author: LABORDE, Judge. GUIDRY, Judge,

text:
    BANK OF JENA, Plaintiff-Appellee, v. Freddie Wayne CLARK, Defendant-Appellant.
    No. 83-787.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Oct. 26, 1984.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for defendant-appellant.
    Peters, Hennigan & Walters, Jimmie C. Peters, Wm. Henry Sanders, Jena, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

This is a suit on a promissory note by a substitute plaintiff. The Bank of Jena, original plaintiff, sued Freddie Wayne Clark (Clark) and William Henry Sanders (Sanders), respectively, the maker and accommodation endorser of a promissory note. After paying off the debt, Sanders, by order of the court, was substituted as party-plaintiff in the instant action. Sanders subsequently obtained a default judgment against Clark on the note. Clark moved for a new trial and filed an exception of no cause of action after judgment was pronounced, contending that the default judgment was based on insufficient evidence and that the assignment of the note and/or debt to Sanders, an attorney at law, constituted an unlawful sale of litigious rights. The trial court denied the motion and overruled the exception. Defendant now attacks the default judgment on appeal. We affirm.

FACTS

Sanders is an attorney at law who represented Clark in previous litigation surrounding a drilling rig accident. During the interim of this litigation, Clark was in need of money to pay his physician for a back operation. Clark therefore executed a promissory note for $4280.41 payable to the Bank of Jena, as security for a loan. Sanders signed the note as an accommodation endorser guaranteeing payment in event of Clark’s default.

This action arises out of Clark's default on the note. The Bank of Jena instituted suit against Clark and Sanders, maker and endorser respectively, for payment on the note. Sanders filed a third party demand against Clark should he be cast in judgment. The Bank of Jena entered a preliminary default against both defendants. Sanders then paid off the note to avoid judgment. By joint motion and order of the trial court, Sanders was acknowledged as assignee of the note and/or debt and substituted as party-plaintiff. On January 4, 1983, Sanders obtained a default judgment against Clark representing the amount due on the note.

Following the default judgment, Clark moved for a new trial and filed an exception of no cause of action, both of which were denied and overruled. Clark now appeals contending that the default judgment should be set aside.

ISSUES

The issues presented on appeal are:

1) Whether the default judgment was confirmed on the basis of sufficient proof to establish a prima facie case in the alleged absence of a written assignment of debt, i.e., promissory note; and,
2) Whether the substituted party-plaintiff, an attorney at law and accommodation endorser, acquired litigious rights by assignment in contravention of LSA-C.C. art. 2447.

At the outset, we note that a trial court judgment denying a motion for a new trial is not appealable. Norbert v. Norbert, 419 So.2d 1247 (La.App. 3rd Cir.1982). In accord, a trial court judgment overruling an exception of no cause of action is interlocutory and unappealable as well. Ellzey v. Glaser, 128 So.2d 465 (La.App. 4th Cir.1961). In the instant case, it appears at first glance that Clark appeals from such unappealable trial court rulings. However, Clark’s appellate brief serves to attack the validity of the default judgment for want of sufficient and prima facie proof of claim. For this reason, we will consider the merits of Clark’s appeal limiting our review to the validity of the default judgment and sufficiency of the evidence offered in the record. Weaver v. Weaver, 438 So.2d 1149 (La.App. 1st Cir.1983).

Issue #1: Default Judgment

On January 4, 1983, Sanders, the substituted party-plaintiff, confirmed and obtained a default judgment against Clark representing the indebtedness on the promissory note. Clark moved for a new trial which was denied on June 24, 1983. Clark appeals, contending that a new trial should have been granted since the default judgment was rendered on insufficient evidence, namely, that Sanders failed to offer into evidence a written assignment of the promissory note and/or indebtedness. Defendant argues that a default judgment should not have been rendered in the absence of a written assignment of the debt being introduced into the record.

In confirming a default, plaintiff has the burden of proving, by competent evidence sufficient to establish a prima fa-cie case, the essential elements of his claim. LSA-C.C.P. art. 1702; Lloyd v. Hunt Exploration, Inc., 413 So.2d 327 (La.App. 3rd Cir.1982). On appeal, the defendant has the burden of overcoming the presumption that the judgment was rendered upon sufficient evidence and that it is correct. Landry v. Guillory, 344 So.2d 1138 (La.App. 3rd Cir.1977).

After a thorough review of the record, we find that the Bank of Jena and Sanders entered into a joint motion to substitute the latter as party-plaintiff. The substance of this motion and order provides in part:

“Appearers desire that William Henry Sanders be substituted as party-plaintiff in the place of the Bank of Jena and be assigned all rights therein: ” Tr. 8 (Emphasis Added)

The motion was granted and the order containing this language was signed by the trial court and made a part of the record prior to the confirmation of the default by Sanders. The court, having taken judicial notice of the record, was therefore presented with a writing evidencing an assignment from the Bank of Jena to Sanders. Contrary to defendant’s contention that there is no written evidence of an assignment, we hold that the joint motion and order in the record constitutes competent evidence which establishes a prima facie proof of an assignment of the note and/or debt to Sanders.

In any event, even if we were to find that there was no written assignment, it is well settled that when the record is silent, it is presumed that a default judgment was based upon sufficient evidence and that it is correct. In order to obtain a reversal of a default judgment, defendant must overcome this presumption. Colonial Bank v. Baptiste, 370 So.2d 681 (La.App. 4th Cir.1979). We hold that defendant, Clark, has failed to overcome this presumption.

Accordingly, defendant’s motion for a new trial was properly denied by the trial court. We hold that there is sufficient prima facie evidence in the record to warrant a default judgment in favor of the substituted party-plaintiff, Sanders.

Issue #2: Litigious Rights

Defendant filed an exception of no cause of action following the default judgment contending that the substituted plaintiff, Sanders, an attorney at law, failed to state a valid cause of action. As a basis for this exception, Clark argues that the assignment of the note and/or debt to Sanders constituted an unlawful sale of litigious rights to an officer of the court. Defendant relies on LSA-C.C. article 2447, which provides:

“Art. 2447. Sale of litigious rights
Public officers connected with courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, can not purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.”

In applying article 2447 to the instant situation, we find that it does not prohibit an endorser of a note or an assign-ee with a legitimate personal interest, who by circumstance happens to be an attorney, from pursuing a reasonable means of recovery. Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir.1972). The record unequivocally establishes that Sanders was an accommodation endorser on the promissory note executed by the maker, Clark. Sanders paid off the note to avoid judgment against himself. It is apparent that his motive in paying off the loan to acquire the assigned rights of the Bank of Jena was not to purchase detached and independent litigious rights as contemplated by, and in contravention of article 2447. This article does not prohibit an accommodation endorser, who has paid off the principal debt and is also an attorney, from having an otherwise valid right of recovery against the principal debtor. Whalen v. Brinkmann, supra.

Our research reveals that after payment of the principal debt, Sanders became legally subrogated to the rights of the principal creditor and by operation of law is entitled to a right of recourse, on the instrument. LSA-R.S. 10:3-415(5); C.C. art. 2106; Daigle v. Chaisson, 396 So.2d 573 (La.App. 3rd Cir.1981).

Accordingly, we hold that the assignment of the note and/or debt from the Bank of Jena to Sanders, did not constitute a sale of litigious rights in contravention of LSA-C.C. art. 2447. The trial court properly denied defendant’s exception of no cause of action.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed at appellant’s cost.

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, Judge,

concurring.

Appellant, Freddie Wayne Clark, did not appeal from the money judgment rendered against him in favor of William Henry Sanders dated January 4, 1983. Rather, the record clearly reflects that the only appeal taken in this matter is from the judgments rendered June 24, 1983, which denied Clark’s motion for new trial and overruled the exception of no cause of action-filed by him post judgment. The judgments appealed from are interlocutory judgments from which no appeal lies. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481 (1945); Shavers v. Shavers, 350 So.2d 912 (La.App. 3rd Cir.1977); Nor bert v. Norbert, 419 So.2d 1247 (La.App. 3rd Cir.1982); Ellzey v. Glaser, 128 So.2d 465 (La.App. 4th Cir.1961). An appellate court may dismiss an appeal on its own motion where there is no right of appeal. La.C.C.P. Art. 2162; Bunkie Bank & Trust v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 3rd Cir.1977).

I conclude that the judgment of January 4, 1983 is now final and appellant’s appeal should be dismissed ex proprio motu. For these reasons, I respectfully concur in the result.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Victor Lavelle RUTHERFORD, Plaintiff-Appellant, v. Djuana Blackwell RUTHERFORD, Defendant-Appellee.
    No. 83-788.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, for plaintiff-appellant.
    Kenneth N. Simmons, Many, for defendant-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

At issue in this case is the entitlement of the defendant, Djuana Blackwell Rutherford, to alimony after divorce and, in the alternative, the amount of such award. The trial court awarded the defendant alimony in the amount of $300.00 per month. The plaintiff, Victor Lavelle Rutherford, appeals.

