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+"{\"id\": \"11241019\", \"name\": \"Roderick ESKRIDGE v. STATE of Mississippi\", \"name_abbreviation\": \"Eskridge v. State\", \"decision_date\": \"2000-06-29\", \"docket_number\": \"No. 1999-DP-00769-SCT\", \"first_page\": \"508\", \"last_page\": \"516\", \"citations\": \"765 So. 2d 508\", \"volume\": \"765\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:01:28.497423+00:00\", \"provenance\": \"CAP\", \"judges\": \"PRATHER, C.J., PITTMAN and BANKS, P.JJ., SMITH, WALLER, COBB and DIAZ, JJ., concur.\", \"parties\": \"Roderick ESKRIDGE v. STATE of Mississippi.\", \"head_matter\": \"Roderick ESKRIDGE v. STATE of Mississippi.\\nNo. 1999-DP-00769-SCT.\\nSupreme Court of Mississippi.\\nJune 29, 2000.\\nRehearing Denied Aug. 24, 2000.\\nLeland H. Jones, III, Greenwood, Attorney for Appellant.\\nOffice of the Attorney General by Marvin L. White, Jr., Leslie S. Lee, Attorney for Appellee.\", \"word_count\": \"3639\", \"char_count\": \"22416\", \"text\": \"McRAE, Justice, for the Court:\\n\\u00b6 1. This capital murder and armed robbery case was tried on the sentencing phase after a guilty plea was entered by Appellant Roderick Eskridge (\\\"Eskridge\\\"). Eskridge was convicted on January 26, 1999, in Attala County , Mississippi and was sentenced to death by lethal injection. Eskridge raises one issue, namely that the trial court failed to allow the testimony of a psychologist who had not examined him but was expected to testify concerning what life would be like for a minor in prison for life without the possibility of parole. We rejected similar arguments in Hansen v. State, 592 So.2d 114 (Miss.1991) and Wilcher v. State, 697 So.2d 1123 (Miss.1997) and do so again today, thereby affirming his conviction and sentence.\\nI.\\n\\u00b6 2. On December 1, 1997, in Grenada County, Mississippi, Jackie Hardiman asked Terry Yates and Krishun Williams to give her a ride home. On the way, Yates picked up three other people, one of which was Eskridge. Eskridge pointed a gun at Hardimaris head and told her to give him all the money she had, which she promptly did. Hardiman was then driven to Grenada Lake and ordered to remove all of her clothes. Hardiman fled into the woods as gunshots were fired. Two campers in the area gave Hardiman clothes and notified police.\\n\\u00b6 3. On the same night, the body of Cheryl Johnson was found in the nearby woods. Johnson was 34 years old and mentally retarded. Johnson had been shot in the chest with an exit wound in her back. An autopsy revealed that the barrel of the gun would have been in contact with the skin when fired. It was also the opinion of the pathologist that Johnson would have remained conscious for 15-20 minutes after being shot.\\n\\u00b6 4. Investigators interviewed Krishun Williams, who had last seen Johnson. As a result, Derek Williams was arrested, followed by Eskridge. Eskridge was arrested at his girlfriend's apartment, and a .32 caliber pistol with ammunition were found on the dresser in the bedroom. Ballistics tests showed that the gun was the one used to kill Johnson.\\n\\u00b6 5. Eskridge was advised of his rights and gave two statements to the police. He admitted that after robbing Jackie Hardi-man, they kidnapped Cheryl Johnson and went to her mother's house to get some money. Afterwards, they drove into the woods and forced Johnson out of the car, robbed her and forced her to undress. In Eskridge's second statement he admitted that he had the gun, took off Johnson's bra and robbed her of her money. When Johnson followed Eskridge back to the car asking for a ride home, Eskridge turned around and shot her in the chest.\\n\\u00b6 6. The driver of the car, Terry Yates, confirmed that Eskridge had the gun and shot Johnson. He stated that Johnson pleaded for Eskridge not to kill her when he shot her. He also stated that Hardi-man and Johnson were targeted because it was the first of the month and they were expecting support checks. According to Yates, the money stolen from Johnson was used to purchase marijuana for the whole group. Williams also told police that Esk-ridge was the triggerman and received the money from Johnson, as well as being the person who held the gun to Hardimaris head.\\nII.\\nSTANDARD OF REVIEW\\n\\u00b6 7. The relevancy and admissibility of evidence are largely within the discretion of the trial judge. Only if the trial judge abuses this discretion -will his decision be reversed. Underwood v. State, 708 So.2d 18, 31 (Miss.1998).\\nIII.\\nA. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW A DEFENSE EXPERT IN PSYCHOLOGY TO TESTIFY AT SENTENCING CONCERNING THE EFFECTS OF A LIFE SENTENCE ON YOUNG OFFENDERS.\\n\\u00b6 8. Eskridge voluntarily pled guilty to armed robbery and capital murder. Therefore, his only assignment of error on appeal relates to the sentencing phase of his trial. Eskridge alleges that the trial court erred by refusing to allow the testimony of a psychologist regarding \\\"the emotional, psychological and physical effects of imprisonment upon an individual.\\\"\\n\\u00b6 9. During the sentencing stage of Esk-ridge's trial, the defense offered the testimony of Dr. Michael Whelan, a psychologist from Greenwood, Mississippi. His testimony was offered, Eskridge argues, because his capacity as a psychologist for the Mississippi State Penitentiary at Parchman gave him a unique perspective into the lives of long-term prisoners.\\n\\u00b6 10. Eskridge argues that \\\"[e]x-pert testimony is admissible where it will assist the trier of fact to understand the evidence or to determine a fact in evidence.\\\" Simmons v. State, 722 So.2d 666, 672 (Miss.1998)(citing Lentz v. State, 604 So.2d 243, 246 (Miss.1992)).\\nIn considering the admissibility of an expert's testimony, we ask: \\\"[i]s the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally allow expert testimony.\\\"\\nWilson v. State, 574 So.2d 1324, 1334 (Miss.1990)(quoting House v. State, 445 So.2d 815, 822 (Miss.1984)). Eskridge points out that House also provides that \\\"[ijndeed, within a wide range of contexts we have allowed expert opinion testimony from properly qualified psychiatrists and psychologists.\\\" House, 445 So.2d at 822.\\n\\u00b6 11. Eskridge contends that under a plain reading of M.R.E. 702, the proffered testimony of Dr. Whelan was relevant to a factual determination of the sole issue in this case: whether to impose the death penalty upon Eskridge. Eskridge claims that the inadmissibility ruling was in error and constituted an abuse of discretion by the trial court.\\n\\u00b6 12. The State submits that Dr. Whe-lan's status as an expert in psychology is immaterial and the proffered testimony irrelevant. It points to the explanation defense counsel gave regarding the nature of Dr. Whelan's testimony to the trial court:\\nBY MR. STUCKEY [for Eskridge]: Now, I have subpoenaed \\u2014 the defense has subpoenaed Dr. Whelan to testify in generalities, because he has not examined the defendant or any records of the defendant. He would testify to the mental, emotional consequences of someone sentenced to a long term in the penitentiary. What effect that has on that person mentally, emotionally. How that person operates and can operate on a daily basis knowing that he would never be released from the penitentiary. That type of testimony all in a effort to somehow be able to compare what a life without parole sentence is to a death sentence. That would be the purpose of this testimony.\\nBY THE COURT: Have you got any authority for that type of testimony?\\nBY MR. STUCKEY: I have looked, and I can't find any.\\nBY MR. EVANS [for the State]: May I proceed, Your Honor? Our response to this is this is very similar to the Wilcher case. In that case the court said the defendant is not entitled to introduce photographs of Parchman, death row or maximum security units and that testimony of former prison officials describing the harshness of life sentence in the penitentiary. The evidence has no relation to the defendant's character, his record or circumstances of the crime. And I say this would be almost identical type testimony to that and therefore it would not be relevant. And this is Wilcher v. State, 697 So.2d 1123.\\n\\u00b6 13. The trial court found this testimony to be analogous to that in Wilcher and declared it inadmissible. The State submits that this type of testimony is clearly irrelevant. Such testimony would only be admissible if it relates to the character and background of the defendant and the circumstance surrounding the crime that would be mitigating. See Tuilaepa v. California, 512 U.S. 967, 976, 114 S.Ct. 2630, 2637, 129 L.Ed.2d 750, 762 (1994)(circum-stances of a particular offense are constitutionally indispensable parts of the process of inflicting the penalty of death); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). However, there is no proof here that such testimony would fall into that category.\\n\\u00b6 14. In Hansen v. State, 592 So.2d 114, 147 (Miss.1991), Hansen argued that the circuit court erred in refusing to allow opinion testimony of a prison counselor that Hansen would adapt well to prison life in the future. The counselor had become acquainted with Hansen while Hansen was incarcerated in the Florida correctional system. Hansen cited Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 7 (1986), wherein the Court wrote:\\n[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.\\nWhile this Court took note of its prior acceptance of this rule, it held that speculative opinion testimony of how a defendant may adapt to prison life in the future is not admissible unless the expert is qualified and accepted in the field of predicting future behavior. Hansen, 592 So.2d at 147.\\n\\u00b6 15. In the present case, Dr. Whelan was not offered as an expert in predicting future behavior. The proffer stated that he would testify only to generalities. In addition, unlike the prison counselor in Hansen, Dr. Whelan had never even examined Eskridge or any of his records. Such testimony would have been irrelevant. Taking into consideration that Dr. Whelan was not qualified as an expert in predicting future behavior and had not even met with Eskridge, his testimony would not have assisted the trier of fact in making a determination of fact or understand the evidence pursuant to M.R.E. 702.\\nIV.\\nCONCLUSION\\n\\u00b6 16. After confessing to the robbery and killing of Cheryl Johnson to his girlfriend, arresting deputies and his mother, Eskridge pled guilty, apparently in hopes of leniency from the jury. This trial strategy did not work in his favor. Although he was only seventeen (17) years old at the time of the crime, we have held before that minors can be treated as adults in such circumstances and are allowed to waive their rights and confess to a crime. Clemons v. State, 733 So.2d 266, 269 (Miss.1999) (Court held that 14-year-old defendant voluntarily gave confession and intelligently waived his rights). As a result, Eskridge could only find one issue to appeal to this Court. We find no proof that the trial judge abused his discretion in refusing to admit Dr. Whelan's testimony.\\n\\u00b6 17. Pursuant to Miss.Code Ann. \\u00a7 99-19-105(3)(Supp.l999), in addition to reviewing the merits of those issues raised by Eskridge, this Court is required to determine:\\n(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;\\n(b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; and\\n(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\\n\\u00b6 18. Other capital murder cases decided by this Court, particularly Hansen v. State, 592 So.2d 114 (Miss.1991) and Witcher v. State, 697 So.2d 1123 (Miss.1997), have been reviewed and compared to the instant case. We find that the sentence of death in this case was not influenced by passion, prejudice or any other arbitrary factor. Further, the evidence supports the jury's findings of statutory aggravating circumstances as enumerated in Miss.Code Ann. \\u00a7 99-19-105(5)(Supp.1999). Finally, the sentence of death in this case is neither excessive nor disproportionate to those cases in which such sentence has been imposed and upheld. Eskridge's conviction of capital murder and sentence of death are supported by substantial evidence in the record. Eskridge pled guilty to armed robbery and capital murder. He received a fair sentencing hearing. Therefore, we affirm Eskridge's conviction and sentence and the judgment of the Grenada County Circuit Court.\\nf 19. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. \\u00a7 99-19-105(7)(Supp.l999) AND M.R.A.P. 41(a).\\nPRATHER, C.J., PITTMAN and BANKS, P.JJ., SMITH, WALLER, COBB and DIAZ, JJ., concur.\\nMILLS, J., not participating.\\nAPPENDIX\\nDEATH CASES AFFIRMED BY THIS COURT\\nMcGilberry v. State, 741 So.2d 894 (Miss.1999).\\nPuckett v. State, 737 So.2d 322 (Miss.1999). remanded for Batson hearing.\\nManning v. State, 735 So.2d 323 (Miss.1999). remanded for Batson hearing.\\nTurner v. State, 732 So.2d 937 (Miss.1999).\\nSmith v. State, 729 So.2d 1191 (Miss.1998).\\nBurns v. State, 729 So.2d 203 (Miss.1998).\\nJordan v. State, 728 So.2d 1088 (Miss.1998).\\nGray v. State, 728 So.2d 36 (Miss.1998).\\nManning v. State, 726 So.2d 1152 (Miss.1998).\\nWoodward v. State, 726 So.2d 524 (Miss.1997).\\nBell v. State, 725 So.2d 836 (Miss.1998).\\nEvans v. State, 725 So.2d 613 (Miss.1997).\\nBrewer v. State, 725 So.2d 106 (Miss.1998).\\nCrawford v. State, 716 So.2d 1028 (Miss.1998).\\nDoss v. State, 709 So.2d 369 (Miss.1996).\\nUnderwood v. State, 708 So.2d 18 (Miss.1998).\\nHolland v. State, 705 So.2d 307 (Miss.1997).\\nWells v. State, 698 So.2d 497 (Miss.1997).\\nWilcher v. State, 697 So.2d 1123 (Miss.1997).\\nWilcher v. State, 697 So.2d 1087 (Miss.1997).\\nWiley v. State, 691 So.2d 959 (Miss.1997).\\nBrown v. State, 690 So.2d 276 (Miss.1996).\\nSimon v. State, 688 So.2d 791 (Miss.1997).\\nJackson v. State, 684 So.2d 1213 (Miss.1996).\\nWilliams v. State, 684 So.2d 1179 (Miss.1996).\\nDavis v. State, 684 So.2d 643 (Miss.1996).\\nTaylor v. State, 682 So.2d 359 (Miss.1996).\\nBrown v. State, 682 So.2d 340 (Miss.1996).\\nBlue v. State, 674 So.2d 1184 (Miss.1996).\\nHolly v. State, 671 So.2d 32 (Miss.1996).\\nWalker v. State, 671 So.2d 581 (Miss.1995).\\nRussell v. State, 670 So.2d 816 (Miss.1995).\\nBallenger v. State, 667 So.2d 1242 (Miss.1995).\\nDavis v. State, 660 So.2d 1228 (Miss.1995).\\nCarr v. State, 655 So.2d 824 (Miss.1995).\\nMack v. State, 650 So.2d 1289 (Miss.1994).\\nChase v. State, 645 So.2d 829 (Miss.1994).\\nFoster v. State, 639 So.2d 1263 (Miss.1994).\\nConner v. State, 632 So.2d 1239 (Miss.1993).\\nHansen v. State, 592 So.2d 114 (Miss.1991).\\nShell v. State, 554 So.2d 887 (Miss.1989), Shell v. Mississippi 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.\\nDavis v. State, 551 So.2d 165 (Miss.1989).\\nMinnick v. State, 551 So.2d 77 (Miss.1989).\\nPinkney v. State, 538 So.2d 329 (Miss.1989), Pinkney v. Mississippi 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.\\nClemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.\\nWoodward v. State, 533 So.2d 418 (Miss.1988).\\nNixon v. State, 533 So.2d 1078 (Miss.1987).\\nCole v. State, 525 So.2d 365 (Miss.1987).\\nLockett v. State, 517 So.2d 1346 (Miss.1987).\\nLockett v. State, 517 So.2d 1317 (Miss.1987).\\nFaraga v. State, 514 So.2d 295 (Miss.1987).\\nJones v. State, 517 So.2d 1295 (Miss.1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.\\nWiley v. State, 484 So.2d 339 (Miss.1986).\\nJohnson v. State, 477 So.2d 196 (Miss.1985).\\nGray v. State, 472 So.2d 409 (Miss.1985).\\nCabello v. State, 471 So.2d 832 (Miss.1985).\\nJordan v. State, 464 So.2d 475 (Miss.1985).\\nWilcher v. State, 455 So.2d 727 (Miss.1984).\\nBilliot v. State, 454 So.2d 445 (Miss.1984).\\nStringer v. State, 454 So.2d 468 (Miss.1984).\\nDufour v. State, 453 So.2d 337 (Miss.1984).\\nNeal v. State, 451 So.2d 743 (Miss.1984).\\nBooker v. State, 449 So.2d 209 (Miss.1984).\\nWilcher v. State, 448 So.2d 927 (Miss.1984).\\nCaldwell v. State, 443 So.2d 806 (Miss.1983).\\nIrving v. State, 441 So.2d 846 (Miss.1983).\\nTokman v. State, 435 So.2d 664 (Miss.1983).\\nLeatherwood v. State, 435 So.2d 645 (Miss.1983).\\nHill v. State, 432 So.2d 427 (Miss.1983).\\nPruett v. State, 431 So.2d 1101 (Miss.1983).\\nGilliard v. State, 428 So.2d 576 (Miss.1983).\\nEvans v. State, 422 So.2d 737 (Miss.1982).\\nKing v. State, 421 So.2d 1009 (Miss.1982).\\nWheat v. State, 420 So.2d 229 (Miss.1982).\\nSmith v. State, 419 So.2d 563 (Miss.1982).\\nJohnson v. State, 416 So.2d 383 (Miss.1982).\\nEdwards v. State, 413 So.2d 1007 (Miss.1982).\\nBullock v. State, 391 So.2d 601 (Miss.1980).\\nReddix v. State, 381 So.2d 999 (Miss.1980).\\nJones v. State, 381 So.2d 983 (Miss.1980).\\nCulberson v. State, 379 So.2d 499 (Miss.1979).\\nGray v. State, 375 So.2d 994 (Miss.1979).\\nJordan v. State, 365 So.2d 1198 (Miss.1978).\\nVoyles v. State, 362 So.2d 1236 (Miss.1978).\\nIrving v. State, 361 So.2d 1360 (Miss.1978).\\nWashington v. State, 361 So.2d 61 (Miss.1978).\\nBell v. State, 360 So.2d 1206 (Miss.1978).\\nDEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE\\nEdwards v. State, 737 So.2d 275 (Miss.1999).\\nSmith v. State, 733 So.2d 793 (Miss.1999).\\nPorter v. State, 732 So.2d 899 (Miss.1999).\\nKolberg v. State, 704 So.2d 1307 (Miss.1997).\\nSnelson v. State, 704 So.2d 452 (Miss.1997).\\nFuselier v. State, 702 So.2d 388 (Miss.1997).\\nHoward v. State, 701 So.2d 274 (Miss.1997).\\nLester v. State, 692 So.2d 755 (Miss.1997).\\nHunter v. State, 684 So.2d 625 (Miss.1996).\\nLanier v. State, 684 So.2d 93 (Miss.1996).\\nGiles v. State, 650 So.2d 846 (Miss.1995).\\nDuplantis v. State, 644 So.2d 1235 (Miss.1994).\\nHarrison v. State, 635 So.2d 894 (Miss.1994).\\nButler v. State, 608 So.2d 314 (Miss.1992).\\nJenkins v. State, 607 So.2d 1171 (Miss.1992).\\nAbram v. State, 606 So.2d 1015 (Miss.1992).\\nBalfour v. State, 598 So.2d 731 (Miss.1992).\\nGriffin v. State, 557 So.2d 542 (Miss.1990).\\nBevill v. State, 556 So.2d 699 (Miss.1990).\\nWest v. State, 553 So.2d 8 (Miss.1989).\\nLeatherwood v. State, 548 So.2d 389 (Miss.1989).\\nMease v. State, 539 So.2d 1324 (Miss.1989).\\nHouston v. State, 531 So.2d 598 (Miss.1988).\\nWest v. State, 519 So.2d 418 (Miss.1988).\\nDavis v. State, 512 So.2d 1291 (Miss.1987).\\nWilliamson v. State, 512 So.2d 868 (Miss.1987).\\nFoster v. State, 508 So.2d 1111 (Miss.1987).\\nSmith v. State, 499 So.2d 750 (Miss.1986).\\nWest v. State, 485 So.2d 681 (Miss.1985).\\nFisher v. State, 481 So.2d 203 (Miss.1985).\\nJohnson v. State, 476 So.2d 1195 (Miss.1985).\\nFuselier v. State, 468 So.2d 45 (Miss.1985).\\nWest v. State, 463 So.2d 1048 (Miss.1985).\\nJones v. State, 461 So.2d 686 (Miss.1984).\\nMoffett v. State, 456 So.2d 714 (Miss.1984).\\nLanier v. State, 450 So.2d 69 (Miss.1984).\\nLaney v. State, 421 So.2d 1216 (Miss.1982).\\nDEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT\\nReddix v. State, 547 So.2d 792 (Miss.1989).\\nWheeler v. State, 536 So.2d 1341 (Miss.1988).\\nWhite v. State, 532 So.2d 1207 (Miss.1988).\\nBullock v. State, 525 So.2d 764 (Miss.1987).\\nEdwards v. State, 441 So.2d 84 (Miss.1983).\\nDycus v. State, 440 So.2d 246 (Miss.1983).\\nColeman v. State, 378 So.2d 640 (Miss.1979).\\nDEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY\\nWalker v. State, 740 So.2d 873 (Miss.1999).\\nWatts v. State, 733 So.2d 214 (Miss.1999).\\nWest v. State, 725 So.2d 872 (Miss.1998).\\nSmith v. State, 724 So.2d 280 (Miss.1998).\\nBerry v. State, 703 So.2d 269 (Miss.1997).\\nBooker v. State, 699 So.2d 132 (Miss.1997).\\nTaylor v. State, 672 So.2d 1246 (Miss.1996).\\nShell v. State, 554 So.2d 887 (Miss.1989), Shell v. Mississippi 498 U.S. 1, 111 S.Ct. 318, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.\\nPinkney v. State, 538 So.2d 329 (Miss.1989), Pinkney v. Mississippi 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.\\nClemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.\\nJones v. State, 517 So.2d 1295 (Miss.1987), Jones v. Mississippi 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.\\nRussell v. State, 607 So.2d 1107 (Miss.1992).\\nHolland v. State, 587 So.2d 848 (Miss.1991).\\nWillie v. State, 585 So.2d 660 (Miss.1991).\\nLadner v. State, 584 So.2d 743 (Miss.1991).\\nMackbee v. State, 575 So.2d 16 (Miss.1990).\\nBerry v. State, 575 So.2d 1 (Miss.1990).\\nTurner v. State, 573 So.2d 657 (Miss.1990).\\nState v. Tokman, 564 So.2d 1339 (Miss.1990).\\nJohnson v. State, 547 So.2d 59 (Miss.1989).\\nWilliams v. State, 544 So.2d 782 (Miss.1987); sentence aff'd 684 So.2d 1179 (1996).\\nLanier v. State, 533 So.2d 473 (Miss.1988).\\nStringer v. State, 500 So.2d 928 (Miss.1986).\\nPinkton v. State, 481 So.2d 306 (Miss.1985).\\nMhoon v. State, 464 So.2d 77 (Miss.1985).\\nCannaday v. State, 455 So.2d 713 (Miss.1984).\\nWiley v. State, 449 So.2d 756 (Miss.1984); resentencing affirmed, Wiley v. State, 484 So.2d 339 (Miss.1986), cert. denied Wiley v. Mississippi 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1988); resentencing ordered, Wiley v. State, 635 So.2d 802 (Miss.1993) following writ of ha-beas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir.1992); resentencing affirmed, Wiley v. State, 95-DP-00149, February 13, 1997 (rehearing pending).\\nWilliams v. State, 445 So.2d 798 (Miss.1984).\\n. Eskridge was indicted in Grenada County and venue was later transferred to Attala County.\\n. Holly v. State, 716 So.2d 979 (Miss.1998).\\nCase was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.\\nCase was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.\\nCase was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.\"}"

miss/11260134.json

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+"{\"id\": \"11260134\", \"name\": \"Bank of Mississippi v. Duncan & Marshall\", \"name_abbreviation\": \"Bank of Mississippi v. Duncan\", \"decision_date\": \"1878-04\", \"docket_number\": \"\", \"first_page\": \"166\", \"last_page\": \"174\", \"citations\": \"56 Miss. 166\", \"volume\": \"56\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:22:19.633071+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bank of Mississippi v. Duncan & Marshall.\", \"head_matter\": \"Bank of Mississippi v. Duncan & Marshall.\\n1. Bank. Rights of creditors and stockholders. Power of Legislature.\\nIf, at the time of the passage of the act of February 10, 1860, which granted to the Bank of Mississippi the right to sue to collect \\u201c the debts and choses in action due to it,\\u201d there was any thing due the bank, to which creditors and stockholders could maintain a claim in any of the courts of this State, it was within the power of the Legislature to revive the bank for the purpose of collecting its assets, to be distributed amongst such creditors and stockholders. But if the bank had ceased to exist by the limitation of time in its charter, and if by its extinction the rights of creditors and stockholders expired, it was not within the power of the Legislature to revive rights before extinguished, and authorize their enforcement.\\n2. Same. Its dissolution by limitation. Effect.\\nThe High Court of Brrors and Appeals settled the rule that banks in this State were subject to the operation of the common-law incidents to the dissolution of a corporation; and as a result of such rule, that court held that, upon the dissolution of a bank, all of its rights and liabilities became extinct, except such as might be saved by express statutory provisions. Under the operation of this rule, where a bank was dissolved in 1850, by the efflux of time or a limitation in its charter, neither the creditors nor stockholders of the bank had any .rights at law or in equity after its dissolution.\\n3. Same. Dissolution by time. Rights of creditors and stockholders.\\nThis court cannot concur in the opinions of the High Court of Brrors and Appeals, by which the rule was established in this State that the rights in equity of the creditors and stockholders of a bank should become extinct upon its dissolution by efflux of time; but, the rule having been settled, it is the duty of this court to apply it to a bank contemporary with those in respect to which the rule was announced.\\n4. Same. Dissolutionthereof. Aet'of 1843.\\nThe act of 1843, which saved the rights of creditors after the dissolution of a bank, applied in express terms to banks against which any judgment of forfeiture should be rendered, and had no application to banks dissolved by lixn- . itation of time.\\nAppeal from the Chancery Court of Washington County.\\nHon. W. G. Phelps, Chancellor;\\nOn the 13th of June, 1844, in a suit in chancery by Brown, Brothers & Co., Charles A. Lacoste was .appointed receiver of the assets-of the'Bank of Mississippi. In a few days thereafter, Lacoste gave bond for the faithful discharge of his duties as -receiver, took possession of the property of the bank,- and entered upon the discharge of his duties as directed in the order of court appointing him. In 1855 the bill of complaint of Brown, Brothers & Co. was dismissed, but the Pause was retained for the purpose of a settlement with the receiver.- In December, 1856, Lacoste was ordered to pay and deliver into court, by the 20th of March, 1857, all the moneys, notes, bills of exchange, or other securities or choses in action, collected or received by him as such receiver. In response to this\\u2019 order, Lacoste filed a report, to which exceptions were taken and sustained. Afterwards, Lacoste removed from the State, and in November, 1859, the papers in the cause were referred to W. L. Nugent, as a special commissioner, to take and state an account with Lacoste as receiver. Nugent made his report as commissioner, charging Lacoste, as receiver, with $125,000, and'notes, bonds, and other evidences of debt, amounting in value to $223,411. The report, was confirmed, and the receiver was ordered to pay and deliver into court the money, notes, bonds, etc., charged against him.\\nOn the 22d of February, 1860, a scire facias was issued in behalf of the Bank of Mississippi, defendant in the suit instituted by Brown, Brothers & Co., against Levin R. Marshall, and Stephen Duncan, two of the sureties on R\\u00e1eoste\\u2019s bond as receiver. The writ alleged that the conditions of the bond had been broken by the failure of the receiver to comply with the order of December, 1856, requiring him to pay and deliver into court the money, notes, bonds, etc., collected or received by him, and his failure to comply with the order requiring him to pay and deliver into court the money, notes, bonds, etc., charged against him by the report of Nugent, the special commissioner. And the writ required the defendants therein to show cause by the 14th of May, 1860, why the court should not assess damages against them to the extent of $300,000, the penalty of the bond. Marshall and Duncan demurred to the scire facias: The demurrer was sustained by the Chancery Court, but, upon appeal to this court, the decree sustaining the demurrer was overruled. The case on the demurrer is reported in 52 Miss. 740.\\nAfter the reversal of the chancellor\\u2019s decree on the demur,rer, the defendants answered, and set up the defence that the bank accepted an act of the Legislature passed on the 21st of February, 1840, as an amendment of its charter, which amendment operated to dissolve the bank at the expiration of ten years from the passage of the amendatory act, and that by its dissolution all of its corporate rights, powers, and privileges became extinct. It was shown in evidence that, at the time of the issuance of the scire facias, A. F. Smith and J. L. Yer-ger had become the holders of the entire stock of the bank, and that the writ was issued at their instance and for their benefit. On the final hearing in the Chancery Court, the scire facias was dismissed. There are several legislative acts to be considered in connection with this case, but their respective bearings are sufficiently indicated in the opinion of the court.\\nW. L. Nugent, for the appellant.\\n1. There is no proof of the acceptance by the bank of the act of February 21,- 1840, in the mode pointed out in the act itself.\\n2. Can the receiver, or his sureties, set up the alleged dissolution of the bank in bar of the recovery sought in this suit? If so, assuming that the act of 1840 was accepted, the result would be that the corporation could be prevented from exercising its functions long enough to let it expire, its assets could be squandered, and its stockholders ruined without redress. This is abhorrent to natural justice, and is not the law. The pendency of the injunction from April, 1843, to December, 1856, as to the parties to this litigation and their privies, should be excepted out of the period of limitation fixed by the statute, and the defendants should be estopped from setting up the defence of dissolution. If this is done, the act of 1860, reviving the bank, affords all the power necessary for this proceeding. The act of 1843 expressly provided that the debtors of a bank should not be released' by a judgment of forfeiture against it. A legal dissolution otherwise is the same, in effect, as by judgment of forfeiture. Was not this the law without the act of 1843? The old adjudications on this point were unjust, and without reason. See Bacon v. Robertson, 18 How. (U. S.) 482; Ang. & Ames on Corp., sect. 779 a; Curran v. Arkansas, 15 How. (U. S.) 304; Bum v. Robertson, 6 Wall. 277 ; New Albany v. Burke, 11 Wall. 96 ; Burke v. Smith, 16 Wall. 390 ; 17 Wall. 610; 16 Ind. 46, 469.\\n3. After the dissolution of money and trading corporations, the stockholders have the right in equity to use the corporate name for the collection of its assets ; and clearly so, after an enabling act of the Legislature. City of Louisville v. Bank of The United States, 3 B. Mon. 142; James v. Woodruff, 2 Denio, 574; Gilmer v. Bank, 8 Ohio, 71; State Bank v. The State, 1 Blackf. 273; Newton & Co. v. White, 42 Ga. 148; Ang. & Ames on Corp. 78 ; 2 Mason, 43; 14 Mass. 58.\\nHarris & George, on the same side.\\n1. Was the case which the Chancery Court retained for the purpose of getting the assets out of the hands of the receiver, pending in 1850, when the time limited for winding up the bank had expired? We affirm that it was pending, within the meaning of the act of 1840, both as to the receiver and his sureties. The liability of the sureties was essentially involved in the proceeding against the receiver. Chapin v. James, 1 Cent. L. J. 540.\\n2. Did the acceptance of the act of 1840 by the bank, supposing such acceptance, and the expiration of the time limited therein, extinguish the obligation of the receiver and'his sureties on their bond? 'We affirm, on the admitted doctrines of the Chancery Court, that there could be no such effect.\\n8. Was the act of 1860, giving\\u2019further time for the bank to collect its assets, valid? We affirm that it was, because, in equityj the debtors had acquired no right to resist payment, and the Legislature had the power to legislate so as to insure the due collection and distribution' of the effects-of'an insolvent corporation,' which'was being wound up under its own scheme. 18 How. (U. S.) 480 ; Ang. & Ames, on Corp. 823.\\nW. L. Nugent and W. P. Harris, of counsel for the appellant, argued the case orally.\\nT. J. (& F. A. E. Wharton, for the appellees.\\n1. The proof shows clearly that the act of 1840 was accepted by the bank as an amendment of its charter.\\n2. The bank having accepted the act of 1840 as an amendment of its charter, was debarred by the provisions thereof from suing out the scire facias in this case. The bank had no power to institute a new suit after the 22d of February, 1850. The issuance of the scire facias was the commencement of a new suit. Banh of Mississippi v. Duncan et al., 52 Miss. 740; Simms v. Nash, 1 How. 271: Curry v. The State,- 39 Miss. 511; -Bowen v. Bowen, 45 Miss. 10.\\n3. The act of 1860 is wholly inoperative for any purpose connected with the prosecution or defence of this suit. The time limited by the act of 1840, in which the bank might commence suits, had expired before the passage of the act of 1860, which, it is claimed, gave the bank further time for suing. In such circumstances the Legislature had no power to extend the limitation.\\nA. H. Handy, on the same side.\\n1. It is shown by the evidence that the bank accepted the provisions of the act of 1840, which put an end to all of its powers after the expiration of ten years, except as to the prosecution and defence of suits then pending. It cannot be pretended that the scire facias was pending at the end of ten years from the 22d of February, 1840. Bank of Mississippi v. Duncan et ah, 52 Miss. 740.\\n2. The act,of 1860 could -not give the bank the right' to have the scire facias issued; for its right to sue ivas barred by the limitation in the amended charter of 1840, before the passage of the act of 1860. The latter act was unconstitutional, in attempting to restore rights extinguished and barred by limitation. Cooley on Const. Lim. 365. The bank was defunct in 1860, having had no directors or other officers in many years. It was not in the power of the Legislature to galvanize it into potential existence.\\n3. In order to enforce the claim set forth in the scire facias, in favor of the stockholders, two things were necessary to be averred and proved: (1) that the corporation had been dissolved ; and (2) that all the debts of the bank had been paid. Bacon v. Robertson, 18 How. (U. S.) 480. But the scire facias sets forth no ground of relief except for the bank.\\nT. J. Wharton and A. H. Handy, of counsel for the appel-lees, argued the case orally.\", \"word_count\": \"3121\", \"char_count\": \"17581\", \"text\": \"Campbell, J.,\\ndelivered the opinion of the court.\\nThe evidence justified the conclusion that the amendment of the charter of the bank by the act of February 21, 1840, was accepted by it as therein provided for. The testimony of Lacoste; the agreement .of the district attorney, made in 1850, in the quo warranto suit pending in the Circuit Court of Washington County; the affidavit of A. F. Smith, made in that suit; and the allusions in the1 answer of Turnbull, president, and John G. Cocke, in evidence, satisfy us of the acceptance of the amendment mentioned. The circumstances relied on to show the contrary fail to have that effect. The quo warranto suit against the bank quite consists with the fact of an acceptance of the amendment of the charter, and the attempt to surrender the charter under the general law of 1840, as indicated by the entry on the general docket of the Superior Court of Chancery, also consists with having accepted the amendment in 1840; for, notwithstanding such acceptance, the bank was liable to proceedings by quo war-ranto, and may have been anxious to surrender its charter. And the reference by Lacoste's last report to. the attempt of the bank, through some of the directors, to accept the act on p. 19 of Laws of 1840, which page contains the provision for a voluntary surrender of its charter by any bank in this State, and the remark in the opinion of the High Court of Errors and Appeals, in reference to evidence of a surrender of the charter in accordance with the general law of 1840, harmonize with the acceptance by the bank, in 1840, of the amendment of its charter.\\nHaving accepted the amendment of February 21, 1840 (Laws 1840, p. 63), all the \\\" rights, powers, and privileges\\\" of appellant \\\" ceased and ended\\\" on the twenty-first day of February,'1850, \\\" except so far as to enable said corporation to prosecute or defend suits then pending and undetermined.\\\" Sect. 5 of said act.\\nThe scire facias against the sureties on the bond of the receiver was not a suit pending and undetermined on the twenty-first day of February, 1850, but is a new suit, and the appellant had no capacity to institute it, unless it derived it from chap. 322 of Laws of 1859-60, approved February 10, 1860, p. 390 of Pamphlet Acts. Bank of Mississippi v. Duncan, 52 Miss. 740. That act granted to appellant the right to sue to collect \\\"the debts and choses inaction due to it,\\\" and if it was competent for the Legislature to confer the right, it existed when this suit was instituted. If, at the time of the passage of this act, there was any thing due to appellant to which creditors or stockholders could maintain a claim in any of the courts of this State, it was within the power of the Legislature to revive the bank for the purpose of collecting its assets, with a view to their distribution among such creditors and stockholders. But if the bank had ceased to exist by. the limitation of time in its charter as amended, and if by its extinction the rights of creditors and stockholders expired, it was not within the power of the Legislature to revive rights before extinguished, and authorize their enforcement. Davis v. Minor, 1 How. 183; Hooker v. Hooker, 10 Smed. & M. 599; Stewart v. Davidson, 10 Smed. & M. 351; Cooley's Const. Lim. 355.\\nIt was firmly settled by the decisions of the High Court of Errors and Appeals of this State, that banks in this State were subject to the operation of the common-law incidents to the dissolution of a corporation, i.e., the extinction of all its rights and liabilities, except in so far as changed by statute. Commercial Bank v. Chambers et al., 8 Smed. & M. 9; Coulter et al v. Robertson, 24 Miss. 278. Audit was expressly declared that the rights of stockholders were not preserved by the act of July 26, 1843, but were left to their fate as at common law, which was to perish. Coulter et al v. Robertson, 24 Miss. 278.\\nThe injustice of the common-law rule, and its \\\" hostility to the more enlightened spirit of the age,\\\" were urged upon the High Court of Errors and Appeals by counsel, who insisted that it was condemned by reason and the principles of modern and enlightened jurisprudence; but the firm answer of the court was, that, exceptas modified by statute, the common-law rule on this subject was in full force and operation in this State. We have no hesitation to declare our full concurrence with the views of counsel on this point, and our dissent from the view of the High Court of Errors and Appeals announced in the case of Coulter et al. v. Robertson, 24 Miss. 278.\\nBut the question is, Was it not well-settled law in this State, that the consequences visited by the common law upon the dissolution of a corporation were incident to the dissolution of banks in this State, except as otherwise expressly declared by statute? The affirmative of this question is indisputable; and, although it may be the true view that the rights of creditors and stockholders of appellant did exist, in equity, after dissolution of appellant by efflux of time, we are constrained by the adjudged cases in pur reports to declare that neither creditors nor stockholders of appellant had any rights, at law or in equity, after the dissolution of appellant. It was expressly declared in Coulter et al. v. Robertson, 24 Miss. 278, that the rights of stockholders were left to their fate at common law, and that it was only by virtue of the act of 1843 that the rights of creditors did not also perish. It is manifest that the act of 1843 has no application to appellant, because it in terms related only to banks against which any judgment of forfeiture should be rendered, and had no application to such as should be dissolved by time, without any judgment. No statute applied to them, and the common law, in all its absurdity, applied to them, according to the decisions - of the High Court of Errors and Appeals.\\nWe regard the rule, authoritatively announced by the High Court of Errors and Appeals as applicable to banks contemporary with appellant, as obligatory on us in declaring the effect of the dissolution of appellant.\\nDecree -affirmed.\"}"

miss/11260298.json

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+"{\"id\": \"11260298\", \"name\": \"William Walker, Plaintiff in Error, v. Charles W. Williams, Defendant in Error\", \"name_abbreviation\": \"Walker v. Williams\", \"decision_date\": \"1855-12\", \"docket_number\": \"\", \"first_page\": \"165\", \"last_page\": \"171\", \"citations\": \"30 Miss. 165\", \"volume\": \"30\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:31:55.997765+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Walker, Plaintiff in Error, v. Charles W. Williams, Defendant in Error.\", \"head_matter\": \"William Walker, Plaintiff in Error, v. Charles W. Williams, Defendant in Error.\\n1. Decree in chancery: eeeect or. \\u2014 A decree of the Chancery Court, directing that the legal title to land of the defendant be divested out of him and vested in the complainant, is not, of itself, sufficient to vest the legal title in the complainant; the court must appoint a commissioner to convey, upon failure of the defendant to do so.\\n2. Equity: jurisdiction. \\u2014 The test, as to the jurisdiction of a court of equity, is, that the complainant has an equitable title, and if it appear from the face of the bill that the complainant has no title whatever, it seems that the decree of the court in his favor would be void for want of jurisdiction.\\n3. Yendor\\u2019s hen: rights oe assignee. \\u2014 The assignee of a promissory note given by the vendee of land (who has received a deed,) to secure the payment of the purchase-money, has no lien or equity on the land whatever.\\n4. Ejectment. \\u2014 If the defendant in ejectment is in possession of the premises, under a contract of purchase from the plaintiff, which has been rescinded, and the purchase-money paid by the defendant refunded, he cannot set up any outstanding title acquired by him against the title of his vendor; nor can he object, in this action, to his want of title.\\nIN error from tbe Circuit Court of Tishamingo county. Hon. P. T. Scruggs, judge.\\nOn the 28th of August, 1854, appellee instituted an action of ejectment in the Circuit Court of Tishamingo county, to recover the possession of the south-west quarter of section 20, township No. 3, range No. 8, east, situate in said county.\\nAt the September term, 1854, the defendant appeared and pleaded not guilty.\\nThe bill of exceptions shows, that on the trial the defendant admitted that he was in possession of the premises at the commencement of the suit.\\nThat plaintiff read to the jury a patent from the government to one Hogue, for the land in controversy, and a deed from Hogue to one Thompson, and a deed from Thompson to Susan Bow.\\nPlaintiff then read a transcript of the record of a suit in chancery, from the Circuit Court of said county, in a case of Daniel Saffarans v. Susan Bow \\u00a7\\u2022 Aaron Searcy, from which it appears that Searcy had purchased the land for Susan Bow, his sister, and had given a note to one Daniel Estil, who had assigned it to Saf-farans for a part of the purchase-money, to subject the land to the payment of which the bill was filed.\\nSearcy was served with process, and Susan Bow had regular notice by publication; and a decree\\u2019pro confesso was entered against them.\\nIn September, 1850, a decree was entered in the usual form, directing the land described in the bill to be sold, if the balance of the purchase-money was not paid within a fixed period of time.\\nThe money was not paid, and the land was sold by the commissioner, and purchased by the appellee. \\u25a0\\nIt appears that there was a mistake in the description of the land in the bill of complaint and throughout all the subsequent proceedings; it being described as the south-easi quarter, when it should have been the south-west quarter.\\nThe complainant, Saffarans, having discovered the mistake, filed a bill to the March term, 1852, to correct the mistake, &c.; and after Susan Bow had legal notice, by publication, of the pendency of this bill, a decree was, on the 25th of September, 1852, entered, divesting all title out of said Susan Bow, and vesting it in the complainant, Saffarans.\\nPlaintiff then read a deed from Saffarans to him for the land sued for, and rested his case.\\nDefendant below then introduced, as proof to show that Susan Bow had intermarried in Tennessee, with E. E. Boren,. a transcript from the county court of Henderson county, Tennessee. He also proved by one Scott, that Searcy was in possession of the land from the time of his purchase until his death, and that his son continued in possession until about the time defendant below went into possession.\\nIt appears that the defendant below was then introduced and sworn, and testified at considerable length, after which proof was offered of the contents of a title-bond, of which the defendant, Walker, had spoken in his testimony, which was objected to, and the objection sustained by the court. Defendant then read a deed for the land from E. E. Boren and Susan Boren to himself, and rested his defence. Plaintiff below then proved by Boone, that defendant Walker had purchased the land from Williams, the plaintiff, and went into possession of it; that afterwards it was discovered that a mistake had been made in the description of the land, and the contract was by agreement cancelled : that defendant knew that plaintiff had purchased the land, and that a bill was filed to correct the mistake.\\nThe jury found a verdict for the plaintiff below, and judgment was rendered accordingly.\\nDefendant moved for a new trial, which was denied, and he ex-, cepted, &c.\\nReynolds and Kinyon, for plaintiff in error.\\nIn the last case under which Saffarans claimed title, and through which Williams derived his title, there is not the shadow of a pre-tence that Saffarans ever had any title to the land in controversy, or any land whatever; and it is further to he remarked, that the note which he asserted was a lien on the land, had been previously satisfied by a sale of the south-east quarter of section 20, to Williams. Now admitting for a moment, for the sake of argument, that if Saffarans had title to the land, or was the real owner, he could under the act of 1841, come in to remove clouds, \\u2014 yet is it not apparent, that the party who does so, must allege the equitable title to be in himself; and that unless he does so, the decree, when made under a publication and without actual notice, is - absolutely void ?\\nSaffarans did not assert any title whatever, legal or equitable, in his bill; hut because in-a previous bill to enforce a vendor\\u2019s lien, in which he had obtained the sale of land, and satisfaction of his debt, there had been a mistake in the land, and he had obtained the sale of the wrong land, (he not being the purchaser,) he asks the court to take Susan Bow\\u2019s land and give it to him. The proceeding is attempted to be upheld under the act of 1841, and is, in my opinion, a burlesque on legal proceedings. Hutch. Code, 773.\\nBut even admit the decree was a valid 0110: no legal title was ever vested under it, so as to maintain an action of ejectment.\\nSaffarans was to bave execution of the decree, but no execution was ever taken: and if it bad, unquestionably Mrs. Bow could bave suspended it, by showing that Saffaran\\u2019s debt was paid, or by paying it. How does the Chancery Court vest a party with the legal title ? It cannot do so by a mere decree : it can only act by a commissioner, whom it shall appoint to convey the legal title, or by forcing the party holding the legal title to convey it.\\nThere being no mode pointed out in the statutes for transferring the legal title, it must be done in the mode pursued in the Chancery Court of England, by operating on the party himself, and forcing him by process of contempt or sequestration to convey, or by appointing a commissioner to do so.\\nBut in reference to the first record introduced by the plaintiff, which was the foundation of his whole title, the proceedings therein were null and void, because there was no service of process on Mrs. Bow, and no affidavit of Tier non-residence. Hutch. Code, 764.\\nIt will also be seen, that in each of the two records the proceedings against Mrs. Bow were void, because there was no such proof of publication as the statute requires: \\u2014 there being no copy of the notice certified by the proprietor or printer of the paper; and besides, the publication in each case was not for the time required by the order of the court. Hutch. Code, 866.\\nLastly, the title of the plaintiff below, was clearly ehampertous. JSllis v. Turner, 11 S. & M. 422; Reynolds v. Ingersoll, lb. 249; Sessions v. Reynolds, 7 lb. 130.\\nMiller and Kilpatricle, for defendant in error.\\nThe plaintiff below proved a good title from the United States government down to Susan Bow.\\nThe record of the chancery case shows, that the land in controversy was intended to be subjected, in the possession of Searcy and Susan Bow, for the payment of a portion of the purchase-money, but that a mistake was made in the description of the land.\\nThe amended bill was filed to correct the mistake.\\nThe decree under the amended bill, divested the title out of Susan Bow, and vested it in Saffarans.\\nSaffarans then qonveyed to the plaintiff below.\\nThe chain of plaintiff\\u2019s title Was thus shown to be complete.\\nThe proceedings in the chancery c\\u00e1se, seem to have been somewhat irregular; but the court had jurisdiction both of the parties and of the subject-matter.\\nThe decree was not void; and it cannot be attacked collaterally for irregularity merely. Barringer v. Boyd, 27 Miss. B. 473 ; Pech v. Woodlridge, 3 Day, It. 36.\\nThe proof offered by defendant below, to show that Susan Bow had intermarried with Boren, pending the chancery cause, was properly rejected by the court.\\nThe proof was clearly incompetent under the issue, and irrelevant.\\nIt did not tend to show that the decree was void..\\nThe deed from Boren and wife to the appellant was incompetent, or if competent, was entitled to no weight; for whatever title Susan Boren may have had, was divested before the date of the deed.\\nThe pretended purchase by Walker, the appellee, from Boren and wife, was void for champerty.\\nThe proof shows that Walker was put into possession by Williams, the appellant, under a contract of purchase, and that Walker had full knowledge of the claim of Williams, to the land in dispute.\\nWalker was in possession under Williams and as his tenant, at the time he took the deed from Boren and wife.\\nThe charges asked of the court appear to have been all given.\", \"word_count\": \"2388\", \"char_count\": \"13572\", \"text\": \"FisheR, J.,\\ndelivered the opinmn of the court.\\nThe plaintiff below brought this action in the Circuit Court of Tiskamingo county, to recover a tract of land in the possession of the defendant.\\nThe plaintiff appears to have proved a regular chain of title from the government, to one Susan Bow, through whom he claims title.\\nThe point for investigation is, whether he has acquired her title. For the purpose of establishing this fact, certain records were introduced, from the chancery side of the Circuit Court of said county, by one of which it appears, that one Daniel Saffarans filed a bill in said court, alleging that the south-east quarter of a certain section of land, constituted the consideration for the note described in the bill, and praying that the land might be subjected to what was supposed to be the vendor's lien, &c. After publication under the statute, Susan Bow, being a non-resident of the state, a decree was made according to the prayer of the bill, and a commissioner appointed, who sold the land, and made a deed to the plaintiff. It being afterwards discovered that it was the southwest quarter of the same section, instead of the south-east quarter, as described in the bill, which constituted the consideration of the note, Daniel Saffarans filed another bill, the purport and object of which, it is difficult to determine from the record. We conjecture, however, from the decree, that the bill was designed to correct the mistake as to the description of the land. By the decree it is ordered, that the title of the said Susan Bow be divested, and vested in the said Daniel Saffarans, and that the plaintiff have execution for the same. There is nothing in the record to show that this decree has ever been executed. Supposing the court to have had jurisdiction of the subject-matter, and of the person of the defendant, the decree would be regarded until reversed, as a complete adjudication of Saffarans' equity, but nothing more. It cannot of itself invest him with the defendant's legal title. This can only be accomplished by the act of the party, or by a commissioner appointed for that purpose by the court. It is, however, manifest from the face of the bill, that Saffarans had no interest whatever in the subject-matter. Without an interest, it is impossible to conceive, upon what principle a court of equity could entertain jurisdiction. The test as to the jurisdiction is, whether he had such an equitable title to the land, as would induce a court of equity to lend its aid, in restraining the defendant from arraying against him her legal title. So far from showing an equitable title, which would be recognized as superior in a court of equity to the defendant's title, and which would induce that court to interfere with sucb title, he shows conclusively that he never had even a shadow of right to subject the land to the payment of the note, as he holds it only as an assignee, and not as payee; the vendor's lien not being in its nature assignable, and not passing to the assignee.\\nIf the plaintiff's right to recover depended alone upon the title thus shown, we would feel bound to reverse the judgment, and to grant a new trial.\\nBut it is proved that the defendant entered into possession under the plaintiff, under a contract to purchase the land; that this contract was rescinded, and that money which was paid by defendant, refunded to him.\\nThem testimony, together with the admission, that the defendant was in possession at the commencement of the suit, was of itself sufficient to sustain the action, and all the objectionable testimony might with safety have been omitted.\\nThe judgment of the court below will therefore be affirmed..\"}"

