author: PRATHER, Justice,

text:
    Ronnie FRANKLIN v. STATE of Mississippi.
    No. 54915.
    Supreme Court of Mississippi.
    July 18, 1984.
    Rehearing Denied Dec. 12, 1984.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The defendant, Ronnie Franklin, was tried and convicted in the Circuit Court of Pearl River County, Judge R.I. Prichard, III presiding, of burglary of a dwelling. He appeals his conviction and sentence of ten years, arguing that:

(1) The court erred in admitting an oral statement made by the defendant at the time of his arrest that was not revealed after a purported verbal request for discovery; and

(2) The court erred in granting state’s instruction on aiding and abetting the commission of the burglary.

We affirm.

I.

Margaret Siler and her husband, Ervin Siler, resided in a home located in Pearl River County, near Picayune. Residing with them was their oldest daughter, Ginger, and her son, Joshua. Their oldest son, Kirk Siler, held a job in Louisiana, but lived with his parents on the weekends where some of his personal belongings remained.

On February 5, 1982, at a time when Ervin Siler was out of town and Kirk was working in Louisiana, Margaret and her daughter and grandson left for Bogalusa, Louisiana. Before leaving they closed all windows and doors; however, the doors were not locked. Upon returning home, they discovered one of their dogs outside the house.

Upon Kirk’s return home for the weekend, he discovered that his Browning .12 gauge shotgun was missing. Kirk’s mother had last seen the gun three days earlier in Kirk’s bedroom, and Kirk last saw it on the previous weekend when he showed it to a friend, C.T. Boone.

Detective Gary Hale of the Pearl River County Sheriff’s Department was notified of the missing shotgun. Hale’s investigation revealed that the defendant and C.T. Boone had taken the shotgun to a gun shop in Picayune where they sold the gun to the shop owner, Willie Ray Penton.

Detective Hale went to the Siler home and obtained a detailed description of the gun from Kirk. Kirk then accompanied Hale to the gun shop, but prior to being shown the gun, Kirk described in detail its case and the gun itself. Upon viewing, Kirk positively identified the case and the Belgium made Browning .12 gauge gun with identifying marks as his.

Penton told the authorities that on February 5, 1979, between 3:00 and 4:00 p. m., the defendant Ronnie Franklin and C.T. Boone, came into his shop with the Browning shotgun. Franklin claimed ownership of the gun, saying that his grandfather had given it to him. He sold it to Penton for $210.

With this information, Hale obtained an arrest warrant for Franklin, and on February 7th went to Franklin’s home where he arrested Franklin and advised him of his Miranda rights.

After reading the Miranda rights from a card, but before he was able to ask Franklin if he understood the rights, Franklin voluntarily and without interrogation, advised Hale that he did not take the gun. However, he admitted that he drove the car to the Siler home with C.T. Boone, but that C.T. Boone went in and got the gun. Franklin then stated he and Boone sold the gun.

II.

The first issue raised by the defendant is whether his oral statement made to Detective Hale is admissible when not revealed pursuant to a verbal request by discovery made by defense counsel.

Our criminal discovery rule is Rule 4.06 of the Mississippi Uniform Criminal Rules of Circuit Court Practice, which pertinent part states:

The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(2) Copy of any recorded statement of the defendants to any law enforcement officer;
(3) Copy of the criminal record of the defendant, if proposed to be used to impeach;
(4) Copy of crime lab reports or report or any tests made;
(5) Exhibit any physical evidence and photos to be offered in evidence; and
(6) Copy of any exculpatory material concerning defendant.

The question of whether a written request instead of an oral request for discovery must be made was raised and addressed by this Court in Morris v. State, 436 So.2d 1381 (Miss.1983). In Morris there were no written discovery requests made. The record revealed however, that a request was orally made for the discovery of the typed transcript of the defendant’s statement taken during interrogation. We held prospectively that to be enforceable under Rule 4.06, the discovery request must be in writing. Id. at 1388.

Since the case sub judice came to trial before Morris was decided, the written request rule established in Morris, su pra, does not apply retrospectively. We, however, distinguish factually Morris from this case.

At the suppression hearing, testimony was elicited as to whether a request for discovery was made. Defense counsel conceded that no written request was made, but argued strenuously that he had verbally requested discovery of defendant’s statements. Relying on the assurance of the state that there was no statement, no written motion for discovery was filed by defense counsel. The evidence produced at the suppression hearing was disputed and not sufficient to show exactly if a discovery request was made or to whom it was made.

Upon conclusion of the hearing, the trial judge overruled the motion to suppress on the basis that the defendant had not met his burden of proof that a request had been made. We cannot say that based upon this record the trial court erred in not suppressing the statement.

The state further contended it had no “recorded” statement of the defendant as contemplated by the rule. We hold, however, such oral statement to the officer to be discoverable under the Rule 4.06 Uniform Criminal Rules of Circuit Court Practice.

III.

Based upon the defendant’s statement, the following instruction was granted for the jury’s consideration:

The court instructs the jury that any person aiding, abetting, counseling or procuring the commission of the felony of burglary is guilty as a principal and if you believe from the facts of this case beyond a reasonable doubt that the defendant Ronnie Franklin aided, abetted, counseled or procured the commission of the act of wilfully, unlawfully, feloniously, burglariously and forcibly break and enter that certain dwelling house, the property of Margaret Siler and Irving E. Siler, there situated by then and there feloniously burglariously, breaking and entering said dwelling house with the unlawful, felonious, and burglarious intent of him, the said defendant, to take, steal, and carry away the personal property of value of the said Margaret Siler and Irving E. Siler, therein stored and being kept for use, then you should find the defendant guilty as charged.

The defendant, in his statement, ' admitted his participation in the burglary. Although there was no evidence that Franklin broke and entered the Siler home, the defendant’s statement and the testimony of the gun shop owner, Pentdn, was sufficient evidence to grant the aiding and abetting instruction. Where such instruction is supported by the evidence, it is proper. Anderson v. State, 397 So.2d 81 (Miss.1981); Bass v. State, 231 So.2d 495 (Miss.1970); Wilkerson v. State, 207 Miss. 556, 42 So.2d 745 (1949). We find no reversible error in this record.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Ronnie FRANKLIN v. STATE of Mississippi.
    No. 54916.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    G. Gerald Cruthird, Smith, Smith, Tate, Stuart & Cruthird, Picayune, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Pearl River County; R. I. Prichard, III, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


author: BOWLING, Justice,

text:
    MISSISSIPPI POWER & LIGHT COMPANY v. Louis A. CONERLY, et al.
    No. 55641.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    As Modified on Denial of Rehearing Dec. 12, 1984.

      Charles T. Ozier, F. Hall Bailey, Wise, Carter, Child & Caraway, Jackson, Keith Starrett, Starrett & Honea, Magnolia, for appellant.
    Delos H. Burks, Stewart, Burks, Pace & Carroll, Picayune, for appellees.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves proceedings in a Special Court of Eminent Domain of Walt-hall County, Mississippi, Circuit Judge Joe N. Pigott presiding, according to applicable eminent domain statutes. Appellant, Mississippi Power & Light Company (MP&L) appeals from an order of the circuit judge dismissing its petitions for condemnation of land attempted to be secured for construction of a high voltage electric transmission line. The appeal brings four consolidated condemnation suits and involves four separate pieces of property owned by appellees. The principle issue is whether or not the trial judge had sufficient basis to dismiss the condemnation petitions. We hold that he did and we affirm his orders.

In 1981 appellant MP&L decided to construct a 500 kilovolt (Kv) transmission line from its substation in Franklin County, Mississippi, known as the “Franklin Substation” to a point on the Mississippi-Louisiana line. The Louisiana Power & Light Company (LP&L) was then to continue the high voltage line to Bogalusa, Louisiana and eventually to the Eastern New Orleans electrical distribution point solely owned and operated by LP&L. Already constructed is a 500 Kv line from the new Grand Gulf nuclear energy plant in Mississippi to the Franklin Substation. The proposed new line of fifty-one miles from that sta-' tion to the Louisiana line would continue the high power line so- that it would carry electricity from the Grand Gulf plant into Bogalusa and from there, eventually, to New Orleans.

Prior to the attempt to secure the right of way for the fifty-one mile high voltage line, MP&L applied for a certificate of public convenience and necessity from the Mississippi Public Service Commission (MPSC), as was required by the provisions of Mississippi Code Annotated, Section 77-3-11 (1972), which reads in pertinent part as follows:

(1) No person shall construct, acquire, .extend or operate equipment for manufacture, mixing, generating, transmitting or distributing natural or manufactured gas, or mixed gas, or electricity, or water, for any intrastate sale to or for the public for compensation, or for the operation of a public utility operating a business and equipment or facilities as contemplated by subparagraph (3) of paragraph (d) of section 77-3-3, without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require the operation of such equipment or facility.

On October 20,1981, the MPSC issued its “Order Granting Certificate of Public Convenience and Necessity.” Pursuant to this permission, appellant MP&L proceeded to acquire the right-of-way for the fifty-one mile high voltage line. Under this procedure, set up by the legislature, everything would have gone smoothly had all affected landowners and MP&L agreed on the sale and purchase of the right-of-way. This effort, however, was interferred with when the four sets of property owners involved in this appeal would not agree on a purchase and sale of their property for the electrical power line.

The next step in the cause was the filing by appellant MP&L of four petitions for condemnation in the Special Court of Eminent Domain, under the provisions of MCA § 11-27-1, et seq. (1972). The particular section granting MP&L authority to file the condemnation proceedings is MCA § 11-27-47, which gives eminent domain rights to all companies

... organized for the purpose of building or constructing pipelines and appliances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, or for-the purpose of constructing, maintaining and operating lines and appliances for storing, transmitting and distributing water and for transmitting, treating and disposing of sewage, are hereby empowered to exercise the right of eminent domain....

The condemnation petitions all had attached thereto as an exhibit, and made a part of the petition, the hereinbefore mentioned order of the MPSC.

The appellees filed their motions to dismiss the condemnation proceedings under the provisions of MCA § 11-27-15, which provides- in part as follows:

Any defendant may, not less than five (5) days prior to the date fixed for the hearing of the petition and in the same court where the petition is pending, file a motion to dismiss the petition on any of the following grounds: (1) that the petitioner seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged. Any such motion, if filed, shall be heard and decided by the judge as a preference proceeding, without a jury, prior to the hearing on the petition.

In addition to the above set out statutory grounds for dismissal of the condemnation petitions, appellees contended that the real purpose for the construction of the high voltage line was for interconnection of the corporate utility entities owned solely by Middle South Utility System. These entities are MP&L, LP&L, Arkansas Power & Light (AP&L) and New Orleans Public Service, Inc. (NOPSI). Appellees alleged that this proposed construction was not an intrastate operation subject to being under the jurisdiction of the MPSC. The petitions for dismissal contended that the scheme for constructing the high voltage line was to carry electricity interstate from Grand Gulf Generating Plant to LP&L facilities. Ap-pellees contend that the allegation by appellant of incidental benefit to MP&L customers is a masquerade to justify constructing the interconnecting high power line. Appellees contend that the line was not for public use or public necessity as those terms apply to the utility and its consumers in the State of Mississippi. Contention is made by appellees that the purpose of the line is “interstate” rather than “intrastate”, as was stated in the MPSC order attached and made a part of the condemnation proceedings.

After an evidentiary hearing consisting of testimony from the director of engineering office of appellant, interrogatories and answers thereto, requests for admissions, stipulations and documents, such as corporate minutes, the circuit judge heading the Special Eminent Domain Court dismissed all four condemnation proceedings and the condemnor MP&L appeals here as a preference case.

The order dismissing appellant’s petitions recites what we hereinafter shall discuss as material findings of fact. Unlike other judicial proceedings, the Special Court of Eminent Domain results in the circuit judge [in counties where there is no county court] being the finder of facts in determining whether or not the condemnation petitions should be dismissed under the hereinbefore quoted MCA § 11-27-15 (1972).

The lower court’s order in its finding of facts on material issues, found:

It is conceded that no Mississippi customer would be served off of the transmission line in question and that the line would be used solely to transmit electric current from the Franklin EHV sub-station to Louisiana Power & Light Co. It is admitted that the Mississippi Public Service Commission will not have jurisdiction to establish or approve rates for sale of electricity interstate to Louisiana Power & Light Co.
Petitioner is proceeding under MCA § 11-27-47 (1972), which provides, in part, that such companies are hereby empowered to exercise the right of eminent domain. Mississippi Constitution, Article 3, Section 17 (1890) provides in part that: “The question whether the contemplated use be public shall be a judicial question and as such, determined without regard to legislative assertions that the use is public....” The legislative delegation of authority and jurisdiction to the Mississippi Public Service Commission, Section 77-3-5 Code of 1972, provides:
Subject to the limitations imposed in this article and in accordance with the provisions hereof, the public service commission shall have exclusive original jurisdiction over the intrastate business and property of public utilities.
The primary stated purpose of the proposed 500 Kv line is to transmit electrical energy from Franklin County, Mississippi, to Louisiana Power & Light Company in the State of Louisiana, near Bogalusa, Louisiana, and ultimately to be extended by LP&L to the eastern part of New Orleans, Louisiana. Not one Mississippi customer is to be served by the proposed transmission line. The rates to be charged for electrical power transmitted by the line will not be within the jurisdiction of the Mississippi Public Service Commission, but will be fixed by the Federal Energy Regulatory Commission. The order further states:
The authority of the Mississippi Public Service Commission to regulate rates is limited by the express language of the statute (Section 77-3-5) to intrastate business. The sale of electric power from Mississippi Power & Light Co. to the Louisiana Power & Light Co. is an interstate sale.

Appellant contends that the judicially composed Special Eminent Domain Court was obligated to follow the MPSC’s order authorizing the construction of the “intrastate line.” Appellant further contends that under the applicable statute, MCA § 77-3-67 (1972), appellees were barred from securing a dismissal of the condemnation proceedings as they did not within thirty days of the MPSC’s original order, appeal that order to the Chancery Court of Hinds County. The disposal of this argument is easy. MCA § 77-3-47 (1972), providing for notice of the commission’s hearing such matters as that requested by appellant states that “notice of all such hearings shall be given the persons interested therein by mailing such notice to each public utility which may be affected by any order resulting therefrom and by publication in a newspaper of general circulation published in Jackson, Mississippi.” Admittedly, appellee landowners in Walthall County received no notice of the “hearing” before the MPSC, had no actual notice and therefore certainly would not know to appeal any such order within thirty days to the Chancery Court of Hinds County. It does not take a constitutional scholar to find that the requiring of these appellees to appeal an order affecting them and about which they had absolutely no notice or knowledge, is contrary to the due process requirements of either the state or federal constitutions. See Schroeder v. New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); and Walker v. Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956).

The first notice received by appellees was the summons from the Special Court of Eminent Domain brought about by appellant filing its petitions for condemnation.

Before going further, we need to note the provisions of Mississippi Constitution, Article 3, Section 17 (1890), as follows:

Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question and, as such, determined without regard to legislative assertion that the use is public.

Obviously, in obedience to the above quoted constitutional provision, the legislature in 1971 enacted the hereinbefore set out MCA § 11-27-15 (1972), which affirmatively gave the Special Court of Eminent Domain the power to dismiss the condemnation petitions for certain reasons, particularly, if the court found that there was “no public necessity” for the taking or that the “use alleged to be a public use is not in law a public use for which private property may be taken or damaged.”

The MPSC is an arm of the legislature and understandably and properly oversees the actions of the utility companies in order to safeguard the rights of the people of this State. It certainly is commendable to require that the MPSC give its permission to the utility company before the latter proceeds to build its lines. The MPSC however only has jurisdiction within the State of Mississippi in such matters, and consequently, has the duty to control and regulate “intrastate” utility activities. The ballgame was switched to a different field when appellant filed its condemnation proceedings in the judicial Special Eminent Domain Court. Even though appellant in its request is relying on the previous MPSC order, appellant admits that it is a prerogative of the eminent domain court judge to evaluate facts in deciding whether he should legally dismiss the condemnation proceedings.

As the proceedings have reached judicial proportions, there are certain elemental principles involved. Among them being, as said by this Court in Wise v. Yazoo City, 96 Miss. 507, 51 So. 453 (1910):

“No power conferred on any corporation, either private or municipal, is to be more strictly construed than the power to exercise the right of eminent domain.” ... “The power of eminent domain being in derogation of the common right, acts conferring it are to be strictly construed, and are not to be extended beyond their plain provisions. The right to exercise the power is strictly limited to the purposes specified in the statute conferring it. The proposed use of the lands of the owner must be clearly embraced within the legitimate object of the power conferred. Where there is any doubt in regard to the extent of the power, the landowner must have the benefit of that doubt.”

This Court recently has held that it is a general rule of statutory construction that where there is doubt of the right to exercise the power of eminent domain, the statutes will be strictly construed most favorably to the land owner. Roberts v. Mississippi State Highway Commission, 309 So.2d 156 (1975); Berry v. Southern Pine Electrical Power Association, 222 Miss. 260, 76 So.2d 212 (1954); and Ferguson v. Board of Supervisors, 149 Miss. 623, 115 So. 779 (1928).

We need now to look at the facts before the fact finder, Judge Pigott, at the time he sustained appellee’s motion to dismiss.

The origination of the high voltage line in Mississippi is shown in the minutes of the operating committee of Middle South Utilities System. Portions of these minutes are as follows:

The recognition of the necessity of increasing the Middle South System transmission capacity between the south and the north based on the System Planning Committee reports of September 3, 1980 and December 3, 1980, the Operating Committee unanimously adopted the Planning Committee recommendations which are listed as follows:
1. The proper northern termination of a 500 Kv line from the East Orleans Energy Center is the Franklin 500 Kv switchyard of MP&L. Further, the bus at Franklin should not be split.
2. A switching station with a 500/230 Kv autotransformer should be constructed at Bogalusa.
3. The generating units at the East Orleans Energy Center should be connected directly to the 230 Kv system rather than directly to the 500 Kv system.
The Operating Committee recognizes that in addition to providing the necessary capability, the major advantage of the eastern route is its geographic separation from the existing Middle South System south-north transmission. The proposed line minimizes the probability of simulatneous transmission outages caused by natural disasters. Additionally, this route will provide strengthening of the transmission system in the Boga-lusa and southern MP&L areas.

Attached to the minutes is the following statement in regard to the line in question:

PURPOSE AND NECESSITY
Middle South System studies have shown the need for a 500 KY line to the Eastern part of New Orleans. The Franklin EHV Substation was found to be the proper northern terminal of that line. This authorization is for the Miss. Power & Light Company portion of the Franklin -East New Orleans and southern MSU System and will be a part of the transmission needed to distribute power from the East Orleans Energy Center. This line will also provide a source for LP&L’s 500/230 KV Substation planned at Bogalusa, LA. This 500/230 KV substation will provide a firm source of power to the South MP&L area, unload the Franklin transformers and the 115 KV transmission from the Franklin EHV Substation, and solves overloading and low voltage problems associated with contingencies in the southern part of MP&L’s service area (such as loss of Franklin transformers or loss of Brookhaven-McComb 115 Kv line). The Bogalusa Substation will eliminate the need to increase the transformer capacity at Franklin and to build additional 115 KV transmission from Franklin to McComb by the late 1980’s;
1. Franklin to LA state
line 500 Kv line $23,650,000 1984
2. Franklin Line Bay 1,750,000 1984
TOTAL $25,400,000

The eminent domain court judge also had before him the testimony of Frank F. Gal-laher, Jr., chief engineer for appellant, whose testimony briefly explained that the primary purpose of the line was to convey electricity interstate to Louisiana but that it would be “stepped-down” at Bogalusa, Louisiana, and in the event it is needed in the future, it would be re-routed and no doubt re-bought by MP&L through 115 Kv lines now in existence between the two stations and would thereby benefit the counties in appellant’s Mississippi territory near Louisiana.

The MPSC by statute admittedly had the duty to protect the interests of the utility and the consumer by holding that the 51 mile high voltage line in question was intrastate business, even though not one Mississippi consumer will receive electricity directly from the line. The cost of the 51 mile line in the sum of approximately $25,-000,000 would be borne by the rate payers of Mississippi. This money paid for the line would then be added to the rate base at the utilities next rate increase request and therefore added to the bills sent Mississippi consumers.

The record does not reveal testimony of any sale agreement to MP&L by its sister company, Middle South Energy, Inc., the owner of Grand Gulf Generating Plant, both of whom are completely owned by Middle South Utilities, Inc. The record does show that by agreement appellant, MP&L, LP&L and NOPSI will buy Middle South Energy’s portion of the capacity of energy from the Grand Gulf Plant. The record does not reveal any details regarding the sale by MP&L to LP&L when it does cross the Mississippi/Louisiana line on the 500 Kv line in question. There is no revelation as to the manner or the means of sale of electricity that might return to Mississippi from Louisiana through the Bo-galusa substation. We are forced to conclude in this area, the lower court had ample reason to find that any future benefit of the line in question to Mississippi resident rate payers is highly speculative and something that might possibly materialize in the future.

The eminent domain court judge held that the granting of the certificate of public convenience and necessity exceeded the statutory authority and jurisdiction of the Mississippi Public Service Commission and violated constitutional rights provided in Mississippi Constitution Article 3, Section 17. The reasoning for this holding was the language in the opinion to the effect that the primary purpose of the 500 Kv line was to carry electricity interstate from Grand Gulf to Louisiana. The order of the MPSC stated that it was granting appellant’s application “to operate the same for the transmission and distribution of electricity for intrastate sales to and for the public for compensation.”

We already have discussed and quoted pertinent parts of Judge Pigott’s dismissal order. It should be remembered that appellant made the order of the MPSC a part of its condemnation petitions. We cannot disagree with Judge Pigott that this part of the condemnation proceedings wherein the MPSC granted its permission for “intrastate sales” was not a valid order.

Reiterating—Judge Pigott was in the seldom occurring situation of being the finder of facts when those facts are disputed or contradictory. We find that under the facts before him, Judge Pigott had ample reasons to find as a fact that “no Mississippi customer would be served off the transmission line in question.” And ... “the primary stated purpose of the proposed 500 KV line is to transmit electrical energy from Franklin County, Mississippi, to Louisiana Power & Light near Bogalusa, Louisiana, and ultimately to be extended by LP&L to the eastern part of New Orleans, Louisiana. Not one Mississippi customer is to be served by the proposed transmission line.”

The trial judge clearly found that the petition should be dismissed pursuant to the requirements of MCA § 11-27-15 (1972), in that there was no public necessity for the taking of the particular property or part thereof. The property was not being taken for “public use” and was not “in law a public use for which private property may be taken or damaged.”

Even though Judge Pigott went further and held that MPSC erroneously labeled the line “intrastate”, the opinion still conforms to the requirements of § 11-27-15. We agree that MPSC was in error in making the line “intrastate” but we do not think that this holding was necessary for the disposition of the condemnation proceeding as was done by Judge Pigott. We agree with him that the terms “public necessity” and “public use” as set out in the statutes that regulate the duties of the MPSC, contemplate use by the citizens of this state. This is true especially if these citizen rate payers are to pay $23,500,000 for a line and then have that amount added to their future rate base.

We find no error in the dismissal of the order of the Special Court of Eminent Domain and therefore affirm that court’s action.

AFFIRMED.

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

PATTERSON, C.J., not participating.


author: DAN M. LEE, Justice,

text:
    SOUTHSIDE, INC. v. William A. CLARK, d/b/a Bill Clark Insurance Agency, etc.
    No. 54465.
    Supreme Court of Mississippi.
    Nov. 14, 1984.

      Richard T. Phillips, Smith & Phillips, Batesville, for appellant.
    Marc A. Biggers, Upshaw & Ladner, Greenwood, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This appeal presents us with a procedural oddity. The original declaration in this cause was filed August 7,1981, prior to the adoption of the new rules of civil procedure January 1, 1982. The new rules are therefore inapplicable. Litten v. Grenada County, 437 So.2d 387 (Miss.1983).

The declaration in this cause was filed by the appellant, Southside, Inc. The declaration’s purpose was to allege that the appel-lee, Bill Clark, had failed to provide South-side with insurance on Southside’s business, thereby resulting in a loss when the business burned.

Prior to any hearing and after filing an answer, Clark filed what was styled a “Motion to Dismiss” in which he raised a “Plea in Bar.” By this “Plea in Bar” Clark attempted to raise the factual defense that at no time did he agree to provide additional coverage to Southside. The circuit court ruled that not only did the evidence in the ease (the depositions of Southside’s sole stockholder, William Stubblefield, and Clark) support the “Plea in Bar;” but also, that the declaration failed to state a claim upon which relief could be granted.

Because there was no such thing as summary judgment prior to the adoption of the new rules of civil procedure, we interpret the “Motion to Dismiss” as a demurrer. As such, it was clearly improper for the circuit court to consider anything other than the original declaration in determining whether that declaration stated a claim upon which relief could be granted. Consideration of Stubblefield’s and Clark’s depositions was improper as it turned Clark’s motion into an impermissible speaking demurrer. Hodges v. Canal Insurance Co., 223 So.2d 630 (Miss.1969).

When viewing Southside’s declaration by itself, it is difficult to see how it fails to state a claim upon which relief can be granted. In paragraph 7 of the declaration, Southside states that Clark took an order for coverage and in reliance thereof Southside refrained from purchasing coverage elsewhere. In paragraph 8 the declaration further states that Clark failed to obtain the requested coverage and negligently failed to advise Southside of that failure. The declaration goes on to state that as a result of the failure to provide the insurance, and the negligent failure to advise Southside of the failure to provide insurance, Southside was damaged.

Not only does Southside’s declaration state a cause of action which may sound in tort based on the negligence of Clark, it also states a cause of action which may sound in contract. Section 90(1) of the Restatement of Contracts, 2nd reads as follows:

§ 90. Promise Reasonably Inducing Action or Forbearance
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
In the official comment to § 90, we find the following:
Gratuitous promises to procure insurance. This Section is to be applied with caution to promises to procure insurance. The appropriate remedy for breach of such a promise makes the promisor an insurer, and thus may result in a liability which is very large in relation to the value of the promised service. Often the promise is properly to be construed merely as a promise to use reasonable efforts to procure the insurance, and reliance by the promisee may be unjustified or may be justified only for a short time. Or it may be doubtful whether he did in fact rely. Such difficulties may be removed if the proof of the promise and the reliance are clear, or if the promise is made with some formality, or if part performance or a commercial setting or a potential benefit to the promisor provide a substitute for formality.

Certainly we do not now pass any judgment on the merit of Southside’s claim. We are simply holding that the declaration filed in this cause succeeds in stating a claim upon which relief can be granted. As such, the circuit court erred in sustaining Clark’s “Motion to Dismiss.”

Therefore, based on all of the foregoing, we hereby reverse and remand this cause to the Circuit Court of Leflore County for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: ROY NOBLE LEE, Presiding Justice,

text:
    Jack Carlton REED v. STATE of Mississippi, ex rel. MISSISSIPPI BUREAU OF NARCOTICS.
    No. 54323.
    Supreme Court of Mississippi.
    Nov. 14, 1984.

      Samuel H. Wilkins, Edward Ellington, Wilkins, Ellington & James, Jackson, for appellant.
    R. Steven Coleman, Jackson, John M. Montgomery, Starkville, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Jack Carlton Reed appeals from a judgment of the Circuit Court of Oktibbeha County, sitting without a jury, ordering forfeiture of seven (7) packages of $100.00 bills, twenty-four (24) loose bills of United States currency, one hundred seventy-seven (177) bills of foreign currency, and two hundred ten (210) gold Krugerrands, aggregating in excess of two hundred nineteen thousand dollars ($219,000) in value. He assigns three (3) errors in the trial below, contending: (1) that the lower court erred in ordering the seized currency and coins forfeited because the State did not meet its burden of proof; (2) sufficient probable cause did not exist to support the issuance of search warrants for Reed’s suitcase and safety deposit box and to seize the items therein; and (3) the lower court erred in admitting hearsay and irrelevant evidence in the forfeiture trial. The State cross-appeals, assigning as error: (1) the lower court erred in refusing to strike Reed’s answer because it was not verified as required by Mississippi Code Annotated § 41-29-179(1) (1972); and (2) Reed’s failure to comply with discovery orders of the court.

We are of the opinion that the State’s first cross-assignment of error should be sustained and that it is dispositive of the case. However, there are questions which should be answered in the direct appeal, and we briefly discuss them.

This case could have been taken from any number of books in the libraries and bookstores in this country, which involve intrigue, espionage, drug dealing, big-time crime, etc. The principal actor is Carlos Lehder, who conducted the largest cocaine smuggling operations by air in the world. His righthand man and chief confederate was Jack Carlton Reed. The operation originated in Colombia, South America, where the cocaine was accumulated and processed. Reed extended it to Norman’s Cay, Bahamas, an island which Lehder bought, and upon which he established a veritable armed camp and society. Lehder had a fleet of planes which moved the cocaine from Colombia to Norman’s Cay, and thence from that point into various areas of Florida for distribution over North America.

Narcotics authorities, both Federal and State, had been investigating Lehder and Reed for many years and the noose began to tighten upon them. Lehder and Reed decided that they needed a rural area outside Florida within range of their aircraft at Norman’s Cay, where their Colombian pilots could land, unload the contraband, refuel and then return to Norman’s Cay.

With the new plan in mind, Jack Reed, accompanied by a female companion, Michelle Brown, and a Laborador Retriever dog, went to Canada, thence to Starkville and Oktibbeha County, Mississippi. Reed’s dog had a severe case of heartworms and a Canadian veterinarian advised him that Dr. Gregg Boring, a veterinarian at Mississippi State University, was one of the best specialists in that field of dog treatment. Reed arrived in Starkville for the ostensible purpose of having his dog treated by Dr. Boring. Shortly thereafter other confederates appeared upon the scene. A real estate agency was contacted and eventually, a tract of land was acquired consisting of forty-five (45) acres with a house and airplane runway on it. The cost of the property vras $165,000.00 and, although the transaction was to be in cash, the purchase price was actually paid for by a check drawn on the Bank of Nova Scotia, Nassau, Bahamas.

Expert carpenters were brought in from Canada and they reconstructed the walls of the house with false storage cabinets, apparently for the purpose of storing the cocaine expected to be delivered there. Arrangements were made with a nearby farmer to keep the runway mowed. During this time, Dr. Boring had been treating Reed’s Laborador Retriever successfully, resulting in a warm friendship between the two men.

As time passed, Reed and his female companion went to a local bank in Stark-ville, rented a lock box, and placed in the box the contents of a heavy laden briefcase. Thereafter, Reed left Starkville and he, Michelle Brown, and the dog departed via private plane. Dr. Boring agreed to take care of a blue suitcase for Reed until he returned in about three months, since there was insufficient room in the small plane for the suitcase. Reed told Dr. Boring that he desired him to resume treatments on the dog upon his return after the three-month absence.

By this time, the authorities had become suspicious, and the sheriff, the Mississippi State Bureau of Narcotics, and the Federal officers had become alerted. A search warrant was obtained to search the blue traveling bag left with Dr. Boring. The bag contained many papers, photographs, names, and a small amount of cocaine. Officers next obtained a search warrant for the lock box and contents at the local bank. The search uncovered the large amount of money which is the subject of this forfeiture proceeding.

The parties were not in agreement at the time of the trial regarding what constituted the burden of proof. Prior to trial of the case sub judice and filing briefs, the case of Ervin v. State, ex rel. Mississippi Bureau of Narcotics, 434 So.2d 1324 (Miss.1983), was decided. A question there concerned what burden of proof the State has under Mississippi Code Annotated § 41-29-179(2) (1972):

(2) If the owner of the property has filed a verified answer denying that the property is subject to forfeiture, then the burden is on the state to prove that the property is subject to forfeiture. However, if no answer has been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. ■

Ervin held that the burden of proof on the State under the above section is a preponderance of the evidence. The appellee cites the Federal forfeiture statute and forfeiture statutes of other states. However, those statutes are materially different from the Mississippi statute and it is not necessary to discuss them, especially in light of the Ervin case.

In Mississippi, the State must prove by a preponderance of the evidence that the articles to be forfeited violate Mississippi Code Annotated Section 41-29-139 (1972), which follows:

§ 41-29-139. Prohibited acts A; penalties.
(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or
(2) To create, sell, barter, transfer, distribute, dispense or possess with intent to create, sell, barter, transfer, distribute or dispense, a counterfeit substance.

We recognize that the law does not favor forfeitures and, before forfeitures will be decreed or adjudged, they must come within the terms of the statute imposing that liability. Williams v. General Insurors, 193 Miss. 276, 7 So.2d 876 (1942); Citizens Bank v. Grigsby, 170 Miss. 655, 155 So. 684 (1934). Reed argues that he was not engaged in any illegal behavior while in Mississippi. However, he is not charged with illegal conduct in the present case, and, in order to sustain forfeiture, all the State need prove is that the seized items were possessed by Mr. Reed with intent to be used in connection with an illegal smuggling conspiracy.

In United States v. Three Hundred Sixty-Four Thousand Nine Hundred Sixty Dollars in U.S. Currency, 661 F.2d 319 (5th Cir.1981), it was held:

“To order a forfeiture based on wholly circumstantial evidence and mere inference would conflict with established principles of due process.” Such conclusion was erroneous. Were it correct, a highly anomalous situation would result: circumstantial evidence would be insufficient to support forfeiture, a civil proceeding, but sufficient in and of itself in certain cases to support a criminal conviction. See United States v. Allison, 616 F.2d 779, 784 (5th Cir.1980), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72....
... From the sheer quantity of currency seized under these circumstances, a court may permissibly infer a connection with illegal narcotics trafficking. In United States v. Magnano, 543 F.2d 431, 437 (2d Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 536 (1977), the Second Circuit held that possession of a large amount of cash by a defendant charged with participation in a narcotics trafficking conspiracy was relevant admissible evidence of such participation:
[T]he possession of large amounts of unexplained cash in connection with evidence of narcotics trafficking on a large scale is similar to the possession of special means, such as tools or apparatus, which is admissible to show the doing of an act requiring those means. [Quoting United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.1975), cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed. 50.

661 F.2d at 324.

The State’s ease was presented by persons who had actual knowledge of the conduct and activities of Reed. Also, cogent witnesses were produced who testified about their investigations of the Lehder-Reed operations, and, necessarily, a great part of their testimony was hearsay. Hearsay was incompetent on the issue involved. However, we are of the opinion that the competent evidence established by a preponderance the State’s case of forfeiture, that there was probable cause for search of Reed’s traveling bag and the lock box rented by him.

CROSS-APPEAL

The State contends on cross-appeal that the lower court erred in overruling the State’s motion to strike the answer of Reed for failure to comply with Mississippi Code Annotated § 41-29-179(1) (1972), requiring a verified answer and for claimant’s failure to comply with discovery orders of the court.

Mississippi Code Annotated § 13-1-237(d) (Supp.1984), states the following:

(d) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.
If a party or an officer, director, or managing agent of a party or a person designated under sections 13-l-230(b)(6) or 13-l-231(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under section 13-1-233, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under section 13-1-234, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this section. In lieu of any order in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order under section 13-l-226(c).

Reed would not appear in Mississippi for his deposition, although the State agreed to pay all of his expenses. Obviously, he was afraid that he would be subjected to criminal prosecution and would be arrested upon his appearance. The attorney for Reed did appear at all times when the depositions were set. In view of our decision on the next part of the question, it is unnecessary to state whether or not the lower court abused its discretion here.

Section 41-29-179 provides:

(2) If the owner of the property has filed a verified answer denying that the property is subject to forfeiture, then the burden is on the state to prove that the property is subject to forfeiture. However, if no answer has been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture.

On the first day of trial, the State served Reed’s counsel with a motion to strike the answer because it was not verified. The attorney made an oral motion for permission to carry on with the case that day and file his verified answer at a later date, and the trial judge overruled the State’s, motion to strike Reed’s answer. Counsel never filed a verified answer, and has not stated any reason why the statute was not complied with.

The State’s petition constituted a prima facie case of forfeiture. Reed put on no evidence of his own, and we are of the opinion that the statute controls. The lower court should have dismissed Reed s answer and granted judgment in favor of the State. Therefore, the cross-appeal is sustained, and the judgment entered by the lower court is affirmed.

AFFIRMED ON DIRECT APPEAL AND REVERSED AND RENDERED ON CROSS-APPEAL.

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

      . Witnesses estimated income from the operation was far in excess of one billion dollars per year and that the Starkville, Oktibbeha County, part alone would amount to around sixty million dollars per month.

      . Prior thereto, two men had approached Dr. Boring for the purpose of retrieving the suitcase. The men were unknown to Dr. Boring and he declined to release it to them.


author: WALKER, Presiding Justice, ROBERTSON, Justice,

text:
    Albert & Bridget JONES, Minors, by Mother and Next Friend, Albertine JONES and Barbara Jones v. Patricia R. HARRIS, Secretary, Department of Health and Human Services.
    No. 55051.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Dennis W. Carroll, Eileen Franch, Peter M.D. Martin, Baltimore, for appellants.
    Stanley Ericsson, Baltimore, for appellee.
    Before WALKER, P.J., and HAWKINS and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

This cause is certified by the United States Court of Appeals for the Fourth Circuit, 712 F.2d 924 (1983), pursuant to Rule 46 of the Rules of the Supreme Court of Mississippi which provides:

When it appears to the Supreme Court of the United States, or to any circuit court of appeals of the United States, that there are involved in any proceedings before it questions or propositions of law of this state which are determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court before rendering a decision may certify such questions or propositions of law of this state to the Supreme Court of Mississippi for rendition of a judgment or opinion concerning such questions or propositions of Mississippi law. This Court may, in its discretion, decline to answer the questions certified to it. (August 1, 1980).

The question certified is stated as follows:

Accepting that there is such differentiation as between legitimate children on the one hand and illegitimate children on the other hand in the applicable Mississippi statutory provisions governing rights of inheritance (compare Miss.Code § 91-1-15 of Trusts and Estates Title, Descent and Distribution Chapter with § 91-1-8 and § 91-1-11), as to render the less favorable treatment of illegitimate children unconstitutional and void, does the law of the State of Mississippi call for interpretation of the Mississippi statutes governing descent and distribution or common law to apply and extend to illegitimate children the benefits available to legitimate children, or would Mississippi achieve that result only by virtue of Federal constitutional imperative?

The underlying case concerns a claim for surviving children’s insurance benefits under the Social Security Act. Under the provisions of 42 U.S.C. § 416(h)(2)(A) a child whose parents were not married qualifies as a dependent of his father if he would be entitled to share in the intestate estate of his father according to “such law as would be applied in determining the devolution of intestate personal property by the Courts of the State in which he [the insured] was domiciled at the time of his death_” (Emphasis added).

The three children involved are Maryland residents. The putative father was at the time of his death in April 1975 a Mississippi domiciliary. Albertine Jones initially filed for Social Security benefits on behalf of her children August 22, 1976. The United States District Court for the District of Maryland and the Court of Appeals for the Fourth Circuit upheld the denial of benefits (Jones v. Schweiker, 668 F.2d 755 (4th Cir.1981)).

A writ of certiorari was granted by the United States Supreme Court on November 1, 1982. On April 18, 1983 the Supreme Court vacated the judgment of the Fourth Circuit and remanded “for further consideration in light of Mississippi Code Annotated section 91-1-15 (Cum.Supp.1982).” Jones v. Heckler, 460 U.S. 1077, 103 S.Ct. 1763, 76 L.Ed.2d 339 (1983).

Section 91-1-15, as amended, creates a new remedy through which illegitimates may pursue their rights in a petition to establish heirship.

Under the law as it was at that time we held in Knight v. Moore, 396 So.2d 31 (Miss.1981) that for an illegitimate to inherit from her father she must bring suit to establish paternity within six years after attaining the age of twenty-one.

After the enactment of section 91-1-15 (Supp.1981) which became effective July 1, 1981, we considered Estate of Kidd v. Kidd,, 435 So.2d 632 (Miss.1983) and held that section 91-1-15, as amended, created a new remedy whereby illegitimates, who would have otherwise been barred under the holding of Knight v. Moore, supra, could proceed under the new remedy known as an action to determine heirship and that Emma Gunn Webber, the illegitimate child of Mack Kidd, was not barred from pursuing her claim on the estate of Kidd when brought under the new statute. We held that the chancellor had erroneously construed Knight so as to bar Emma Gunn Webber’s claim and in dismissing her petition. We remanded the case to allow Ms. Webber to pursue her claim on the estate of Kidd under section 91-1-15 as amended.

In Larsen v. Kimble, 447 So.2d 1278 (Miss.1984) the Court again looked at section 91-1-15, as amended, this time in light of a 1983 amendment to the statute. This amendment was not intended as a substantive change but was enacted to make sure that the intent of the legislature was understood. The Court stated:

The 1981 amendment and the 1983 clarification thereof clearly eliminated the “unsurmountable” statutory barrier condemned in Trimble v. Gordon, supra [430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) ], while at the same time shortened the limitation period within which to bring a claim and increased the standard of proof to sustain such a claim. In doing so we believe that the amendment in 1981 and clarification amendment in 1983 will effectively afford the illegiti-mates equal protection of the law, while at the same time accomplish the legitimate state interest of (1) avoiding the litigation of stale or fraudulent claims, (2) the fair and just disposal of an intestate decedent’s property; and (3) the repose of titles to real property. Estate of Kidd v. Kidd, supra. Justice will thereby prevail wherein all may take comfort, legitimates and illegitimates alike, that they will be treated equally under the laws of the State of Mississippi.

447 So.2d at 1283.

In Larsen this Court held that the child of an illegitimate could bring suit to determine her heirship in the estate of the father of her deceased illegitimate mother.

In Stevenson v. Daniels, 446 So.2d 597 (Miss.1984) the Court reversed the lower court for dismissing the claim of a woman claiming to be the illegitimate daughter of the intestate. We held that her claim which was not brought within six years of her attaining majority was not barred under section 91-1-15, as amended.

We have not dealt with the constitutionality vel non of section 91-1-15, as amended, because we have not had the question presented to us in a case appealed from a court in which the matter was litigated. In this cause there has been no judicial ruling as to the constitutionality of section 91 — 1— 15. To the contrary, the United States District Court for the District of Maryland and the United States Court of Appeals in Jones v. Sckweiker, 668 F.2d 755 (4th Cir.1981), found it unnecessary to answer the question for the reason that the Jones children had not established dependency on the putative father and were ineligible for benefits for that reason.

The rule we follow is that a statute is presumed to be constitutional. Peterson v. State, 268 So.2d 335 (Miss.1972); Masonite Corp. v. State Oil & Gas Bd., 240 So.2d 446 (Miss.1970); Mai v. State, 152 Miss. 225, 119 So. 177 (1928); Johnson v. Reeves & Co., 112 Miss. 227, 72 So. 925 (1916); L.N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1 (1910); Runnels v. State, Walker (1 Miss.) 146 (1823). In this context, we have said:

Courts have a solemn duty to avoid passing upon the constitutionality of any law expressed by the people through their Legislature unless compelled to do so by an issue squarely presented to and confronting a court in a particular case.

Western Line Consolidated School District v. Greenville Municipal Separate School District, 433 So.2d 954, 958 (Miss.1983).

In this case, we do not feel compelled to answer the question certified since we are asked to assume that section 91-1-15 is unconstitutional when that question has not been squarely presented to and litigated by a court of competent jurisdiction.

We therefore respectfully decline to answer the question certified.

DECLINED TO ANSWER QUESTION CERTIFIED.

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

ROBERTSON, BOWLING and DAN M. LEE, JJ., specially concur.

ROBERTSON, Justice,

specially concurring:

I.

This case concerns the rights of illegitimate children of deceased fathers to certain social security benefits under the provisions of 42 U.S.C. § 416(h)(2)(A). To determine whether these illegitimate children are entitled to these benefits, Section 416(h)(2)(A) mandates that we ask whether they would be entitled to a share in their father’s estate according to “such law as would be applied in determining the devolution of intestate personal property by the courts of the State ... in which their father was domiciled at the time of his death....”

Why the question asked of us by the Court of Appeals was not so put escapes me. If it had been, I am confident the Court would have simply declared — as is implicit in the majority opinion — that these illegitimates were so entitled in that under Miss.Code Ann. § 91-1-15 (Supp.1984) each had every reasonable procedural opportunity to establish their right to share in the estate of their intestate father. Assuming that there is proof sufficient to show that the deceased was in fact the father of these children, each was eligible to secure a share in the intestate estate of their father under such law as would be applied by the courts of this state.

For reasons I cannot follow, the Court of Appeals balks at this logic — and, as aptly suggested by Judge Bryan, 712 F.2d at 929, has turned this nine year old case into a Jamdyce and Jarndyce. I am prompted to make comment no more presumptuous than the Court of Appeals’ views may be found disingenuous.

II.

Presiding Justice Walker has been mercifully brief in his recitation of the procedural history of this case. Suffice it to say that, almost nine years after these claimants walked into their local social security office and made claim for benefits by virtue of the death of their putative father, they still seem aways from knowing whether they ever will receive a penny. I fear there is much litigation to follow the Court of Appeals’ receipt of our “Non-answer” to the certified question.

As indicated, the social security statute makes these children eligible for benefits if they would take from their intestate father according to “such law as would be applied ... by the courts of the State of Mississippi....” The Court of Appeals reads this rather straight-forward language in a curious way. That Court reads Section 416(h)(2)(A) to provide that these children are eligible for benefits only if they would take from their intestate father by virtue of a legislative enactment of this state, or, “theoretically, by the common law of the state”, 712 F.2d at 925-26 n. 1 as though the Constitution of the United States is not among the laws which “would be applied ... by the courts of ... this state.” 712 F.2d at 925-926.

In the face of such a feat of judicial legerdemain, it is hard to know where to begin. Every Justice of this Court, as a pre-condition to assuming office, takes an oath to discharge his or her duties “agreeably to the Constitution of the United States.” Miss. Const. Art. 6, § 155 (1890). The set of the Mississippi Code in every Justice’s office contains in Volume One the self-same Constitution of the United States, one provision of which is commonly known as the Supremacy Clause, Art. VI, 2, and provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to The Contrary notwithstanding.

The Constitution of the United States is a part of that organic body of law which is applied in the courts of this state. Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Board, 457 So.2d 1298, 1313 (1984). It is among the laws we have applied even when we have found its strictures odious. Bolton v. City of Greenville, 253 Miss. 656, 666, 178 So.2d 667, 672 (1965); Sanders v. State, 429 So.2d 245, 251 (Miss.1983). We have had occasion, because of a provision of this basic federal law which is applied in our courts, to convert a state statute into one actually providing the opposite of what its language required, in order to eliminate an unconstitutional feature of that statute, compare Jackson v. State, 337 So.2d 1242 (Miss.1976) with Stevenson v. State, 325 So.2d 113 (Miss.1975) (Mississippi’s mandatory death penalty statuted judicially converted to guided-discretion statute to conform to Eighth Amendment strictures). More to the point, the Constitution of the United States as authoritatively construed in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) is among the laws as have been applied in the courts of this state in determining the devolution of intestate property. Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983); Witt v. Mitchell, 437 So.2d 63 (Miss.1983). It is a part — the supreme part — of our law.

The point may be put another way. The laws applied in our courts are applied because they may be determined valid and authorized by reference to the source from which they emanate. That source may be “federal”. That source may be “state”. We apply laws because they are valid, because they emanate from an authoritative source, and not by reference to the label — “federal” or “state” — placed on them.

Similarly, there are many kinds of laws applied in our courts. These include statutes, case law, administrative regulations, and, yes, even constitutions. The kind of law a particular rule is may inform our decision regarding priority in case of conflict, but the label as such has no effect on whether we apply it as law in our courts.

In short, even if Section 91-1-15 is unconstitutional, and even if (were a proper case presented) we could achieve that result only by virtue of federal constitutional imperative, these illegitimate children would as a matter of rather elementary juridical logic be entitled to share in their deceased father’s estate according to

“such law as would be applied in determining the devolution of intestate personal property by the courts of the state ... in which the deceased wage earner parent was domiciled at the time of his death_” [Emphasis supplied] 42 U.S.C. § 416(h)(2)(A)

The suggestion of any other understanding of the social security statutes may cause one to wonder whether Jarndyce and Jarndyce has passed into a joke.

III.

In my view, however, no resort to the Constitution need be had in order that the question presented be answered, for without regard to whether Section 91-1-15 may possess constitutional infirmities, that statute afforded a remedial and procedural vehicle through which these illegitimate children could have come to Mississippi and enforced claims to the estate of their intestate father, assuming, of course, that they could have made their proof. Witt v. Mitchell, 437 So.2d 63 (Miss.1983). Reading Section 91-1-15 as we have authoritatively construed it and applying the social security statute, 42 U.S.C. § 416(h)(2)(A), as we understand it, we find that a simple syllogism suggests itself:

An illegitimate who proves that a deceased is his or her father is eligible to secure a share in the intestate estate of his or her father under Mississippi law.
These illegitimate children can prove that the deceased is their father.
These illegitimate children are thus eligible to secure a share in the intestate estate of their father under Mississippi law, within the meaning and contemplation of 42 U.S.C. § 416(h)(2)(A).

The second step in the syllogism, of course, contemplated (a) that these claimants had available a procedural vehicle in Mississippi to which they might have resorted had they wished to establish a claim to a share in the estate of their father and (b) the actual making of their proof in the forum of competent jurisdiction for the litigation of their social security claims.

Eschewing our simple and apparent syllogism, the Court of Appeals instead has written:

“First, there arises the question of whether the recently enacted statute Section 91-1-15 could be complied with by the Jones children, bringing them in that way into the ambit of 42 U.S.C. 416(h)(2)(A). No adjudication of paternity was sought or obtained before the father’s death. None has yet been instituted. ... While the recent Mississippi Statute permits a pre-July 1, 1981, claim to be brought until June 30, 1984, it is a claim ‘concerning the estate’, i.e., one seeking to establish a right to inherit, not a paternity establishment action to which reference appears to have been made. At least unless and until a suit is commenced which achieves identification of the Jones children as persons entitled to share in intestacy, we do not see how a direct reliance on 91-1-15 can achieve a result favorable for them under the Social Security Act.” Jones v. Heckler, 712 F.2d 924, 927 (4th Cir.1983).

This reasoning is so obviously wrong that it is hard to know what to say to one who would think it correct. We allow paternity to be established in an heirship proceeding. Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983). We doubt it would offend any great eternal plan to allow heirship to be established in the social security proceedings. Again, the suggested syllogism seems appropriate.

IV.

Finally, we confront the question so tortuously worded. Again, where to begin, for every premise of the question is demonstrably false.

Section 91-1-15 does reassure one and all that these children under the substantive law of this state could have established a claim against the estate of their putative father. Therefore, the statute cannot he unconstitutional as to these claimants in the context of this litigation.

Assuming the statute to be unconstitutional by reference to the Constitution of the United States, these claimants’ right to inherit could still in that event be determined by reference to such law as would be applied in determining the devolution of intestate personal property by the courts of this state. And, of course, if the statute be “resurrected” by virtue of “Mississippi statutes governing descent and distribution or common law” 712 F.2d at 928 that, too, should qualify under Section 416(h)(2)(A).

A review of the majority opinion convinces me that the problem lies in the form of the question. Though I would attempt an answer in any event, to be intelligible, the question must at least be pared down to

“... does the law of the State of Mississippi call for the interpretation of the Mississippi statutes governing descent and distribution or common law to apply and extend to these illegitimate children the benefits available to them had they been legitimate children...?”

As I stated at the outset, a question put in the terminology of Section 416(h)(2)(A) would be even better.

If the question were put as it should have been, the answer stated in terms of the syllogism suggested above would be a simple, “Yes”.

Offended at the suggestion that we presume Section 91-1-15 unconstitutional, the majority has determined not to answer the certified question. Prom what I have said above, I assume it is apparent that I perceive a clear answer to the certified question, one which, if formally and authoritatively given, might hasten the conclusion of this action. I would register a formal dissent but if I did so our internal rules would require that the entire matter be presented at en banc conference. The current state of our en banc docket would not permit this for some time and would surely result in even further delays.

Having said my piece, I pull in my horns and quietly assent. Jarndyce and Jam-dyce drones on.

BOWLING and DAN M. LEE, JJ., concur.

      . The author of this opinion, Presiding Justice Walker, dissented from the holding of the majority. Estate of Kidd v. Kidd, 435 So.2d 636-39.

      . Through the remedial device of Section 91 — 1— 15, these illegitimate children could have asserted their claims to their putative father's estate. That the June 30, 1984, limitations period prescribed in the statute has expired should no more disqualify them than the running of the statute of limitations in other cases. That they once had a reasonably available procedural and remedial vehicle should be what Section 416(h)(2)(A) requires, not that it may now have expired.

      . This understanding enunciated by the Court of Appeals seems clearly erroneous as the established procedure is to discern what the state court would do, not simply to look at what they have done. Owens, By and Through Owens v. Schweiker, 692 F.2d 80, 81 (9th Cir.1982) (“if they would inherit the Secretary shall apply such law as would be applied”); Childress v. Secretary of Health and Human Services, 679 F.2d 623, 625 (6th Cir.1982) (administrative law judge found that claimant was the biological son of the deceased); Gray v. Richardson, 474 F.2d 1370, 1372-73 (6th Cir.1973) (Secretary not bound by the decision of a state trial court but must follow state law); Kasey v. Richardson, 462 F.2d 757, 760 (4th Cir.1972) (extrapolation of state law by federal district court). It would thus appear that the Court of Appeals — despite the reservations it pronounced above — is free to engage in the syllogistic process suggested here.

      . It is recognized as proper for this Court to rephrase or reframe an inartfully drawn certified question so that proper guidance may be given. Walters v. Inexco Oil Co., 440 So.2d 268, 272 (Miss.1983); see Government Employees Insurance Co. v. Brown, 446 So.2d 1002, 1003 (Miss.1984) (quotation of the actual certified question omitted and instead the issues at stake are addressed); DeVille Furniture Co. v. Jesco, 423 So.2d 1337, 1339 (Miss.1983) (same); cf. DeVille Furniture Co. v. Jesco, 423 So.2d 1337, 1342 (Miss.1983) (answering a portion of certification moots remainder which is not then answered); Anderson v. Jackson Municipal Airport Authority, 419 So.2d 1010, 1020 (Miss.1982) (same); Krebs by and through Krebs v. Strange, 419 So.2d 178, 183 (Miss.1982) (same).


author: ROBERTSON, Justice,

text:
    Harold David BARNES v. STATE of Mississippi.
    No. 55137.
    Supreme Court of Mississippi.
    Nov. 21, 1984.

      Travis Buckley, Dan C. Taylor, Ellisville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

Affording one accused of crime a fair (though not necessarily perfectly fair) trial is the raison d’etre of our criminal justice system. We have rules forged through experience designed to assure fairness. Where those rules have been offended, justice and fairness are likewise offended, and we often reverse though there be substantial likelihood of guilt.

This case makes the point. There is little in this record that makes Harold David Barnes a loveable person. Yet at his trial on major drug offenses, the trial judge in two important particulars deprived Barnes of the opportunity to test fully the credibility of his accusor, one Arthur Ray Moody, a thrice-convicted drug offender himself and equally unloveable. The trial judge refused (a) to allow Barnes to develop fully the extent of the State’s leniency/immunity deal with Moody, and (b) to require production of prior exculpatory and bias-reflecting statements Moody had given law enforcement officials. In so doing the trial judge substantially violated rules designed to assure fairness in Barnes’ trial and comparably denied Barnes rights secured by and expressed in those rules. We reverse.

II.

The operative events which have given rise to this appeal occurred on October 27, 1982, in Laurel, Mississippi. Harold David Barnes, Defendant below and Appellant here, operated Sumralls Drug Store out of the facilities known as Odom’s Pharmacy. The State contends that at approximately 6:40 P.M. on the day in question Barnes transferred to one Arthur Ray Moody two illegal controlled substances, to-wit: pentazocine (talwin) and methadone (dolophine). Barnes denies the charges and says that he only gave Moody a bottle of cough syrup.

On March 23, 1983, Barnes was formally charged with transfer of pentazocine, Miss. Code Ann. 41-29-115(A)(d)(6) (Supp.1984), and methadone, Miss.Code Ann. 41-29-115(A)(b)(ll) (Supp.1984), in two separate indictments returned by the Jones County Grand Jury, all in violation of our Uniform Controlled Substances Law of 1971, as amended. Barnes entered a plea of not guilty to both the charges which, upon his motion, were consolidated for all purposes including trial.

On June 1, 1983, these two consolidated cases were called for trial in the Circuit Court of Jones County. On the following afternoon, June 2,1983, after hearing all of the evidence and receiving the instructions of the court and the argument of counsel, the jury found Barnes guilty as charged on both indictments.

On June 6, 1983, upon his conviction of the crime of transfer of pentazocine, Barnes was ordered committed to the custody of the Mississippi Department of Corrections for a period of twelve years and, in addition, was ordered to pay a fine of $25,-000.00. Miss.Code Ann. 41-29-139(b)(l) (Supp.1984). On the same day, upon his conviction of the crime of transfer of methadone, Barnes received a twelve year sentence with the express provision that this sentence be served concurrently with his prison sentence on the first charge.

From these convictions and sentences, Barnes appeals.

III.

A.

The chief State witness against Barnes was Arthur Ray Moody, the party to whom the controlled substances were said to have been transferred. On this appeal, Barnes assigns as error that the trial court unduly limited his inquiry into what may have motivated Moody to give testimony favorable to the State. Translated, Barnes complains that the trial court refused to allow Moody’s attorney to be questioned regarding an alleged agreement between Moody and the State wherein it is said that Moody agreed to testify against Barnes in exchange for favorable treatment on his own charge.

The State’s ease does indeed largely rest on Moody’s testimony. The record reflects that Moody has thrice been convicted of drug-related offenses and that on the last such occasion he received a three year prison sentence. On cross-examination, Moody testified that, in exchange for his testimony against Barnes, he (Moody) had been promised that he would be “given help” on the charges pending against him.

In this context, defendant called as his witness J. Ronald Parrish, Attorney at Law of Laurel, Mississippi. Parrish had represented Moody on a prior felony charge which had been dismissed and was also representing Moody on drug charges arising out of the instant facts and circumstances. Not being satisfied with Moody’s vague admission that he would be “given help” in exchange for his testimony, Barnes sought to show through Parrish that there was an agreement that Moody would not be prosecuted at all.

It should be emphasized that, prior to the time Parrish was called to the witness stand, Moody had stated in open court and quite unequivocally that he waived any right he might have under the attorney-client privilege to prevent his attorney, Parrish, from testifying in the premises.

In open court, the following colloquy between Barnes’ attorney and Parrish took place:

By Mr. Buckley for Defendant Barnes
Q All right, sir. And as his attorney what was your understanding would be the result if he were to testify against the defendant, Harold Barnes?
A As his attorney, Mr. Buckley, I decline to answer that unless the Court directs me to on the basis of attorney/client relationship.
Q I understand that. Of course, as I understand it the Court has heard and understood the client himself to have waived that as a witness.
MR. BUCKLEY:
So, now we ask that the Court overrule the objection of attorney/client privilege relationship and direct the witness to answer the question.
MR. CASEY for the State:
Your Honor, at that point in time the State of Mississippi would object to it on the basis that any information he may have would be hearsay information.
THE COURT:
What was the question?
MR. BUCKLEY:
What was his understanding as to what would be the results or the ultimate outcome of the drug indictment against Arthur Ray Moody in the event that he testified in this case. THE COURT:
I sustain the objection.

There followed further efforts by Barnes’ attorney to elicit the same information, each of which was similarly rebuffed. Thereafter, Barnes’ attorney requested permission to make a showing of the evidence that would be elicited from Mr. Parrish were he allowed to testify for the obvious purpose of preserving the point for appeal. In due course, the following proffer was made:

MR. BUCKLEY:
If it please the Court, the defendant would now tender or proffer the testimony that we would have offered through the witness, Parrish, had he been permitted to testify over objection of the State of Mississippi, when the Court did sustain that objection, and that was to the effect that it had been conveyed to him by the State of Mississippi that in the event that his client, Arthur Ray Moody, testified for the State of Mississippi in this case, that the indictment presently pending against him for possession of Methadone would be — well the words he used were that nothing would be done on it — rather didn’t say dismissed but nothing would be done on it. That the witness himself conveyed this to Mr. Parrish, that he had the same information, and Mr. Parrish conveyed it to the witness, [emphasis added]

Having thus made his proffer, Barnes has properly preserved the issue for our review. Murray v. Payne, 437 So.2d 47, 55 (Miss.1983); In Re Estate of Bowen, 234 So.2d 51, 52-53 (Miss.1970).

B.

The record is less than crystal clear on this point, but it appears that the basis of the trial judge’s ruling was that the testimony sought to be elicited from Parrish was objectionable hearsay. That had been the basis of the State’s objection. Subsequently, in the record we find the trial judge “recalling” that he may have precluded the Parrish testimony on the basis of the attorney-client privilege. In this state of the record, we consider both possible bases of the trial judge’s ruling.

We will consider the hearsay objection first. The common sense of the matter is this: If one is charged with a crime and is represented by counsel and thereafter engages in negotiations with the State as a result of which that person will offer testimony in connection with the prosecution of another in exchange for leniency or immunity, that person’s attorney would almost certainly have personal firsthand knowledge of “the deal”. The fact that he learned of the terms of the deal as result of communications between himself and representatives of the State and thereafter between himself and his client would not render his knowledge hearsay. In the normal situation the attorney participating in such negotiations would know (a) whether an agreement was made and (b) the terms of the agreement. He is competent as a witness to testify regarding these matters.

On the other hand, if for whatever reason the attorney was not a party to the leniency/immunity agreement but only was told of it after the fact by his client, or by anyone else for that matter, that information would constitute hearsay and the attorney ordinarily would be precluded from giving testimony regarding the truth of these matters.

Even if the attorney had not been a part of the making of the agreement and had only been told of it after the fact by his client, he could nevertheless be called to give impeachment testimony. In the specific context of this case, Moody agreed that the State had promised to give him some help. He was vague and reticent about providing details. If, as Barnes sought to show, Moody had told his attorney that the charge would be dropped altogether, such testimony would be allowed for impeachment purposes even though hearsay.

The questions put by counsel for Barnes, and to which objections were sustained, were confusing at best. Reading them, one cannot tell with certainty whether they sought to elicit hearsay information. Under the foregoing pattern of analysis, however, if the questions did not seek hearsay, they surely were unobjectionable. If they did seek hearsay, the answers were admissible to impeach Moody.

When we come to the proffer made by Barnes’ attorney, we find it stated rather unequivocably that Parrish, if he had been permitted to testify, would have stated that the State of Mississippi had promised Moody that, in exchange for his testimony against Barnes, Moody’s case would in effect be dropped—“nothing would be done on it”. More specifically, Barnes offered to prove through Parrish that the State had communicated the deal to him, Parrish. The obvious suggestion here is that Parrish, as Moody’s attorney, was playing the normal role an attorney would be expected to play in such leniency/immunity negotiations with the State. Under accepted rules of evidence, Parrish could give testimony regarding the truth of such matters.

C.

Having held that the Parrish testimony was not objectionable on hearsay grounds, we turn to the question whether it was nevertheless properly excluded on grounds of the attorney-client privilege.

At the outset several points need to be made clear. First, the privilege relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client. Included are communications made by the client to the attorney and by the attorney to the client. In that sense it is a two-way street.

In another sense, the privilege is only a one-way street, for it belongs to the client only. See Bennett v. State, 293 So.2d 1, 5 (Miss.1974); Jones v. State, 65 Miss. 179, 183, 3 So. 379, 380 (1887); Caraway & Currie, Privileges, 48 Miss.L.J. 989, 1028-1031 (1977). Only the client may invoke the privilege. Once the client has effectively waived the privilege, the attorney is competent as a witness regarding matters otherwise within the scope of the privilege. The attorney has no standing to invoke the privilege if the client does not wish to.

The point is made by contrasting Young v. State, 425 So.2d 1022, 1028 (Miss.1983) with the case at bar. The facts of the two cases are on this issue legally identical except that in Young the co-felon-turned-state’s-evidence did not waive the privilege. Young quite correctly excluded the proffered testimony of the attorney regarding a leniency/immunity agreement. Because Moody waived the privilege, the opposite result obtains here.

D.

The testimony of Moody’s attorney regarding whether there was a leniency/immunity agreement and, if so, regarding the terms of that agreement was thus admissible in the face both of hearsay and attorney-client privilege objections. We now consider the consequences of the trial judge’s having excluded that testimony.

Barnes has been convicted largely on the testimony of a thrice convicted drug offender. Though Moody was not technically an accomplice, we doubt that there are any who would question that the testimony of witnesses such as Moody should be viewed with suspicion and, before such testimony may undergird a conviction, it must be reasonable and not improbable, self-contra-dietory or substantially impeached. Mason v. State, 429 So.2d 569, 571 (Miss.1983); Catchings v. State, 394 So.2d 869, 870 (Miss.1981).

Litigation regarding witness leniency/immunity agreements have heretofore arisen in the context of the State’s having failed or refused to disclose the agreement. In that context, the law is clear that the immunity “deal” must be disclosed to the defense. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); DeMarco v. United States, 415 U.S. 449, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974); King v. State, 363 So.2d 269 (Miss.1978); but see Gilliard v. State, 428 So.2d 576, 583 (Miss.1983).

These cases are wholly consistent with our rule that evidence of a leniency/immunity agreement may be presented to the jury where such would tend to impeach or show bias in the testimony of a State’s witness. That is what Barnes sought to do here through his attempted examination of Moody’s attorney. The trial judge’s refusal to allow such examination was error.

The State’s response to all of this is at best feeble. First, the State argues that Barnes’ proffer “amounts to no more than speculation or conjecture” and therefore profits him nothing under Pittman v. State, 350 So.2d 67 (Miss.1977). The citation misses the point, for here Barnes was prevented from offering evidence which would take the matter out of the realm of speculation or conjecture, if that had not already been done when Moody reluctantly conceded that he had been promised some “help”.

The State further cites Priest v. State, 275 So.2d 79 (Miss.1973), and argues that the proffer was a mere “recital of conclusions or generalities” and is thus inadequate. A review of the transcript as quoted above reveals that Barnes offered to show that Moody had been promised in exchange for his testimony that nothing would be done on the charge against Moody, that, in effect, that he would not be prosecuted. The proffer is simple and clear and we think more than sufficient to preserve the point. Murray v. Payne, 437 So.2d 47, 55 (Miss.1983); In Re Estate of Bowen, 234 So.2d 51, 52-53 (Miss.1970). Beyond which, we note that the State made no objection to the form of the proffer at trial.

Finally, the State invokes our harmless error rule. The State’s point is that Moody had already admitted that there was some sort of deal and that no further testimony was necessary. What Moody admitted and what Barnes offered to prove through Moody’s attorney were qualitatively different. How the jury might regard Moody’s credibility upon knowing that he had been promised some “help” on his case, on the one hand, and how the jury might react if it heard testimony that he had been promised immunity from prosecution altogether, on the other hand, are as a matter of commonsense so substantially different that the State’s harmless error point is seen without merit. All of this is particularly true in view of the fact that Moody is the sort of witness whose testimony ought generally be viewed with caution and suspicion even in the absence of any proof of a leniency/immunity agreement.

Because we now turn to a second error committed at trial, we do not formally reach the question whether the instant error standing alone requires reversal.

IV.

A.

Barnes further assigns as error the trial court’s refusal to require the State to produce and make available to him the prior written statements of the witness Arthur Ray Moody.

Well prior to trial Barnes filed a written request for production of

3. Any and all statements of witnesses to be called by the State.
sjs # sfc ⅜ ⅜ sf:
9. Any and all exculpatory evidence.

It was subsequently developed that the State’s chief witness, Arthur Ray Moody, had given three separate statements to Jones County law enforcement authorities. The first was given on December 30, 1982, and has been preserved in the form of the typed transcription of a tape recorded question and answer interview. The second occurred on January 21, 1983, and is in similar form. The third is dated March 16, 1983, and is a more conventional witness statement in narrative form.

It appears from the record that prior to trial defense counsel did not know exactly what statements from the witness Moody existed. The facts first began to come out in the course of the testimony of Officer Harold Buckhaults, of the Laurel Police Department, who had been the principal law enforcement officer involved in the taking of the statements from Moody. Barnes requested that the trial judge make an in camera inspection and evaluation of the statements to determine whether they were exculpatory and should be furnished to the defense. In point of time, this was before Moody took the witness stand.

The record reflects that the trial judge then examined the statements “in camera for the purpose of seeing if there were conflicts between the statements made by Arthur Ray Moody”. He then overruled the request for production stating

The Court has compared the three statements and by way of summary as far as time elements are concerned, that statement made by the witness — or which appears to have been made by the witness, Arthur Ray Moody, indexed as Number Nine, above mentioned, and Number Ten, above mentioned, consists of perhaps 75 to 100 pages which the Court admittedly has had to read hurriedly, and these reports cover in some aspects several years of time, and some instances being referred to as far as ten and twelve years prior to the date of the statements.
The Court cannot say with absolute certainty without perhaps a week of time to study in minute detail every statement made whether there is any conflict at all in these statements, but the Court is of the opinion that there is no material conflict in the statements — either of the three, [emphasis supplied]

For reasons to be explained presently, this action on the part of the trial judge was error. To make clear the nature and extent of the error, we review briefly the law on the subject.

B.

We begin with the terms and provisions of our rules on criminal discovery. Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice provides, in relevant part, as follows:

DISCOVERY
The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(6) Copy of any exculpatory material concerning defendant.
* * * * ⅜ sfc
Upon request of the defendant, the prosecution shall furnish to the court in camera any prior written statements of witnesses. If these materials are found to be materially inconsistent with the witness’ testimony, the statements shall be supplied to defense counsel prior to cross-examination, [emphasis supplied]

Three features of these rules need emphasis.

First, statements of witnesses the State contemplates calling are not per se discoverable. Knowles v. State, 341 So.2d 913, 916 (Miss.1977). On the other hand, Cassibry v. State, 404 So.2d 1360 (Miss.1981), holds that

... a very wide discretion must be afforded trial judges in deciding when to permit a defendant to examine the statement of a prosecution witness.... Two tests are important in determining whether the accused should have been given a copy of the statement: (1) did the statement contain information favorable to the accused not revealed in the trial? and (2) was the statement substantially the same as the testimony of the witness?

404 So.2d at 1371.

Second, insofar as a statement may contain exculpatory material, there is no discretion vested in the trial judge. The exculpatory material must be produced. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Finally, Rule 4.06 is self-executing. If a written request for discovery of materials within the rules is made, compliance must be forthcoming even though no formal order is entered. Morris v. State, 436 So.2d 1381, 1387 (Miss.1983). Insofar as exculpatory material is concerned, this Court in Scott v. State, 359 So.2d 1355 (Miss.1978), quoted with apparent approval the language from the Agurs case to the effect that

if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.

359 So.2d at 1361 (emphasis supplied).

C.

The three statements in issue have never been seen by counsel for Moody. They were examined in camera by the trial judge and, as indicated above, their disclosure was not ordered. The statements were nevertheless filed with the court in a sealed envelope. Incident to this appeal, we have examined the statements and, having done so, find that at least two of them should have been disclosed to Barnes.

1.

The December 30, 1982, interview with Arthur Ray Moody is obviously exculpatory. Moody was questioned at length about his knowledge of alleged drug violations on the part of Barnes, as well as his possible knowledge of other suspected felonies. Throughout, Moody denied any knowledge of any criminal activity on the part of Barnes. Moody repeatedly insisted that the only “drugs” he had ever purchased from Barnes was cough syrup or Novahis-tine and Robitussin.

Moody’s December 30, 1982, statement was discoverable for three separate reasons:

(1) The statement was exculpatory material within the meaning and contemplation of Rule 4.06(6). On March 29,1983, Barnes requested production of “any and all exculpatory evidence”. The trial did not begin until June 1, 1983. Within a reasonable time after March 29, 1983, Barnes was entitled to receive discovery of the exculpatory material in the December 30, 1982, statement.

(2)-The statement was Brady material. Under the rule taken from the Agurs case and quoted in our Scott case, Barnes was entitled to this material even had no request been made.

(3) The statement is materially at odds with Moody’s trial testimony. Under Rule 4.06 the statement should have been supplied to defense counsel prior to cross-examination of Moody at trial.

As indicated above, the statement contains numerous questions regarding alleged criminal activity apparently unrelated to the charges in the instant indictments. If on remand the State requests that these other matters not be disclosed, and makes a substantial showing that such would prejudice other criminal investigations or would otherwise be inappropriate, the trial judge is vested with discretion to excise from that which is disclosed to Barnes matters unconnected with the exculpatory material.

2.

The January 21, 1983, transcribed interview with Moody presents a different problem. Here again, the investigation and inquiry concerned substantial criminal activities other than that with which Barnes is here charged. In the course of the interview, however, Moody did discuss his connections with Barnes in illegal drug activities. There, Moody gave statements substantially the same as his trial testimony, to-wit: that Barnes was guilty of the offenses charged in the indictments.

The important feature of the January 21, 1983, interview is Moody’s questions about what the police would do for him if he “talked”. The following exchange occurred:

Moody: You, you know, you gonna tell me what you gonna do for me, you gonna let me get out, you know, about these charges up against me, can you do that?
Agent: I can’t promise you nothing, you know that.
Moody: Yea. I know.
Agent: Right off the bat.
Moody: Right.
Agent: But I’ll go to bat for you if you give me what we want.
Moody: Man, I’U give you every damn thing you want, [emphasis added]

Barnes was entitled to have his attorney apprised of such a colloquy prior to cross-examination of Moody and he is so entitled prior to trial on remand. Discovery of the remainder of the January 21, 1983, statement is a matter committed to the sound discretion of the trial judge on remand, a discretion to be exercised consistent with the principles and rules recited herein.

3.

The March 16, 1983, statement is a garden variety narrative witness statement. It does not contain any exculpatory material within the meaning of Rule 4.06 or Brady. It is not discoverable at this point. If on remand Moody testifies in a way materially inconsistent with the March 16, 1983 statement, its contents must be disclosed to Barnes’ counsel prior to cross-examination of Moody.

V.

By reason of the two errors committed at trial as discussed above, see, Collins v. State, 408 So.2d 1376, 1380 (Miss.1982), the judgments of conviction of Harold David Barnes of transfer of two illegal controlled substances must be reversed and these cases remanded to the Circuit Court of Jones County for a new trial.

REVERSED AND REMANDED

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

WALKER, P.J., and BOWLING, J., not participating.

      . Following Barnes’ proffer, the following colloquy took place:
      THE COURT:
      ... in the case of the attorney in this case, and he objected to that testimony, as I recall.
      Didn't you, Mr. Parrish?
      MR. BUCKLEY:
      Yes, he said he objected to it and would not answer unless so directed by the Court.
      MR. PARRISH:
      Yes, sir, I would not answer unless so directed on the basis of—
      THE COURT:
      And that’s the basis of the Court’s denying the admission of that evidence.