The parties were married on April 8, 1982. On August 2, 1982, Djuana Rutherford filed suit seeking a separation from bed and board on grounds of cruel treatment. Victor Rutherford filed an answer and reconventional demand wherein he sought a separation on the same grounds. The trial court rendered the judgment of separation on September 28, 1982, in favor of Djuana Rutherford. That judgment is now final. The plaintiff in the instant suit, Victor Rutherford, filed this divorce action asserting that there had been no reconciliation between the parties for six months following the rendition of the judgment of separation. LSA-R.S. 9:302. The defendant filed an answer and reconventional demand, seeking a divorce on the same grounds, and further seeking alimony after divorce. The trial court granted the judgment of divorce and awarded the defendant alimony in the amount of $300.00 per month.

The plaintiff on appeal principally contends that the trial court erred in finding the defendant entitled to alimony after divorce. In particular, he urges that the defendant, plaintiff in reconvention, failed to prove her freedom from fault as required by LSA-C.C. Art. 160.

PRE-SEPARATION FAULT

LSA-C.C. Art. 160 provides that a spouse may be awarded alimony after divorce if he or she is without fault and has insufficient means for support. The claimant spouse bears the burden of proving his or her freedom from fault in order to be entitled to alimony after divorce. Palmer v. Palmer, 433 So.2d 346 (La.App. 3rd Cir.1983), writ denied, 441 So.2d 213 (La.1983); Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3rd Cir.1981). However, a determination of fault in a prior separation proceeding bars relitigation of the issue of pre-separation fault for the purpose of determining a spouse’s entitlement to post-divorce alimony. Fulmer v. Fulmer, 301 So.2d 622 (La.1974); Lovell v. Lovell, 386 So.2d 1063 (La.App. 3rd Cir.1980).

The parties to this suit each sought a separation on grounds of cruel treatment. The matter was tried and the trial court rendered a judgment of separation in favor of the defendant herein, Djuana Rutherford. The defendant, at trial of the instant matter, introduced a copy of the judgment as well as the pleadings filed in connection with the separation suit. The judgment of separation in her favor clearly precluded any reconsideration of pre-separation fault in the subsequent divorce proceedings. Fulmer v. Fulmer, supra. By introducing the judgment of separation, the defendant conclusively carried her burden of proving herself free of pre-separation fault.

POST-SEPARATION FAULT

While it is clear that defendant has shown her freedom from pre-separation fault, the record is silent on the question of post-separation fault. It is well established that a spouse is not entitled to alimony after divorce when he or she is guilty of post-separation fault. Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir.1977), writs denied, 347 So.2d 250 (La.1977).

In the instant case, neither party made any allegations or offered any evidence of post-separation fault or lack thereof. Thus, the issue must be resolved by a determination of which party bears the burden of proof regarding post-separation fault. We conclude that there is no affirmative burden on the part of the spouse found free of pre-separation fault in a prior separation judgment to prove his or her freedom from post-separation fault. Rather, we find that the spouse against whom alimony is sought bears the burden of proving post-separation fault on the part of the claimant spouse in order to defeat such claim.

In Fulmer v. Fulmer, supra, the Supreme Court considered the limitations on litigating fault in a divorce action after fault had been previously litigated in a separation suit. The facts of the case are very similar to those in the instant case. The wife had obtained a judgment of separation on grounds of the husband’s fault. The husband subsequently sought a divorce based upon the expiration of one year and sixty days following judicial separation with no reconciliation. LSA-R.S. 9:302. After an extensive discussion of the legislative history of LSA-C.C. Art. 160, the court stated:

“Thus, where a judicial separation is decreed as caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or the wife is or is not at fault, for purposes of deciding whether the wife is entitled to alimony under Article 160. Such a conclusion is, of course, not applicable if the divorce is sought for post-separation fault, such as adultery; for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-separation fault primarily caused the separation.”

The court thereafter concluded:

“We therefore affirm the holding of the district court and of the court of appeal that, in these divorce proceedings grounded upon non-reconciliation following the judgment of separation, the wife is entitled to alimony without any further proof of fault than the judgment of separation by which her husband’s fault was judicially determined to be the cause of the separation, and that, under these circumstances, the husband is not entitled to re-litigate this issue.”

In Fulmer, the court did not consider the precise issue presented in this case. However, it is significant that the court stated that the determination of pre-separation fault in separation proceedings is “normally determinative” of fault, or lack thereof, for purposes of determining a spouse’s entitlement to alimony after divorce. Furthermore, the court placed no affirmative burden on the wife to prove her freedom from post-separation fault.

In Webster v. Webster, 308 So.2d 302 (La.App. 1st Cir.1975), a husband against whom a judgment of separation was granted on grounds of cruel treatment sought to prove fault on the part of his wife in the subsequent divorce proceedings to defeat her claim for alimony. Our brethren of the First Circuit interpreted Fulmer as follows:

“... once a wife’s freedom from fault has been determined in a separation proceeding, the only issue concerning fault of the wife in a subsequent divorce proceeding is whether the wife has been guilty of fault subsequent to the decree of separation. In such instances, it is incumbent upon the husband to establish the wife’s fault subsequent to the separation decree.”

In our view, the foregoing is a correct interpretation of Fulmer, and properly places the burden of proving post-separation fault on the spouse seeking to defeat the alimony claim. Because the judgment of separation conclusively determined pre-separation fault, and no evidence of post-separation fault was offered, the defendant, plaintiff in reconvention, is considered to be without fault for purposes of determining her entitlement to alimony after divorce.

PLAINTIFF’S ABILITY TO PAY ALIMONY

The defendant introduced an affidavit listing her expenses at $644.50 per month. She is employed by a restaurant where she works 27 hours per week, earning a net income of approximately $350.00 per month. The plaintiff was employed by Hutton Drilling at the time of trial. He earned a net income of $1,660.00 per month. He testified that the rig on which his crew had been working was being brought down, and he had been laid off as a result. He had not secured new employment. The plaintiff listed his monthly expenses at $1,361.05. However, one of the expense items listed is a monthly payment of $155.73 to a jeweler. The plaintiff testified that the next payment would be the last installment on the debt. Thus, after this final payment, the plaintiff’s listed monthly expenses will total $1,205.32.

The trial court awarded the defendant $300.00 per month in alimony after divorce. The plaintiff urges that the trial court erred in failing to consider the fact that he was unemployed and without any property or earnings out of which to satisfy his alimentary obligation.

It is well settled that, in order to excuse himself from the obligation of providing minimal financial assistance to his wife and children, a husband must show that he is absolutely unemployable, not merely that he is unemployed at the time. Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir.1975); McKenna v. Steen, 422 So.2d 615 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 157 (La.1983). The foregoing rule is consistent with LSA-C.C. Art. 160, which provides that the earning capacity of the spouses shall be considered in determining the amount of post-divorce alimony.

In the instant case, there is no showing that the plaintiff is unemployable'. The plaintiff testified that he had not sought other employment, nor had he looked into the possibility of obtaining unemployment benefits. We should point out, however, that the plaintiff may not have had the opportunity to do so, having learned of his layoff just prior to the trial of this matter. Nonetheless, absent some showing that the plaintiff will be unable to find another job in his field at a comparable rate of pay, we feel compelled to conclude that his earning capacity has not changed. Our conclusion in this regard might be lifferent had the record shown that the job market for the plaintiff’s skills was substantially depressed, or that after diligently seeking new employment, the plaintiff was unable to secure another job, or that he was relegated to some employment which paid less than that in which he was formerly engaged.

The trial court is vested with much discretion in fixing awards of alimony. Such awards will not be disturbed absent a clear abuse of discretion. Benoit v. Benoit, 424 So.2d 281 (La.App. 1st Cir.1982). We find no abuse of discretion in the amount awarded. We observe that the award may be modified by either party upon a showing of a change in circumstances. Lynn v. Lynn, 430 So.2d 363 (La.App. 3rd Cir.1983), writ denied, 434 So.2d 1094 (La.1983).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . LSA-R.S. 9:302 now provides that a divorce may be granted either spouse upon the expiration of six months following the judgment of separation when there has been no reconciliation.


text:
    Frank Marshall MARCOTTE, Plaintiff-Appellee, v. EXPER TECH COMPANY USA, Defendant-Appellant.
    No. 83-789.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    McBride, Foret, Rozas & Leonard, James R. Leonard, Lafayette, for defendant-appellant.
    James W. Schwing, Sr., New Iberia, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

On April 6, 1983, Marshall Marcotte filed suit for wages allegedly due under an employment contract against Exper Tech Company USA. As a provisional remedy in this suit, plaintiff additionally sought and obtained the issuance of a writ of attachment upon furnishing security as required by LSA-C.C.P. Art. 3501. As a result, certain equipment owned by defendant was seized. Defendant answered the petition by general denial. On May 10, 1983, by ex parte motion and order, plaintiff had the writ of attachment dissolved and the bond cancelled. Defendant thereafter reconvened for damages for wrongful attachment, naming Frank Marshall Marcotte and American Employers Insurance Company as defendants in reconvention. Defendant timely appealed the ex parte order of the trial judge dated May 10, 1983, only insofar as it cancels the bond for the writ of attachment.

Defendant contends that the trial court erred in cancelling by ex parte order the security for the writ relying on LSA-C.C.P. Art. 3512 which provides as follows:

“The security required of the plaintiff for the issuance of a writ of attachment or of sequestration shall be released when judgment is rendered in his favor and is affirmed on appeal or when no appeal has been taken and the delay for appeal has elapsed.”

We dismiss the appeal on our motion, finding that the ex parte order of the trial judge, insofar as it cancels the bond, is a non-appealable interlocutory judgment.