miss/11262165.json

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+"{\"id\": \"11262165\", \"name\": \"James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased\", \"name_abbreviation\": \"Kane v. Burrus\", \"decision_date\": \"1844-01\", \"docket_number\": \"\", \"first_page\": \"313\", \"last_page\": \"325\", \"citations\": \"2 S. & M. 313\", \"volume\": \"10\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:59:38.710203+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Thacher, having been counsel for the plaintiffs in the court below, gave no opinion.\", \"parties\": \"James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased.\", \"head_matter\": \"James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased.\\nWhere a judge of the circuit court signed a bill of exceptions, certifying that a motion, accompanied with affidavits, was. made at a previous term, though the record of the proceedings in the case of that term contain no evidence of the fact, yet this court is bound to receive and recognize the statements in the bill of exceptions as conclusive, and treat them as part of the record.\\nA motion for a new trial at law, may be continued, by the order of the court, until a term succeeding that at which the trial took place. Without a special order of continuance the motion would expire with the term.\\nWhere a verdict had been rendered upon a promissory note against the maker, in favor of the plaintiffs\\u2019 intestate, and the maker afterwards filed an affidavit of witnesses that they had heard the intestate acknowledge the payment of nine hundred dollars on the note, and filed also his own affidavit, showing that the evidence had come to his knowledge since the trial, and that he had used due diligence to discover it: Meld, that the defendant was entitled to a new trial.\\nIn error, from the circuit court of Adams county.\\nThe defendants in error sued the plaintiffs in the court below, upon a note payable to Earl Clapp, for twelve hundred dollars. The defendants plead non assumpsit,\\u2022 and payment. On the 10th day of December, 1841, the case was submitted to a jury, and verdict rendered by them in favor of the plaintiffs below for one thousand four hundred and forty-eight dollars, and judgment was entered accordingly.\\nThe record then recites as follows :\\n\\u201cAnd afterwards, at the May term, 1842, came the said defendants, by their attorneys, and made their motion for a new trial in this case, and thereupon, the court having heard said motion, it was ordered that said motion be overruled, and not granted. And afterwards, at the May term, 1842, aforesaid, the said defendants filed their bill of exceptions, to wit:\\n\\u201c State of Mississippi, ( In Circuit Court, Adams County. $ May Term, A. D. 1842,\\n\\u201c Delia Clapp, Administrator, A'c. v. ) T..\\u201e - \\u201e James JR.. Kane and Richard Henuessee. $ 1 xceP ions.\\n\\u201c Be it remembered, that after the trial of this cause, and the rendition of the verdict of the jury, which said cause was tried, and verdict rendered at the November term, A. D. 1841, of the court aforesaid, the said defendants, at the term last aforesaid, moved the court for a new trial in said cause, on the ground .of newly discovered evidence, and placed the motion for same upon the motion docket of said court, and in said motion referred the court for the grounds for granting same to \\u2018 Petition A,\\u2019 and \\u2018 Affidavits B and C,\\u2019 filed with the papers in said cause, which said motion was placed upon the motion docket aforesaid, immediately, that the causes and reasons for same came to the knowledge of said defendants, and were communicated to their said attorneys, which was a few days after the trial of said cause, and during the term last aforesaid, of said court, and which said \\u2018 Petition A,\\u2019 and \\u2018 Affidavits B and 0/ are as follows:\\n\\u201c State of Mississippi, ? In Circuit Court, Adams County, ) November Term, 1841.\\n\\u201cJames R. Kane, one of the defendants in the above stated case, and the principal in the note upon which this action is founded, states upon oath, that since said trial there has come to the knowledge of said parties defendant in this case, new and important evidence for the, defendants, the existence of which was at the time of the trial, and before, wholly unknown to said defendants, that said defendant Kane was fully aware of the facts hereinbefore stated, but was unacquainted with the existence of legal proof of same, that he made diligent inquiry, and industriously endeavored to discover and produce on the trial of said action, evidence of the facts hereinbefore set forth, but utterly failed therein, and that it was not until a day or two since, and since said trial, that the existence of evidence of said facts has come to his knowledge, that upon the discovery of same, he communicated to his counsel the fact of the discovery of said evidence, who recommended him to prepare affidavit of the truth of same, and to move this honorable court for a new trial in same, upon the ground of newly-discovered evidence, that said evidence is not of a cumulative character, and would produce a different result upon another trial. That the evidence is as follows:\\n\\u201c That one Joseph Guss will prove, that in the month of June, 1840, and shortly before the death of Earl Clapp, said Clapp stated to this affiant, that said James R. Kane had paid him, said Clapp, the sum of nine hundred dollars upon the note of twelve hundred dollars made by said Kane and Richard Hennessee, in favor of said Clapp, and sued on in this action.\\n\\u201c That John P. Morris will prove, that about three tyeeks previous to the death of Earl Clapp, mentioned in said action, the said Clapp stated, to him, that he, Clapp, had loaned to James R. Kane, upon the security of Richard Hennessee, the sum of twelve hundred dollars, in city warrants, and that he, said Clapp, believed, at the time of said conversation, that said Kane had paid nearly the whole amount of said indebtedness, and that there could not be much due from them.\\n\\u201cAnd affiant further states, that said Morris and Guss are residents of this county of Adams, and that he expects to obtain their presence at the next term of this court, to testify as above stated, he therefore prays a new trial, &c.\\n\\u201c James R. Kane.\\n\\u201c Sworn to, and subscribed before me, 20th Dec. 1841.\\n\\u201cSam\\u2019l. Wood, Clerk.\\n\\u201c By James D. Galbraith, D\\u2019y. Clerk.\\n(Affidavit B.)\\n\\u201c State of Mississippi, ) In Circuit Court, Adams County, \\\\ November Term, 1841.\\n\\u201c And Joseph Guss, being duly sworn, deposes and says, that in the month of June, 1840, and shortly before the death of Earl Clapp, said Clapp stated to this affiant, that James R. Kane had paid him, said Clapp, the sum of nine hundred dollars, upon the note of twelve hundred dollars made by said Kane and Richard Hennessee, in favor of said Clapp, and sued on, in this action.\\n\\u201cJoseph Guss.\\n\\u201c Sworn to and subscribed before me, this 18 th Dec. 1841.\\n\\u201cSam\\u2019l. Wood, Clerk.\\n\\u201c By James D. Galbraith, D\\u2019y. Clerk.\\n(Affidavit C.)\\n\\u201c State of Mississippi, ) In Circuit Court, Adams County, $ November Term, 1841.\\n\\u201c And John P. Morris, being duly sworn, deposes and says, upon oath, that about three weeks previous to the death of Earl Clapp, the said Earl Clapp stated to this affiant, that he, Clapp, had loaned to James R. Kane, upon the security of Richard Hennessee, the sum of twelve hundred dollars, in city warrants, and that he, said Clapp, believed, at the time of said conversation, that said Kane had paid nearly the whole amount of said indebtedness, and that there could not be much due from them. J. P. MoRRis.\\n\\u201c Sworn to, and subscribed, before me, this 18th Dec. 1841.\\n\\u201cSam\\u2019l. Wood, Clerk.\\n\\u201c By James D. Galbraith, D\\\\j. Clerk.\\n\\u201c That notice of the pendency of said motion was duly made arid given to the plaintiff and her.attorneys; that after the trial of said cause, and before the said motion for a new trial in same was called for a hearing and arguments, the Hon. C. C. Cage, who was the judge presiding at the time of the trial of said cause, and before the regular call of said motion in its due course, exchanged his circuit with the Hon. Y. T. Crawford, the judge of the eleventh judicial district of the state aforesaid, which said Hon. Y. T. Crawford thereby became, and was the presiding judge of the said circuit court of Adams county, at the term last aforesaid, at the time when the said motion was duly called for a hearing and argument of same, at which time, defendants and their attorneys, were ready to submit same to the judgment of the court. That the said Hon. Y. T. Crawford, upon said motion being called, as aforesaid, in due course, ordered the said motion to be continued until the next term of said court, to wit, this May term, A. D. 1842, and refused to hear said motion, declaring that he was unwilling to hear and decide a motion for a new trial in a cause which had not been tried on a judgment had while he was presiding as a judge. That at the present term of this court, to wit, this May term, A. D. 1842, the said Hon. C. C. Cage, presiding, the said motion continued as aforesaid, was again duly called in its order upon said motion docket, for a hearing of same, and the said Petition A,\\u2019 and \\u2018 Affidavits B and C,\\u2019 were read to the court; immediately on hearing which, and before anything further was said, done, offered or insisted, .either in favor or against said motion, the said court decided that it would not hear said motion discussed, declaring that same should have been decided at the term of said court when said motion was preferred, and placed upon the motion docket, and ordered and adjudged that said motion should be overruled, to which judgment and opinion of the court in refusing to hear said motion, and in overruling it, the said defendants, by their counsel, excepted, and prayed the court to sign and seal this their bill of exceptions to same, and that the same be duly filed and enrolled, and made a part of the record in this said case, which is accordingly done.\\n\\u201c ChaRles C. Cage.\\u201d [Seal.]\\nThe defendants sued out this writ of error.\\nFreeman and Reed, assigned the following for error :\\n. 1. That the court below erred in refusing to hear the motion for a new trial, at the November term, 1841, of the court, it being the term at which judgment was rendered.\\n2. That the court erred in continuing said motion until the next term thereafter.\\n3. That the court erred in not hearing said motion at the May term, A. D. 1842, it being th\\u00e9 term to which said motion was continued.\\n4. That the court erred in overruling said motion for a new trial, without hearing an argument.\\nReed, for plaintiffs in error.\\n1. The first error assigned is, that the court erred in refusing to hear the motion for a new trial, at the term at which judgment was rendered.\\nIt is the settled practice of nisiprius courts to entertain motions for arrest of judgment at the term at which judgment was obtained, and such has been the invariable rule in the courts of this state. A departure therefore from this rule, was manifestly erroneous.\\n2. The second error assigned is, that the court erred in continuing said motion. The court should have heard an argument, and sustained or overruled the motion. It is no excuse that when the motion came on to be heard, a different judge presided from one; before whom the judgment in this case was rendered, the court was one and the same; the mere exchanging of circuits by the judges does not change the character or authority of the court; the judges were created with the same jurisdiction, by the same law, and endowed with same powers. It was a temporary exchange made by virtue of the laws of the state, and intended to secure the ends of justice to litigants, and not for the purpose of depriving any party from being heard, or having full and ample relief. The judge who presided at the hearing of the motion, was fully authorized to entertain it, and by not doing so, committed an error which this court will undoubtedly correct. See H. & H. p. 481, for the statute giving circuit judges power to exchange circuits.\\n3. The third ground assigned for error is, that the court below, erred in not hearing said motion, at the subsequent term. It was not too late to correct the mistakes of the previous court, and certainly, by every rule of law, a party has a right to be heard by himself or counsel. The court by interrupting the counsel for the plaintiffs in error, and refusing to hear an argument, committed a palpable and open violation of the rights of the plaintiffs in error, and assumed an authority which is not conferred upon him, and which was in direct contradiction of every principle of law, and arbitrary in the extreme. We ask this court to check such assumption, and such evident violation of the rights of litigants.\\n4. The fourth ground assigned is, that the court erred in overruling said motion.\\nIn this case, there were affidavits filed with the motion for a new trial, setting forth, first, that the plaintiffs in error had discovered new testimony; second, that the testimony was mate rial, and lastly, the affidavits.of the witnesses as to what they would|testify, were also filed with the^motion, as appears of record.\\nThen upon the merits of this motion, the court below clearly erred. All the authorities go to show, that when a party has entered his motion for a new trial, on the ground of newly discovered evidence, the courts will grant a new trial on the parties filing affidavits of the fact, as well as what the evidence will be, that courts may judge of its materiality, and whether it is cumulative. See 2 Caines, 155. 3 Caines, 182. 18 Johnson, N. Y. 489. 7 Mass. 205. 15 Mass. 378. 2 Binney, 182. \\u25a05 Serg. & Rawle, 41. See also 2 Howard, 773, Hare v. Sproul.\\nBy looking into the record, the court will see that the plaintiffs in error, on the trial below, withdrew their plea of payment ; that therefore this newly discovered evidence is not cumulative, as it does not appear that any payment was attempted to be proved; on the contrary, the plea of payment was withdrawn, and the plaintiffs in error were forced to rely upon the general issue. The decision in Hare v. Sproul, in 3 Howard, is therefore conclusive as to this point.\\nIt is the province of courts to grant new trials, where they see that manifest injustice has been done. See Daniel v. Rose, 1 Nolt <fc McCord, 33.\\nIn-this case, a judgment now stands against the plaintiffs in error, for $1448, when it appears by the evidence of two disinterested persons, that a greater portion of that debt has been paid and satisfied; certainly there has been, and will be injustice done the plaintiffs in error, if this.court does not overrule and reverse the judgment of the court below.\\nHeioett, for defendants in error.\\nFor defendants in error, it is submitted to the court,\\n.That it is not competent for a judge in the circuit court, by a recital of any fact in a bill of exceptions, as having transpired at-a.previous term, to make that fact thereby a part of the record of that court, when in the record of that previous term, such fact does not appear.\\n\\u201c Matter of record is to be proved by the record itself, and not by evidence.\\u201d 3 Tomlin. Law Die. p. 300, quoting 21 Cor. B. R. Now, certainly, here the signature of the judge in the court below is attempted to be used as evidence of a fact which transpired at the previous term, and not in the record of that term. True the bill of exceptions is made a part of the record; but it is submitted that it is only a part of the record, for such matter as is legitimately included in the bill of exceptions. If the recollection of the judge below is to increase, it may also diminish the record ; and if it properly extends back for that purpose, to one term, it may to any still more distant period. During the term in which any judicial act is done, the record is alterable in that term, as the judges shall direct; when the term is passed, then the record admitteth of no alteration, or proof that it is false, in any instance. Co. Lit. 260. 4 Rep. 52. It is true this is modified by our statutes; but then it can only be amended on the authority of something appearing in the papers of the case, whereby the amendment may be guided and directed ; this, too, must appear in the record, and of this nothing in this case appears.\\nIf this view is correct, then there does not appear any motion to have been made at the term, (November, 1841,) at which, the judgment for defendants in error was rendered; and it does not require notice in this court, that it was too late to apply at the succeeding term, (May, 1842,) for a new trial on any ground.\\nIf, however, this court consider that the bill of exceptions can be a part of the record of the preceding term, to that at which it was taken, and that, too, of facts which are supposed to have transpired at that previous term, and not noticed on the record of that term, then the position is taken for the defendants in error, that on such a motion being presented to the attention of the judge presiding, though he had not heard the trial of the cause in which the motion was made, it became his duty to hear that motion, with the best lights before him ;\\u201e and that his refusal to do so was the point at which the plaintiffs in error should have sought the interposition of another tribu nal. That it was not competent for them to let it Jie over to another term of that court, and then demand a now trial.\\nWe, however, contend again, that this court will not disturb the judgment now rendered in the court below, if, upon examination, they are satisfied that the application for a new trial could not be granted. The motion below was overruled ; whatever were the reasons given, it virtually and really was a refusal of a new trial. All the evidence on which that application was based, is before this court, all they will be allowed to offer, if it is returned to be heard below. If, then, this court believe a new trial cannot be granted, this court will not disturb the judgment of the inferior court. See Graham on New Trials, p. 717.\\nAll proper, all possible diligence, must be shown to have been used, to obtain the newly discovered testimony, previous to trial; no excuse is offered ; it does not appear why it was not then produced ; the witnesses* are said to be resident in Adams county, the place of trial.\\nThis court will also, in looking into the whole case, take notice that the bond in this case given, does not comply with the law, and that it is defective, according to the decision of this court, in the case of Rogers v. Galloioay, 3 Howard, p. 58, and also p. 34, in case of Stamps v. Newton. It also appears settled, that according to the decision of this court, in 7 Howard, p. 75, in the case of Porter, Appellant, v. Grisham, this court will require the strictest compliance with law, in the bringing cases before this tribunal, whether by writ of error or by appeal.\\n\\u2022 If the rigor of these decisions has'been relaxed, still it is submitted, that on a defective bond, this court will dismiss the supersedeas, if no further action is taken thereon.\", \"word_count\": \"4756\", \"char_count\": \"26360\", \"text\": \"Mr. Chief Justice Sharkey\\ndelivered the opinion of the court.\\nIt seems that on the 10th of December, 1841, the defendants in error recovered a judgment in the circuit court of Adams county, against the plaintiffs in error, for $>1448. The record shows that at the May term, 1842, a motion for a new trial was over ruled, and a bill of exceptions taken. By the bill of exceptions it appears, that a few days after the rendition of the verdict, and during the same term of the court, the defendants below entered a motion on the docket for a new trial, on the ground of newly discovered evidence, and accompanied the motion by a petition, and the affidavits of the witnesses, which petition was sworn to by one of the defendants ; that notice of the motion was duly given to the counsel for the plaintiffs below, and that after the trial of the cause, and before the motion for a new trial was called for hearing, the judge who presided at the trial, interchanged his circuit with another judge, according to the provisions of the statute, who presided for the balance of the term, or at least until the motion for a new trial was called. But as he had not presided at the trial, he refused on that ground to hear and decide the motion, and ordered that it should be continued. At the May term, 1842, the judge, before whom the cause was tried had returned to his circuit, and the motion being again called in its order on the docket, he refused to hear and decide it on its merits, on the ground that it should have been determined at the previous term of the court, at which the trial had taken place, and accordingly he ordered that it should be overruled.\\nA preliminary objection is raised to the bill of exceptions on the ground that it is incompetent for a judge of the circuit court, by reciting in the bill of exceptions a fact which had transpired at a previous term, to make that fact a part of the record, when in the records of the previous term, such fact does not appear. Or, to present the question in a different form, that the judge, at May term, 1842, could not certify and make a part of the record facts which had transpired in 1841, before a different judge. The answer to this objection is obvious. A bill of exceptions is a judicial certificate of record, importing verity on its face. When, therefore, a circuit judge, by bill of exceptions, certifies to us a fact, we must take it as a fact. If it be in relation to something which did not transpire before him, then we must presume that he had proof of it. When the judge signed a bill of exceptions certifying to us that the de \\u2022fendants had made a motion at a previous term, accompanied by the affidavits, and that the judge refused to decide the motion because he had not presided at the trial, and\\u00f3n that ground continued it, we must suppose that he had evidence of the facts which he states; or I should rather say that we can indulge no supposition about it; it comes to us as a fact which requires ho presumption in its favor; and which admits of no evidence to question it. A circuit judge should never permit anything to be incorporated in a bill of exceptions, which did not actually transpire before him, or which is not fully proven, and we cannot presume a departure from duty. The counsel for the defendants in error has cited an authority which is decisive against him on this point. It is that \\\" matter of record is to be proved by the record itself.\\\" 3 Tomlins, 300. Or to use another maxim, a record proves itself. This is conclusive, when it is considered that a bill of exceptions is as much a record as any other part of the proceedings; so we regard this objection as unavailing.\\nBefore we can properly proceed to the merits of the application for a new trial, another question presents itself, which deserves some consideration. Indeed, this we presume, is the main question which inriuenced the mind of the court below in overruling the motion. It is this; can a motion for a new trial be continued from the term at which the verdict was rendered, until the next succeeding term I In the absence of fixed rules\\u00bb of practice for the government of our courts, we must determine this question by the English practice. Motions for new trials ,are denominated special motions, and on the showing of the party making the motion, a rule nisi is usually granted, calling on the opposite party to show cause against the motion. A day is assigned for making and deciding these motions, but they are frequently permitted to stand over for the accommodation of parties. And if the party who obtains the rule is not ready to support his motion, he may move to enlarge the rule till a future day in the same term, or until the next term, and when so enlarged they are set fora peremptory call. 1 Tidd's Practice, 501-505. This enlarging the rule is said to be very much a matter of coarse when it is the party's own delay, but where it is not, there must be some evident necessity for it. This is a direct authority in support of such continuance, when it is ordered by the court. Where there has been no such order, the motion would expire with the term of course, lb. 502. The only difference between a motion here and under the English practice is, that in our courts the motion is for a rule absolute in the first instance, but that makes no difference as to the power of the court to enlarge the time for hearing the motion. Whilst we do not doubt the power of the court to continue such a motion from one term to another, yet it is an unsafe practice when the application depends upon the evidence given at the trial. In such cases it would be impossible that such a motion could be determined, if the judge who presided at the trial should have interchanged his circuit with another judge. But when the application depends exclusively upon affidavits, this difficulty is in a great measure obviated.\\nThe motion in this case was made on the ground of newly discovered evidence, and although the judge may have overruled the motion under an impression that it could not be heard at that term, yet if on the merits the defendants are not entitled to a new trial, the judgment must be sustained. One of the defendants made an affidavit in support of the motion, in which he states that since the trial he has discovered new and import- , ant testimony, which was unknown to the defendants before the trial, although diligent inquiry and industrious efforts had been made to discover and produce the testimony on the trial, which efforts had utterly failed; and that it was not until a day or two before making the motion that he had discovered that such proof could be made. He also states in his affidavit that the witnesses will prove that the intestate of plaintiffs below, acknowledged in his lifetime the payment of nine hundred dollars on the note sued on, and that the witnesses are resident citizens of the counter of Adams, and that he could obtain their attendance at the next term of the court. The application is also accompanied by the affidavits of the witnesses fully establishing the acknowledgments made by the deceased of the pay ment of nine hundred dollars, as stated in defendants' affidavit. These affidavits seem to be sufficient to bring the defendants within the rule established by this case of Hare v. Sproul, 2 Howard, 772. He states that the evidence has come to his knowledge since the trial; that it was not owing to the want of diligence that it was not sooner discovered, and that the verdict 'would probably be different. The same rule is also laid down by the authorities cited by the counsel for the plaintiffs in error, and the decision in Guyott v. Butts, in 4 Wendell, 303, is very much in point. On the whole, therefore, we think a new trial should be granted.\\nMr. Justice Thacher, having been counsel for the plaintiffs in the court below, gave no opinion.\"}"

miss/11420727.json

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+"{\"id\": \"11420727\", \"name\": \"Terry EVANS, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Evans v. State\", \"decision_date\": \"2002-08-06\", \"docket_number\": \"No. 2000-KA-02018-COA\", \"first_page\": \"617\", \"last_page\": \"622\", \"citations\": \"823 So. 2d 617\", \"volume\": \"823\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:10:05.204895+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KING, P.J., BRIDGES, and CHANDLER, JJ.\", \"parties\": \"Terry EVANS, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Terry EVANS, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2000-KA-02018-COA.\\nCourt of Appeals of Mississippi.\\nAug. 6, 2002.\\nBilly Joe Gilmore, Lexington, attorney for Appellant.\\nOffice of the Attorney General by Deirdre McCrory, attorney for Appellee.\\nBefore KING, P.J., BRIDGES, and CHANDLER, JJ.\", \"word_count\": \"1798\", \"char_count\": \"10351\", \"text\": \"KING, P.J.,\\nfor the court.\\n\\u00b6 1. Terry Evans was convicted of possession of methamphetamine and marijuana by the Holmes County Circuit Court. Aggrieved by that conviction Evans has appealed and presented six issues for this Court's review.\\n\\u00b6 2. These issues may be stated as follows: (1) the failure of the trial court to exclude allegedly improperly seized evidence, (2) the failure of the trial court to allow an interlocutory appeal on the failure to suppress evidence, (3) the failure of the trial court to dismiss the charge, when the State allegedly did not prove its case beyond a reasonable doubt, and (4) the alleg edly repeated prejudicial remarks of the prosecutor.\\n\\u00b6 3. Finding no reversible error, this Court affirms Evans' convictions and sentences.\\nFACTS\\n\\u00b6 4. Evans was a commercial truck driver. According to Evans, he and Debra Smith were leaving Ontario, California, headed east. They were accompanied by a hitchhiker named \\\"Cindy\\\".\\n\\u00b6 5. According to Evans, as they neared Monroe, Louisiana, he became aware that Cindy had illegal drugs in her luggage. Upon his arrival at a truck stop in Jackson, Mississippi, Evans claims to have evicted Cindy from his truck, because he did not allow illegal drugs in it.\\n\\u00b6 6. Evans and Ms. Smith ate at the truck stop and then headed north on Interstate 55.\\n\\u00b6 7. Officer Bruce Gresham, of the Mississippi Public Service Commission, was doing random stops and safety inspections of commercial vehicles in Holmes County. Evans was among the persons stopped by Gresham. Evans was requested to exit the vehicle and produce his log book.\\n\\u00b6 8. Upon presentation of the book, Gresham noticed that Evans had failed to make entries in his book for several days. Gresham then inquired whether Smith was authorized to ride as a passenger in the truck, and requested permission to search the truck.\\n\\u00b6 9. When Evans refused to give written consent to search the truck, Gresham ordered Evans and Smith out of the truck, and placed Evans under arrest for failure to properly maintain his log book.\\n\\u00b6 10. After the arrest Evans and Smith were frisked for weapons, after which Gresham searched the seat area of the truck cab. He allowed Smith to return to the passenger seat, and then searched the sleeping area of the cab. There he discovered a blue zippered bag, which upon being opened contained what Gresham believed to be marijuana.\\n\\u00b6 11. Evans and Smith were then placed in the patrol car, and given the Miranda warnings. Ms. Smith stated that she had an \\\"eight ball of crank\\\" in her purse which had been purchased at the Jackson truck stop.\\n\\u00b6 12. Evans denied knowledge of any of the drugs.\\nISSUES ON APPEAL AND ANALYSIS\\n1. Failure, to suppress evidence.\\n\\u00b6 13. Evans argues that the search of his vehicle cab and seizure of the illegal drugs therein was impermissible. He contends that the search and seizure were beyond the scope of an officer's search incident to an arrest, or a protective search because the blue bag was neither in plain view nor within his arm's reach.\\n\\u00b6 14. The warrantless search and seizure of personal property by law enforcement officers is prohibited by the Fourth Amendment to the United States Constitution, and Art. 3, Section 23 of the Mississippi Constitution of 1890. There are exceptions to this rule. An officer may conduct a warrantless search (1) if granted permission, Loper v. State, 330 So.2d 265, 266 (Miss.1976), (2) under exigent circumstances, if probable cause exists, Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and (3) of a vehicle when making a lawful contemporaneous arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).\\n\\u00b6 15. The right to search incident to a lawful arrest extends to any container, opened or unopened within the arrestee's immediate control. Rankin v. State, 636 So.2d 652, 657 (Miss.1994).\\n\\u00b6 16. At the suppression hearing, Officer Gresham testified:\\nI got him out of the truck, walked him around there, had him empty his pockets out, make sure there's no weapons, patted him down. I had Mrs. Smith empty her pockets out and pull her clothing tight in places I didn't want to touch and made sure she didn't have any weapons. I told them to stand where I could see them. At this point, he's under arrest. The search on the vehicle incident to an arrest, make sure there's no weapons or anything there. I get up in front, looked, didn't see anything. On the back sleeper birth [sic], I saw a small blue bag with Looney Tunes on it, picked it up, unzipped it, and I saw a green leafy substance that I believed to be marijuana.\\nWell, after I searched the front \\u2014 let me go back. It was cold that day.... Both of these people had on shirts and they were about to freeze. So I felt like I could let them sit up there in the seats because you can't \\u2014 in that particular style 18 wheeler, you can't really stand up in the cab.... So, I told them they could come sit inside the warm, because it was bitterly cold. And after I got them seated, I sat down on the bed and that's when I found the little blue plastic zipper bag, Looney Tunes on it, and inside I found \\u2014 I just looked at it and it was a green leafy substance that appeared to be marijuana and some small plastic baggies.\\n\\u00b6 17. The trial court then ruled:\\nThe Court finds that in that Mr. Evans \\u2014 a Class A license, that he was subject to the random check and therefore, the stop was legal. The Court also finds that the arrest of Mr. Evans that the officer had probable cause for the arrest. The question is whether or not there was probable cause for the search. The court finds from the testimony of the officer that consent, once he was requested to give written consent, the consent to search was withdrawn. However, the search \\u2014 the consent to search by Ms. Smith was not.withdrawn. Therefore, the Court finds that the search was not a consensual search as it relates to Mr. Evans.\\nWhether or not the officer had a right to search incident to arrest, in that \\u2014 Mr. Evans had been taken from the truck at that point, the Court finds that the officer was not in any danger of Mr. Evans grabbing a weapon or anything which is the reasons for the search incident to arrest.\\nAnother question, whether or not it was reasonable for the officer to place the defendants, Mr. Evans and Mrs. [Smith] back into the truck and by placing them back into the truck if he then \\u2014 if a search incident to arrest became necessary at that point.\\nBased on the circumstances and the testimony of the officer about the conditions and how they were dressed as to why he placed them back into the truck, he was there by himself with no other officers there, as opposed to placing them back into the truck or in his car, whether that was reasonable. The Court finds that under the circumstances that [it] was reasonable to place them back into the truck and, therefore, the search at that point incident to the arrest became necessary to search the sleeper area of the truck, and therefore, the items found at that point, the Court finds cannot be suppressed.\\n\\u00b6 18. In reviewing the denial of a motion to suppress, this Court looks to determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence. Where supported by substantial credible evidence, this Court will not disturb those findings. Price v. State, 752 So.2d 1070 (119) (Miss.Ct.App.1999).\\n\\u00b6 19. Officer Gresham's testimony provided a substantial and credible basis for the trial court's denial of the suppression motion.\\n2. Failure to allow an Interlocutory appeal\\n\\u00b6 20. After the trial court declined to suppress the drug evidence, Evans requested a continuance, to pursue an interlocutory appeal. This request was denied. He now argues that that denial was error.\\n\\u00b6 21. As noted by the State, the decision to grant or deny a continuance is left to the sound discretion of the trial court. Kelly v. State, 778 So.2d 149(\\u00b6 15) (Miss.Ct.App.2000). Unless that discretion has been abused, this Court will not reverse the trial court's decision. Gooden v. State, 806 So.2d 322(\\u00b6 5) (Miss.Ct.App.2001).\\n\\u00b6 22. Evans has failed to demonstrate that the denial of his motion was an abuse of discretion.\\n3. Failure to dismiss\\n\\u00b6 23. Evans argues that the State failed to prove beyond a reasonable doubt that he had knowledge and possession of the drugs found in his vehicle. This argument is unsupported by any authority and appears to be, at best, a request to have this Court determine the weight and credibility to be accorded testimony. This Court declines to do so, as that is a matter within the province of the trier of fact, the jury. Smith v. State, 800 So.2d 535(\\u00b6 5) (Miss.Ct.App.2001). Unless this Court is convinced that the decision of the jury was not supported by substantial credible evidence, and to allow it to stand would sanction an unconscionable injustice, it will not set aside a jury verdict. Id. at (\\u00b6 4).\\n\\u00b6 24. The record clearly contains substantial and credible evidence upon which the jury, could, and did find Evans guilty. This Court sees no reason to disturb that decision.\\n4.Prejudicial remarks by the prosecutor\\n\\u00b6 25. Evans also uses this issue to argue the weight and credibility accorded testimony. That again is a matter for the trier of fact, and this Court declines to interfere with it.\\n\\u00b6 26. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF COUNT I, POSSESSION OF METHAMPHETAMINE AND SENTENCE OF TEN YEARS, SEVEN YEARS SUSPENDED AND CONVICTION OF COUNT II, POSSESSION OF MARIJUANA, MORE THAN ONE OUNCE, AND SENTENCE OF THREE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, AND SAID SENTENCES TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.\\nMcMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE OPINION.\\n. \\\"Crank\\\" is the street name for a type of methamphetamine.\"}"

miss/11455630.json

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+"{\"id\": \"11455630\", \"name\": \"Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee\", \"name_abbreviation\": \"Kolikas v. Kolikas\", \"decision_date\": \"2002-04-16\", \"docket_number\": \"No. 2000-CA-01615-COA\", \"first_page\": \"874\", \"last_page\": \"883\", \"citations\": \"821 So. 2d 874\", \"volume\": \"821\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:06:52.082100+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KING, P.J., THOMAS, and MYERS, JJ.\", \"parties\": \"Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee.\", \"head_matter\": \"Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee.\\nNo. 2000-CA-01615-COA.\\nCourt of Appeals of Mississippi.\\nApril 16, 2002.\\nRehearing Denied July 16, 2002.\\nPat Donald, Madison, attorney for ap-pebant.\\nRonald Louis Taylor, Southaven, attorney for appellee.\\nBefore KING, P.J., THOMAS, and MYERS, JJ.\", \"word_count\": \"4530\", \"char_count\": \"27053\", \"text\": \"KING, P.J.,\\nfor the court.\\n\\u00b6 1. On May 7, 1998, James Richard Kolikas obtained a decree of divorce from Dora Jean Kolikas in Marshall County, Mississippi. On January 8,1999, Ms. Koli-kas obtained a decree of divorce from Mr. Kolikas in North Carolina. Ms. Kolikas has appealed the order of the Marshall County Chancery Court which held that the divorce obtained by Mr. Kolikas in Mississippi was valid and the North Carolina decree was not entitled to full faith and credit, and asserts the following issues, which we quote verbatim from her brief: \\\"(1) Did the trial court commit reversible error in holding that the judgment of divorce entered by the Chancery Court of Marshall County, Mississippi is valid and binding on Dora J\\u00e9an Kolikas, even though the judgment was obtained without any process ever being served upon Dora Jean Kolikas, either personally or by publication? (2) Did the trial court commit reversible error in holding that the North Carolina divorce judgment was not entitled to full faith in the State of Mississippi, and by failing to decree the registration of such North Carolina divorce judgment?\\\"\\nFACTS\\n\\u00b6 2. Dora Jean Kolikas and James Richard Kolikas were married on March 26, 1971, in Fairfax, Virginia. The parties had one child, James Kolikas, born January 6, 1973, who is now an adult. In 1992, the parties resided in Wilmington, North Carolina. In July 1997, the parties separated. Mr. Kolikas left the marital home in North Carolina and moved to Byhalia, Mississippi.\\n\\u00b6 3. On February 20, 1998, Mr. Kolikas filed a complaint for divorce in the Chancery Court of Marshall County, Mississippi on the grounds of habitual cruel and inhuman treatment, and alternatively, irreconcilable differences. In the complaint, Mr. Kolikas asserted that Ms. Kolikas was a non-resident of Mississippi who resided at 7308 Chase Lane, Wilmington, North Carolina 28405. Mr. Kolikas published a summons to Ms. Kolikas in a Marshall County newspaper, but provided no further notice to her.\\n\\u00b6 4. In March 1998, Mr. Kolikas signed an authorization to disburse to Ms. Kolikas the proceeds from the sale of their North Carolina home.\\n\\u00b6 5. On April 6, 1998, Ms. Kolikas filed a complaint for divorce in the General Court of Justice District Court Division of New Hanover County, North Carolina. Mr. Kolikas took no action to defend the case in North Carolina.\\n\\u00b6 6. On May 7, 1998, Mr. Kolikas was granted a divorce in the Chancery Court of Marshall County, Mississippi. Mr. Kolikas testified that a copy of the divorce decree was faxed to Ms. Kolikas' attorney the following day. Mr. Kolikas stated that he mailed a copy of the divorce decree to Ms. Kolikas. Ms. Kolikas immediately responded by sending the document back saying \\\"it wasn't worth the paper it was written on.\\\"\\n\\u00b6 7. On May 11, 1998, the North Carolina court ordered Mr. Kolikas to pay $2,644 per month as post-separation support and attorney's fees in the amount of $360. A copy of this order is listed on the sheriffs return of service as having been served on Mr. Kolikas on May 18, 1998.\\n\\u00b6 8. On July 18, 1998, Mr. Kolikas married Reba (his first wife). Ms. Kolikas sent a card to the couple acknowledging their re-marriage.\\n\\u00b6 9. In August 1998, a contempt order and order for the arrest of Mr. Kolikas was entered for failure to pay the amounts ordered by the North Carolina court. The sheriffs return attached to this document listed it as having been served on Mr. Kolikas on June 30,1998.\\n\\u00b6 10. On January 8, 1999, Ms. Kolikas was granted a judgment of divorce in North Carolina. Under the North Carolina judgment, Mr. Kolikas was ordered to pay Ms. Kolikas $2,000 per month as permanent alimony to begin on February 1,1999 and $500 in attorney's fees.\\n\\u00b6 11. On December 7, 1999, Ms. Kolikas filed a petition with the Marshall County Chancery Court for registration of a foreign decree. On December 23, 1999, Mr. Kolikas filed his response to the petition and filed a motion for relief from judgment pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. On January 10, 2000, Ms. Kolikas responded to this motion. The chancellor heard testimony on those matters in February of 2000. At the close of the hearing, the chancellor requested that both parties submit briefs to the court for further review of the matter.\\n\\u00b6 12. After receipt of the additional briefs on June 16, 2000, the chancellor sustained Ms. Kolikas' petition for registration of a foreign order, after which Mr. Kolikas filed a motion to alter or amend findings of fact and a motion for stay on June 26, 2000. On July 5, 2000, Mr. Koli-kas supplemented this petition with an affidavit by Tracy Russell (Ms. Kolikas' natural daughter) which stated that Ms.. Kolikas was informed of the pending divorce proceeding in Mississippi. That as a result of that knowledge, she had requested that Mr. Kolikas insure that her maiden name was restored. On July 10, 2000, Ms. Kolikas moved to strike the affidavit as improper and for failure to file within ten days of judgment pursuant to M.R.C.P. 59(e).\\n\\u00b6 13. The chancellor heard the various motions on August 11, 2000, and on August 22, 2000, entered an order which set aside the court's prior order dated June 16, 2000, sustaining the petition for registration of a foreign decree, and found that Ms. Kolikas was estoppel from questioning the validity of the Mississippi divorce. The chancellor denied Ms. Kolikas' motion for relief from judgment pursuant to M.R.C.P. 60(b), and the motion to strike the affidavit of Tracy Russell. The order declined to give full faith and credit to the North Carolina decree, and relieved Mr. Kolikas of the burden of complying with the North Carolina divorce decree.\\nISSUES AND ANALYSIS\\nSTANDARD OF REVIEW\\n\\u00b6 14. In reviewing a domestic relations case, a chancellor's factual findings will not be disturbed unless the court's actions were manifestly wrong, the court abused its discretion, or applied an erroneous legal standard. Wright v. Wright, 737 So.2d 408(\\u00b65) (Miss.Ct.App.1998). For questions of law, our standard of review is de novo. McCubbin v. Seay, 749 So.2d 1127(\\u00b6 5) (Miss.Ct.App.1999).\\nI.\\nDid the trial court commit reversible error in holding that the judgment of divorce entered by the Chancery Court of Marshall County, Mississippi is valid and binding on Dora Jean Kolikas, even though the judgment was obtained without any process ever being served upon Dora Jean Kolikas, either personally or by publication?\\n\\u00b6 15. Ms. Kolikas contends that the chancery court committed reversible error by holding that the divorce judgment in Mississippi was valid and binding on her even though it was obtained without proper service of process. Ms. Kolikas was a non-resident of Mississippi, upon whom service of process was attempted pursuant to Rule 4(c)(3)(A) & (C) of the Mississippi Rules of Civil Procedure. Rule 4(c)(3)(A) & (C) of the Mississippi Rules of Civil Procedure requires the following:\\n(A) If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized, by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affi davit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.\\n(C) It shall be the duty of the clerk to hand the summons to the plaintiff or petitioner to be published, or, at his request, and at his expense, to hand it to the publisher of the proper newspaper for publication. Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant, (emphasis added)\\n\\u00b6 16. The rules on service of process are to be strictly construed. Birindelli v. Egelston, 404 So.2d 322, 323-24 (Miss.1981). If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition. American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545(\\u00b6 7) (Miss.Ct.App.2000).\\n\\u00b6 17. If a defendant does not voluntarily appear to a cause against him, he cannot be gotten into court except in the manner laid down by law. He is under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law. Burns v. Burns, 133 Miss. 485, 491, 97 So. 814, 815 (1923). Mr. Kolikas published a summons by publication in Mississippi, but neither he nor the chancery clerk attempted to provide Ms. Kolikas any further notice of the complaint for divorce. Mr. Kolikas listed Ms. Kolikas' physical address in his complaint. He contends that, because he listed her address in the complaint, he complied with the requirements of the above mentioned rules.\\n\\u00b6 18. The chancellor properly determined that service of process had not been effected under Rule 4(c)(3)(A) & - (C). While finding a lack of process, the chancellor, in reliance on Scribner v. Scribner, 556 So.2d 350 (Miss.1990), held that Ms. Kolikas was estopped from challenging the court's jurisdiction.\\n\\u00b6 19. The chancellor's reliance on Scribner was misplaced. While it is true that the Mississippi Supreme Court estopped Patsy Scribner from contesting the issue of jurisdiction, it did so because she had taken an affirmative action in reliance on the validity of the divorce decree. That affirmative action was to get married. Scribner, 556 So.2d at 353.\\n\\u00b6 20. There is nothing in the record before this Court which shows any affirmative action taken by Ms. Kolikas in reliance on the validity of the Mississippi divorce. This reason is therefore an insufficient basis upon which to estop her from contesting jurisdiction.\\n\\u00b6 21. Likewise, there is nothing in the record which suggests that Ms. Kolikas caused Mr. Kolikas to rely on the Mississippi divorce to his detriment. Mr. Koli- kas was the moving force behind the Mississippi divorce and was accordingly responsible for its proper prosecution.\\n\\u00b6 22. The record does reflect that, upon receipt of a copy of the divorce decree, Ms. Kolikas immediately expressed to Mr. Ko-likas her belief that the Mississippi decree was invalid.\\n\\u00b6 23. Estoppel requires that the party to be estopped (1) have acted affirmatively in reliance on the validity of the decree, and (2) to have caused the other party to detrimentally rely upon the validity of the decree. Kelly v. Shoemake, 460 So.2d 811, 823 (Miss.1984). Neither of those things is present in this case.\\n\\u00b6 24. The dissent suggests that Mr. Ko-likas' bigamous marriage is the fault of Ms. Kolikas and should therefore preclude her attack upon the validity of the Mississippi decree. Such a suggestion has no basis in fact or reason. Mr. Kolikas, in consultation with his attorney, chose what actions to take in pursuit of a divorce. As such, it was his obligation, not that of Ms. Kolikas, to ensure that his actions complied with the appropriate statutes and court rules. He did not do so, and cannot place the blame for this failure upon Ms. Kolikas.\\n\\u00b6 25. Nor has Mr. Kolikas presented substantial credible evidence that Ms. Ko-likas benefitted in reliance upon the divorce decree.\\n\\u00b6 26. There is some suggestion that Ms. Kolikas obtained property as a result of the Mississippi decree. However, nowhere in the Mississippi decree does it specifically identify any property to be received by Ms. Kolikas as a result of the Mississippi decree, nor is there any written documentation of any benefit agreed to in anticipation of divorce.\\n\\u00b6 27. The lack of written documentation of benefits agreed to in anticipation of divorce cannot be discounted. One of the grounds for divorce cited by Mr. Kolikas was irreconcilable differences, pursuant to \\u00a7 93-5-2 of the Mississippi Code Annotated (Rev.1994). There are several requirements of \\u00a7 93-5-2 which touch upon the suggestion of an agreed benefit accruing to Ms. Kolikas as a result of the divorce.\\n\\u00b6 28. First, \\u00a7 93-5-2 requires personal service or a written waiver of process.\\n\\u00b6 29. Second, it requires that the parties execute a written agreement as to property division, or in its absence, they by written agreement consent to a division of property by the court.\\n\\u00b6 30. There is nothing in the record to document the existence of any of these required written agreements. At all times Mr. Kolikas was represented by counsel. There is no reason to believe that Mr. Kolikas' counsel was unaware of the requirement for a written property division agreement.\\n\\u00b6 31. The failure to obtain such an agreement, would tend to belie the suggestion that there was an agreed division of property in anticipation of divorce, and render infirm, the suggested basis for es-toppel.\\n\\u00b6 32. Proper service upon a non-resident defendant requires that notice be published and, a copy of the summons and complaint mailed to the defendant's last known address. While there was publication there was no mailing. Process is not complete until a copy has been mailed. Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992). The chancery court had not acquired personal jurisdiction over Ms. Kolikas due to lack of proper service of process based on the Mississippi Rules of Civil Procedure previously mentioned. Accordingly, we reverse and remand this case to the Marshall County Chancery Court for further proceedings consistent with this holding.\\nII.\\nDid the trial court commit reversible error in holding that the North Carolina divorce judgment was not entitled to full faith in the State of Mississippi, and by failing to decree the registration of such North Carolina divorce judgment?\\n\\u00b6 38. Ms. Kolikas contends that the chancery court committed reversible error by holding that the North Carolina divorce judgment was not entitled to full faith and credit in Mississippi and by failing to decree the registration of the North Carolina divorce judgment. In the court's order on rehearing denying petition for registration of foreign order, the chancellor determined that:\\n\\\"[T]he evidence shows that Dora Jean was certainly aware of the divorce proceedings in Mississippi and even relied upon them to obtain the proceeds from the sale of the couple's home as well as all other property in North Carolina. Therefore, based on the case of Scribner v. Scribner, 556 So.2d 350 (Miss.1990), Dora is estopped from asserting that the Mississippi Divorce Decree is invalid since she relied upon it . [T]his Court must find that Dora, having relied upon the Mississippi divorce decree to obtain North Carolina marital property and the restoration of her maiden name, is es-topped to deny the validity of the Mississippi Divorce Decree.\\\"\\nThe chancellor further determined that the North Carolina court was not advised about the Mississippi divorce decree nor the fact that Ms. Kolikas had received in excess of $19,000 from the sale of the North Carolina marital property prior to entering its orders and judgments. The chancellor found that \\\"the North Carolina orders and judgment for post separation support and alimony were based on, at best, incomplete representations to the North Carolina court and thus are not entitled to full faith and credit in the State of Mississippi....\\\"\\n\\u00b6 34. Article IV, \\u00a7 1 of the United States Constitution requires that full faith and credit be given to the judicial proceedings of sister states. However, those proceedings are only entitled to full faith and credit where the rendering court properly has subject matter and personal jurisdiction. Cappaert v. Walker, Bordelon, Hamlin, Theriot and Hardy, 680 So.2d 831, 834 (Miss.1996).\\n\\u00b6 35. Mr. Kolikas raised the issue of lack of jurisdiction by the North Carolina court. The chancellor did not address this issue, finding it by inference to be unnecessary. However, our disposition of this case requires that a determination be made as to the existence of proper jurisdiction by the North Carolina court.\\n\\u00b6 36. There is evidence in the record that Ms. Kolikas attempted to have Mr. Kolikas served with the complaint and summons for the North Carolina divorce action. The summons with attached complaint was issued on April 14, 1998, and sent to the Marshall County Sheriffs Department by Ms. Kolikas' attorney with a request that it be served upon Mr. Kolikas. It appears that Ms. Kolikas may have attempted service pursuant to North Carolina Rule of Civil Procedure 4(j)(l)(a), which provides:\\n(j) Process \\u2014 Manner of Service to Exercise Personal Jurisdiction. In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided .in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:\\n(1) Natural Person. Except as provided in subsection (2) below, upon a natural person by one of the following:\\n(a) By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.\\n\\u00b6 37. The testimony regarding service of process is murky. Marshall County Deputy Sheriff Walter Bell, whose signature appears upon the proof of service, indicated he was unable to say that he had served notice of the North Carolina divorce proceedings upon Mr. Kolikas. He indicated that it was possible he might have given the documents to someone other than Mr. Kolikas.\\n\\u00b6 38. Mr. Kolikas testified that his job kept him away from home, and Deputy Bell had not served him with notice of the North Carolina divorce. He did acknowledge that Deputy Bell had arrested him suggesting this to be his only official contact with Deputy Bell.\\n\\u00b6 39. Mr. Kolikas' grandson testified that while visiting the home one day when his grandparents were away, he was served some papers by the Marshall County Sheriffs office for Mr. Kolikas, his grandfather. While uncertain as to the year, he recalls that it was in the spring of the year, which is when the North Carolina divorce papers were supposedly served. He also noted that these papers were not given to Mr. Kolikas.\\n\\u00b6 40. If in fact the summons and complaint were served upon the grandson, process was improper because North Carolina Rules of Civil Procedure allow process to be left with a resident of the.home, but not a visitor.\\n\\u00b6 41. Because this Court finds that the Chancery Court of Marshall County lacked sufficient process to grant Mr. Kolikas' divorce and the issue of the jurisdiction of the North Carolina court was not addressed, it deems it appropriate to reverse and remand this issue.\\n\\u00b6 42. Upon remand, Mr. Kolikas can have the opportunity to attain proper service upon Ms. Kolikas, or if necessary, establish the lack of jurisdiction of the North Carolina court.\\n\\u00b6 43. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED FOR SUCH FURTHER PROCEEDINGS AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.\\nBRIDGES, THOMAS, LEE, IRVING, AND MYERS, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., AND BRANTLEY, J. McMILLIN, C.J., NOT PARTICIPATING.\"}"

miss/11536838.json

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+"{\"id\": \"11536838\", \"name\": \"Jeffrey JONES a/k/a Jeffrey Earl Jones a/k/a Jeff Jones, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Jones v. State\", \"decision_date\": \"1999-07-20\", \"docket_number\": \"No. 97-KA-00781-COA\", \"first_page\": \"476\", \"last_page\": \"486\", \"citations\": \"754 So. 2d 476\", \"volume\": \"754\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:46:09.482754+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE KING, P.J., BRIDGES, AND LEE, JJ.\", \"parties\": \"Jeffrey JONES a/k/a Jeffrey Earl Jones a/k/a Jeff Jones, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Jeffrey JONES a/k/a Jeffrey Earl Jones a/k/a Jeff Jones, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 97-KA-00781-COA.\\nCourt of Appeals of Mississippi.\\nJuly 20, 1999.\\nRehearing Denied Oct. 26, 1999.\\nCertiorari Denied Jan. 27, 2000.\\nThomas M. Fortner, Robert M. Ryan, Andre\\u2019 De Gruy, Jackson, Attorneys for Appellant.\\nOffice of the Attorney General by Charles W. Maris, Jr., Attorney for Appel-lee.\\nBEFORE KING, P.J., BRIDGES, AND LEE, JJ.\", \"word_count\": \"5440\", \"char_count\": \"32901\", \"text\": \"BRIDGES, J.,\\nfor the Court:\\n\\u00b6 1. Appellant Jeffrey Jones and his co-defendant, Daryl L. Naylor, were indicted for \\\"wilfully, unlawfully, feloniously and knowingly possessing] cocaine with intent to distribute same\\\" by a Hinds County grand jury. The indictment was later amended to reflect an enhancement to the crime charged because Jones had three firearms in his possession at the time of the alleged offense. A jury in the Circuit Court of the First Judicial District of Hinds County found Jones guilty as charged, and the judge sentenced him to fifteen years in the custody of the Mississippi Department of Corrections, with twelve years suspended, three years to serve, and three years of supervised probation.\\n\\u00b6 2. Jones appeals, presenting for our review three assignments of error:\\n1. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR BY ALLOWING DETECTIVE STEVE RENFROE TO RENDER EXPERT TESTIMONY BEFORE THE TRIAL- JURY WITHOUT HAVING BEEN OFFERED, TENDERED OR ACCEPTED AS AN EXPERT IN ANY FIELD IN VIOLATION OF RULE 702, MISSISSIPPI RULES OF EVIDENCE.\\n2. THE TRIAL COURT ERRED IN REFUSING TO QUASH THE JURY VENIRE WHERE EIGHTEEN OF THE THIRTY-EIGHT MEMBERS HAD CLOSE TIES TO THE PROSECUTION.\\n3. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN A CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE.\\n\\u00b6 3. We resolve these issues adversely to Jones and affirm the jury's verdict.\\nI. FACTS\\n\\u00b64. We recite the facts from the perspective consistent with the verdict.\\n\\u00b6 5. On December 19, 1995, police entered Jones's home at 2311 Woodlawn Street for the purpose of executing a search warrant for controlled substances. As officers approached the house intending to surprise the occupants and prevent disposal of evidence, they noticed a person peering from the window and realized that they had been observed. Four officers charged through the back door at the same time that four officers entered the front door, and the officers loudly identified themselves as police officers.\\n\\u00b6 6. Upon entering, officers at the rear of the house heard the sound of a toilet flushing. Detective Steve Wilson entered the bathroom where he found Naylor, fully clothed, standing in the bathtub. Jones, wearing only underwear, seemed to be trying to flush the contents of a plastic bag in the toilet. As Detective Wilson attempted to move Jones away from the toilet, Jones jumped toward a window above the tub. Detective Wilson stepped into the bathtub to try to prevent Jones from tossing the plastic bag out of the window. He then instructed Officer Steve Renfroe to go outside and retrieve the bag. Meanwhile, Officer Richard Nations entered the bathroom and assisted Detective Wilson in securing the suspects. At some time during that effort, the shower was activated, and the four men in the bathtub were drenched with water.\\n\\u00b6 7. From the ground outside the window, Sergeant Renfroe recovered a soggy plastic bag containing a white substance. During a thorough search of the residence, officers recovered a cable bill confirming Jones as the occupant of the residence; two loaded handguns; a shotgun; ammunition for the three weapons; two sets of walkie talkies; a metal detector; cash money; and scales. The substance in the plastic bag recovered by Sergeant Renfroe was determined to be crack cocaine.\\nII. TRIAL\\nA. PRE-TRIAL MOTIONS\\n\\u00b6 8. Prior to trial, the defendants moved to dismiss the indictment, asserting that the enhancement language resulted from prosecutorial vindictiveness after the defendants refused to accept a plea bargain, and a motion in limine to prevent the prosecution from mentioning that officers recovered guns from the residence. The motions were overruled. The defense moved to prohibit the prosecution from presenting evidence about a confidential informant, and the court overruled the motion but reserved further ruling on the issue until the prosecution sought to adduce that evidence.\\n\\u00b6 9. The co-defendants requested additional peremptory challenges, asserting that requiring them to agree upon only six was unconstitutional. The court overruled that motion as well as Jones's motion to sever. The court sustained Jones's motion in limine to exclude evidence of other alleged crimes regarding a possibly stolen weapon and possession of drug paraphernalia by an unnamed occupant of Jones's house at the time of the search. However, the court noted that the State might be allowed to present such evidence if it became an integral part of the proof.\\nB. JURY SELECTION\\n\\u00b6 10. In a bench conference after the court's initial voir dire, Jones moved to quash the jury panel on the grounds that the potential jurors might be confused by one venire member's statement that her brother was convicted of a similar crime and sentenced to two years' incarceration. Noting that the defendants could be sentenced to as long as sixty years, Jones asserted that the jurors might not take their responsibility seriously enough. The motion was overruled.\\n\\u00b6 11. During voir dire, the defense asked the venire about connections to law enforcement. Five potential jurors were previously or currently law enforcement officers. Five others had close relatives who were in law enforcement. Several members of the venire noted that they knew people in the police department, sheriffs office, the Federal Bureau of Investigation, or the Internal Revenue Service. One venire member explained that, as a city official, she voted on the salaries of all employees of the City of Jackson. When asked whether they could be fair in the case in spite of law enforcement connections, the venire members collectively indicated that they could be fair.\\n\\u00b6 12. The defense also asked whether any potential jurors were related to someone in the field of prosecution. One person had a cousin in a district attorney's office, and one person had a daughter who interned in a district attorney's office in Georgia. One venire member was a lawyer but not a prosecutor, and several others were employed by, or related to, non-prosecutor lawyers.\\n\\u00b6 13. Citing Mhoon v. State, 464 So.2d 77 (Miss.1985), Jones moved to have the veni-re quashed because he estimated that eighteen of the thirty-eight potential jurors had close ties to law enforcement. The court overruled the motion and proceeded with jury selection. The defendants objected that they should not be required to agree on peremptory challenges. After the court noted that the defendants only used five of the six peremptory challenges allowed, Jones explained that using the sixth strike would have brought up another juror whom they wanted to challenge.\\n\\u00b6 14. The court consulted the attorneys to be sure that the defendants were informed of the plea bargain offer, the maximum sentence of sixty years, and the requirement that they serve eighty-five per cent (85%) of the sentence. The jury was seated. During the State's opening argument, the defense objected on the grounds of relevancy to the State's reference to the firearms and drug paraphernalia recovered inside Jones's house. Because the drug paraphernalia supposedly did not belong to either defendant, Jones moved for a mistrial. The motion was overruled.\\nC. THE STATE'S CASE\\n\\u00b6 15. Officer Steve Wilson, a detective with the Jackson Police Department assigned to the Jackson-Hinds Drug Enforcement Unit, testified that a city search warrant was obtained based upon information that controlled substances could be found in Jones's residence. After a team was assembled to execute the warrant, the officers divided into two groups. Detective Wilson, Officer Richard Nations, Sergeant Steve Renfroe, and Officer John Norman were assigned to enter the house through the rear door while Officers Amundson, McGowan, Cox, and McCurley would enter the front door. The officers would try to take the inhabitants by surprise so that they would have no opportunity to destroy contraband or to arm themselves. By entering both doors simultaneously, the officers could secure the inhabitants quickly and prevent them from exiting the house.\\n\\u00b6 16. Detective Wilson said that the inhabitants of Jones's house became aware that the police were approaching when an individual looked out the front window. According to standard procedure, the officers announced their purpose upon entering the residence. As he entered, Detective Wilson heard \\\"what sounded like a toilet flushing\\\" and suspected that contraband was being destroyed. He pushed open the partially closed door to the bathroom and observed the suspects. Naylor, fully clothed, was jumping into the bathtub behind the partially drawn curtain, and Jones, wearing only his underwear, was kneeling on the floor in front of the toilet. Detective Wilson described the scene as follows:\\nHe [Jones] had his right hand in the toilet shaking a plastic bag. He had his left hand on the handle trying to make the toilet flush, and the toilet tank hadn't filled back up with water from when I heard it flush the time before, therefore, it wouldn't flush, and he was just shaking the handle and shaking the bag in the toilet like this.\\n\\u00b6 17. Detective Wilson said that he tried to pull Jones away from the toilet, but Jones \\\"continued to try to flush the commode and shake the bag.\\\" When Detective Wilson pushed him away from the toilet, Jones jumped into the bathtub toward the open window, and Detective Wilson tried to pull Jones away from the window by his necklace. Jones \\\"stuck his hand through the window and dropped the plastic bag out the window that he had been trying to shake [loose] in the toilet.\\\"\\n\\u00b6 18. As Officer Nations helped him restrain the subjects, Detective Wilson instructed Sergeant Renfroe to go outside and retrieve the plastic bag from under the window, which was seven or eight feet above the ground. Sergeant Renfroe yelled from outside when he recovered the bag and returned with the plastic bag which Detective Wilson described as \\\"full of water as if it had come out of the toilet.\\\" It contained a white substance that appeared to be soggy crack cocaine. Detective Wilson explained that while he, Officer Nations, and the two defendants were in the bathtub, \\\"water started pouring down out of the shower, but that was after the bag had been dropped out the window.\\\"\\n\\u00b6 19. Detective Wilson described the layout of the house and said that the officers secured three people in the house besides Jones and Naylor. Detective Wilson identified the .380 from Davis Industries, the .88 Taurus, and the 12-gauge Mossburg shotgun which were recovered from the bedroom during the search. Specifically, the shotgun was found under the bed, and the .38 caliber Taurus was under a roll-away bed mattress at the head of the bed. Detective Wilson identified the ammunition for the three guns and testified that the handguns were loaded. He found a wallet in the bedroom closet which included Naylor's identification, and other officers recovered identification from Jones. Detective Wilson identified the defendants as the two subjects who were apprehended.\\n\\u00b6 20. On cross-examination, Detective Wilson said that the officers entered the house with their weapons drawn and that he aimed his gun at Naylor in the bathtub as he was trying to prevent Jones from dropping the plastic bag out of the window. He did not recall seeing Mr. Naylor holding any hair clippers. He clarified that the ammunition for the shotgun was recovered from a car outside the house. In response to Jones's inquiry, Detective Wilson stated that he had been working in narcotics \\\"[o]ff and on for about twelve years.\\\" After Jones asked Detective Wilson's to answer, based upon his experience, questions about crack cocaine, Detective Wilson explained that crack can be sold by rock size or by weight.\\n\\u00b6 21. Detective Wilson detailed that the officers conducted the search about 12:30 p.m. when there was plenty of light. He noted that the inventory list of items recovered from the house did not include any hair clippers. He testified that the scales removed from the house were commonly used by narcotics users and dealers and that other items recovered could also be characterized as \\\"tools of the narcotics trade.\\\"\\n\\u00b6 22. The State called Sergeant Steve Renfroe. He stated that he had been with the Jackson Police Department for almost twenty years and that he spent the last six years as a narcotics officer. His testimony regarding the approach to the house was substantially similar to Detective Wilson's account, and he also identified the defendants as the individuals secured in the bathroom. He recalled recovering the plastic \\\"bag of what appeared to be crack cocaine dripping with water, and he identified the bag. He described the area under the window where he located the bag as \\\"packed down, raw dirt\\\" like a path with heavy foot traffic.\\n\\u00b6 23. Sergeant Renfroe explained that he recorded each item recovered, where it was found, and which officer found it. He identified two Motorola walkie-talkies and two Radio Shack walkie-talkies found in a bedroom dresser and explained that they are common items used by narcotics vendors to allow a \\\"lookout\\\" to communicate with the dealer as he is selling drugs. Sergeant Renfroe identified the scales recovered from the kitchen and described the scales as \\\"the most elementary, basic, essential tool of narcotics transactions.\\\"\\n\\u00b6 24. Sergeant Renfroe identified a cable bill addressed to Jones at the address that was searched. He identified the Garrett metal detector that was recovered from Jones's home and testified that such devices are commonly used to detect weapons by waving it over the body and that drug dealers use such devices to screen people for weapons or communications devices as they enter a drug sale location. He specified that the particular metal detector in evidence was on the couch in the front room of the house. During cross-examination, Sergeant Renfroe noted that they only recovered things that might be connected with possession or trafficking of drugs and that he would not have recovered hair clippers or anything that does not have evidentiary value.\\n\\u00b6 25. Detective Richard Nations testified about his role in serving the search warrant. His account was substantially similar to those of the two officers who testified previously, and he also identified the defendants as the two suspects in the bathroom. He identified the $748 removed from Naylor's pocket at the police station, and he said that he also recovered $85 from a pair of jeans in the bedroom of the house, noting that it is common to find large sums of money when serving warrants like the one the officers served at Jones's residence. He testified that he did not think that the shower was running before he got into the bathtub with Detective Wilson and the two suspects.\\n\\u00b6 26. Finally, John Dial, a criminalist for the Jackson Police Department crime laboratory, testified regarding his testing of the white substance in the plastic bag. After being qualified as an expert, Dial explained his testing methods and described the difference between crack cocaine and powdered cocaine hydrochloride. He utilized a modified Scott test, infrared spectrometry, and an ion trap detector to determine that the sample was cocaine with a high moisture content.\\n\\u00b627. The State rested its case-in-chief. Naylor's motion for a directed verdict was overruled. Jones moved for a directed verdict asserting an absence of proof of intent to distribute and claiming that the State proved no more than simple possession. The court overruled the motion.\\nD. THE DEFENSE'S CASE\\n\\u00b628. Naylor's co-defendant presented one witness, Naylor's aunt, who testified that she asked Naylor to hold $750 for her the day before the search. Naylor did not testify.\\n\\u00b6 29. After Naylor rested his case, Jones presented his own testimony in his defense. According to Jones, he was in the bathroom getting a haircut, and Naylor was holding the hair clippers when an officer came in, grabbed Jones, and threw him to the floor. Jones said that an officer kept instructing him to \\\"spit it out,\\\" hitting him, and kicking him. He claimed that the beating resulted in a damaged nerve in his mouth and that he and Naylor were never in the bathtub.\\n\\u00b6 30. Jones explained that he used the scales that were confiscated to weigh jewelry when he worked at a pawn shop, and he said that a friend who was a security guard, Anthony Adams, left the metal detector at Jones's house after he stayed with him for a while. Jones testified that he bought the Mossburg shotgun at a pawn shop two or three months prior to the search and that it was still in the box with no butt assembled to the gun when officers recovered it. He bought the Radio Shack walkie-talkie set at the mall just \\\"for fun,\\\" and he found the non-functional Motorola walkie-talkies in the other side of his duplex with no battery pack.\\n\\u00b6 31. On cross-examination, Jones explained that he did not present Anthony Adams as a witness because he \\\"didn't know they were going to try to bring it up like that.\\\" He testified that he bought the Mossburg for self-defense and that the receipt was in the box which the officers confiscated. Jones admitted that he had no evidence of the beating except that Naylor saw it occur and that his lip was swollen at the time. After acknowledging that his lip did not appear to be swollen in the photograph taken at the police station, Jones said that he adjusted his mouth so that the swelling was not obvious in the picture. He never filed a complaint about the beating or sought treatment for his alleged injury.\\n\\u00b6 32. Jones asserted that the officers testified falsely because they found no evidence in his home. He said that the officers actually took the plastic bag, which contained only salt, from his kitchen cabinet. When pressed on the question of whether the officers lied, Jones responded, 'Well, they were wrong. They were wrong. They told me . not to just say police officers are lying, so, you know, I don't want to say that.\\\" He explained that \\\"they\\\" meant his family and his lawyer.\\n\\u00b6 33. The defense rested. The defendants renewed their motions for directed verdicts which were again denied. After instructions were read to the jury, the parties presented closing arguments, during which Jones addressed the jury.\\nE. THE VERDICT AND POST-TRIAL MOTIONS\\n\\u00b6 34. The jury found both defendants guilty as charged with possession of cocaine with intent to distribute. The judge rendered sentences after reviewing pre-sentence reports and hearing character witnesses. Jones was sentenced to fifteen years, with twelve years suspended, three years to serve in the custody of the Mississippi Department of Corrections, and three years of supervised probation.\\nIII. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES\\n\\u00b6 35. We will address Jones's issues in the order in which they arose during the proceedings below.\\nA. Did the trial court err in refusing to quash the jury venire where members had ties to the prosecution?\\n\\u00b6 36. Jones relies on the decision of Mhoon v. State, 464 So.2d 77 (Miss.1985), in asserting that the venire presented a \\\"statistical aberration\\\" requiring reversal. In Mhoon, twelve of the thirty-nine potential jurors were policemen or were related by blood or marriage to a current or former police officer. Id. at 80. Of those twelve, six sat on the jury after, and the jury foreman was a uniformed policeman. Id. at 82. The Mhoon court noted that the judge could have allowed additional peremptory challenges, increased the size of the venire, or sustained challenges for cause in order to diminish the prejudicial effect of a venire with so many ties to law enforcement. Id. at 81.\\n\\u00b6 37. Although Jones asserts in his statement of this issue that many of the potential jurors had close ties to the prosecution, he argues that many jurors had ties to law enforcement. By Jones's count, eighteen members of the venire claimed close ties with law enforcement; however, we find in the record only ten potential jurors who were in law enforcement or were related to law enforcement officers. Some venire members mentioned that they knew someone in the police department or the sheriffs office, but they were not related. The potential jurors collectively affirmed that they could be fair in this case in spite of connections to law enforcement.\\n\\u00b6 38. The case at hand is further distinguishable from Mhoon. Of the ten potential jurors with \\\"close ties\\\" to law enforcement, only two served on the jury, as opposed to six in Mhoon. Id. at 80. One juror in the present ease had a brother who was a police officer in another state, and one worked for the Mississippi Department of Corrections. Also, the defense used only five of its six peremptory challenges, whereas the defense in Mhoon used every peremptory challenge. Id.\\n\\u00b6 39. The term \\\"law enforcement\\\" was applied in the present case to police officers, corrections officers, campus police officers, security guards, sheriffs deputies, highway patrol officers, volunteer sheriffs, FBI agents, and IRS agents. Given the breadth of the term \\\"law enforcement\\\" as it was applied during voir dire in the case sub judice, it would be difficult to find a venire without several close ties to \\\"law enforcement.\\\" As noted in Shell v. State, 554 So.2d 887, 891 (Miss.1989) rev'd on other grounds in Shell v. Mississippi 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), \\\"The [Mhoon ] Court was careful to point out . that the mere presence of law enforcement officials in a jury pool was not per se improper, provided the prospective juror was otherwise qualified and was not peremptorily struck by either party.\\\"\\n\\u00b6 40. Distinguishing this case from Mhoon v. State and opining that Jones was not .denied an impartial jury, we affirm the trial court as to this issue.\\nB. Did the trial court commit reversible error by allowing Detective Steve Renfroe to render expert testimony without having been tendered or accepted as an expert in violation of Rule 702, Mississippi Rules of Evidence?\\n1. Standard of Review\\n\\u00b6 41. Rulings regarding the admission or suppression of evidence are within the broad discretion of the trial judge and will not be reversed absent an abuse of that discretion. Sumrall v. Mississippi Power Co., 693 So.2d 359, 365 (Miss.1997).\\n2. Analysis\\n\\u00b6 42. Typically, if a defendant fails to timely object to an issue at trial, the issue is waived for appeal. Cavett v. State, 717 So.2d 722 (\\u00b6 21) (Miss.1998); Hall v. State, 691 So.2d 415, 418 (Miss.1997); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The trial court will not be held in error on a legal point that was never presented for its consideration. Chase v. State, 645 So.2d 829, 846 (Miss.1994). Jones failed to object at trial, but he raised this issue in his motion for j.n.o.v. the verdict or for new trial. He now seeks review of this issue as \\\"plain error.\\\"\\n\\u00b6 43. Although Jones asserts that Detective Renfroe presented expert testimony, we note that Detective Renfroe did not give an opinion as contemplated in Mississippi Rule of Evidence 702. Instead, he answered the questions based upon his experience as a narcotics officer. Detective Renfroe explained his determinations that certain evidence was relevant to the charges against the defendants and should be recovered during the search. He explained why the scales, the walkie-talkies, and the metal detector had evidentiary value. Similarly, Detective Wilson answered Jones's questions during cross-examination based upon his experience:\\nJONES'S ATTORNEY: How long have you been working in narcotics?\\nDETECTIVE WILSON: Off and on for about twelve years.\\nJONES'S ATTORNEY: Your experience in dealing with crack cocaine, the sale of crack cocaine, can you tell us crack cocaine is sold by the rock or the piece; is that correct?\\nJones also asked Detective Wilson whether, in his experience, he had observed instances in which crack cocaine was sold by weight.\\n\\u00b6 44. Detective Renfroe did not have to be qualified as an expert to testify regarding his personal knowledge. He testified about the walkie-talkies based upon his experience:\\nPROSECUTOR: Detective, during the course of your employment as a narcotics officer have you ever seen items like what's been marked State's Exhibits 10 and 11 [walkie-talkies] before?\\nDETECTIVE RENFROE: Many times.\\nPROSECUTOR: Do you have personal knowledge as to how those particular items are used in the furtherance of drug or narcotics distribution activities?\\nDETECTIVE RENFROE: Yes, I do. Most of the time these radios are used for communicating devices for lookout to the main body of the narcotics vendors.\\nPROSECUTOR: Would you characterize it as common or uncommon finding these types of items in a particular house where narcotics activity is present?\\nDETECTIVE RENFROE: I would say that these are very common items for the more sophisticated narcotics vendors.\\nDetective Renfroe responded to similar questions about hand-held scales and metal detectors, testifying regarding the personal knowledge which he gleaned from working as a narcotics officer.\\n\\u00b6 45. Discerning no plain error, we refrain from reversing the trial court, and we decide this issue adversely to Jones.\\nC. Was the evidence presented at trial insufficient to sustain a conviction for possession with intent to distribute?\\n1. Standard of Review\\n\\u00b6 46. On review, reversal on the issue of sufficiency of the evidence will only be permitted \\\"where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.\\\" Wetz v. State, 503 So.2d 803, 808 (Miss.1987). The reviewing court should review the trial court's ruling on the last occasion that the sufficiency of the evidence was challenged before the trial court. Id. at 808 n. 3. All credible evidence must be appraised in the light most favorable to the verdict and must be accepted as true. Id. at 808.\\n2. Analysis\\n\\u00b647. In the present case, Jones challenged the sufficiency of the evidence in his motions for a directed verdict and in his motion for judgment notwithstanding the verdict. On appeal, Jones asserts that the following standard of review applies:\\nTaking all of the credible substantive evidence as true, it cannot be said with any degree of certainty that a reasonable, fair minded and properly charged jury would not have acquitted Jones on the charge of possession of a controlled substance with the intent to distribute. The State failed to meet its burden of proof by proving each and every element of the charged offense beyond a reasonable doubt. Tait v. State, 669 So.2d 85, 88 (Miss.1996); Smith v. State, 646 So.2d 538, 542 (Miss.1994); May v. State, 460 So.2d 778, 781 (Miss.194[1984]); Glass v. State, 278 So.2d 384, 386 (Miss.1973).\\n\\u00b6 48. The appropriate standard requires that the court view all credible evidence in the light most favorable to the verdict and consider such evidence as true. Wetz, 503 So.2d at 808. (emphasis added). In contrast, Jones's purported standard would require the court to examine the evidence in the light most favorable to the defendant.\\n\\u00b649. In the record, we find evidence in the law enforcement officers' testimony which contradicts Jones's version of events during the execution of the search warrant and which contradicts Jones's explanation for the physical evidence recovered from his house. The Mississippi Supreme Court has explained that \\\"the testimony of a single witness is sufficient to sustain a conviction though there may be more than one witness testifying to the contrary.\\\" Nash v. State, 278 So.2d 779, 780 (Miss.1973); see Ragland v. State, 403 So.2d 146, 147 (Miss.1981). It is the function of the jury to resolve any conflicts in the evidence presented and to decide which witnesses seem more credible. Melton v. State, 723 So.2d 1156 (\\u00b6 30) (Miss.1998); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). As for the sufficiency of the evidence, \\\"[i]t is enough that the conflicting evidence presented a factual dispute for jury resolution.\\\" Id.\\n\\u00b6 50. Because the testimony in this case presented a factual dispute, and because the credible evidence viewed in the light most favorable to the verdict was sufficient to raise a jury question, we find that the evidence was sufficient to overcome the motions for directed verdict and judgment notwithstanding the verdict. Furthermore, we opine that reasonable and fair-minded jurors would not be required to find Jones not guilty.\\n2. Weight of the evidence\\n\\u00b6 51. Although Jones does not precisely address the weight of the evidence in stating his assertion of error, he suggests in his argument that the verdict was against the weight of the evidence. Therefore, we review the weight as well as the sufficiency of the evidence.\\n\\u00b6 52. After assessing the weight of the evidence, the trial court may, in its discretion, grant a new trial if it determines that a new trial is required in the interest of justice or if the verdict is contrary to law or the weight of the evidence. URCCC 10.05; Wetz, 503 So.2d at 812. The reviewing court will uphold the trial judge's decision unless convinced that the trial court abused its discretion. Wetz, 503 So.2d at 812. As the trial court evaluates whether the verdict is contrary to the overwhelming weight of the evidence, it must accept as true all evidence favorable to the verdict for the State. Turner v. State, 726 So.2d 117 (\\u00b629) (Miss.1998); Van Buren v. State, 498 So.2d 1224, 1229 (Miss.1986). Only if the jury's verdict is \\\"so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice\\\" should a new trial be granted. Wetz, 503 So.2d at 812; Malone v. State, 486 So.2d 360, 366 (Miss.1986); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).\\n\\u00b6 53. The State presented evidence that Jones was in the process of disposing of cocaine when the officers entered his home to serve the search warrant. Officers testified that Jones had a particular variety of items typically used in the drug trade and frequently recovered from narcotics dealers. The officers gave substantially similar accounts of the search, and the only testimony which contradicted the charge in the indictment was Jones's own testimony.\\n\\u00b6 54. On review, this Court finds that the verdict was not so contrary to the applicable law or the weight of the evidence that it results in \\\"unconscionable injustice.\\\" Therefore, we affirm the trial court's denial of the motion for new trial.\\nIV. CONCLUSION\\n\\u00b6 55. This Court observes that Jones was not denied an impartial jury and that the venire and jury in this case were distinguishable from that in Mhoon v. State upon which Jones relies. Furthermore, we detect no plain error in allowing Detective Renfroe to testify based upon his personal knowledge.\\n\\u00b6 56. Because the evidence presented a factual dispute for the jury to resolve, directed verdict and JNOV were properly denied. Likewise, the jury's verdict was not against the overwhelming weight of the evidence to such an extent that reversal was required to avoid unconscionable injustice, and the circuit court appropriately denied Jones's motion for new trial.\\n\\u00b6 57. Finding no merit to Jones's assignments of error, we affirm the verdict and sentence of the circuit court.\\n\\u00b6 58. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE TO FIFTEEN YEARS, WITH TWELVE YEARS SUSPENDED, THREE YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND THREE YEARS OF SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.\\nMcMILLIN, C.J., KING AND SOUTHWICK, P.JJ., DIAZ, IRVING, LEE, PAYNE, AND THOMAS, JJ., CONCUR.\\nMOORE, J., NOT PARTICIPATING.\\n. Jones testified in his defense that Naylor was using hair clippers to cut Jones's hair in the bathroom when the police entered the house.\\n. Only two potential jurors had arguably close ties to a prosecutor.\\n. The question of whether a verdict is against the overwhelming weight of the evidence arises when the party asserts that error in a motion for new trial. In his motion for JNOV, Jones contended, \\\"The verdict is decidedly and strongly against the weight of the evidence and is contrary to law and the principles of justice and equity.''\"}"

