an owner’s offer to redeem from any and all tax sales within the redemption period, with sufficient money upon his person with which to effect such redemption, includes every form of taxes and takes away from the taxing authorities the power to convey title, to any one else pursuant to tax sales from which no redemption had actually been accomplished by reason of neglect or otherwise of the custodian of the tax sale records.

206 Miss. 618-19, 40 So.2d 539.

In the instant case the appellee testified that he tried to pay his taxes in 1977, 1978, and 1979, but was informed each time that no taxes were owing on the property. Although neither the deputy tax collector nor the deputy chancery clerk expressly remembered talking to the appellee, his testimony is otherwise uncontradicted.

The appellee’s offer to pay the taxes due manifestly includes an offer to redeem and brings this case within the rule of Kelly v. Coker, supra. This offer took away from the taxing authorities the power to convey title to the appellee’s property. Accordingly, the chancellor was correct in voiding the tax deed and allowing the ap-pellee to redeem.

For the above reasons, the case is affirmed.

AFFIRMED.

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