LSA-C.C.P. Arts. 1841 and 2088 provide as follows:

Art. 1841. Judgments, interlocutory and final
“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.”
Art. 2083. Judgments appealable
“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The trial judge’s ex parte order disposes of no issues on the merits in whole or in part. LSA-C.C.P. Art. 1841. The question of whether or not the writ was wrongfully obtained resulting in damages to Exper Tech remains to be tried on the merits. Defendant has failed to allege irreparable harm and we see none. Defendants in reconvention (appellees) concede in brief that the trial judge’s order cancelling the bond has no effect on the liability of the Surety for the actions of the Principal while the bond was in effect. In any event, the correctness of the trial court’s ex parte order cancelling the security is subject to review on appeal from final judgment.

For the above and foregoing reasons, the appeal is dismissed.

APPEAL DISMISSED.

      . An appellate court may dismiss an appeal on its motion where there is no right to appeal. LSA-C.C.P. Art. 2161; Norbert v. Norbert, 419 So2d 1247 (La.App. 3rd Cir.1982).


text:
    Alvin W. McGEE v. CUNA MUTUAL INSURANCE SOCIETY and Mississippi Postal Employees’ Federal Credit Union.
    No. 54728.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Rehearing Denied July 25, 1984.
    Richard A. Courtney, Wells, Moore, Simmons & Stubblefield, Jackson, for appellant.
    Jackson H. Abies, III, J. Wyatt Hazard, Daniel, Coker, Horton & Bell, J. Stuart Robinson, Robert C. Grenfell, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Judge.

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

AFFIRMED.


author: HAWKINS, Justice,

text:
    Thomas JACKSON v. STATE of Mississippi.
    No. 54178.
    Supreme Court of Mississippi.
    March 28, 1984.
    Rehearing Denied July 18, 1984.
    Sidney A. Barnett, A.M. Murphy, Luce-dale, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

Thomas Jackson appeals his conviction in the Circuit Court of George County of the crime of carnal knowledge of a six-year-old girl, and sentence to life imprisonment. He challenges the validity of Miss.Code Ann. § 97-3-65 (Chapter 576, Mississippi Laws 1974) under which he was indicted, and the sufficiency of the evidence in view of no proof of penetration. We affirm.

FACTS

On July 15, 1980, Darrell E. Thomas, a 21-year-old man was spending the night with his sister and brother-in-law, Evon and Larry Tanner, at their residence in George County. Mr. and Mrs. Tanner had three children: Freddie, age 7; Wendy, age 6; and Alan, age 3.

When they retired for the evening, Mr. and Mrs. Tanner went to their bedroom. Thomas and Alan were sleeping on one bed in the children’s bedroom, and Freddie and Wendy on the other bed. A light in the bathroom was on which gave some light in the children’s bedroom.

Thomas testified that he awoke sometime between 11:30 p.m. and 12 and observed the defendant in the bed with the two children. Jackson was talking to them.

Jackson was a friend of Larry Tanner’s; the two had been fellow employees at Arrow Construction Company in Mobile, Alabama.

Thomas said he thought nothing of seeing Jackson in bed with the children and went back to sleep. Thomas further testified he woke up later and saw Jackson on top of the little girl Wendy, with his sex organ in his hand, trying to force it into the child. Thomas asked Jackson what he was doing, and got him off the child. Thomas then went into the other bedroom and awakened the parents. Thomas said Jackson was about to strike' him when Larry Tanner told him he had better not. Then, uttering profanity, Jackson left. Jackson did not have a shirt on, and left his boots behind when he left.

Evon and Larry Tanner corroborated the testimony of Thomas. Mrs. Tanner said she saw the defendant coming out of the children’s room trying to get his pants up, and his belt buckled.

The little girl was whining and shaking. Her panties were beside the bed, and Mrs. Tanner noticed blood on them.

The Tanners testified they did not know Jackson was in the house, that he had no permission to spend the night, and the front and back doors had been locked prior to the family’s retiring that evening. While Jackson said he gained entrance through the back door, Mrs. Tanner said he could only have gained entrance through a window.

The parents were leaving with the little girl to take her to the hospital, but could not crank the pick-up because the wires had been disconnected.

Dr. Herbert Kinsey, a general practitioner, examined the child in the emergency room of the hospital in Lucedale at 1:50 a.m. July 16. He found a bruise on the left labia and an abrasion in the fold between the major and minor labia. There was a substance on Wendy’s underclothing which appeared to be blood, consistent with the abrasion. The child was quite frightened. Dr. Kinsey was of the opinion that there had been an attempt to rape her, and the trauma to her had occurred within a matter of hours previous.

Dr. Kinsey delivered the panties, a tube with a swab and saline material, and a small glass container to Dr. Edwin C. Henson, a pathologist. The pathologist found no semen. While he made no test of it, he was of the opinion the panties had blood on them.. The glass container had Caucasian pubic hair.

Jackson admitted to the sheriff that he was in bed with the children, but did nothing to the little girl.

On July 15, 1980, Jackson, who was born in 1951, was living with his mother about one mile from the Tanner residence. He testified that he had been with Larry Tanner that day, that he and Tanner were very close friends, and that night he had simply come to the Tanner house to sleep a couple of hours.

Not surprisingly, the jury after a brief deliberation, returned a verdict of guilty. In the sentencing phase the jury sentenced Jackson to life imprisonment.

LAW

The pertinent portions of Miss.Code Ann. § 97-3-65(1) are as follows:

Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a female child under the age of twelve (12) years, upon conviction, shall be sentenced to death or imprisonment for life in the state penitentiary; ... In all cases where the female child is under the age of twelve (12) years it shall not be necessary to prove penetration of the female’s private parts where it is shown the private parts of the female have been lacerated or torn in the attempt to have carnal . knowledge of her.

Jackson’s first assignment of error that the statute is unconstitutional because it carries the death penalty is without merit. See: Upshaw v. State, 350 So.2d 1358 (Miss.1977); Horton v. State, 374 So.2d 764 (Miss.1979). If there were any basis to this contention, Jackson would have no cause to complain, because he escaped a death penalty verdict. See: Clark v. State, 169 Miss. 369, 384, 152 So. 820, 823 (1934).

Jackson’s second argument is that the statute unconstitutionally discriminates against males. His principal authority is Tatro v. State, 372 So.2d 283 (Miss.1979). In Tatro we examined this state’s “fondling” statute, Miss.Code Ann. § 97-5-23, since amended. See Chapter 387, Mississippi Law 1980, Miss.Code Ann. § 97-5-23 (1980 Supplement). Tatro, a male, appealed from his conviction under the statute which then provided that any male person above the age of 18 years, who for the purpose of gratifying sexual lust, handled, touched or rubbed with his hands a child under the age of 14, would be guilty under the statute.

In that case we found women as capable of “fondling” under the terms of the statute as easily as men, and that there was no rational basis to exclude women from its proscription. Citing United States Supreme Court decisions which had struck laws discriminating against men: Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); and Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), we held that Miss.Code Ann. § 97-5-23 (1972), then in effect, was unconstitutional. We held the statute denied equal protection of the laws to males.

Tatro has no application to this case. It is the victim, not the accused, who must be a female under the wording of the present statute under consideration. Furthermore, by the very nature of the crime, it is the male who must make the criminal assault in order to sustain a conviction. In this case, by force and violence, Jackson was attempting to rape this little girl when he was stopped. As opposed to the fondling statute, there is no rational basis to attempt to apply Miss.Code Ann. § 97-3-65 to any female accused. See: State v. Zaeringer, 280 N.W.2d 416 (Iowa 1979); State v. Craig, 169 Mont. 150, 545 P.2d 649 (1976); and State v. Sluder, 11 Wash.App. 8, 521 P.2d 971 (1974).

Jackson’s final argument is that he was entitled to a directed verdict of acquital. The basis for this contention is that since there was no proof of penetration, it was incumbent upon the state to prove the child’s private parts were “lacerated or torn” in the attempt by Jackson to have carnal knowledge.

We find the proof in this case supports penetration as well as a tearing of the child’s private parts.

While it is the general law that in a rape case some penetration is required, only slight penetration of the private parts of the victim is required to constitute the offense. Jackson was seen on top of the child in the very act of committing the rape. The doctor’s testimony showed penetration to the extent of causing traumatic injury to the child’s major and minor labias. This was sufficient penetration within the meaning of the statute. Horton v. State, 374 So.2d 764 (Miss.1979); Lang v. State, 87 So.2d 265, 230 Miss. 147 (1956), cert. den. 352 U.S. 936, 77 S.Ct. 236, 1 L.Ed.2d 167, citing 75 C.J.S. Rape § 10b.

See also Thomas v. State, 53 Ala.App. 232, 298 So.2d 652 (1974), where there was found on the victim no bleeding but noted by the examining physician were abrasions to Labia Minora and surrounding tissue. The court held this proved there was penetration to some extent sufficient to prove rape. Cities 75 C.J.S. Rape § 10b. And Albritton v. State, 262 Ind. 452, 317 N.E.2d 854 (1974), where, in affirming a rape conviction, the court noted that medical examination of victim revealed, “considerable injury to the vulva and outer portion of the vagina”, and from this evidence alone it was held not unreasonable for the jury to infer penetration.