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+"{\"id\": \"11754666\", \"name\": \"Corwin TURNER a/k/a Corky Turner v. STATE of Mississippi\", \"name_abbreviation\": \"Turner v. State\", \"decision_date\": \"1998-08-06\", \"docket_number\": \"No. 96-KA-00957-SCT\", \"first_page\": \"117\", \"last_page\": \"132\", \"citations\": \"726 So. 2d 117\", \"volume\": \"726\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:37:55.575273+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PITTMAN, P.J., and BANKS and WALLER, JJ.\", \"parties\": \"Corwin TURNER a/k/a Corky Turner v. STATE of Mississippi.\", \"head_matter\": \"Corwin TURNER a/k/a Corky Turner v. STATE of Mississippi.\\nNo. 96-KA-00957-SCT.\\nSupreme Court of Mississippi.\\nAug. 6, 1998.\\nRehearing Denied Jan. 7, 1999.\\nRoy J. Farrell, Tupelo, for Appellant.\\nOffice of the Attorney General by Dewitt T. Allred, III, for Appellee.\\nBefore PITTMAN, P.J., and BANKS and WALLER, JJ.\", \"word_count\": \"8898\", \"char_count\": \"51272\", \"text\": \"PITTMAN, Presiding Justice,\\nfor the Court:\\n\\u00b6 1. Corwin \\\"Corky\\\" Turner was convicted by a jury in the Circuit Court of Lee County on August 22, 1996, of the crime of DUI resulting in death. On September 3, 1996, the trial judge sentenced Turner to a term of twenty years imprisonment. On September 5, 1996 Turner timely filed his Notice of Appeal after the trial court's denial of his Motion for JNOV or in the alternative for a new trial.\\nSTATEMENT OF THE FACTS\\n\\u00b6 2. The record reveals that on the morning of July 2, 1995, Rodney Sheffield and his wife, Sherrie, were traveling on Highway 6 toward Tupelo around 10:30 a.m. when they came upon a green pick-up truck weaving along the highway in such a manner that the Sheffields suspected the driver was impaired. Rodney followed the truck closely enough to take down the license plate number and to observe the three occupants of the truck. Rodney described the driver of the pick-up as having long, shoulder-length hair. He described the person seated in the middle of the pick-up as smaller than the driver. He thought this middle occupant could possibly be a child. Rodney gave no description of the third occupant who was seated in the passenger seat. Rodney testified that July 2, 1995 was a beautiful, clear day. Rodney followed the pick-up truck until it turned right onto Richmond Road, where it almost ran off the road. Rodney stopped at a small grocery store adjacent to Richmond Road where he saw a police car. He reported what he had seen to the officer. Rodney was unable to identify Turner, in court, as the driver of the pick-up truck.\\n\\u00b6 3. Sherrie Sheffield, Rodney's wife, also testified at trial. She testified that the driver of the pick-up appeared to be impaired, and that she saw the driver take a drink from a bottle as he drove. Sherrie described the driver as a \\\"white male\\\" with \\\"long hair that was unkempt, real wild-looking.\\\" She testified that she could only see the top of the head of the middle occupant, and that she did not remember anything unusual about the passenger side occupant. Sherrie was unable to identify Turner, in court, as the driver of the pick-up truck.\\n\\u00b6 4. James Stuard was the officer at the grocery store that the Sheffields spoke to. He was an officer with the Plantersville Police Department. Stuard got into his patrol car and advised the Lee County Sheriffs Department of the situation. The sheriffs department advised Stuard that they had no officers in the area, and asked him to leave his city limits and stop the vehicle. Stuard left in pursuit of the green pick-up truck. He testified that just as he got about four miles out of Plantersville, he saw dust flying in a curve. As he approached, he noticed that the vehicle matched the description given to him by the Sheffields. He also noticed that the green pick-up had collided with another vehicle. Stuard testified that he arrived on the scene of the accident at approximately 10:30 a.m.\\n\\u00b6 5. When Stuard arrived the pick-up was lying on the passenger side with the three occupants stacked on top of one another. One person was on bottom which was on the passenger side door, the second person was on top of him, and the third person was on top of the second. The individuals were not able to get out of the truck. Stuard testified that the three individuals in the pick-up were elbowing each other and shoving around. They could move their hands, but not their bodies. He described them as \\\"crammed in like sardines\\\", and stated there was very little room in the cab. The person in the middle of the stack was yelling, \\\"Get off of me, Corky.\\\" Stuard described the man with the \\\"scraggly hair and a beard\\\" as being on top of the pile, and closest to the steering wheel. Stuard recognized the individual who was closest to the steering wheel as Corky Turner. Stuard described Turner on that day as having shoulder length hair that was scraggly and unclean looking. He was unable to identify Turner in court saying, \\\"I couldn't recognize him right now. He would have to have his beard and his hair back to the way he had it that day for appearance. I cannot recognize him.\\\" Stuard testified that the top of the pick-up had to be cut off in order to remove the three individuals. Stuard noticed several beer cans in the cab and the back of the pick-up, as well as an opened bottle of vodka. When Stuard ran the tag number, he found that the green pick-up belonged to Terry Moore, who was one of the three individuals in the pick-up at the time of the accident.\\n116. Stuard checked on the occupants of the second vehicle and found that the passenger was conscious, but the driver was not. He checked the driver's pulse and found that he did not have one, nor was he breathing. The driver of the second vehicle was Randy West and the passenger was Betty West. Stuard was relieved at the scene as soon as the Lee County Sheriffs Department arrived.\\n\\u00b6 7. David Payne, who at the time was the fire chief of the Plantersville Fire Department, went to the scene of the wreck after hearing it reported on his radio. When he arrived at the scene, someone was doing chest compressions on Mr. West. Payne proceeded to the pick-up. He saw three individuals in the pick-up. He described their positions saying that, \\\"there was one halfway in, halfway out, and then there was two on\\u2014 completely on the inside of it.\\\" He described the individual that was halfway out of the truck as partially baldheaded. The one on top of him had darkish hair with a mustache, and the person on top had \\\"long, kind of light-colored hair and kind of a thin beard, kind of long.\\\" He had learned the names of the occupants of the truck. Payne testified that Leon was under the truck, Terry was in the middle, and Corky was on top. He stated that Terry kept talking to Corky. He was shouting, \\\"Corky, get off of me.\\\" Payne described Corky Turner as being the person closest to the steering wheel. Payne testified that the three individuals could not have rearranged themselves in the truck because they could barely move. Payne was unable to recognize Turner in court. Payne noticed several cans of beer, both full and empty, at the scene as well as an opened bottle of vodka.\\n\\u00b68. Sherry Riner, a volunteer with the Plantersville fire department, arrived on the scene at approximately 10:30 a.m. She testified that she went to the West's vehicle to help. Mr. West was unresponsive, and someone was performing CPR on him. She assisted with the CPR. When the medics arrived, she went to the pick-up truck where David Payne was working. She noticed that the three occupants of the truck were stacked on top of one another. She did not think that it would have been possible for the individuals to swap positions. She testified that the person on the bottom was bald, the one in the middle had dark hair, and the person on top \\\"was a tall, slender guy, sort of longish hair, scraggly beard, grayish hair .\\\" She also said that the guy in the middle kept calling the one on top of the stack \\\"Corky\\\". The person on top of the stack was closest to the steering wheel. Riner could not identify Turner in court.\\n\\u00b6 9. Vicki Westmoreland was a paramedic who responded to the scene at approximately 10:30 a.m. She saw two vehicles. One was off the road and one was turned up on its side. Vicki went to the white car to help out. Other personnel were working on the driver, Mr. West, so Vicki proceeded to the truck to determine if a helicopter or other backup help was needed. Backup was called including a helicopter. Vicki returned to the white car to help with Mr. West. She determined that he had very serious injuries. As emergency personnel worked on him, he died. Vicki then returned to the truck. She described the occupant that was trapped between the truck and the ground as balding. She described the person on top of the stack as having \\\"long, scraggly hair and a beard.\\\" The person in the middle had dark hair and a mustache, and was smaller than the other two occupants. The person on top of the stack with the long scraggly hair and beard was closest to the steering wheel. Vicki stepped on a vodka bottle by the truck, and noticed the odor of alcohol from the three people in the truck. She also saw beer cans in the area. Vicki testified that the top of the truck had to be cut off in order to rescue the three occupants. Vicki stated that the three men could move their arms around, but they could not move their bodies. She did not witness any of them swapping positions, and did not think that it would be possible. Vicki learned that the person closest to the steering wheel was named Corky Turner. She was unable to identify Turner in court.\\n\\u00b6 10. Tommy Owens was another paramedic at the scene. When he arrived at the pickup truck, he noticed the positions of the individuals in the truck. He testified that the person on the bottom was bald or slightly bald. He described a black headed person with a black beard as being in the middle. He stated that the person on top was tall and thin with stringy hair and a shaggy beard. The person on top was the closest to the steering wheel. Corky was the person closest to the steering wheel.. Owens rode in the ambulance to the hospital with Corky Turner and Terry Moore. Owens asked them if they had been drinking. Turner said that he had and that he was an alcoholic. Owens also asked who had been driving the pick-up. Turner gave no response. Owens testified that the occupants were moving their aims and legs, but not their complete bodies.\\n\\u00b6 11. Terry Moore, one of the occupants of the truck, testified at trial. Moore had known Turner for about three and one half years. He identified Turner in court. Moore said that he had never seen Turner without a beard or long hair prior to trial. Moore testified that he was with Turner and Leon Umfress on Sunday, July 2, 1995. Moore testified that on the Wednesday prior to that Sunday, he had gotten off work and had started drinking. On Thursday, he got up and decided not to go to work. He went to Turner's house and picked him up. Then, they picked up Leon Umfress. The three rode around drinking: On Friday, Moore was also with Turner and Umfress. The three men went to Fulton to pick up Moore's paycheck. Afterwards, they went to the bank. Approximately two blocks from the bank, Moore was pulled over by a policeman, and charged with DUI. Moore spent the night in jail. Umfress drove Moore's pick-up home. On Saturday morning, Umfress and his father picked Moore up' at the Itawamba County Jail. That afternoon, Moore and Um-fress picked up Turner. Moore was driving. Turner did some of the driving on that Saturday afternoon. After picking up Turner, the three proceeded to Dago's store, where Turner cashed his check and bought a ease of beer. They left from Dago's and went to Tupelo, where Turner got some groceries. They then stopped at a liquor store where Turner bought a fifth of vodka. Later that afternoon, Turner was driving when the three returned to Dago's to purchase three more cases of beer. Moore testified that he, Umfress, and Turner got drunk that night. He did not recall where they spent the night. On Sunday morning, Moore, Turner, and Umfress went to Moore's home around 6:30 or 7:00 a.m. While there, Moore changed clothes and spoke with his mother. When the three left Moore's home sometime around 7:00 a.m., Moore was driving. From there, he drove to the BP station near his home. Moore bought some gas, cigarettes, and ice. There was beer in the truck so Moore bought the ice to cool it down. When the three left the BP station, Moore was driving. He drove toward Tupelo. The last place Moore remembered being on Sunday morning was at the BP station. Moore, Turner, and Umfress were drinking in the truck. The next thing Moore remembered was waking up right before the wreck. He testified that he was seated in the middle of the truck. When he awoke he saw that they were about to hit the Wests' vehicle, and he reached over and grabbed the steering wheel in an attempt to pull the truck out of the way of the Wests' car. He was not sure whether he had actually turned the steering wheel or not. The next thing Moore remembered was Turner lying on top of him. Moore testified-that he asked Turner to raise up so he could get from underneath Turner, but Turner said he could not move. Moore was then taken to the hospital, where he refused consent to allow his blood to be drawn. He testified that he told the nurse that he was not driving and there was no need for her to draw his blood. Moore testified that he did not remember stopping and turning the driving over to Turner. Moore testified that he was not driving when the accident occurred. Moore testified that Turner was the driver. He testified that he is 5'6\\\" or 5'7\\\". Moore testified that on the day of the accident, Turner had long grayish hair and a full beard.\\n\\u00b6 12. William Putt was a deputy sheriff with the Lee County Sheriffs Department at the time of the accident. He was called to the scene of the accident and arrived there at approximately 11:27 a.m. Later he went to the hospital to talk to Turner and Moore. Putt asked Turner to consent to a blood test, and Turner refused. At that point, Putt returned to the sheriffs office and started working on getting a search warrant for the blood test of Turner. During that time, the hospital called and said that Turner had agreed to take the blood test. Putt returned to the hospital. He and Gwen Judon went in to talk to Turner. Putt did not remember anyone else being present in the room during this conversation except Turner, Judon, and himself. Putt again asked Turner to consent to the blood test, and Turner consented. Ju-don then drew Turner's blood. Putt testified that Turner did not sign a consent form. Turner told Putt and Judon that he could not write. He gave verbal consent. The consent form was signed by Putt and Judon. The form stated that \\\"[t]he patient is unable to consent because . states unable to write at this time but given verbal consent.\\\" Putt described Turner's appearance at the hospital. He stated that Turner had long, shoulder-length, bushy hair and a beard. Putt was unable to identify Turner in court.\\n\\u00b6 13. Sam Howell with the Mississippi Crime Lab testified that he analyzed Turner's blood and that the blood alcohol level was 0.23%.\\n\\u00b6 14. Wanda Shumpert, a defense witness, testified that she is a neighbor of Turner's. In the early morning of July 2, 1995, she was outside of her house when Turner, Moore and Umfress drove by. She did not know the other two men, but she knew Turner. She testified that at that time, Turner was seated in the middle of the truck. On cross-examination, Shumpert testified that she saw Turner and the others between 7:00 a.m. and 9:00 a.m. Turner had a beard and his hair was fairly long.\\n\\u00b6 15. Amy Linton testified that she is a neighbor of Turner's. On July 2, 1995, between 8:00 a.m. and 9:00 a.m., she saw Turner and two other men that she did not know driving down the road. She testified that Turner was seated in the middle of the truck. Linton testified on cross-examination that she was positive that it was Turner that she saw in the middle because she recognized his beard and long hair.\\n\\u00b6 16. John Gardner testified that he knew Turner, Moore, and Umfress. He saw them at the BP station on July 2, 1995 between 7:00 a.m. and 7:15 a.m. Gardner testified that Moore was driving the truck.\\n\\u00b6 17. Richard Dobbins testified that he knew Turner. He testified that between 7:00 a.m. and 8:00 a.m. on July 2, 1995, he saw Turner and two other men at Leslie's grocery. Turner was sitting in the middle of the truck.\\n\\u00b6 18. Frank Carroll Leslie testified that between 7:00 a.m. and 8:00 a.m., Turner and two other men came to his store. When the vehicle left his store, Turner was seated in the middle.\\n\\u00b6 19. Faye Willis testified that she saw Turner and two other men at the R & R Cash and Carry on July 2, 1995 around 9:30 a.m. or 10:00 a.m. Turner was seated in the middle of the truck with the other men on either side of him. The other men were wearing caps.\\n\\u00b6 20. Lamon Griggs testified as an expert in accident reconstruction for the defense. He testified that the pick-up was on the' wrong side of the road when it collided with the Wests' vehicle. He saw no evidence of anyone jerking the steering wheel to try to avoid impact. Griggs testified that there was plenty of room within the cab of the pick-up for one or two people to move around.\\n\\u00b6 21. The State called Nancy Hammond as a rebuttal witness. She testified that she had known Turner all her life. She identified Turner in court. Hammond testified that on July 1, 1995, Turner and Umfress came into her store, Dago's. She described Turner as having a \\\"long, stringy hair, beard down to here, real rough looking.\\\" Turner left driving the truck.\\n\\u00b6 22. The State also called Doris McCullar on rebuttal. She had known Turner for several years. She identified Turner in court. McCullar was working at Dago's on July 1, 1995 when Turner came in. Turner did not look the same in court as he did on that day. McCullar testified that on July 1, 1995, Turner had a long beard and long hair. When the, three men left the store, Turner was driving the truck.\\n\\u00b6 23. Turner appeals from the jury verdict convicting him of DUI resulting in death. He assigns as error the following issues for this Court's review:\\nI. WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO CONVICT TURNER ON THE INDICTED CHARGE.\\nII. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF THE BLOOD ALCOHOL REPORT OVER THE OBJECTION OF THE DEFENDANT WHERE THE PROSECUTION DID NOT LAY THE PROPER FOUNDATION FOR INTRODUCTION AND VIOLATIVE OF THE FOURTH AMENDMENT.\\nIII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, BOTH AT THE CLOSE OF THE STATE'S CASE AND AT THE CLOSE OF THE ENTIRE CASE, AND IN DENYING MOTION FOR JNOV, OR IN THE ALTERNATIVE, A NEW TRIAL.\\nIV. THE COURT ERRED IN NOT GIVING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION.\\nV. THE EVIDENCE PRESENTED PROVED TO BE INSUFFICIENT WHERE GREAT RELIANCE WAS PLACED ON THE UNCORROBORATED INCREDIBLE TESTIMONY OF TERRY MOORE.\\nVI. WHETHER THE TRIAL COURT ERRED IN CHARGING THE JURY TO RESUME DELIBERATIONS ON TWO SEPARATE OCCASIONS WHERE THEY EXPRESSED THAT THEY WERE DEADLOCKED.\\nVII. THE COURT ERRED CONCERNING THE OVERRULING OF MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF OFFICER CONCERNING THE POSITION OF OCCUPANTS AND ERRED IN NOT GRANTING MOTION FOR CONTINUANCE.\\nVIII. THE COURT ERRED BY NOT ALLOWING DEFENDANT TO PRESENT ITS THEORY THROUGH THE OPINION TESTIMONY OF ACCIDENT RE-CONSTRUCTIONIST EXPERT AND ERRED IN NOT GRANTING CONTINUANCE.\\nIX. THE COURT ERRED IN FAILING TO SUSTAIN DEFENDANT'S MOTION TO DISMISS INDICTMENT BASED ON CONSTITUTIONAL INFIRMITIES.\\nANALYSIS\\nISSUES I, III, & V\\n\\u00b6 24. Turner's contends in Issue I that the evidence was legally insufficient on the issue of whether Turner was driving the pick-up at the time of the accident. In Issue III, Turner asserts that the trial court erred in denying his motions for directed verdict, his motion for j.n.o.v., and his motion for new trial. . In Issue V, Turner contends that the evidence was legally insufficient because Terry Moore's testimony was not credible. As the State points out in its brief, it appears that Turner's contention goes more to the weight and credibility of Moore's testimony than to the legal sufficiency.\\n\\u00b6 25. In summary, Turner is contesting both the legal sufficiency and the weight of the evidence at trial. The legal sufficiency argument is an assignment of error to the trial court's denial of Turner's motions for directed verdict, which were renewed post-trial in his motion for j.n.o.v. The weight of the evidence argument is an assignment of error to the trial court's denial of the motion for new trial. Both the legal sufficiency and weight of the evidence arguments involve the same factual issue which is who was driving the pick-up when the wreck occurred. Therefore, we will address Turner's Issues I, III, and V in conjunction with one another.\\n1. Legal Sufficiency\\n\\u00b6 26. Miss.Code Ann. \\u00a7 63-11-30(4) (1996) provides that:\\nEvery person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose, or any other limb, organ or member of another shall, upon conviction, be guilty of a felony and shall be committed to the custody of the State Department of Corrections for a period of time not to exceed twenty-five (25) years.\\n\\u00b6 27. Subsection (1) of Miss.Code Ann. \\u00a7 63-11-30 (1996) provides, in pertinent part, that:\\nIt is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; . (c) has ten one-hundredths percent (.10%) or more .\\nThe elements of the crime of DUI resulting in death are therefore, (1) operating a vehicle while under the influence of intoxicating liquor or with a blood alcohol level of .10% or more; and (2) causing the death of another in a negligent manner. Hedrick v. State, 637 So.2d 834, 837-38 (Miss.1994).\\n\\u00b6 28. Turner's contention is that the State failed to prove beyond a reasonable doubt that he was the driver of the pick-up when the accident occurred. The standard of review for Turner's legal sufficiency argument, wherein he argues the trial court erred in denying his motions for directed verdict and his motion for j.n.o.v., is:\\nWhere a defendant has requested a peremptory instruction in a criminal case or after conviction moved for a judgment of acquittal notwithstanding the verdict, the trial judge must consider all of the evidence \\u2014 not just the evidence which supports the State's case.... The evidence which supports the case of the State must be taken as true . The State must be given the benefit of all favorable inferences that may reasonable be drawn from the evidence . If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the peremptory instruction or judgment n.o.v. is required. On the other hand, if there is substantial evidence opposed to the request or motion \\u2014 that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair minded men in the exercise of impartial judgment might reach different conclusions the request or motion should be denied.\\nWeefcs v. State, 493 So.2d 1280, 1282 (Miss.1986)(citing Gavin v. State, 473 So.2d 952, 956 (Miss.1985)). The facts of this case were discussed fully at the outset of this opinion. Terry Moore testified that Turner was driving the vehicle at the time of the accident. Numerous rescue workers testified that Turner was located on top of the stack, closest to the steering wheel, and that the occupants of the truck were not able to move around inside the truck. We hold that trial court did not err in denying Turner's motions for directed verdict and his motion for j.n.o.v. The State presented substantial evidence that Turner was the driver of the pick-up at the time of the accident such that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions. This is all that is required of the State, and the trial court was not in error. Additionally, Turner waived the trial court's consideration of the denial of his motions for directed verdict when he presented evidence in his own behalf. Ruffin v. State, 481 So.2d 312, 316 (Miss.1985).\\n2. Weight of the Evidence\\n\\u00b6 29. Turner contends that the jury verdict was against the overwhelming weight of the evidence. \\\"In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports- the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.\\\" Herring v. State, 691 So.2d 948, 957 (Miss.1997)(citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). \\\"Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.\\\" Herring, 691 So.2d at 957(citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). \\\"In reviewing this claim, this Court must accept as true the evidence favorable to the State.\\\" Wetz v. State, 503 So.2d 803, 812 (Miss.1987)(citing Van Buren v. State, 498 So.2d 1224, 1228 (Miss.1986)). \\\"[W]here there is conflicting testimony, the jury is the judge of the credibility of the witnesses.\\\" Wetz, 503 So.2d at 812 (citations omitted).\\n\\u00b6 30. As the State notes in its brief, Turner focuses on the testimony of Terry Moore and the defense witnesses that Terry Moore had been driving the pick-up truck on the morning of the accident. As the State argues, even if those facts are true, they do not impel the conclusion that Terry Moore was driving when the accident occurred. The latest that any witness saw Terry Moore driving the truck was at 9:30 a.m. or 10:00 a.m. Each of those witnesses agreed with the State that he had no idea who was driving the truck at the time of the wreck. The accident occurred at 10:30 a.m. Terry Moore testified that he was not driving the pick-up when the accident occurred. The Sheffields testified that the person driving had long* scraggly, unkempt hair. Numerous rescue workers testified that the person on top of the stack and closest to the steering wheel was the person with long hair and a beard, and that the person in the middle of the stack kept calling the person on top of him, \\\"Corky.\\\"\\n\\u00b6 31. We hold that the trial court did not err in denying Turner's motion for a new trial and that the verdict in this case was not against the overwhelming weight of the evidence. Accepting all of the evidence favorable to the State as true, it cannot be said that the trial court abused its discretion in this case. Turner's assignments of error as to the legal sufficiency of the evidence and the weight of the evidence in Issues I, III, and V are meritless.\\nISSUE 2\\nError in admitting blood alcohol report\\n\\u00b6 32. Turner contends that it was error for the trial court to admit into evidence the blood alcohol report which showed that Turner had a blood alcohol level of .23 sever al hours after the wreck. Turner asserts that the report was more prejudicial than probative. He also asserts that his Fourth Amendment right against unreasonable searches and seizures was violated because he did not sign a consent form, and therefore there was no consent..\\n\\u00b6 33. Turner cites to this Court's decision in Wade v. State, 683 So.2d 965, 967 (Miss.1991) to support his position that \\\"[w]hen the introduction of evidence prejudices defendant, it constitutes reversible error.\\\" This is a misstatement of the law.. Reversible error occurs only where , the improper introduction of evidence prejudices the defendant. Wade, 583 So.2d at 967 (emphasis added). The question for this Court is whether the blood alcohol report was improperly admitted, i.e., was there consent for the blood to be drawn? The results of the blood test are clearly admissible at trial under Miss.R.Evid. 401, so long as Turner was not subjected to an unreasonable search without his consent. Whitehurst v. State, 540 So.2d 1319, 1322-23 (Miss.1989).\\n\\u00b6 34. Turner cites no authority whatsoever to support his position that his verbal consent to the drawing of his blood was insufficient. This Court is under no obligation to consider this assignment of error. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988).\\n\\u00b6 35. The trial court conducted a hearing on Turner's motion to suppress the blood alcohol test. Elizabeth Jordan, Turner's sister, testified that she was present when Turner's blood was drawn for the blood test and that she never heard anyone talk to Turner about consent. Officer Putt testified that he was present with Gwen Judon when Turner gave verbal consent to the blood test. He also testified that Elizabeth Jordan was not in the room when Turner gave consent. The trial court overruled the motion to suppress. At least part of the trial court's ruling was based on Miss.Code Ann. \\u00a7 63-11-8 (1996) which mandates that the operator of any motor vehicle involved in an accident that results in a death shall be tested for his blood alcohol content, and that those results may be used as evidence in any court without the consent of the person tested. Miss.Code Ann. \\u00a7 63-11-8(1) & (3) (1996). However, that statute did not become effective until July 2, 1996. The accident and death occurred in this case on July 2,1995.\\n\\u00b6 36. We find that the trial court in its discretion, determined that Turner had consented to the blood alcohol test. This Court gives deference to that ruling. Moreover, the results of the test were admissible at trial under Rules 401 and 403 of the Mississippi Rules of Evidence. This Court, in Ashley v. State, 423 So.2d 1311 (Miss.1982), explained this Court's interpretation of search and seizure law as it applies to blood alcohol searches.\\nWe first address appellant's Fourth Amendment claims. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) held that taking blood samples from a defendant who had been lawfully arrested did not violate his Fourth Amendment rights. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) the Court held that taking fingernail scrapings from one detained did not violate his Fourth Amendment rights where probable cause for his arrest existed. The Cupp rationale has been extended in some jurisdictions to include the warrantless taking of a suspect's blood for analysis prior to arrest where probable cause existed and the circumstances dictated that the blood should be taken for a test. Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982); State v. Campbell, 189 Mont. 107, 615 P.2d 190 (Mont.1980); State v. Oevering, 268 N.W.2d 68 (Minn.1978).\\nWe find appellant had not been lawfully arrested when his blood was withdrawn for testing. However, our examination of the facts must not stop here. We must determine whether Officer Santacruz had probable cause to detain appellant and order a blood test after he went to the hospital. The facts in possession of the officer at that time were that Ashley was driving an automobile which had run into the rear end of another automobile which was stopped at a traffic signal, that an occupant of the stopped automobile had been killed in the accident, and in the opinion of the officer appellant was intoxicated. Under these facts the officer could then have arrested appellant on a charge of manslaughter and required appellant to submit to a test to determine the alcoholic content of his blood. At that time there existed probable cause for arrest and also probable cause to search appellant by requiring him to submit to the withdrawal of blood from his body to be tested.\\nThe United States Supreme Court recognized in Schmerber, supra, that extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. It also recognized, as this Court did in Jackson v. State, 310 So.2d 898 (Miss.1975), that the percentage of alcohol in the blood begins to diminish shortly after drinking stops as the body functions to eliminate alcohol from the system.\\nInformation gathered at the accident scene and later at the hospital not only provided probable cause for appellant's arrest, but also indicated that appellant was probably intoxicated; hence, the need for a blood test. Under the facts of this case, we hold that appellant's Fourth Amendment rights were not violated, and the result of the blood test administered at the direction of Dr. Wiggins was admissible in evidence. We hold that, where the state is justified in requiring a blood test to determine the alcoholic content in a suspect's blood, and such test has in fact been performed, although for diagnostic and not law enforcement purposes, the state is entitled to the benefit of the test results....\\nAshley v. State, 423 So.2d 1311, 1313-14 (Miss.1982). In the case sub judice, Officer Putt certainly had probable cause to arrest Turner at the hospital. Under Ashley, he could have taken Turner's blood for testing even without consent. We hold that there was no error in the trial court's denial of Turner's motion to suppress.\\nISSUE TV\\nError not to give circumstantial evidence instruction\\n\\u00b6 37. Turner argues that it was error for the trial court to refuse to give a cireum-stantial evidence instruction in this case. He contends that there was no eyewitness or direct evidence identifying him as the driver of the truck.\\n\\u00b6 38. Clearly, Terry Moore was an eyewitness. Turner argues that Moore was drunk and could not remember certain events on the day of the accident. As the State argues, these were factors for the jury to consider in assessing the weight and worth of Moore's testimony, but they do not change the fact that Moore was an eyewitness. Moore testified that Turner was driving the truck.\\n\\u00b6 39. \\\"The rule in Mississippi is that a circumstantial evidence instruction should be given only when the prosecution can produce neither eyewitnesses or a confession to the offense charged.\\\" Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992). This assignment of error is meritless.\\nISSUE VI\\nError in requiring the jury to continue deliberations\\n\\u00b6 40. The jury in this case retired to deliberate its verdict at 10:55 a.m. The jury returned to the courtroom at 2:02 p.m. At that point, the court asked for the numerical division of the jury and instructed the jury to not tell him which way it was divided. The jury announced that it was divided 8 to 4. The court asked, \\\"Is there a possibility that you all can reconcile your differences and resolve this matter if you had additional time?\\\" One juror responded, Wes, sir.\\\" The trial court then read verbatim to the jury the Sharplin charge, and the jury returned to deliberate at 2:05 p.m. Sharplin v. State, 330 So.2d 591, 596 (Miss.1976). At 3:10 p.m., the jury again returned to the courtroom and announced that it was divided by a vote of 9 to 3. The court again asked the jury, \\\"Is there any possibility of you reconciling your differences and reaching a decision in this case?\\\" All jurors responded with affirmative nods. The court then said, \\\"If you all feel that you can resolve it, I'm going to ask that you continue your deliberations.\\\" The jury returned to deliberate at 3:14 p.m. The jury returned to the courtroom at 4:43 p.m. and announced its verdict of guilty.\\n\\u00b641. It appears that Turner is arguing that the court erred the second time he sent the jurors back to deliberate because he did not recharge the jury.\\n\\u00b6 42. The trial court committed no error here. There is no error in asking the jury for its numerical division without reference to guilt or innocence. Sharplin, 330 So.2d at 596. Additionally, the first time the trial court sent the jury back to deliberate, he read the approved charge verbatim from Sharplin. The second time the trial court sent the jury back, he did not reread the Sharplin charge. However, this was not error. In Sharplin, this Court said,\\nIf the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: 'Please continue your deliberations,' or he may give the following instruction\\nId. at 596(emphasis added). Although the trial court did not recharge the jury with the Sharplin charge, he only asked them to continue their deliberations, which is sufficient under Sharplin. This assignment of error is meritless.\\nISSUE VII\\nError in overruling motion in limine\\n\\u00b643. Turner assigns as error the trial court's denial of his oral motion in limine to prohibit the investigating police officers from stating their opinions as to who was driving the pick-up truck. Before the start of the trial, the State moved in limine to exclude the testimony of the defense's expert accident reconstructionist from giving an opinion as to who the driver of the truck was. That motion was granted. Subsequently, the defense moved in limine to exclude any investigating police officers from stating their opinions as to who was driving the truck. The following exchange occurred:\\nMR. FARRELL: Your Honor, in that connection, then, will the Court permit police officers to testify as to their opinion as to who was closest to the steering wheel or who was driving or anything of that nature?\\nMR. FARRIS: Your Honor, that's just pure fact, who was closest to the steering wheel and who was on top of the pile.\\nTHE COURT: They can testify what they visually observed. They were there. I'm going to allow them to testify as to that.\\nMR. FARRELL: Will any statements or any testimony be allowed, Your Honor, with regard to their opinion as to who was driving?\\nTHE COURT: Any statement about the opinion?\\nMR. FARRELL: Whether the Court will permit testimony from the police officers with regard to their opinion as to who was driving.\\nTHE COURT: Did they investigate?\\nMR. FARRELL: Pardon me?\\nTHE COURT: Did they investigate?\\nMR. FARRELL: Yes, Your Honor.\\nTHE COURT: If they investigated, I'm going to allow them to make reasonable opinions associated with the investigation if they were out there. I'm going to allow them to do that.\\nTHE COURT: If they took a statement along those lines, I'm going to allow them to do it. You are asking me just carte blanche just say that I'm not going to allow them to do it, and I don't know th\\u00e9 entire circumstances behind it, Mr. Thorne. If they get on there and they've got sufficient background information to substantiate that they can make a determination as to who was driving, I'm going to allow them to do it, but if it has no basis and they are just speculating, then that's an entirely different story. I can't carte blanche say that I'm not going to let them do it now, because I don't know the facts or circumstances from what they are going to testify to, and that's what you are asking me to do. You are asking me to say at this point that they are not going to be able to give an opinion, and I don't know what they are going to testify to. But I do know that based upon his motion in limine that what you are asking me to allow your expert to do is to say that this expert can come into this courtroom and give an opinion as to where everybody was seated in that truck based upon what the injuries were and based upon what the doctor's report was, and I'm not going\\u2014\\nMR. THORNE: No, sir, not based strictly on the doctors reports. It's based on all of the information that has been accumulated and provided to us through discovery and his own investigation, looking at the scene, looking at the vehicles and the doctors' reports in addition to that.\\nTHE COURT: Okay. Well, at this time if you were making an oral motion in limine to exclude any testimony from the police officers, that motion will be overruled at this time. Basically because I don't know what they are going to testify to, if they have an opinion....\\n\\u00b644. This assignment of error by Turner focuses on the testimony of Officer William Putt. Turner does not point to any specific objectionable testimony in his brief. The State assumes, as does this Court, that Turner complains of the following testimony;\\nQ Now, Mr.' Putt, at that point in time was it your opinion that Corky was the driver of that vehicle?\\nA Yes, sir, it was.\\nMR. THORNE: Your Honor, object to that. Calls for his opinion. He's not qualified to give that type of opinion.\\nTHE COURT: The objection is overruled.\\nQ And what did you base your conclusion on?\\nA The statements from the EMTs.\\nTurner argues that Putt was a lay witness and not an expert, and that therefore he could not testify as to the cause of the accident or who was driving at the time of the accident. Turner also argues that Putt's testimony does not satisfy the requirements of Miss.R.Evid. 701 for lay witness opinion testimony.\\n\\u00b645. The State counters that it is clear from a reading of the record that Putt was not testifying as an expert. The record reveals that Putt was being questioned by the State as to his belief that he had probable cause to obtain a search warrant for Turner's blood after Turner refused to submit to a blood alcohol test. The questions leading up to this statement by Putt all dealt with the facts supporting Putt's determination that there was probable cause for a search warrant for Turner's blood, but not for Terry Moore's. Turner insists that Putt was really giving expert testimony in the form of accident reconstruction. The record belies that assertion.\\n\\u00b646. The question is whether this statement was proper lay witness opinion testimony. Rule 701 of the Miss.R.Evid. provides that:\\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact in issue.\\nPutt's statement does not appear to meet the requirements of the rule. First, his opinion was based on the perceptions of the EMTs, and not his own. Second, his opinion invaded the province of the jury to determine who was the driver of the truck. However, the opinion did help the jury to understand why Putt believed he had probable cause to obtain a search warrant for Turner's blood, and why he did not believe that he had probable cause to obtain a search warrant for Moore's blood.\\n\\u00b6 47. Although the trial court erred in allowing this testimony, this Court holds the error harmless. In Whittington v. State, 523 So.2d 966, 974-75 (Miss.1988), a lay witness police officer was permitted to express his opinion that at the time of his investigation, he did not think the victim died in the car wreck. Although this was the defendant's theory of defense, this Court held that the error was harmless because the Court found that the officer's statement was no more than an expression that his suspicion was aroused following his investigation at the scene. Whittington, 523 So.2d at 975. The Court reasoned that the jurors already knew that the investigating officers were suspicious, or else the investigation would not have continued. The Court found that it would have been a much more serious ques tion if the officer had been asked and permitted to testify that, at the time of trial, he did not believe the victim was killed in the wreck. Id. Finally, the Court found the error cured by the fact that an expert testified after the officer and, in great detail, explained why in his opinion he did not believe the victim was killed in the accident. Id.\\n\\u00b6 48. In the case sub judice, as in Whit-tington, the jurors already knew that Putt suspected Turner to be the driver because he did not pursue an effort to obtain Moore's blood. Additionally, Putt's testimony was followed by Terry Moore's testimony in which he testified directly that Turner was the driver. Therefore, we hold that any error was cured, as it was in Whittington.\\nISSUE VIII\\nError in limiting opinion of defense expert witness\\n\\u00b6 49. Turner argues that it was error for the trial court not to allow his expert accident reconstruction witness, Lamon Griggs, to testify as to the position of the occupants in the truck. The trial court, after reviewing Griggs' curriculum vitae, ruled that he would not be allowed to testify as to the positions of the occupants in the truck or to who was driving the truck. The court found that Griggs had no expertise in that area. After Griggs' testimony at trial, the defense proffered his opinion as to the positions of the occupants in the truck and as to who was driving. He opined that Terry Moore was driving the truck at the time of the accident. The trial court stated;\\nLet the record reflect that the Court refused to allow this testimony, that the Court accepted this witness as a witness in the field of accident reconstruction, that based upon that \\u2014 allowing him to do that, the Court was of the opinion that to allow this testimony was outside his area of expertise and that I would not allow that testimony, because I was of the opinion that he was not a physicist. And because he was not qualified in the area to establish who was the driver of the automobile, I would not allow that in evidence.\\nIn addition, the Court did not allow him to testify as to injuries received by the occupants of the vehicle based upon the fact that he's not a medical doctor.\\n\\u00b6 50. This Court has said that, \\\"[t]he admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.\\\" Seal v. Miller, 605 So.2d 240, 243 (Miss.1992)(citing Hooten v. State, 492 So.2d 948, 950-51 (Miss.1986)(citing Weiss v. Louisville, N.O. & T. Ry. Co., 7 So. 390 (1890))). Turner does not assert in his brief that the trial court erred in ruling that his expert was unqualified to testify as to the driver of the truck. Rather, he asserts that because William Putt was allowed to give his \\\"expert\\\" opinion as to the driver of the truck, Turner should have been allowed to have his expert rebut Putt's opinion. Turner claims his case was prejudiced in that he was not allowed to present his theory of defense.\\n\\u00b6 51. The trial court was completely within its discretion to determine that Griggs was not qualified to give this opinion. First, as discussed in Issue VII, Putt was not giving expert testimony in the form of accident reconstruction testimony. Second, Turner has cited no authority nor made any argument in support of his quid pro quo argument. Turner argues that defendants are allowed to present every lawful defense available to them, and that his right in this area was restricted. While this basic premise may be true, the trial court was not required to allow Turner's expert to testify in areas that the court found him lacking in expertise. Turner could have and did present his theory through other witnesses. The jury was well aware that Turner's contention was that he was not the driver of the truck, and that Moore was. This assignment of error is meritless, and Turner suffered no prejudice.\\nISSUE IX\\nConstitutionality of Miss.Code Ann. \\u00a7 63-11-30(4)\\n\\u00b6 52. Turner assigns error to the trial court's denial of his motion to dismiss the indictment, contending that Miss.Code Ann. \\u00a7 63-11-30(4) is unconstitutional. He argues that the statute is vague, ambiguous, and overbroad because it does not define a degree of negligence necessary to be guilty of the felony, whereby the statute provides insufficient notice of the prohibited conduct. Turner also argues that the statute is unconstitutional because it does not provide that contributory or comparative negligence is a defense to a criminal prosecution. Finally, he argues that the statute is unconstitutional because it provides for a more severe penalty than that provided for culpable negligence manslaughter.\\nVagueness\\n\\u00b6 53. Turner argues that Miss.Code Ann. \\u00a7 63-11-30(4) is vague because it does not define the degree of negligence necessary to violate the statute. He argues that negligence is defined in many different ways, and that therefore the statute gives inadequate notice.\\n\\u00b6 54. This Court has said that simple negligence is sufficient for a conviction under Miss.Code Ann. \\u00a7 63-11-30(4). Holloman v. State, 656 So.2d 1134, 1140 (Miss.1995). Also in Holloman, we said that only simple negligence is required by the statute, not culpable or gross negligence. Holloman, 656 So.2d at 1140(simple negligence jury instruction was appropriate.) Negligence is defined as \\\"failure to exercise reasonable care under the circumstances.\\\" Smith v. City of W. Point, 475 So.2d 816, 818 (Miss.1985)(citing Cole v. Delchamps, Inc., 246 Miss. 846, 152 So.2d 911, 913 (1963)).\\n\\u00b6 55. In Mayfield v. State, 612 So.2d 1120, 1128 (Miss.1992), this Court rejected a similar argument concerning Miss.Code Ann. \\u00a7 97-3-47 (1994). The appellant in that case argued that the culpable negligence manslaughter statute was vague because it did not set out what activities constituted culpable negligence. This Court found that the appellant's argument was meritless in view of the numerous decisions defining culpable negligence. Similarly, this Court rejects Turner's argument that Miss.Code Ann. \\u00a7 63-11-30(4) is vague in view of the numerous decisions of this Court defining negligence.\\nContributory or comparative negligence as a defense\\n\\u00b6 56. Turner asserts that the statute is unconstitutional because it does not provide for a defense of contributory or comparative negligence. However, Turner cites no authority for his contention and fails to make any argument whatsoever. This Court is not required to consider this assignment of error. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988). Furthermore, Turner has no standing to make this argument as there was absolutely no proof at trial that Mr. West was in any manner contributorily negligent.\\nPunishment\\n\\u00b6 57. Finally, Turner argues that the statute is unconstitutional because it provides for a more severe penalty than that provided for culpable negligence manslaughter. Turner focuses his argument on the contention that negligence is less condemnable than culpable negligence. Turner ignores the fact that Miss.Code Ann. \\u00a7 63-11-30(4) requires proof of intoxication in addition to negligence.\\n\\u00b6 58. This Court has said, \\\"[t]he power to determine appropriate punishment for criminal acts lies in the legislative branch.\\\" Fisher v. State, 690 So.2d 268, 275 (Miss.1996). The State correctly points out that when the Legislature increased the penalty for DUI causing death to a maximum of twenty-five years, DUI resulting in death ceased to be a lesser-included offense of manslaughter. This assignment of error is unsupported by authority or argument. Furthermore, it is meritless.\\nCONCLUSION\\n\\u00b6 59. This Court holds that no reversible error occurred in this case, and we affirm the verdict of the jury finding Turner guilty of DUI resulting in death.\\n\\u00b6 60. CONVICTION OF DUI-DEATH AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. APPELLANT SHALL PAY COURT COSTS AND MAKE RESTITUTION OF $7,415.00 FOR FUNERAL EXPENSES.\\nPRATHER, C.J., SULLIVAN, P.J., and BANKS, JAMES L. ROBERTS, Jr., SMITH, MILLS and WALLER, JJ., concur.\\nMcRAE, J., not participating.\"}"

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+"{\"id\": \"12141475\", \"name\": \"Phillip FREDENBURG a/k/a Phillip C. Fredenburg Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Fredenburg v. State\", \"decision_date\": \"2016-10-25\", \"docket_number\": \"No. 2015-CP-01072-COA\", \"first_page\": \"638\", \"last_page\": \"645\", \"citations\": \"203 So. 3d 638\", \"volume\": \"203\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T02:13:13.896156+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.\", \"parties\": \"Phillip FREDENBURG a/k/a Phillip C. Fredenburg Appellant v. STATE of Mississippi, Appellee\", \"head_matter\": \"Phillip FREDENBURG a/k/a Phillip C. Fredenburg Appellant v. STATE of Mississippi, Appellee\\nNo. 2015-CP-01072-COA\\nCourt of Appeals of Mississippi.\\n10/25/2016\\nPHILLIP FREDENBURG (PRO SE), ATTORNEY FOR APPELLANT\\nOFFICE OF THE ATTORNEY GENERAL BY: LADO\\u00d1NA C. HOLLAND, ATTORNEY FOR APPELLEE\\nBEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.\", \"word_count\": \"2953\", \"char_count\": \"18453\", \"text\": \"CARLTON, J.,\\nFOR THE COURT:\\n\\u00b6 1. On August 11, 2008, Phillip Freden-burg pleaded guilty to armed robbery. The trial court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. On June 11, 2015, Fredenburg filed a motion for postconviction relief (PCR), claiming: (1) his plea was involuntarily and unknowingly entered; (2) ineffective assistance of counsel; and (3) a Brady violation. The trial court summarily denied Fredenburg's motion. Freden-burg now appeals. Finding no error, we affirm.\\nFACTS\\n\\u00b6 2. On October 3, 2007, Elsie Echols reported an armed robbery outside of the Star Food Market on Bailey Avenue in Jackson, Mississippi Echols alerted the police and provided a description of the three men who held her up at gunpoint and stole her purse. Officers with the Jackson Police Department (JPD) then spotted two men matching Echols's description. JPD officers eventually apprehended the two men, Fredenburg and Cage Wright, and took them into custody. Fredenburg declined to give a statement, but Wright provided the police with a statement implicating Fredenburg in the robbery. Wright also told police that he did not know that Fredenburg was planning to commit an armed robbery.\\n\\u00b6 3. Echols later identified Fredenburg and Wright from a photo lineup as two of the three men who robbed her. Echols specifically identified Fredenburg as the male who held the gun and grabbed her purse.\\n\\u00b6 4. At his August 11, 2008 plea hearing, Fredenburg affirmed under oath that his defense counsel had explained to him all of the facts and circumstances of the offense charged and discussed any potential defenses. Fredenburg also swore that he had read and understood his plea petition. The transcript of the plea hearing reflects that the State recited into the record the underlying facts it would prove to support an armed-robbery conviction in the event Fredenburg elected to proceed to trial. Fredenburg testified that he did not disagree with the State's factual basis. At the plea hearing, Fredenburg also denied being on any medication or having any mental illness that would impair his ability to plead guilty.\\n\\u00b65. The trial court accepted Freden-burg's guilty plea and advised Fredenburg of the minimum and maximum sentences for armed robbery. The trial court also advised Fredenburg of the rights he would waive by entering a guilty plea. The trial court then determined that Fredenburg entered his plea freely, intelligently, and voluntarily, and sentenced Fredenburg to serve twenty years in the custody of the MDOC, with five years suspended.'\\n\\u00b6 6. On June 11, 2015, nearly seven years after pleading guilty to armed robbery, Fredenburg filed a PCR motion in the trial court. The trial court summarily denied the PCR motion on June 22, 2015. Fredenburg now appeals.\\nSTANDARD OF REVIEW\\n\\u00b67. \\\"We review a circuit court's denial of a PCR motion under a clearly-erroneous standard of review.\\\" Vanwey v. State, 147 So.3d 367, 369 (\\u00b6 8) (Miss. Ct. App. 2014) (citing McLaurin v. State, 114 So.3d 811, 813 (\\u00b6 4) (Miss. Ct. App. 2013)).\\nDISCUSSION\\n\\u00b6 8. Fredenburg acknowledges that he filed his PCR motion outside of the three-year statute of limitations. However, to explain his delay, Fredenburg claims that he only recently became stabilized on his medication, and he maintains that this resulted in the delay in perfecting his appeal.\\n\\u00b6 9. Fredenburg also raises other claims in support of his PCR motion. Fredenburg claims that he only pleaded guilty because he was threatened by his co-indictees, Cage Wright and Eric James, Fredenburg further alleges that his constitutional rights were violated when he learned after pleading guilty that his co-indictees entered pleas to lesser charges \\\"only minutes\\\" after Fredenburg entered his plea. Fredenburg states that prior to entering his guilty plea, he was entitled to know of any leniency agreement entered into by his co-indictees. He also claims that if the trial court would have required the State to establish a factual basis for his plea, the trial court would have determined that Fredenburg did not commit the crime of armed robbery. Finally, Fredenburg argues that he was denied effective assistance of counsel, in violation of his constitutional rights.\\n\\u00b6 10. In applying the applicable law to this case, we find Fredenburg's claims barred by the three-year statute of limitations of the Mississippi Uniform Postcon-viction Collateral Relief Act (UPCCRA). The record reflects that Fredenburg pleaded guilty to armed robbery on August 11, 2008, yet failed to file a PCR motion until June 11, 2015. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that in the case of guilty plea, \\\"[a] motion for relief under this article shall be made . within three (3) years after entry of the judgment of conviction.\\\" We acknowledge that the UP-CCRA has provided certain exceptions from this three-year statute of limitations in cases where the petitioner can demonstrate the following:\\n(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or\\n(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.\\n(b) Likewise excepted are those eases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.\\nMiss, Code Ann. \\u00a7 99-39-5(2). We further acknowledge errors affecting a defendant's fundamental constitutional rights are also exceptions to this time-bar. Blount v. State, 126 So.3d 927, 931 (\\u00b6 13) (Miss. Ct. App. 2013).\\n\\u00b6 11. In evaluating the application of the statute of limitations to this case, we note that the record reflects that the trial court entered its judgment of conviction in 2008, and Fredenburg failed to, file his PCR motion until 2015. As a result, Freden-burg's PCR motion is clearly untimely. However, Fredenburg asserts that his counsel's assistance was ineffective and violated his fundamental constitutional rights. Fredenburg claims that based on this assertion, his motion is thus excepted from the three-year statute of limitations under the UPCCRA.\\n\\u00b6 12. We recognize that the Mississippi Supreme Court has held that claims of ineffective assistance of counsel are subject to the procedural bars of the UP-CCRA. Salter v. State, 64 So.3d 514, 518 (\\u00b6 14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So.2d 345, 346 (\\u00b6 6) (Miss. 2000)). Jurisprudence reflects that \\\"merely raising the claim of ineffective assistance of counsel is insufficient to surmount the procedural bar[.]\\\" Thomas v. State, 933 So.2d 995, 997 (\\u00b6 5) (Miss. Ct. App. 2006). Accordingly, this Court must review Fre-denburg's ineffective-assistanee-of-counsel claim to determine whether it is sufficient to invoke the fundamental-rights exception. We recognize that \\\"[t]he burden is on the PCR movant to show he . is entitled to relief by a preponderance of the evidence.\\\" Smith v. State, 129 So.3d 243, 245 (\\u00b6 5) (Miss. Ct. App. 2013). .\\n\\u00b6 13. The supreme court has explained that in order to prevail on a claim of ineffective assistance of counsel, a petitioner \\\"must demonstrate two things: (1) that his counsel's representation fell below an objective standard of reasonableness; and (2) that but for counsel's errors, there is a reasonable probability that the outcome of the proceeding would have been different.\\\" Avery v. State, 179 So.3d 1182, 1188 (\\u00b6 13) (Miss. Ct. App. 2015) (internal quotation marks omitted) (citing Hannah v. State, 943 So.2d 20, 24 (\\u00b66) (Miss. 2006)); see Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\\n\\u00b6 14. In Avery, 179. So.3d at 1188 (\\u00b6 13), this Court recognized that with regard to guilty pleas, a petitioner \\\"must show that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.\\\" We further acknowledged that \\\"a defendant must plead cl\\u00e1ims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own.\\\" Id. at 1188-89 (\\u00b613). \\\"When a movant fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must fail.\\\" Id. at 1189 (\\u00b6 13).\\n\\u00b6 15. In support of his claim of ineffective assistance, Fredenburg claims that his attorney should have used Fredenburg's alleged mental illness as a defense for the charges against him. Fredenburg asserts that he informed his counsel of his history of mental illness. Fredenburg suggests that a psychiatric assessment would have shed light on his \\\"capacity to appreciate the criminality' of his conduct as well as his competency to enter a guilty plea. Fre-denburg further claims that his counsel also filled out his plea petition for him and asserted \\\"complete falsities.\\\"\\n\\u00b6 16. Fredenburg also argues that his counsel failed to interview various witnesses who could have corroborated Fre-denburg's story that he was framed. Fre-denburg claims that his defense counsel could have interviewed the employees and customers at the supermarket at the time of the robbery, claiming that \\\"their testimony could have been highly probative of my innocence.\\\" In his brief, Fredenburg also mentions a man named \\\"Frank,\\\" whom he alleges his co-indictee, Eric James, mentioned in his statement to the police. Fredenburg alleges that Frank told James's sister that he observed police \\\"beating up\\\" on a white boy who Frank thought was James. Fredenburg claims that \\\"Frank witnessed me getting beat up by the police. [Frank's] testimony would have been very persuasive evidence of me being framed for the armed robbery.\\\"\\n\\u00b6 17. After our review of the record, we find that Fredenburg's claims lack sufficient evidentiary support. Fredenburg provides only his own assertions to support his claims. Moreover, the record reflects that Fredenburg submitted his plea to the trial court under oath wherein he acknowledged that he understood the meaning and effect of his guilty plea, as well as the offenses to which he pleaded guilty. Fre-denburg also stated under oath that he was satisfied with his defense counsel's service. Thus, Fredenburg has not sufficiently alleged that his counsel's performance fell below an objective standard of reasonableness. Accordingly, Fredenburg failed to prove the first part of the Strickland analysis.\\n\\u00b6 18. Additionally, the record reflects that at his plea hearing, Fredenburg swore under oath that his defense counsel had advised him of the nature of the offense and discussed possible defenses. The record also shows that Fredenburg failed to provide any other information about Frank, including how to contact him. We find that Fredenburg failed to demonstrate a reasonable probability that the outcome of the proceeding would have been different if his, defense counsel had interviewed Frank or the employees and customers at the supermarket. See Avery, 179 So.3d at 1188 (\\u00b6 13).\\n\\u00b6 19. Regarding Fredenburg's claim of mental incapacity that impaired his ability to make a knowing, voluntary, and intelligent plea, we recognize that \\\"it is the petitioner, not the State, who bears the burden of proving by a preponderance of evidence that the guilty plea was involuntary.\\\" Timmons v. State, 176 So.3d 168, 171-72 (\\u00b6 9) (Miss. Ct. App. 2015). Despite Fredenburg's claim to the contrary, the record reflects that the trial court found that the.guilty-plea colloquy herein reflects that Fredenburg's guilty plea was knowing, intelligent, a,nd voluntary. No lack-of-competency issues arose before the trial court upon accepting Fredenburg's plea, and Fredenburg has failed to provide evidence to support a showing of any subsequent onset of mental incapacity upon submission of his PCR- motion - herein. The trial court's order denying Fredenburg's PCR motion reflects that the trial court reviewed the guilty-plea transcript, which shows that Fredenburg denied under oath being on any medications or having mental illness that would impair his, ability to enter his guilty plea.\\n\\u00b6 20. The trial court also found that the medical records submitted by Fredenburg with his PCR motion were inapplicable and insufficient to support his claim for relief. The record shows that, in support of his claim that his plea was involuntary and unknowing, Fredenburg submitted medical records showing his prior diagnosis for attention deficit hyperactivity disorder (ADHD) and conduct disorder. In its order denying PCR, the trial court stated that none of the medical records provided by Fredenburg indicated that he did not understand right from wrong or lacked competency to enter a guilty plea. Specifically, the trial court recognized that\\n[Fredenburg] states, and medical records confirm, he suffered from ADHD and conduct disorder with \\\"sociopathic and psychopathic personality traits.\\\" Different records describe him as antisocial with impulse control issues. However, the last medical records provided were in 2005, two years prior to the crime. Further, no medical records indicate [Fredenburg] did not understand right from wrong or would be impaired to enter a guilty plea. He states he was in \\\"delusional states of mind\\\" when he met with his attorney; however, his attorney's notes, which he attached to his petition, do not indicate this and no medical records from 2008 have been submitted. His attorney did note he was prescribed Ritalin.\\n(Emphasis added). The trial court also found that Fredenburg \\\"failed to attach an affidavit from his former attorney or from anyone else that could verify his illness at the time of the crime and plea.\\\" The trial court observed that the attorney's notes reflected that Fredenburg confessed to his attorney.\\n\\u00b621. Fredenburg also alleges that his constitutional rights were violated when he learned after pleading guilty that his co-indictees entered pleas to lesser charges \\\"only minutes\\\" after Fredenburg entered his plea. Fredenburg states that he was entitled to know of any leniency agreement entered into by his co-indictees. In Brady v. Maryland, 873 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held \\\"that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\\\" In order to establish a Brady violation, Fredenburg must show: \\\"(1) the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the State suppressed the evidence, either willfully or inadvertently; and (3) prejudice ensued.\\\" Davis v. State, 174 So.3d 299, 306 (\\u00b622) (Miss. Ct. App. 2015) (citing Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011)). We find, however, that Fredenburg's guilty plea precludes him from now asserting a Brady violation. See United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009); Matthew v. Johnson, 201 F.3d 353, 362-64 (5th Cir. 2000); Walton v. State, 165 So.3d 516, 524-25 (\\u00b6\\u00b6 30-33) (Miss. Ct. App. 2015). See also URCCC 8.04. Further more, Fredenburg provided no evidence in the record regarding any leniency agreement between the State and his co-indict-ees. We find that Fredenburg \\\"failed to show the. evidence was favorable to his defense or that the outcome of the proceedings would have been different had he been shown the evidence.\\\" Davis, 174 So.3d at 306 (\\u00b6 23).\\n\\u00b6 22. We find no abuse of discretion in the trial court's denial of Fredenburg's PCR motion. The record reflects that Fre-denburg's claims are time-barred pursuant to section 99-39-5(2). Based on our review of the record, we find no error in the trial court's finding that Fredenburg failed to present sufficient evidence in support of his claims to overcome the procedural bar. We therefore affirm.\\n\\u00b6 23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCON-VICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.\\nLEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.\\n. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),\\n.- Uniform Rule of Circuit and County Court 8.04(A)(4)(c) provides in pertinent part:\\nWhen the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:\\nc. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/her if (s)he is indigent.\"}"

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+"{\"id\": \"12353770\", \"name\": \"ESTATE OF Richard B. DAVIS, BY AND THROUGH Its Executrix, Janice Y. DAVIS v. Darrell N. BLAYLOCK, MD d/b/a Blaylock Medical Clinic, LLC; Estate of Richard B. Davis By and Through Its Executrix Janice Y. Davis v. Delta Regional Medical Center; Estate of Richard B. Davis, By and Through Its Executrix, Janice Y. Davis v. Delta Regional Medical Center\", \"name_abbreviation\": \"Estate ex rel. Davis v. Blaylock\", \"decision_date\": \"2017-01-05\", \"docket_number\": \"NO. 2015-CA-01423-SCT CONSOLIDATED WITH NO. 2015-CA-01425-SCT, CONSOLIDATED WITH NO. 2015-CA-01427-SCT\", \"first_page\": \"755\", \"last_page\": \"762\", \"citations\": \"212 So. 3d 755\", \"volume\": \"212\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:35:42.246752+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALLER, C.J., DICKINSON, P.J., KITCHENS, COLEMAN AND BEAM, JJ., CONCUR. RANDOLPH, P.J., KING AND CHAMBERLIN, JJ., NOT PARTICIPATING.\", \"parties\": \"ESTATE OF Richard B. DAVIS, BY AND THROUGH Its Executrix, Janice Y. DAVIS v. Darrell N. BLAYLOCK, MD d/b/a Blaylock Medical Clinic, LLC Estate of Richard B. Davis By and Through Its Executrix Janice Y. Davis v. Delta Regional Medical Center Estate of Richard B. Davis, By and Through Its Executrix, Janice Y. Davis v. Delta Regional Medical Center\", \"head_matter\": \"ESTATE OF Richard B. DAVIS, BY AND THROUGH Its Executrix, Janice Y. DAVIS v. Darrell N. BLAYLOCK, MD d/b/a Blaylock Medical Clinic, LLC Estate of Richard B. Davis By and Through Its Executrix Janice Y. Davis v. Delta Regional Medical Center Estate of Richard B. Davis, By and Through Its Executrix, Janice Y. Davis v. Delta Regional Medical Center\\nNO. 2015-CA-01423-SCT CONSOLIDATED WITH NO. 2015-CA-01425-SCT, CONSOLIDATED WITH NO. 2015-CA-01427-SCT\\nSupreme Court of Mississippi.\\n01/05/2017\\nRehearing Denied March 23, 2017\\nATTORNEYS FOR APPELLANT: LEVI BOONE, III, KELVIN CEDELL PULLEY\\nATTORNEYS FOR APPELLEE: JACOB O. MALATESTA, L. CARL HAG-WOOD\\nATTORNEYS FOR APPELLEE: P. SCOTT PHILLIPS, GREGORY WEATHERS VIRDEN, JR.\", \"word_count\": \"3537\", \"char_count\": \"21297\", \"text\": \"MAXWELL, JUSTICE,\\nFOR THE COURT:\\n\\u00b61. This Court has held \\\"that the first court to properly take jurisdiction of a wrongful death action in our state courts shall, so long as the action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect.\\\" Despite this clear holding, Janice Y. Davis (Davis)\\u2014after filing an action for the wrongful death of her father, Richard B. Davis, and while that action was pending\\u2014filed three additional, separate wrongful-death actions, two of which were against the same defendant. Because these three subsequent actions were of \\\"no effect,\\\" they were properly dismissed. Thus, we affirm the judgments dismissing the three subsequently filed wrongful-death actions.\\nBackground Facts and Procedural History\\n\\u00b62. This appeal is a consolidation of three appeals, one from each of the subsequently filed wrongful-death lawsuits that was dismissed by the circuit court.\\nI. Davis's Four Suits\\nA.Lawsuit 1 versus Dr. Barber\\n\\u00b63. Davis filed her first wrongful-death suit against William H. Barber, M.D., on November 4, 2014, in the Washington County Circuit Court. Estate of Richard B. Davis v. William H. Barber, MD, Washington County Cause No. 2014-0134 (Lawsuit 1). She claimed Dr. Barber's medical negligence caused her father Richard's death on September 21, 2013. Lawsuit 1 is not part of this appeal.\\nB.Lawsuit 2 versus Dr. Blaylock\\n\\u00b64. Fifteen days later, on November 19, 2014, she filed another suit based on her father's wrongful death. Estate of Richard B. Davis v. Darrell N. Blaylock, MD d/b/a Blaylock Med. Clinic, Washington County Cause No. 2014-0139 (Lawsuit 2). This time she sued Darrell N. Blaylock, M.D., alleging his medical negligence caused her father's death.\\nC. Latosuit 3 versus DRMC\\n\\u00b65. The same day she filed Lawsuit 2, she filed a third wrongful-death lawsuit against Delta Regional Medical Center (DRMC) \\\"based upon the separate negligence committed by Delta Regional Medical Center.\\\" Estate of Richard B. Davis v. Delta Reg'l Med. Ctr., Washington County Cause No. 2014-0140 (Lawsuit 3).\\nD. Lawsuit 4 versus DRMC\\n\\u00b66. Then on December 10, 2014, she filed a fourth wrongful-death suit, also against DRMC, \\\"arising from alleged medical and nursing negligence relating to care provided to Richard B. Davis, Sr.[,] by Darrell N. Blaylock, M.D. and the nursing staff of Delta Regional Medical Center.\\\" Estate of Richard B. Davis v. Delta Reg'l Med. Ctr., Washington County Cause No. 2014-0146 (Lawsuit 4).\\nII. Motions to Dismiss\\n\\u00b67. Simultaneously with its answers, DRMC filed motions to dismiss both Lawsuit 3 and Lawsuit 4. Because Davis already had filed Lawsuit 1, which was still pending, DRMC argued Lawsuits 3 and 4 had to be dismissed.\\n\\u00b68. Davis responded by filing a \\\"Motion to Combine and Amend Complaint\\\" in both Lawsuit 3 and Lawsuit 4. In her motions, Davis acknowledged she had filed four separate wrongful-death lawsuits. And she attached to her motions a proposed First Amended Complaint that named Dr. Barber, Dr. Blaylock, and DRMC as defendants.\\n\\u00b69. While DRMC's and Davis's motions were pending, Dr. Blaylock moved to dismiss Lawsuit 2. Like DRMC, Dr. Blaylock cited the still-pending Lawsuit 1. WMe Davis filed a response, she did not file a motion to combine and amend in Lawsuit 2. Nor, apparently, did she file a motion to combine and amend in Lawsuit 1\\u2014the first-filed suit.\\n\\u00b610. The motions to dismiss for all three actions were heard on June 23, 2015. On August 12, 2015, the trial court entered three separate orders dismissing Lawsuit 2, 3, and 4. Each order gave the same reason for dismissal\\u2014\\nBased on the decision in Long, this Court finds that the first wrongful death action filed for the death of Mr. Davis, Davis v. Barber, Washington County cause no. 2014-0134 [(Lawsuit 1)], is the only valid wrongful death case filed. The remaining three cases that were subsequently filed have no effect and shall be dismissed.\\nSee Long v. McKinney, 897 So.2d 160, 173 (Miss. 2004).\\n\\u00b611. Within ten days of the orders, Davis filed a Motion to Modify Orders and/or for Reconsideration in all three dismissed actions, tolling the time to appeal. See M.R.C.P. 59, M.R.A.P. 4(d). In each motion, Davis cited her motions to combine and amend. While she acknowledged these motions had been denied implicitly when the three actions were dismissed, she asked the court to deny them expressly, so she could appeal the denials. Alternatively, she asked the court to reconsider granting her motions to combine the lawsuits instead of dismissing them.\\n\\u00b612. The trial court entered a second order in each case on August 31, 2015. The orders in Lawsuits 3 and 4 expressly denied the motions to combine and amend as moot. The orders further stated that, because Long held all subsequently filed wrongful-death suits were of \\\"no effect,\\\" the motions filed in these subsequently filed wrongful-death suits also were of no effect. See Long, 897 So.2d at 173. In Lawsuit 2, the court pointed out that no motion to combine and amend had been filed, so there was no pending motion to deny expressly.\\nIII. Notices of Appeal\\n\\u00b613. Davis timely appealed the final orders in all three eases. We consolidated the three appeals. In each, Davis the raises the same two issues\\u2014\\nI. Whether the trial court erred by failing to grant Plaintiffs Motion to Combine four separate wrongful death lawsuits that were filed by the same Plaintiffs against different Defendants at different times due to the different noticing requirements of Miss. Code Ann. \\u00a7 15-1-36 and Miss. Code Ann. \\u00a7 11-46-1.\\nII. Whether the trial court erred in its August 31, 2015 order in ruling that Plaintiffs Motion to Combine and Amend Complaint was moot.\\nDiscussion\\nI. The circuit court followed this Court's clear directive in Long when it dismissed the subsequently filed wrongful-death suits.\\n\\u00b614. We begin with Davis's second issue. She claims the trial court erred when it found in its August 31 orders that Davis's Motion to Combine and Amend Complaint was moot,\\n1\\u00cd15. To be \\\"moot\\\" is to \\\"hav[e] no practical significance.\\\" Moot, Black's Law Dictionary 1099 (9th ed. 2009). And here, Davis's motions to combine and amend had no practical significance because they were filed only in subsequently filed wrongful-death suits that were \\\"of no effect.\\\" Long, 897 So.2d at 173, 174.\\nA. Under Long, any subsequently filed lorongful-death lawsuit \\\"shall be of no effect\\\" while the first action is pending.\\n\\u00b616. Long also dealt with multiple wrongful-death suits. There, two sets of wrongful-death beneficiaries filed two different lawsuits based on the death of the same decedent. Id. at 164. The second set of beneficiaries moved to consolidate their subsequently filed action with the first. Id. at 165. When their motion was denied, this Court granted an interlocutory appeal. Id. at 167-68.\\n\\u00b617. On appeal, we applied \\\"the general rule of priority jurisdiction\\\" to uphold the \\\"one-suit\\\" rule expressed in Mississippi's wrongful-death statute. Id. at 172; see Miss. Code Ann. \\u00a7 11-7-13 (Supp. 2016). Under the rule of priority jurisdiction, \\\"[i]t is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending.\\\" Id. at 172. Stated differently, \\\"the principle of priority jurisdiction is that where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit.\\\" Id.\\n\\u00b618. We found \\\"that a logical extension of the principle of priority jurisdiction requires that all claims for the wrongful death of a person be litigated in the same suit and in the same court.\\\" Id. at 172. Thus, we held \\\"that the first court to properly take jurisdiction of a wrongful death action in our state courts shall, so long as the action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect.\\\" Id. at 173.\\n\\u00b619. In this case, the trial court took jurisdiction over Lawsuit 1\\u2014to the exclusion of Lawsuits 2, 3, and 4. Thus, we find the trial court properly applied Long's principle to hold those three subsequently filed actions were \\\"of no effect.\\\"\\n\\u00b620. On appeal, Davis tries to distinguish Long by pointing out that Long dealt with multiple plaintiffs, while here the same plaintiff brought lawsuits against multiple defendants. But we have made no such distinction, enforcing Long's one-suit rule when the same plaintiff has multiple wrongful-death suits pending. Sauvage v. Meadowcrest Living Ctr., LLC, 28 So.3d 589 (Miss. 2010) (dismissing second-filed wrongful-death suit because same plaintiff had another action pending in Louisiana involving the same death); Rose v. Bologna, 942 So.2d 1287 (Miss. 2006) (reversing the trial court's decision to sever plaintiff's wrongful-death suit against multiple care providers into three lawsuits); cf. also Briere v. S. Cent. Reg'l Med. Ctr., 3 So.3d 126 (Miss. 2009) (holding second wrongful-death lawsuit filed by the same plaintiff did not have to be dismissed because her first wrongful-death action against a different defendant was not currently pending).\\n1121. In fact, in Rose, we reversed the trial court for splitting the wrongful-death action into three suits. Rose, 942 So.2d at 1290. In that case, the administratrix had filed only one wrongful-death suit against multiple healthcare providers. But the trial court granted two of the defendant doctors' motions to sever and transfer venue, creating three wrongful-death actions. On interlocutory appeal, we reversed. In doing so, we found Long controlled. \\\"Adhering to the precedent of Long and determining that Section 11-7-13 applies,\\\" this Court \\\"conclude[d] that there cannot be three separate lawsuits for the wrongful death of Kimberly Rose.\\\" Rose, 942 So.2d at 1290 (emphasis added). And if there could not be three lawsuits in Rose, there cannot be four lawsuits here.\\n\\u00b622. So long as Lawsuit 1 was pending\\u2014 which Davis conceded it was\\u2014Davis's \\\"subsequently filed action[s] for the same death shall be of no effect.\\\" Long, 897 So.2d at 173; see also Briere, 3 So.3d at 129 (clarifying that Long requires subsequent suits be dismissed when the first suit is still pending).\\nB. Under Long, there was nothing to combine.\\n\\u00b623. Still, Davis contends the proper course was to consolidate her multiple actions. But when faced with a similar request to consolidate in Long, we clearly held that, because any subsequently filed actions are \\\"of no effect and should be dismissed,\\\" they cannot be consolidated with the first action. Id. at 174. \\\"Consolidation of suits presupposes that there are two suits to consolidate.\\\" Id. And because a wrongful-death claim \\\"must be brought in a single suit, there cannot be two suits to consolidate.\\\" Id.\\n\\u00b624. In Long, this meant the second set of beneficiaries could not consolidate their action with the first-filed. But they could join the first action. See id. Here, this means Davis could not \\\"combine\\\" all four lawsuits, for that would presuppose there were four suits to combine. But as the trial court correctly found, Lawsuits 2, 3, and 4 were \\\"of no effect and [had to] be dismissed.\\\" Id. So there was nothing to combine. See id.\\n\\u00b625. Instead, any claims against Dr. Blaylock and DRMC had to be brought in Lawsuit 1, which Davis's counsel acknowledged was still pending. But Lawsuit 1 is not part of this appeal. So the issue of whether Davis could amend her complaint in Lawsuit 1 to add her claims against Blaylock and DRMC is not before this Court.\\n\\u00b626. All that is before us in this consolidated appeal is the decision by the trial court to dismiss Lawsuits 2, 3, and 4. Because the trial court properly relied on Long, we find no error in that decision.\\nII. Despite the different notice requirements in Section 15-1-36 and Section 11-46-11, Davis did not have to file different lawsuits at different times.\\n\\u00b627. Alternatively, Davis tries to get around Long's clear holding by asserting she was \\\"legally obligated to file four separate lawsuits.\\\" This obligation to file multiple suits, she claims, was due to the fact her claims against DRMC, a community hospital, were subject to a different statute of limitations and presuit-notice requirement than her claims against private physicians Dr. Barber and Dr. Blaylock.\\n\\u00b628. For wrongful-death actions, the statute of limitations for the alleged cause of death applies\\u2014in this case medical negligence. See Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926 (Miss. 2006), as modified by Said ex rel. Heirs of Cook v. S. Cent. Reg'l Med. Ctr., Inc., 25 So.3d 1037 (Miss. 2010). Mississippi Code Section 16-1-36 governs medical negligence claims. It provides a two-year statute of limitations but requires written notice of the intent to sue at least sixty days in advance. Miss. Code Ann. \\u00a7 15\\u20141\\u2014 36(2), (16) (Rev. 2012). But medical-negligence claims against a state-sponsored hospital like DRMC are governed by the Mississippi Tort Claims Act (MTCA). And the MTCA has a shorter, one-year statute of limitations and requires presuit notice to be given at least ninety days before filing suit. Miss. Code Ann. \\u00a7 11-46-11(3)(a), (b) (Rev. 2012). So Davis's claims against private physicians Dr. Barber and Dr. Blay-lock had a longer, two-year statute of limitations but a shorter, sixty-day presuit-notice period. And Davis's claims against DRMC had a shorter, one-year statute of limitations\\u2014subject to tolling under Section 11-46-11(3) (a) and (b) \\u2014but a longer, ninety-day presuit-notice period.\\n\\u00b629. While the application of two different statutes of limitations and presuit-no-tice periods made calculating the window in which to file her lawsuit more complicated, it did not prevent Davis from filing all her claims at the same time in one wrongful-death lawsuit. And by no means was she \\\"obligated\\\" to file four separate suit for the same alleged wrongful death. Instead, based on when Richard died and when Davis filed her presuit-notice letters, Davis had a three-and-a-half-month period\\u2014from December 10, 2014, to March 25, 2016\\u2014in which she could have filed all her claims in one lawsuit.\\n\\u00b630. Davis did not wait for this window to open. Instead, Davis chose to go ahead and file Lawsuit 1 on November 4, 2014\\u2014 the day after the notice period for her claims against Dr. Barber had ended\\u2014 even though the presuit-notices period had not expired for Dr. Blaylock or DRMC. But contrary to Davis's contention, nothing in Section 15-1-36 obligated her to file her complaint against Dr. Barber as soon as the sixty-day notice period ended. Instead, the statute required her to give \\\"at least sixty (60) days' notice.\\\" Miss. Code Ann. \\u00a7 15-1-36(15) (emphasis added). So Davis could have waited until December 10, 2014\\u2014the earliest she could have filed all her claims\\u2014and still have been in compliance with both Section 15\\u20141\\u201436(15)'s pre-suit-notice requirement and Section 15-1-36(l)'s two-year statute of limitations.\\n\\u00b631. The same is true for Lawsuit 2. While the earliest she could file was on November 18, 2014, she was not obligated under Section 15-1-36 to file her second lawsuit the next day, on November 19, 2014. Nor did Section 15-1-36 prevent her from amending her complaint in Lawsuit I\\u2014an issue outside the scope of this appeal.\\n\\u00b632. Neither did Section 11-46-11 compel Davis to file Lawsuit 3 on November 19, 2014, the same day she filed Lawsuit 2. Like Section 15-1-36, notice under Section II-46-11 must be given \\\"at lead ninety (90) days before initiating suit.\\\" Miss. Code Ann. \\u00a7 11\\u201446\\u201411(1) (emphasis added). But Davis's notice served to toll the statute of limitations ninety-five days\\u2014or until December 25, 2014. Miss. Code Ann. \\u00a7 ll-46-ll(3)(a). And then, by operation of Section ll-46-ll(3)(b), she had an additional ninety days\\u2014or until March 25, 2015\\u2014to file suit. See Buckner, 61 So.3d at 169. So Davis could have waited to file all her claims on December 10, 2014, and fully complied with both statutes.\\n\\u00b633. In other words, there is no conflict between Long's clear holding that Davis could have only one pending wrongful-death lawsuit and Sections 15-1-36's and 11-46-11's differing statute of limitations and presuit-notice requirements.\\nConclusion\\n\\u00b634. Because Long clearly holds that Lawsuits 2, 3, and 4 were \\\"of no effect\\\" while Lawsuit 1 was still pending, the trial court did not err in dismissing each of these subsequently filed wrongful-death suits. Nor did it err in finding Davis's motion to amend and combine was moot, as it had been filed in the ineffective Lawsuits 3 and 4. Thus, we affirm the judgments of the trial courts, which dismissed the three subsequently filed wrongful-death suits.\\n\\u00b635. AFFIRMED.\\nWALLER, C.J., DICKINSON, P.J., KITCHENS, COLEMAN AND BEAM, JJ., CONCUR. RANDOLPH, P.J., KING AND CHAMBERLIN, JJ., NOT PARTICIPATING.\\n. Long v. McKinney, 897 So.2d 160, 173 (Miss. 2004).\\n. Davis filed a copy of her proposed First Amended Complaint in Lawsuit 2, But this filing was not accompanied by any motion to amend or combine.\\n. Technically, this issue arises only in Davis's appeal in Lawsuits 3 and 4. The trial court did not deny the motion to combine and amend as moot in Lawsuit 2 because, as the court rightly acknowledged, Davis never filed such motion in the action against Dr. Blay-lock. But as this issue goes to the trial court's underlying August 12, 2015 orders dismissing all three suits based on Long, the resolution of this issue also affects Davis's appeal of the dismissal of Lawsuit 2.\\n. See Copiah Cty. Sch. Dist. v. Buckner, 61 So.3d 162, 169 (Miss. 2011) (citing Page v. Univ. of S. Miss., 878 So.2d 1003, 1005 (Miss. 2004) (explaining how to calculate MTCA's statute of limitations based on Section 11-46-11(3)'s tolling provisions).\\n. Richard's death on September 21, 2013, triggered both Section 11-46-11(3)'s one-year statute of limitations and Section 15\\u20141\\u201436(2)'s two-year statute of limitations. See Saul, 25 So.3d at 1046 (holding that \\\"the statute of limitations for the single cause of action that may be brought pursuant to the wrongful death statute cannot begin to run until the date of death\\\").\\nThe first presuit notice Davis sent was to DRMC on August 18, 2014. Because she had to wait at least ninety days to tile an action based on the claims in her presuit notice letter, the earliest she could sue DRMC was November 18, 2014. See Miss. Code Ann. \\u00a7 11-46-11(1). Davis filed Lawsuit 3 the next day, on November 19, 2014. But due to the tolling provisions of Section 11\\u201446\\u201411(3)(a) and(b), the statute of limitations for these claims did not ran until March 25, 2015. See Miss. Code Ann. \\u00a7 11-46-11(3); see also Buckner, 61 So.3d at 169 (explaining how tolling provisions apply).\\nDavis next sent a presuit-notice letter to Dr. Barber on September 2, 2014. Because under Section 15-1-36 she had to wait at least sixty days before filing suit, the earliest she could sue him was November 3, 2014. See Miss. Code Ann. \\u00a7 15-1-36(15). Davis filed Lawsuit 1 against Dr. Barber on November 4, 2014-even though the two-year statute of limitations would not run until September 21, 2015. See Miss. Code Ann. \\u00a7 15-1-36(2).\\nDavis then sent another presuit-notice letter to DRMC on September 11, 2014. To the extent this letter made different allegations than her first, she had to wait until December 10, 2014, to tile these claims. Davis filed Lawsuit 4 on December 10, 2014. But as with her other claims against DRMC, the statute of limitations would not run until March 24, 2015.\\nFinally, Davis sent her fourth presuit-notice letter to Dr. Blaylock on September 19, 2014, This meant she had between November 18, 2014, and September 21, 2015, to file her claims against him. Davis filed Lawsuit 2 on November 19, 2014\\u2014the same day she filed Lawsuit 3.\\n. The only time a plaintiff bringing a medical-negligence claim must file her suit as soon as the sixty-day presuit notice window closes is when \\\"the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations.\\\" Miss. Code Ann. \\u00a7 15-1-36(15) (emphasis added). That is because, in such a scenario, the statute of limitations is tolled only for sixty days. Id. But here, Davis filed her presuit notice more than a year before the two-year statute of limitations expired, so Section 15\\u20141\\u201436(15)'s tolling provision did not come into play.\"}"

miss/12381389.json

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+"{\"id\": \"12381389\", \"name\": \"Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.\", \"name_abbreviation\": \"Hatfield v. Deer Haven Homeowners Ass'n\", \"decision_date\": \"2017-09-14\", \"docket_number\": \"NO. 2016-CP-00820-SCT\", \"first_page\": \"1269\", \"last_page\": \"1278\", \"citations\": \"234 So. 3d 1269\", \"volume\": \"234\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:41:23.151590+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALLER, C.J., KITCHENS, KING, MAXWELL AND BEAM, JJ\\u201e CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.\", \"parties\": \"Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.\", \"head_matter\": \"Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.\\nNO. 2016-CP-00820-SCT\\nSupreme Court of Mississippi.\\n09/14/2017\\nATTORNEY FOR APPELLANT: AR-LIN GEORGE HATFIELD, III (PRO SE)\\nATTORNEYS FOR APPELLEE: TIMOTHY JAMES ANZENBERGER, MICHAEL SCOTT JONES, JAMES L. MARTIN\", \"word_count\": \"3861\", \"char_count\": \"24029\", \"text\": \"DICKINSON, PRESIDING JUSTICE,\\nFOR THE COURT:\\n\\u00b6 1. A homeowner appeals an award of attorney fees associated with a complaint filed against him for injunctive relief to enforce a neighborhood's restrictive covenants. We affirm.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. On October 31, 2013, the Deer Haven Owners Association filed a Complaint for Mandatory Injunction and Other Relief against Arlin George Hatfield III in the Chancery Court of Madison County, claiming Hatfield \\u2014 a homeowner in the subdivision \\u2014 had violated the subdivision's restrictive covenants by erecting pens for various fowl without the covenants' required prior approval, and that Hatfield's fowl had violated the covenants' prohibition against noxious or offensive activities by roaming around the subdivision and making loud noises. The Association sought an injunction ordering Hatfield to comply with the covenants and an award of attorney fees.\\n\\u00b6 3. Hatfield answered and filed a counterclaim seeking a declaratory judgment. He asked the chancellor to declare that his birds were domestic animals which could be kept in Deer Haven consistent with the covenants and that the pens were not improvements within the meaning of the covenants. Hatfield also sought attorney fees.\\n\\u00b6 4. On June 29, 2015, the Association filed an amended complaint alleging that the Madison County Board of Supervisors had rendered a decision finding that \\\"Hatfield's keeping and raising of birds/fowl on his lot [was] a violation of the Madison County Zoning Ordinance.\\\" And according to the Association, Hatfield's failure to comply with county zoning ordinances also violated the covenants.\\n.\\u00b6 5. The parties' filed motions for summary judgment and the chancellor held a hearing, following which the chancellor granted the Association's* motion, found that Hatfield had violated the Madison County Zoning Ordinance, and concluded that the Association was entitled to an injunction ordering him to remove the fowl from his property. The chancellor also concluded the Association was entitled to recover attorney fees, but that.a hearing was necessary to determine the appropriate amount. Finally, the chancellor found that triable .issues of fact remained as to whether the pens were a improvement erected in violation of the covenants. But the parties later filed an agreed judgment stating any issues regarding the pens were moot because Hatfield had removed them from the property.\\n\\u00b6 6. On December 15, 2015, the chancellor held a hearing on the issue of attorney fees and later denied fees for either party. The Association moved for reconsideration, arguing a Mississippi Court of Appeals decision held it was an abuse of discretion to deny attorney fees when provided for in restrictive covenants. Hatfield responded, arguing that, while the covenants did provide for the prevailing party to recover attorney fees, the amount of those fees was left to the chancellor's discretion, and the chancellor was justified in awarding the Association no fees because a large portion of the fees were incurred before the Association filed its amended complaint to add the only ground upon which it prevailed. Hatfield also argued the Association had failed to present sufficient evidence to support an award of attorney fees because the billing statements were insufficiently definite to show which fees corresponded. with the prevailing claim.\\n\\u00b6 7. The chancellor held a hearing on the motion for reconsideration. After the hearing, the chancellor granted the motion and awarded the Association $50,250 in attorney fees. The chancellor rejected Hatfield's argument that the Association could not recover fees incurred before it filed the amended complaint. According t\\u00f3 the chancellor, the original complaint sought to have the fowl and pens removed for violations of the covenants, and the Association prevailed on that argument. Hatfield appealed.\\nANALYSIS\\n\\u00b6 8. On appeal, Hatfield primarily argues the chancellor erred by awarding the Association attorney fees. But Hatfield first devotes a significant portion of his brief to accusing the chancellor and the Association's attorneys of misconduct. In his record excepts, Hatfield has provided a \\\"Motion for Mistrial\\\" which he filed in the chancery court after this case already had been appealed to this Court. Attached to the motion is what appears to be a judicial performance complaint against the chancellor, bar complaints against the Association's attorneys, and a bar complaint against the Association's president, who also is an attorney. The argument in Hatfield's brief mirrors that in the judicial performance complaint.\\n\\u00b6 9. The Association has filed a motion to strike Hatfield's brief and record excerpts, arguing they should be struck because (1) they contain language disrespectful to the trial judge, (2) the \\\"Motion for Mistrial\\\" and its exhibits are not in the record on appeal, and (3) these arguments \\u2014 which are ethical complaints \\u2014 must be addressed through the Mississippi Bar 'Association and the Mississippi Commission on Judicial Performance. On March 21, 2017, Jus tice Chamberlin entered a single-justice order passing this motion for consideration with the merits.\\n\\u00b6 10. This Court 'finds that' the motion to strike should be granted. Mississippi Rule of Appellate Procedure 28(1) provides that \\\"[a]ny brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper.\\\" As the Association argues, Hatfield's brief is full of language disrespectful to the chancellor.\\n\\u00b6 11. Hatfield essentially argues that every time the chancellor ruled against him, the ruling was purely the result of the chancellor's'bias. Hatfield never identifies any particular conflict of interest or any evidence of bias. He also never provides any argument or citation to suggest any of the chancellor's rulings\\u2014except the award of attorney's fees\\u2014were legally incorrect. Further, nothing in the record reflects bias on the part of the chancellor. Instead, Hatfield simply lodges speculative claims of bias without foundation, often employing boldface and all-capital letters when describing the chancellor's \\\"prejudice.\\\"\\n\\u00b6 12.. Further, the Association correctly points out that this portion of Hatfield's brief and record excepts is based on matters outside the record on appeal. Mississippi Rule of Appellate Procedure 10(a) provides that \\\"[t]he parties shall designate the content of the record pursuant to this rule, and the record shall consist of designated papers and exhibits filed in the trial court, the transcript of proceedings, if-any, and in. all cases a. certified copy of the docket entries prepared by the clerk .of the trial court.\\\" Rule 30(a) then provides that \\\"[ajppeals. shall be on the record as designated pursuant to Rule 10.\\\" \\\"Mississippi appellate courts may not consider information that is outside the record.\\\"\\n\\u00b6 13. Here, Hatfield's \\\"Motion for Mistrial\\\" and its supporting documentation are not in the record. In fa'ct, the record was filed in this Court October 17, 2016. These documents- were not filed in the chancery court until February 6, 2017. They are not properly part of the record before this Court and cannot, be considered. Likewise, Hatfield's ethical complaints against the Association's attorneys are based on his belief that they threatened the chancellor in order to -persuade him to allow an amended complaint. But no such threat is reflected in the record.\\n\\u00b6 14. Finally, as noted above, Hatfield cites no authority- to show that any of the chancellor's rulings\\u2014attorney fees aside\\u2014was erroneous. \\\"It is the duty of the briefing party to cite to authority which supports Its argument. The Court 'considers assertions of error not supported by citation or authority to be abandoned.'\\\" Instead, Hatfield focuses this portion of his brief not on legal error, but on his belief that the chancellor violated the Canons of Judicial Conduct and that the attorneys violated the Rules of Professional Conduct. These matters, if at all, should be addressed through disciplinary proceedings, not a direct appeal.\\nAttorney Fees in the Trial Court\\n\\u00b6 15. This Court reviews an award of attorney fees for an abuse of discretion. The award must be supported by credible evidence, but determining a reasonable fee is left to the discretion of the trial judge.\\n\\u00b6 16. \\\"This Court has stated 'unless a statute or contract provides for the imposition of attorney fees, they are not recoverable.' \\\" Here, the chancellor based the award of attorney fees to the Association on Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven, which provides:\\nIn any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney's fees, in such amount as may be fixed by the court in such proceeding.\\n\\u00b6 17. Hatfield does not argue this provision is unenforceable. In fact, Hatfield sought attorney fees under this provision in the trial court. Nor does Hatfield argue the Association's attorneys billed unreasonable rates or hours. Instead, Hatfield argues the chancellor erred for two other reasons.\\n11.18. First, Hatfield argues that the chancellor erred in his application of Section 10.03. Hatfield points out that Section 10.03 allows recovery by the prevailing party, but leaves the amount to be determined by the court. Hatfield argues that, under this provision, the Association could not recover any fees expended before it filed its amended complaint because the amended complaint alleged the only ground upon which the Association prevailed: Hatfield's failure to comply with county zoning ordinances. Further, Hatfield argues that the chancellor should have awarded no attorney fees at all because the Association failed to present sufficient evidence to prove which fees related particularly to the zoning ordinance theory.\\n\\u00b6 19. Hatfield relies on two Mississippi Court of Appeals opinions. A & F Proper ties, LLC v. Lake Caroline, Inc. concerned a dispute surrounding A & F's contract to build and run a golf course for the Lake Caroline subdivision. There, the suit involved three distinct matters. First, A & F claimed Lake Caroline failed to construct an adequate road into the golf course. Second, under the contract, Lake Caroline was to convey ten lots in the neighborhood to A & F. The parties, however, disputed the method of selecting those lots. Finally, the contract required A & F \\\"to execute a 'Maintenance Deed of Trust' in favor of Lake Caroline that would serve as a permanent lien on the golf course property.\\\" The parties had a third dispute concerning this obligation.\\n\\u00b6 20. Lake Caroline prevailed on- the lot-selection and deed-of-trust issues. But A & F prevailed on the road-construction issue. The contract at issue provided for an award of attorney fees:\\nIf it becomes necessary to insure the performance of the terms and conditions of this Contract by any party hereto having to employ an attorney, then the party admitting default, or the party adjudicated as the defaulting party by a court of competent jurisdiction, shall pay reasonable attorneys' fees and the court cost incurred, if any. ,\\n\\u00b621. On appeal, the Court of Appeals .held that, under this provision, A & F could recover only attorney fees expended in litigating the road-construction issue\\u2014 the only issue on which it prevailed. The Court of Appeals also held that no attorr ney fees could be awarded because the proof-presented at trial was insufficient to distinguish between .the awardable attorney fees expended for the road-construction claim and those expended for other claims.\\n\\u00b6 22. Likewise, Industrial and Mechanical Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC concerned a dispute based on Industrial's contract with Mote as plumbing subcontractor for a commercial building construction project. Industrial claimed that Mote had breached the contract in three ways. \\\"First, [Industrial] contended that Mote failed to properly 'tie-in' a water pipe, resulting in a leak beneath part of the parking lot.\\\" \\\"Second, evidence was also presented at trial alleging that Mote breached the contract by failing to properly compact the trenches in which Mote laid sewage and water pipes.\\\" \\\"Finally,[Industrial] asserted that Mote breached the contract when Mote employees punched holes in the sheetrock walls inside the building in an effort to locate water cutoff valves, requiring [Industrial] to repair the holes at [Industrial's] expense.\\\"\\n\\u00b6 23. The chancellor found for Industrial on the first claim only, and denied Industrial's request for attorney fees. The contract had a provision providing for the recovery of attorney fees: '\\nIf it becomes necessary for Contractor to employ an attorney to enforce its rights against Subcontractor, Subcontractor agrees to pay a reasonable attorney's fee to such attorney plus all costs of litigation incurred by Contractor.\\nOn appeal, the Court of Appeals applied the rule it articulated in A & F Properties, LLC and held, that Industrial could not recover attorney fees for work related to the two claims on which it did not prevail.\\n\\u00b624. Hatfield argues this case is analogous. According to Hatfield, the Association brought several claims against him: that he violated the restrictive covenant requiring prior approval to erect improvements, that he violated the restrictive covenant prohibiting noxious activities, and that he violated the restrictive covenant requiring compliance with all-zoning ordinances. Because the chancellor's ruling in the Association's favor was based on only one of the three \\u2014 compliance with zoning ordinances \\u2014 -Hatfield argues the Association was only entitled to recover only fees expended in advancing that argument. And because the proof does not show which fees corresponded with which theory, he believes no fees should have been awarded. We disagree.\\n\\u00b6 25. The covenant in question provides for the \\\"prevailing party\\\" to recover attorney fees \\\"[i]n any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration- or any provisions hereof by reference or otherwise.\\\" As. the chancellor reasoned, the Association filed an equitable action for in-junctive relief to enforce the covenants by having Hatfield's birds and pens removed from the property. -The Association prevailed because it had obtained that relief. So we find that the chancellor correctly applied the plain language of the attorney-fees provision.\\n\\u00b6 26. Hatfield next argues the chancellor erred by awarding attorney fees incurred by the attorney the Association's liability insurance carrier retained to defend against Hatfield's counterclaim. According to Hatfield, because the Association did not pay these sums \\u2014 the insurer did \\u2014 it cannot recover these sums.\\n\\u00b6 27. The chancellor awarded the Association $50,250 in attorney fees and costs. The proof adduced at trial showed the Association paid or owed the attorney it retained \\u2014 James L. Martin of Taggart, Rimes, & Graham \\u2014 $29,477.12. The proof also established that the Association paid a $2,500 deductible for the work performed by the attorney its insurer retained \\u2014 M. Scott Jones of Adams and Reese, LLP\\u2014 who accrued $36,684 in fees excluding that deductible. Finally, the president of' the Association testified that Jones's fees had been paid by the insurance company.\\n\\u00b6 28. Because the combined amount owed by the Association for Martin's fees and the deductible is $31,977.12, at least $18,272.88 of the fees the chancellor awarded represents fees incurred by Jones and paid by the insurer. Hatfield argues that the Association cannot be awarded these fees it did not pay.\\n\\u00b629. This Court will affirm if a trial judge's award of attorney fees is supported by credible evidence. Here, the covenants provided that \\\"the prevailing party or parties shall also he entitled to an award of reasonable attorney's fees,' in such amount as may be fixed by the court in such proceeding.\\\" The covenants do not restrict the entitlement to an award only of attorney fees that are paid by the Association. Hatfield cited no authority to the chancellor \\u2014 and he cites none here \\u2014 that would require a reduction in the award of attorney fees based on who paid the fees. Indeed, under the facts here, we know of no authority that would require a reduction of the fees, even if they had not been paid at all. The covenants' only requirement is that the fees be reasonable.\\nAttorney's Fees on Appeal\\n\\u00b6 30. The Association has filed a motion for this Court to award attorney fees incurred in litigating this .appeal. Where a contract provides for an award of attorney fees, fees are awarded in the trial court, and the appellee successfully defends that award on appeal, this Court has awarded fees incurred in litigating the appeal upon motion by the appellee. In Dixie Contractors, Inc. v. Ballard, this Court awarded \\\"a fee for the services of his- attorney on this appeal in the amount of one-half of that allowed by the trial court.\\\" The Association requests the same here; or $25,125.00. While allowing attorney fees on appeal in an amount equal to one-half of the fees allowed by the trial court may not be fair and equitable in all cases, we find doing so here to be appropriate. We think the better practice, however, would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that' establish the actual fees expended on appeal.\\nCONCLUSION\\n\\u00b6 31. The judgment of the Chancery Court of Madison County is affirmed. And this Court grants the appellee's motions to strike and for attorney fees on appeal in the amount of $25,125.00; \\u00b632. AFFIRMED.\\nWALLER, C.J., KITCHENS, KING, MAXWELL AND BEAM, JJ\\\" CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.\\n. Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven provides:\\nIn any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney's fees, in such amount as may be fixed by the court in such proceeding.\\n. Miss. R. App. P. 28(Z).\\n. Miss. R. App. P. 10(a).\\n. Miss. R. App. P. 30(a).\\n. Hardy v. Brock, 826 So.2d 71, 76 (Miss. 2002) (citing Dew v. Langford, 666 So.2d 739, 746 (Miss. 1995)).\\n.Russell Real Prop. Servs., LLC v. State, 200 So.3d 426, 430 (Miss. 2016) (citing Miss. R. App. P. 28(a)(6); quoting McNeil v. Hester, 753 So.2d 1057, 1075 (Miss. 2000)).\\n. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (Miss. 2002) (citing Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss. 1995)).\\n. Cook, 832 So.2d at 486 (citing Regency Nissan, Inc., 678 So.2d at 103; quoting Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss. 1966); Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss. 1999)).\\n. Hearn v. Autumn Woods Office Park Prop. Owners Ass'n, 757 So.2d 155, 164 (Miss. 1999) (quoting Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss. 1986)).\\n. See Cook, 832 So.2d at 486 (quoting Miss. R. Prof'l Conduct 1.5) (\\\" '(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.' \\\").\\n.Hatfield argues that this makes the attorney fees provision permissive, rather than mandatory. That distinction, for purposes of this appeal, is irrelevant. The chancellor awarded attorney fees. Hatfield asks this Court to reverse the award. Whether the chancellor had to award them, or exercised his discretion to do so, is irrelevant because, to prevail on appeal, Hatfield must show that the chancellor could not do so.\\n. A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1278 (Miss. Ct. App. 2000).\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id. at 1282-83.\\n. Id. at 1283.\\n. Id. at 1283-84.\\n. Indus. and Mech. Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC, 962 So.2d 632, 634 (Miss. Ct. App. 2007).\\n. Id. at 634-35.\\n. Id.\\n. Id. at 635.\\n. Id.\\n. Id.\\n. Id. at 638.\\n. Id. at 638-39 (citing A & F Props., LLC, 775 So.2d at 1282-83).\\n.Cook, 832 So.2d at 486 (citing Regency Nissan, Inc., 678 So.2d at 103; quoting Gilchrist Tractor Co., 192 So.2d at 418; Mauck, 741 So.2d at 269).\\n. See Knight v. McCain, 531 So.2d 590, 597 (Miss. 1988); Dixie Contractors, Inc. v. Ballard, 249 So.2d 653, 657 (Miss. 1971).\\n. Dixie Contractors, Inc., 249 So.2d at 657.\"}"

miss/12692461.json

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+"{\"id\": \"12692461\", \"name\": \"Victor L. MCBEATH a/k/a Victor McBeath, Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"McBeath v. State\", \"decision_date\": \"2018-11-13\", \"docket_number\": \"NO. 2017-KA-01090-COA\", \"first_page\": \"579\", \"last_page\": \"587\", \"citations\": \"271 So. 3d 579\", \"volume\": \"271\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Court of Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-27T21:07:30.510946+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.\", \"parties\": \"Victor L. MCBEATH a/k/a Victor McBeath, Appellant\\nv.\\nSTATE of Mississippi, Appellee\", \"head_matter\": \"Victor L. MCBEATH a/k/a Victor McBeath, Appellant\\nv.\\nSTATE of Mississippi, Appellee\\nNO. 2017-KA-01090-COA\\nCourt of Appeals of Mississippi.\\nNovember 13, 2018\\nATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, CLARKSDALE\\nATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON\\nBEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.\", \"word_count\": \"4183\", \"char_count\": \"25052\", \"text\": \"WILSON, J., FOR THE COURT:\\n\\u00b6 1. Following a jury trial in the Neshoba County Circuit Court, Victor McBeath was convicted of first-degree murder and first-degree arson. On appeal, McBeath argues that his trial counsel provided ineffective assistance by failing to investigate or present an insanity defense and by failing to object to certain opinion testimony from law enforcement officers. We conclude that the present record is insufficient to address McBeath's claim. Therefore, we dismiss the claim without prejudice. McBeath may assert the claim in a properly filed motion for post-conviction relief. McBeath's convictions and sentences are affirmed.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. On the evening of November 25, 2015, McBeath and his brother Demonta were \\\"chilling\\\" with some friends at a house in Walnut Grove. Between 9 and 10 p.m., McBeath drove back to his father's house in Neshoba County, where he and Demonta lived. Fifteen to thirty minutes later, Demonta did the same. When Demonta arrived home, McBeath was on the couch in the living room, where he usually slept. Demonta testified that McBeath was \\\"acting delusional, psychotic, and he was talking out of his head.\\\" Demonta briefly talked to McBeath and then went to his bedroom, locked his door, and went to sleep. Demonta testified that when he went to bed, McBeath was still pacing in the living room and talking to himself. Their father, Ozie, was already asleep in his bedroom.\\n\\u00b6 3. Around 3:30 or 4 a.m., Demonta awoke to a gunshot and a scream. He jumped out of bed and ran into the hallway. He then saw McBeath walking toward him with a shotgun. McBeath did not say anything at first, but he seemed \\\"angry\\\"-\\\"[h]is eyes were bulged and he seemed dysfunctional.\\\" Demonta testified that McBeath then said to \\\"get the baby,\\\" although there was no baby in the house. When McBeath pointed the gun at him, Demonta \\\"tried to make a run for it.\\\" He knocked over a dresser, broke out a window, and tried to climb out. But McBeath still had the gun pointed at him. Demonta begged McBeath not to shoot him. When McBeath paused briefly, Demonta charged at him, knocked him down, and took the gun. Demonta asked McBeath what he had done, and McBeath said, \\\"Monta, I'm sorry.\\\"\\n\\u00b6 4. Demonta, now holding the shotgun, ran to Ozie's bedroom. He saw blood on a pillow but did not see Ozie, so he began searching other rooms. While Demonta looked for Ozie, McBeath found a rifle. Demonta and McBeath ran into each other outside Ozie's bedroom. Demonta hit McBeath with his shotgun, and a fight ensued. Demonta was able to take the rifle from McBeath, and he then continued his search for Ozie. Demonta finally found Ozie on a daybed in the living room. Ozie had been shot in the back of the head and appeared to be dead. Demonta then used a padlock to lock the shotgun and rifle in a bedroom, and he left the house in Ozie's Chevy Tahoe. As Demonta drove away, McBeath was pacing in the yard and still \\\"talking out of his head.\\\"\\n\\u00b6 5. Neshoba County deputy sheriffs Colby Clay and Greg Tubby went to the house to investigate. Clay knew McBeath because he had been called to the house several times on \\\"disturbance calls\\\" involving McBeath and Ozie. Clay and Tubby initially knocked on the door and waited, but after they saw fire coming out of a window, they kicked open the front door and entered the house. Once inside, they saw Ozie on the daybed. They tried to look for others, but there was too much smoke, so Tubby retrieved a fire extinguisher from their car and used it to put out the fire. Clay found a space heater in the dining room near the spot where the fire appeared to have started. Clay testified that he did not smell any accelerants at the time.\\n\\u00b6 6. Clay and Tubby then moved to the backyard. There was a tree line fifty feet or so behind the house, and Clay shined his flashlight into the trees and called, \\\"Victor, come out.\\\" After he called two or three times, McBeath responded, \\\"Mr. Clay, I'm coming out.\\\" McBeath then came out of the trees, and Clay handcuffed and arrested him. Clay testified that McBeath's \\\"demeanor was a bit spacey.\\\" McBeath was responsive as long as Clay could keep \\\"his attention,\\\" but he was also \\\"mumbling\\\" to himself incoherently. Clay testified that McBeath \\\"was acting different\\\" that night than during their prior encounters, but Clay did not smell any alcohol on McBeath. Clay said it was \\\"possible\\\" that McBeath was under the influence of drugs.\\n\\u00b6 7. Investigator Ralph Sciple determined that Ozie was shot in his bedroom while still lying down in his bed and then dragged through the house to the daybed. Sciple found the rifle and shotgun, a Winchester, in a locked bedroom and a pistol under Ozie's pillow. Sciple, who was also the arson investigator for Neshoba County, examined the dining room and the space heater and determined that the fire was set intentionally because \\\"[t]here was nothing else there that would . set it on fire.\\\" He testified that the space heater was not turned on at the time of the fire, so it could not have caused the fire.\\n\\u00b6 8. Sciple was unable to interview McBeath at the time of his arrest because he seemed to be \\\"under the influence of something.\\\" However, Sciple and Sheriff Tommy Waddell interviewed McBeath in jail a few days later. McBeath waived his Miranda rights and agreed to talk to Sciple and Waddell without an attorney. Sciple testified that McBeath did not appear to be under the influence of drugs or alcohol at the time of the interview. McBeath told Sciple and Waddell that he could not remember much about killing Ozie. McBeath said repeatedly that he was \\\"on some bad dope and went crazy.\\\" He told Sciple that the \\\"bad dope\\\" was methamphetamine.\\n\\u00b6 9. McBeath told Sciple that he remembered shooting Ozie, but he did not know why he did it. He said that he moved Ozie to the living room to try to get help. McBeath also admitted that he started the fire, but he said he could not remember what he used to start it. The interview was not recorded, and McBeath declined to make a written statement.\\n\\u00b6 10. McBeath was indicted for first-degree murder and first-degree arson. His attorney, James E. Smith III, filed a motion for a psychiatric evaluation to determine his competence to stand trial. In his motion, Smith stated that he believed that McBeath was mentally ill and unable to assist in his own defense. The court ordered an evaluation and directed the psychiatrist to assess McBeath's present ability to assist in his own defense and competence to stand trial. The court's order also directed the psychiatrist to assess McBeath's ability to know the difference between right and wrong at the time of the offense.\\n\\u00b6 11. Dr. Mark Webb evaluated McBeath. In his report, Webb noted that McBeath denied killing Ozie and claimed that \\\"they have the wrong person.\\\" McBeath told Webb that he had \\\"fired [Smith]\\\" and wanted a new attorney because Smith \\\"was not listening to [him].\\\" Webb noted that McBeath had no history of mental illness and was not taking any medications, although he claimed to have smoked \\\"a lot of marijuana\\\" prior to his arrest. Webb described McBeath as \\\"cooperative, logical and coherent, [and] fairly cheerful.\\\" McBeath told Webb that he had not experienced any hallucinations, delusions, or manic episodes. Webb found that McBeath's insight, judgment, memory, and concentration were all \\\"good.\\\" Webb further noted that \\\"McBeath laugh[ed] and joke[d] a good bit during the interview,\\\" and McBeath was adamant that he was \\\"not crazy.\\\" Webb's only diagnosis was \\\"Alcohol and Marijuana Use Disorder,\\\" which he based on McBeath's own descriptions of his alcohol and drug use. Webb concluded, \\\"McBeath is competent to stand trial and is not criminally insane.\\\"\\n\\u00b6 12. At a subsequent hearing, Webb reaffirmed the substance and conclusions of his report. Webb testified that McBeath understood his legal situation and the charges against him. Indeed, Webb testified that McBeath was \\\"actually a fairly intelligent person\\\" with no history of mental health issues. Webb testified that McBeath was competent to stand trial. He also testified that there was no evidence of any M'Naghten issue and that McBeath had no mental health issues other than alcohol and marijuana use. Webb testified that he found \\\"no reason to suggest that [McBeath] was insane at the time of the [offense].\\\" He found McBeath to be \\\"stone cold psychiatrically normal, except for his history of alcohol and drug abuse.\\\"\\n\\u00b6 13. McBeath did not testify or call any witnesses at his competency hearing. At the end of the hearing, the trial judge ruled that McBeath was competent to stand trial.\\n\\u00b6 14. Smith also filed a pretrial motion to withdraw as McBeath's counsel on the ground that McBeath had refused to cooperate or discuss the facts of the case. According to Smith's motion, McBeath also claimed during one meeting that Sheriff Waddell had \\\"stolen his mind.\\\" The circuit court held a hearing on Smith's motion to withdraw on the same day as McBeath's competency hearing. Two lawyers testified. Both had accompanied Smith to meet with McBeath and corroborated the substance of Smith's motion. One confirmed that McBeath had said something to the effect that the sheriff had stolen his mind.\\nMcBeath declined to testify during the hearing on Smith's motion to withdraw. At the conclusion of the hearing, the trial judge found-based on Dr. Webb's report and testimony-that McBeath clearly had the ability to cooperate with counsel. The judge then admonished McBeath to start cooperating with Smith, and he denied Smith's motion to withdraw.\\n\\u00b6 15. McBeath's case proceeded to trial on July 5-6, 2017. Demonta, Clay, Sciple, and three expert witnesses testified in the State's case-in-chief. Expert testimony established, among other things, that Ozie's DNA was on the shirt that McBeath wore on the night of the murder; that shotgun hulls found in Ozie's bedroom matched the Winchester shotgun; that Ozie died from a single shot to the back of the head; and that the shotgun was in direct contact with Ozie's head when it was fired. After the State rested, McBeath declined to testify and rested without calling any witnesses. The jury found McBeath guilty of first-degree murder and first-degree arson. The court sentenced McBeath to life imprisonment for murder and twenty years in the custody of the Department of Corrections for arson, with the sentences to run consecutively. McBeath filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.\\nANALYSIS\\n\\u00b6 16. On appeal, McBeath asserts that his trial counsel provided ineffective assistance by \\\"failing to raise an insanity defense and/or present an insanity defense instruction\\\" and by failing to interview witnesses to \\\"investigate\\\" a potential insanity defense. McBeath also argues that trial counsel was ineffective because he \\\"fail[ed] to object to speculative opinion testimony by police officers.\\\" We address these issues in turn below.\\n\\u00b6 17. \\\"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\\\" Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, the defendant must show both (1) \\\"that counsel's performance was deficient\\\"-i.e., \\\"that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment\\\"-and (2) that he was prejudiced as a result-i.e., \\\"that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\\\" Id. at 687, 104 S.Ct. 2052. Stated differently, \\\"[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Id. at 694, 104 S.Ct. 2052. \\\"A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. \\\"If either prong [of the Strickland test] is not met, the claim fails.\\\" Havard v. State , 928 So.2d 771, 781 (\\u00b6 8) (Miss. 2006).\\n\\u00b6 18. Ordinarily, a claim of ineffective assistance should be raised in a motion for post-conviction relief, not on direct appeal. We have explained that\\n[i]t is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal because there is usually insufficient evidence within the record to evaluate the claim. Because an appellate court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for post-conviction relief. We may address such claims on direct appeal only if (a) the issues are based on facts fully apparent from the record or (b) the parties stipulate that the record is adequate, and we determine that additional findings of fact by a trial judge are not needed. If the record is not sufficient to address the claims on direct appeal, we dismiss the claims without prejudice, preserving the defendant's right to raise the claims later in a properly filed motion for post-conviction relief.\\nShinn v. State , 174 So.3d 961, 965 (\\u00b6 11) (Miss. Ct. App. 2015) (citations, quotation marks, and alterations omitted); see also Taylor v. State , 167 So.3d 1143, 1146 (\\u00b6 5) (Miss. 2015) (\\\"While post-conviction proceedings are often the most appropriate forum for review of ineffective assistance of counsel, we may nevertheless reach the merits of the ineffectiveness issue where the record affirmatively shows ineffectiveness of constitutional dimensions.\\\" (alterations and quotation marks omitted) ).\\nI. Insanity Defense\\n\\u00b6 19. As noted above, McBeath claims that his trial counsel was ineffective because he failed to pursue an insanity defense and failed to offer a jury instruction on the defense. Under this heading, McBeath also asserts that his trial counsel was ineffective because he \\\"fail[ed] to investigate\\\" a potential insanity defense. However, the State does not \\\"stipulate that the record is adequate\\\" to address this claim. Nor is a constitutional violation apparent from the face of the record. Therefore, we hold that McBeath's claim cannot be decided on direct appeal. The claim must be addressed, if at all, in a motion for post-conviction relief.\\n\\u00b6 20. To begin with, although McBeath did not testify, the record suggests that he did not want to pursue an insanity defense. McBeath made clear to Dr. Webb that he was \\\"not crazy,\\\" and he complained that his lawyer \\\"was not listening to\\\" his claim that he was innocent. As discussed above, Webb and the trial judge both concluded that McBeath was competent to stand trial, and the judge's ruling has not been challenged on appeal. Competence to stand trial and sanity at the time of the offense are distinct issues. But it is unclear that an attorney can assert an insanity defense without his client's consent. This appears to be an open issue in Mississippi, but most jurisdictions hold that defense counsel may not assert an insanity defense over the objection of a competent defendant. See, e.g. , McLaren v. State , 407 P.3d 1200, 1212 (Wyo. 2017) (collecting cases). We need not and do not address that legal issue in this case. Rather, we simply note that the record in this appeal does not even show that McBeath was willing to assert an insanity defense. In fact, the record suggests that he was opposed to it.\\n\\u00b6 21. More important, the record on appeal does not establish any reasonable probability that the jury would have found McBeath not guilty by reason of insanity. As discussed above, the trial judge specifically directed Dr. Webb to evaluate McBeath's sanity \\\"at the time of the alleged offense.\\\" Webb subsequently testified that he found no evidence of psychosis or any other possible M'Naghten issues. Webb noted that McBeath had no history of mental illness and was not taking any medications at the time of the offense. McBeath told Webb that \\\"[h]e was smoking a lot of marijuana and drinking prior to his arrest.\\\" But Webb testified that those are \\\"intoxication issues and not psychosis or things like that.\\\" Webb's testimony is consistent with the law in this State, as well as the jury instructions given in this case. \\\"[V]oluntary intoxication is not a defense to a specific intent crime, such as murder.\\\" Lanier v. State , 533 So.2d 473, 478 (Miss. 1988). \\\"An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed.\\\" Lee v. State , 403 So.2d 132, 134 (Miss. 1981).\\n\\u00b6 22. On appeal, McBeath ignores Dr. Webb's uncontradicted testimony that there was no evidence of psychosis or any other M'Naghten issue in this case. Instead, McBeath cites Demonta's testimony that he was \\\"acting delusional, psychotic, and he was talking out of his head.\\\" McBeath also relies on Demonta's hearsay testimony about a prior incident when their sister allegedly \\\"tried to tell [police] that [McBeath] was psychotic.\\\" McBeath also cites Clay's testimony that he was \\\"spacey\\\" and mumbling incoherently at the time of his arrest. Finally, McBeath relies on trial counsel's concerns about his ability to assist in his own defense and his bizarre statements about the sheriff stealing his mind. Relying on this lay testimony, McBeath's appellate counsel asserts that \\\"[p]roper preparation\\\" by trial counsel could have established that McBeath killed Ozie because of \\\"a severe psychotic episode.\\\"\\n\\u00b6 23. However, most of the lay testimony that McBeath cites on appeal is consistent with Dr. Webb's conclusion that McBeath was sane at the time of the offense and was not suffering from psychosis or any other mental illness. Moreover, there is no evidence in the record to show that McBeath's unusual behavior was caused by a mental illness, much less a mental illness that would satisfy the M'Naghten test. That is, there is nothing to show that McBeath was incapable of distinguishing \\\"right from wrong at the time of the offense.\\\" Hearn , 3 So.3d at 738 (\\u00b6 46). Given Dr. Webb's uncontradicted testimony that McBeath was sane and not suffering from any mental illness at the time of the offense, there is no \\\"reasonable probability\\\" that a jury would have found McBeath not guilty by reason of insanity. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. Therefore, based on the evidence in the record on appeal, McBeath cannot establish \\\"prejudice\\\" under the second prong of the Strickland test. Id. ; see Epps v. State , 984 So.2d 1042, 1048-50 (\\u00b6\\u00b6 22-27) (Miss. Ct. App. 2008) (holding that the defendant was not prejudiced by his attorneys' failure to pursue an insanity defense because \\\"[h]e could not fulfill the requirements of M'Naghten \\\"). Because McBeath cannot satisfy Strickland 's second prong on the present record, it follows that he cannot prevail on his ineffective assistance claim in this appeal. Havard , 928 So.2d at 781 (\\u00b6 8).\\n\\u00b6 24. Rather than reject McBeath's ineffective assistance claim on the merits, we follow our usual practice and dismiss the claim without prejudice. As discussed above, we ordinarily decline to consider ineffective assistance claims on direct appeal. See Shinn , 174 So.3d at 965 (\\u00b6 11). In this appeal, McBeath argues in part that his counsel failed to interview witnesses to investigate a possible insanity defense. By its nature, such a failure-to-investigate claim cannot be evaluated on direct appeal because it alleges that counsel failed to discover evidence that is not in the record. See Page v. State , 987 So.2d 1035, 1037-38 (\\u00b6\\u00b6 7-12) (Miss. Ct. App. 2008). The mere fact that an insanity defense was not asserted does not mean that defense counsel did not investigate the issue. Id. at 1038 (\\u00b6 11). \\\"[D]efense counsel could have investigated [McBeath's] mental state and been unable to glean any useful evidence for [McBeath's] defense.\\\" Id.\\n\\u00b6 25. Moreover, McBeath's appellate counsel effectively concedes that his claim needs some support from outside the present record. In a footnote, appellate counsel states that his assertion that McBeath experienced a psychotic episode is based on his own review of \\\"several medical sources\\\" (i.e., websites) that do not appear in the record. The present record contains no such support for McBeath's allegation that he suffered from a mental illness at the time of the offense. See id. (declining to address a claim of ineffective assistance based on counsel's failure to pursue an insanity defense because the claim relied on a publication that did \\\"not appear in the record\\\"). Finally, as noted above, the State specifically declines to stipulate that the record on appeal is adequate to permit consideration of McBeath's claim. Accordingly, we dismiss McBeath's ineffective assistance claim without prejudice to his right to assert such a claim in a properly filed motion for post-conviction relief.\\nII. Failure to Object\\n\\u00b6 26. McBeath also complains on appeal that trial counsel failed to object to \\\"speculative opinion testimony\\\" by law enforcement officers. He refers to three such opinions. First, Clay testified that although McBeath did not appear to be under the influence of alcohol at the time of his arrest, it was \\\"possible\\\" that he was under the influence of drugs. Second, Sciple testified that the fire in the house was set intentionally because \\\"[t]here was nothing else [where the fire started] that would . set it on fire.\\\" Sciple explained that the space heater was not turned on, so it could not have started the fire. Third, Sciple testified when McBeath told him he had taken some \\\"bad dope\\\" (methamphetamine), he understood McBeath to mean that he \\\"had mixed meth with some other kind of chemical that he wasn't used to.\\\"\\n\\u00b6 27. McBeath devotes less than a page to this issue. He fails to develop any argument or cite any authority to show that a timely objection to the testimony at issue would have been sustained. That is, he simply asserts, without support, that the testimony was objectionable. We could hold that the issue is waived for that reason. See Randolph v. State , 852 So.2d 547, 558 (\\u00b6 29) (Miss. 2002).\\n\\u00b6 28. Instead, because the issue is related to McBeath's claim that trial counsel should have investigated and asserted an insanity defense, we also dismiss this claim without prejudice. McBeath may raise this allegation of ineffective assistance in a properly filed motion for post-conviction relief.\\nCONCLUSION\\n\\u00b6 29. McBeath's convictions and sentences are affirmed. His allegation that trial counsel provided ineffective assistance of counsel is dismissed without prejudice.\\n\\u00b6 30. AFFIRMED.\\nLEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.\\nDuring trial, McBeath made an ore tenus motion to suppress his oral statements to Sciple and Waddell. The court held a suppression hearing outside the presence of the jury, and both Sciple and Waddell testified. McBeath did not testify. The trial judge then denied McBeath's motion, finding that his Miranda waiver was valid and that his statement was free and voluntary. McBeath does not raise this issue on appeal.\\n\\\"Mississippi follows the M'Naghten test for determining whether a person was sane at the time of the crime. Under the M'Naghten test, the accused must be laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong. In sum, the accused must not have known right from wrong at the time of the offense.\\\" Hearn v. State , 3 So.3d 722, 738 (\\u00b6 46) (Miss. 2008) (citations and quotation marks omitted).\\nDr. Webb testified that McBeath did not make any such claim when they met.\\n\\\"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.\\\" Strickland , 466 U.S. at 697, 104 S.Ct. 2052. \\\"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . that course should be followed.\\\" Id.\\nMcBeath may not file such a motion in the circuit court unless he obtains permission from the Mississippi Supreme Court. See Miss. Code Ann. \\u00a7 99-39-7 (Rev. 2015).\"}"

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+"{\"id\": \"12692505\", \"name\": \"Hazel SMITH, Appellant v. HOWARD INDUSTRIES, INC. (Self Insured,) Appellee\", \"name_abbreviation\": \"Smith v. Howard Indus., Inc.\", \"decision_date\": \"2018-12-18\", \"docket_number\": \"NO. 2018-WC-00019-COA\", \"first_page\": \"774\", \"last_page\": \"781\", \"citations\": \"271 So. 3d 774\", \"volume\": \"271\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Court of Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-27T21:07:30.510946+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.\", \"parties\": \"Hazel SMITH, Appellant\\nv.\\nHOWARD INDUSTRIES, INC. (Self Insured,) Appellee\", \"head_matter\": \"Hazel SMITH, Appellant\\nv.\\nHOWARD INDUSTRIES, INC. (Self Insured,) Appellee\\nNO. 2018-WC-00019-COA\\nCourt of Appeals of Mississippi.\\nDecember 18, 2018\\nATTORNEY FOR APPELLANT: H. ALEXANDER BRINKLEY\\nATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR., LAUREL\\nBEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.\", \"word_count\": \"3039\", \"char_count\": \"18712\", \"text\": \"IRVING, P.J., FOR THE COURT:\\n\\u00b6 1. Hazel Smith appeals the decision of the Workers' Compensation Commission (Commission), asserting that two of its findings are unsupported by substantial evidence: (1) that Smith was capable of performing the substantial acts of her usual employment; and (2) that Smith was not permanently and totally disabled, but rather only suffered a partial, fifty percent loss of industrial use to her right upper extremity. We find that the Commission's decision is supported by substantial evidence; therefore, we affirm.\\nFACTS\\n\\u00b6 2. At the time of the events giving rise to this appeal, Smith was employed as a final assembler at Howard Industries Inc. She was sixty years old and had worked at Howard for approximately twenty years. She reached the eleventh grade in high school and did not obtain her GED. Prior to her employment at Howard, she worked various labor jobs, including as a shirt inspector at a factory in Arkansas; as a manager at a Pizza Hut; inspector of rice, sugar, and flour bags; and as an assistant manager at a resort. Her job as a final assembler at Howard consisted generally of pulling wire off of spools and then using a crimping gun to put leads on the wires. This job required Smith to repetitively grasp and pull the crimping gun and to lift bins containing parts that weighed more than twenty pounds. She fell into the pay grade of 11.3 and earned $12.56 per hour, which came to an average weekly wage of $807.\\n\\u00b6 3. On August 5, 2013, while operating the crimping gun, Smith felt a sharp, shooting pain throughout her arm. She immediately reported the injury to her supervisor and sought medical care, where she learned that she had sustained an injury to her right upper extremity. She also went on to develop bilateral carpal tunnel syndrome. Following her injury, Smith returned to Howard and continued to work in a different capacity-driving a forklift-until she had the first of several surgeries by Dr. Rocco Barbieri on December 18, 2013. On November 10, 2014, Dr. Barbieri diagnosed Smith with a four percent upper-extremity impairment, determined that she had reached maximum medical improvement (MMI), and summarized the findings of a functional capacity exam, which he approved and adopted in determining the work limitations to be placed on Smith:\\nA Functional Capacity Exam was performed by Drayer Physical Therapy and it demonstrated findings that the patient was recommended for a light duty level of work which [is] really no lifting more than 20 pounds and some specifics on avoiding paths that would require balance on uneven surfaces due to preexisting problem with polio. She also should avoid a combination of repetitive forceful grasping and vibration, as well as sustained posturing of the wrists greater than 30 degrees of flexion as this may worsen her carpal tunnel.\\nMy opinion, at this time, is that this Functional Capacity Evaluation is in line with what I perceived the patient being able to do regarding her work activities and I will release her to work with these restrictions of light duty limitations. Essentially, she will not be allowed to lift or carry more than 20 pounds, will avoid unusual postures of the wrist or sustained repetitive gripping actions.\\nSmith returned to Howard in September 2016. Her job title and pay grade stayed the same as prior to her injury, but her pay was raised to $12.96 per hour due to a company-wide increase. She was offered a new job that allegedly fell within her medical restrictions. This job consisted of pulling rubber tips off of threads. Smith testified that she attempted the job but was unable to pull the rubber tips off due to the immobility of her thumb. She was accompanied by John Risher, Howard's environmental and safety manager. When Smith informed Risher that she was unable to properly grip the rubber tips due to her thumb, he moved her to another job. She burned her arm and was subsequently sent home and told that someone from Howard would call her; however, she has not heard from Howard since that date. Smith contends that she searched for work elsewhere but was unsuccessful.\\n\\u00b6 4. Smith timely filed a petition to controvert on February 19, 2015. On February 1, 2017, an administrative judge (AJ) conducted a hearing to determine the existence and extent of permanent disability and any applicable penalties and interest. The parties stipulated that Smith's August 5, 2013 injury was work-related, that she began accruing disability on December 18, 2013, and that she reached MMI on November 10, 2014. The parties also stipulated that Smith's average weekly wage was $807.\\n\\u00b6 5. During the hearing, Smith testified regarding the requirements of her job. Pete Mills, a vocational rehabilitation counselor, testified that he went to Howard and observed several different positions. He developed a list of three different jobs that he believed fell within Dr. Barbieri's medical restrictions for Smith and issued a report including that information. Mills also conducted a job survey, wherein he analyzed Smith's past work history and education level and determined what types of jobs might be available to her. On January 12, 2017, ten days before the hearing, he composed a list of four openings for which Smith might be suited: openings at Red Lobster, Krystal, IHOP, and TGI Fridays. The pay for each of these positions was $7.25 per hour. Mills testified that on the day before the hearing, he went online and found that the TGI Fridays and IHOP positions had been filled. Despite this, Mills opined that he felt that Smith was able to find employment with a company other than Howard. Mills further opined that Smith had not been effectively conducting her job search; specifically, Mills testified that Smith had been writing \\\"light duty\\\" on each of her applications-which deterred potential employers-and there was inconsistency in the rate at which she was submitting applications.\\n\\u00b6 6. Risher testified that Smith was unable to return to her pre-injury position as a final assembler due to the medical restrictions imposed by Dr. Barbieri. He stated that the job that Smith was offered when she briefly returned in September 2016-removing rubber tips-fell within those restrictions. On cross-examination, Risher conceded that the duties required by the job removing rubber tips might require repetitive gripping actions, which fell outside of Dr. Barbieri's restrictions for Smith; however, Risher maintained that the job could be done with either hand. Risher further testified that the other two jobs on Mills's list were not offered to Smith because she told him she could not do the work.\\n\\u00b6 7. Following the hearing, the AJ issued an order finding that Smith had sustained a 50% industrial loss of use to her right upper extremity and that she consequently could not perform the substantial acts of her usual employment. The AJ ordered Howard to pay Smith permanent disability benefits of $449.12 beginning November 11, 2014, for a period of 100 weeks as compensation, with 10% interest added to each installment as provided by Mississippi Code Annotated section 71-3-37(5) (Rev. 2011).\\n\\u00b6 8. Smith appealed the AJ's findings, arguing that she erred in finding that Smith only suffered a 50% loss of industrial use to her right upper extremity and in performing a loss of wage-earning-capacity analysis to decide the industrial loss of use of a scheduled member, which is inconsistent with existing workers' compensation law. The Commission adopted the AJ's findings in relevant part and affirmed its finding that Smith suffered a 50% loss of industrial use to her right upper extremity; however, it amended the AJ's order to find that although Smith had suffered a loss of industrial use in excess of her medical impairment rating, she was capable of performing the substantial acts of her usual employment. Smith filed this timely appeal.\\nDISCUSSION\\n\\u00b6 9. Smith asserts two issues on appeal; however, because our analysis necessarily invokes both issues, we discuss them together. The standard of review regarding workers' compensation matters is well-settled in Mississippi caselaw:\\nIn workers' compensation cases, this Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated constitutional or statutory rights. The Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission. When the Commission's decision is supported by substantial evidence, it must be upheld. This remains true even though we might have reached a different conclusion were we the trier of fact. Furthermore, we are reminded that workers' compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the act may be accomplished.\\nHoward Indus. Inc. v. Hardaway , 191 So.3d 1257, 1261-62 (\\u00b6 10) (Miss. Ct. App. 2015) (citations and internal quotation marks omitted).\\n\\u00b6 10. As the Commission notes in its order, this is a scheduled-member case. \\\" Mississippi Code Annotated section 71-3-17 (Supp. 2014) provides two avenues for a claimant seeking compensation for loss of a scheduled member. Subsection (a) applies to claims for permanent total disability, whereas subsection (c) applies when . the claimant seeks permanent partial disability benefits.\\\" Hardaway , 191 So.3d at 1265-66 (\\u00b6 24). Determination of whether a claimant has suffered permanent total disability or permanent partial disability controls which analysis we conduct in order to calculate benefits.\\n\\u00b6 11. Here, Smith contends that she suffered permanent total disability and argues that both the AJ and the Commission erred in finding that she only sustained a 50% industrial loss of use of her right upper extremity. Smith maintains that despite her 4% medical impairment rating, she suffered a 100% industrial loss of use of her right upper extremity such that she has been rendered permanently and totally disabled. In support of her argument, Smith points to both her testimony and Risher's testimony that she was unable to return to the job she held pre-injury. Smith also argues that Howard presented no vocational testimony to show that Smith was employable post-injury. Howard, in contrast, argues that the evidence presented shows that Smith was not totally disabled: Mills, the vocational expert, located three jobs inside Howard and four jobs outside Howard that purportedly fell within Smith's medical restrictions. Howard maintains that Smith offered no evidence to suggest that she was unable to perform these jobs, aside from her own self-serving testimony that she was simply incapable of doing them.\\n\\u00b6 12. This Court in Howard Industries Inc. v. Satcher , 183 So.3d 907, 912 (\\u00b6 14) (Miss. Ct. App. 2016), set forth the requirements for establishing a prima facie case of permanent total disability where, as here, the claimant has only suffered a partial medical loss:\\nTo establish a prima facie case for permanent total disability, the claimant has the burden to show he has sought and been unable to find work in the same or other employment. The claimant must show he took reasonable efforts to find other employment. The claimant can also establish a prima facie case for total disability if, after reaching MMI, the claimant reports back to the employer for work and the employer refuses to reinstate or rehire him. After the claimant makes out a prima facie case, the burden shifts to the employer to rebut or refute the claimant's evidence by showing the claimant's efforts were not reasonable or were a sham. The issue of whether a claimant's permanent disability is partial or total is a question of fact determined by the evidence as a whole, including both lay and medical testimony.\\n(Citations and internal quotation marks omitted). \\\"To determine the reasonableness of the claimant's job search, factors are examined such as job availability, economics of the community, the claimant's skills and background, and the nature of the disability.\\\" Id. at 913 (\\u00b6 17). \\\"Another consideration in determining disability is wage-earning capacity. Factors examined for loss of wage-earning capacity include the amount of education and training that the claimant has had, inability to work, failure to be hired elsewhere, and the continuance of pain.\\\" Id. \\\"In order to be deemed permanently totally disabled under Mississippi Code Annotated section 71-3-17(a) (Rev. 2000), a claimant must show something more than an inability to return to the job existing at the time of injury.\\\" Flowers v. Crown Cork & Seal USA Inc. , 168 So.3d 1009, 1018 (\\u00b6 27) (Miss. Ct. App. 2013).\\n\\u00b6 13. Based on the above caselaw, it is this Court's opinion that the Commission and AJ correctly concluded that Smith was not permanently and totally disabled. Although Smith testified at trial that she was unable to perform the jobs offered to her upon her return to Howard in September 2016, this testimony, combined with her contention that she is unemployable, is not sufficient to overcome the high burden of showing that the Commission's decision was unsupported by substantial evidence.\\n\\u00b6 14. We note, as the Commission also properly noted, that a rebuttable presumption of total occupational loss arises where a permanent partial disability renders the claimant unable to continue in the position she held at the time she sustained her work-related injury, \\\"subject to other proof of the claimant's ability to earn the same wages which the claimant was receiving at the time of injury.\\\" Meridian Prof'l Baseball Club v. Jensen , 828 So.2d 740, 747 (\\u00b6 21) (Miss. 2002). This presumption arises \\\"when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment.\\\" Id. at 747-48 (\\u00b6 21). The employer may rebut this presumption by pointing to \\\"all the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any other related circumstances.\\\" Id. at 748 (\\u00b6 21).\\n\\u00b6 15. Here, Smith contends that the Commission's decision that she was able to perform the substantial acts of her usual employment is unsupported by substantial evidence. However, we disagree. Smith relies on the fact that Risher, Howard's representative, conceded that she could not return to the job she held pre-injury as proof that she was unable to perform the substantial acts of her usual employment. However, Mississippi caselaw is clear that \\\" 'usual employment' is broader in scope than the job [that the claimant] held at the time of injury.\\\" Id. at 747 (\\u00b6 20). \\\"Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.\\\" Id.\\n\\u00b6 16. We note that Smith failed to provide any evidence or testimony that she was, in fact, unable to perform the job presented to her in September 2016 when she returned to Howard for a few hours. All we have to rely upon is her own testimony that she was unable to perform the job. In contrast, we have testimony from both Risher and Mills that the job offered to Smith-removing rubber tips-fell within her medical restrictions. Smith provided insufficient evidence to overcome the high burden of showing that the Commission's decision was unsupported by substantial evidence with respect to this issue. As such, we affirm the Commission's finding that she was capable of performing the substantial acts of her employment.\\n\\u00b6 17. Section 71-3-17(c) (Rev. 2011) provides the following:\\nIn case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee as follows:\\nMember Lost Number Weeks Compensation (1) Arm 200\\n.\\n\\u00b6 18. As previously stated, the AJ ordered Howard to pay Smith $449.12 per week for a period of 100 weeks. She included the following analysis in her order:\\n[Smith] applied for the four positions [that] were identified in the vocational report - Red Lobster; Krystal; IHOP; and TGI Fridays. All of those positions offered $7.25 per hour. At the time of her injury, Smith was making $12.56 per hour with the Employer. If Smith had actually been hired by one of those employers, she would have suffered a $5.31 per hour loss of wages, which calculates to a $212.40 loss per week or an approximate 42% loss of wages. If overtime were considered, Smith would lose about half of her weekly income by taking one of the four positions identified by the vocational expert.\\nWe find substantial evidence supporting the Commission's finding that Smith was not totally and permanently disabled and that she suffered only a 50% industrial loss of a scheduled member. Therefore, it follows that Smith was not entitled to 450 weeks of compensation for permanent-total disability or 200 weeks of compensation for loss of a scheduled member. The order of the Commission awarding Smith $449.12 for one hundred weeks is AFFIRMED.\\nLEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.\\nDr. Barbieri performed one surgery to treat her carpal tunnel syndrome and two surgeries to treat her thumb injury.\\nOf note is the fact that \\\"there is a difference between the job-search requirement for a claim for permanent total disability benefits under subsection (a) and the job-search requirement for a claim for permanent partial disability benefits under subsection (c). A claim made under subsection (a) is subject to the most rigorous test for disability, which requires convincing medical proof of total disability and a legitimate job search for suitable employment.\\\" Hardaway , 191 So.3d at 1266 (\\u00b6 25) (internal quotation marks omitted).\"}"

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+"{\"id\": \"12695564\", \"name\": \"Matthew Blake COURTNEY a/k/a Matthew Courtney v. STATE of Mississippi\", \"name_abbreviation\": \"Courtney v. State\", \"decision_date\": \"2019-05-02\", \"docket_number\": \"NO. 2017-KA-01267-SCT\", \"first_page\": \"1032\", \"last_page\": \"1048\", \"citations\": \"275 So. 3d 1032\", \"volume\": \"275\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-27T21:07:32.692916+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"EN BANC.\", \"parties\": \"Matthew Blake COURTNEY a/k/a Matthew Courtney\\nv.\\nSTATE of Mississippi\", \"head_matter\": \"Matthew Blake COURTNEY a/k/a Matthew Courtney\\nv.\\nSTATE of Mississippi\\nNO. 2017-KA-01267-SCT\\nSupreme Court of Mississippi.\\nMay 2, 2019\\nRehearing Denied August 8, 2019\\nATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson, MOLLIE M. McMILLIN\\nATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA McCLINTON, Jackson\\nEN BANC.\", \"word_count\": \"7541\", \"char_count\": \"46142\", \"text\": \"COLEMAN, JUSTICE, FOR THE COURT:\\n\\u00b61. Matthew Blake Courtney appeals his conviction of one count of sexual battery in violation of Mississippi Code Section 97-3-95(1)(a) (Rev. 2014). The trial court sentenced Courtney to serve a period of twenty-five years. Courtney argues that the statute of limitations barred his sexual battery conviction. Alternatively, Courtney argues that the delay in bringing him to trial violated his Sixth Amendment constitutional right to a speedy trial. The record is devoid of Courtney having raised the statute of limitations argument before now. Accordingly, Courtney has waived the defense. As to the alternative argument of speedy trial, the Court looks at the traditional speedy-trial analysis and holds that the State did not deny Courtney a speedy trial. Therefore, we affirm Courtney's conviction and sentence.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b62. On or about November 2, 2012, the victim and her boyfriend went to a party at twenty-one-year-old Dustin McLeod's house in Greene County. The victim and her boyfriend were both fifteen years old. They and their friends shared a half-gallon of liquor and became highly intoxicated at the party. The victim passed out under a tree. Her very drunk boyfriend enlisted the help of Harley Prentiss, McLeod, and Courtney to move the victim from the ground to a small camper behind the trailer home on the property. After the victim was placed on the bed in the camper, her boyfriend laid down beside her; he did not think anyone else was inside the camper with them. He then became sick and exited the camper to vomit. He later testified that Courtney was outside the camper and told him not to go back inside since he was sick. When the victim's boyfriend attempted to get back in the camper, someone on the inside pulled the door shut, and the boyfriend heard a male laughing inside the camper.\\n\\u00b63. When the boyfriend awoke before dawn, he entered the camper and saw the victim lying on the bed and Prentiss asleep on the couch. When Prentiss woke up around seven o'clock in the morning, he and the boyfriend realized that the victim was unresponsive. Prentiss told the victim's boyfriend that he and the victim needed to leave. Allen, Prentiss, and another partygoer dropped the two fifteen-year-olds off at a cemetery. The boyfriend contacted the victim's sister, who immediately came to pick them up. According to the victim's sister, when she arrived, she thought that the victim was dead and noticed that while the victim's clothes were on, they were not fastened as they should have been. The victim's sister rushed her across the street to the hospital; caregivers transferred her to the University of South Alabama Hospital in Mobile, Alabama.\\n\\u00b64. While the victim was in a medically induced coma in Mobile, doctors noticed injuries consistent with sexual contact; the hospital contacted law enforcement. A rape kit was performed, and stains on the victim's jeans were tested against DNA samples from several partygoers, including Courtney. One sample was consistent with Prentiss's DNA; Courtney's and McLeod's DNA could not be excluded from a different sample.\\n\\u00b65. McLeod testified at Courtney's trial. Prentiss told McLeod and Courtney that Prentiss had sex with the victim after carrying her to the camper. McLeod said that Courtney walked to the camper and said that he \\\"was going in next.\\\" McLeod further testified that he saw the camper rock back and forth like it did earlier when Prentiss was inside. McLeod said that, when Courtney was finished, Courtney exited the camper and told him that it was his turn to \\\"go get you some now.\\\" McLeod stated that Allen went in next and that McLeod went in after that.\\n\\u00b66. The victim denied consenting to engage in sex with anyone at the party and testified that she had no memory of the assaults. The last memory she had from the party was sitting under the tree with her friends.\\n1. The Youth Court Proceedings\\n\\u00b67. On the day of the crime, Courtney had been seventeen years old for two weeks. DNA testing results implicating Courtney were returned on February 20, 2013. More than a year later, on May 2, 2014, a petition was filed in the youth court stating that, \\\"on or about 11/02/2012, in Greene County, Mississippi, Matthew Blake Courtney did purposefully, knowingly, and unlawfully commit the act of sexual battery of another person without his or her consent in violation of \\u00a7 97-3-95(1)(a) . Youth did willfully unlawfully, and feloniously engage in sexual penetration of [L.C.] without her consent.\\\" Three days later, a motion to transfer the petition to the circuit court was filed in youth court. Thirteen months after the motion was filed, on June 30, 2015, the youth court ordered the transfer, and Courtney's case was transferred to circuit court.\\n2. Circuit Court Proceedings\\n\\u00b68. After Courtney's case was certified to circuit court, an arrest warrant was issued on July 8, 2015. On September 18, 2015, a Greene County grand jury indicted Courtney for sexual battery. Courtney was scheduled for arraignment in November, but the circuit court ordered an agreed continuance until December so that Courtney could retain counsel. The record shows confusion about who was representing Courtney, and the scheduled arraignment in December was further continued to February 2016. In February, Courtney still lacked counsel. The circuit court then appointed David Futch. The circuit court set a status hearing for April 7, 2016, and trial for May 23, 2016. Courtney then waived arraignment on April 7, 2016, and pleaded not guilty.\\n\\u00b69. Courtney attempted to invoke his right to a speedy trial on May 11, 2016, by including it in the body of his discovery request. Twelve days later, Courtney and the State agreed to a continuance, scheduling trial for August 15, 2016. On the scheduled day of trial, the circuit court granted a joint ore tenus motion for additional time to prepare for trial, and a status hearing was set for September 15, 2016, with trial scheduled for November 14, 2016. On September 14, 2016, Futch filed a motion to withdraw as counsel. A day later, the circuit court granted the parties' second joint continuance motion, citing ongoing plea negotiations. A day later, Courtney filed the following three motions: (1) a motion requesting funds for an independent DNA test and DNA expert; (2) a motion to sever his trial from that of his codefendants; and (3) a motion for dismissal for speedy-trial violations.\\n\\u00b610. While Courtney's motions were pending, the trial date remained in November 2016. Then, the State and Courtney agreed to another order of continuance, citing the need for additional time to prepare for trial. Motion hearings were set for December 2016 and trial for February 27, 2017. Motion hearings were rescheduled to the next term. On February 27, 2017, Courtney made an ore tenus motion for a continuance for additional time, and trial was again rescheduled for May 15, 2017. On April 21, 2017, the circuit court denied Courtney's speedy-trial motion. On May 15, 2017, Courtney again moved for a continuance. Trial took place on August 15, 2017, and the jury convicted Courtney.\\nSTANDARD OF REVIEW\\n\\u00b611. The Court \\\"applies a de novo standard of review to the statute of limitations.\\\" Fletcher v. Lyles , 999 So.2d 1271, 1276 (\\u00b6 20) (Miss. 2009) (citing Ellis v. Anderson Tully Co. , 727 So.2d 716, 718 (\\u00b6 14) (Miss. 1998) ). The standard of review of a speedy-trial claim encompasses a review of the facts and questions whether the trial delay arose from good cause. DeLoach v. State , 722 So.2d 512, 516 (\\u00b6 12) (Miss. 1998). The Court will uphold a decision based on substantial, credible evidence. Folk v. State , 576 So.2d 1243, 1247 (Miss. 1991). The State further \\\"bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of nonpersuasion.\\\" DeLoach , 722 So.2d at 516 (\\u00b6 12) (citing Flores v. State , 574 So.2d 1314, 1318 (Miss. 1990) ).\\nDISCUSSION\\nI. The Statute of Limitations\\n\\u00b612. Both parties on appeal agree that a two-year statute of limitations applies to the crime at issue. See Miss. Code Ann. \\u00a7 99-1-5 (Rev. 2015). The parties disagree as to how or if the statute of limitations was affected by the youth court proceedings. Courtney argues that, because he was not arrested for sexual battery until July 8, 2015, a date two years and eight months after the crime on November 2, 2012, the State was barred from prosecuting him. Courtney contends that the statute of limitations had expired on November 3, 2014, before he was arrested or indicted. The State counters that the intake petition for the youth court proceedings served as an indictment against Courtney on May 2, 2014, or fewer than two years from the date of the crime. However, statutes of limitation are affirmative defenses that can be waived if not raised. Conerly v. State , 607 So.2d 1153, 1158 (\\u00b6 17) (Miss. 1992) (holding that statutes of limitation in criminal cases \\\"[are] not jurisdictional but [are] an affirmative defenses that may be waived\\\"). Courtney waived the defense by never raising the statute of limitations issue in the circuit court in a written or ore tenus motion.\\nII. Constitutional Right to Speedy Trial\\n\\u00b613. Courtney asserts that the State violated his right to a speedy trial. To determine whether his argument has merit, we must first determine when criminal proceedings against him began. The State contends that criminal proceedings began the date Courtney waived arraignment, April 7, 2016. See Walker v. State , 196 So.3d 978, 982 (\\u00b6 17) (Miss. Ct. App. 2015) (\\\"If a defendant waives arraignment, that date is considered day one on the speedy trial calendar.\\\" (quoting Mayo v. State , 886 So.2d 734, 738 (\\u00b6 17) (Miss. Ct. App. 2004) ) ). However, the above-described rule applies to a defendant's statutory right under Mississippi Code Section 99-17-1 (Rev. 2015)-not one's constitutional right. Although throughout its brief the State conflates the speedy-trial statute and the precedent surrounding it with the constitutional right to a speedy trial, Courtney argues only the constitutional right.\\n\\u00b614. Courtney contends that \\\"[a] formal indictment or information or an arrest-whichever occurs first-triggers the constitutional right to a speedy trial.\\\" McBride v. State , 61 So.3d 138, 142 (\\u00b6 8) (Miss. 2011) (citing United States v. Marion , 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ). Courtney is correct. Walker , 196 So.3d at 984 (\\u00b6 31) (emphasis added) (\\\"Under the statutory speedy-trial analysis, the right attaches at the arraignment or waiver of arraignment, but the constitutional right attaches at the arrest or indictment.\\\") \\\"In short, the constitutional right to a speedy trial attaches when a person has been accused.\\\" Smith v. State , 550 So.2d 406, 408 (Miss. 1989) (citing Beavers v. State , 498 So.2d 788, 789-90 (Miss. 1986), overruled on other grounds by State v Ferguson , 576 So.2d 1252 (Miss. 1991) ). Accordingly, Courtney's arrest date, July 8, 2015, serves as day one of the constitutional speedy-trial clock for his criminal proceedings.\\n\\u00b615. The dissent contends that the clock began running with the filing of the youth court petition. Diss. \\u00b6 38. However, youth court proceedings are civil in nature. Miss. Code Ann. \\u00a7 43-21-203(5) (Rev. 2015). \\\"One's right to a speedy trial as a matter of common sense has reference to that point in time when the prosecution may begin to crank up the machinery of the criminal justice process.\\\" Beavers v. State , 498 So.2d 788, 790 (Miss. 1986). The State did not do so until Courtney's arrest. We have consistently held that the arrest or indictment of the defendant establishes that point in time. \\\"The constitutional right to a speedy trial attaches 'at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge .\\\" Johnson v. State , 235 So.3d 1404, 1417 (\\u00b6 45) (Miss. 2017) (emphasis added) (quoting Rowsey v. State , 188 So.3d 486, 495 (\\u00b6 24) (Miss. 2015) ); Perry v. State , 419 So.2d 194, 198 (Miss. 1982) (The constitutional right to a speedy trial attaches \\\"at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.\\\" (citing Baker v. McCollan , 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) ; Dillingham v. United States , 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) ) ).\\n\\u00b616. The dissent relies on Breed v. Jones , 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and In re Gault , 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), for the proposition that the distinction between civil proceedings in youth court and criminal proceedings in circuit court is illusory. Diss. \\u00b6 43. In Breed , the United States Supreme Court held that juvenile proceedings against a defendant put the defendant in jeopardy, and, accordingly, subsequent criminal actions against the same defendant violated the prohibition against double jeopardy. Breed , 421 U.S. at 529-30, 95 S.Ct. 1779. In Gault , the Court extended the right to remain silent to juvenile court proceedings. Gault , 387 U.S. at 55, 87 S.Ct. 1428. However, the Supreme Court has never held that a youth court proceeding qualifies as a \\\"criminal prosecution\\\" under the Sixth Amendment such that it would trigger the running of the speedy-trial right. See McKeiver v. Pennsylvania , 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). In McKeiver , the Court concluded that the Sixth Amendment did not mandate a jury trial in juvenile proceedings. Id. at 545, 91 S.Ct. 1976. The McKeiver Court eschewed a rote approach to the classification of juvenile proceedings as either criminal or civil when it wrote, \\\"Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either 'civil' or 'criminal.' The Court carefully has avoided this wooden approach.\\\" Id. at 541, 91 S.Ct. 1976.\\n\\u00b617. We decline the dissent's invitation to change our existing law and include youth court petitions in the category with arrests and indictments for purposes of starting the speedy-trial clock. As an initial matter, in Breed and Gault , the Supreme Court addressed whether due process protections applicable to criminal proceedings would apply in juvenile proceedings, but the question before us today is different. The constitutional right to a speedy trial certainly applies to the underlying prosecution of Courtney. The question raised by the dissent is whether the initial youth court proceedings suffice to begin the speedy-trial clock applicable to Courtney in the criminal proceedings. Gault , Breed , and their progeny examine the \\\"parens patriae interest in preserving and promoting the welfare of the child.\\\" Schall v. Martin , 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (quoting Santosky v. Kramer , 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). They do so for the purpose of determining the extent to which due process requires various constitutional protections to apply to juvenile proceedings. We are not faced with deciding whether the right to a speedy trial applies to youth court proceedings but, rather, when the clock begins to run for purposes of the criminal proceedings against Courtney. Accordingly, the Gault line of cases is of limited, if any, use.\\n\\u00b618. Furthermore, in Breed and Gault , the United States Supreme Court drew heavy parallels between the juvenile and criminal systems at issue in the two cases. For example, in Breed , the Court wrote that a juvenile being found to have committed a criminal act in both the criminal and juvenile justice systems involves \\\"consequences includ[ing] both the stigma inherent in such a determination and the deprivation of liberty for many years.\\\" Breed , 421 U.S. at 529, 95 S.Ct. 1779. The Breed Court wrote of anxiety and insecurity that can result from a juvenile proceeding. Id. Finally, the Breed Court wrote that the California juvenile court and criminal court systems shared the \\\"very vital interest in enforcement of criminal laws.\\\" Id. at 531, 95 S.Ct. 1779 (quoting United States v. Jorn , 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ). There has been no showing here that the purposes of Mississippi's youth court statutes so closely match that of Mississippi's criminal justice system.\\n\\u00b619. The dissent points out that our youth court statutes define delinquent acts as acts that would be criminal if committed by an adult. Diss. \\u00b6 44. However, while delinquent acts suffice to invoke both the youth court and adult criminal courts, the similarity does not speak to the purposes of the act focused upon by the Breed , Gault , and McKeiver Courts. Mississippi Code Section 43-21-561(5) (Rev. 2015) forbids any youth court adjudication from imposing \\\"any of the civil disabilities ordinarily imposed on an adult because of a criminal conviction .\\\" It further forbids consideration of such a youth as a criminal, consideration of the adjudication as a conviction, and use of the adjudication for impeachment purposes in court. Id. It allows the youth in question to deny, without consequence, the existence and result of any youth court proceeding. Miss. Code Ann. \\u00a7 43-21-561(5). Mississippi Code Section 43-21-605 mandates that, once a child is found to be delinquent, the disposition must be \\\"the least restrictive alternative appropriate to the best interest of the child and the community,\\\" it must allow the child to remain in \\\"reasonable proximity\\\" to the child's home community in light of the available alternatives and \\\"the best interest of the child and the state,\\\" and it must state that the youth court considered the rehabilitative services required by the child. Miss. Code Ann. \\u00a7 43-21-605 (Rev. 2015).\\n\\u00b620. Each of the above-listed statutory requirements leads to the conclusion that Mississippi's youth court system exists to achieve purposes and use means that differ from the criminal system. To lump the two together simply because both address criminal activity but to disregard the differing methods and goals of the two systems is to adopt the \\\"wooden approach\\\" eschewed by the United States Supreme Court. McKeiver v. Pennsylvania , 403 U.S. 528, 541, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).\\n\\u00b621. Similarly, there is no evidence in the record supporting the contention that Courtney faced stigma, anxiety, and insecurity following the filing of the youth court petition. We consider persuasive the reasoning of the Superior Court of Pennsylvania in Commonwealth v. Dallenbach , 729 A.2d 1218 (Pa. Super. Ct. 1999). In Dallenbach the Pennsylvania court held that a juvenile enjoys the right to a speedy trial. Again no issue in the present case exists about whether Courtney enjoyed the constitutional right to a speedy trial-he did. The question for today is whether the youth court petition can be considered \\\"the machinery of the criminal justice process\\\" such that it triggered the running of the clock. Beavers v. State , 498 So.2d 788, 790 (Miss. 1986).\\n\\u00b622. In any event, the Dallenbach Court relied on facts not in the record before us, e.g. , that \\\"children experience an acceleration in the passage of time so that, to a juvenile, one year might seem to be five.\\\" Dallenbach , 729 A.2d at 1220 (\\u00b6 10). The same can be written of the Iowa Supreme Court's decision in In the Interest of C.T.F. , 316 N.W.2d 865 (Iowa 1982), also cited by the dissent. For example, the Iowa court relied on facts indicating that being subject to juvenile proceedings causes stress, concern, and anxiety. Id. at 868-869. However, we may only act on the record before us. Oakwood Homes Corp. v. Randall , 824 So.2d 1292, 1293 (\\u00b6 4) (Miss. 2002) (citing Branch v. State , 347 So.2d 957, 958-59 (Miss. 1977) ). \\\"Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.\\\" Randall , 824 So.2d at 1294 (\\u00b6 4) (quoting Mason v. State , 440 So.2d 318, 319 (Miss. 1983) ).\\n\\u00b623. More applicable to the case sub judice is the Supreme Court of New Hampshire's decision in State v. Justus , 140 N.H. 413, 666 A.2d 1353 (1995). There, the same issue confronted the New Hampshire Court that confronts us today-whether the speedy-trial clock began to run with juvenile proceedings or with the indictment of the defendant as an adult. Id. at 415, 666 A.2d 1353. The New Hampshire Court joined courts from Alabama, Arizona, and Ohio in holding, as we do today, that the clock begins running with the instigation of criminal proceedings. Id. (citing Cruse v. State , 489 So.2d 694, 697 (Ala. Crim. App. 1986) ; State v. Myers , 116 Ariz. 453, 454-55, 569 P.2d 1351, 1352-53 (1977) (en banc); State v. Trapp , 52 Ohio App. 2d 189, 368 N.E.2d 1278, 1280 (1977) ).\\n\\u00b624. We discern no reason to hold that, pursuant to applicable Sixth Amendment jurisprudence, the Due Process clause requires the speedy-trial clock applicable to the criminal proceedings against Courtney to begin running with the filing of the youth court petition.\\n\\u00b625. Speedy-trial claims are analyzed under the Barker test. Barker requires a balancing of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker Court explained that each case must be considered \\\"on an ad hoc basis\\\" and that it sought only to \\\"identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right\\\" to a speedy trial. Id. The Court wrote,\\nWe regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.\\nId. at 533. See also Bateman v. State , 125 So.3d 616, 633 (\\u00b6 59) (Miss. 2013) (The Barker factors must be balanced \\\"along with other relevant circumstances.\\\") The State bears the burden of proving good cause for a speedy-trial delay and thus bears the risk of nonpersuasion. DeLoach v. State , 722 So.2d 512 (Miss. 1998). The sole remedy for a speedy-trial violation is reversal of the trial court's decision and dismissal of the charges against the defendant. Price v. State , 898 So.2d 641, 647 (\\u00b6 11) (Miss. 2005).\\n1. Length of Delay\\n\\u00b626. When the delay between a defendant's indictment (or arrest) and trial is more than eight months, it is presumptively prejudicial and triggers a balancing of the remaining three Barker factors.\\nState v. Woodall , 801 So 2d 678, 681-82 (\\u00b6 11) (Miss. 2001). Here, authorities arrested Courtney on July 8, 2015. The circuit court tried him on August 15, 2017. The delay of 769 days is presumptively prejudicial and triggers a consideration of the remaining Barker factors.\\n2. Reason for Delay\\n\\u00b627. The State bears the burden of providing a speedy trial. Hersick v. State , 904 So.2d 116, 121 (\\u00b6 7) (Miss. 2004). \\\"The State bears the concomitant burden of showing that either the delay was caused by the defendant or that the delay was for good cause.\\\" Id. When the State is unable to do either, the factor must be weighted against the State. Id. Delays caused by the defense, such as requests for continuances, will toll the running of the speedy-trial clock for the length of time attributable to the continuance. Id.\\n\\u00b628. Here, Courtney was formally indicted on September 18, 2015. When a defendant is indicted by the first available grand jury in the county, the time between arrest and indictment is not counted against either the state or the defense. Brengettcy v. State , 794 So.2d 987, 993 (\\u00b6 14) (Miss. 2001). The record does not mention if Courtney was indicted by the first available grand jury, but the grand jury indicted Courtney three months after the circuit court obtained jurisdiction. Neither party suggests that the indicting grand jury was not the first available, and Courtney argues that the speedy-trial clock began running on the date of his indictment rather than on the earlier date of his arrest. Accordingly, the delay between arrest and indictment is not counted against the State.\\n\\u00b629. The record contains several continuances that delayed Courtney's arraignment and trial. Agreed continuances are weighed against the defense. Sharp v. State , 786 So.2d 372, 380-81 (\\u00b6 7) (Miss. 2001). The trial court attempted to arraign Courtney on November 16, 2015, but Courtney indicated that he had retained an attorney who was not present in the courtroom. The record reflects that the attorney, when contacted by phone, denied having been retained to represent Courtney. By order dated November 19, 2015, the circuit court continued Courtney's arraignment until December 1, 2015, in order to allow Courtney to retain counsel. Courtney caused the November 2015 continuance by mistakenly believing the attorney in question represented him when he did not, and the delay occasioned does not count against the State.\\n\\u00b630. The trial court made a second attempt at arraignment on December 1, 2015. Courtney continued to claim the same attorney represented him, but the attorney present in the courtroom told the trial court that although he had discussed representing Courtney with Courtney's family, he did not yet do so. The court granted a second continuance of the arraignment by agreed order dated December 18, 2015, postponing the arraignment until February 8, 2016. Again, Courtney's confusion regarding who would represent him occasioned the delay. The problem continued to arise on February 8, 2016, when the court again attempted to arraign Courtney. At the February 2016 hearing, the trial court decided to appoint counsel for Courtney. By order dated February 8, 2016, and again for the purpose of allowing Courtney time to retain counsel, the trial court granted the parties' joint motion to continue and postponed the arraignment until May 23, 2016. On April 7, 2016, Courtney waived arraignment, and the record reflects that the circuit judge set trial for May 23, 2016. Because Courtney's confusion regarding retaining counsel caused the totality of the delay between Courtney's arrest and waiver of arraignment, the delay so occasioned does not weigh against the State.\\n\\u00b631. After Courtney waived arraignment and the court set the first trial date, the motions for continuance began. On May 23, 2016, the trial court granted the parties' joint motion for a continuance and continued the trial until August 16, 2016. By order dated August 15, 2016, the trial court granted another joint motion for a continuance and moved the trial date to November 14, 2016. An order dated September 15, 2016, duplicated the relief granted on August 15, 2016, in that it also purported to grant the parties' joint motion for a continuance and to continue the trial until November 14, 2016, to allow time for plea negotiations. The circuit judge again continued trial upon joint motion of the parties by order dated November 16, 2016, and reset the trial for February 27, 2017. On February 27, 2017, on Courtney's motion, the trial court continued the trial until May 14, 2017. The next continuance came via order dated May 15, 2017, granting Courtney's motion for a continuance and resetting trial for August 14, 2017. Each motion for continuance indicated that Courtney had waived his constitutional and statutory rights to a speedy trial for the applicable periods of time. Every post-arraignment motion was made by Courtney either jointly with the State or alone. Accordingly, none of the delay leading up to the August 2017 trial is weighed against the State.\\n3. Defendant's Assertion of Speedy-Trial Right\\n\\u00b632. Although the State bears the burden to bring a defendant to trial, the defendant \\\"has some responsibility to assert his right to a speedy trial.\\\" Wiley v. State , 582 So.2d 1008, 1012 (Miss. 1991) (citing Flores v. State , 574 So.2d 1314, 1323 (Miss. 1990) ). The ultimate responsibility, though, must rest with the government rather than the defendant. Barker , 407 U.S. at 531, 92 S.Ct. 2182. The Court has held that the factor weighs against a defendant who waits a significant amount of time after arrest to demand a speedy trial. Bateman v. State , 125 So.3d 616, 630 (\\u00b6 48) (Miss. 2013).\\n\\u00b633. Courtney was arrested July 8, 2015. The Court appointed counsel to represent him on February 8, 2016, and he requested a speedy trial less than a month later, on May 10, 2016, in his request for discovery. However, as noted by the trial court in the order denying Courtney's subsequent motion for dismissal on speedy-trial grounds, Courtney joined in a motion for a continuance less than two weeks after demanding a speedy trial. As detailed above, he joined in two additional motions for continuance and made two more motions for continuance after the total of three joint motions that led in unbroken succession to the trial itself. In other words, Courtney requested each one of the five continuances that delayed his trial following his arraignment. \\\"When a defendant moves for a speedy trial but simultaneously requests a continuance, the defendant's speedy-trial request cannot be viewed as a request to be tried promptly.\\\" Perry v. State , 233 So.3d 750, 758 (\\u00b6 17) (Miss. 2017) (citing Rowsey , 188 So.3d at 495 (\\u00b6 28) ). A demand for a speedy trial, to be effective, must be a request to go to trial. Rowsey , 188 So.3d at 495 (\\u00b6 28). When the putative speedy-trial demand is coupled with requests for continuances by the defense, it loses effect as a request to go to trial. Id. ; see also Franklin v. State , 136 So.3d 1021, 1035-1036 (\\u00b6 53) (Miss. 2014).\\n4. Prejudice\\n\\u00b634. To determine whether a defendant was prejudiced by the delay, the Court considers: \\\"(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.\\\" Bateman , 125 So.3d at 630 (\\u00b6 51) (internal quotation marks omitted) (quoting Brengettcy , 794 So.2d at 994 ). Of the three, the most serious is the final one, since a defendant's inability to adequately prepare his case \\\"skews the fairness of the entire system.\\\" Barker , 407 U.S. at 532, 92 S.Ct. 2182 ; see also State v. Magnusen , 646 So.2d 1275, 1284 (Miss. 1994).\\n\\u00b635. The entirety of Courtney's argument on appeal regarding prejudice addresses what occurred before his arrest and before the youth court transferred the matter to circuit court. Because, as set forth above, the clock on the State's obligation to provide him with a speedy trial did not begin to run until his arrest in July 2015, the youth court proceedings do not enter into the speedy-trial discussion. Courtney offers no argument on appeal that delay following his arrest prejudiced him. Accordingly, he wholly fails to demonstrate prejudice resulting from the delay. It is worth noting, however, that even if the clock began running, as the dissent contends, on May 2, 2014, when the youth court petition was filed, of the above-listed Barker factors, only one-the reason for the delay-could conceivably count against the State, and our holding that Courtney's speedy-trial rights were not violated would stand.\\nCONCLUSION\\n\\u00b636. Courtney waived the statute of limitations affirmative defense by failing to present it for the trial court's consideration. Turning to his claimed violation of the constitutional right to a speedy trial, other than the length of delay itself, none of the Barker factors weigh in Courtney's favor. The record reflects that Courtney caused and requested the continuances that delayed his arraignment and trial; he nullified his request for a speedy trial, such as it was, by requesting additional continuances after making it; and he offers no relevant argument on appeal that the delay prejudiced him. Discerning no merit in the arguments he presents, we affirm.\\n\\u00b637. AFFIRMED.\\nRANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.\"}"

miss/1322131.json

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+"{\"id\": \"1322131\", \"name\": \"City of Biloxi v. Chinn, et al.\", \"name_abbreviation\": \"City of Biloxi v. Chinn\", \"decision_date\": \"1958-01-13\", \"docket_number\": \"No. 40629\", \"first_page\": \"461\", \"last_page\": \"462\", \"citations\": \"232 Miss. 461\", \"volume\": \"232\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:41:40.720575+00:00\", \"provenance\": \"CAP\", \"judges\": \"Roberds, P. J., and Lee, Holmes and Ethridge, JJ. concur.\", \"parties\": \"City of Biloxi v. Chinn, et al.\", \"head_matter\": \"City of Biloxi v. Chinn, et al.\\nNo. 40629\\nJanuary 13, 1958\\n99 So. 2d 601\\nThomas J. Wilts, J. D. Stennis, Jr., Biloxi, for appellants.\\nNo appearance for appellees.\", \"word_count\": \"117\", \"char_count\": \"631\", \"text\": \"Hall, J.\\nThis is a companion suit of City of Biloxi v. J. A. Creel, et al, No. 40605%, decided by this Court on December 9, 1957, and is governed by the principles laid down in Friedhof v. City of Biloxi, 97 So. 2d 742, and for the reasons stated in No. 40,605% the judgment of the lower court is reversed and the cause is remanded to the Chancery Court of Harrison County, Mississippi.\\nBeversed and remanded.\\nRoberds, P. J., and Lee, Holmes and Ethridge, JJ. concur.\"}"

miss/1449389.json

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+"{\"id\": \"1449389\", \"name\": \"Pederee v. State\", \"name_abbreviation\": \"Pederee v. State\", \"decision_date\": \"1914-10\", \"docket_number\": \"\", \"first_page\": \"653\", \"last_page\": \"656\", \"citations\": \"108 Miss. 653\", \"volume\": \"108\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:39:03.682814+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pederee v. State.\", \"head_matter\": \"Pederee v. State.\\n[67 South. 152.]\\nCriminal Law. Evidence. Other offenses.\\nWhere a defendant is on trial for selling and retailing intoxicating liquors, the state can introduce evidence of several sales before the finding of the indictment, it not being confined to one particular sale.\\nAppeal from the circuit court of Forest county.\\nHon. P. B. Johnson, Judge.\\nEosa Pederee was convicted of the unlawful sale of intoxicating liquor and appeals.\\nThe indictment upon which appellant was tried alleged that she \\u201cdid unlawfully sell and retail intoxicating liquors.\\u201d Evidence of several sales alleged to have been made prior to the date laid in the indictment was introduced. It is contended by appellant that the state should have been confined to one particular instance.\\nCurrie & Currie, for appellant.\\nIn presenting our argument we call especial attention to the fact that the defendant was on trial for the \\u201cunlawful keeping of intoxicating liquors for the purpose and intention of selling same,\\u201d and not for the unlawful sale of intoxicating liquors.\\nThe slate in this case was confined in its proof to the one act, that is, the keeping of the particular liquors by the defendant, with the intention and purpose of selling same. The court did not confine the state to this issue in its ,proof, but permitted' it to open up the entire life of defendant, and to prove every act and deed of defendant, not only the prior charges or convictions of whatever kind or character but her business,. her character of work:, the house and its reputation in which she lived, to all of which defendant objected.\\nAs shown by the recprd, the state proved that the defendant\\u2019s house had been raided at other times, and that liquors were found, and in this proof, the state was not confined to any definite period of time, neither prior or subsequent to the time fixed in the affidavit. This was clearly error. As we have stated, the state was confined under the law to the single act charged in the affidavit. In the case of Page v. State, 62 So. 3601, the defendant was charged with acting as agent in the unlawful sale of intoxicating liquor. The court \\u25a0 permitted the state, after offering proof of the particular crime charged in the indictment, to then make proof of several \\u25a0other charges; that is to say, permitted the state to produce several other witnesses who testified that defendant had acted as agent for them in procuring intoxicating liquors. In that case the court said: \\u201cThe learned trial judge, no doubt permitted this evidence to go to the jury upon the theory that section 1762 of the Code of 1906, is applicable to this sort of case. In this we think he erred. This section is applicable only in cases where there is an unlawful sale of intoxicating liquors.\\u201d This case was reversed. We have precisely the same question here. The defendant was tried for the unlawful keeping of intoxicating liquors for. sale. The state was not.confined to this issue, but the court under section 1762, Code 1906, permitted the state to prove other raids on the defendant\\u2019s house, 'and other findings of liquors. The court erred in this. The section applies only where the charge is for selling, and if defendant had been on trial for a.sale, then the statute would have been applicable, but as held in the case cited, it applies only to cases where a sale is charged. There is no doubt that defendant Is case was seriously prejudiced in the minds of the jury by this evidence.\\nFrank Johnson, Assistant Attorney-General, for the state.\\nThe appellant in this case was indicted in the second district of Forest county in the circuit court for unlawful retailing. The case of the state was clearly made out and established by the testimony of John Kelly, Morris Kiley and Ed. Houston. The testimony for the state was .positive and direct. There was testimony by Steve Brown, Becky Malone and Ed. Britton that the defendant did not sell the liquor.\\nThe defendant then testified in her own behalf in denial of the charge. There was only one instruction granted for the state, which is as follows: ' \\u201c The court instructs the jury for the state that if you believe from the testimony, beyond a reasonable doubt, the defendant sold intoxicating liquors as charged in the indictment, then it is the sworn duty of the jury to find the defendant guilty.\\u201d\\nThere were no instructions asked for the defendant. Upon this testimony, and this instruction, the jury found the defendant guilty as charged in the indictment, and a fine and imprisonment were imposed on the defendant. From that judgment the present appeal is prosecuted. There is no question of law involved in the case. I - respectfully submit that the judgment should be affirmed.\", \"word_count\": \"912\", \"char_count\": \"5365\", \"text\": \"Cook, J.,\\ndelivered the opinion of the court.\\nThe brief for appellant in this case assumes that appellant was charged with \\\"keeping for sale intoxicating liquors.\\\" and upon this erroneous assumption is built the entire argument for reversal.\\nIf appellant had been charged with the misdemeanor which she evidently thinks she was, her argument might have some weight, but even this is doubtful. Unfortunately she is charged with more than keeping booze for sale. She is charged with selling it, and, unless she was grievously misrepresented, she was rightfully convicted in the manner and in the form prescribed by the law of the land.\\nAffirmed\"}"

miss/1652383.json

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+"{\"id\": \"1652383\", \"name\": \"Goss & Hammond v. N. B. Whitehead\", \"name_abbreviation\": \"Goss v. Whitehead\", \"decision_date\": \"1857-04\", \"docket_number\": \"\", \"first_page\": \"213\", \"last_page\": \"215\", \"citations\": \"33 Miss. 213\", \"volume\": \"33\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:10:04.631793+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Goss & Hammond v. N. B. Whitehead.\", \"head_matter\": \"Goss & Hammond v. N. B. Whitehead.\\nPleading : promissory note signed in blank: now avoided as to excess op amount improperly insbrted. \\u2014 The maker of a promissory note, who signed the same in blank, but restricting his agent, to whom it was delivered, as to the amount to be inserted in it, may prove under the general issue, a violation of his instructions by the agent, and notice of that fact in the holder, in avoidance of the excess so inserted. In such a case the note being valid as to the amount authorized to be inserted and only void as to the excess, its execution could not be denied under oath.\\nIn error from the Circuit Court of Attala county. Hon. E. G. Henry, judge.\\nThis was an action of assumpsit, instituted in the Circuit Court of Attala county, by the defendant in error against the plaintiff in error, to recover the amount of two promissory notes, signed by the plaintiff in error, and payable to the defendant in error; one for the sum of $1140, bearing eight per cent, interest per annum from its date, and the other for $300, both dated on the same day, and having the same length of time to run to maturity.\\nThe defendant below pleaded the general issue, and upon that issue a trial was had.\\nOn the trial the plaintiff read in evidence the notes, and the defendant, Hammond, then offered to prove by a witness, \\u201c that the notes sued on Avere signed by John W. Goss, as principal, and by defendant, Hammond, as surety, in blank; that their names AA'ere signed on blank pieces of paper, and that Hammond instructed Goss (to whom the notes were delivered), not to fill them up Avith an amount exceeding one thousand dollars in all. And that John W. Goss went with the blank notes so signed to the plaintiff, and purchased from him sundry articles and hired negroes; and before purchasing or hiring, that Goss informed plaintiff that Hammond had limited him in filling up the notes to the sum of one thousand dollars; when plaintiff replied that he Avas willing to sell to Goss in his own name, and that it would be all right even if the amount exceeded\\u2019the sum authorized by Hammond to be inserted; and there upon, the purchase was made, and the notes filled up as they now appear.\\u201d\\nTo the introduction of this evidence, the plaintiff objected, upon the ground that it was inadmissible under the pleadings, the execution of the note not being denied under oath.\\nThe court sustained the objection, and the defendant, Hammond, excepted. The plaintiff had verdict and judgment for the full amount of the two notes and interest, and the defendant sued out this writ of error.\\nCampbell and Washington, for plaintiffs in error,\\nContended, that the defendant, Hammond, by the evidence, which he offered to introduce, did not propose to deny the execution of the notes sued on. The notes were at all events good, and valued at the amount of $1000, the sum authorized by Hammond to be inserted in them; and he only proposed to show that notwithstanding their execution by him, they Avere not binding on him, for the excess over this sum improperly inserted in them. That this case is neither Avithin the letter or spirit of the Act of 1824, which requires a denial of the execution of a note to be made under oath, the letter only applying to the execution of notes, &c., and the spirit and policy of the act being only to dispense Avith the formal proof of the signatures, AA\\u2019here they are not thus denied. See 1 S. & M. 17 ; 2 lb. 187; 12 lb. 586., They insisted that the opinion in the case of Hemphill v. The Banh of Alabama, 6 S. & M. 44, relied on by the opposing counsel, so far as it relates to the question in this case, was obiter dictum, and not authority.\\nJason Niles, for defendant in error,\\nContended, that the court Avas right, in excluding the testimony offered by Hammond, is plain, from the consideration, that the proof offered tended to show that the note sued on was not his, and that he never\\\" executed it. As the plea filed in the cause was not verified, no such proof was admissible.- Q-reen v. Robinson, 3 How. Miss. 120-1; Hemphill v. The Banh of Alabama, 6 S. & M. 44; Thigpen v. The Mississippi Central Railroad Company, decided at the last term of this court. This court, it is believed, will affirm the judgment of the court beloAv, Avith damages.\", \"word_count\": \"1032\", \"char_count\": \"5782\", \"text\": \"Fisher, J.,\\ndelivered the opinion of the court.\\nThe plaintiff below brought this suit in the Circuit Court of Attala county, to recover the amount of two promissory notes, alleged to have been executed by the defendants. The general issue being pleaded, the defendants proposed to prove, on the trial,' that the notes were signed in blank, and delivered to an agent, with instructions not to fill the blanks with a sum exceeding one thousand dollars. And that the plaintiff was fully informed by the agent, as to this limitation upon the authority to fill the blanks, before he received the notes, or the blanks were actually filled up; but the court rejected the evidence, on the ground that the execution of the notes was not denied under oath.\\nWe are of opinion that the court below erred in rejecting the evidence. The defendants admitted the execution of the notes to the extent of the agent's authority, and they could not, therefore, deny their execution. Indeed, the entire amount might have been recovered, if the notes had been transferred to an innocent holder without notice of the restriction upon the agent to fill the blanks. The agent's act, however, under any view, would be good and binding, to the extent of his authority, and it would only be void as to the excess. .Under this view of the law, it would be almost impossible for a party to verify a plea by oath, denying the execution of the entire notes.\\nJudgment reversed, venire de novo awarded, and cause remanded.\"}"

miss/1665787.json

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+"{\"id\": \"1665787\", \"name\": \"A. M. Gill et al. v. H. J. Shirley, Administratrix\", \"name_abbreviation\": \"Gill v. Shirley\", \"decision_date\": \"1878-04\", \"docket_number\": \"\", \"first_page\": \"814\", \"last_page\": \"818\", \"citations\": \"55 Miss. 814\", \"volume\": \"55\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:15:15.279282+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. M. Gill et al. v. H. J. Shirley, Administratrix.\", \"head_matter\": \"A. M. Gill et al. v. H. J. Shirley, Administratrix.\\nChancery Court. Probate jurisdiction. Trial of conflicting titles.\\nThe -Chancery Court, on an application by an administrator to sell land of his-intestate, has no authority to adjudicate upon a claim of title thereto, set up by the heirs as derived from an independent source, paramount to that of the-decedent, and should sustain the administrator\\u2019s exceptions to the answer of the heirs setting up such defense.\\nAppeal from the Chancery Court of Hinds County.\\nHon. E. G. Peyton, Chancellor.\\nMrs. H. J. Shirley, administratrix of William W. Dunton,. deceased, filed this- petition in the Hinds Chancery Court, in-the matter of the estate of William W. Dunton, alleging that the personal and real estate were insufficient to pay the debts ;: setting out the claims against the estate and the property, real and personal,- of which William W. Duntoii died the owner;: and praying that the estate be declared insolvent and a decree-made for the sale of all the property.\\nThe petition further represented that said H. J. Shirley and \\u2022 the three children of James H. Dunton, deceased,* Lydia Garner Dunton, Harriet Whitney Dunton, and James Henry Dunton, each of whom was a minor, were the only surviving-heirs at law of said William W. Dunton, deceased, the said H. J. Shirley being a sister, and said James H. Dunton, deceased,. having been a brother, of William W. Dunton, deceased, and asked that the three minors, with their mother and guardian, Mrs. A. M. Gill, n\\u00e9e Dunton, be made defendants and required to answer and show cause, if any they could, why the estate should not be declared insolvent and the lands sold as prayed.\\nMrs. Gill and the minors, by her as guardian, answered that the lands never were the property of William W. Dunton, but were conveyed by third parties directly to James H. Dunton, under whom the respondents claimed to be owners, and made-the conveyances to James H. Dunton exhibits to their answer,, claiming that, as William W. Dunton was never owner of the-lands, the court had not jurisdiction to sell them, o'n petition of his administratrix, as part of his estate.\\nThe administratrix filed exceptions to so much and such portions .of the answer as sought to contest the title of the-decedent, William W. Dunton, to the lands sought by the petition to be sold, because (1) the Chancery Court has not-jurisdiction, in the exercise of its probate powers, to adjudicate upon conflicting titles to said lands ; (2) the petition does not seek to divest or affect any right, title, or claim of any of the respondents to the lands, except such right, title, or claim as may have vested in them as heirs at law of William W. Dunton; (3) any sale of the lands which may be decreed under the petition by the Chancery Court cannot deprive the respondents of any right, title, or claim which they have to any of the lands, except such as may have vested in them as heirs at law of William W. Dunton; (4) as the respondents are made defendants to the petition only as heirs at law of William W. Dunton, they are estopped to resist a sale of such interest or title as said William W. Dunton was seized and possessed of at the time of his death in said lands, if said sale shall be necessary for the payment of debts due by said deceased.\\nThe exceptions, which covered, practically, the whole answer, were sustained, and there was novfurther defense; but from a final decree for the sale of the lands the respondents appealed.\\nJ. A. Brown, for the appellants.\\nThe only question in this c\\u00e1se is whether the fact that the intestate never had any pretense of title to the lands was a defense which could be set up by the real owners of the land, whom the administratrix had made defendants to her petition to sell it. This goes to the jurisdiction of the court. It is not a trial of titles, but an issue as to a jurisdictional fact. The allegation in such petitions of the decedent\\u2019s ownership of the laud may be denied and disproved, just as the fact of his death may be disproved. The statement is, not that James H. Duntoii had a better title than the intestate, but that the latter never had any title at all.\\nThat the sale will do no harm to the appellants is not true. They are made parties defendant to the petition, wherein it is alleged that these lands belonged to the decedent, and they are bound by the final decree. No court has the'right to put a cloud on their title, and the decree and sale would have that effect at least. Moreover, the purchaser will be put in possession, and hold the land under color of title. And the appellants, being parties to the proceeding, will be bound by the adjudication of the jurisdictional fact that the decedent held the title to the land.\\nIt has been repeatedly decided that the Probate Court cannot adjudicate title to land. The effect of that rule is that the Probate Court has no jurisdiction of the petition to sell. Phillips v. McLaughlin, 26 Miss. 598 ; Glements v. Hawkins, 8 Smed. & M. 339; McRea v. Walker, 4 How. (Miss.) 457.\\nT. J. & F. A. R. Wharton, for the appellee.\\nAs the record shows there was no other evidence offered before the chancellor besides that contained in the record in this court, we submit that, in the absence of such other evidence, this court must presume that the decree appealed from was warranted by all the evidence which was submitted to the chancellor.\\nThe decree appealed from did not, and could not, prejudice the rights of J. H. Dunton\\u2019s heirs, as it directed that a sale should be made only of such right and title as W. W. Dunton had in the lands in controversy. If he had no title to such lands, this could only prejudice the rights of the purchasers at said sale, as they could acquire only such title as W. W. Dun-ton owned in the lands. Such sale could not operate to create a cloud upon the title of J. H. Dunton\\u2019s heirs, as it could only transfer to another such right as W. W. Dunton owned, thus only substituting another person, or persons, in the room and stead of W. W. Dunton.\\nThe Chancery Court has no jurisdiction to adjudicate upon conflicting title to lands where the parties claim to be the owners of the legal title, and liave an adequate remedy in a court of common-law jurisdiction. For this reason, and because only a legal title was relied upon as having vested in J. H. Dunton\\u2019s heirs, we submit that the decree was correct.\", \"word_count\": \"1395\", \"char_count\": \"7809\", \"text\": \"Campbell, J.,\\ndelivered the opinion of the court.\\nHeirs who are cited to answer a petition of the administrator to sell land of the intestate to pay debts may set up, as a bar to such application, any valid objection to a sale of their estate derived by descent from the decedent, which is all that can be affected by a deci'ee of sale on such application ; but it is not allowable for such heirs to oppose to such petition for a sale a title in themselves derived from another source than the intestate. Any claim of heirs not derived from the intestate is not involved in an application by his administrator to sell his land, and is not cognizable by the Chancery Court in such proceeding. A decree of sale in such case would not estop the heirs from asserting against a purchaser under such decree a title independent of that descended from the intestate, because all that the court can do by such decree is to divest the title devolved on the heirs by descent from the intestate, whose lands it is decreed shall be sold. Heirs have no interest to oppose a decree to sell as land of their ancestor what was not his.\\nThe policy of the law is speedy settlement of the estates of decedents, and it is not admissible to embarrass their administration by contests about titles not involved in the administration, and the exclusion of which contests will in no way harm, the heirs.\\nDecree affirmed.\"}"

miss/1679006.json

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+"{\"id\": \"1679006\", \"name\": \"J. B. Colt Co. v. Fuller\", \"name_abbreviation\": \"J. B. Colt Co. v. Fuller\", \"decision_date\": \"1926-11-22\", \"docket_number\": \"No. 25869\", \"first_page\": \"490\", \"last_page\": \"493\", \"citations\": \"144 Miss. 490\", \"volume\": \"144\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:59:42.292806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. B. Colt Co. v. Fuller.\", \"head_matter\": \"J. B. Colt Co. v. Fuller.\\n(Division B.\\nNov. 22, 1926.)\\n[110 So. 427.\\nNo. 25869.]\\nWelch <& Cooper and Boy B. Noble, for appellant.\\nCorpus Juris-C'yc. References: Sales, 35 Cyc, p. 151, n. 43; p. 441, n. 84.\", \"word_count\": \"836\", \"char_count\": \"4702\", \"text\": \"EColden, P. J.,\\ndelivered the opinion of the court.\\nThe appellant, J. B. Colt Company, sued the appellee, W. A. Fuller, to recover on a promissory note for two hundred thirty dollars given by Fuller to the Colt Company for the purchase price of a carbide lighting plant which was duly installed upon Fuller's premises, under a contract of warranty as to the material, and that the plant would operate automatically. Appellee, Fuller, contended that the warranty was breached, and that the plant was worthless to him, and, upon this theory, tho jury rendered a verdict in his favor, from which this appeal was prosecuted.\\nA number of cases similar to the one before us have reached this court in the recent past, and the principles of law governing' the parties to these contracts are very well established by this court in a number of decisions. See J. B. Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533, as we think the rules announced in that case govern the instant case.\\nThe note sued on was executed by Fuller after the carbide lighting plant had been installed for him, which was about the 1st of November, 19201, and was due one year after date. When the note became due, and the appellant attempted to collect it, the appellee, Fuller, for the first time, then notified the appellant that he had rejected the plant, and refused to pay for it, as it was . worthless, would not operate automatically, and that the warranty in the contract, in that regard, was breached; and Fuller refused to pay the note. Whereupon, this suit followed.\\nThe testimony in the case shows that Fuller operated the plant for about three months after it was installed, and that, when it failed to operate, he continued to keep it for nine months longer, and when the note became due, which was after Fuller had been in possession and use - of the plant for more than one year, he then attempted to rescind the contract and. reject the plant. It will thus be seen that Fuller, the purchaser, kept and used the plant for more than a year before offering to return it on account of any defect or breach of warranty as to its material or automatic operation.\\nWe do not think the contract could be rescinded by Fuller after appropriating and holding the plant for more than.one year after its purchase without notifying the appellant of any defect that he had discovered which amounted to a breach of warranty in the contract, nor offering to return the property to the seller. This would be an unreasonable length of time to hold the property before giving notice of its rejection.\\nTherefore appellee cannot rescind the contract in this case, but must pay whatever amount may be due to appellant for the plant under the rule laid down in the case of Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533, supra, wherein it is held:\\n\\\"Where goods are sold with a warranty of their character or quality, the purchaser, after accepting the goods, on discovering that they are not of the character or quality warranted, may rescind the contract by returning or offering to return the goods to the seller, or he may keep the goods, and, when sued for the price thereof,, may set off against such price the difference between it and the actual value of the goods delivered. The offer to return the goods in order to constitute a rescission of the contract must be made within a reasonable time after the discovery by the purchaser of the defects therein, and, if such offer is declined by the seller, the goods must not thereafter be appropriated by the purchaser to his own use.\\\"\\nTherefore the lower court erred in failing to instruct the jury to find for the plaintiff in such amount as would be the difference between the purchase price of the plant and the actual value of the property delivered; that is to say, that the purchaser could not rescind the contract because he failed to give notice of such rescission within a reasonable time, but he must keep- the plant and he may set off against the purchase price the difference between it and the actual value of the plant, as afterwards shown with the defects developed. The above Colt v. Mazingo Case should have been followed as to the amount of recovery, because, under the proof, the plaintiff was entitled to recover some amount in the lower court.\\nTherefore the judgment of the lower court will be reversed, and the case' remanded for a new trial on the' question only of the amount due appellant under the contract and the facts in the case.\\nReversed and remanded.\"}"

miss/1681444.json

@@ -0,0 +1 @@
+"{\"id\": \"1681444\", \"name\": \"Bradford et al. v. Creekmore, et al.\", \"name_abbreviation\": \"Bradford v. Creekmore\", \"decision_date\": \"1926-03-22\", \"docket_number\": \"No. 25369\", \"first_page\": \"565\", \"last_page\": \"574\", \"citations\": \"142 Miss. 565\", \"volume\": \"142\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:54:53.278445+00:00\", \"provenance\": \"CAP\", \"judges\": \"MoGtowen, J., took no part in the decision of this case.\", \"parties\": \"Bradford et al. v. Creekmore, et al.\", \"head_matter\": \"Bradford et al. v. Creekmore, et al.\\n(In Banc.\\nMarch 22, 1926.)\\n[107 So. 524.\\nNo. 25369.]\\nMcLean & McLean and N. W. Bradford, for appellants.\\nW. J. E'vans and A. M. Carothers, for appellees.\\nArgued orally by Wm. G. McLean, for appellants, and W. J. Evans, for appellees.\\nCorpus Juris-Cyc. References: Injunctions, 32 C. X, p. 304, n. 31 New.\", \"word_count\": \"1034\", \"char_count\": \"6210\", \"text\": \"Etheridge, J.,\\ndelivered the opinion of the court.\\n.Luring the latter part of the year 1920, certain petitioners filed a petition for the creation of a drainage district, under chapter 197 of the Laws of 1912. Commissioners were appointed to make a preliminary examination of the matter, and the commissioners employed an engineer to make a survey, under the provisions of this chapter. On the hearing, a. drainage district was not created, but the scheme was abandoned^ Thereafter the drainage commissioners certified an expense account under the act to the county drainage board, and thereafter the county drainage board certified the expenses to the board of supervisors, requesting that an acreage tax be levied on the lands embraced in the proposed district ; and the board of supervisors levied an acreage tax of one dollar and thirteen cents per acre.\\nThe bill in this- case was filed to prevent the sheriff from selling the lands of the complainants under the said acreage tax order. The bill alleged that, when the certificate of indebtedness, incurred in the preliminary service, etc., was presented to the county board of drainage commissioners and approved by them, a certiorari was taken by certain of the property owners to the circuit court from the order approving such certificate of indebtedness, and the suit had never been disposed of in the circuit court, but was still pending at the time of the filing of the injunction. That allegation in the bill was denied by the answer filed by the appellants. The bill further alleged that, when the acreage tax was levied upon the lands of the persons owtaing the lands in the district, an appeal was taken to the circuit court, and that the judgment in the circuit court was that the judgment of the board in levying the said tax was reversed and said order annulled, so far as it affected the lands of those appealing in that cause, but no other. The answer while admitting \\\"this allegation, asserted that an appeal was taken from the judgment of the circuit court and was undisposed of. The original bill was filed against the sheriff and a part of the holders of certificates of indebtedness, and an injunction was prayed for against the sheriff alone. A preliminary injunction was issued against the sheriff alone prohibiting his making the sale under the acreage tax.\\nThe holders of certificates of indebtedness who were made defendants to the suit filed an answer contesting; the rightfulness of the issuance of the injunction, and seekinjg to 'make itheir answer a, (cross-bill, in [which cross-bill they sought to recover damages for the wrongful suing out of the injunction, and for judgment a gainst the injunction bond for the amount of their indebtedness. The sheriff did not answer. The complainants filed a motion to be permitted to dismiss their bill as against the appellants and proceed against the sheriff alone, which motion was sustained by the court. The appellants sought then to be permitted to file an answer in the name of the sheriff, contesting the injunction, which was refused by the court, and the bill was dismissed against the appellants here without prejudice to their rights,, and the court below) then permitted the complainants in the injunction suit to take a. decree pro confesso against the sheriff and a final decree thereon making the injunction perpetual, from which order the appellants have appealed, and insist under the appeal that they were necessary parties defendant to the suit, and that they should have been permitted to litigate the issues in the name of the sheriff although they may not have been necessary parties.\\nThe appellee justifies the decree below on the theory that the judgment of the court below was correct, because the appellants were not necessary parties and their rights are not precluded; and also upon the theory that an acreage tax is unconstitutional, being in conflict with section 112 of the state Constitution, and also in conflict with the Fourteenth Amendment of the Constitution of the United States, in that the tax imposed taxes on the property of the complainants without due process of law. Appellee also contends that the appeal from the order of the board of supervisors assessing the acreage tax was an adjudication that the said tax was unlawful, and, being reversed as against some of the parties, could not be enforced against the others without a reassessment. Appellee also attacks the drainage act as being unconstitutional, in that it undertakes to confer appellate jurisdiction upon the chancery court. Without deciding whether the appellants were necessary parties in the court below, We think the court should have permitted them to litigate the issues in the name of the sheriff on giving bond to protect the sheriff from expenses and other liabilities.\\nWe do not undertake, in this opinion, to pass upon the constitutional questions here involved, because, in our view, these matters should be heard by parties litigant whose rights may be affected by the judgment rendered on the final disposition of the cause.\\nThe questions presented for decision are not so clear and free from difficulty that the court would feel warranted in proceeding to the decision of them without the benefit of argument of counsel of the parties whose interest may be affected, and without the decision of the court below upon such questions. We reserve all the questions for further consideration on the final disposition, should an appeal be made therefrom, except that the complainants should have been permitted to defend the suit in the court below. The injunction will be retained until the final hearing' in the court below, and the judgment will be reversed and the cause remanded for further proceedings in accordance with this opinion.\\nMoGtowen, J., took no part in the decision of this case.\\nReversed and remanded.\"}"

miss/1684474.json

@@ -0,0 +1 @@
+"{\"id\": \"1684474\", \"name\": \"Staple Cotton Co-op. Ass'n v. Buckley\", \"name_abbreviation\": \"Staple Cotton Co-op. Ass'n v. Buckley\", \"decision_date\": \"1926-01-18\", \"docket_number\": \"No. 25215\", \"first_page\": \"483\", \"last_page\": \"487\", \"citations\": \"141 Miss. 483\", \"volume\": \"141\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T02:13:43.426369+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Staple Cotton Co-op. Ass\\u2019n v. Buckley.\", \"head_matter\": \"Staple Cotton Co-op. Ass\\u2019n v. Buckley.\\n(Division A.\\nJan. 18, 1926.)\\n[106 So. 747.\\nNo. 25215.]\\nR. G. McBee, for appellant.\\nShands, Elmore \\u00e9 Causey, for appellee.\\nB. C. McBee, in reply, for appellant.\\nArgued orally by B. G. McBee, for appellant, and A. W. Shamds, for appellee.\\nCor|pus Juris-Cyc. References; Injunctions, 32 C. J., p. 476, n. 9.\", \"word_count\": \"398\", \"char_count\": \"2320\", \"text\": \"Smith, C. J.,\\ndelivered the opinion of the court.\\nThe appellant exhibited an original bill in the court below against the appellee, by which it sought to.recoyer for an alleged breach by the appellee of a co-operative marketing contract made by him with the appellant, and to obtain the specific performance by the appellee of this contract. As an incident to this relief, and in furtherance thereof, the appellant prayed for and obtained a temporary injunction restraining the appellee from further violating his contract. This injunction- remained in force, and no attempt to obtain its dissolution was made until the case came on and was set down for final hearing on bill, answer, and motion to dissolve the injunction, and for damages for its wrongful issuance. \\\"When the case was called for trial, the bill was dismissed on motion of the appellant, and the court awarded the appellee an attorney's fee as damages for the wrongful suing out of the injunction.\\nIt does not appear from this record that any services were rendered by the appellee's attorneys in obtaining' the dissolution of the injunction other than such as were rendered in defending the case on its merits. Consequently the issuance of the injunction did not cause the appellee to incur any liability for attorney's fees in excess of .that which he necessarily incurred in defending the case on its merits, and the case is therefore ruled by Mims v. Swindle, 124 Miss. 686, 87 So. 151; Howell v. McLeod, 127 Miss. 1, 89 So. 774, Giglio v. Saia (Miss.), 106 So. 513, and Hunter v. Hankinson (Miss.), 106 So. 514, decided January 4, 1926, but not yet [officially] reported. The attorney's fee should not be allowed.\\nThe decree of the court below, in so far as it awards the appellee an attorney's fee as damages for the suing out of the injunction, will he reversed, and the appellee's motion therefor will he dismissed, hut in all other respects the decree will remain in full force and effect.\\nReversed.\"}"

miss/1684510.json

@@ -0,0 +1 @@
+"{\"id\": \"1684510\", \"name\": \"Craft v. Homochitto Lumber Co.\", \"name_abbreviation\": \"Craft v. Homochitto Lumber Co.\", \"decision_date\": \"1925-12-14\", \"docket_number\": \"No. 25287\", \"first_page\": \"156\", \"last_page\": \"163\", \"citations\": \"141 Miss. 156\", \"volume\": \"141\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T02:13:43.426369+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Craft v. Homochitto Lumber Co.\", \"head_matter\": \"Craft v. Homochitto Lumber Co.\\n[106 So. 440.\\nNo. 25287.]\\n(Division B.\\nDec. 14, 1925.\\nSuggestion of Error Overruled Jan. 11, 1926.)\\nRawls & Hathorn and Price & Price, for appellant.\\nLuther A. Whittington, for appellee.\\nHeadnote. Injunction, 32 C. J., Section 37.\", \"word_count\": \"1186\", \"char_count\": \"6908\", \"text\": \"Anderson, J.,\\ndelivered the opinion of the court.\\nAppellee, Homoohitto Lumber Company, a corporation, filed its bill in the chancery court of Franklin county against appellant, Sidney Craft, administrator, to enjoin the latter from prosecuting an action at law brought by him in the circuit court of Lincoln county against appellee. The cause was heard on bill, answer, motion to dissolve temporary injunction theretofore issued, and proofs, and a decree was rendered overruling* appellant's motion to dissolve the injunction from which appellant was granted this appeal to settle the principles of the cause.\\nThe controlling facts are as follows: Will Craft, appellant's intestate, a negro employee of appellee, died from an injury received by him while engaged in the performance of his duties as such servant.- He had no children, nor descendants of children. Martha Craft claimed to be his wife and sole surviving heir. Appellee, believing that she was, after negotiations between the two, paid her the sum of one thousand one hundred dollars in full settlement and discharge of any claim for damages that she might have against appellee on account of the death of-said Will Craft. Appellee took from Martha Craft an acquittance in writing discharging it from all liability, if any existed, for the death of the said Will Craft.\\nAfter that compromise and settlement took place between Martha Craft and appellee, appellant was appointed by the chancery court of Franklin county administrator of the estate of the said Will Craft and duly qualified as such, as provided by law. Appellant thereupon in his capacity of administrator of the estate of Will Craft brought the action at law in the circuit court of Lincoln county, which was enjoined in this case. That action was brought for the recovery of damages for the alleged wrongful death, at the hands of appellee, of said Will Craft. Thereafter, Martha Craft instituted a proceeding in the chancery court of Franklin county under sections 2790 to 2792, inclusive, Code of 1906 (sections 310 to 312., inclusive, Hemingway's Code), to have herself declared to be the widow and sole heir at law of 'the said Will Craft. The action at law by appellant against appellee in the circuit court of Lincoln county was based on the theory that, in truth and in fact, Martha Craft was not the widow and sole heir of Will Craft, and that therefore the compromise and settlement made by her with appellee for the damages she claimed to. have suffered as such widow and sole heir on account of the alleged negligence of appellee, resulting in the death of said Will Craft, had no binding force, and therefore appellant as administrator of his estate was. entitled to recover from appellee for such alleged wrongful death.\\nAppellee sought to enjoin that action at law until the chancery court of Franklin county should determine in said proceeding therein, instituted by Martha Craft, who the true heirs at law of Will Craft were. It will be observed, therefore, that the injunction in this case was to restrain an action at law against appellee until the final determination of still a third cause pending in the chancery court of Franklin county, in which was involved the question of the true heirs of Will Craft, to which latter cause appellee was not a party.\\nAppellant's position is that appellee had complete and adequate remedy at law in the law action sought to be restrained, and therefore had no right to resort to the injunctive relief of a court of equity to restrain such action at law.\\nAny decree which might be rendered in the proceeding of Martha Craft, under the statute above referred to, to have herself declared the widow and sole heir of Will Craft, would not be conclusive except as to the parties thereto until after the expiration of two years from its rendition. The statute provides that the heirs at law and next of kin only of the deceased shall he made parties to the proceeding, and the decree rendered shall he binding on them from its date, but not on others until after the expiration of two years from its rendition. As to the weight the decree shall have as evidence, the statute provides:\\n\\\"And said decree shall be evidenced in all the courts of law and equity in this state that the persons therein named are the sole heirs at law of the person therein described as their ancestor.\\n\\\"A decree so rendered shall not be assailed collaterally, except for fraud, and shall be binding and conclusive upon all persons cited to appear from the date of its rendition, and upon all persons whomsoever from and after the expiration of two years from the date on which the same was rendered, saving to minors and persons of unsound mind, the right to reopen said cause within one year after attaining majority or being restored to sanity.\\\" Sections 2791, 2792, Code of 1906; sections 311, 312, Hemingway's Code.\\nIt is manifest from the language and purpose of the statute that if in the proceeding for that purpose Martha Craft should be declared widow and sole heir of Wil! Craft, the decree so adjudging would not be conclusive for appellee nor against appellant in his capacity as administrator until after the expiration of two- years from its rendition. Dhring that period it would-be conclusive as to next of kin made parties, but only prima-facie evidence of the truth of its recitals as to all other persons. Therefore, in the action at law between appellant and appellee either could assail the decree. In other words, the question as to whether Martha Craft was the widow and sole heir at law of Will Craft would still be an open question in that action.\\nThe injunction in the present case cannot have the effect of advancing the determination of the contentions of the parties in the action at law. On the contrary, it might delay their determination. If Martha Craft was in fact the widow and sole heir of \\\"Will Craft, appellee would be permitted to show that fact in the action at law notwithstanding a decree of the court in another proceeding holding to the contrary. And if the converse was the fact, appellant would be permitted to prove it in the face of a decree in the other proceeding holding to the contrary. Appellee, therefore, has a complete remedy at law in the action at law pending against it in Lincoln county. There is no use citing authorities to sustain the proposition that a court of equity will not enjoin an action at law if the complainant in the injunction suit has a complete and adequate remedy at law. We hold that the appellee had such a remedy in the action at law which it sought in this case to enjoin.\\nReversed, and bill dismissed.\"}"

miss/1735155.json

@@ -0,0 +1 @@
+"{\"id\": \"1735155\", \"name\": \"William McCaughan et al. v. William H. Hardy et al.\", \"name_abbreviation\": \"McCaughan v. Hardy\", \"decision_date\": \"1900-10\", \"docket_number\": \"\", \"first_page\": \"598\", \"last_page\": \"600\", \"citations\": \"78 Miss. 598\", \"volume\": \"78\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:31:42.807814+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William McCaughan et al. v. William H. Hardy et al.\", \"head_matter\": \"William McCaughan et al. v. William H. Hardy et al.\\nWitnesses. Estate of decedent. Code 1893, $ 1740. Depositions.\\nA person cannot testify, by deposition or otherwise, to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person (code 1893, $ 1740), and it is immaterial that the decedent conducted the transaction out of which the claim arises by an agent who is yet alive and has testified in the case.\\nFrom the chancery court of Harrison county.\\nHon. Nathan C. Hill, Chancellor.\\nHardy and others, the appellees, were complainants in the court below; McCaughan and another, the appellants, were defendants there. The object of the suit was to reform a deed made by defendants to Mrs. H. L. Hardy, deceased, in her lifetime. Complainants were the heirs at law of the decedent. The purchase and negotiations between the decedent and defendants were conducted on the part of the decedent by her agent, W. H. Hardy, one of her heirs and a complainant, and said W. H. Hardy testified as a witness in the case for the complainants. The depositions of the defendants were taken in their'own behalf, but on motion of complainants they were suppressed by the court below, and that court having rendered a decree in favor of complainants, the defendants appealed to the supreme court, where they assigned for error the action of the court below in suppressing their depositions, and the rendition of the final decree against them.\\nWilliamson, Wells & Oroom, for appellants.\\nThe statutory rule (code of 1892, \\u00a7 1740) is a wise one, but should not be used so as so give the heirs of a decedent the opportunity to do what is sought to be prevented by this statute.\\nIn this case the record shows that the whole transaction as to the purchase of the lot from William and L. W. McCaughan was done by W. H. Hardy, and that if a mistake was made, it was discovered long before Mrs. Hardy\\u2019s death. Yet he waited until Mrs. Hardy had died and then brought this action for his children, her heirs, and in his own name as one of her heirs, making out the whole case by his own testimony, denying to the man with whom he dealt the right to testify in the case, by invoking the fact of his wife\\u2019s death. The record shows that Mrs. Hardy never did know anything as to the facts in the case. The purchase of the land was made by her husband, who is yet living, and who simply had the deed made to her. All of the facts which transpired were unknown to her, and were known only to W. H. Hardy and William Mc-Caughan, and yet it was permitted to W. H. Hardy to delay action until after her death, and then as her heir to bring suit and recover of appellants a lot which he had never bought or paid for; and this, too, by reason of his evidence and by denying to appellants the right to testify in the case.\\nA statute to prevent frauds should not be so construed or applied as to allow and invite the perpetration of a fraud.\\nThe decree is wrong on the facts. The solemn, deliberate act of the parties to a deed in making a conveyance of lands should not be lightly set aside. A purchaser of land should not be permitted to accept a conveyance and act upon it for years and then come in with a bill for reformation and secure the title to other and different and much more valuable property on his ex parte testimony as to an error committed. The proof should be clear and unmistakable in such a case, and we submit that the evidence in this case does not meet the requirements. OrofbonY. Building, etc., Association, 77 Miss., 166; Endlich on Construction of Statutes, sec. 34; Black on Interpretation of Laws, 275; lb., 282.\\nBowers, Ohaffe & McDonald, for appellees.\\nThe court below rightfully suppressed appellants\\u2019 depositions. Code 1892, \\u00a71710; Jades v. Bridnoell, 51 Miss., 882; Lovev. Stone, 56 Miss., 119; Duncan v. Oerdine, 59 Miss., 550; Wetherbee v. ALoi, 72 Miss., 355. The decree appealed from was manifestly correct on the competent evidence in the case.\", \"word_count\": \"781\", \"char_count\": \"4365\", \"text\": \"Calhoon, J.,\\ndelivered the opinion of the court. We cannot hold that there was error in suppressing the depositions. If it were an original proposition, we might or might not do so, but we feel bound by the cases of Duncan v. Gerdine, 59 Miss., 550, and Wetherbee v. Root, 72 Miss., 355. We cannot reverse the chancellor on the facts.\\nAffirmed.\"}"

miss/1775417.json

@@ -0,0 +1 @@
+"{\"id\": \"1775417\", \"name\": \"Henry Commander v. Hezekiah Brazil\", \"name_abbreviation\": \"Commander v. Brazil\", \"decision_date\": \"1906-04\", \"docket_number\": \"\", \"first_page\": \"668\", \"last_page\": \"674\", \"citations\": \"88 Miss. 668\", \"volume\": \"88\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:23:55.849511+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry Commander v. Hezekiah Brazil.\", \"head_matter\": \"Henry Commander v. Hezekiah Brazil.\\n[41 South. Rep., 497.]\\nIni-ants. Contracts. Frauds. Estoppel. False representations as to age.\\nAn infant representing himself to be adult, his appearance not contradicting him, and thereby enabling himself to enter into a contract and enjoy its benefits, the party dealing with him believing him to be adult, will be estopped to plead infancy at the time of the execution of the contract as a bar to its enforcement.\\nFrom the chancery court of Monroe county.\\nHon. Baxter McFarland, Special Chancellor.\\nBrazil, the appellee, was complainant in the court below; Commander, the appellant, was defendant there. From a decree in complsiinRnt^fayornhe. defendant appealed to the supreme court.\\nAppellant, Commander, and his stepfather, McDaniel, entered into business as liverymen, and purchased from the wife of appellee, Brazil, certain horses, carriages, etc., giving notes for the purchase money, which notes were -secured by a trust deed on the personal property transferred, and as additional security embraced in said trust deed a tract of land belonging to appellant. McDaniel afterwards died (according to the allegations of the bill, intestate and insolvent), and the payment of the notes having failed, and the personal property conveyed in said trust deed having been sold, and the amount realized from the sale not being sufficient to liquidate said notes, Mrs. Brazil, wife of appellee, filed the bill in chancery in this case, praying an accounting to ascertain the amount due on the indebtedness, and for the sale of the land and the application of the proceeds to the payment of the balance found to 'be due. Pending the suit, the appellee, having acquired the claim by assignment from his wife, became a party to tbe suit. Tbe appellant, Commander, filed a plea setting up that he was an infant when the contract was made, which, being overruled by the court, he answered, mailing his answer a cross-bill, and denied that he received any benefits from the property purchased by him and his stepfather, and charged that the complainant knew of his infancy at the time the trust deed was executed, which facts were denied by the cross-defendant. The court below rendered a decree upon the pleadings and proofs granting the relief prayed by complainant, ordered the land sold, and the payment out of the proceeds of said sale of the amount due appellee.\\nW. H. Glifton, for appellant.\\nThe contracts of infants, except for necessaries which their guardian fails to supply, impose no liability at law upon them which is not voidable at their election. They may be liable in a suit at law for deceit or fraud, but the action must be in trespass or tort and not on the contract. Fraud, however, will prevent the disability from being pleaded in equity. If an infant of comprehensive age procure an agreement or contract to be made through false and fraudulent representations that he is of age, a court of equity will enforce his liability as though he were an adult. Ferguson v. Bobo, 54 Miss., 121; Brantley v. Wolf, 60 Miss., 420; Yaeger v. Knight, 60 Miss., 130; Upshaw v. Gibson, S3 Miss., 341.\\nIn every sale of a chattel, if possession be at the time in another and there be no covenant of warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession of the article sold and he sells as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. Benjamin on Sales, 3 Am. ed., pp. 621, 639 ; Long v. Iliclcinbotham, 6 Cush., 181,189.\\nWhere in the sale of personal or real property the vendee protects himself by covenants of warranty and is- let in possession, be cannot defend himself against the payment of the purchase money without a previous eviction, unless in cases where there has been fraud. 2 Kent\\u2019s Oomm., 471; Brown v. Smith, 5 Iiow. (Miss.), 395; Waffordv. Ashcraft, 47 Miss., 646.\\nThe rule is different though where the grantor is insolvent and title invalid. Waddell v. Latham, 71 Miss., 357 (s.c., 15 South. Kep., 32) ; Waites v. Cooper, 24 Miss., 232.\\nWhere the suit for purchase money of chattels is brought by a fraudulent or insolvent grantor, the grantee in possession under a plea of failure or want of consideration may show a breach of the warranty, by proof of an invalid title or of encumbrances on the property. Dancy v. Suggs, 46 Miss., 606.\\nGeorge C. Paine, for appellee.\\nThe decree of the court below is based on the facts as disclosed by the testimony. This being true, this court must accept the findings of the chancellor, unless it is clearly and manifestly wrong. Derdeyn v. Donovan, 81 Miss., 697 (s.c., 33 South. Rep., 652) ; Melchoir v. Kahn, 38 South. Rep., 437.\\nThe court will observe that Chancellor Muldrow, by his decree, settled the plea of infancy. His decree was correct under the law as announced in the recent case of Ostrander v. Quin, 84 Miss., 230 (s.c., 36 South. Rep., 257). .\", \"word_count\": \"2256\", \"char_count\": \"12723\", \"text\": \"Mayes, J.,\\ndelivered the opinion of the court.\\nWe think this case was correctly decided on the facts, and would affirm it without any opinion were it not that there is involved the question as to whether or not a minor may make false representations as to his age, thereby inducing a contract with another person and accepting the benefits to be obtained under the contract, and afterwards escape liability by proving that he was not of age at the time of making the contract. The case of Ostrander v. Quin, 84 Miss., 230 (36 South. Rep., 257), comes very near deciding this question; but, inasmuch as there is some question as to -whether the decision was based on the ground that the minor in that case used the money for necessaries, and because it was so used the court held him liable, we deem it necessary to remove all doubt on this subject. The record in this case shows that W. H. Commander was nineteen years and nine months old at the time he bought out the livery stable and executed the deed of trust in question; that he was asked the direct question, two or three times, while negotiations were being held, as to his age, and he stated he was of age; that appellee made the trade with him in good faith believing him to be twenty-one years of age, and on faith of the contract turned over to him the entire livery business \\u2014 the appellant executing at the same time a deed in trust on the live stock, buggies, etc., so sold by appellee to him, and giving as additional security a deed of trust on fifty acres of land. The appellant having failed to pay according to his contract, and the personal property sold him by appellee having been sold under the deed in trust and not bringing enough to satisfy the debt, the land is now resorted to. It may be stated in this connection that the proof shows that the personal property sold had been much abused by misuse and neglect. Under these circumstances, can appellant successfully set up his minority as a defense to foreclosure proceedings ?\\nPerhaps there is no subject in the law that has received more elaborate discussion, or wherein there is more hopeless conflict of authority, than the subject now presented for decision by this court. It may be stated that the great weight of earlier authorities on this subject hold that a minor cannot be held liable on his contract, but the tendency of all modern text-books and decisions is in favor of holding a minor responsible under his contract, where he deliberately makes a false representation as to his age, and in this way induces another to contract with him and accepts the benefits of the contract. 'Whatever may be the weight of earlier authorities on this subject, common justice outweighs the unsatisfactory distinctions attempted to be set us as reason why a minor should not be held liable under these circumstances.^ It may be said that all authorities, with hardly an exception, and regardless of the way that the different courts have held upon the subject, recognize the right of the proposition ; for while they hold a minor cannot be sued on his contract, yet they hold that he is liable for his tort and make him responsible in damages for his false representations. Other authorities lay down the rule that he may not be sued at law, but he may be sued in equity. 'But it matters not in what court the suit may be brought or what the forra of the action, the thing done is the subjecting of the minor's property to the payment of an obligation that his fraudulent conduct has created. If the property of a minor is to be subjected to the payment of debt or damages thus created by him by his fraudulent misrepresentation, we fail to see what protection is given the minor by adhering to the distinction of form attempted to be drawn by many of the earlier authorities.^ As it is aptly expressed in the case of Rice v. Boyer, 108 Ind., 472 (9 N. E. Rep., 420; 58 Am. Rep., 53) : \\\"There is a connection between contract and tort in every case of bailment \\u2014 in the bargain and sale of personal property and of the purchase and sale of real estate; and if an infant is not responsible for his fraudulent misrepresentation of his age in connection with these transactions, there is not within the whole range of business transactions any case in which he could be made liable for his fraud.\\\" The tendency of courts at this present time, and of legislation, is to break away from mere forms and to go to the real substance of a controversy, irrespective of forms, and administer the law according to substantial right, unhampered by the technicalities of the older authorities.\\nIf a minor is to be held liable for his fraud, and. his property 'is to be taken to compensate in damages a person who has suffered damage by the minor's deceit, we fail to understand how it could be made any easier on the minor for this to be done through an action in tort, instead of on his contract, if the same results follow. Minority is given for the protection of a person under age, but it cannot be used as a weapon with which to commit fraud. \\\"When a minor has reached the stage of maturity in years and physical appearance calculated to deceive a person of ordinary prudence, and the minor does deceive such person as to his age, and asserts that he is of full age, and induces a contract to be made with him, and accepts the benefits of his contract, he will not be heard at any future time to deny that he was of full age at the time the contract was executed, and thereby escape the obligation of his contract, where the party dealing with him has dealt with him believing him of full age. We do not hold that an executory contract may be enforced against an infant who falsely represents himself to be of age, unless some damage has been done to the party with whom he contracts. We do not hold that an infant is estopped by his deed merely. We do not hold that any sort of a contract may be enforced against an infant at any time on account of his false assertion that he is of age, unless the age and appearance indicate such years of maturity as may well deceive the person with whom he deals.^ We do hold, however, that when a minor has reached that stage of maturity which indicates that he is of full age, and enters into a contract falsely representing himself to be of age, accepting the benefits of the contract, he will be estopped to deny that he is not of age when the obligation of the contract is sought to be enforced against him. Ostrander v. Quin, 84 Miss., 230 (36 South. Rep., 257) ; Ferguson v. Bobo, 54 Miss., 121; Levy v. Gray, 56 Miss., 318; Brantley v. Wolf, 60 Miss., 420; Rice v. Boyer, 58 Am. Rep., 53 ; Pomeroy's Equity (3d ed.), 945; 2 Paige on Contracts, \\u00a7 880; 16 Am. & Eng. Ency. Law (2d ed.), 292.\\nThe chancellor in this case decreed a foreclosure of the deed in trust, with a decree over against the minor for any balance that remained due after the sale of the property if the property did not bring a sufficient price to pay tbe debt. We approve the chancellor's decree in toto.\\nAffirmed.\"}"

miss/1789193.json

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+"{\"id\": \"1789193\", \"name\": \"Josiah C. Williams v. Yazoo & Mississippi Valley Railroad Company\", \"name_abbreviation\": \"Williams v. Yazoo & Mississippi Valley Railroad\", \"decision_date\": \"1908-03\", \"docket_number\": \"\", \"first_page\": \"77\", \"last_page\": \"79\", \"citations\": \"93 Miss. 77\", \"volume\": \"93\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:23:43.126648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Josiah C. Williams v. Yazoo & Mississippi Valley Railroad Company.\", \"head_matter\": \"Josiah C. Williams v. Yazoo & Mississippi Valley Railroad Company.\\n[46 South., 399.]\\nCarriers. Railroads. Live stoclc. Injury in transit. Claim. Verification. Waiver. Bill of Lading.\\nWhere a hill of lading for the carriage of live stock made it a condition precedent to the recovery hy the owner of damages for injury to the stock in transit that he should make claim therefor in writing under oath within a designated time the reception by the carrier, without objection until suit began, of a written unsworn demand is a waiver of a claim under oath.\\nFrom the circuit court of Claiborne County.\\nHon.. John M. Bush, Judge.\\nWilliams, appellant, was plaintiff in the court below; the railroad company, appellee, was defendant. there. From a judgment in defendant\\u2019s favor, predicated of a peremptory instruction, plaintiff appealed to the supr\\u00e9me court.\\nThe suit was by the owner of live stock for damages because of alleged injuries suffered while in transit; the bill of lading provided that the carrier should not be liable for su'ch damages, in any case, unless the owner made claim therefor in writing under oath within ten days after receiving the animals at the point of destination. The testimony touching the unsworn written claim made within the ten days in this cas\\u00e9 and other facts are stated in the opinion of the court.\\nB. B. Anderson and Alexander & Alexander, for appellant.\\nIt was error to take the case from the jury because the claim was not sworn to. In the first place, no such defense was interposed. It is true pleadings in the justice\\u2019s court and on appeal from the justice court do not have to be in writing, but it is still necessary for defenses to be made known. Certainly, it is not fair to a plaintiff to omit all reference to such a defense and to present it only by a motion for a peremptory instruction. The bill of lading containing the stipulation that the claim must be made within ten days and verified by affidavit was introduced by defendants. No special attention seems to have been 'directed to that provision. Even when plaintiff\\u2019s agent testified to mailing the notice within ten days and stated voluntarily that it was not sworn to no objection was interposed by defendant to the testimony. No motion was ever made to exclude it. Under the circumstances the point cannot be made for the first time in the instruction. Had timely objection been made by plea or objection to the evidence as to the mailing of the notice or otherwise, testimony could have been procured more fully establishing the receipt of the notice and what was done under it.\\nWhile our court held in Southern Express Go. v. Hunnicutt, \\u25a054 Miss. 556, that a stipulation requiring thirty days notice is reasonable, it has never held that ten days would be reasonable.\\nMayes & Longsireet, for appellee.\\n[The brief of counsel for appellee could not be found by the reporter, hence no synopsis thereof can be given.]\", \"word_count\": \"804\", \"char_count\": \"4569\", \"text\": \"Whitfield, C. J.,\\ndelivered the opinion of the court.\\nAnderson, the attorney for the plaintiff in this case testified that he mailed the notice of the claim within ten days, and that it was not sworn to. The railroad company made no objection to this testimony, nor was any motion ever made to exclude it. The point was not made at all that the claim failed because of not having been sworn to within the ten days, until the court was asked to instruct the jury peremptorily to find for the defendant. The case originated in the court of a justice of the peace, where no pleadings in writing are required. Owing to this fact, and to the course pursued by the appellee on the trial in the circuit court, the plaintiff had no reason to suppose this de fense would be made. If any objection had been made to the testimony of Anderson as to the mailing of the notice, appellant would have had opportunity of more fully establishing the receipt of the notice and what was done under it.. We do not think, under the circumstances of this case, that the appellee should have been permitted to make the point in the way in which it was made. It should have been treated as a waiver, within the principles announced in the case of Lasky v. Southern Express Company, 92 Miss., 268, 45 South., 869. It was the duty of the railroad employe, to whom the notice was mailed, to answer, and to answer promptly, and then make the point, if it was intended to rely upon that point. Railroad Co. v. Bogard, 78 Miss., 11, 27 South., 879. It is very questionable if the time (ten days) could be, in any case, upheld as a reasonable regulation.\\nReversed and remanded.\"}"

miss/1791960.json

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+"{\"id\": \"1791960\", \"name\": \"Yazoo & Mississippi Valley Railroad Company v. Ophelia Sanders\", \"name_abbreviation\": \"Yazoo & Mississippi Valley Railroad v. Sanders\", \"decision_date\": \"1905-11\", \"docket_number\": \"\", \"first_page\": \"607\", \"last_page\": \"609\", \"citations\": \"87 Miss. 607\", \"volume\": \"87\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:51:33.951584+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Yazoo & Mississippi Valley Railroad Company v. Ophelia Sanders.\", \"head_matter\": \"Yazoo & Mississippi Valley Railroad Company v. Ophelia Sanders.\\n[40 South. Rep., 163.]\\nNuisance. Action for damages.\\nWhere animals were knocked, by a passing train from a railroad track and killed near a dwelling house, and the railroad company, after request, willfully, flagrantly, and oppressively refused to remove the carcasses, although the odor from them was extremely offensive to those living on the premises, the company is liable to the owner of the dwelling house for actual and punitive damages.\\nFrom the circuit court of Quitman county.\\nHon. Samuel C. Cook, Judge.\\nMrs. Sanders, the appellee, was the plaintiff in the court below; the railroad company, the appellant, was defendant there.\\nThe suit was for damages caused by the action of the railroad- company\\u2019s servants in refusing to remove the carcasses of mules killed by the train of the railroad company and hurled from the track to a point very close to plaintiff\\u2019s dwelling house. Plaintiff requested the servants of the railroad company to remove the carcasses, but they refused'to do so in a manner which the court pronounced to be willful, flagrant, and oppressive. The odor from the decaying carcasses was extremely offensive and annoying to the plaintiff and the members of her household, and made life in her home almost unbearable. The railroad company defended upon the ground that it was not obliged to remove the carcasses, because they were killed in the country, and not within the limits of any municipality. It further claimed that it was unable to' obtain the services of laborers or others to remove the dead animals, and that the carcasses were buried in a ditch, near which they lay, by being covered over with dirt. There was a dispute as to the extent to which the animals were so covered, the plaintiffs testimony tending to show that an insufficient quantity of dirt was put upon the carcasses\\u2014 only enough to serve as a pretext for burial \\u2014 and that this thin covering of dirt was removed by dogs and buzzards shortly after it was thrown upon the dead animals, of all of which the railroad company had due notice.\\nThe court below submitted the question of damages, both actual and punitory, to the jury, which returned a verdict for $500 in plaintiff\\u2019s favor. The defendant\\u2019s motion for a new trial having been overruled, it appealed to the supreme court.\\nMayes & Longstreet, and O. N. Burch, for appellant.\\nThe court erred in giving the second instruction for the plaintiff, and also in modifying the fifth instruction ashed by the defendant. These instructions submitted to the jury the question of punitory damages on the basis of the liability for infliction of a wanton, willful, or oppressive nuisance, or a reckless disregard of the rights of the plaintiff.\\nThe heavy verdict awarded, coupled with the fact that the court submitted the case to the jury under instruction as in the case of punitory damages, shows that punitory damages were given, and the case ought to be reversed for that reason. *\\nM. B. Denton, and J. ~W. Mach, for appellee.\\nAn examination of all the testimony in the case will show that the jury had ample ground upon which to base their finding that the action of the section foreman was characterized by such willfulness and gross disregard of appellee\\u2019s rights as to warrant the assessment of exemplary damages.\\nThe section foreman told appellee, not that it was impossible to move the stock, but that \\u201che did not have time to fool with it, and he was not going to fool with it.\\u201d It is true that he at first told her that he could not move the stock, but after she had.offered.him assistance and told him how the stock could be easily moved, lie gave her his real reason for refusal, as above stated.\\nBut if it be admitted that the section foreman could not have removed the stock nor procured their removal, it cannot be denied that he could have buried them properly. The jury have decided that the stock were buried with such gross negligence as to warrant punitory damages in this case, and we submit that their verdict should stand. The evidence at lea'st tends to warrant exemplary damages, and the question of awarding them was, therefore, properly submitted by the court; and the jury having decided the sufficiency of the evidence, it is not longer open to discussion. Railroad Go. v. Scwrr, 59 Miss., 456.\", \"word_count\": \"943\", \"char_count\": \"5495\", \"text\": \"Truly, J.,\\ndelivered the opinion of the court.\\nThe railroad company should take heart of grace at the smallness of the verdict in this case, instead of complaining that punitive damages were awarded. If the statement of the appellee be true \\u2014 and it was not only accepted by the jury, but its truth forces itself upon each individual member of the court \\u2014 a more flagrant, unwarranted, and oppressive violation and trampling upon the rights of the public was never presented to an appellate court. To willfully commit a trespass upon the rights of an individual is of itself sufficient to permit the ^warding of punitive damages, though committed upon but .a single occasion. What, then, must be said of a case where for each minute of the time, by day and by night, from day to day, there was a continued violation of the rights of appellee, by the commission of an act which rendered the enjoyment, and practically the habitation, of her home impossible? Under the facts of this record, not even the limit of the amount claimed in the declaration would have induced us to interfere with the amount of the verdict. There was no error of law.\\nAffirmed.\"}"

miss/1794680.json

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+"{\"id\": \"1794680\", \"name\": \"H. H. Brooks et al. v. H. E. Spann\", \"name_abbreviation\": \"Brooks v. Spann\", \"decision_date\": \"1885-10\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"204\", \"citations\": \"63 Miss. 198\", \"volume\": \"63\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:02:56.945608+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. H. Brooks et al. v. H. E. Spann.\", \"head_matter\": \"H. H. Brooks et al. v. H. E. Spann.\\n1. Bill in Chancery. Amendment of. Anticipation of defense.\\nS., a legatee in her deceased father\\u2019s will, exhibited a bill against the residuary legatees and devisees therein to fix a charge for the payment of her legacy on the property received by the defendants from the testator\\u2019s estate. The defendants pleaded res adjudicata. S., on leave obtained, amended her bill so that it now set out not only her right to the legacy, but also that the suit in which the decree so pleaded was rendered was instituted and prosecuted without her consent, knowledge, or procurement. The executors of the will were parties to the decree assailed, but not to the present suit. It was shown that the estate had been fully administered, and all of it received by the defendants. The defendants demurred to the bill on the ground that the amendment set up a different case from that presented in the bill, and sought different relief. Held, that the amendment simply anticipated the defense and met it, and therefore the ground of demurrer was untenable.\\n2. Limitation op Actions. Right to legacy. Mamed woman. Petition to cmnul decree.\\nUnder the Code of 1880 the right of a married woman or any other person to have annulled a decree in a suit apparently brought by her to recover a legacy is by analogy to a right of appeal or a bill of review, and to the right to surcharge and falsify the accounts of executors, administrators, and guardians, under $$ 2680, 2681, and 2075, limited to two years, and cannot be extended by the fact that a hill seeking such annulment also seeks to recover the legacy, the right to which, but for the decree against her, might he asserted at any time within six years.\\n8. Decree. Rill to annul. Excuse for delay in filing.\\nWhere a bill to annul a decree is exhibited more than two years after the rendition of the same, it must set out a valid excuse for the delay in instituting the suit, as that the complainant had no knowledge of the existence of the decree, or of such facts as would reasonably have put him on inquiry, and led him to discover that such decree had been rendered within two years preceding the exhibition of his bill.\\nAppeal from the Chancery Court of Lowndes County.\\nHon. F. A. Critz, Chancellor.\\nThe case is stated in the opinion of the court.\\nOrr & Sims, for the appellants.\\n1. The amendment changed the whole character of the suit and the litigation. The first bill was a proceeding in rem\\u2014to establish ap pellee\\u2019s right to one-fourth of theland of her father\\u2019s estate, andforsix thousand dollars legacy and twenty-six years\\u2019 interest. The bill is to vacate a decree; to overhaul a final settlement made by executors nineteen years ago, each of whom are in their graves; to conglomerate all the issues in this suit with all the issues in the other; to force H. H. Brooks, Mary Helm, and S. Alice Brooks to join in issues with George N. Hairston, as administrator of the estate of George Hairston, deceased. This is carrying the doctrine of amendment to an absurd extent. Emerson v. Wilson, 34 Am. Dec. 697; 27 Am. Dec. 88; 16 Am. Dec. 407; 2 Am. Dec. 415, and note 417.\\n2. The peculiar facts in this case, as presented by the bill and exhibits under the demurrer, furnish abundant reason why 'this court should adhere to the law as settled for many years in this State.\\nAll of the evils adverted to by Judge Woodruff in Hamilton v. Wright, 37 N. Y., will be incurred by the appellants if this court abandons the sound rule of holding parties bound by the judicial records of the county, and the conduct of judges and attorneys in making up these records.\\n3. The statute of limitations would afford protection to the three children of Thomas B. Brooks if a properly framed bill was filed, and so it would be for the representatives of the executors under the decree of the court auditing their final settlement in 1868.\\nWm. Baldwin, for the appellee.\\n1. In this State amendments to pleadings in chancery have been refused where the party abandoned his right to the subject-matter of the controversy as asserted in his original bill and came in by amendment to assert a different right, springing from different relations to the subject-matter. In such cases the amendment presented an absolutely new case, dependent upon entirely new rights, and of course could not be held to be a legal development of the former proceeding.\\nNot so in this case. By the original bill a certain relief is asked, based upon certain rights asserted. But an outwork is presented by plea, which must be taken before the substance can be reached, to wit: the former'adjudication in case No. 206. Now, the amended bill seeking and asking the same relief, based on the same rights, asks the court to examine and determine the validity of this barrier, and after removing that to grant the relief sought by the original proceeding.\\nThere is no change of purpose, nor of parties, nor of right, nor of relationship to the subject.\\n2. Duncan v. Gerdein,- 59 Miss. 555, is conclusive as to the right of appellee to attack the decree.\\n3. The land of the deceased was charged with the trust of paying this legacy. Knott v. Bailey, 54 Miss. 235; Heatherington v. Lewenberg, 61 Miss. 372. And such trusts are governed by \\u00a7 2696 of Code of 1880. Templeton v. Hopkins, 45 Miss. 424.\", \"word_count\": \"2550\", \"char_count\": \"14361\", \"text\": \"Cooper, C. J.,\\ndelivered the opinion of the court.\\nAppellee exhibited her bill in the Chancery Court of Lowndes County against the residuary legatees and devisees of T. C. Brooks, to fix upon the property received by them a charge for the payment of a legacy given her by the testator, her father. To this bill the defendants interposed a plea, or res judicata, averring that in the year 1868 the complainant, by W. C. Brooks, her next friend, had exhibited her bill in chancery against the executors and the defendants to enforce the payment of the legacy now sued for; that the executors had filed an answer and cross-bill setting up, among other defenses, an ademption of part of the legacy and payment of a part; that on final hearing it was decreed that complainant was not entitled to recover, and her bill was dismissed at her costs. Upon the filing of this plea the complainant asked and obtained leave to amend her bill, which was done, and the bill as amended, after showing the right of complainant to the legacy, charged that the defendants pretended that there had been former proceedings touching the same subject-matter. She set out by apt words the proceedings referred to in the former plea, and made the record in that cause a part of her bill, and averred that the said suit was instituted and prosecuted without her consent, knowledge, or procurement; that neither the party who appeared therein as her next friend nor- the attorneys by whom the bill was filed had ever been authorized or employed to institute such suit, and that she neither knew nor consented to their action. To this amended bill the defendants interposed a demurrer, which was overruled by the court, and from that action this appeal is prosecuted.\\nThe demurrer contains many grounds of objection, only a f\\u00e9w of which we deem it necessary to examine.\\nOne ground of demurrer is that by the amendment the complainant made a different case from that set out in her bill, making it, in fact, a new bill founded on-a totally different set of facts and seeking wholly different relief; another is that on the face of the bill no equity appears, and another is that the complainant is barred by the statute of limitations.\\nThe first objection is untenable. The complainant might have exhibited a bill for the single purpose of annulling the former decree, and, succeeding in that, have proceeded by a separate suit to recover the legacy, but there is no reason why she may not in this suit brought for the legacy anticipate the defense of her adversaries and attack and overthrow the decree by which it is sought to be sustained. It is true the executors were parties to the decree assailed, and are not parties to this suit. But the bill shows that the estate has been fully administered by the executors, who are now dead, and that the defendants have received from them the whole estate that was not lost by the emancipation of the slaves by the result of the civil war. The executors were parties as representatives of the estate, and in that character only. The defendants are now in their own persons such representatives, since they hold and claim the whole estate, and their right to it is. uncontroverted save by the complainant.\\nIn considering the other objections made by the demurrer, it is important to note that the bill is separable into two parts, for though its ultimate purpose is the single one of compelling payment of the legacy claimed, it is yet a bill to vacate and annul a decree and a bill to collect a debt. The right to the legacy considered without regard to the former proceeding and decree is a right in action in Mrs..Spann against which she, being covert, no statute of limitations began to run until the adoption of the Code of 1880 (November 1, 1880), by which the disabilities of married women were removed, and as a consequence they became as other persons are, subject to the bar of the statute of limitations. In this aspect of the case complainant would not be barred, since against the right propounded by her the statute of six years would be the shortest one which could be applied, and that time has not elapsed since the code went into operation.\\nBut in the assertion of her claim complainant finds herself confronted by a decree made by a court of competent jurisdiction in a suit professedly prosecuted by her, by which the identical relief now sought was denied. This decree, however erroneous it may be, presents, if valid, an insurmountable obstacle to the present suit; it must be attacked and nullified, or all controversy over its subject-matter is by it forever concluded.\\nWhile the complainant may, in this one action, seek both to annul the decree and to collect the legacy, she cannot, by combining the two, extend the time allowed her for a direct attack on the decree to that in which it is permitted her to sue for the legacy. If there is, therefore, any express statute of limitations, or any which a court of equity will adopt by analogy, which will bar her right to attack the decree, she may not, in attacking the decree, invoke that which would apply to the claim for the legacy if the decree did not exist.\\nThere is no statute of limitations applicable by its terms to the right to annul the decree, but in the absence of such statute the court will adopt that one which is applicable to analagous rights. By \\u00a7 2680 and 2681 of the Code of 1880, the time in which bills of review and appeals may be prosecuted is limited to two years, and by \\u00a7 2075 a like limitation is imposed upon the right to surcharge and falsify the accounts of executors, administrators, and guardians. It thus appears that for errors of law or fact, in the classes of cases named in these statutes, a uniform limitation of two years has been declared, and within such time, we think, persons having notice of decrees affecting their rights, which for fraud or other sufficient reasons should be vacated by the courts, ought to take action, fail ing in which, relief should be denied. Plymouth v. Russell Mills, 7 Allen 438; Evans v. Bacon, 99 Mass. 213; Gordon's Admr. v. Ross, 63 Ala. 363.\\nThe bill in this case does not state when or under what circumstances the complainant first learned of the existence of the decree attacked. It impliedly admits long knowledge of the facts by putting forth as an excuse for the delay in instituting her suit the fact that she had been continuously covert, and assumes that coverture not only prevented all statutes of limitations from running against her, but debarred her of access to the courts. This is a misapprehension of the effect of coverture. The disability of a married woman to sue has been in later days a fiction, derived from the common law rule of her absorption by the husband, on which there has been afforded to her by legislation certain privileges and immunities which are commonly designated by the courts as shields for her defense, but which in actual combat have often been found to be singularly effective as weapons of assault. But certainly since the adoption of the Code, of 1880, which contains the limitation which we apply in this case, the complainant has been as capable of asserting her rights as an j femme sole, and it was incumbent on her to show by her bill some excuse for not having commenced her suit within the two years. In Badger v. Badger, 2 Wallace 94, the court in stating the rule on this subject said: \\\" The party who makes such an appeal should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and how and when he came to a knowledge of the matters alleged in his bill, otherwise the Chancellor may justly refuse to consider his case on his own showing without inquiry whether there is a demurrer or formal plea of the statute of limitations contained in the answer.\\\" Because more than two years had elapsed after the adoption of the Code of 1880 before' complainant exhibited her bill, and because there is no averment in the bill that the complainant had no knowledge of the rendition of the decree which she now attacks, and no knowledge of such facts as would reasonably have put her on inquiry, which would have discovered the fact that the decree had been rendered, until within two years of the exhibition of her bill, the demurrer should have been sustained.\\nThe complainant, upon the filing of her bill, commenced to prepare her case for trial by taking testimony, as she had the right to do, Code of 1880, \\u00a7 1941; this evidence is certified to us in the record, and though on demurrer it is not to be considered, we have looked at it with a view of determining whether on the facts disclosed by the evidence the bill might be amended. In our opinion the evidence is so strongly suggestive of knowledge, if not assent to what was done, that an amendment could not be made and supported which would warrant relief.\\nThe decree overruling the demurrer is reversed. The demurrer is sustained and bill dismissed.\"}"

miss/1833974.json

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+"{\"id\": \"1833974\", \"name\": \"Perkinson v. Laurel Hot Mix, Inc., et al.\", \"name_abbreviation\": \"Perkinson v. Laurel Hot Mix, Inc.\", \"decision_date\": \"1965-04-26\", \"docket_number\": \"No. 43500\", \"first_page\": \"879\", \"last_page\": \"882\", \"citations\": \"252 Miss. 879\", \"volume\": \"252\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:52:47.924126+00:00\", \"provenance\": \"CAP\", \"judges\": \"Lee, G. J., and- Ethridge, Bracly and Inzer, JJ., concur.\", \"parties\": \"Perkinson v. Laurel Hot Mix, Inc., et al.\", \"head_matter\": \"Perkinson v. Laurel Hot Mix, Inc., et al.\\nNo. 43500\\nApril 26, 1965\\n174 So. 2d 391\\nWalker, Dillard & Baldwin, Laurel, for appellant.\\nMelvin, Melvin & Melvin, Laurel, for appellees.\", \"word_count\": \"425\", \"char_count\": \"2507\", \"text\": \"Gillespie, J.\\nAppellants' claim for workmen's compensation benefits was denied in turn by the attorney-referee, the Commission, and the circuit court.\\nThe evidence was to some extent conflicting, but there was substantial evidence to justify the Commission in finding the facts as next stated. Appellant-claimant was told by an official of Laurel Hot Mix, Inc., employer, to go to the employer's plant in Laurel to report for work. Claimant rode to the employer's plant with Mike Holmes, who was also being hired by employer. They used a pickup truck belonging to Holmes' father. When they arrived at the plant, they were told where the work was to start in Covington County. Holmes and claim ant then drove to the job site in Covington County and worked that day, after which they drove in the Holmes truck to Ellisville where both men lived. The second day Holmes and claimant used the same transportation to drive to the job site and they worked until late in the afternoon. Holmes was driving the same truck, with claimant as a passenger, traveling from the job site to their homes in Ellisville when a tie rod came loose and he lost control of the truck, resulting in a wreck and injuries to claimant. Employer did not order claimant to ride with Holmes, nor was Holmes paid any mileage to and from the job site. It was the responsibility of Holmes and claimant to choose their own means of transportation to and from work on their own time.\\nWe find no merit in the contention of claimant that the order denying compensation is without substantial evidential basis, or that it is against the overwhelming weight of the evidence. This Court adhers to the general rule that the hazards encountered by employees while going to or returning from their regular place of work and off the employer's premises are not incident to employment and accidents arising therefrom are not compensable. Dunn, Mississippi Workmen's Compensation \\u00a7 103 (1957), and cases therein cited. Claimant did not bring his case within any recognized exception to the stated rule.\\nThe evidence offered by claimant and rejected by the attorney-referee was so remote in point of time that it would not have been of value in deciding the issue. It could not have had any probative value.\\nAffirmed.\\nLee, G. J., and- Ethridge, Bracly and Inzer, JJ., concur.\"}"

miss/1839568.json

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+"{\"id\": \"1839568\", \"name\": \"Conner v. Polk\", \"name_abbreviation\": \"Conner v. Polk\", \"decision_date\": \"1931-03-30\", \"docket_number\": \"No. 28267\", \"first_page\": \"24\", \"last_page\": \"31\", \"citations\": \"161 Miss. 24\", \"volume\": \"161\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:21:46.081990+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Conner v. Polk.\", \"head_matter\": \"Conner v. Polk.\\n(Division A.\\nMarch 30, 1931.\\nSuggestion of Error Overruled May 4, 1931.)\\n[133 So. 604.\\nNo. 28267.]\\nHall & Hall, of Columbia, for appellant.\\nPowell, Harper & Jiggitts, of Jackson, for appellant.\\nRawls & Hathorn, of Columbia, for appellee.\\nArgued orally by Lee Hall, for appellant, and by C. V. Hathorn, for appellee.\", \"word_count\": \"1011\", \"char_count\": \"5869\", \"text\": \"Smith, C. J.,\\ndelivered the opinion of the court.\\nSeveral years ago the appellant was appointed guardian of the estate of the appellee's minor son; she then waiving her right to the appointment, but retaining the custody of her son. The boy is not yet fourteen years old. The appellee filed a petition requesting the removal of appellant as guardian of her son, and the appointment of herself in his stead. The petition charged mismanagement by the appellant of the ward's estate, and evidence in support thereof was introduced. The court declined to pass upon this evidence, but held that the evidence discloses that the reason which caused the appellee to waive her right to the guardianship of her son had disappeared, and that she should now be appointed as his guardian. The decree removes the appellant as guardian of the minor; appoints the appellee as such; directs the appellant to file.a final account of his guardianship; to turn over the minor's estate to the appellee when she qualifies as guardian thereof; and provides that her receipt therefor shall \\\"constitute a full acquittance and release to the said guardian and the surety on his guardian 's bond for all items of cash delivered to said guardian, but as to all amounts due said minor's estate as evidenced by notes, deeds of trust or securities, other than cash on hand, the guardian, C. E. Conner and the surety on his bond, shall not be released and acquitted therefor until such time as the same shall have been paid, or shall have been put into such secured form as may hereafterwards be approved by the court or until the court shall relieve said guardian and surety. ' '\\nSection 1872, Code 1930, provides that \\\"the court by which a guardian was appointed, may, for sufficient cause, remove him after having him cited to appear;\\\" and section 1873 thereof provides that, \\\"whenever a guardian . is removed, the court may appoint another.\\\" The statute does not designate the causes for the removal of a guardian, but leaves that to the sound discretion of the chancellor, which discretion should not be interfered with by this court, unless it has been manifestly abused.\\nThe union of the guardianship of the person and of the estate of the minor is always desirable, particularly so when the person in whom the two guardianships united is the minor's parent. The statute prefers blood relatives of the minor to strangers; and a stranger may be removed as guardian in order that a blood relative of the minor may be appointed. Spaun v. Collins, 10 Smedes & M. 624. In that case, the blood relative, an uncle, had not waived Ms right. to the appointment, but such a waiver does not forever bar the blood relative from being thereafter appointed when, in the opinion of the chancellor, his appointment is desirable. Here the mother is shown to be a person suitable for the trust, and the advantages flowing from the union of the guardianship of the estate with that of the person are generally such that it cannot be said that the removal of the appellant and the appointment of the appellee was an abuse of discretion.\\nCounsel for the appellee rely on 28 C. J. 1082, section 53, where it is said that: \\\"Where a person having a prior right to be appointed guardian procures- or consents to the appointment of another, he waives his right and cannot claim letters for himself to the exclusion of the person so appointed.\\\" This text is based upon the holdings in three cases. In re Morhoff's Estate, 179 Cal. 595, 178 Pac. 294; Lefever v. Lefever, 6 Md. 472; Kahn v. Israelson, 62 Tex. 221. In the first two of these cases, the courts simply held the trial court had abused its discretion in refusing to remove the guardian and appoint another who, under the statute, had a prior right to the appointment. In the third case, this court held that the statute expressly provided the grounds for the removal of a guardian, and thereby excluded any other. We are not here holding that the appellee has an absolute right to the removal of the appellant and the appointment of herself, but simply that the matter rests in the sound discretion of the chancellor.' But it is said by counsel for the appellant that the petition alleges that he is unfit for the discharge of the trust, prays for his removal on that ground, and, consequently, the court below should not have removed him, unless the allegations of his unfitness were sustained. The petition alleges that the appellee is the minor's mother, prays for the removal of the appellant as his guardian, and for the appointment of the appellee in his stead. This is sufficient to support a decree without the allegations of the appellant's unfitness, which may he treated as surplusage.\\nComplaint is made of that portion of the decree hereinbefore quoted which provides that the appellant and his sureties shall not be released from liability on account of appellant's guardianship until the loans of his ward's money made by him \\\"shall have been paid, or shall have been put in such secure form as may be hereafterwards approved by the court, or until the court shall relieve said guardian and surety.\\\" This provision of the decree adds nothing to the appellant's and his surety's liability, which liability will cease when his final account is filed and approved. Should any loss accrue to the ward's estate after the appellant has turned it over to the appellee, caused not by any dereliction of duty on his part but on the part of the appellee, she, and not the appellant, will be responsible therefor.\\nAffirmed.\"}"

miss/1844832.json

@@ -0,0 +1 @@
+"{\"id\": \"1844832\", \"name\": \"Everett v. Commercial Securities Co., Inc.\", \"name_abbreviation\": \"Everett v. Commercial Securities Co.\", \"decision_date\": \"1952-05-12\", \"docket_number\": \"No. 38417\", \"first_page\": \"287\", \"last_page\": \"292\", \"citations\": \"214 Miss. 287\", \"volume\": \"214\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:10:17.326854+00:00\", \"provenance\": \"CAP\", \"judges\": \"Roberds, P. J. and Alexander, Lee, and Arrington, JJ., concur.\", \"parties\": \"Everett v. Commercial Securities Co., Inc.\", \"head_matter\": \"Everett v. Commercial Securities Co., Inc.\\nMay 12, 1952.\\nNo. 38417\\n(58 So. (2d) 792)\\nWilliam S. Murphy, for appellant.\\n\\u00abT. H. Daniel and O. F. & J. O. Moss, for appellee.\", \"word_count\": \"1204\", \"char_count\": \"6906\", \"text\": \"Holmes, J.\\nThe appellee sued the appellant and one M. L. Malone in an action of replevin to recover the possession of a 1947 model, Chevrolet automobile. The appellee in its declaration based its right of recovery upon an alleged default under a conditional sale contract covering the car. No appearance to the action was entered by the defendant Malone. The appellant filed a plea of not guilty. Pursuant to the writ duly issued, the car was seized and valued by the officer in his return at $1,000. Upon failure of either of the defendants to enter into a forthcoming bond for the car within the time allowed, the appellee gave the required.bond and the car was delivered to its possession to abide the judgment of the court. Upon the trial of the cause, the court gave a peremptory instruction for the plaintiff and proper judgment' was entered, from which appellant prosecutes this appeal.\\nWe find no dispute in the material facts. On October 3, 1950, appellant purchased the car in question from Farmers Used Cars and was allowed a credit of $404.38 on the purchase price for a Ford, car traded in in the transaction. The balance of the purchase price including interest, insurance, and finance charges was $1,121.61. To cover this balance the appellant executed to the Farmers Used Cars a promissory note and a conditional sale contract providing for the payment of the indebtedness in installments of $53.41 per month beginning on November 3, 1950. The contract retained in the seller title to the ear until the indebtedness should be paid and authorized the seller or its assignee to take possession of the car in the event of any default in the payment of the indebtedness or any installment thereof. Both the note and the contract were duly assigned to the appellee on the date of their execution. On October 7, 1950, the car was damaged in a wreck and was towed into the garage of M. L. Malone. The insurance on the car was carried by Audubon Insurance Company, for which company Sullivan and Company of Jackson served as adjustors. Notice of the wreck and the whereabouts of the car was given by Malone to- Farmers Used Cars by telephone and later by letter, and this information was communicated to the appellee. Payment of the November 3, 1950 installment of $53.41 was not made or tendered on its due date. On November 13, 1950, appellant sent a money order for $35 to Sullivan and Company which was intended to be applied on the November 3, 1950 installment. Sullivan and Company was not the agent of appellee and had no authority to receive payments for the appellee, but nevertheless delivered the $35 money order to appellee's representative. Appellant claims to have sent another money order for $18 to Sullivan and Company on November 20, I9601 to be applied on the November 3, 1950 installment. This money order was not shown to have been received by either Sullivan and Company or the appellee. On November 20,1950, the appellee contacted the appellant and returned to her the $35 money order and demanded that the contract be brought up to date or the possession of the car surren dered. Appellant offered to' return the $35 money order to appellee and advised appellee that she had sent to Sullivan and Company another money order for $18, the two aggregating $53, and offered to' pay in cash the additional sum of 41$ to make up the November 3, 1950 installment of $53.41. Appellee, as stated, had never received the money order for $18 and declined appellant's offer and demanded the possession of the car. No other payment or tender was made by appellant. There was no proof of the value of the car other than the prima facie evidence thereof appearing from the officer's return.\\nThe appellant complains that the trial court erred in granting a peremptory instruction for the appellee because the evidence created an issue of fact for the determination of the jury both as to the question of the value of the car and the question as to whether or not appellant had made a tender of the November 3, 1950* installment. In view of the fact that the appellee and not the appellant gave bond for the car and was awarded the possession of it, we do not find that the value of the car became material, but even if material, there was no proof of value other than the officer's valuation in his return and this was prima facie evidence of the car's value. Section 2848, Mississippi Code of 1942. We think there was no issue of fact created by the evidence on the question of the claimed tender of the November 3, 1950 installment. The undisputed proof is that all the appellant did was to offer the return to appellee of the $35 money order and claim credit for the $18 money order which was sent to appellee and which appellee never directly or indirectly received, and to offer to pay the additional sum of 41$. This, in our opinion, did not constitute a valid tender. Appellant was therefore in default in the payment of the November 3, 1950 installment and appellee's right to the possession of the car accrued under the provisions of the conditional sale contract. Hence we think that the trial court committed no error in granting the peremptory instruction.\\nAppellee offered in evidence a written release signed by the appellant and which, by its terms, surrendered all of appellant's right, title and interest in and to the car. The introduction of this instrument was objected to by appellant upon the ground that appellee in its declaration relied not upon this instrument but upon the conditional sale contract, thus electing to recover the possession of the car and deal with it as required by the terms of the conditional sale contract. The objection was overruled. It is not necessary, however, for us to pass upon and we do not pass upon, the question of the admissibility of this instrument, nor the effect of the instrument under the circumstances, in view of our conclusion that appellant was in default in the payment of the November 3, 1950 installment, thus entitling the appellee to the possession of the car.\\nNo question is here involved as to whether or not appellant is entitled to have appellee deal with the car, after repossessing it, as security under the terms of the contract and with reference to the equitable lights of the purchaser, nor is there here involved the question of the rights, if any, of appellant under Section 892 of the Mississippi Code of 1942, and hence we do not pass upon either of these questions.\\nWe have carefully considered the other assignments and find no reversible error therein.\\nWe are accordingly of the opinion that the judgment of the court below should be and it is affirmed.\\nAffirmed.\\nRoberds, P. J. and Alexander, Lee, and Arrington, JJ., concur.\"}"

miss/1850136.json

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+"{\"id\": \"1850136\", \"name\": \"Ford, et al. v. City of Pascagoula\", \"name_abbreviation\": \"Ford v. City of Pascagoula\", \"decision_date\": \"1956-05-28\", \"docket_number\": \"No. 40026\", \"first_page\": \"265\", \"last_page\": \"271\", \"citations\": \"228 Miss. 265\", \"volume\": \"228\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:41:20.224429+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hall, Lee, Ethridge and Gillespie, JJ., concur.\", \"parties\": \"Ford, et al. v. City of Pascagoula\", \"head_matter\": \"Ford, et al. v. City of Pascagoula\\nNo. 40026\\nMay 28, 1956\\n87 So. 2d 560\\nMay 28, 1956\\n87 So. 2d 558\\nE. J. Ford, Jr., Gulfport, for appellants.\\nKarl Wiesenburg, Pascagoula, for appellee.\", \"word_count\": \"1583\", \"char_count\": \"8914\", \"text\": \"McGehee, C. J.\\nThis is a proceeding in eminent domain, wherein that court, after being duly organized pursuant to Sections 2750, 2751, 2752 and 2753, Code of 1942, awarded to the appellants, Ebb James Ford, Jr., Mrs. Louise Pol Blanchard, and Mr. and Mrs. W. E. Frederic the sum of $11, 789.50 as compensation for the value of a vacant corner lot 77 feet by 100 feet in dimensions, located across the street from the new million dollar county courthouse in the City of Pascagoula, and on which lot a new city hall was to be constructed. These property owners appealed the case to the Circuit Court of Jackson County, where the case was tried de novo before another jury and with the result that a judgment was there rendered in favor of the said property owners for the sum of $12,541.67.\\nPending the appeal from the eminent domain court to the circuit court there were certain negotiations of compromise conducted between the appellant W. E. Frederic and the City of Pascagoula officials, and wherein the said Frederic agreed to accept the sum of $12,000.00 in settlement. The city board undertook to accept this offer and a warrant was prepared and issued accordingly, but of course the same was not to be cashed until all of the co-owners of the property had executed the proper deed of conveyance.\\nUpon the hearing of a motion in the circuit Court as filed by the appellee, City of Pascagoula, to dismiss the appeal from the eminent domain court on the basis of the said negotiations and purported settlement, the said W. E. Frederic testified that the legal title of the property was in the appellant Ebb James Ford, Jr., and that the witness was only agreeing to accept $12,000 for his interest in the lot. There were some objections made on behalf of the appellants to certain questions asked the said Frederic on the hearing of the motion to dismiss, but the objections were not interposed on the specific ground that the negotiations between the witness and the City Board were negotiations for a compromise of the litigation, but were made on wholly different grounds. At any rate, the court heard this mo tion in the absence of the jnry in the circuit court, and overruled the same. Therefore the appellants could not have been prejudiced by the fact that the $12,000 offer of compromise was injected into the hearing before the trial judge on the motion to dismiss the \\u00bfppeal from the eminent domain court to the circuit court.\\nUpon the trial before the jury in the circuit court, the same negotiations between the said Frederic and the City Board, evidenced by a writing embodying the purported settlement agreement, were introduced before the jury, and the jury was thereby advised of the fact that at least one of the co-owners of the property had consented to a settlement of $12,000, and there was sufficient basis for the jury to infer that he was undertaking to negotiate for the settlement on behalf of himself and the other co-owners, even though no proof was made that he had authority to represent anyone other than himself in such negotiations. He testified again before the jury that $12,000 was what he was willing to accept for his own interest in the property.\\nHowever, the record of the trial on the merits in the circuit court is wholly barren of any objection, either in the presence or absence of the jury, on the part of the appellants to the injection of this negotiation for compromise, although the assignments of error before this Court are, first, that the circuit court erred in admitting testimony on behalf of the plaintiff, City of Pascagoula, to show settlement negotiations while the case was pending in the circuit court; second, that the circuit court erred in allowing the plaintiff to introduce documents showing the settlement negotiations conducted between the plaintiff's attorney with the defendant W. E. Frederic in the absence of the said Frederic's attorney; and there are also assignments of error relating to the overruling of objections by the defendants to other testimony, and in sustaining objections of the plaintiff to testimony offered by the defendants, and it is assigned as error that the verdict of the jury in the circuit court was against the weight of the evidence 'to snch an extent as to show bias, passion and prejudice on the part of the jury in favor of the plaintiff and against the defendants, and that therefore the court erred in overruling the motion of the defendants for a new trial. The foregoing are the sole assignments of error before this Court.\\nThe first two grounds of .error assigned are not, in our opinion, well taken for the reasons hereinbefore stated, and we do not think that any reversible error was committed in the admission or exclusion of evidence. Nor do we think that the verdict of the jury is against the weight of the evidence as to the value of the property to such an extent as to show bias, passion and prejudice on the part of the jury. Moreover, since two juries have passed upon the testimony as to what is the fair market value of the property in question, we are unable to say with an abiding confidence that the trial judge committed reversible error in overruling the motion for a new trial.\\nThe judgment rendered upon the verdict of the jury in the circuit court in the sum of $12,541.67 must, therefore, he affirmed.\\nAffirmed.\\nHall, Lee, Ethridge and Gillespie, JJ., concur.\\nON MOTION OF APPELLEE TO STRIKE APPELLANTS' BRIEF.\\nIn this case the brief on behalf of the appellants was not filed until May 14, 1956, the date on which the case was set for submission. Under Rule 7 of this Court the brief was required to have been filed not later than thirty days before the date the case was set for hearing, and this rule requires that the appellee's brief was to have been filed not less than ten days before the date the case was- set for hearing. \\u2022\\nWe understand that the delay of the appellants in filing their brief was due to the illness of their attorney. But be this as it may, the appellee would have been entitled to file its brief at any time within twenty days from the filing of the brief on behalf of the appellants. The appellee has not filed a brief in the case, pending its motion to strike appellants' brief for noncompliance with the rules of this Court. We have concluded, however, on the basis of the appellants' assignment of errors and its brief in support thereof, together with a careful examination of the record in the case, that the filing of a brief by the appellee is unnecessary to the proper disposition of this appeal.\\nMoreover, Rule 33 of this Court provides that our rules ' ' shall be considered as general rules for the government of the court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice. ' '\\nIt has not been the policy of this Court to strike a brief on account of the fact that it is filed late where we are satisfied that the delay was due to causes beyond the control of the attorney filing the same. But we allow the opposing counsel sufficient time thereafter to file a reply brief.\\nThis case was passed for hearing on its merits from a former setting to the docket of May 14, 1956, and without the consent of the appellee. However, it is not a condition precedent to the passing of a case from one setting to another that all the parties should consent thereto \\u2014 in fact, we sometimes decline to pass a case even though all the parties have consented and requested that the same be done. Guynn v. Shulters, 223 Miss. 232, 74 So. 2d 803. In that case, there was involved a request that it and five other cases between the same parties be passed by consent of counsel. To have granted the request would have resulted in the con tinuance of about one balf of the entire docket set on the day that these cases were to have been heard. Whether a case is passed or not must of necessity be determined by this Court in its purpose to expedite the business of the court by having enough cases submitted on each Monday for consideration during the following two weeks.\\nThe motion of the appellee to strike the brief filed on behalf of the appellants is overruled, and the case is being this day affirmed on its merits, without awaiting the filing of a brief by the appellee, since we have concluded that on the basis of the assignment of errors and brief on behalf of the appellants in support thereof, and on the basis of what is disclosed by the record, the case should be affirmed.\\nMotion overruled.\\nHall, Lee, Ethridge, and Gillespie, J.J., concur.\"}"

miss/1866768.json

@@ -0,0 +1 @@
+"{\"id\": \"1866768\", \"name\": \"Benton v. Friar\", \"name_abbreviation\": \"Benton v. Friar\", \"decision_date\": \"1934-11-05\", \"docket_number\": \"No. 31369\", \"first_page\": \"361\", \"last_page\": \"370\", \"citations\": \"171 Miss. 361\", \"volume\": \"171\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:23:22.001667+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Benton v. Friar.\", \"head_matter\": \"Benton v. Friar.\\n(Division B.\\nNov. 5, 1934.\\nSuggestion of Error Overruled Dec. 17, 1934.)\\n[157 So. 356.\\nNo. 31369.]\\nH. B. Everitt, of Pascagoula, and Chas. E. Clark, of Ocean Springs, for appellant.\\nFord, White & Morse, and W. T. Moore, all of Gulfport, for appellee.\\nArgued orally by H. B. Everitt and Charles E. Clark, for appellant, and by W. T. Moore, for appellee.\", \"word_count\": \"1648\", \"char_count\": \"9405\", \"text\": \"Ethridge, P. J.,\\ndelivered the opinion of the court.\\nAppellee, Mrs. Rita Brown Honor Friar, filed suit in the chancery court of Jackson county, Mississippi, against Mrs. Nell Benton, executrix of the estate of Mrs. Margaret Sodon Honor, deceased (who was the surviving widow of one, John B. Honor), and others, alleging that Mrs. Friar was a minor and appeared by her husband as next friend, and that Mrs. Nell Benton individually, and as executrix of the estate of Margaret Sodon Honor (Mrs. John B. Honor), whose last will and testament was probated in Jackson county, Mississippi, and others whose names and residences are set forth, were the defendants; and also alleging that the complainant was the adopted daughter of said John B. Honor, deceased, and his wife, having been adopted under the laws of Louisiana, by which she was given all the rights and privileges of a legitimate child. That John B. Honor departed this life on August 21, 1929', and thereafter in the matter of the succession of John B. Honor, deceased, in the civil district court of the parish of Orleans, state of Louisiana, a judgment was entered wherein Rita Brown Honor, being the same person as Mrs. Rita Brown Honor Friar, was recognized as the sole heir of her deceased father through adoption, and entitled as such to the ownership of one undivided half of all the property left by said John B. Honor, subject to the usufruct in favor of her mother by adoption, Mrs. Margaret Sodon Honor, widow of John B. Honor, who had an undivided one-half interest in all the property left by John B. Honor, deceased, and that the widow, Mrs. Margaret Sodon Honor, had the nsnfrnct of the other undivided one-half; and that thereafter, on August 14, 1930, Mrs. Margaret Sodon Honor died in Ocean Springs, Mississippi, in possession of all the property of said Bita Brown Honor Friar inherited from the estate of her father by adoption, and of a large real and personal estate in said county, leaving a last will and testament which was duly admitted to probate in the chancery court of Jackson county, Mississippi.\\nThe purpose of the bill and the prayer thereof was to have a construction of the will of Mrs. John B. Honor, and for the share of appellee in the property of John B. Honor, deceased, of which Mrs. John B. Honor had a life usufruct, which said will reads as follows:\\n\\\"I bequeath to my adopted daughter, Bita Brown Honor, one-half of my entire estate to be held in trust as. hereinafter set out. For all her goodness, faithfulness and kindness to me I bequeath to my niece, Nellie Benton, the sum of ten thousand dollars. I bequeath to my sister-in-law, Maria Honor, the sum of five thousand dollars. I bequeath to my sister, Bridget Sodon, the sum of five thousand dollars. I direct that the foregoing legacies shall have priority and be given in full. In the event that there be a deficiency of assets for the full .payment of the legacies hereinafter given, I direct that such hereinafter legacies shall abate proportionately in favor of those given above. I bequeath Bose Schully the sum of two thousand dollars. I bequeath Mrs. A. Y. Bosambeau two thousand dollars. I bequeath Stelle Bebentisde the sum of two thousand dollars. I bequeath Natalie Benedict the sum of two thousand dollars. I bequeath Rita Seiler the sum of two thousand dollars. I bequeath Alan Schully the sum of one thousand dollars. I bequeath Laura Sodon the sum of five hundred dollars. I bequeath my household furniture and effects to Nell Benton, desiring that in the event that should I predecease my sister Bridget Soden that she shall have a portion of said furniture as Nell Benton shall decide. I devise and bequeath the residue of my estate to Nell Benton. I name Nell Benton to be the executrix of this my last will and testament without bond. I name and designate Nell Benton to be my guardian of my daughter, Rita Brown Honor, during her minority and to be trustee of her estate until she shall reach the age- of twenty-five years. Said Nell Benton to hold the estate of the said Rita Brown Honor in trust, paying to my -said daughter such portions of the income and principal of said estate as my trustee shall deem proper until the said Rita Brown Honor shall have reached the age of twenty-five when her entire estate shall' be turned oyer to her without reserve. I authorize and direct my said executrix to sell any and all real estate belonging to my said estate, under such terms and conditions as to her may seem proper, and to execute and deliver all deeds or other writings necessary to convey title thereto. \\\"Written, signed and dated wholly in my own handwriting at Ocean Springs, Mississippi, this 17th day of November, 1929, on two sheets of paper, of which upon each I have written my name.\\n\\\"Mrs. John B. Honor.\\\"\\nThe chancery court construed the will, but reserved decision on the part of the bill relating to the estate of John B. Honor, deceased, the effect of the decree being that, under the will of Mrs. John B. Honor, the appellee, Rita Brown Honor Friar, had one-half of the estate left by. Mrs. John B. Honor under her will, and that the expenses of the administration, funeral expenses, etc., and other claims should be paid out of the residuum estate, if sufficient, which the chancellor held was sufficient to pay all legacies, costs of administration, etc., and that these costs should be paid out of the residuum estate rather than out of the half devised to the appellee, and the legacies left to Nell Benton, Maria Honor, and Bridget Sodon, and that if the estate was not sufficient to pay the legacies to the other named legatees, their shares would be abated proportionately.\\nIt is contended here that the share of the estate left to the appellee, Rita Brown Honor Friar, was one-half of the estate after payment of the debts, funeral expenses, etc., and cost of administration, and that these costs should be paid first, before paying to said appellee her half of the.estate. In other words, it is contended that the costs of administration, funeral expenses, and all debts should not be taxed against the residuary estate, nor against the deferred bequests, or bequests made secondary under the will. The rule is to gather the intention, of the testator, if possible, from the entire will, considering all its provisions together.\\nWe think it is clear from the expression in the will, \\\"I direct that the foregoing legacies shall have priority and be given in full\\\" and the direction that if the assets were not enough, that the \\\"legacies hereinafter given\\\" were to be abated proportionately, was to make the residuum liable for the cost, expense, etc. The effect of making the one-half interest of Rita Brown Honor Friar, and the legacies to Nell Benton, Maria Honor, and Bridget Soden preferred, was to cast the burden of the expenses of the administration, etc., upon the other bequests, and the residue of the estate bequeathed to Nell Benton, which distinguishes the case at bar from the case of Fisk v. McNtel, 1 How (Miss.) 535. The rule announced in that case, without a provision in the will changing the effect of it, would apply where there was no general residuum clause provision in the will, but where the will specially provides to the contrary, or does so by necessary implication, or where there is a general residuum recited in the will, or where the estate is left undisposed of, the payment of debts, funeral expenses, etc., would be a charge upon the residuum, and the preferred legatees would have no right to call upon the second legatees to abate their legacies. Legacies may be exonerated from the payment of debts and expenses by a direction in the will changing this rule. Currie & Nailor v. Murphy, 35 Miss. 473. As we view it, there is no conflict in this case and the case of Fisk v. McNiel, supra.\\nIn the case at bar, it is manifest from the will and all its terms that the testator intended that both real and personal property would be subject to the legacies given, but it is also manifest from the proof in the record that the personal property would be sufficient to pay the specific legacies, and the costs of administration, etc.\\nWe are of the opinion that the chancellor did not err in his construction of the will, and it is manifest from the will that the appellee, Rita Brown Honor Friar, was intended to have one-half of the entire estate, undiminished by the payment of debts, costs of administration, etc., and also undiminished by the preferred legacies, but only to be taxed with the costs of administration, etc., in event there were insufficient assets to pay same out of the residuum of the estate and the deferred legacies.\\nThe decree rendered did not dispose of all the questions involved, and it especially reserved the part of the case made by the bill, so, on a remand of the case the court may tax costs in accordance with the views herein expressed, and further deal with the case as may be meet and proper. The judgment will be affirmed and remanded.\\nAffirmed and remanded.\"}"

miss/1870241.json

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+"{\"id\": \"1870241\", \"name\": \"Streckfus Steamers, Inc., v. Kiersky, Assessor\", \"name_abbreviation\": \"Streckfus Steamers, Inc. v. Kiersky\", \"decision_date\": \"1935-11-04\", \"docket_number\": \"No. 31761\", \"first_page\": \"125\", \"last_page\": \"147\", \"citations\": \"174 Miss. 125\", \"volume\": \"174\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:27:24.925892+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Streckfus Steamers, Inc., v. Kiersky, Assessor.\", \"head_matter\": \"Streckfus Steamers, Inc., v. Kiersky, Assessor.\\n(Division. A.\\nNov. 4, 1935.\\nSuggestion of Error Overruled Jan. 6, 1936.)\\n[163 So. 830.\\nNo. 31761.]\\nBen. Wilkes, of Vicksburg, and Leo J. Sandman, of Louisville, Ky., for appellant.\\nViOllor & Teller and R. M. Kelly, of Vicksburg, and EdW. J. Bogen, of Greenville, for appellee.\", \"word_count\": \"5290\", \"char_count\": \"30694\", \"text\": \"Cook, J.,\\ndelivered the opinion of the court.\\nOn the 31st day of December, 1930, the mayor and aldermen of the city of Vicksburg passed an ordinance creating and levying certain privilege license taxes on specific businesses, trades, callings, and professions carried on in the city for the year 1931 and subsequently years, which included a tax of two hundred dollars for each day, or part thereof, upon each excursion boat taking passeng*ers from the said city and returning thereto; and on January 16, 1933, an ordinance in all respects identical with the aforesaid ordinance, insofar as it affected the liability of appellant for privilege license taxes, was enacted and declared to be in force and effect on and after January 1, 1933.\\nDuring the year 1931, the appellant was operating steamers on the Mississippi river, which were engaged in the business of carrying on pleasure excursions from the various cities along the river. When it advertised intention of running excursions from the Vicksburg wharf on two separate days, the city of Vicksburg demanded, and the appellant paid, under protest, a privilege tax of two hundred dollars for each of the separate days, and thereafter appellant filed suit to recover the sum so paid under protest. A judgment in its favor was rendered in the circuit court of Warren county from which there was an appeal to this court, where the judgment of the circuit court was reversed and a judgment was entered in favor of the city of Vicksburg. The opinion on that appeal is reported in City of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150 So. 215, and reference is made thereto for a statement of the issues there involved and the points decided.\\nWhile the above-mentioned suit was pending in the circuit court, the appellant, through its attorneys of record in that suit, entered into negotiations with the city authorities in reference to future excursions, and as a result of such negotiations the following letter was folwarded to the said city :\\n\\\"Brunini and Hirsch.\\n\\\"Attorneys at Law\\n\\\"Vicksburg, Miss., April 16th, 1932\\n\\\"Hon. J. C. Hamilton, Mayor, City of Vicksburg, Vicksburg, Miss.\\n\\\"Dear Sir: A suit was instituted by the Streckfus Steamers against the City of Vicksburg for the recovery of the privilege tax of $d0'0.00 paid on May 9th and May 10th, 1931. On the hearing before Judge Thigpen, the issue was decided in favor of the Streckfus Steamers. The City has appealed to the Circuit Court from this adverse ruling.\\n\\\"It is the intention of the Streckfus Steamers to run an excursion from Vicksburg on Saturday April 16th, and Sunday, April 17th, 1932.\\n\\\"In the event the suit now pending on appeal is finally decided against the Streckfus Steamers, then the Streckfus Steamers binds and obligates itself to pay to the City of Vicksburg the privilege tax of $200.00 per day for the two days that it proposes to operate; that is, on April 16th and April 17th, 1932, said payment to be made within thirty days after the present suit is' finally decided.\\n' ' Yours very truly,\\n' ' Streckfus Steamers,\\n\\\"By Verne Streckfus.\\\"\\nThereafter, letters of the same import and in substantially the same language were written covering proposed excursions on May 7 and 8, 1932, May 16 and 17, 1932, September 24, 1933, and October 7 and 8, 1933; the last of these letters being as follows:\\n\\\"Brunini & Hirsch\\n\\\"Attorneys at Law.\\n\\\"Vicksburg, Miss. October. 7th, 1933.\\n\\\"Hon. J. O. Hamilton, Mayor, City of Vicksburg, Vicksburg, Miss.\\n\\\"City of Vicksburg vs. Streckfus Steamers\\n\\\"Dear Sir: You will recall that an opinion has been rendered by the State Supreme Court upholding the right of the City of Vicksburg to tax the Steamers $200.00 per day. Mr. Hirsch is out of the City today, being in'Jackson, and when he left he stated that he would be there the whole of the day.\\n\\\"While the Supreme Court has rendered its decision still we have fifteen days from its rendition to file a suggestion of error, and in addition to that we have the right to appeal the case to' the Supreme Court of the United States. Just what course Mr. Hirsch will adopt the writer does not know, but we would like very much to have the same understanding with you that we had before \\u2014 this time in reference to' the Excursions to' be run tonight and tomorrow night. Of course if Mr. Hirsch determines not to file a suggestion of error and not take an appeal to the Supreme Court of the United States that will end the matter, but we would like to have the same arrangement; that is, in reference to the Excursions tonight and tomorrow night that we had before, with the understanding that when the matter is finally con- eluded the payment will he made if. the final decision is against us.\\n\\\"Yours very truly,\\n\\\"Streckfus Steamers,\\n\\\"By, John N.. Streckfus.\\\"\\nOf the four such letters not quoted herein, one was signed \\\"Streckfus Steamers, by Roy M. Streckfus,\\\" and three were signed, \\\"Streckfus Steamers, by Joseph Streckfus, Manager.\\\"\\nOn each of the several dates named in these letters to the mayor of Vicksburg, the appellant ran pleasure excursions from Vicksburg and returning thereto, and the city made no effort to collect the privilege taxes for any of these operations until after the final conclusion of the above-mentioned suit in this court, when payment of the privilege taxes of two hundred dollars for each day on which excursions had been run, as designated in the aforesaid letters to the mayor, was demanded, and payment of these taxes was refused. The appellant thereupon employed other attorneys, and by a petition in admiralty in the United States District Court it sought to have the said ordinance declared void as to it, and the city of Vicksburg and its official perpetually enjoined from enforcing and collecting the sums alleged to be due and to- become due under said ordinance.\\nThereafter the appellee, Abe Kiersky, assessor and tax collector of the city of Vicksburg, under authority and directions of the mayor and aldermen, instituted this suit in the circuit court of Washington county by an attachment against the appellant as a nonresident corporation; the declaration filed being in four counts based upon the following separate theories:\\n(1) That the agreements of appellant which were embodied in the several letters addressed to the mayor of said city covering the tax and occasions in question, which were relied upon and acted on by the city, were valid, effectual, and binding stipulations to abide by the judgment in the former case between the same parties by payment of said taxes in full, and that since said former or \\\"test\\\" case had been finally determined in favor of appellee, liability was independently and absolutely imposed by virtue of such stipulations.\\n(2) That the decision of this court, as reported in City of Vicksburg v. Streekfus Steamers, 167 Miss. 856, 150' So. 215, is res judicata as to all questions presented by the present suit and imposes and conclusively fixes appellant's liability for the taxes imposed by the ordinance in question.\\n(3) That the business pursued by the appellant is of such nature and kind as is covered and contemplated by the ordinances in question, and that under said ordinances by its course of business liability was independently imposed and fixed.\\nThe appellant thereafter filed its bond and petition for removal of the cause to the United States District Court on the ground that it was one of a civil maritime nature over which the District Court of the United States had original and exclusive jurisdiction, and involved questions controlled by the laws of the United States. Appellee filed exceptions to this petition, alleging as grounds thereof, among others, that the cause was not one of a bivil maritime nature, or one over which the federal court had original jurisdiction, or which involved any federal constitutional question, or which was predicated upon the laws of the United States. The court below sustained these exceptions and denied the petition for removal.\\nThereafter, appellant filed a plea in abatement averring that there was then pending in the United States District Court an action between substantially the same parties in respect to the same facts, and that a determination of the said cause in admiralty would determine the rights of the parties. Appellee demurred to this plea on the ground, among others, that on its face it disclosed that the issues and parties were not substantially the same, and that the pendency of the suit in the United States Court did not in law serve to abate or delay tbe action in tbe state court. This demurrer was sustained.\\nThereupon the appellant filed a plea of the general issue and gave notice thereunder that it would offer evidence to establish the following affirmative defenses: (1) That it was authorized and empowered to conduct its vessels in the coasting trade of the United States as a passenger excursion boat, and that it was carrying on said business on a free, navigable stream of the United States, and for that reason the ordinances in question were void as to it; (2) that the action was in effect a libel in admiralty, and therefore within the exclusive jurisdiction of the federal courts in admiralty; (3) that the l'evenue produced by the operation of appellant's boats was so small, and cost of operation so great, that the tax sought to be imposed by the said ordinances was exorbitant, prohibitive, and destructive of appellant's business to an extent that it amounted to a taking of its property without due process of law; (4) that the ordinance effective January 1, 1931, was not certified by the city clerk and approved by the mayor, as required by section 2642, Code of 1930; (5) that said ordinance, although made immediately effective upon its passage, contained no statement of the reasons of its urgency, as required by section 2642, Code of 1930; (6) that the ordinance dated January 16, 1933, is made effective as of January 1, 1933, and is therefore void as being an ex post facto law; (7) that said ordinance is made effective as of a past date, which is the equal 'of no date, and it contains no emergency statement, as required by section 2642, Code of 1930; (8) 'that the letters and agreements, copies of which were attached to the declaration, were executed under duress, and without consideration, and were therefore not binding on the appellant; and (9) that the business of the appellant was not conducted within the corporate limits of the city of Vicksburg, but was conducted on a navigable stream, and was therefore not subject to the tax sought to be collected.\\nTo this notice there were attached certified copies of certificates of inspection and enrollment and license granted to the appellant by the clerk of the United States Custom Service at St. Louis, Missouri, and a certified copy of the ordinance of the city of Vicksburg effective January 1, 1931.\\nAppellee offered in evidence a certified copy of the proceedings in the former appeal to this court, wherein the opinion of the court is reported in City of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150' So. 215, and also the testimony of the mayor of Vicksburg, for the purpose of establishing the agreement had by the city with the attorneys and representatives of appellant to abide by the final result of said former cause as fixing the liability of appellant for the tax on all future excursions. Upon identification by the mayor, the several letters which were attached to the declaration and which contained the purported agreements between the parties were, over the objection of appellant, offered in evidence. Through the mayor, appellee also offered evidence as to the number and kind of the several excursions conducted by appellant from and returning to Vicksburg wharf after the execution of the said purported agreements.\\nUpon identification by the city clerk, appellee offered in evidence the minutes of the mayor and aldermen showing the method of adoption of the! ordinance of January I, 1931, and the ordinance itself as spread at large on such minutes, and also a certified copy of the ordinance. There was also introduced the city ordinance book in which there was enrolled an exact duplicate of said ordinance as the same appears on the minutes of the mayor and aldermen, but neither of these copies of the ordinance showed on its face that it had been approved by the mayor and certified by the clerk. The ordinance of January 16, 1933, which was attempted to be made effective as of January 1, 1933, as the same appeared at large on the minute book, was also offered in evidence as was also the city ordinance book containing the said ordinance. This ordinance as it appears in the ordinance book is signed by the city clerk and approved by the mayor. The city clerk testified that the original of the ordinance first above referred to was filed as a part of the Supreme Court record in the former appeal, but was lost, and, over the objection of appellant, she testified that it was signed by the clerk and approved by the mayor. The appellant offered, no- evidence whatever.\\nThe first assignment of error presented by counsel for appellant is that the court erred in denying its petition to remove the cause to- the federal court; the contention being that the cause was removable on the face of the record, including the petition for removal, which averred that there was involved a matter over which the United States District Courts have original and exclusive jurisdiction, that is, a civil cause in admiralty involving a constitutional right and question. It is well settled that upon the filing of the petition for removal, supported by the necessary security, there is presented to the state court a question of law; that is, whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and all the pleadings prior thereto, that the petitioner was entitled to remove the suit, and that question the state court has a right to decide for itself. Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159; Crehore v. Ohio & M. R. Co., 131 U. S. 240, 9 S. Ct. 692, 33 L. Ed. 144; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862; 54 C. J. 331-333. In 23 R. C. L. 774, this rule is announced in the following language : The filing of a petition and bond presents to the state court a pure question of law, and that is whether, admitting the facts stated in the petition for removal to-be true, it appears on the face of the record that the petitioner is entitled to a removal of the suit. If, upon the face of the record, including the petition for removal, a suit does not appear to be removable, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made. That question the state court has the right to decide for itself. If it errs in keeping the case, and the highest court of the state in which a decision can be had affirms the ruling, the federal supreme court has jurisdiction to- correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal.\\\"\\nSection 41 (3), title 28, U. S. C. A., provides, among other things, that the United States District Courts shall have original jurisdiction \\\"of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.\\\" In the case at bar, appellee's cause of action is based solely upon the laws of this state, and no right whatever is asserted under the Constitution and laws of the United States. The declaration states a pure common-law action wherein the amount in controversy is less than three thousand dollars. This common-law action is not one cognizable in admiralty, but if the action should be construed as maritime in its nature, still the remedy at common law was adequate, and under said section 41 (3), title 28 U. S. C. A., the appellee had the right to elect \\\"whether to ask relief in a state court or in the district court; and the defendant may not object to the proceeding in the state court on the ground that the cause of action is in its nature maritime, so long as the action is in personam. \\\"1 R. C. L. 408. We conclude, therefore, that the court committed no error in declining to remove the cause to the federal court.\\nAppellant next contends that the court erred in sustaining the demurrer to its plea in abatement. If it be conceded that the parties to the suit pending in the federal court and in the case at bar were the same, it is clear that the issues and relief sought were not the same, and that appellee's remedy, if any, in the federal court was not as effective as that afforded by the suit in the state court, and for that reason the demurrer was proper ly sustained. Carbolineum Wood Preserving & Manufacturing Co. v. Meyer, 76 Miss. 586, 25 So. 297, 298. Furthermore, the great weight of authority is to the effect that the pendency of an action in a federal court is not ground for abatement of a like suit in a state court. This rule is stated in 1 C. J. 87, 88, in the following language: \\\"It is now well settled as a general rule that the pendency of a prior suit in a state court is not ground for abatement of a subsequent suit in a federal court, although the prior suit is between the same parties and for the same cause; nor is the pendency of a suit in a federal court ground for abatement of a like suit in a state court. And this rule applies, according to the weight of authority, even though the courts are in the same state and the state court is within the district covered by the' jurisdiction of the federal court, since the two courts, although they may not be foreign to each other, belong to different jurisdictions in such sense that the doctrine of the pendency of a prior suit as ground for abatement is not applicable. It is clear of course that the pendency of an action in a federal or state court is no ground for abatement of a prior suit in the other. ' '\\nAppellant next contends that the court below erred in admitting in evidence the transcript of the record of the former appeal, hereinbefore referred to. This record was offered in support of the second count of the declaration, which was based upon the theory that the decision in that case, as reported in City of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150 So. 215, was res judicata of all issues and questions presented in the case at bar, and conclusively fixed appellant's liability for the taxes sued for. For the purpose for which it was offered this record was competent, and while some parts thereof may be of no probative value, in view of the issues presented in the case now before us, the appellant was not prejudiced thereby, since- we do not rest this decision upon the doctrine of res judicata upon all issues raised by the pleadings in this cause. The former decision is clearly decisive of any question raised, or that might be raised, as to the validity of the ordinances in question, with specific reference to the power to enact such' ordinances reposed in the city of Vicksburg under its special charter; as to the reasonableness of the classification for purposes of taxation, and as to whether or not in conducting these excursions the appellant was engaged in interstate commerce; and no issue upon these points seems to be presented by the pleadings.\\nAppellant next contends that the ordinances under which the taxes were sought to be enrolled were void, and particularly void as to appellant, for the reason that its boats were duly licensed and enrolled to operate passenger excursions on the- navigable streams of the United States, and particularly the Mississippi river. Appellant's argument on this point seems to proceed upon the theory that the navigation of the public waters of the United States is subject to the regulation of Congress, and that a license granted under the laws and by the authority of the United States to a boat to carry on coasting trade entitles it to navigate all such waters without restraint by state law, although not engaged in interstate commerce in its ordinary conception; or, in other words, that \\\"navigation is commerce and the business of navigation is commerce as used in the Constitution according to the interpretation of the United States Supreme Court,\\\" and since \\\"commerce includes navigation it is not necessary for the vessel to- be engaged in interstate transportation to come within the commerce clause of the Constitution.\\\"\\nIt is true that in construing the commerce clause of the Constitution (art. 1, sec. 8, clause 3) the Supreme Court of the United States has held that the power to regulate commerce includes navigation as well as traffic in its ordinary signification, and that a license granted-under the laws and by the authority of the United States to a vessel to carry on the coasting trade' entitles such vessel to navigate the public waters of the United States without interference by state law. Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23. But the appellant is not in a position to avail of the doctrine announced in these and other decisions of the Supreme Court of the United States to the same effect. Section 251, title 46, U. S. C. A., defines what vessels shall be considered vessels of the United States in the following language: \\\"Vessels of twenty tons and upward, enrolled in pursuance of this chapter, and having a license in force, or vessels of less than twenty tons, which, although not enrolled, have a license in force, as required by this chapter, and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries.\\\"\\nIn Conway v. Taylor, 1 Black (66 U. S.) 603, 17 L. Ed. 191, it was said, in effect, that the enrollment of a vessel ascertained her ownership and gave her national character, while her license gave her authority to carry on the coasting trade; and together they entitled the owner to raise questions under the laws of the United States and particularly the commerce clause- of the Constitution. There is no proof whatever that the appellant's boats were enrolled or licensed to engage in the coasting trade. In a notice under its plea of the general issue appellant set up that.it would offer proof to show that it was authorized and empowered to conduct its vessels in the coasting trade of the United States as passenger excursion boats, and with this notice, as exhibit thereto, it filed purported certificates of inspection and certified copies of consolidated certificates of enrollment and license for the vessels in question, but these purported certificates and licenses were not introduced in evidence. The appellant offered no evidence whatever, and upon the record-before us the appellant is in the same situation as one operating vessels which were neither enrolled nor licensed, and therefore is not-entitled- to raise any question as to interference with the power- of 'Congress over navigation. ' f.....\\nAppellant next contends that the ordinances under which liability was sought to- be established are void for various defects and omissions in the enactment thereof; the first objection to the ordinance of December 31, 1930, being that the record fails to- show that it was approved by the mayor of the city. In support of this objection appellant cites the original section 10 of the special charter under which the city of Vicksburg operates, which provides, in part, as follows: \\\"Each ordinance shall be submitted by the City Clerk to the Mayor for his approval or disapproval, on the day following its adoption by the Aldermen, and the Mayor, if he shall approve the same, shall sign it approved by him, and the ordinance shall become a law as it may provide. If he disapprove the ordinance he shall, within three days after the Clerk shall have delivered it to him, return the same to the Clerk, with his disapproval and reasons therefor, in writing, addressed to the Board of Mayor and Aldermen. If the Mayor shall fail to return the -ordinance to the Clerk within the time aforesaid, with his action thereon, in writing, the ordinance shall become- a law according to its provisions, without the action of the mayor. The Clerk shall endorse on each ordinance the date of delivery to the Mayor, and also the time of its return to him by the Mayor, and shall lay before- the Board of Mayor and Aldermen at their next meeting any vetoed ordinance, with the accompanying communication from the- Mayor. ' '\\nAs shown by the records on file in the office of the secretary of state, by an amendment approved by the governor on August 14, 1912, section 10- of the original charter of said city was changed to read as follows:\\n\\\"There shall be a Mayor and two Aldermen, each of whom shall be elected from the City at large by the qualified voters thereof, and shall serve four years and until the election and qualification of their successors.\\n\\\"The said Mayor and Aldermen shall respectively exercise and perform all the powers and duties belonging to and exercised- and performed by the Mayor and Alder men at the date of the adoption of this amendment, except as hereinafter expressly limited. The Mayor shall have no veto power, and shall be entitled to vote on all questions in the same manner, and with the same effect as the Aldermen. No appropriation of public funds shall be made to any private use or advantage as distinguished from the interest of the corporation, except by unanimous vote of the Mayor and Aldermen and not in any event for more than Two Hundred and Fifty ($250.00') dollars for any one purpose.\\n\\\"Two Aldermen, or the Mayor and one Alderman, shall constitute a quorum for the transaction of business at any meeting of the Board of Mayor and Aldermen, and any ordinance, resolution or corporate power whatsoever which the said Board of Mayor and Aldermen shall have the power to enact, adopt or exercise, may be enacted, adopted or exercised by the vote of two Aldermen or of the Mayor and one Alderman, regardless of any provision in the said Charter requiring the vote of any specified number of Aldermen, except as to appropriations for non-corporate purposes as hereinbefore provided. The Mayor, or any Aldermen, shall have the right at any time, to call a special meeting of the Board of Mayor and Aldermen.\\\"\\nIt will be noted that by the above-quoted amendment of section 10 of the charter of the city of Vicksburg, the mayor is divested of all veto power, and the board of mayor and aldermen are empowered to adopt ordinances by the vote of two aldermen, or of the mayor and one alderman. There is no requirement that any ordinance shall be approved by the mayor before it shall become effective, and since the charter of the city of Vicksburg makes specific provision for the adoption of ordinances without the formal approval of the mayor, section 2642, Code of 1930, providing for the adoption of ordinances by municipalities operating under the common statutory charter for municipalities, chapter 50, Code of 1930, is not applicable. Consequently, formal approval by the mayor of the ordinance, or the ordinance dated January 16, 1933, was unnecessary. There was offered in evidence certified copies of these ordinances, and also the city ordinance hook in which they were entered, which by virtue of section 2547, Oode of 1930, was prima facie evidence of the existence of the ordinances and that the same were adopted as provided by law. Therefore, it appears that the ordinances were sufficiently proved, and that they were a valid exercise of power conferred by the charter of the city, and were legally adopted.\\nThe ordinance dated December 31, 1930, was made effective on January 1, 1931, while the ordinance of January 16, 1933, provided that it should be effective as of January 1, 1933, and it is argued- that the latter ordinance is void for the reason that it is an attempt to enact an ex post facto law. Section 2542, Code of 1930, provides that ordinances shall not be enforced, unless for cause the contrary be ordered, for one month after their passage. The only effect of the failure of the ordinance of December 31, 1930, to assign cause for the immediate enforcement thereof was to cause it to become effective and enforceable not earlier than one month after its passage. Of course, the mayor and aldermen had no-power to make the ordinance -of January 16, 1933, effective prior to the date of its passage, but the attempt to do so did not render the ordinance void after its passage by proper vote and act of the mayor and aldermen; it was merely ineffective and unenforceable until the lapse of one month after its passage, and since the appellant incurred no liability thereunder, and no attempt was made to- enforce it for any operations of appellant carried on prior to the time the ordinance became effective, one month after its passage, the appellant cannot complain of the abortive effort to- make it effective at an earlier date.\\nIt is next argued that the tax imposed was so exorbitant as to- be prohibitive and destructive of appellant's business. All taxes are presumed to be reasonable unless proved to be unreasonable, and in its notice of affirmative defenses to be proved, tbe appellant set up tbe unreasonableness of the ordinances, but offered no evidence whatever to substantiate the averment, and consequently that question is not here presented by the evidence.\\nAs said by counsel for the appellant near the conclusion of their brief, the record \\\"boils itself down to the question of whether or not the two ordinances upon which this suit is predicated are valid ordinances.\\\" We think these ordinances are valid, and in reaching the conclusion that, on this record, appellant is liable for the taxes sued for, we have proceeded without consideration of the agreements embodied in the several letters signed with the name of the appellant corporation and addressed to the mayor of the city, and therefore, if there were errors in the admission of these letters, as to which we express no opinion, such errors were harmless. The judgment of the court below is affirmed.\\nAffirmed.\"}"

miss/1885602.json

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+"{\"id\": \"1885602\", \"name\": \"Moore v. Illinois Cent. R. Co.\", \"name_abbreviation\": \"Moore v. Illinois Cent. R.\", \"decision_date\": \"1937-11-08\", \"docket_number\": \"No. 32860\", \"first_page\": \"276\", \"last_page\": \"291\", \"citations\": \"180 Miss. 276\", \"volume\": \"180\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:02:27.903707+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Moore v. Illinois Cent. R. Co.\", \"head_matter\": \"Moore v. Illinois Cent. R. Co.\\n(Division A.\\nNov. 8, 1937.\\nSuggestion of Error Overruled Jan. 3, 1938.)\\n[176 So. 593.\\nNo. 32860.]\\nChalmers Potter, of Jackson, for appellant.\\nMay & Byrd, of Jackson, and Burch, Minor & McKay, of Memphis, Tenn., for appellee.\\nArgued orally by Chalmers Potter, for appellant, and by J. L. Byrd, for appellee.\", \"word_count\": \"2634\", \"char_count\": \"15469\", \"text\": \"Smith, C. J.,\\ndelivered the opinion of the court.\\nThe appellant sued the appellee on an alleged_ breach of a contract of employment. The appellee filed ' six special pleas. Demurrers by the appellant to the first four pleas were overruled. The appellant replied to the fifth plea and a demurrer to his replication was sustained, as was also his demurrer to the appellee's sixth plea. The appellant declined to plead further, and judgment final against him was rendered.\\nThe declaration alleges, in substance, that on and long-prior to February 15, 1933, the plaintiff was a member of the Brotherhood of Railroad Trainmen, with which the defendant had entered into a contract which provided the rules, rates of pay, etc., for trainmen employed by it. That the plaintiff had been employed by the defendant as a trainman since June 2, 1926, and on November 13, 1926, the defendant, in accordance with its contract with the Brotherhood of Railroad Trainmen, published a seniority roster for its trainmen, giving the plaintiff No. 52 thereon. Under the' provisions of the contract, the trainmen were given work by the defendant according to their seniority on this roster, and, among other things, the contract provided that no employee should be discharged by the defendant without just cause. That although the plaintiff had rendered the defendant faithful and efficient service, and was ready, willing, and able to so continue, he was arbitrarily discharged by the defendant on F'ebruary 15, 1933, since which he has been unable to obtain employment, to the damages of the plaintiff in the sum of $3,000. The Brotherhood of Railroad Trainmen's contract was filed as an exhibit to the declaration, and is practically identical with the one under consideration in Moore v. Yazoo & M. V. R. Co., 176 Miss. 65, 166 So. 395, and McGlohn v. v. Gnlf & S. I. R. R. (Miss.), 174 So. 250.\\nThe first three of the appellee's pleas allege, in substance : The first plea, that the employment of the plaintiff was not for a- definite time, and was terminable at will; the second plea, that the contract sued' on is unilateral, there being no agreement on the part of the plaintiff to perform any services whatever for the defendant, and was without consideration; the third plea, that the contract sued on was not one .of hiring between the plaintiff and the defendant, but was merely a schedule of wages governing yardmen and switchmen, and that by it no switchman was employed for any specific period, no switchman agreed to perform any service for the defendant for any specified time, and, therefore furnishes no basis for a recovery by the plaintiff.\\nThese pleas seem to be, in fact, demurrers, but aside from that, the demurrers thereto should have been sustained under McGlohn v. Gulf & S. I. R. R., supra, wherein the court held that a contract by a labor union with an employer, similar to the one here, was: (1) Yalid-; (2) that a member of the labor union which made the contract could sue thereon, although he had not, himself, agreed to work for the employer for any definite time; and (3) could not be discharged by the employer at will. That case was decided after the trial in the court below of the case now under consideration.\\nThe fourth plea set forth a provision of the contract sued on, reading as follows: \\\"(d) Yardmen or switch-tenders taken out of the service are censured for cause, shall be notified by the Company of the reason therefor, and shall be given a hearing within five days after being taken out of the service, if demanded, and if held longer shall be paid for all time so held at their regular rate of pay. Yardmen or switchtenders shall have the right to be present and to have an employee of their choice at hearings and investigations, to hear the testimony, and ask questions which will bring out facts pertinent to the case. They shall also have the right to bring such witnesses as they desire to give testimony, and may appeal to higher officers of the Company in case the decision is unsatisfactory. Such decision shall be made known within three days at New Orleans and at other points ten days after the hearing, or yardmen or switchtenders shall be paid for all time lost after the expiration of three days at New Orleans and ten days at other points. In case the suspension or dismissal or censure is found to be unjust, yardmen or switchtenders shall be reinstated and paid for all time lost.\\\" It then alleges, in substance, that when the appellant was discharged on February 15, 1933, he was notified thereof, in writing, by the defendant's superintendent, whereupon the plaintiff notified the superintendent in writing that he desired a hearing on his discharge, which request was complied with by the superintendent. While the plea does not so allege, it is clear therefrom that the superintendent declined to reinstate the plaintiff, whereupon he gave written notice to the defendant that he desired to appeal from this ruling of the superintendent. The defendant, through its proper officers, advised the plaintiff that a hearing on this appeal would be accorded him on a named date, but the plaintiff failed to appear and abandoned his appeal, because of which he is without the right to maintain this suit.\\nThe appellant is not seeking to be restored to the appellee ]s employment, nor does his complaint involve any question of discipline or policy arising under the contract. It includes only his right, vel non, to damages, because of his alleged discharge by the appellee, for the determination of which the courts are open to him without his having exercised his right to attempt to gain his reinstatement in the appellee's employ by appealing from its superintendent to his superior officers. Independent Order of Sons & Daughters of Jacob v. Wilkes, 98 Miss. 179, 53 So. 493, 52 L. R. A. (N. S.) 817; Eminent Household of Columbian Woodmen v. Ramsey, 118 Miss. 454, 79 So. 351, and Eminent Household of Columbian Woodmen v. Payne, 18 Ala. App. 23, 88 So. 454. The demurrer to this plea should have been sustained.\\nThe fifth plea is one of res judicata, and alleges, in substance, that on October 15, 1932, the plaintiff sued the defendant in the First district of Hinds county, in a cause appearing there as No. 8232, and on February 23, 1933, filed an amended declaration therein alleging that he had been given a lower place on the defendant's seniority roster, resulting in his being, in effect, discharged, by reason of which he had been damaged. After the filing of this amended declaration, the defendant filed the following third special plea: \\\"Now comes the defendant, Illinois Central Railroad Company, by its attorneys, and for a further and special plea to the declaration herein, says that in any event, the plaintiff is not entitled to recover pay for any time after the 15th day of February, 1933, because it says that on said 15th day of February, 1933, it notified the said plaintiff, Earl Moore, in writing, that his services were no longer desired, and that his employment was at an end, and his said employment with this defendant did end on said date and any right the said Moore might have had to work for the defendant ceased on said date.\\\" To this plea, the appellant replied as follows: \\\"And now comes the plaintiff and for replication to the third special plea of the Illinois Central Railroad Company heretofore filed herein says that nothing therein contained should defeat or prevent the maintenance of plaintiff's cause of action, because it is alleged in the declaration and in. the exhibits annexed thereto under Article 17 of said Exhibit, the following, 'No switchman will be discharged or suspended without just cause,' and said special plea does not allege that the said defendant, Illinois Central Railroad, had any sufficient cause of firing the. said plaintiff who was a switchman and the said plaintiff does hereby allege and aver that the only reason that he was fired was because that he had filed this lawsuit seeking a re dress of his wrongs in the defendants, and plaintiff avers that the tiling of a lawsuit to compel the courts to perform their contracts is not sufficient cause within the meaning of said contract of employment. All of which the defendant is ready to verify.\\\" Issue on this replication was joined by consent, and the cause proceeded to trial resulting in a verdict for the defendant, and a judgment that the plaintiff recover nothing.\\nThe replication of the plaintiff to this plea of res judicata sets forth, among other things, that: \\\"It was alleged in said declaration, in suit No. '8232, and the following allegation constituted the gist of plaintiff's action herein, that the said defendants therein had breached a contract between the Switchman's Union of North America, of which plaintiff was, at the time he went to work for the Alabama & Vicksburg Railway Company, a member, in that he had been given a lower place on the seniority roster of both defendants in their Jackson yards than the place to which he was entitled under the contract, yet plaintiff avers that the basis of his cause of action in said cause, to-wit, Nio. 8232, was breach of the contract originally entered into between the said Alabama & Vicksburg Railway Company and the Switchman's Union of North America, for a failure of this defendant and the Yazoo and Mississippi Valley Railroad Company to give him the place upon the seniority roster' to which he was entitled, the contract between the Switchman's Union of North America, and the Alabama & Vicksburg Railway Company having 'been expressly assumed as alleged in the pleadings in said cause by the defendants therein, and all other matters alleged, either in the declaration or in any subsequent pleadings filed by either party thereto, did not form the basis of plaintiff's cause of action therein, but merely t\\u00f3 show and explain the extent of damages suffered by said plaintiff, or any attempt by the defendants to limit said damages. That the cause of action between the Illinois Central Railroad Company and this plaintiff in said cause No. 8232, is in no way identical with the cause of action here sued on, because the cause of action here sued on is based not upon the Switchman's Union contract, but a contract between this defendant and the Brotherhood of Railroad Trainmen. The basis of this suit is not a failure to give plaintiff a place upon the seniority roster to which he conceived he was entitled, but is a suit for his wrongful discharge under a contract of hire. Plaintiff further alleges that said plea constitutes no defense because cause No. 8232 was decided by this court and affirmed by the Supreme Court [Moore v. Yazoo & M. V. R. Co., 176 Miss. 65, 166 So. 395] upon the grounds that the contract therein sued on provided that within thirty days after the promulgation of the seniority list, the seniority list therein sued on having been promulgated in.November, 1928, that any person not being satisfied with the number given him thereon should, within thirty days after the promulgation of said list, file a written protest; that this the plaintiff in cause No. 8232 failed to do personally within the time required by the contract between the Switchman's Union of North America and the Alabama & Vicksburg Railway Company, and for that reason a directed verdict was rendered against said plaintiff, which was affirmed by the Supreme Court of the State of Mississippi, a copy of the opinion of the Circuit Court' and the opinion of the Supreme Court both being attached hereto marked Exhibits 'B' and 'C' respectively, and prayed to be considered a part hereof as fully and completely as if copied herein, and the issue herein involved has never been decided upon its merits either by this court or any other court. All of which the plaintiff is ready to verify.\\\" The declaration in the former suit, filed as an exhibit to this replication, is in accord therewith.\\nIt appears from the appellee's fifth plea that this discharge of the appellant was pleaded by it in the former suit, not in bar of the action, but only in bar of the right of the appellant \\\"to recover pay for any time after the 15th day of February, 1933,\\\" the date of his discharge.\\nThe appellee says that the wrong-fulness, vel non, of the appellant's discharge by it on February 15, 1933, was one of the questions presented and litigated in -the former suit, and was decided by the verdict and judgment there rendered.\\nThe appellant admits that this question was presented in the former suit by the appellee's plea, but says that it did not and could not have entered into the verdict and judgment rendered; and, further, that the evidence necessary to support his there cause of action differed, in material aspects, from that necessary to support his cause of action here sued on.\\nIt appears from the replication to this plea of res judicata, and from the opinions of the trial and the Supreme Court, to which both the appellant and the appellee, in their pleadings, refer, that the trial court directed the jury to return a verdict for the defendant, but, in so doing, did not and could not have considered and determined the wrong-fulness, vel non, of the appellant'.s discharge by the appellee on February 15, 1933; and, further, that the trial court directed the jury's verdict only on the ground that the appellant had no cause of action because of his having been given the wrong number on the appellee's roster of workmen, and therefore could recover nothing. Had a recovery been allowed for the time intervening between the publication of the appellee's roster and the appellant's discharge on February 15, 1933, a different question would be here presented. The judgment in the former suit is not res judicata here.\\nWe have left out of view the fact that the appellant here sues on a contract made with the appellee by the Brotherhood of Railroad Trainmen, and in the former ' suit on a contract made with appellee by the Switch-man's Union of North America, the provisions of which are similar.\\nThe appellant's demurrers to the first four pleas should have been sustained, and the appellee's demurrer to the appellant's replication to the fifth plea should have been overruled.\\nThe appellee's sixth plea is to the effect that the appellant's cause \\u00f3f action is barred by section 2299, Code of 1930, the 3-year statute of limitations, for the reason that \\\"the contract of employment between the plaintiff and this defendant was verbal, and the alleged breach of the contract occurred on February 15th, 1933, more than three years before the appellant's suit was begun.\\\"\\nThe appellant's suit is not on a verbal contract between him and the appellee, but on a written contract made with the appellee, for appellant's benefit, by the Brotherhood of Railroad Trainmen; consequently, section 2299, Code of 1930, has no application, and the time within which the appellant could sue is six years under section 2292, Code of 1930. The demurrer to this plea, therefore, was properly sustained. This question was presented by a cross-appeal by the appellee.\\nReversed and remanded.\"}"

miss/1905478.json

@@ -0,0 +1 @@
+"{\"id\": \"1905478\", \"name\": \"Hodges v. State\", \"name_abbreviation\": \"Hodges v. State\", \"decision_date\": \"1942-02-09\", \"docket_number\": \"No. 34747\", \"first_page\": \"322\", \"last_page\": \"326\", \"citations\": \"192 Miss. 322\", \"volume\": \"192\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:30:47.484380+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hodges v. State.\", \"head_matter\": \"Hodges v. State.\\n(In Banc.\\nFeb. 9, 1942.)\\n[6 So. (2d) 123.\\nNo. 34747.]\\nP. P. Lindholm, of Lexington, for appellant.\\nGreek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.\", \"word_count\": \"716\", \"char_count\": \"4151\", \"text\": \"McGehee, J.,\\ndelivered the opinion of the court.\\nThe appellant* Beatrice Hodges, was tried for the alleged murder of Dave Wright, and convicted of manslaughter. On appeal she assigns as error, first, the refusal of the court below to grant a peremptory instruction in her f\\u00e1vor; second, the giving of certain instructions on behalf of the state; and, third, the overruling of a motion for a new trial, on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence.\\nThe rule announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, and in other cases to the same effect, is invoked in support of the contention that the appellant was entitled to the requested peremptory instruction. No other witness saw the accused inflict the knife wound which caused the death of Dave Wright. He stated, while en route to the hospital, that he did not know who cut him. The appellant later admitted to the sheriff that she did the cutting at a time when Dave Wright was trying to impose his attentions upon her, over her protest and against her will, in such manner as to commit a statutory offense against her person. He was in an intoxicated and drunken condition when visited by a local physician at the hospital shortly after being wounded. Assuming that the appellant's version as to the necessity for using her knife in the lawful defense of her person was a reasonable account of what occurred, we are of the opinion that in view of other circumstances disclosed by the testimony on behalf of the state it was a question for the jury as to whether her story was substantially contradicted in material particulars by any credible witness or witnesses for the state, or by any physical facts and matters of common knowledge.\\nWe deem it unnecessary to set forth in detail at this time all the facts and circumstances testified to, and also think it improper to comment upon any reasonable inference to be drawn therefrom, either as supporting or contradicting\\\" the defense made, upon which we base this conclusion, for the reason that we have determined that the case should be reversed and remanded for a new trial, both on the ground that the evidence most strongly tends to support the appellant's version of what occurred, and because the instructions granted for the state seem to have presented for the consideration of the jury the single theory as to whether or not the appellant hilled her alleged assaulter in order to prevent him from killing her, or doing her some great bodily harm in the sense of danger to her life, when there was no issue of self-defense plead or presented by the evidence within that meaning of the term, the sole defense made by tbe appellant being interposed under subsection (f) of section 988, Code 1930, declaring that the killing of a human being shall be justifiable, \\\"When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.\\\" In other words, if the appellant had reasonable grounds to apprehend a design on the part of Dave Wright to commit a felony against her person, or to do her some great personal injury, and that there was imminent danger of such design being carried out, the homicide was justifiable; whereas, the instructions for the state seem to require that the jury should believe that the appellant entertained a reasonable apprehension that he intended to take her life, or to do her great bodily harm, in the sense of endangering her life, before the jury would be warranted in acquiting her, entirely leaving out of consideration the right to protect her person against the commission of the threatened felony testified to. Staten v. State, 30 Miss. 619; McNeal v. State, 115 Miss. 678, 76 So. 625.\\nReversed and remanded.\"}"

miss/1931277.json

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+"{\"id\": \"1931277\", \"name\": \"Miller v. State\", \"name_abbreviation\": \"Miller v. State\", \"decision_date\": \"1945-05-14\", \"docket_number\": \"No. 35858\", \"first_page\": \"277\", \"last_page\": \"283\", \"citations\": \"198 Miss. 277\", \"volume\": \"198\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:39:40.561883+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miller v. State.\", \"head_matter\": \"Miller v. State.\\n(In Banc.\\nMay 14, 1945.)\\n[22 So. (2d) 164.\\nNo. 35858.]\\nL. G-. North, of Belzoni, for appellant.\\nGreek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.\", \"word_count\": \"1119\", \"char_count\": \"6204\", \"text\": \"Roberds, J.,\\ndelivered the opinion of the court.\\nAppellant was convicted of burglary and grand larceny. On this appeal he makes the contention, among others, that the evidence purporting to connect him with this crime is so vague, indefinite, uncertain and unreliable that it does not justify his conviction, and his request for a peremptory instruction should have been granted; but, if mistaken in this, that the verdict is against the great weight of the believable, creditable evidence, and the case should be reversed and remanded for trial by another jury.\\nThe place burglarized was a store in Inverness, Mississippi, and the property stolen consisted of two radios. One Mack King and Henry Lindsey had already been convicted of the crime, and Lindsey had served his term in the state penitentiary therefor. King was also sentenced to the state penitentiary, but it is not shown definitely whether he had already served his term when the trial was had. He did not testify, and it is not shown whether he was available, nor why he was not used as a witness.\\nThe state relies for conviction on the testimony of Henry Lindsey, and on flight of appellant. The officers found the radios, with much other stolen property, at the home of Lindsey. His testimony purports to connect appellant Miller with the crime at three points \\u2014 first, in the agreement to commit it; second, the commission itself; and, third, delivery of the radios to Lindsey's home.\\nOn the first point he testified that he and King and Miller were together, and that King said they \\\"would get a couple of radios\\\"; that it was agreed the witness would have one, and he supposed King would have the other; that when he and King were talking Miller was \\\"Standing off.\\\"\\n\\\"Q. Could he hear Mack talking? A. No, sir, he couldn't exactly hear him.\\n\\\"Q. Where was it Sam came up while you and Mack were talking?' A. He never did get close to us at all.\\n\\\"Ql. How close did he get? A. Close as from here to that gentlemen there.\\n\\\"Q. What was it he said if anything? A. He didn't say nothing. Me and Mack was talking.\\n\\\"Qi. Sam was standing there? A. Yes, sir;\\n\\u00a3\\u00a3Q. And you and Mack were talking? A. Yes, sir. '\\nHe then said Mack told him to go ahead to the store, and Mack and Sam (appellant) would come later, and that when he left Mack and Sam were \\\"standing there.\\\"\\nDescribing the happenings at the store, he says he went on ahead, and Mack told him to stand and watch; that they were then near the front' of the building; that he watched in an alley beside the building; that he did not see any one go in the building, or come out; and did not, of course, see what was stolen; and that he never saw or heard anything of Sam on that occasion. It might be explained that the building was entered by prizing open a rear door.\\nOn the third point he says that about a week after the burglary some one drove up to his home in an automobile at night, and called out, \\\"I got a pig and I want you to keep that.\\\" He first said that it was the voice of Sam, but later said it sounded like Sam's voice; and when asked, \\\"You couldn't swear it was?\\\" said, \\\"No, sir.''' Presumably Mack delivered the radios to him, although that is not clear. But he does say definitely he never saw Sam on that occasion, and the only identification of him was the testimony regarding the voice, above set out. Boiled down, his testimony is that he never saw Sam from the time of the first conversation with Mack, when Sam \\\"was standing off,\\\" until the trial took place over three years later. In view of the fact that the witness is a confessed accomplice in the crime, and that the testimony of a confederate should be received and weighed with care and caution, coupled with the vague, uncertain and indefinite character of the evidence given by him, it must be admitted that the state's case, based upon that evidence, is extremely weak; and but for the evidence of flight, as hereinafter set out, a majority of the Court is of opinion that appellant would be entitled to be discharged.'\\nIt is shown that appellant, about a week after commission of the crime, fled the state, and when apprehended in another state, resisted extradition; that while the extradition proceedings were pending, he was inducted into the army, and later, when on furlough at his home near Inverness, he was arrested and put to trial. He testified that his reasons for fleeing were that when in Inverness a few days after the event, he heard that the crime had been committed, and that King and Lindsey had been ar rested and severely whipped because of it; and when he reached his home, some two miles in the country, that night, his wife told him the officers had been there looking for him, and he was afraid he, also, would be whipped; and that he did not flee because he had any part in the crime. This evidence was competent, and the reason for his flight was a question for the jury.\\nGiving full effect to all of the evidence, we think it is sufficient to withstand the request for a peremptory instruction, but, since the accused is presumed innocent of the crime, and his guilt must be shown by the evidence beyond every reasonable doubt, our sense of duty and responsibility impels us, in view of the unsatisfactory condition of this proof, to remand the case so that another jury can pass upon his guilt or innocence. In the recent case of Ewing v. State, 9 So. (2d) 879, 880, this Court said, ' ' The question before us is not whether the defendants are in fact guilty or are probably guilty, but whether the State has made out beyond a reasonable doubt a case sufficient to withstand the weight of testimony consistent with innocence. The doubt that reasonable men engaged in a search for truth could safely accept and act upon the evidence to a moral certainty of guilt must be resolved in favor of the defendants. We are of the opinion that justice requires that the case be remanded and a new trial awarded.\\\" That statement is applicable here.\\nReversed and remanded.\"}"

miss/1931313.json

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+"{\"id\": \"1931313\", \"name\": \"Smith v. State\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1945-12-10\", \"docket_number\": \"No. 35954\", \"first_page\": \"788\", \"last_page\": \"797\", \"citations\": \"198 Miss. 788\", \"volume\": \"198\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:39:40.561883+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Smith v. State.\", \"head_matter\": \"Smith v. State.\\n(In Banc.\\nDec. 10, 1945.)\\n[24 So. (2d) 85.\\nNo. 35954.]\\nA. M. Warwick, of Carthage, for appellant.\\nGreek L. Rice, Attorney-General, by R. 0. Arrington, Assistant Attorney-General, for appellee.\", \"word_count\": \"1839\", \"char_count\": \"10462\", \"text\": \"L. A. 'Smith, Sr., J.,\\ndelivered the opinion of the court.\\nAppellant had bought a cow from a Mr. Martin, which, under the terms of the trade, was to be delivered by the seller at the home of the appellant. The Martin brothers, in performance of this term of the transaction, had loaded the cow in the truck of one of them and were proceeding to deliver it when it appeared they were, or about to run, out of gasoline. Appellant was a passenger in the truck. They stopped at a certain crossroad and proceeded to make an examination. While several were standing around, one of the persons saw a bottle of whiskey in the pocket of appellant. Shortly thereafter appellant removed the bottle of whiskey from his pocket and hid it under his coat as he saw another car approaching where he was standing with these several people. Almost immediately he walked across to the truck, opened the cab door, and put the whiskey on the floor of the cab. When the approaching car stopped, a deputy sheriff, accompanied by a member of the highway patrol, was in it. The deputy had a warrant for the arrest of appellant on a charge of drunken driving the night before. There is conflict between the deputy sheriff and the highway patrolman as to whether or not he arrested appellant \\\"be fore searching the truck. It is unimportant here, we think.\\nNeither the deputy nor the highway patrolman saw the whiskey before it was taken from the cab of the truck, but they did see the motions and maneuvers of appellant and his opening the door of the cab and putting something therein from beneath his coat. The deputy sheriff, without a search warrant, proceeded to search the cab, and his doing so under such circumstances, and the admission of the evidence obtained thereby, is the basis of one of the assignments of error here. Appellant claimed that he had the truck rented, and, therefore, had dominion over it at the time when the search was made, and it was unlawful and against his rights. However, the evidence is clear that he did not have the truck rented, but that it belonged to one of the Martins, was being driven by one of them on their business of complying with the contract of sale of a cow and delivery thereof to the home of the appellant. Appellant, therefore, was not in a position to object to the search, or to the admission of the evidence secured thereby. Davis v. State, 144 Miss. 551, 110 So. 447.\\nAppellant says that he was in the mere transitory possession of the whiskey for the purpose of taking a drink, which had been offered to him by a negro just before the deputy and the patrolman came on the scene, and that therefore under the authority of such cases as Harness v. State, 130 Miss. 673, 95 So. 64, Anderson v. State, 132 Miss. 147, 96 So. 163, and Brazeale v. State, 133 Miss. 171, 97 So. 525, he was improperly convicted of unlawful possession of intoxicating liquor. However, he is contradicted as to this, and the. jury heard the testimony and brought in a verdict contrary to the contention of appellant, and, under familiar rules, we will not disturb it. We have carefully considered the evidence on both sides in this case and are of the opinion that the verdict of the jury was not contrary to the great weight of the testi mony, -which, was conflicting. Therefore, the assignment of error based on the weight of the testimony is overruled.\\nThe important issue to be determined in this case is a plea in abatement, based on the following facts: Some days after the scene at the truck, an affidavit against appellant was sworn to and lodged with a justice of the peace of District I of Leake County, Miss., where the crime occurred. However, the justice of the peace before whom this affidavit was made and with whom it was lodged was then at the county seat attending circuit court in District No. 2, which convened that day. This was in the morning. _ Later in the afternoon the grand jury of the county indicted appellant for the offense here involved and being the same identical offense charged in the affidavit. He was arrested under the indictment, but it does not appear from the record that he had then been arrested under the affidavit. He was tried and convicted in the circuit court, and from that conviction' he appeals, assigning' the errors discussed above and in addition raising the difficult question of jurisdiction between the circuit court and the justice of the peace courts. The rule with reference to the concurrent jurisdiction of the circuit and justice of the peace courts as to misdemeanors is Section 1831, Code 1942, and is construed in Milling v. State, 188 Miss. 592, 194 So. 291. The second syllabus is as follows: \\\"The rule that where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction should proceed with trial and disposition of case is intended to prevent confusion and conflicts in jurisdiction, and to prevent a person from being twice tried for the same offense, and no defendant has the vested right to be tried in any particular court of concurrent jurisdiction.\\\"\\nWe are, therefore, faced with the issue, whether the lodging with the justice of the peace, under' these circumstances, of the affidavit against appellant whereon no warrant had been issued, prevented the circuit court under such conditions from acquiring exclusive jurisdiction to dispose of the case finally, as was done here. Section 1832, Code 1942, provides that: ' ' On affidavit of the commission of any crime of which he has jurisdiction lodged with a justice of the peace, he shall issue a warrant for the arrest of the offender returnable forthwith or on a certain day to be named, and shall issue subpoenas for witnesses as in civil cases, and shall try and dispose of the case according to law; and, on conviction, shall order such punishment to be inflicted as the law provides.\\\" We have in a number of cases held that an affidavit is essential to confer jurisdiction on a justice of the peace to try and punish an offender, and that such affidavit is a prerequisite to prosecution for the foundation of the jurisdiction of the justice of the peace, and that the court has no jurisdiction without it. Bigham v. State, 59 Miss. 529; Bramlette v. State, 193 Miss. 24, 8 So. (2d) 234, and others. However, we do not seem to have held more than that \\u2014 in other words, we do not seem to have heretofore decided that the mere lodging of an affidavit with a justice of the peace confers full, final and exclusive jurisdiction on such justice court, so as to preclude the circuit court from indicting the offender, and disposing of such offender in the circuit court where warrant had not been issued by the justice of the peace prior to the indictment. We approached the matter from that angle in the case of Hampton v. State, 138 Miss. 196, 197, 103 So. 10. In that case an affidavit was filed in the justice of the peace court of the county charging' appellant with the sale of liquor, and upon this charge she was arrested and entered into bond for her appearance in that court to answer the charge. The affidavit had not been disposed of and was still pending in the justice of the peace court at the time of the trial in the circuit court. During the term of the circuit court an indictment was returned against the defendant charging her with the same offense. It was held that, under the conditions described, the circuit court acquired no jurisdiction. In the case at bar the justice of the peace had issued no warrant of arrest be fore the indictment was returned, and arrest pursuant to the indictment.\\nThe state attacked the jurisdiction of the justice of the peace on the ground that the affidavit was made and lodged with him while he was out of his court district. We do not think there is anything to this argument.\\nThe appellant, in the circuit court, filed a plea in abatement on an agreed statement of facts, as above set out, and claimed that the rule governing the concurrent jurisdiction between the justice of the peace court and the circuit court deprived the circuit court of jurisdiction here, since the jurisdiction had become fixed and exclusive in the justice of the peace court before the indictment was returned and appellant arrested 'under the indictment. This plea in abatement was overruled by the court, and such action by the court is assigned as error here. We are of the opinion that the trial court was right.\\nWe have reached a conclusion in harmony with the views expressed in the case of Hampton v. State, supra, and in Smithey v. State, 93 Miss. 257, 46 So. 410, in which we held that a justice of the peace court has jurisdiction concurrent with the circuit court of misdemeanors, and, in the absence of fraud and collusion, may try a defendant duly charged with and arrested to answer a misdemeanor, although an indictment for the same offense has been found and returned in the circuit court, where defendant has not been arrested to answer it. Judge Mayes, in delivering the opinion of the Court, said: \\\"The crime was one over which the justice of the peace had jurisdiction concurrent with the circuit court. Until arrest under the indictment, in the absence of proof or charge of fraud, the jurisdiction had not attached in the circuit court, so as to exclude the jurisdiction of the justice of the peace. Whenever there is an indictment and arrest, in either court, jurisdiction is then exclusive; but until then, in the absence of any allegation and proof of fraud or collusion, either court maj^ proceed . . . \\\" All of the statutes cited by appellant, including Section 2438, Code 1942, were in the code prior to and at the time of the Smithey case, so that none of them are newly before us. Therefore, the. circumstances of the instant ease, in view of the authorities cited, had not reached the point at which exclusive jurisdiction had become fixed in the justice of the peace court, because no warrant had been issued by the justice of the peace and served by arrest of appellant at the time the indictment was found and returned in the circuit court and appellant arrested pursuant to said indictment; and the trial court was correct in overruling the plea in abatement.\\nThe judgment of the trial court is affirmed.\\nAffirmed.\"}"

miss/374263.json

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+"{\"id\": \"374263\", \"name\": \"Hampton R. Lusby et al. v. Hezekiah Cobb et al.\", \"name_abbreviation\": \"Lusby v. Cobb\", \"decision_date\": \"1902-03\", \"docket_number\": \"\", \"first_page\": \"715\", \"last_page\": \"730\", \"citations\": \"80 Miss. 715\", \"volume\": \"80\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:44:27.227106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hampton R. Lusby et al. v. Hezekiah Cobb et al.\", \"head_matter\": \"Hampton R. Lusby et al. v. Hezekiah Cobb et al.\\n1. Wills. Construction. Environments of testator.\\nIt is competent in construing a will to look to the situation of the testator, his environment as related to his estate and devisees or legatees at the time the will is made.\\n2. Same. Kin. Meaning of term.\\nThe word \\u201ckin,\\u201d standing alone in a will, means such kin as take under the statutes of descent; but where there are other words in the will disclosing, with reasonable certainty, that particular persons were meant to be designated, courts will give the word the meaning the testator attached to it.\\n3. Same. Case. \\u201cKind\\\" used for km.\\nWhere a testator devised his estate to \\u201c all. my blood kind in Louisiana and Texas,\\u201d and at the time the will was made and at his death he had two half-brothers and one nephew of the whole blood residing in Louisiana and nephews and nieces and grandnephews and grandnieces of the whole blood residing in Texas, the word \\u201ckind\\u201d should be construed as \\u201ckin,\\u201d and the half-brothers are entitled to a per capita share of the estate.\\nFrom tbe chancery court of Washington, county.\\nHon. A. McO. Kimbrough, Chancellor.\\nCobb and others, appellees, were complainants in the court below; Lusby and others, appellants, were defendants 'there. From a decree in complainants\\u2019 favor defendants appealed to the supreme court. The opinion states the case.\\nCampbell & Starling, for appellants.\\nThe principal question presented for consideration is: To whom did T. C. Lusby intend his estate to go, and what did he mean by the words \\u201cto all my blood kind in Louisiana and Texas ?\\u201d The words \\u201cblood kind\\u201d in this clause unquestionably is the equivalent of \\u201cblood kin.\\u201d (See Century Dictionary.) So that the clause should be read, \\u201cTo all my blood kin in Louisiana and Texas.\\u201d When the testator died, the two half-brothers and one nephew resided in Louisiana, and the rest of the said kindred resided in Texas. In common acceptation, the being a man\\u2019s kindred is being of his blood, and it is in that sense that the word \\u201ckindred\\u201d is used in the statute of distributions, so that a bequest to \\u201ckindred\\u201d is understood to. refer to blood relations, without the use of the word, \\u201cblood.\\u201d Roper on Legacies, 118.\\nA devise or bequest to \\u201cnext of kin\\u201d is understood to mean the nearest blood relation in equal degree of the propositus, such relations being determined without regard to the statute of distributions. Jarman on Wills (1893), vol. 2, 112; Hawkins on Wills, 97; 1 Roper, 119.\\nA devise or bequest to \\u201crelations\\u201d simply applies only to the person or persons who would, by virtue of the statute of distributions, take the estate under an intestacy, either as next of kin or by representation of next of kin. Such is the construction by a long line of decisions, English and American, adopted for convenience, and to prevent a bequest, so made, from being void for uncertainty. 2 Jarman on Wills, p. 130; 1 Roper on Legacies, 100; Schouler on Wills, see. 537.\\nThe word \\u201cblood,\\u201d mentioned in the statutes of descent and distribution, has been uniformly construed to include, in its technical, as well as in its natural sense, the half blood. 4 Am. Eng. Enc. Law, 585; Anderson v. Bellj 29 L. R. A., 541; 1 Roper Leg., 119.\\nWe have not been able to find, after diligent search, a single case in the books wherein language in a devise or bequest exactly like that under consideration has been construed. Had the devise in question been to \\u201cnext of kin,\\u201d the half brothers would have taken to the exclusion of the nephews and nieces of the whole blood. 2 Jarman on Wills, 112; 16 Am. & Eng. Enc. Law, 705; Loche v. Locke, 45 N. J. Eq., 97; 1 Roper, 19. Had the devise in question been simply to \\u201crelations,\\u201d the half brothers would have taken in common with the nephews and nieces of the whole blood, under the statute of distributions of England, and under that of most of the United States. 2 Jar-man on Wills, 135; 16 Am. & Eng. Enc. Law, 704; Schouler on Wills, sec. 537.\\nSince, therefore, the nephews and nieces of the whole blood of J. C. Lusby would have taken his estate, under the Mississippi statute, had he died intestate, to the exclusion of his half brothers, and since a bequest to \\u201crelations\\u201d includes only those entitled to take under the statute of distributions, appellees contend that they are entitled to the whole estate to the exclusion of the half brothers. If that be true, and if it be held that the meaning of a bequest to \\u201crelations\\u201d would vary according as local statutes of distributions may vary, so that the word \\u201crelations\\u201d would include a certain class under one statute, and a different class under another statute, the devise in question is not to \\u201crelations,\\u201d but to \\u201cblood kin,\\u201d and not only to \\u201cblood kin,\\u201d but \\u201call my blood kin in Louisiana and Texas,\\u201d which conveys quite a different meaning, as would be commonly understood from a devise to \\u201crelations\\u201d simply.\\nIt is well settled that, where a bequest is to \\u201crelations,\\u201d and the testator has fixed, in the will, a test by which the number of relations, intended by' him to receive his estate, can be ascertained; or where a testator has shown an intention in his will to comprehend relations who would not be entitled to take under the statute of distribution, his intention will prevail, and those entitled to take under the will, will not be limited to those who would be entitled to take under the statute of distribution. 1 Koper on Legacies, 112. Where it is stated that a legacy to such relations of the testator as are not worth five hundred pounds would entitle all relations to the testator, who could show that their property is within the sum mentioned, to share in the legacy, without regard to the limit prescribed within the statute of distribution. See, also 4 Vesey, Jr. P., 719, note 5. \\u2022\\nIn Greenwood v. Greenwood, 1 Brown\\u2019s C. 0., 32, a testatrix bequeathed her estate to be divided between her ''''relations\\u201d \\u25a0 \\u2014 i. e., the Greenwoods, the Everits, and Dows. The Events, although not related to the testatrix, within the statute of distribution, were permitted to take jointly with their next of kin, the Greenwood\\u2019s and the Dows, on the ground that the word \\u201crelations\\u201d is explained by the context of the will, and extended beyond the confines of the statute. In that case the testatrix named a family not related to her within the statute of distribution, and thereby manifested her intention to go beyond the confines of the statute. So Lusby, by the devise in question, manifested his intention to go beyond the confines of our statute by devising his estate to \\u201call his blood kin in Louisiana and Texas.\\u201d The beneficiaries intended by a will may be ascertained as well by a description of their locality as by name.\\nAs Lusby mentioned the persons intended by him to take under his will as being in Louisiana and Texas, and as his two half brothers and one nephew lived in Louisiana, and the rest of his blood kin lived in Texas, it must be presumed that he Avas aware of their locality; and, therefore, as he knew that only three of his blood kin were in Louisiana, and that two of these were his half brothers, he surely intended to include them, when he said \\u201cto all my blood kin in Louisiana and Texas.\\u201d\\nThe intention of the testator, in the construction of a will, is the great criterion, and courts strain to discover his intention. Rules of testamentary construction have but a limited and subordinate application. Certain words and expressions, as given above, Avhen standing unexplained, acquire from precedents a someAvhat definite meaning; but if it could be once a question, whether or not technical phrases should conclude a testator\\u2019s intention, it is no longer doubtful that his intention is paramount. The same literal expression in two wills might demand the same construction; but unless the two wills are identical throughout, and dispose of similar fortunes under similar circumstances, a precedent fails of its full force. Schotler on Wills, 'sec. 462; Boston, etc., Go. v. Goffin, 8 L. R. A., 740; Masterson v. Townsend, 10 L. R. A., 816; Vcmnerson v. Culbertson, 10 Smed. & M., 150; Sorsby v. Vance, 36 Miss., 564; Tatum v. McLellan, 50 Miss., 1.\\nShields & Boddie and W. S. & Farrar L. McGain, for appellees.\\nWe insist that the meaning of the will is the same as if it bad been couched in these words: I, J\\\". C. Lusby, declare this to be.my last will and testament: I constitute my friend, W. M. Paine, my executor, believing him to be the most suitable and competent person to take care of my creditors and wind up my affairs, and I direct that no bond be required of him. My heirs live in Louisiana and Texas, and I desire that my prop.erty be divided among them as if I had died intestate.\\nThe original instrument shows on its face that it was drafted by one of very limited education, and it is obvious that the word \\u201ckind\\u201d is the word \\u201ckin\\u201d misspelled. As all the heirs, both of the whole blood and of the half blood, resided in Louisiana and Texas, the issue narrows itself down to the single question whether the word \\u201ckin,\\u201d as used in the will is, as we insist it is, the legal equivalent of the word heirs. It is evident that the sole object of the testator, as well as of the draftsman of the will in this particular case, was to name the person who should wind up the affairs of the testator. That being accomplished, the testator had no further will to express.\\nThe adjective \\u201cblood,\\u201d as used in the alleged will, seems to be meaningless. If a bachelor has kin other than blood kin, it is unnecessary, of course, for him to use any word in his will to qualify kin if he wishes them to take his property, since the statute does not give any part of a bachelor\\u2019s estate to those who are related to him by mere affinity.\\n\\\"Where a man does not mean anything by the use of a particular word in his will, it is a hopeless task for the court to undertake to extract the meaning of that word, and we really think that in the nse of the word \\u201cblood,\\u201d the testator in this case, meant nothing more than is implied by the word kin; bnt if any meaning whatever can be imputed to the word \\u201cblood,\\u201d it could only have been used to emphasize the idea that the testator wished his property to go to his heirs of the whole blood,as distinguished from those of the half blood. If he meant kindred of the whole blood as distinguished from those of the half blood, the phrase he used to express the idea is a very awkward one, we admit, but if \\u201cblood\\u201d as used in this will does not mean whole blood, then it does not mean anything.\\nWe think it will be agreed also that there is a common impression among laymen that one cannot have heirs if he has never had children, and in this case the word kin was doubtless used by the draftsman and the testator 'to avoid the, to them, apparent absurdity and incongruity \\u2022 of speaking of a bachelor\\u2019s heirs.\\nBut even if the testator had in mind as the object of his bounty some person or persons other than his legal heirs, the courts, in construing wills, have found it impracticable to give effect to any such general terms as \\u201crelatives,\\u201d \\u201ckin,\\u201d and the like. Whether we accept the orthodox view that He hath made of one blood all nations, of the more modern and less dignified theory that we are merely tailless specimens of the monkey family, that is to say, whether we accept the idea that all the people in Texas and Louisiana are descendants of the primeval pair, and hence are of kin to us all, or whether our ancestry is to be traced to a different source, it is none the less true that nearly every person has, and doubtless the testator in this case had, a large number of kinsfolk extending into ramifications of distant family connections, and the courts, for practical purposes, have found it to be absolutely essential to fix a limit beyond which they will not undertake to go in distributing the property of an intestate. The books tell us of cases in which the courts have been overwhelmed with people claiming to be \\u201crelatives\\u201d of a testator where he had made a provision for \\u201crelatives.\\u201d\\nThere is but-one safe and practicable rule, and that is to adopt the statute of descents- and distribution, and this seems to be the rule quite universally acted upon in such cases.\\nThe law is thus stated in 2 Woemer\\u2019s Am. Law of Administration, sec. 423: \\u201cA gift to 'relations/ without a particular specification, is necessarily construed as a gift to- those who would take the estate in case of. intestacy, because in its widest sense it would include every degree of consanguinity and thus render the gift void for uncertainty.\\u201d\\nPage on Wills, sec. 529, says: \\u201cThe popular meaning of the word 'relatives/ or 'relations/ is that of all persons within any degree of relationship whatever of consanguinity or affinity. But when the word 'relations\\u2019 is used in a will to denote a class of beneficiaries, it is settled that the law imposes a technical meaning and not the popular one. The primary meaning of the word 'relatives/ or 'relations/ is such persons as would take under the statutes of descents and distribution, if the testator had died intestate.\\u201d Jarman on Wills, 130 [972] ; 4 Kent\\u2019s Com., 537, notes; Beach on Wills, sec. 292.\\nIn Handley v. Wrightson, 60 Md., 198, the testator devised certain lands to his wife for life, which at her death were \\u201cto be equally divided between her near relatives and mine.\\u201d In construing this clause the court said: \\u201cThe capacity of those to take under a devise or legacy, who are described as 'relatives/ has been too long upheld by settled legal construction for legal uncertainty to attach to the term 'near relatives/ used by the testator in the will before us. In determining who, under this nomen collectivum, are entitled, and in what proportions, recourse, as a general rule, is had to the statute of distribution. 2 Jarman on Wills (5th Am. ed.), 661; 2 Wms. on Ex., 1003, and notes; 2 Bedfield on Wills (3d ed.), 85.\\n\\u201cIn Whilihorn v. Harris, 2 Vesey, Sr., 527, the bequest was to all and every person and persons who- are near relations to me. In Doe v. Over et al., 1 Taunton, 263, the testator gave his freehold estate to his wife for life, to be equally divided at her death among the relations on his side. In the first .case the legatees and in the second -the devisees, took under the statute of distribution.\\u201d\\nIn Drew v. Wakefield, 54 Me., 298, it is said: \\u201cWhen the bequest is to relations, the next of kin, according to the statute of distribution, are entitled to' the bequest.\\u201d\\nIn the matter of trusts, where property is given in trust to be distributed among the donor\\u2019s relations, the same rule applies.\\nPerry on Trusts, in sec. 256, says: \\u201cCourts have adopted the rule of the statute of distributions as a convenient rule in such cases, to prevent such gifts from being void for uncertainty.\\u201d\\nThe same author says, in sec. 699: \\u201cSo trusts for \\u2018poor relations\\u2019 have been considered charitable, and will be confined to such poor relations as are next of kin under the statute of distribution.\\u201d\\nIt is the settled construction of \\u00a7 1544, code 1892, the statute of descent and distribution, that brothers of the half blood are postponed to nephews and nieces of the whole bood. See cases cited in notes to \\u00a7 1544.\\nLeroy Percy, on same side.\\nWe are aware of the fact that all mankind are kin; that no limitation can be placed upon the remoteness of such kinship; that the fiftieth cousin is embraced within this comprehensive term as well as the twin brother, although the fact of Iqnship may be much more difficult to establish in the one case than in the other. If all of this class are, as contended by the appellants, entitled to participate per capita in the distribution of an estate, the number of such class who will come forward as claimants 'to establish their kinship with the \\u201cdear departed,\\u201d will very largely be governed by the size of the estate to be parceled out. The expense and trouble of proving a remote degree of kinship that would be too great to bear where the prize is small, would be cheerfully borne where an estate of magnitude was to be partitioned. For Lazarus, a brother, might not claim kinship; for Dives, his kin, would be more numerous dead than his acquaintances alive. Within two years, in the case of Barnett v. Handy, Amb., 708, four hundred and fifty-six mourning kin came forward. As a matter of fact, under a per capita 'distribution, more than forty-seven have already developed in this case. But the realization of the indefiniteness of such devisees has long since forced the courts to specifically define the meaning of such a term. As succinctly stated in 2 Jarman on Wills (4th Am. ed.), 33, \\u201cThe word relations, taken in its widest extent, embraces an almost illimitable range of objects; for it comprehends persons of every degree of consanguinity, however remote, and hence, unless some lines were drawn, the effect would be that every such gift would be void for uncertainty. In order to avoid this consequence, recourse is had to the statutes of distribution; and it has long been settled that a bequest to the relations applies to the person or persons who would take by those statutes;\\u201d and the learned author goes on to say that while formerly this was doubted as to real estate, that in the case of Thwaites v. Over, 1 Taunton, 263, the doctrine has been established likewise to real estate, and the author adds, \\u201cThe rule which makes the statute of distributions the guide in these cases is not departed from on slight grounds,\\u201d and that the statute of distributions not only determines the objects of the devise, but also regulates the proportions in which they take, the next of kin taking per stirpes, not per capita; and from the case cited in 1 Taunton this definition of the words-kin, blood kin, relations, has been followed by the unbroken current of decisions in England and in this country, and for centuries the phrase has not been a vague or indefinite one, but has been crystallized by numerous judicial decisions into a term, the meaning of which is clearly understood. For the English cases so deciding, see notes to Jarman, supra; and some of the American cases so holding-are, Drew v. Walcefield, 54 Maine, 291; Handel v. Waitman, 60 Md., 198; Boss v. Boss, 25 Conn., 307; Varrell v. Wendell, 20 N. H., 431; 2 Williams on Executors (5th ed.), 1003, note; 2 Redfield on Wills, 410, 421; 20 Am. & Eng. Enc. Law (1st ed.), 739, note; 1 Roper on Legacies, 326; Page on Wills, 529. '\\nWas this rule of construction adopted for the purpose of carrying out the intention of the testator? Not at all, except to the extent of carrying out his intention to die testate. It was adopted ex necessitate rei by the courts, because, otherwise, the decedent would die intestate by reason of the impossibility of ascertaining the persons who would take; in fact, as stated by Redfield, 2 Redfield on Wills, 410, \\u201cIn a large proportion of the English cases where this rule has been applied, it has evidently defeated the intention of the testator.\\u201d Some rule had to be adopted; some specific definition had to be attached to the phrase, and this significance was attached to it by earlier adjudications, and has been followed until the person now using it is using a term freed from all uncertainty and ambiguity; and, as stated by Lord Chancellor Burleigh, in the case of Bayner v. Mobray, 3 B. C. O., 234, \\u201cWhen once a rule has been laid down, it is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance.\\u201d\\nArgued orally by B. B. Campbell, for appellant.\", \"word_count\": \"5608\", \"char_count\": \"31422\", \"text\": \"Whitfield, O. J.,\\ndelivered the opinion of the court.\\nJ. O. Lusby, a resident of Washington county, of this state, died therein on the 22'd of October, 1900, possessed of an estate worth from $75,000 to $100,000. He was never married, and had neither father nor mother living at the time of his death, but during his life he had two sisters of the whole blood and two brothers of the half blood. His two sisters of the whole blood died before he did, each of them leaving five childrefi. Two of these children afterwards married, and had children, and then died, one of them leaving a child, and, the other, three children; so that at the time of his death he left surviving him nephews and nieces, grandnephews and grandnieces, as descendants of his sisters of the whole blood, who are the appellees in this case, and two brothers of the half blood, who are the appellants. The two half brothers and one of the nephews resided in Louisiana, and all the rest resided in Texas. On the day of his death he made his last will and testament, disposing of his entire estate in the first item thereof, which is in the following language\\\"I give, devise, and bequeath all the property, real and personal, mixed and choses in action, I may own at my death, wherever located and situated, to all my blood kind in Louisiana and Texas. Mr. Spink's children in Texas heirs I do not know.\\\" There are but two other items in his will, and they relate alone to the appointment of an executor and the payment of his debts. The will was probated in Washington county, and the nephews and nieces and grandnephews and grandnieces of the testator filed their bill in the chancery court of said county against the two half brothers, claiming that they are entitled, under said will, to the whole of said estate to the exclusion of the half brothers, and asked the court to construe said will, and to cancel the claim of the two half brothers as a cloud on their title. The two half brothers answered the bill, claiming that they were entitled to share per capita in said estate. Thereupon the case was heard on bill and answer, and the court decreed that the nephews and nieces and grandnephews and grandnieces of the whole blood were entitled to said estate to the exclusion of the two half brothers, and from that decree the two half brothers have appealed.\\nThe question for solution here presented is this: What did the testator himself mean by the words \\\"all my blood kind in Louisiana and Texas?\\\" Whom did he intend to take his estate ? The word \\\"kind\\\" was, of course,',used for \\\"kin.\\\" It is doubtless true that the word \\\"kin\\\" standing alone in a will, without anything else to show what kin the testator meant, has received an interpretation supported by innumerable decisions to the effect that the kin meant are such kin as could take under the statute of descent and distribution. This is crystallized, but it must be remarked that it is operative alone in those wills where the testator has used no other words from which the court can determine what particular persons he meant by the mere word \\\"kin.77 It is just as thoroughly settled as the rule itself that wherever there are other words in the will which disclose with reasonable certainty to the court what particular persons the testator meant by the word \\\"kin,77 there, his intent being clear, and what he meant by use of the word \\\"kin77 being thus made clear, the court will, of course, give to the word \\\"kin77 the meaning the testator attached to it, whether that be the same as or different from the technical signification the courts have given the word \\\"kin77 when standing alone and wholly unexplained. The object always sought in construing a will is the ascertainment of the testator's intention. That intention must be ascertained from the words used in the will itself, since it is the function of courts merely to interpret, not to make, wills. It is, however, always competent to look to the situation of the testator with respect to his estate, his environment as related to his estate, or his devisees or legatees at the time of the making of the will. What was that environment in this case ? Here was a testator having no father nor mother nor wife or children, leaving an estate of about $100,-000 in value, and having nieces and nephews, grandnieces and grandnephews of the whole blood in the state of Texas, and having also one nephew of the whole blood and two brothers of the half blood in Louisiana, at the time of his death and of the execution of this will. He knew what estate he had. He was aware that the kin to whom he proposed to leave his estate were those living in Louisiana and Texas. He had in mind the fact that only one nephew of the whole blood and that two brothers of the half blood lived in Louisiana at the time. We must deal with him, situated as he was, with the knowledge that he had, put ourselves as far as possible in his place, and, having done that, see if there be in the will language showing what he meant by the use of the words \\\"all my blood kind in Louisiana and Texas.\\\" The wiS^ls \\\"all my blood kind\\\" apply as well to the phrase \\\"in Louisiana\\\" as the one \\\"in Texas,\\\" and for the purposes of this case we m\\u00e1y read the clause as if written \\\"all my blood kin in Loy\\u00e1siana.\\\" It is true, \\\"kin\\\" are, of course, \\\"blood kin,\\\" and that the same construction will obtain as if he had said \\\"all'iny kin in Louisiana.\\\" But we cannot concur with counsel for appellees that there is no significance in the words \\\"all my kin,\\\" in this connection. Considered in a purely abstract way, the phrase \\\"all my kin\\\" is doubtless equivalent to the phrase \\\"my kin.\\\" But when we take into consideration the fact that the testator, who used the phrase, \\\"all my blood kind in Louisiana,\\\" knew that he had but one person of the whole blood kin to him in Louisiana, it is inconceivable that he would use the phrase, \\\"all my blood kind in Louisiana,\\\" to designate simply one person. There was more than one person of his kin in Louisiana. There were three \\u2014 two, indeed, of the half blood, but nevertheless \\\"kin,\\\" and \\\"blood kin.\\\" And it is inconceivable that the testator, with these facts in mind, should have made use of the words, \\\"all my blood kind in Louisiana,\\\" to designate just one of the three persons. \\\"All\\\" is a term of plural significance, and it is incongruous to apply it in this will as intended to designate but one. We think it is clear that this testator meant to embrace the two half-brothers within the scope of the words, \\\"all my kind in Louisiana.\\\" It would be useless to cite authorities on the one view or the other, in our opinion. They are admirably collected by the very learned counsel of the respective parties. If Ave were to write pages, we could not make the ground of our opinion any clearer; that ground being that this testator, knowing that he had two brothers of the half blood and only one nephew of the whole blood \\u2014 three persons \\u2014 in Louisiana, must have meant the word \\\"all\\\" to have its usual plural significance, and so to embrace the three, and cannot reasonably be held to have used this word \\\"all\\\" as designating just one person. It is true enough, if he had had but the one nephew of the whole blood in Louisiana, the use of the words, \\\"all of my blood kind in Louisiana,\\\" would have applied to such a one; but that is not the same thing when we come to the matter of ascertaining the intention of the testator as making the word \\\"all\\\" \\u2014 a word of plural significance \\u2014 designate one of the three, when three were known to fulfil the condition of residence in Louisiana, by the testator, when he made the will. It advances the argument no whit to state \\u2014 what cannot be denied \\u2014 that the mere word \\\"kin,\\\" standing by itself, unexplained, is universally held to mean such kin as can take under the statute of descent and distribution, if the case be one in which the court, putting itself in the testator's place, can find from other words used in the will that his intention was that the word \\\"kin\\\"should have, not its technical signification, but a meaning which he gives to it himself by the use of such other words. This testator localizes and restricts the kin \\u2014 none but those who live in Louisiana and Texas can take. ILe then says that all such kin in Louisiana and Texas shall take. He has in mind the purpose to exclude, and' he uses apt words of locality to so exclude. If he had meant still further to shut out particular persons, would he not have used the very simple method of naming the one nephew of the whole blood in Louisiana ? Nothing was easier. On the contrary, his purpose was to give to all his kin \\u2014those localized in these two states \\u2014 his property, and we cannot adopt the construction which would shut out the two half-brothers by making the word \\\"all\\\" plural in its significance, and evidently used by him comprehensively, point singly to one person merely, where three fit the description. We think this is the natural, obvious, and reasonable interpretation of this will. As well said by Hr. Schouler, in his work on Wills (sec. 4-63) : \\\"Authority in the mere verbal interpretation of wills carries no great weight, especially if the words and tenor of the whole will are not absolutely identical. The construction given to a verbal expression in one will is no positive criterion for all wills containing the same expression.\\\" We heartily approve the wisdom of Mr. Justice Miller's observations in Clarke v. Boorman's Ex'rs, 18 Wall., 502 (21 L. Ed., 904), where he says: \\\"Of all legal instruments, wills are the most inartificial, the least to be governed in their construction by the settled use of technical legal terms; the will itself being often the production of persons not only ignorant of law, but of the correct use of the language in which it is written. Under this state of the science of the law applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much more assistance than the application of natural reason to the language of the instrument, under the light which may be thrown upon the intent of the testator by the extrinsic circumstances concerning its execution, and connecting the parties and the property devised with the testator and with the instrument itself.\\\" We also approve of Mr. Justice Taney's remarks, in Bosley v. Wyatt, 14 How., 390 (14 L. Ed., 468), where he says: \\\"No two wills probably were ever written in precisely the same language throughout; nor any two testators died under the same circumstances in relation to their estate, family, and friends; and it would be very unsafe, as well as unjust, to expound the will of one man by the construction which a court of justice had given to that of another, merely because similar words were used in particular parts of it.\\\" Here is a man evidently dealing most comprehensively. He devises a v.ery large estate, of the value of nearly $100,000, in one sentence, with no particular directions. His whole will consists of this devise, in one sentence, and the direction that his debts should be paid, and a nomination of an executor. Manifestly, he dealt in a most sweeping and comprehensive way with his property, without particular izing; and just so lie designated who should take. He has but two thoughts in view \\u2014 to exclude all his kin except those residing' in Louisiana and Texas, and includeall those thus grouped within his bounty. He knew that there were three in Louisiana, and so he does not name the one of the whole blood, which would have been easy to do, but uses the broad, comprehensive word \\\"all,\\\" of plural significance, meaning, as we think, clearly to apply it to the three, and not meaning to apply it illogically to but one.\\nReversed and remanded.\"}"

miss/374307.json

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+"{\"id\": \"374307\", \"name\": \"Mack Stuart, Executor, et al. v. Elizabeth Stuart Robinson\", \"name_abbreviation\": \"Stuart v. Robinson\", \"decision_date\": \"1902-03\", \"docket_number\": \"\", \"first_page\": \"290\", \"last_page\": \"297\", \"citations\": \"80 Miss. 290\", \"volume\": \"80\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:44:27.227106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mack Stuart, Executor, et al. v. Elizabeth Stuart Robinson.\", \"head_matter\": \"Mack Stuart, Executor, et al. v. Elizabeth Stuart Robinson.\\n1. Wills. Pecmula/ry legacy. