author: CRAIN, Judge.

text:
    STATE of Louisiana v. Rod COLEMAN.
    No. 83 KA 1296.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Granted Sept. 14, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Paula Cobb, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Rod Coleman, was charged with having committed attempted first degree murder on October 30, 1981, in violation of La.R.S. 14:30 and 14:27. He pled not guilty. A jury subsequently found him guilty of attempted manslaughter. He was sentenced to five (5) years at hard labor without benefit of probation, parole or suspension of sentence and with credit for time served. Defendant appealed his conviction and sentence, and both were affirmed by this court on May 17, 1983. [State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983)]. The sentence was made ex-ecutory on June 20, 1983.

On July 8, 1983, the State filed a Motion for Sentencing in Conformity with La.C. Cr.P. art. 893.1 and La.R.S. 14:95.2, based on the fact that the evidence presented at trial revealed that defendant had used a firearm in the commission of the crime. Defendant filed an opposition to the State’s motion, contending the trial court was without jurisdiction to correct the sentence. After a contradictory hearing, the trial court found that the original sentence was illegal and that it was mandated to impose the sentence and conditions of La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2. On October 18, 1983, the original sentence was vacated and the trial court re-imposed the sentence, adding two years at hard labor without benefit of parole, suspension, or credit for good time to be served consecutively with the five year sentence. Defendant appeals from this corrected sentence, alleging the trial court was without jurisdiction to modify the sentence after the conviction and the original sentence were appealed and affirmed by the appellate court.

ASSIGNMENT OF ERROR

Defendant contends the trial court erred in vacating his original sentence and imposing an increased sentence. He argues that the trial court was divested of jurisdiction upon entering of the order of appeal. He contends the original sentence in this case was not illegal and, therefore, the exception in La.C.Cr.P. art. 916(3) allowing the trial court jurisdiction after appeal to correct an illegal sentence is not applicable in this case. He argues further that, in light of La.C.Cr.P. art. 881, a sentence may not be amended or changed after execution of the sentence.

La.C.Cr.P. art. 916 provides, in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to:
(3) Correct an illegal sentence, or reduce a legal sentence in accordance with Article 913(B);

Additionally, La.C.Cr.P. art. 882 provides in pertinent part, that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence.” Article 881 prohibits the amendment of a legal sentence after execution has commenced and is not applicable to correcting an illegal sentence.

The first issue which must be addressed is whether the original sentence imposed was illegal. Defendant argues that, since this original sentence was within the guidelines of the attempted manslaughter statutes, it was legal. Attempted manslaughter is punishable by imprisonment at hard labor for not more than ten and one-half years. La.R.S. 14:31 and 14:27.

In this case, the offense was committed with a firearm. Therefore, when defendant was convicted, the mandatory sentencing provisions of La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2 were applicable. La.C.Cr.P. 893.1 mandates at least a five year sentence without benefit of suspension of sentence, probation or parole, for a felony committed with a firearm when the maximum sentence for the offense is five or more years. La.R.S. 14:95.2 requires an additional term of two years without benefit of probation, parole, suspension of sentence or credit for good time for a first conviction for attempted manslaughter with use of a firearm. The two year sentence is to be in addition to and to run consecutive to any other sentence imposed for crimes listed in La.R.S. 14:95.2. Applying both La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2, the minimum allowable sentence was seven years at hard labor without suspension and without benefit of parole or probation. The sentence imposed here was only five years at hard labor without benefit of probation, parole or suspension of sentence. It complied with La.C.Cr.P. art. 893.1, but not with La.R.S. 14:95.2. Consequently, it was less than the mandatory sentence required by law.

Sentences not imposed without benefit of suspension, probation or parole when that restriction is mandated by statute are illegal sentences (unlawfully lenient). See State v. Telsee, 425 So.2d 1251 (La.1983); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir.1983); State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writs granted in part and denied in part, 443 So.2d 1123 (La.1984). A sentence imposed without compliance with the mandatory provisions of both La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2 is analagous to a sentence not imposed with the required language “without benefit of parole, probation or suspension of sentence”. Therefore, we hold that the original sentence imposed in this case being less than the minimum sentence mandated by application of both La. C.Cr.P. art. 893.1 and La.R.S. 14:95.2 was illegal.

The second issue is whether the trial court may correct an illegal sentence after appeal, affirmance of the sentence on appeal, and the beginning of execution of the sentence.

The language of La.C.Cr.P. art. 882 indicates that the trial court can correct an illegal sentence at any time. This language does not limit the correction of sentencing errors to those adverse to the defendant. State v. Jackson, 439 So.2d at 626.

Furthermore, the Official Revision Comment to La.C.Cr.P. art. 882 states, in pertinent part:

(a) The first sentence, taken from Fed. Rule 35, states the almost self-evident authority of the court to correct an illegal sentence at any time, for an illegal sentence is, in the contemplation of the law, no sentence at all. State v. Johnson, 220 La. 64, 55 So.2d 782 (1951). The phrase ‘at any time’ makes clear the court’s authority to make a correction after the defendant has begun to serve the sentence. Such authority was squarely affirmed in United States v. Johnson, 142 F.Supp. 532 (E.D.Tex.1956), aff’d, 241 F.2d 60 (5th Cir.1957), citing Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947).
(b) The court’s authority to correct an illegal sentence at any time, which includes the power to pronounce a legal sentence, applies when an order of appeal or writs have been granted. This authority of the trial court is specifically set forth in Art. 916. (emphasis added).

When a sentencing court discovers that a sentence imposed by it did not conform to the applicable penalty statute, it has a duty to correct the sentence so as to comply with the statute, even though service of the sentence first imposed has begun, and though the corrected sentence is required to be more onerous. Llerena v. United States, 508 F.2d 78 (5th Cir.1975).

Recent jurisprudence from the Louisiana Supreme Court makes it imperative that the trial court be able to correct an illegal sentence at any time. In State v. Napoli, 437 So.2d 868 (La.1983), the Louisiana Supreme Court prohibited the Court of Appeal from ordering the trial court to correct a patently illegal sentence and ordered reinstatement of that illegal sentence holding that an illegal sentence in favor of a defendant cannot be reviewed or corrected by the appellate court. But see, State v. Telsee, 425 So.2d 1251 (La.1983), where the Court recognized ex proprio motu that a sentence for forcible rape was unlawfully lenient because the district court did not order it to be served without benefit of probation, parole or suspension for at least two years. Again in State ex rel. Pierre v. Maggio, 445 So.2d 425 (La.1984), the Court required the Department of Corrections to consider parole eligibility for a defendant who was illegally sentenced with that benefit contrary to a statute that prohibited parole eligibility. Unless the trial court can correct the sentences in both the Napo-li and Pierre situations these defendants are going to achieve parole eligibility when the statute under which they were sentenced clearly prohibits it.

Therefore, we find that the trial court did not err in correcting an illegal sentence after appeal and while the sentence was being executed.

Accordingly, we affirm the sentence reimposed by the trial court.

AFFIRMED.

      . La.C.Cr.P. art. 893.1 provides:
      When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
      (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
      Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.
      La.R.S. 14:95.2 provides:
      Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
      The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.

      . If the appellate courts are restricted from correcting or ordering corrected a sentence illegal in favor of a defendant, and the parole board is required to honor an illegal sentence, serious problems are going to be presented even with the ability of the trial court to correct the sentence. It would become impossible for an illegal sentence to be corrected in the event it is acquiesed in by the State. Thus, a defendant charged with armed robbery could be sentenced, and the sentence suspended, or be given with parole and probation and absent a State motion to correct the sentence, it would stand. Consequently, mandatory sentencing requirements could be ignored if the State desired. Given the desire in so many instances to obtain a guilty plea, this result is not at all improbable. The crux of the matter is, given the right circumstances, a sentence patently in violation of a statute and thus illegal could be effectively imposed if there is agreement among the involved parties. We would be telling the legislature in effect that having a particular mandatory sen-tenting requirement is fine unless the principals in a criminal litigation, the trial judge, prosecutor and defendant choose to ignore it. Then, it is not worth the proverbial paper it is written on.
      The correct view should be that when a statute sets mandatory requirements of a sentence, deviation from the mandate of the statute simply has no effect whether that deviation be in favor of or against a defendant. See Concurring Opinion, State v. Jackson, 439 So.2d at 628. It should also be noted that in Napoli the Court held that it was error for an appellate court to review a sentencing error unfavorable to a defendant because that would provide ‘a chilling effect on defendant’s exercise of his right to appeal.’ If an illegal sentence can be corrected before appeal (La.C.Cr.P. art. 882), during appeal (La.C.Cr.P. art. 916[3]) and after appeal (the instant case), we do not see how the correction of the sentence is relevant to or prejudices the right to appeal.


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Raymond DeBOUE.
    No. 83 KA 1397.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      John J. Erny, Jr., Asst. Dist. Atty., La-rose, for plaintiff-appellee State of La.
    Marjorie K. Patín, Thibodaux, for defendant-appellant Raymond DeBoue.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This criminal appeal arises from the conviction of Raymond DeBoue of cruelty to a juvenile in violation of LSA-R.S. 14:93. Defendant waived jury trial and was tried by a judge alone and found guilty as charged. Defendant was then charged by a bill of information as a second felony offender and was found to be a second felony offender. In conformity with the provisions of LSA-R.S. 15:529.1, defendant was sentenced to imprisonment at hard labor for a period of twenty years. Defendant appeals his conviction alleging two assignments of error.

FACTS

The victim, Edward Nora, was an eighteen month old child of the woman who resided with the defendant. On or about March 16, 1983, defendant and the mother of the child, Lorraine Nora, had been arguing and apparently defendant was provoked with Lorraine Nora as well as with the child. He became more upset when Edward urinated on himself and after slapping the child with his hand several times, he placed the child in a bathtub in which he had drawn approximately an inch of tap water. Defendant then opened the hot water tap and filled the tub approximately to the level of the child’s waist. Defendant ignored Edward’s screams and cries and forced the child to remain in the scalding hot water for several minutes, although the child tried to get out of the tub. When the child was removed from the tub, defendant and Lorraine Nora noticed blisters on his legs and lower parts of his body. They left to purchase salve, but when they noticed that blisters had formed over the bottom half of the child’s body, it was obvious that the child needed immediate medical attention. He was taken to a hospital where medical attendants alerted law enforcement officers.

Edward was admitted to an intensive care unit with second and third degree burns covering thirty-five to forty percent of his body. He remained in the hospital for approximately five months during which time he received treatment and therapy each day of his hospitalization. Just to change the bandages was so painful that the child required sedation each day. The doctor who treated Edward at the hospital testified that the child’s injuries could have resulted in his death in that the burns were so severe that four toes of one foot were completely burned off and the heels of his feet had no skin left to cover the exposed bone. Although his condition is now stable, he will need numerous skin grafts and physical and psychological therapy for many years.

The trial judge concluded that the crime and the manner in which the defendant inflicted cruelty on this child was the most aggravated instance of child abuse that the court had ever encountered.

ASSIGNMENTS OF ERROR

Defendant-appellant, Raymond DeBoue, relates the following assignments of error:

(1) The trial judge erred when it allowed the hearsay testimony of Detective Bill Marchand into evidence at the trial; and,
(2) The trial judge erred when it denied defendant’s motion for acquittal based on LSA-C.Cr.P. art. 778.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the testimony of Detective Bill Marchand as to defendant’s age at the time of the commission of the offense was hearsay and should have been excluded from evidence. Further, defendant argues that the State presented no other competent evidence that defendant was over the age of 17 years at the time of the commission of the crime and as such failed to prove an essential element of the crime with which he was charged, cruelty to a juvenile as defined in LSA-R.S. 14:93.

However, defendant overlooks an exception to the hearsay rule wherein hearsay testimony relating to an admission of a defendant is admissible. State v. Lewis, 416 So.2d 921 (La.1982). The rules governing the admissibility of confessions are applicable to admissions involving the existence of an inculpatory fact, especially when such is an essential element of the offense charged. State v. McGraw, 366 So.2d 1278 (La.1978). However, the State must prove beyond a reasonable doubt that the admission was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. State v. Jackson, 414 So.2d 310 (La.1982).

Detective Marchand testified that during booking procedures defendant had stated his birthdate. Defense counsel objected on the grounds that such an out-of-court statement was hearsay and the trial judge held the defendant’s statement was an admission against his interest. The trial judge then proceeded to require the State to lay a foundation before the evidence could be admitted. Following the hearing on the predicate, having satisfied himself that defendant had given his birthdate freely and voluntarily and without coercion or promises, the trial judge overruled defendant’s objection and properly allowed Detective Marchand to state defendant’s birth-date as told to him by defendant. The State had therefore borne its burden of proving that defendant was over the age of 17 at the time of the commission of the crime and this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court improperly denied his Motion for Acquittal under LSA-C.Cr.P. 778, contending again that the State failed to present sufficient evidence to prove beyond a reasonable doubt that defendant was guilty of each element of the crime, charging more specifically that the State failed to prove that defendant was over the age of 17 years.

We have previously concluded in our treatment of Assignment of Error No. 1 that the evidence as to the age of defendant was properly admitted. We have further reviewed the evidence and testimony under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-C.Cr.P. art. 778 and find the evidence and testimony sufficient to sustain defendant’s conviction. It is clear that the evidence, when viewed in the light most favorable to the State, proves defendant guilty of each essential element of the crime charged beyond a reasonable doubt. LSA-C.Cr.P. art. 821. There is no merit to this assignment of error.

Therefore, for the above reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 14:93 provides:
      § 93. Cruelty to juveniles
      "Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child's age shall not be a defense.
      Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than ten years, with or without hard labor, or both.”

      . LSA-C.Cr.P. art. 778 provides:
      Art. 778. Motion for acquittal
      "In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of. the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
      If the court denied a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.”

      . Denial of a motion for acquittal may be reversed on appeal only if there is no evidence of the crime charged or no evidence of an essential element thereof. State v. Hargrave, 411 So.2d 1058 (La.1982).


author: COVINGTON, Judge.

text:
    Emma P. MORRIS v. Paula C. MITCHELL, et al. Virginia A. MORRIS v. Paula C. MITCHELL et al.
    Nos. 83 CA 0774, 83 CA 0775.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    David Cheatham and Donald Fendlason, Bogalusa, for Emma Morris.
    Wilson C. Krebs, Covington, for Virginia Morris.
    James C. Cockfield, Covington, for Hartford Ins. Co.
    E.B. Dittmer, II and John W. Anthony, Bogalusa, for Commercial Union Ins. Co.
    James W. Armstrong, III, Covington, for Paula Mitchell, George Mitchell & Aetna Cas. Ins. Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal from a summary judgment in favor of Commercial Union Insurance Company against the plaintiffs and third party plaintiffs dismissing their actions against Commercial Union.

Only the plaintiffs, Emma P. Morris and Virginia A. Morris, have appealed the judgment.

Emma P. Morris was a school bus driver employed by the Washington Parish School Board. On December 19, 1981, she was a passenger in a 1976 Mercury automobile which she owned and which was being driven by Virginia A. Morris, who resided with her mother, Emma Morris. The vehicle was hit head-on by a 1979 Toyota automobile owned by George M. Mitchell and operated by Paula C. Mitchell. Plaintiffs, Emma P. Morris and Virginia A. Morris, allege that they sustained certain personal injuries as a result of this accident.

Commercial Union Insurance Company had issued a business auto policy to the Washington Parish School Board, covering certain listed vehicles owned by employee-drivers, including the school bus owned by Mrs. Morris. The policy premium was paid to Commercial Union by the school board, and the employee-drivers were assessed a pro-rata share of the premium by the school board. The 1976 Mercury owned by Mrs. Morris was not listed as a covered vehicle under the policy. The Morris Mercury was uninsured. The Toyota of Mr. Mitchell was insured.

The issue on appeal is whether, under the circumstances of this case, Emma P. Morris and Virginia A. Morris are entitled to uninsured motorist protection under the Commercial Union policy.

The subject policy was issued to the Washington Parish School Board, the “named insured” under the policy. Emma Morris was a school bus driver in the employ of the Washington Parish School Board. She owned the bus she drove for the school board, and it was one of the vehicles listed under the policy. The school board paid the premium for the policy, and Mrs. Morris and other driver-employees were assessed a pro-rata share of the premium by the school board.

Under Paragraph D(2) of the U.M. endorsement to the policy, Emma Morris was afforded uninsured motorist protection only while occupying a covered vehicle. The plaintiffs contend that they should be covered under Paragraph D(l) which defines insured for purposes of U.M. coverage, as “you (NAMED INSURED) or any family member.” Family member is defined as a “person related to you (NAMED INSURED) by blood, marriage, or adoption who is a resident of your household, including a ward or foster child.”

Appellants’ primary contention is that they are entitled to U.M. coverage despite the contrary provisions of the U.M. endorsement, because Mrs. Morris was a premium-paying insured. The record does not support this contention. The premium was paid by the school board. Emma Morris is not the “named insured”; rather the Washington Parish School Board is so named in the policy. Emma Morris, under the circumstances of this accident, also cannot be considered an omnibus insured, because she was not operating a covered vehicle. It follows that Virginia Morris is also not covered by the subject policy.

The Louisiana Supreme Court has clearly held that, in a situation such as this, a plaintiff cannot recover under uninsured motorist coverage applicable to a vehicle other than that in which the plaintiff was injured, unless the plaintiff is an “insured” under the other policy. Seaton v. Kelly, 339 So.2d 731 (La.1976). The Court in Sea-ton specifically held that the clause defining “insured” eliminated the plaintiff from coverage, since the plaintiff therein was not occupying an insured automobile. The Court pointed out that the question in these cases is whether or not the plaintiff is an “insured” under the terms of the policy from which he seeks uninsured motorist benefits. The Court stated that LSA-R.S. 22:1406 requires that insurance policies provide uninsured motorist coverage only for persons insured under the policies.

This case does not involve a situation where an insured is excluded from uninsured motorist coverage because the insured is occupying an automobile other than an insured automobile. The Court in Schmidt v. Estate of Choron, 376 So.2d 579 (La.App. 4th Cir.1979), pointed out that such exclusionary clauses contravene public policy only where an “insured” under the policy was denied uninsured motorist coverage. The Court confirmed that there was no merit to the public policy argument where plaintiff is denied uninsured motorist coverage because plaintiff, like Emma Morris, is not an insured under the policy. As earlier pointed out, the primary question in this case is whether Emma P. Morris is an “insured.” In the Schmidt case, “insured” was similarly defined as the named insured and any relative and any other person while occupying an insured automobile. Since the plaintiff in Schmidt, like Emma Morris, was not the named insured and was not occupying an insured automobile, she did not come within the definition of an “insured,” and was not covered under the uninsured motorist provisions of the policy. Under these circumstances, the Court concluded that the clause defining “insured” was not in contravention of LSA-R.S. 22:1406, and was not against public policy. Virginia Morris would have been entitled to uninsured motorist protection under the Commercial Union policy only had she been occupying a covered vehicle, which she was not.

Under the circumstances, we hold that Commercial Union was properly granted a summary judgment. There was no genuine issue of material fact and, as a matter of law, Commercial Union was entitled to a judgment. LSA-C.C.P. art. 966, 967.

Accordingly, the judgment is affirmed at the appellant’s costs.

AFFIRMED.


text:
    STATE of Louisiana v. Troy L. ARMSTRONG.
    No. 16574-KW.
    Court of Appeal of Louisiana, Second Circuit.
    June 1, 1984.
    Charles Minifield, Asst. Dist. Atty., for plaintiff-respondent.
    Stephen R. Burke, Minden, for defendant-applicant.
    Before PRICE, HALL and MARVIN, JJ.
   ORDER

By this writ application, the defendant seeks review of his conviction on April 9, 1984, in the City Court of Minden, Ward One, Webster Parish, of driving while intoxicated in violation of R.S. 14:98.

Upon defendant’s giving notice of intention to apply to the Court of Appeal for a writ of review, the trial judge ordered that the application for writs be filed in the Court of Appeal on or before May 14, 1984. Upon defendant’s motion, the time in which to file the writ application was extended until May 24, 1984. Rules 4-2, 4-3, Uniform Rules of the Courts of Appeal.

The defendant’s application was filed in the Court of Appeal by mailing same addressed to the clerk. The mailing was postmarked May 29, 1984, and is considered filed as of that date. Rule 2-13, Uniform Rules of the Courts of Appeal.

Rule 4-3 of the Uniform Rules of the Courts of Appeal provides:

“... An application not filed in this court within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant’s fault.” (emphasis supplied)

The application was not filed within the time fixed and extended by the trial judge. The applicant has made no showing that the delay in filing was not due to the applicant’s fault.

Accordingly, pursuant to the mandatory provision of the Uniform Rules, the defendant’s application is not considered.


text:
    STATE of Louisiana v. King Edward DANGERFIELD.
    No. 16579-KW.
    Court of Appeal of Louisiana, Second Circuit.
    June 4, 1984.
    James M. Fowler, Asst. Dist. Atty., for plaintiff-respondent.
    Culpepper, Teat, Caldwell & Avery by Jimmy C. Teat, Jonesboro, for defendant-applicant.
    Before PRICE, HALL and MARVIN, JJ.
   ORDER

By this writ application, the defendant seeks review of his conviction of driving while intoxicated, second offense, in the Second Judicial District Court. The application assigns as error the finding of the district court that the state proved the guilt of the defendant beyond a reasonable doubt and asserts that a proper foundation was not laid for admission of a blood test into evidence, the defendant was not identified as the person charged, and the defendant was denied the right to effectively cross-examine the witness who performed the blood test. The assigned errors are argued at some length in the application and much reliance is placed on what the transcript of the trial might disclose.

It is impossible to review the merits of the assigned errors because the application does not contain a copy of the transcript of the trial. Further, the application does not comply in several respects with the Uniform Rules of the Courts of Appeal.

The application does not comply with Rule 4 — 5(f), (g), (h), and (i) in that it does not contain a copy of the judgment, order or ruling complained of; a copy of the judge’s reasons for judgment, a copy of each pleading on which the judgment was founded, or a copy of the pertinent court minutes. The application does not comply with Rule 4-2 in that it does not reflect that notice of intention to apply for a writ was given to the judge whose ruling is complained of; nor does it comply with Rule 4-3 in that it does not contain an order of the judge fixing the time for filing the writ application in the Court of Appeal.

A review of the sufficiency of the evidence and evidentiary rulings is impossible without a transcript of the proceedings. In order to make a showing warranting the exercise of the appellate court’s supervisory jurisdiction, an application for a writ of review based on complaints of insufficiency of the evidence or of evidentiary errors should contain a transcript of the testimony.

Since the defendant has failed to provide a complete application and to make an adequate showing for the granting of a writ of review, the application is denied.


author: CUTRER, Judge.

text:
    Jesse MOSES, Plaintiff-Appellee, v. ED’S MANUFACTURED HOUSING, INC. and Eagle Housing, Inc., Defendants-Appellants.
    No. 84-397.
    Court of Appeal of Louisiana, Third Circuit.
    June 11, 1984.
    Leslie R. Leavoy, Jr., Alexandria, for defendant-appellant.
    Jerry J. Blouin, New Orleans, for defendant-appellee.
    Michael F. Kelly, Marksville, for plaintiff-appellee.
    Before CUTRER, FORET and KNOLL, JJ.
   MOTION TO DISMISS

CUTRER, Judge.

The plaintiff-appellee, Jesse Moses, moves to dismiss the suspensive appeals of Eagle Housing, Inc. and Ed’s Manufactured Housing, Inc.

The matter was tried on the merits on January 5, 1984, and taken under advisement. On February 23, 1984, judgment in favor of plaintiff-appellee was signed and mailed to the parties pursuant to Louisiana Code of Civil Procedure article 1913. On the same date the district court judge signed an order granting Eagle Housing, Inc., a suspensive appeal conditioned upon the furnishing of bond with good and solvent surety in the amount of forty thousand and no/100 ($40,000.00) dollars. A similar order was granted on behalf of Ed’s Manufactured Housing, Inc. on March 7, 1984. As of the date this motion to dismiss was filed, May 8, 1984, no suspensive appeal bonds have been filed either by Ed’s Manufactured Housing, Inc., or by Eagle Housing, Inc.

A failure to file a bond timely requires dismissal of the suspensive appeal. Since no bond is required for a devolutive appeal the appeals are maintained as devolutive appeals. Guidry v. Rubin, 419 So.2d 51 (La.App.3rd Cir.1982); Succession of Buvens, 373 So.2d 750 (La.App.3rd Cir.1979).

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED.

DEVOLUTIVE APPEAL MAINTAINED.


author: FORET, Judge.

text:
    Virgil A. SIMON, Plaintiff-Appellee, v. Dr. Curt H. SMITH, et al., Defendant-Appellant.
    No. 84-432.
    Court of Appeal of Louisiana, Third Circuit.
    June 11, 1984.
    Wilkinson and Carmody, Arthur Carmo-dy, Shreveport, for defendant-appellant.
    Molony, Nolan, North & Riess, Bruce A. North and Lawrence J. Molony, Metairie, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   MOTION TO DISMISS

FORET, Judge.

Plaintiff-appellee, Virgil A. Simon, moves to dismiss the suspensive appeal of defendant-appellant, St. Frances Cabrini Hospital of Alexandria, Ine., as not being timely perfected.

Judgment was rendered on December 1, 1983. Defendant-appellant filed a motion to appeal on January 6, 1984.

A suspensive appeal must be filed within thirty (30) days after “the expiration of the delay for a new trial, as provided by Article 1974, if no application has been filed timely.” LSA-C.C.P. Article 2123(1). Louisiana Code of Civil Procedure, Article 1974 provides that the “delay for applying for a new trial shall be seven days . this delay commences to run on the day after judgment was signed.”

In this case since the written judgment was signed on December 1, 1983; the delay for requesting a new trial commenced running on December 2, 1983 and ended seven days later (excluding Saturday & Sunday) on December 12, 1983. The period during which the suspensive appeal could be filed began running on December 13, 1983 and ended thirty (30) days later (including Saturday & Sunday) on January 11, 1984. Since the defendant-appellant filed a motion for a suspensive appeal on January 6, 1983 within the appeal delay provided by the Louisiana Code of Civil Procedure, the appeal was timely filed, and the motion to dismiss the appeal must be denied.

MOTION DENIED.


author: KNOLL, Judge.

text:
    Alvin J. RICHARD, Plaintiff-Appellant, v. Louis J. BOURDA, Defendant-Appellee.
    No. 83-688.
    Court of Appeal of Louisiana, Third Circuit.
    June 15, 1984.

      Alex D. Chapman, Jr., Yille Platte, for plaintiff-appellant.
    J. Burton Willis, St. Martinville, for defendant-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Alvin Richard instituted this action to recover $13,468.50 from defendant, Louis J. Bourda, alleging a breach of a building contract. Bourda filed a reconventional demand seeking $8,000 in lost profits on the contract. The trial court rendered judgment against Richard in the sum of $2,021.

From this judgment, Richard appeals suspensively, reurging his principal demand and contending that the trial court erred in allowing Louis J. Bourda to recover the full contract price in his reconven-tional demand, less damages and previous payments.

The issues to be determined are whether Bourda is entitled to recovery under the contract or is he limited to recovery under quantum meruit and whether Richard is entitled to damages for Bourda’s breach of contract.

FACTS

The parties entered into a written contract on July 27, 1979 to construct a home for plaintiff (Richard) in Yille Platte. The defendant (Bourda) agreed to furnish the labor, plumbing, and electrical work to construct the home for a price of $22,000. Richard agreed to furnish all the materials.

Bourda commenced construction of Richard’s house on July 30, 1979 and worked until September 16, 1979. What caused Bourda to discontinue work on Richard’s house is a matter obscured by assertions and denials by both parties.

After reviewing the testimony, the trial court made the following findings of fact:

1. The house was not more than fifty-five or sixty per cent completed as of September 16, 1979;
2. The house was not substantially completed;
3. Bourda left the job without just cause, and thus breached the contract;
4. Richard was obliged to expend the following sums:
a) $1,800 to remedy the defective workmanship of Bourda;
b) $750 for plumbing;
c) $429 for a roofer to correct Bour-da’s defective work;
d) $4,500 to complete Bourda’s contract;
e) $500 for electrical work.
TOTAL: — $7,979.

The parties do not dispute these findings of fact on appeal.

QUANTUM MERUIT

In determining the amount of recovery to Bourda, the trial court applied the following formula: the contract price ($22,000); less a credit for all payments previously made to Bourda ($12,000); less the amount Richard expended to complete the work contracted ($7,979); thus, leaving a sum of $2,021 due and owing Bourda.

Richard’s contention is that the trial court determined that Bourda had not substantially performed the contract, and, therefore, Bourda’s recovery is limited to quantum meruit, i.e., the value of the services he rendered. We agree with this argument.

Whether there has been substantial performance is a question of fact in a building contract suit. Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir.1975), writ denied 319 So.2d 440 (La.1975). In cases involving building or construction contracts, an appellate court reviewing the trial court’s determination of whether there was substantial performance, is bound by the manifest error rule. Henson v. Gonzalez, 326 So.2d 396 (La.App. 1st Cir.1976). After a careful review of the record, we find the trial court’s factual determination that Bourda did not substantially complete the Richard home is well supported.

When a building contract has not been substantially performed, the contractor may not recover under the contract, but is limited to recovery in quantum meruit. Airco Refrigeration, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Jackson v. Spurlock, 424 So.2d 1088 (La.App. 1st Cir.1982); Dickson v. Moran, 344 So.2d 102 (La.App. 2nd Cir.1977); Neel, supra. Therefore, in instances in which a building contractor fails to prove that he has substantially performed the contract, he may, in the alternative, prove the value of the services he has rendered and thereby recover based on the theory of quantum meruit. Jackson, supra.

It is undisputed that Richard paid $12,-000 to Bourda, the contractor. There is no evidence that the value of Bourda’s services amounted to more than the amount he had already been paid. Bourda’s answer to Richard’s petition states that when he ceased working on Richard’s home, his services amounted to $11,346. At trial, Bour-da’s own expert witness arrived at the same total. Therefore, the evidence adduced by Bourda showed that he was overpaid by Richard in the sum of $654. However, Richard does not contest this overpayment.

Bourda reconvened for lost profits only. Under the theory of quantum meruit, lost profits are not recoverable when the contractor has not substantially completed the contract. Jackson, supra; Neel, supra. In accord see Ducote v. Arnold, 416 So.2d 180 (La.App. 4th Cir.1982), writ denied 421 So.2d 238 (La.1982). Accordingly, we find the trial court erred in awarding Bourda recovery under his contract with Richard. The trial court relied on Keating v. Miller, 339 So.2d 955 (La. App. 4th Cir.1976), writ denied 341 So.2d 904 (La.1977). We do not find Keating, supra, seminal to the case sub judice. Bourda’s reconventional demand was for lost profits only and not to recover the value of work which inured to the benefit of Richard.

DAMAGES FOR BREACH

The trial court found that Richard had expended $7,979 in completing the house after Bourda’s departure. The plaintiff reurges his main demand on appeal that he is entitled to damages due to Bourda’s breach of contract. The trial court rejected this demand, although it did “set-off” Bour-da’s recovery by the amount later expended by Richard. Richard now claims that he is entitled to $7,479 as damages. (The $500 discrepancy between this figure and $7,979 is for electrical work.)

Under his contract with Bourda, Richard was required to pay $22,000 for the labor to construct his home. The amount he paid to Bourda ($12,000) added to the amount paid to complete the contract ($7,979) yields a total paid by Richard of $19,979. Since he would have been required under his contract with Bourda to have paid $22,000, he has therefore failed to prove any damages. Richard’s principal demand for damages is hereby dismissed.

DECREE

For the foregoing reasons, the judgment of the trial court which rendered judgment in favor of Bourda under his reconventional demand is reversed and set aside. It is further ordered that Richard’s claim under the principal demand is dismissed.

Costs are hereby cast equally between the defendants Alvin J. Richard and Louis J. Bourda.

REVERSED AND RENDERED.


author: ROBERTSON, Justice,

text:
    GEORGIA PACIFIC CORPORATION, et al., Appellants, v. L.A. ARMSTRONG, Appellee.
    No. 54750.
    Supreme Court of Mississippi.
    April 25, 1984.

      James B. Everett, Decatur, for appellants.
    Calvin R. King, Durant, John D. Guyton, Thornton, Guyton, Dorrill & Pettit, Kosciusko, for appellee.
    Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This is an action against a lower riparian landowner and a timber company whose logging operations are said to have impeded the natural flow of waters off an upper riparian landowner’s property. The Chancery Court of Attala County awarded Plaintiff, L.A. Armstrong, $12,000 in damages for injuries done to his farm by the flooding and enjoined further injury.

The Defendants, Georgia Pacific Corporation and Eleanor Scruby, now challenge the Chancellor’s ruling as to liability, the measure of damages used, and the form of the injunction. Finding no reversible error, we affirm.

II.

L.A. Armstrong owns a 400 acre farm in Attala County. It is drained, in part, by a man-made ditch known as the Okebo Canal. To the west of Armstrong’s farm is a timber tract owned by Mrs. Scruby, one of the Defendants in this lawsuit. She is Armstrong’s lower riparian landowner. The Okebo traverses her land for a distance of about half a mile. The drainage provided by the Okebo Canal is at the heart of this lawsuit.

On November 9, 1977, Mrs. Scruby deeded part of her timber to Georgia Pacific Corporation, Defendant below and Appellant here. The timber deed contained an indemnity clause wherein Georgia Pacific agreed to hold Mrs. Scruby harmless for any damage done to third parties by the logging operation. The removal of the timber was to take place within three years. The James Vardaman Company was to supervise the operation on Mrs. Scruby’s behalf.

All of the hardwood timber included in the deed was in the vicinity of the Okebo. Georgia Pacific sold this timber to Koppers Logging Co. which removed it from Scru-by’s land in 1978 and 1979. To facilitate their operations, Koppers constructed three or four log crossings on the Okebo. Each consisted of five or six logs placed in the canal parallel to its banks which were then covered with dirt. After the timber had been removed, Koppers neglected to dismantle its bridges. Moreover, a substantial number of treetops were left by Kop-pers which obstructed the flow of the canal.

Following the logging operation on Mrs. Scruby’s land, Armstrong’s farm began to flood more than it had in the past. In 1979 and 1980, Armstrong was unable to plant ten acres of his land in soybeans, as he normally did, due to standing water in his fields which the Okebo no longer carried away. Portions of his land had always been subject to periodic flooding. Prior to the logging operation, however, the water would drain off in a matter of days. After-wards, it would remain in Armstrong’s fields for longer periods of time.

In 1980, Armstrong dredged his portion of the Okebo and built levees with dirt from his own fields to contain the excess water. The levees occupied about three acres that he had been able to farm previously, and he removed the topsoil from another acre and a half to build the banks. Now, after heavy rains, the Okebo rises above the level of his fields by about three feet. If the levees broke, his fields would flood again.

The record reveals that the tracts of land at issue are located in the Yockanookany River bottom which has been subject to periodic flooding for as long as anyone can remember. The original land grant describes the area as low and marshy, and in more recent times, the land in question has been included within the flood hazard boundaries established by the Department of Housing and Urban Development.

Armstrong admits that his farm normally floods two or three times a year during periods of excessive rainfall. The record shows that in 1979 and 1980, rainfall in the region was respectively 86.7 inches and 59.-77 inches. It rained 22 inches in April and May of 1979, and in 1980, 13 inches of rain fell in the same two months. 1979 was the year of the great Easter Flood, when an unprecedented amount of rain swamped this and other regions. It is also undisputed that beavers have been active on Scru-by’s land and except for the two years of the logging operation, they have built dams routinely in three or four places.

A substantial number of slides and photographs of the Okebo were introduced at trial by both sides in their attempts to show the proximate cause of Armstrong’s inadequate drainage. By stipulation of the parties, the Chancellor visited the portion of the Okebo that traverses Armstrong’s and Scruby’s land.

In his judgment, the Chancellor specifically found that

“the water flow of the Okebo Canal, where it traverses defendant Scruby’s land, was substantially impeded by the defendant, Georgia Pacific Corp., allowing a number of trees, in excess of six inches in diameter, to fall and remain in said Okebo Canal on the defendant Scru-by’s land and that the defendant, Georgia Pacific Corp., negligently allowed the trees to remain in Okebo Canal and that as a result of said negligence on the part of the defendant, Georgia Pacific Corporation, the flow of Okebo Canal was substantially diminished to the extent that water was allowed to stand on the plaintiff’s land, the upper riparian land owner, ... and that as a result of the negligence the defendant, Georgia Pacific Corporation, the same being the sole proximate cause thereof, the plaintiff, L.A. Armstrong, suffered damages for the loss of full use and permanent injury to certain portions of his farmland and further damages for the cost of bulldozer work in mitigating further damage to his land in the total sum of $12,000 .... ”

Finding that the plaintiff was substantially certain to suffer further irreparable future damage to his farmland, the Chancellor also issued a mandatory injunction. He ordered the Defendants to restore that portion of the canal that traverses Scruby’s land to its condition prior to the timber cutting by Georgia Pacific. Eleanor Scru-by was given attorney’s fees pursuant to the indemnity provision of the timber deed, a point not challenged here.

III.

The issues tendered on this appeal at their core concern findings of fact. Here as always we scrupulously regard our restricted scope of review.

Findings of fact made by a chancellor may not be disturbed or set aside on appeal unless manifestly wrong. Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983); Buchanan v. Hurdle, 209 Miss. 722, 725, 48 So.2d 354 (1950); Griffith, Mississippi Chancery Practice § 674 (2d ed. 1950).

In Peoples Bank and Trust Co. v. L & T Developers, 434 So.2d 699 (Miss.1983), we defined with some precision our scope of appellate review:

Our scope of review of findings of fact made by a chancellor is, as all well know, quite limited. We must consider the evidence in the light most favorable to the party in whose favor the fact findings were made. We must also give that party the benefit of all reasonable favorable inferences which may be drawn from the evidence. If when we do this we find that there is substantial evidence which supports the finding of fact made by the chancellor, we must affirm. 434 So.2d at 704-705.

IV.

A. Liability

Waters obey the laws of physics, principal of which are the laws of gravity. Hall v. Wood, 443 So.2d 834, 838 (Miss. 1983). Back at the turn of the century, Liles v. Cawthorn, 78 Miss. 559, 29 So. 834 (1900) put the point differently. “ ‘Water runs, and ought to run, as it was wont to run’ is a principle of the common law.” 78 Miss, at 564, 29 So. at 834. The burdens and benefits of waters must be shared fairly and equitably by neighboring landowners. Hall v. Wood, 443 So.2d at 838-840.

In this context our law has long provided that an upper riparian landowner has the right to have a water course which drains his lands remain unobstructed in its course through the lands of another. Ferris v. Wellborn, 64 Miss. 29, 8 So. 165 (1886); Lauck v. Gilbert, 252 Miss. 371, 394, 173 So.2d 626, 637 (1965).

If a lower riparian landowner obstructs the flow of a stream or water course, thereby causing his upper riparian neighbor’s lands to flood, the latter may secure judicial relief. Hall v. Wood, supra, 443 So.2d at 838-840; Lauck v. Gilbert, supra, 252 Miss, at 393, 173 So.2d at 637. In such cases, the burden is upon the plaintiff to show that the acts of the lower riparian landowner were a substantial contributing cause of the damages he suffered.

Redress may take the form of an award of damages, temporary or permanent, or both, and an injunction, mandatory or prohibitory, or both, as may be appropriate. Hall v. Wood, supra, 443 So.2d at 841-842; Lauck v. Gilbert, supra, 252 Miss, at 393, 173 So.2d at 638-640. The chancellor may provide for such other redress as may be equitable and proper under the facts and circumstances of the particular case. Hall v. Wood, supra, 443 So.2d at 842-843.

Not only does Plaintiff Armstrong invoke his common law rights as an upper riparian landowner, he also calls our attention to Miss. Code Ann. § 97-15-41 (1972) which provides, inter alia:

“It shall be unlawful and a misdemeanor for any person, firm, corporation, association or organization to push, fell or cut trees in excess of six (6) inches in diameter, into a running stream, or deposit or leave a running stream, trees, in excess of six (6) inches in diameter, logs in excess of six (6) inches in diameter or tree tops, without removing the same immediately, in such cases where such will materially impede the flow of or navigation upon such running stream ...”

Riparian landowners, as well as those interested in navigation, are among those for whose protection this statute has been enacted. As such, riparian landowners may predicate a claim for relief on a substantial deviation from the declaration of law contained in the statute.

Here, the Chancellor not only found that the Defendants had violated the rule of law codified in Section 97-15-41; he further found that such violations were the sole proximate cause of the flooding experienced by L.A. Armstrong. Included by unavoidable implication is a holding that Defendants violated their common law duty to refrain from creating a nuisance in the form of excess flooding on Armstrong’s land.

At first glance, it would appear from the record that an apportionment of damages would be appropriate here because of the excessive rainfall in 1979, the natural erosion of the canal and the beaver activity. However, upon closer scrutiny, the evidence, along with favorable inferences, is legally sufficient support to the Chancellor’s holding that the Defendants’ logging operation was the sole proximate cause of Armstrong’s inadequate drainage. The heaviest rainfall in the two years in question occurred about a month before the planting season for soybeans. There would normally have been plenty of time for the waters to drain before planting. The beavers, active long before the timber cutters ever moved into the area, had never caused water to stand in Armstrong’s fields as it did in 1979 and 1980. Beyond that, it is unlikely that natural erosion could have been responsible for the sudden and substantial change in the capacity of the Okebo to carry the water off of the Plaintiff’s fields.

Armstrong testified that prior to the timber cutting operation, the flood waters would drain off of his land in four or five days, and that afterwards, the water would stand in his fields for much longer periods of time. The Chancellor, who unlike ourselves was able to personally view the Oke-bo Canal, was in a far better position to determine whether this inadequate drainage was due to the obstructions left in the canal by Koppers. There is sufficient evidence in the record to support the Chancellor’s finding that the actions of the Defendants were the sole proximate cause of the additional flooding experienced by Armstrong. We decline to disturb his finding in this regard.

B. Damages

The next error assigned by Georgia Pacific concerns Armstrong’s proof regarding the damages allowed by the Chancellor. Armstrong bore the burden of proving by a preponderance of the evidence that the damages he suffered were proximately caused by the conduct of the Defendants. Beyond this, he bore the burden of establishing that the damages he was seeking were allowable by law.

Clearly, the costs of building the levees to mitigate further damage were recoverable. Armstrong had a duty to mitigate his damages. If he had failed to do so, he could not have recovered for any damage suffered by him as a result of his own inaction. Watson Oil Corp. v. Cavanaugh, 294 So.2d 784, 786 (Miss.1974); Lauck v. Gilbert, 252 Miss. 371, 173 So.2d 626 (1965). Mitigation damages proved by Armstrong at trial include the cost of the bulldozer work, ($4,800), the value of the land now occupied by the levee, and thus rendered uncultivatable ($3,000) and the reduction in value of the 1½ acres from which the soil was taken to build the levees ($1200). See, e.g., Sun Oil Co. v. Nunnery, 251 Miss. 631, 648, 170 So.2d 24, 31 (1964). Thus $9,000.00 of the damages awarded by the Chancellor were allowable under the law and established in fact.

In search of support for the remaining $3,000.00 of the Chancellor’s $12,-000.00 damage award, we turn to Armstrong’s claimed crop losses for 1979 and 1980. Here we are concerned only with a temporary injury to Armstrong’s land. Armstrong claimed that his inability to plant 10 acres of his land in beans cost him $2,500.00. He arrived at this figure by estimating the number of bushels that the land had produced per acre, and multiplying this figure by the acreage and the price he got for his beans in those two years. He then subtracted 50% of the total amount, which would have been his costs.

Georgia Pacific takes issue with the manner in which Armstrong proved his damages claiming that the true measure is the depreciation in fair market rental value of the land for the time it was idled by the conduct of the defendants. We agree. See, e.g., City of Oxford v. Spears, 228 Miss. 433, 439, 87 So.2d 914, 916 (1956).

However, we are of the opinion that such value is determined by a combined consideration of the market data and income approaches. Armstrong’s evidence on this point reflected net income losses. Utilizing the income approach, he could recover net income under typical management for the years at issue. His evidence was minimally adequate to support an additional $2,500.00 damage award.

The proof thus establishes $11,-500.00 in actual damages suffered by Armstrong. Considering the lack of precision in the dollar amount of these damages, even though we find them to have been established with reasonable certainty, the Chancellor’s overall determination that Armstrong had suffered damages in the aggregate amount of $12,000.00 is beyond our power or inclination to disturb.

In this view we need not reach the question whether Armstrong had proved permanent injury to his land (beyond the excavation and levee work). Suffice it to say that the alleged increased threat of flooding, to the extent that it may have been caused by the Defendants, should disappear after the mandates of the Chancellor’s injunction have been complied with.

C. Injunctive Relief

The final assignment of error relates to the form of the mandatory injunction. The Defendants have not challenged the fact that an injunction was issued, nor could they. See, e.g., Hall v. Wood, 443 So.2d 834, 840-842 (Miss.1983); Lauck v. Gilbert, supra, 252 Miss. at 392-93, 173 So.2d at 636. They claim rather that the injunction is too vague and indefinite in form, that it may require them to eliminate drainage problems beyond those they caused.

The general rule governing the form of an injunction is as follows:

A decree should be complete within itself,—containing no extraneous references, and leaving open no matter or description or designation out of which contention may arise as to the meaning ...

Morgan v. U.S.F.G., 191 So.2d 851, 854 (Miss.1966); See also, Stinson v. Barksdale, 245 So.2d 595, 597 (Miss.1971); Rule 65, Miss.R.Civ.P.

Here, the Defendants were mandatorily enjoined

to forthwith remove all cut timber and treetops and silt, as well as other obstructions, which have built up as a result of same, from that portion of the Okebo Canal that traverses the Eleanor Scruby tract, in Attala County, Mississippi, to the extent of restoring that portion of the canal to its condition prior to the timber cutting by Georgia Pacific Corporation on said Eleanor Scruby tract;”

This injunction was more specific than that approved in Hall v. Wood, supra, 443 So.2d at 840-842.

Considering all of the conflicting testimony at trial over whether the logs had been cut by a saw or not, it is clear that Defendants are to remove only those obstructions from the canal that were cut with a saw or were used to build the bridges complained of, and the silt or other obstructions that have accumulated thereon. The evidence shows that prior to the timber cutting operation, the condition of the canal on Mrs. Scruby’s land was in some state of disrepair due to beaver activity in the area and natural erosion. The injunction does not require Georgia Pacific to remedy the damage done to the canal by natural causes. Therefore, the injunction, as written, will not be disturbed.

AFFIRMED.

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

      . The Okebo used to be a small creek meandering through approximately the same area that it now traverses. In 1929, a drainage district was created and through the monies it collected, a straight ditch was dug. Before the canal was finished, the drainage district ran out of money, and now it runs into the Yockanookany Canal just west of Mrs. Scruby’s land on a tract owned by her sister, Mrs. Harris. Though fed by natural springs, the Okebo has a minimal flow except during periods of heavy rainfall. No maintenance work has been conducted on the canal since its construction, except by private landowners.

      . As indicated above, the logging operation was in fact conducted by Koppers’ Logging Co. Georgia Pacific and its indemnitee, Eleanor Scruby, are responsible to Plaintiff Armstrong for Koppers' defaults.


author: PRATHER, Justice,

text:
    Jerry Lynn YOUNG v. STATE of Mississippi.
    No. 54665.
    Supreme Court of Mississippi.
    May 9, 1984.
    Mauldin, Sneed & Mauldin, William M. Mauldin, Pontotoc, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

for the Court.

On petition for rehearing the former opinion is withdrawn and this opinion is substituted.

Jerry Lynn Young was found guilty of one count of attempted armed robbery and two counts of aggravated assault and sentenced to a total of fifty (50) years in the Mississippi Department of Corrections. From this conviction in the Circuit Court of Pontotoc County, Young appeals, assigning numerous errors. We reverse on the failure to instruct the jury on the law of the defendant’s alibi defense as requested, as a denial of the defendant’s right of due process of law under the Mississippi Constitution.

I.

Since this case is being reversed for retrial, we only address two assignments of error:

(1) That it was reversible error for the trial court to refuse an instruction advising the jury as to the standard to apply in weighing the alibi evidence, and
(2) That it was reversible error to permit the state to use self-serving hearsay to bolster the victim’s testimony.

Likewise, we elect not to comment in detail on the facts of the first trial. It is sufficient to state that Jerry Lynn Young was indicted of the attempted robbery of the home of Wendell Luther in Pontotoc on February 22, 1980. Additionally, Young was indicted for the alleged aggravated assault of Luther and Luther’s sixteen year old daughter, Patsy, growing out of the same occurrence. Young’s total defense was alibi, and he offered himself and other witnesses in support of his assertion that he was not present at the Luther home at the time of the crime, but was at another location.

II.

At the trial’s conclusion, the defendant submitted seventeen written instructions for the judge’s approval. The trial judge directed the defense counsel to select six from the total number in accord with Mississippi Uniform Criminal Rules of Circuit Court Practice, No. 5.03. Time was permitted for this consideration, and defense counsel selected the following instructions covering the stated subject matter:

(1) D-l — Weight to be given to state’s witness receiving alleged immunity (Refused by the Court).
(2) D-2 — Weight to be given testimony of an alleged accomplice (Granted by the court).
(3) D-8 — Definition of reasonable doubt, moral certainty, and presumption of innocence (Refused by the court as duplicate to court’s instruction).
(4) D-10 — State’s burden to prove guilt beyond reasonable doubt (Refused by the court as duplicate to court’s instruction).
(5) D-13 — Impeachment of witness by prior inconsistent statement to be considered as to weight and believability and not as to guilt or innocence (Granted by the court).
(6) D-16 — Competency of defendant to testify and weight to be given to his testimony (Refused by the court for reason that this was not a circumstantial evidence case).

A seventh instruction, a peremptory instruction to the jury to find the defendant not guilty, was already ruled upon and denied. No appeal is taken regarding the refusal of any of the four above instructions. After the trial court’s action on the first six submitted instructions, the following colloquy occurred:

BY MR. FARESE: All right, Your Hon- or, in view of the fact that, I think, maybe we have been given two instructions, I would like (to) request that we be granted instruction # D-17.
BY MR. BOWEN: The State objects to an additional instruction, Your Honor.
BY JUDGE BIGGERS: All right, D-17 will be refused in that six have already been tendered and also — for that reason.

The refused instruction D-17 is as follows and contains the alibi defense.

The Court instructs the jury that before the defendant can be found guilty, the State must present competent evidence that proves beyond a reasonable doubt that the defendant was actually present at the time the crime was committed and that if, after considering all the evidence presented by the State, you have any reason to believe that the evidence presented by the defendant to the effect that he did not commit the crime charged is true or that it is probably true, you must find the defendant “not guilty.”

The trial judge’s refusal of the instruction was based on the fact that defense had already tendered six previous instructions. The record is unclear as to the meaning of the judge’s remaining statement “and also — for that reason”.

III.

The six instruction limit is set forth in Rule 5.03, of Mississippi Uniform Criminal Rules of Circuit Court Practice, which in pertinent part provides:

... Except for good cause shown, the court will not entertain a request for additional instruction or instructions which have not been prefiled in accordance with the above.
The attorneys may submit no more than six instructions on the substantive law of the case to which the opposing party shall dictate into the record the specific objections....

This appeal is taken asserting that the defendant was entitled to have the jury instructed on his alibi defense. Clearly in cases where a defendant interposes the defense of alibi, and presents testimony in support of such a defense, the defense is entitled to a jury instruction focusing upon such a theory. Sanford v. State, 872 So.2d 276 (Miss.1979).

“Alibi” as a defense is well established in our criminal jurisprudence. We have held many times that alibi testimony, if believed by the jury when considered along with .all the other evidence, requires acquittal. Without question, one who interposes an alibi as the theory of his defense, and presents testimony in support of such a plea, is entitled to a jury instruction focusing upon such a theory.
(Id. at 278).

See also, Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956); Nelms v. State, 58 Miss. 362 (1880); McNair v. State, 215 Miss. 510, 61 So.2d 338 (1952). McBroom v. State, 217 Miss. 338, 64 So.2d 144 (1953); Gandy v. State, 355 So.2d 1096 (Miss.1978). The defendant is entitled to have an instruction on his theory of the case. De Silva v. State, 91 Miss. 776, 45 So. 611 (1908).

This case presents a unique problem. Rule 5.03 limits each party in a lawsuit to “submission” of no more than six instructions on the substantive law. Although the rule does not state whether submission means submit “to the judge” or submit “to the jury,” it is clear from this record that the attorneys and trial judge construed the rule to mean submit “to the judge.” Six defense instructions were submitted to the judge here, and two were granted and read to the jury. This interpretation fulfills the purpose of the rule to streamline instruction procedure and for economy of time and effort of participating court personnel— juror, attorney, and judge.

However, the obvious problem has arisen here. The attorney did not include among his six submitted instructions to the court the one important request covering his sole defense. The court was asked to grant the seventh instruction. Upon objection by the State, the instruction was refused on the basis that it exceeded the six instruction limit. It does not appear that the subject matter of the instruction was considered by the judge.

Rule 5.03 provides further that “... for good cause shown, ...” additional instructions may be granted. This language within the rule provides the mechanism to avoid this problem. Additionally, the trial judge may initiate and give appropriate written instructions. Newell v. State, 308 So.2d 71 (Miss.1975).

In practical application of the rule, the parties are required to pre-file their instructions. At the conclusion of the testimony, the judge asks each counsel for their respective “six” substantive instructions to be selected from the pre-filed group for the court’s consideration. The court then grants or refuses the initial six requests.

We, therefore, are of the opinion that “submit” within Rule 5.03 can be construed to mean “submit to the judge”; however, this construction must comply with due process of law and constitutional mandates. Otherwise, the jury could be left uninstructed.

This interpretation suggests that the matter lies within the sound judicial discretion of the trial judge who may limit or expand “for good cause shown,” the number of instructions to be submitted to the court and to the jury depending upon the complexity of the suit. The submission of six instructions to the court has served a good purpose to avoid a proliferation of instructions. We see no reason why it should not be continued as a numerical beginning point for submission of instructions to the court so long as it does not become an inflexible rule thereby exceeding the sound judicial discretion of the trial court. We admonish trial counsel to submit among his six requested instructions one which presents his theory of the ease as supported by the evidence.

In the case sub judice, the jury was left uninstructed on the defendant’s alibi defense, and this error requires reversal.

IV.

Since this case will be remanded for a new trial, the Court addresses another assignment of error regarding the victim’s testimony as to out of court statements made to third persons concerning the victim’s identification of the defendant.

During the testimony of the chief prosecution witness Wendell Luther, Luther testified that he had told three other persons of his identification of the defendant as the one who assaulted his daughter. The first such remark was one week after the incident when Wendell Luther told his brother, Ladell Luther. The delay was attributed to his fear for his family. A friend, Raymond Patterson, was also told. The sheriff, Jim Hubbard, was not told until ten days to two weeks after the incident since the victim did not have confidence in him.

On the other hand, the first person to come to Luther’s aid after the shooting was Bruce Westmoreland who testified that Luther did not identify Young as the perpetrator on the night of the shooting. Luther’s daughter, Patsy, did not recognize Young even though she had worked as a babysitter for the Youngs in past years. Defense witness, William who had conversed with Luther one week after the crime, stated that Luther did not identify Young as the assailant at that time.

Troy Harrison, a co-indictee, testified for the state and admitted his participation with the defendant.

A motion to suppress hearing was held to consider the testimony relating to identification of the defendant. The judge overruled the suppression motion, stating that it was not a mistaken identification of the defendant by Luther, but went to Luther’s credibility. At trial this hearsay testimony was admitted.

The defense asserts now that Wendell Luther’s testimony that he had told other persons out of court of his assault was improper as hearsay and self-serving. The defense asserts that this testimony seems to bolster Luther’s statement. We agree.

In Phillips v. State, 177 Miss. 370, 171 So. 24 (1936), the state was permitted to show that shortly after the crime occurred, the witness/victim had told someone else that he had been robbed. This Court held:

It was error to permit the State to bolster the testimony of its witness by showing that he had stated to others out of court, that he had been robbed on the occasion in question (Cases omitted) (Id. 177 Miss, at 374, 171 So. at 26).

In Moore v. State, 102 Miss. 148, 59 So. 3 (1912), an eyewitness to an assault told her sister immediately after the flight of the perpetrator that she recognized the person as Berry Moore, the defendant. The facts of Moore and those of the case sub judice are similar in that Luther told his brother after this incident that his assailant was Young. He also told Raymond Patterson and Sheriff Hubbard that Young was the person who shot him. The Court in Moore stated clearly that such testimony was hearsay and that it was error to admit it into evidence. The Moore case was reversed and remanded for a new trial.

Also, in Ellis v. State, 254 So.2d 902 (Miss.1971), this Court reversed a forgery conviction because the state bolstered the testimony of one of its witnesses and stated that it was error to bolster the testimony of its principal witness by hearsay testimony.

Years before, this Court had condemned such practice in Harrison v. Gatewood, 211 Miss. 121, 51 So.2d 59 (1951), holding that:

In a long line of cases this Court has held that a witness cannot be bolstered and corroborated by proving that on other occasions he has made statements out of court conforming to his testimony given in court and that the admission of such testimony in a close case is always reversible error.
(Id. 51 So.2d at 61).

Even in rape cases where out of court statements are admissible as a recognized exception to the hearsay rule,

Evidence of the prosecutrix’s complaint must be confined to the bare fact that a complaint was made and details or particulars of the complaint are not admissible as substantive testimony to bolster the testimony of the prosecutrix as to the guilt of the accused.

See Carr v. State, 208 So.2d 886, 888 (Miss. 1968).

On petition for rehearing the state argues that Fells v. State, 345 So.2d 618 (Miss.1977) is authority for the admission of these statements. We reaffirm our holding in Fells, but decide that it is factually distinguishable from the case sub judi-ce and not applicable.

In Fells, the objectionable testimony was from the victim of the crime who, in addition to giving testimony of her identification of Fells based upon personal confrontation at the crime, testified concerning statements she made and procedures followed in an out-of-court lineup identification of Fells. Objection was that testimony about the out-of-court lineup identification was self-serving and bolstering to the state’s case. After analyzing factors necessary to introduce identification testimony and constitutional standards announced by the United States Supreme Court, we held the testimony admissible. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In the case sub judice, however, the objectionable testimony does not involve identification statements made based upon personal confrontation or police lineup. Instead, the testimony involves statements made by a victim, Luther, to third persons that Young was his assailant. We do not suggest that Luther cannot, himself, identify Young as his assailant based upon personal confrontation, provided the identification meets guidelines of accuracy and trustworthiness. We do hold that Luther cannot testify that he told others that he identified Young. If he does, he merely bolsters his permissible identification with hearsay and that is improper. Phillips v. State, supra; Moore v. State, supra. This analysis distinguishes the rule announced in Fells, supra.

Appellant submits that his due process right to a fair trial was violated when the trial court permitted the state to use Mr. Luther’s self-serving out of court statements to bolster his sworn testimony at trial. We agree in this assertion. Since the case is reversed and remanded for a new trial, we direct that the victim’s hearsay testimony of out of court statements cannot be used to bolster and corroborate his in-court testimony.

REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION.

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

      . After defense counsel filed a petition for writ of certiorari, the record was filed in this Court April 5, 1983.

      . Adopted August 15, 1979. (370-374 So.2d at p. XXXVI).

      . No objection was raised to the substantive wording of this instruction and we do not address whether the language “any reason to believe” is sufficient.


author: SULLIVAN, Justice,

text:
    Sydney Don SEELY v. STATE of Mississippi.
    No. 54891.
    Supreme Court of Mississippi.
    May 30, 1984.

      Thomas L. Kesler, Sams & Kesler,, Columbus, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

Appellant was convicted of forgery in the Circuit Court of Lowndes County, Mississippi, and sentenced as an habitual offender under Mississippi Code Annotated § 99-19-81 (Supp.1983), to serve a term of fifteen years in the custody of the Department of Corrections without the possibility of parole or probation. Appellant perfected this appeal and assigns as error that:

I.
The Trial Court erred in sentencing Appellant as an habitual offender because Appellant was denied his right to be heard.
II.
The Trial Court erred in sentencing the Appellant as an habitual offender as said sentence is unconstitutional.

Appellant bases his first assignment of error on Mississippi Constitution Section 26 which provides in full,

Section 26. In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.

Appellant does not enlighten us as to exactly how his right to be heard was violated and a reading of the record indicates that it was not. After the state presented its evidence to the jury, the appellant elected to present no testimony. He was represented by counsel both at that stage of the trial and during the sentencing phase. After the jury brought in its verdict and was discharged, the trial court ordered the district attorney to proceed with proof of appellant’s prior convictions. This was done by the introduction of certified copies of appellant’s prior convictions as the state is entitled to do. Pace v. State, 407 So.2d 530 (Miss.1981). Appellant, through his attorney, made objection to the admission of this evidence by the state, and those objections were overruled. Furthermore, appellant made a motion that a jury be impaneled to determine the factual question of whether the appellant was an habitual offender. This motion too was properly overruled. Mississippi Uniform Criminal Rules of Circuit Court Practice 6.04, 113; Hurt v. State, 420 So.2d 560 (Miss.1982). At no other point did the appellant .offer any evidence. After concluding that the appellant had been convicted on two separate prior felony convictions the trial court inquired of appellant if he wished to say anything before sentence was passed, to which the appellant responded in the negative.

As appellant was present and represented by counsel throughout the entirety of his trial, and offered no evidence, and on this appeal offers no indication of any evidence he would have placed before the trial court had he been given an opportunity, we cannot find that his constitutional right to be heard was in any way infringed upon.

While this record is by no means clear as to the stage at which Seely was not allowed to be heard, we point out to the trial judges, prosecutors and members of the bar that in prosecutions under § 99-19-81 a bifurcated trial is mandatory. Hurt v. State, 420 So.2d 560 (Miss.1982); Wilson v. State, 395 So.2d 957 (Miss.1981); Rule 6.04 Uniform Criminal Rules of Circuit Court Practice. A jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof. The state has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge. The defendant also has the same rights at both stages of trial. There appears to be some tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender, then routinely pass out the sentence mandated by § 99-19-81. We wish to leave no doubt that the requirement of a bifurcated trial means a full two-phase trial prior to any finding that a defendant is an habitual offender and subject to enhanced punishment. Further, a complete record of the second part of the trial must be made. While we recognize that Rule 5.13(2)(f) of the Uniform Criminal Rules of Circuit Court Practice does not require a record to be made of the sentencing proceeding in a typical felony case where there is a, 'bifurcated trial, that rule does not apply where the bifurcated trial is a mandatory proceeding.

In his second assignment of error the appellant argues that the sentence of fifteen years without parole or probation violates the Eighth Amendment of the Constitution of the United States and that the sentence is cruel and unusual in that it is disproportionate to the crime committed. In support of this argument, we are cited to Solem v. Helm, — U.S.-, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Helm in 1975 had been convicted of six non-violent crimes, three times for third degree burglary, and one each for obtaining money under false pretenses, grand larceny, and a third offense of driving while intoxicated. In 1979, Helm was found guilty of uttering a “no account” check for $100.00 and sentenced as a recidivist to life imprisonment without the opportunity for parole or probation. The United States Supreme Court struck down Helm’s sentence, holding that a criminal sentence must be proportionate to the crime charged. — U.S. at-, 103 S.Ct. at 3009, 77 L.Ed.2d at 749. We are of the opinion that Solem v. Helm does not govern this case but it is instead controlled by Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Rummel had been convicted three times of non-violent crimes, viz. fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses. This last charge triggered the Texas recidivist statute, which provided “[wjhoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.” Id. at 264, 100 S.Ct. at 1134, 63 L.Ed.2d at 385. Rummel was sentenced to life. Under Texas law, he was eligible for parole in 12 years. Id. at 267-268, 100 S.Ct. at 1136, 63 L.Ed.2d at 387. The Supreme Court of the United States found that Rummel’s life sentence was not disproportionate to the crime charged and consequently did not violate the Eighth Amendment.

Returning to Solem v. Helm, the Solem Court pointed out that it was not abandoning its decision in Rummel: “[o]n the contrary, our decision is entirely consistent with this Court’s prior cases — including Rummel v. Estelle.” — U.S. at-, 103 S.Ct. at 3008-3009, 77 L.Ed.2d at 648, fn. 13. The Solem Court also noted the utility of the Rummel decision,

... Rummel should not be read to foreclose proportionality review of sentences of imprisonment. Rummel did reject a proportionality challenge to a particular sentence, but ... is controlling only in a similar factual situation.

— U.S. at-, 103 S.Ct. at 3016-3017, 77 L.Ed.2d at 658, fn. 32. (emphasis added). The facts here are clearly similar to the situation governed by Rummel v. Estelle, supra. Here, as in Rummel, appellant was convicted of three non-violent felonies. Also, very little money was involved in this case. Sentencing in the two cases was similar. In Rummel, defendant was sentenced to life but was eligible for parole in twelve years. The practical effect of that sentence was twelve years without parole or probation. Appellant’s sentence here was fifteen years without parole or probation, — a quantative difference of only three years. It should further be noted that while Rummel would be eligible for parole in twelve years, he is not guaranteed parole in that span of time. The United States Supreme Court found that that sentence under those factual circumstances did not violate the Eighth Amendment.

Further, the Solem Court recognized that legislatures and sentencing courts should be given “substantial deference” and, combining this with the need for individualized sentencing results in a “wide range of constitutional sentences.” Even under Solem then what remains to be determined would be whether the sentence is “grossly disproportionate.” The three-year difference between Rummel and appellant here falls within that range of constitutional sentences and does not make one “grossly disproportionate” while the other is not.

Because Solem v. Helm expressly finds that Rummel v. Estelle has not been overruled, and with the factual situation here being far more similar to that of Rummel, we find that the second assignment of error is without merit and there is no Eighth Amendment violation.

AFFIRMED.

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


author: PATTERSON, Chief Justice,'

text:
    Ronald A. PETERSON, Sheriff of Hancock County and Jerry D. Heitzmann, Circuit Clerk of Hancock County, Mississippi v. Sidney A. SANDOZ.
    No. 54191.
    Supreme Court of Mississippi.
    May 30, 1984.

      Lucien M. Gex, Jr., Gex & Adams, Wave-land, for appellants.
    Nicholas M. Haas, Bay St. Louis, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice,'

for the Court:

Sidney A. Sandoz, a licensed professional bail bondsman, brought suit for a declaratory judgment under Rule 57 of the Mississippi Rules of Civil Procedure against Ronald A. Peterson, the Sheriff, and Jerry D. Heitzmann, the Circuit Clerk of Hancock County, in the Circuit Court of that county. Sandoz alleged that Section 2 of Senate Bill # 3027, passed during the 1983 Legislative Session, was unconstitutional and void. That bill provides:

Section 2. Upon every person licensed as a professional bondsman pursuant to Chapter 39, Title 83, Mississippi Code of 1972, there is hereby imposed for each bond which he takes that is conditioned for the appearance at trial of a person charged with a criminal offense, a fee equal to one percent (1%) of the face value of each bond or Five Dollars ($5.00), whichever is greater.

Sandoz contended the statute was arbitrary, capricious, and discriminatory inasmuch as the greater of 1% of the face value of the bond or Five Dollars ($5.00) is assessed only against professional bail bondsmen while other types of bonds are not so subjected. By way of illustration, and not as a conclusive listing, Sandoz noted that cash bonds, insurer bonds, property bonds and other types of bail bonds, among others, were exempted.

Sandoz contends the statute was defective because it discriminated within a classification. Peterson and Heitzmann denied that this was so. The trial judge found the challenged section unconstitutional and Peterson and Heitzmann appeal, assigning as error:

I. The trial court erred in holding Section 2 of Senate Bill # 3027, Laws of 1983, was discriminatory and violated the equal protection clause of the United States Constitution.

II. The trial court erred in holding Section 2 of Senate Bill # 3027, Laws of 1983, was arbitrary, capricious and unreasonable.

III. The trial court erred in holding Section 2 of Senate Bill # 3027, Laws of 1983, was conflicting.

IV. The trial court erred in holding that Section 2 of Senate Bill # 3027, Laws of 1983, was unconstitutional.

The permissible scope of taxation has long been announced. “Common justice requires that taxation, as far as possible, should be equal...” Society for Savings v. Coite, 73 U.S. (6th Wall.) 594, 609, 18 L.Ed. 897, 903 (1867).

It is stated in Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660, 665-66 (1954), that:

Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to be wholly arbitrary. Cf. Dominion Hotel, Inc. v. Arizona, 249 U.S. 265, 39 S.Ct. 273, 63 L.Ed. 597; Great Atlantic & P. Tea Co. v. Grosjean, 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193; New York Rapid Transit Corp. v. New York, 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; “In its discretion it may tax all, or it may tax one or some, taking care to accord to all in the same class equality of rights.” Southwestern Oil Co. v. Texas, 217 U.S. 114, 121, 30 S.Ct. 496, 54 L.Ed. 688, 692.

Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974),.held that a Florida statute which gave a $500.00 tax exemption to widows was not unconstitutional. The state’s failure to provide an analogous exemption for widowers was contended to violate the right to equal protection of the laws. The court approved the disparate treatment, saying that it was based “upon some ground of difference having a fair and substantial relation to the object of the legislation.” It explained:

We have long held that “[wjhere taxation is concerned and no specific federal right, apart from equal protection, is imperilled, the States have large leeway in making classifications and drawing lines which in their judgment produce systems of taxation.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359, 93 S.Ct. 1001, 1003, 35 L.Ed.2d 351. A state tax law is not arbitrary although it “discriminate[s] in favor of a certain class ... if the discrimination is founded upon a reasonable distinction or difference in state policy,” not in conflict with the Federal Constitution. Allied Stores v. Bowers, 358 U.S. 522, 528, 79 S.Ct. 437, 441, 3 L.Ed.2d 480.
416 U.S. at 355, 94 S.Ct. at 1737, 40 L.Ed.2d at 193.

Mississippi cases are no more restrictive than the Federal ones. In Sharpe v. Standard Oil Co., 322 So. 457 (Miss.1975), this Court was presented with the propriety of a statute which taxed diesel fuel used by a contractor in the performance of state contracts for motor vehicles only. The question of the inequity of the act is salient here. We held:

Subtle distinctions are, of course not controlling on this constitutional matter. The correct inquiry is whether the classification is related to a legitimate state interest and, if so, whether the means chosen to effectuate that interest are reasonable, [cites omitted] Nowhere is the power of classification accorded more latitude than in the field of taxation. While subject to the demands of the Fourteenth Amendment, “that amendment imposes no iron rule of equality. ..[cites omitted] A state may tax certain kinds of property yet exempt others. [cites omitted]
322 So.2d at 460-61.

An equal protection plan was also at issue in Coleman v. Trunkline Gas Co., Miss., 61 So.2d 276, 279 (1952). There, it was held: “Absolute equality and uniformity are unattainable. Substantial compliance with these requirements is all that is required.” Reversed on other grounds, 218 Miss. 285, 63 So.2d 73 (1953).

There is wide discretion in legislative classification and the court’s scope of review is limited. The legislative intention will be accorded broad treatment in determining its constitutionality. Kohlmeyer & Co. v. Rotwein, 186 So.2d 768, 773 (Miss. 1966). The fatal defect is classification which is “manifestly arbitrary and unreasonable and not possibly so.” Southern Package Corporation v. State Tax Commission, 174 Miss. 212, 219, 164 So. 45, 47 (1935).

... if the classification is reasonable and embraces all of those of the class therein, then the law is general, not local, and the classification has a reasonable reíation to the purpose sought to be attained — in other words, the classification must be germane to the subject-matter of the legislation ... The thing to look at is the object to be accomplished, and whether or not the classification is reasonably expected to attain that object and is germane thereto.

Clark v. State, 169 Miss. 369, 383, 152 So. 820, 823 (1934).

The statute is unambiguous on its face and judicial construction is unnecessary. Clark v. State ex rel. Mississippi State Medical Association, 381 So.2d 1046, 1048 (Miss.1980).

The above cases teach that taxes should be uniformly and equally collected from a class of similarly situated taxpayers if it is to provide those within the class to equal and constitutional treatment under the law. The assessment need also be reasonably related to a legitimate state interest, and finally the means chosen to effectuate that interest must be reasonable.

We are of the opinion Section 2 of Senate Bill # 3027 does not discriminate within those designated in the class, it serves a legitimate state interest in that it is earmarked for correctional facilities and the means chosen to effectuate the state’s interest are reasonable.

REVERSED AND RENDERED.

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