In Williams v. State, 53 Fla. 84, 43 So. 431 (1907), the victim was six years old and a life sentence was sustained. The medical examination found a bruised condition to the child’s private parts and the medical examiner, when asked, “ ‘Was there entrance to the lips of the vagina?’ He answered: ‘Yes, sir; to the lips but not the vagina itself.’ ” Quoting English law, “... I shall leave to the jury whether at any time any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix; for if ever it was, no matter how little, that will be sufficient to constitute a penetration ...” Regina v. Lines, 1 Carr & K (47 E.C.L.) 393.

Other courts upholding rape convictions where slight penetration to vulva or labia is shown: Roberts v. Dutton, 368 F.2d 465 (CA5 Ga.1966); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); People v. Strickland, 134 Cal.App.2d 815, 286 P.2d 586 (1955); Bloodworth v. State, 216 Ga. 572, 118 S.E.2d 374 (1961); Long v. State, 84 Ga.App. 638, 66 S.E.2d 837 (1951); People v. Reynolds, 61 Ill.App.2d 349, 210 N.E.2d 637 (1965); People v. Schultz, 260 Ill. 35, 102 N.E. 1045 (1913); Trimble v. Commonwealth, 447 S.W.2d 348 (Ky.1969); Moore v. State, 23 Md.App. 540, 329 A.2d 48 (1974); State v. Chaney, 184 Neb. 734, 171 N.W.2d 787 (1969); State v. Salazar, 74 N.M. 63, 390 P.2d 653 (1964); State v. Godwin, 51 N.M. 65, 178 P.2d 584 (1947); State v. Oliver, 78 N.D. 398, 49 N.W.2d 564 (1951); State v. Thomas, 248 S.C. 573, 151 S.E.2d 855 (1966); State v. McGrath, 46 S.D. 465, 193 N.W. 601 (1923); Sherbert v. State, 531 S.W.2d 636 (Tex.Cr.App.1976); State v. Ray, 63 Wash.2d 224, 386 P.2d 423 (1963).

Moreover, the doctor found abrasions of the child’s private parts of significant magnitude to cause bleeding. We find this sufficient to constitute a “tearing” within the meaning of the statute. Manifestly, one or more blood vessels in the private parts of this child were torn sufficiently to cause bleeding. See, Minor v. State, 396 So.2d 1031 (Miss.1981). The fact that it was an abrasion type of trauma which tore the blood vessels and caused bleeding does not remove this case from the proscription of the statute.

AFFIRMED.

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


author: SULLIVAN, Justice,

text:
    Mary Alice TAYLOR v. STATE of Mississippi.
    No. 54183.
    Supreme Court of Mississippi.
    April 18, 1984.
    Rehearing Denied July 18, 1984.

      Jon M. Barnwell, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

Mary Alice Taylor was tried for murder and convicted in the Circuit Court of Washington County, Mississippi, from which she was sentenced to serve a life term in the custody of the Mississippi Department of Corrections.

The following two assignments of error were made by the appellant:

(1) The trial court erred when it excluded the proffered testimony of Dr. Gilbert S. Macvaugh, Jr., and Dr. Richard B. Sayner, on the state of mind of the appellant at the time of the commission of the crime; and

(2) The sentencing of the appellant to life imprisonment was pursuant to an unconstitutional mandatory punishment statute.

It is undisputed that on July 24, 1981, fourteen year old Mary Alice Taylor shot and killed Mrs. Maple Markham. The story of Mary Taylor’s life was put before the jury in detail, and is encompassed by the record here. Only a part of that story will be repeated in this opinion.

Mary, an unwed teenaged mother, arrived in Greenwood, Mississippi, with her infant son on October 15, 1980. As she was unable to properly care for the child, the Leflore County Court, acting ex parte, and without notice to the appellant, temporarily placed the child in the custody of the Leflore County Welfare Department. On December 21, 1980, Mrs. Maple Markham came to the lodgings of Mary Taylor and took the child from her custody. So began the relationship between these two that has led us to this place.

The baby was placed in a foster home, but Mary Taylor did have visitations with the baby which were arranged for her by Mrs. Markham, as the case worker assigned to the case. These visits were terminated on February 24, 1981, when the County Court made permanent the original temporary order of removal. After that Mary continued to ask Markham to let her visit her baby son, even after March, when Mary learned that she was again pregnant. These visitation requests were denied by Mrs. Markham, and the relationship between the two women seriously deteriorated.

Mary Taylor made her last effort to talk Mrs. Markham into letting her visit her child on the day of July 19, 1981. Mary went to Markham’s office and stayed for over three hours, seeking a visit with her first born. Her efforts were fruitless. Finally, Markham offered to drive Mary home. While in the automobile, Markham told Mary that not only could she not visit her child, but that as soon as the baby Mary was then carrying was born, that baby, too, would be removed from Mary’s custody. At this point, Mary Taylor took a pistol from her purse and shot Mrs. Markham to death.

At the trial, appellant attempted to introduce the testimony of the two psychologists who would have testified that, because of Mary Taylor’s emotional background, she was unable to form the malice necessary to a murder charge, and therefore could be guilty of no more than manslaughter. This testimony was not allowed before the jury, and the trial court instructed the jury both as to manslaughter and as to murder. In this posture the case went to the jury and the jury found Mary Taylor guilty of murder. Mary Taylor was then sentenced to life in the custody of the Department of Corrections.

The first assignment of error urges that the exclusion of the testimony of the psychologists on the appellant’s state of mind deprived the jury of critical factual evidence that was relevant to show that, because of her state of mind, Mary Taylor’s crime could not have been murder, but was manslaughter.

Manslaughter is defined by Mississippi Code Annotated § 97-3-35 (1972), as follows:

The killing of a human being without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

Murder must be committed with malice aforethought; manslaughter has no such requirement. Hammock v. State, 379 So.2d 323, 328 (Miss.1980); Clingon v. State, 293 So.2d 823, 827 (Miss.1974); Carter v. State, 199 Miss. 871, 25 So.2d 470 (1946).

Murder is defined by Mississippi Code Annotated § 97-3-19 (Supp.1983). The statute does not separate the crime of murder into degrees as some jurisdictions do. It does, however, make a distinction between murder and capital murder. The critieria for this distinction are such things as the position in society occupied by the victim, i.e. a police officer, or the manner of the killing, i.e. by use of an explosive device.

Those jurisdictions that separate murder into first degree and second degree use totally different criteria than that used in Mississippi. Traditionally, premeditation and deliberation are required for first degree murder as opposed to second degree murder. Such a distinction by degree is non-existent in Mississippi. Here the distinction is not one of degree, but the difference is between murder and manslaughter.

We are asked whether or not expert testimony may be introduced to show, as a partial defense, a defendant’s abnormal mental state somewhat less than the complete defense of insanity, in order to reduce the charge from murder to manslaughter. Those few jurisdictions which have addressed this question have not answered it uniformly. One writer has noted,

The general rule appears to be that insanity, when interposed as a defense in a criminal prosecution, is either a complete defense or none at all. A claim of insanity cannot be used for the purpose of reducing a crime from murder in the first degree to murder in the second degree or from murder to manslaughter, nor can partial insanity serve to diminish the full measure of criminal responsibility for an act of homicide. However, in some jurisdictions the fact that one who committed a homicide was temporarily insane when he formed and executed the design to kill may, under the penal codes, be taken into consideration in determining the degree of the murder and in fixing the penalty for the offense.

40 Am.Jur.2d Homicide, § 114, p. 409 (1968). However, the writer continues,

A number of jurisdictions, following a doctrine of diminished or partial responsibility, recognize that mental inadequacies or defects not amounting to legal .insanity may be shown in defense to a homicide prosecution, as tending to show the diminished capacity of the accused to have entertained a specific mental state, such as malice aforethought, deliberation, or premeditation.

40 Am.Jur.2d Homicide, § 115, p. 410 (1968).

Seven jurisdictions have reached the issue of the admissibility of evidence on the defendant’s ability to formulate malice aforethought, thereby reducing the charge from murder to manslaughter. Two jurisdictions have excluded the evidence and five jurisdictions have held that evidence of a defendant’s partial insanity is admissible. Three of the five are distinguishable for present purposes, and therefore the existing authorities appear to be evenly divided.

Evidence of a defendant’s state of mind, in a second degree murder case, was found to be admissible in the case of Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972). There the Pennsylvania Supreme Court was asked to decide “whether psychiatric evidence is admissible in a murder prosecution for the limited purpose of determining whether a defendant acted in the heat of passion.” Id., at 384, 292 A.2d at 287. Before reaching its decision, the Court noted that, “[t]he ultimate test for adequate provocation [to reduce the crime charged from murder to manslaughter] remains whether a reasonable man, confronted with [a] series of events, became impassioned to the extent that his mind was 'incapable of cool reflection.’ ” Id., at 389-90, 292 A.2d at 290. Then, the court rephrased the “ultimate test” to say that the “relevant inquiry is threefold: did the defendant actually act in the heat of passion when he committed the homicide; did the provocation directly lead to the slaying of the person responsible for the provocation; and was there insufficient 'cooling time’ thus preventing a reasonable man from using his ‘reasoning facilities’ and ‘capacity to reflect.’ ” Id., at 390, 292 A.2d at 290. The Court then said that if any of these three elements be answered in the negative, then the crime charged could and should be reduced to voluntary manslaughter.

The McCusker Court admitted the testimony into evidence. The Court noted that in answering the three “relevant” questions, and where the question is whether a defendant acted in the heat of passion, it seemed “clear that any evidence — lay or psychiatric — pertinent to that defense should be admissible. The principal vice of rejecting psychiatric testimony, ... is that it excludes from the consideration of the factfinders evidence of probative value vital to a determination of defendant’s state of mind.” Id., at 391, 292 A.2d at 290-91. The McCusker Court then made a statement similar to the argument made by appellant here,

Here the sole and dispositive issue in controversy at trial was appellant’s state of mind at the time of the slaying. The Commonwealth’s theory was that appellant acted with malice, while appellant sought instead to prove that he acted without malice and in the heat of passion. Surely the admission of relevant and probative psychiatric evidence would have aided the jury in resolving those conflicting claims. The admissibility of relevant psychiatric testimony on the issue of whether defendant acted in the heat of passion does not, of course, intrude upon the jury’s traditional function of determining for itself the credibility and weight which it will accord that testimony.

Id. at 391, 292 A.2d at 291.

The Pennsylvania court found the evidence to be both relevant and probative. Stating that psychiatric evidence is regularly admitted to prove the complete defense of insanity, under the McNaughten test, the court said,

It would indeed be anamolous to receive psychiatric evidence — as our courts do — to establish the complete defense of insanity but at the same time reject psychiatric evidence which seeks to establish only a partial defense by showing that defendant acted in the heat of passion when he committed the homicide.

Id. at 392-93, 292 A.2d at 291.

Pour other jurisdictions have held that expert testimony of a defendant’s state of mind is admissible to reduce a charge from murder to manslaughter. In People v. Poddar, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342 (1974), the California Supreme Court held that if “it is established that accused, because he suffered a diminished capacity, was unaware of or unable to act in accordance with the law, malice could not be properly found and the maximum offense for which he could be convicted would be voluntary manslaughter.” Id., at 758, 111 Cal.Rptr. at 916, 518 P.2d at 348.

The Supreme Court of Utah has held that, “[wjhile the record before us fails to show facts that would be likely to cause a normal mind to be wrought up to a heat of passion, yet, there is some evidence in the record that the mind of the defendant was so wrought up, and such evidence, together with the evidence tending to show that the defendant was insane” was sufficient to have the jury consider voluntary manslaughter. State v. Green, 78 Utah 580, 602-03, 6 P.2d 177, 186 (1931).

The Supreme Court of Hawaii upheld the following instruction which was given to the jury along with a manslaughter instruction,

Also, if you find that [defendant’s] mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.

State v. Santiago, 55 Hawaii 162, 166, 516 P.2d 1256, 1258 (1973).

The Missouri Supreme Court has held such evidence to be admissible where the legislature enacted legislation that expressly makes it admissible. State v. Anderson, 515 S.W.2d 534 (Mo.1974).

Both Iowa and New Jersey have reached opposite conclusions. In State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964), the Iowa Supreme Court noted the difference between malice aforethought and specific intent, stating that malice aforethought is the specific state of mind necessary to convict of murder whereas specific intent is a necessary element of murder in the' first degree as opposed to murder in the second degree. The Gramenz Court felt that “testimony sufficient to establish defendant’s lack of mental capacity to have malice aforethought, would also be sufficient to satisfy the requirements of the [.McNaughten ] right and wrong test and entitle defendant to an acquittal on a plea of insanity rather than a reduction of the sentence of manslaughter.” Id., at 142, 126 N.W.2d at 290. The Gramenz position was reaffirmed in Veverka v. Cash, 318 N.W.2d 447 (Iowa 1982). There it was held that the mental element which must be proved on a charge of felony murder did not include premeditation but was rather the same as in second degree murder — malice aforethought, either express or implied. The Iowa court concluded that “[i]n the absence of the premeditation requirement, murder is not a specific intent crime and therefore not subject to the defense of diminished capacity”, which the Cash Court had earlier held applies only on the issue of the defendant’s ability to form a specific intent. Id. at 449.

The principles announced in State v. McAllister, 41 N.J. 342, 196 A.2d 786 (1964) are most instructive. There, the New Jersey Court found the test, in mitigation of the homicide from murder to manslaughter, to be the “English Test.” The test involves a two-step inquiry,

(1) the provocation must be so gross as to cause the ordinary reasonable man to lose his self control and to use violence with fatal results, and (2) the defendant must in fact have been deprived of his self control under the stress of such provocation and must have committed the crime while so deprived.

Id. at 353, 196 A.2d at 792. Citing Weiho-fen and Overholser, Mental Disorder Affecting the Degree of Crime, 56 Yale L.J. 959 (1947), [hereafter Weihofen and Over-holser], the Court noted that the above test contemplates an objective inquiry rather than a subjective one. The McAllister Court concluded,

Defendant’s proffered thesis would make the criterion entirely a subjective test of the actual effect of the action of the deceased upon the mind of the particular defendant charged with his homicide. The application of the “ordinary man” test as the objective standard against which to measure the subjective fact of passion makes defendant’s suggested individual subjective test inappropriate. Such a norm presupposes an “ordinary” man, which expression by its very nature contemplates a person without “serious mental and emotional defects.”

Id. at 353-54, 196 A.2d at 792.

As noted by Weihofen and Overholser, and followed by the Iowa and New Jersey courts, “the contention that mental abnormality may reduce a killing from murder to manslaughter is different from the contention that it may reduce it from murder in the first degree to murder in the second degree.... ” Weihofen and Overholser at 969. See also Comment, Premeditation and Mental Capacity, 46 Columbia L.Rev. 1005, 1008-1009 (1946). Weihofen and Ov-erholser explain,

A defendant’s capacity for malice aforethought does not depend upon the same evidence as does his capacity for deliberation and premeditation. The murder-manslaughter distinction has a wholly different history and is based on wholly different criteria from those involved in distinguishing degrees of murder. The former is of common law origin, the latter statutory; the former involves an objective test, the latter subjective. The provocation which at common law reduces a homicide to manslaughter must be such as is calculated to produce hot blood or passion in a reasonable man, an average man of ordinary self-control. Unless it meets this objective standard of reasonableness, the subjective fact of passion does not make the killing manslaughter. Such factors as mental abnormality or intoxication are therefore irrelevent, since the “reasonable man” standard postulates a sane and sober man.

Weihofen and Overholser at 969-970 (emphasis added).

In their treatise on criminal law, Lafave and Scott echo this result. Lafave and Scott, Criminal Law 328-329, 572-574 (1972), [hereafter Criminal Law]. The authors note that there are four elements to a showing sufficient to reduce a killing to manslaughter from murder:

(1) There must have been a reasonable provocation. (2) The defendant must have been in fact provoked. (3) A reasonable man so provoked would not have cooled off in the interval of time between the provocation and the delivery of the fatal blow. And (4), the defendant must not in fact have cooled off during that interval.

Id. at 573. Lafave and Scott emphasize that “[w]hat is really meant by ‘reasonable provocation’ is provocation which causes a reasonable man to lose his normal self-control _” Id. at 573. (Emphasis added). Earlier, the two writers had explained,

Under the traditional doctrine, then, heat-of-passion voluntary manslaughter is distinguishable from murder by resort to objective criteria. True, the defendant must have in fact been provoked and his passion must have in fact not “cooled” at the time of the killing, but in addition the circumstances must have been such that a reasonable man would have been provoked and would not have cooled. This being the case, it is apparent that the concept of partial responsibility has no place in the decision whether what has been charged as murder is actually heat-of-passion voluntary manslaughter. To hold otherwise would conflict with the reasonable man standard, which by its very nature presumes a person without serious mental and emotional defects.

Id. at 328-29.

When approached with this principle in mind, then we can only conclude that the Utah and Pennsylvania courts, when they admitted the evidence, either chose to ignore the objective nature of the test to reduce murder to manslaughter or were unaware of it.

The Pennsylvania result is doubly puzzling, for in Commonwealth v. McCusker, supra, that court went so far as to say that “[t]he ultimate test for adequate provocation remains whether a reasonable man, confronted with [a] series of events, became impassioned to the extent that his mind was ‘incapable of cool reflection.’ ” Commonwealth v. McCusker, supra, 448 Pa. at 389-390, 292 A.2d at 290 (emphasis added). Nonetheless, that court then found relevance in psychiatric testimony which tended to show that defendant acted in the heat of passion because of a mental abnormality less than that sufficient to show the complete defense of insanity. Such a conclusion could only be reached by concluding that (1) the concept of a reasonable man contemplates a man with mental abnormalities or (2) the ultimate issue was not whether a reasonable man would have been impassioned. This latter conclusion is unfounded. As shown by Lafave and Scott and by Weihofen and Overholser, the ultimate test is whether a reasonable man would have been impassioned.

The Utah Court, in State v. Green, supra, 78 Utah at 602-603, 6 P.2d at 177, also noted that “the record before us fails to show facts that would be likely to cause a normal mind to be wrought to a heat of passion, yet, there is some evidence in the record that the mind of the defendant was so wrought up” — then, after noting that the ultimate test is whether a reasonable man would have been impassioned, Utah held the evidence admissible with no discussion of the subjective versus the objective nature of murder and manslaughter. See Criminal Law, supra, at 329, fn. 23.

The other three states which have allowed such testimony — Missouri, Hawaii and California — are all distinguishable. In Missouri, the decision was based upon an interpretation of Mo.Ann.Stat. § 552.030(3) (Vernon Supp.1984), which expressly allowed such evidence to be admitted. The Hawaii decision was also reached for statutory reasons. See Hawaii Rev.Stat.Ann. § 704-401 (1976).

There are three grounds on which to distinguish the California decision. First, California’s statutory definition of manslaughter, unlike Mississippi’s, does not require the killing to be in the heat of passion, only that the killing be without malice. Criminal Law, supra, at 329-330. See also West’s Ann.Calif.Penal Code § 192 (Supp.1984). Second, California has an “unusual definition of malice aforethought.” Criminal Law, supra, at 329-330. Third, at the time Poddar was rendered, California followed the rule of diminished capacity. It has since abrogated this rule. See West’s Ann.Calif.Penal Code § 28 (Supp.1984).

Appellant here offered the testimony of two psychologists. They would have testified to a reasonable degree of medical certainty “that at the time of the act in question ... Mary Taylor was not acting with malice aforethought ... and that, conversely, this could not be anything more than manslaughter.” Relying upon Hammock v. State, 379 So.2d 323, 328 (Miss.1980), appellant says that this case “turns on the defendant’s state of mind.” More accurately, the case turns upon whether the killing was in the heat of passion and without deliberation and malice. This is true because appellant's “state of mind” could conclude the subjective inquiry of premeditation as opposed to the objective one of malice and heat of passion.

Appellant first urges the admission of the testimony because similar psychiatric testimony is regularly admitted on such issues as the complete defense of insanity and whether the defendant knowingly and intelligently waived his rights. This argument does not account for the subjective nature of the inquiry in determining a person’s mental capability to be criminally responsible for any crime, and in determining whether a defendant knowingly and intelligently waived his constitutional rights, as opposed to the objective inquiry of malice and heat of passion.

Eatman v. State, 169 Miss. 295, 153 So. 381 (1934), sets out the test in an insanity defense case as “ability of the accused, at the time he committed the act, to realize and appreciate the nature and quality thereof — his ability to distinguish right and wrong.” Id. at 299, 153 So. at 381 (emphasis added). This test is clearly subjective. Without question, when insanity is the defense, expert opinion testimony is admitted as to that ultimate fact in issue. Alexander v. State, 358 So.2d 379 (Miss.1978); Lewis v. State, 209 Miss. 110, 46 So.2d 78 (1950). In that circumstance, both the defense and the state are allowed to present expert opinion evidence as well as lay opinion evidence as to whether or not the defendant could distinguish right from wrong at the time of the commission of the crime. When this defense is raised, the defendant’s whole life is then open for admission into evidence. McLeod v. State, 317 So.2d 389 (Miss.1975). Experts can often provide assistance to the jury in understanding the complex concepts involved in the issue of insanity since such concepts are not within the scope of knowledge or experience of the average juror. 2 S. Gard, Jones on Evidence § 14:38 (6th Ed.1972); 31 Am.Jur.2d, Expert and Opinion Evidence § 86 (1967). To the contrary, the issue of malice aforethought, premeditation, or heat of passion is usually considered to be within the scope of the average juror’s knowledge or experience. See 29 Am.Jur.2d, Evidence, § 355 (1967). For that reason such questions as to the distinction between murder and manslaughter have traditionally been left to the jury for determination without evidence adduced by expert opinion. As we have stated, the defense of insanity raises the broad question of whether or not there is criminal responsibility, a subjective assessment; the distinction between murder and manslaughter is one of degree of responsibility and is objective in nature.

We also accept similar expert opinion testimony, subjective in nature, to determine if a defendant knowingly and intelligently waived his constitutional rights in making a confession. Dover v. State, 227 So.2d 296 (Miss.1969). In Williamson v. State, 330 So.2d 272 (Miss.1976), this Court said that in determining the voluntariness of a confession of a mentally weak person the question is, “ ‘whether the defendant’s will [not the will of a reasonable man] was overborne at the time he confessed’ ... The State proved beyond a reasonable doubt, after taking into consideration appellant’s weak intellect, that he freely and voluntarily ...” gave the confession. Id. at 276 (emphasis added). Again, this is a subjective test and does not meet the objective test requirements necessary in the determination of the issue of malice or heat of passion.

Relying upon Collins v. State, 361 So.2d 333 (Miss.1978), appellant urges that the determination of a defendant’s state of mind at the time of the criminal activity is a purely subjective inquiry and therefore expert testimony on the defendant’s mental condition as it affects her ability to react to external events would aid the jury in exercising its function as a fact finder. Contrary to appellant’s contention, the question of whether a defendant acted without malice and in the heat of passion is an objective one and is not subjective at all. State v. McAllister, supra; Weihofen and Overholser, supra; Criminal Law, supra. This question is quite different from the subjective test of premeditation and deliberation which forms the distinction between murder in the first degree and murder in the second degree: a distinction arising solely in modern statutes, not found at common law nor in Mississippi today. Where such a distinction exists, evidence such as that which appellant attempts to admit here would presumably be admissible. See, e.g., Weihofen and Overholser, supra, at 969-70. However, absent this distinction, the question is one of either murder or manslaughter and the test is whether the defendant acted in the heat of passion and without malice. Hammock v. State, supra. This depends upon a homicide induced by provocation “which causes a reasonable man to lose his normal self-control_” Criminal Law, supra, at 573 (emphasis added). Therefore, evidence which is admitted to show that because of a mental abnormality defendant acted in the heat of passion and without malice is not relevant to the inquiry before the Court.

In Collins v. State, supra, expert psychiatric testimony was admitted into evidence and the defendant was convicted of manslaughter and not murder. But that case is not authority for the admission of expert opinion evidence where the defense of insanity is not raised. In Collins both the defense of insanity and the alternative defense of manslaughter were raised at trial. Therefore, the expert opinion testimony was clearly admissible. Appellant here did not raise the complete defense of insanity. Therein lies the crucial difference between the two cases. Where insanity is not the defense, the determination of the ultimate fact of murder or manslaughter is left to the jury and is not subject to expert opinion testimony. Cowan v. State, 399 So.2d 1346 (Miss.1981); Austin v. State, 324 So.2d 245 (Miss.1975); Newell v. State, 308 So.2d 71 (Miss.1975); West v. State, 249 So.2d 650 (Miss.1971); McCormick v. State, 190 Miss. 521, 1 So.2d 234 (1941).

Appellant urges that as lay testimony was admitted here then certainly appellant’s expert opinion testimony should also have been admitted. We emphasize that the issue here is not “state of mind” but whether the appellant acted in the heat of passion and without malice. The question is an objective one, being whether a reasonable man would have been so provoked. Such a standard presupposes an individual without “serious mental and emotional defects”. State v. McAllister, supra, 41 N.J. at 354, 196 A.2d at 792. Thus, expert testimony that a defendant acted in the heat of passion and without malice because of mental abnormality is irrelevant to the consideration. Lay testimony which put before the jury the events as they transpired, i.e. the taking of defendant’s baby, without delving into the subjective thoughts of the defendant, was properly admitted so that the jury could determine the manslaughter issue. Merely because lay opinion is admissible it does not automatically follow that expert opinion testimony is admissible. This is true here, where the expert opinion evidence was offered on the ultimate issue of fact (malice or heat of passion) while the lay testimony was not so offered. So long as the complete defense of insanity is not at issue, expert psychiatric testimony is not available to either party to attempt to reduce the charge of murder to one of manslaughter.

The contention that expert opinion evidence is admissible on the state of mind of the defendant has already been addressed by this Court in Newell v. State, supra, and the opinion testimony was not admitted in evidence. While Newell did not involve the issue of malice or heat of passion, it did concern the defendant’s state of mind at the critical moment with regard to intent. The objective test of both issues is the same. There this Court said:

The intention of a party is a fact determination to be made by the jury from the evidence. In arriving at this determination it has the duty to consider the testimony concerning the assault, the surrounding circumstances, including the expressions made by participants. To permit comment on the subjective intentions of an accused by a witness based on conclusions reached from his observation invades the province of the fact finders. The issue of intent must be decided by the jury from the evidence in the case and not the conclusion of others. Shanklin v. State, 290 So.2d 625 (Miss.1974), and Golden v. State, 223 Miss. 649, 78 So.2d 788 (1955).

Id. 308 So.2d at 73.

For these reasons we find that there is no merit to the first assignment of error of the appellant.

The final assignment of error is that appellant was sentenced to life under an unconstitutional sentencing statute, as that statute does not provide for individual consideration of the offense and the offender and thus is in violation of the Eighth and Fourteenth Amendments to the United States Constitution. As authority for this position appellant cites Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977). The appellant did not raise the issue of the constitutionality of the statute in the trial court and as such is procedurally barred from arguing it here. Williamson v. State, 330 So.2d 272, 276 (Miss.1976); State v. The Cabana Terrace, 247 Miss. 26, 153 So.2d 257 (1963). Notwithstanding this procedural bar, we will consider appellant’s argument arguendo.

Roberts v. Louisiana, supra, held that in meting out sentences of death, consideration must be made for mitigating factors as to the particular offender and particular offense. Id. 431 U.S. at 636, 97 S.Ct. at 1995, 52 L.Ed.2d at 641. To do otherwise would constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. But, Roberts involved the death penalty. In this regard, the Supreme Court of the United States has stated,

We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentences in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques — probation, parole, work furloughs, to name a few and various postconviction remedies, may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.

Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978). The Supreme Court further stated,

Sentencing in noncapital cases presents no comparable problems. We emphasize that in dealing with standards for imposition of the death sentence we intimate no view regarding the authority of a State or of the Congress to fix mandatory, minimum sentences for non-capital crimes.

Id. at 605, fn. 13, 98 S.Ct. at 2965, 57 L.Ed.2d at 990. The Supreme Court later explained,

Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel.

Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 390 (1980).

The Mississippi Supreme Court has also addressed this issue. In White v. State, 375 So.2d 220 (Miss.1979), this Court stated,

The appellant complains that Mississippi Code Annotated Section 97-3-65 (1972) violates due process and equal protection of the law and is contrary to Rule 5.13, Mississippi Criminal Rules, in that no provision is made for the jury to consider mitigating circumstances in fixing defendant’s sentence. The requirements of Jackson v. State, 337 So.2d 1242 (Miss.1976), relating to a bifurcated trial apply only to cases involving capital offenses. The law requires no such procedure in a charge less than capital and there is no merit to this assignment.

Id. 375 So.2d at 222-223.

Based upon these authorities the mandatory life sentence meted out to appellant does not violate the Eighth and Fourteenth Amendments of the Constitution of the United States and that part of her second assignment of error is without merit.

The last part of the second assignment of error is the contention that because appellant is a minor her sentence should be vacated and resentencing ordered to conform to this Court’s requirements in May v. State, 398 So.2d 1331 (Miss.1981). There is no merit to this assignment and it is based upon a misconception of the May rule. To trigger the May requirements, the trial court must invoke Rule 5.13 Uniform Criminal Rules of Circuit Court Practice, and that was not done here.

Rule 5.13 provides that the trial court may grant a bifurcated trial in felony cases where the penalty is not death. This may be done, but it does not have to be done. Appellant here did not request a bifurcated trial and the trial court did not elect to grant a bifurcated trial. In May, supra, the trial was undertaken in the bifurcated manner. Such is not the case here. It was not error to avoid the bifurcated trial nor was the mandatory life sentence error.

The trial was properly conducted and the jury was properly instructed upon both manslaughter and murder. There is no merit to any of the assignments of error. Therefore, we affirm.

AFFIRMED.

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

ROBERTSON, J., not participating.


text:
    Aubrey L. MOONEYHAM, et al. v. CITY OF BILOXI, et al.
    No. 54522.
    Supreme Court of Mississippi.
    May 2, 1984.
    Rehearing Denied July 25, 1984.
    Albert S. Johnston, III, Biloxi, for appellant.
    Ronald G. Peresich, Page, Mannino & Peresich, Charles K. Pringle, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.

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


text:
    CITY OF PETAL, Mississippi v. Alyce Gammel HESTER.
    No. 54945.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied July 25, 1984.
    Thomas W. Tyner, Aultman, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellant.
    Kim T. Chaze, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

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

AFFIRMED.

SULLIVAN, J., not participating.


author: PER CURIAM.

text:
    Curtis STOWERS v. STATE of Mississippi.
    No. 54893.
    Supreme Court of Mississippi.
    May 23, 1984.
    Rehearing Denied July 18, 1984.
    Thomas D. Lee, Forest, for appellant.
    Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

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

AFFIRMED. '

PER CURIAM.


text:
    Woodrow Wilson BARKER v. Rathen Loyce BARKER.
    No. 54885.
    Supreme Court of Mississippi.
    May 23, 1984.
    Rehearing Denied July 25, 1984.
    Barry W. Gilmer, Gilmer & Jones, Jackson, for appellant.
    Harris Sullivan, Jr., Mendenhall, for ap-pellee.
   Appeal from Chancery Court, Simpson County; J.W. Walker, Chancellor.

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

AFFIRMED ON DIRECT APPEAL.


text:
    Patrick James McINERNEY v. STATE of Mississippi.
    No. 54234.
    Supreme Court of Mississippi.
    May 30, 1984.
    Rehearing Denied July 25, 1984.
    Michael G. Thorne, Moffett & Thorne, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

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

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, PRATHER and SULLIVAN, JJ., concur.

DAN M. LEE, J., concurs in results only.


author: PRATHER, Justice,

text:
    H. Alex TROTTER v. GADDIS AND McLAURIN, INC., et al.
    No. 54214.
    Supreme Court of Mississippi.
    May 30, 1984.

      Rufus Creekmore, Jackson, for appellant.
    Henry M. Kendall, Jackson, for appel-lees.
    Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.
   PRATHER, Justice,

for the Court:

This is a suit to remove clouds upon title to two tracts of real estate filed by Gaddis & McLaurin, Inc., and Gaddis Farms against H. Alex Trotter in the Hinds County Chancery Court. Trotter asserted a claim of title to the property by adverse possession, which claim the chancellor disallowed. As to Tract No. I, the chancellor found that a written lease with an indefinite description from Gaddis to Trotter showed permissive use and precluded an adverse claim by Trotter. With respect to tract II, the chancellor held that sufficient notice had not been given to Gaddis Farms to effectively claim title by adverse possession.

We reverse and render as to both tracts of land.

I

Appellant, Alex Trotter, is record titleholder to land in Western Hinds County described as:

The NE lk of the SW lk and ten (10) acres east side of the NW lk of the SW ¼ and three and one-half (3V2) acres north part of the SE ¼ of the SW ¼ and one (1) acre in the NE corner of the SW ¼ of the SW ¼ of Section 19, Township 7, Range 2 West, and being in Second Judicial District of Hinds County State of Mississippi.

This tract consisting of 54½ acres was purchased by Stella Trotter from J.L. Gaddis, who was the common source of title between the Trotters and appellees, in 1916. The tract was later conveyed to George Trotter, father of appellant. In March, 1978, George Trotter conveyed his interest in the land to appellant, Alex Trotter. There is no dispute as to the 54 acres above described but it is the lands adjoining this 54 acre tract to the north and to the west that are the subject of this lawsuit.

Gaddis and McLaurin, Inc. owns record title to land along the northern boundary of the Trotter property described as:

The NW ¼, less 3.85 acres in the NW corner, Section 19, Township 7 North, Range 2 West, Hinds County, Mississippi.

Gaddis Farms owns record title to land along the western boundary of the Trotter property described as:

All that part of the NW lk of the SW ¼ and 7.2 acres off the north end of the SW V4 of the SW V4, Section 19, Township 7 North, Range 2 West, Hinds County, Mississippi.

Shortly after Stella Trotter purchased the Trotter property from J.L. Gaddis, a barb wire fence was constructed through a wooded area along what was believed to be the northern and western boundaries of the property. Unknown to the parties, the fence actually encroached upon the Gaddis property to the north, later to become known as Gaddis And McLaurin property (Tract I), creating a 5.5 acre dispute. The fence also encroached upon Gaddis property to the west, later to become Gaddis Farms property (Tract II), creating a 9.8 acre dispute. The proof showed this fence to be continuous and nailed to trees and posts through the woods. The age of the fence was shown by tree overgrowth and maintenance of the fence through the years was evidenced by the addition of barbed wire strands in certain places.

II.

AS TO TRACT I

George Trotter was aware of the boundary fence his mother, Stella, had constructed in 1916, and he subsequently maintained that fence during the years he owned the property. The disputed property referred to as Tract I was cultivated and pastured by both him and his mother for over thirty years.

Lanzy Bates lived on the Tract I property as a tenant farmer from 1923 through 1926. In 1927 he moved back, and for six or seven additional years, he raised crops and pastured cows. After Bates left Trotter’s employ, he continued to do part-time work on this disputed property.

Arthur Collins, a Trotter tenant farmer on Tract II from 1961 until 1966, was familiar with Tract I. He stated that this tract was used for row crops and he recalled pulpwood cutting from this land by the Trotters.

Alex Trotter remembered his father and grandmother’s usage of the property from his childhood years. He corroborated testimony of the cultivation, pasturing, and pulpwood cutting on both these disputed property tracts.

In 1955 George Trotter as owner of the Trotter property, entered into a lease with Gaddis And McLaurin, Inc., whereby Trotter was to lease land from Gaddis And McLaurin described as “between 40 and 80 acres of land in the S ½ of the NW ¼ of Section 19, Township and North Range 2 West in Hinds County, Miss.” Trotter admitted the existence of the lease and admitted paying rent on the lease through De-' eember, 1977. He, however, denied that the property in the lease was the same as the disputed property contained in Tract I. Instead, he maintained the position that the property he was leasing from Gaddis And McLaurin was a tract of land north and west of the disputed property. Gaddis And McLaurin’s position with respect to the lease was that since it included Tract I, Trotter’s use of the property was permissive. Evidence relied upon by Gaddis And McLaurin, Inc. against adverse possession of Tract I focused on the 1955 lease and not upon use of the property. The lease did not purport to describe any portion of the Tract II property.

II A.

On this proof the chancellor denied the adverse possession claim for the sole reason of the execution of the 1955 lease between Gaddis and McLaurin and George Trotter. The lease instrument purported to lease:

between 40 and 80 acres of land in the S V2 of the NW ¼ of Section 19, Township and North Range 2 West in Hinds County, Miss.

The disputed property referred to as Tract 1 was a 5.85 acre tract located along the south line of the SE ¼ of the NW ¼ of Section 19. Under the lease description, it is impossible to determine whether the 5.505 acre tract is included in the “between 40 and 80 acres” leased.

Descriptions in leases as in deeds must describe the leasehold with certainty if the lease is to be valid. Gex v. Dill, 86 Miss. 10, 88 So. 193 (1905). See also, 49 Am.Jur.2d, Landlord And Tenant § 34 (1970). Land descriptions, to be sufficient, should enable a surveyor to locate boundaries by following the description. Overby v. Cavanaugh, 434 So.2d 1365 (Miss.1983).

In the case sub judice, Gaddis & McLaurin, Inc. attempted to lease a given number of acres out of a larger tract of land. We have held in numerous cases that an attempted conveyance of a given number of acres out of a larger tract, without specifying where they are located within the larger tract, is void for uncertainty of description. Wilson v. Clark, 278 So.2d 250 (Miss.1973); Mississippi Industries for the Blind v. Jackson, 231 Miss. 135, 95 So.2d 109 (1957); Heidelberg v. Duckworth, 206 Miss. 388, 40 So.2d 179 (1949); Crosby Lumber and Manufacturing Company v. Elsas, 183 Miss. 107, 183 So. 499 (1938).

George Trotter admits paying rent on the lease through December, 1977. He refutes the argument that the lease includes the Tract I property and instead, he contends that the property he leased is to the northwest of Tract I. According to the lease description, the leased property could just as likely be outside the disputed area as inside. This Court agrees and holds that the lease is too uncertain to preclude Trotter’s adverse possession claim.

II B.

Even though we hold the lease description void as a defense against an adverse possession claim, the adverse possession claim of Tract I, if valid, must meet the requirements of such possession.

There are six essential elements necessary to constitute an effective adverse possession claim. There must be possession which is (1) and under claim of right, (2) actual, (3) open, notorious, and visible, (4) exclusive, (5) continuous and uninterrupted for ten years, and (6) peaceful. Houston v. U.S. Gypsum Co., 652 F.2d 467 (5th Cir.1981), Florida Gas Exploration Co. v. Searcy, 385 So.2d 1293 (Miss.1980), Eady v. Eady, 362 So.2d 830 (Miss.1978).

In Smith v. Anderson, 193 Miss. 161, 8 So.2d 251 (Miss.1942), this Court held:

Under Section 2287, Code of 1930, known as the “Ten Years Adverse Possession Statute,” one may acquire title to land without actually occupying it, either himself or by tenant, but by merely cultivating, pasturing, cutting and selling timber and other acts of ownership and control over the same_ (Id. 8 So.2d at 256).

See Chatman v. Carter, 209 Miss. 16, 45 So.2d 841 (1950).

The possession must be sufficient to put another on notice, actual or imputable, of an adverse claim to his property. Without such notice, possession will never ripen into title. Further, mere possession is not sufficient to satisfy the requirements of open and notorious possession. Craft v. Thompson, 405 So.2d 128 (Miss.1981); See Peoples Realty & Development Corp. v. Sullivan, 336 So.2d 1304 (Miss.1976).

In Cole v. Burleson, 375 So.2d 1046 (Miss.1979) property not contained in appellant’s deed was enclosed by a fence built by appellees’ predecessor in interest in 1949. Three other predecessors had title before appellee obtained the property in 1972. Objection to the fence was made by appellants after appellee had obtained title and a suit to enjoin appellee from entering the property was filed. The 1949 fence had been in a state of disrepair since 1955.

Holding that the appellees’ predecessors in interest had obtained title by adverse possession, this Court stated:

It is not required that land claimed under adverse possession be in the same quarter section or section as the land described in the deed lies. The rule is the same as, if there had been no deed, the disputed land had been enclosed by a fence, and ownership had been claimed and exercised for ten (10) years. Title would ripen by adverse possession and it is not necessary that a fence, which formerly enclosed the land claimed for a period of ten years, or more, be standing or in existence at the time suit is filed. If a fence encloses the property for ten years, under a claim of adverse possession, title vests in the claimant and possessor, even though the fence was subsequently removed or fell into disrepair. (Id. at 1048).

The evidence showed the “1916” fence to be a continuous fence representing the northern and western boundary of the Trotter property. While portions was in disrepair, it clearly had been maintained as a property line fence for the statutory period. The evidence also showed that Trotter tenants cultivated portions of Tract 1 during the 1920’s and 1930’s. The Trotters likewise cultivated portions of the tract during that time period. The land was also used as pasture for winter grazing. The evidence further showed that during the 1960’s the land known as Tract 1 was cultivated by the Trotters. Also, pulpwood was cut from this land off and on by John Henry Logan, the last period of cutting occurring in the 1970’s.

The fence is evidence of hostile ownership under claim of right. The Trotters use of Tract I was open, notorious and exclusive according to the testimony. There was no testimony of objections or otherwise unpeaceful possession of the land until the time period immediately preceding this lawsuit.

We, therefore; hold that title to the acreage within Tract I vested in Alex Trotter through the adverse possession of his predecessors in interest.

Ill A.

AS TO TRACT II

We now turn our attention to the 9.8 acres of land situated in Tract II along the western boundary of the Trotter property.

As to Tract II, west of Trotter’s land, the Trotters had used and occupied these 9.8 acres as primarily pasture land since 1916. Additionally timber was cut from the disputed acreage for Trotter by John Henry Logan. All of this usage was exercised by the Trotters in the area up to the 1916 fence line.

Then in 1960, T.H. Gaddis, President of Gaddis Farms, approached George Trotter about building a fence along the western boundary of Trotter’s property. Gaddis Farms planned to use the fence to contain its cattle. Dissatisfied with location of the proposed fence, Trotter disagreed as to its position, and to secure Trotter’s agreement, Gaddis constructed the 1960 fence 50 feet east of the old 1916 fence at its widest point. Shortly after the construction of this fence, termed a “partnership” fence by Gaddis Farms , George Trotter tore it down. He did not give notice to Gaddis Farms that it was being torn down, nor did Gaddis Farms discover its destruction until 1968 since it was located in a wooded area. When Gaddis approached Trotter about the fence, Trotter advised Gaddis that he was claiming all of the land inside the old 1916 fence.

As record title holder, Gaddis & McLau-rin and Gaddis Farms paid the taxes due each year on their respective tracts. Evidence indicated that Gaddis Farms used Tract II during the 1960’s for cattle grazing for a period of time, entry being acquired through breaks in the 1916 fence.

The lower court’s ruling was that George Trotter had a duty to inform Gaddis Farms that he was claiming the land to the east of the “1916” fence when he tore down the “1960 partnership fence.” The argument of Gaddis Farms is premised on the fact that they did not become aware of Trotter’s claim until discovery of the torn down fence in 1968. Objections made to Trotter’s claim prior to 1978 would have prevented the statutory time period of ten years from running in favor of Trotter.

First, we address the duty of giving notice. Possession must be sufficient to put another on notice, actual or imputable, of the adverse claim, and without such notice, possession will never ripen into title. Craft v. Thompson, 405 So.2d 128 (Miss.1981).

It was not incumbent upon George Trotter to knock on Gaddis Farm’s door and advise them of his claim. The destruction of the 1960 “partnership” fence which Gaddis Farms helped build and subsequent use of the property by Trotter if the use met the other requirements, would have been sufficient to impute notice to Gaddis Farms. We, however, resolve the Tract II dispute on the same basis as the Tract I property dispute.

Again, Alex Trotter used this tract of land as did his predecessors in interest. From a period of time shortly after 1916, this 9 acres was being used by the Trotters. The record indicates that it was not until 1960 that Gaddis Farms began to jointly use the disputed property for pasture purposes. The testimony showed that this tract had been used for pasture and timber by the Trotters for many years by Alex Trotter’s predecessors in interest before any dispute arose. Alex Trotter testified that this property was used by his predecessors for cultivation of potatoes and rye grass since he was 8 or 9 years old. Collins worked this property as a tenant farmer from 1960 through 1966. Timber from Tract II was sold by the Trotters to John Logan on several occasions.

This extensive usage by the Trotters met the requirement of hostile, open, notorious, peaceful and uninterrupted possession for ten years. We, therefore, hold that title vested in Alex Trotter through adverse possession by his predecessors prior to the 1960 “partnership” fence dispute, the use by Gaddis Farms of this tract as pasture land in the 1960’s could not divest the Trotters of their claim which ripened prior to that time since their usage did not meet the adverse possession requirements.

IV.

It is the opinion of this Court that the chancellor was manifestly wrong by relying on the 1955 lease as a defense to Trotter’s adverse possession claim. We further hold that George Trotter's failure to give Gaddis Farms actual notice of his claim in 1960 does not divest Alex Trotter of his claim of adverse possession. As a result of the adverse possession and use of both tracts of property by Alex Trotter and his predecessors, title to these properties vested in him.

We, therefore, render the decision in this Court and hold that H. Alex Trotter holds title to Tract No. I and II as the tracts are described in the complaint filed in the chancery court.

REVERSED AND RENDERED.

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

      . Gaddis Farms claims to have built this fence with the financial and labor support of Mr. Trotter.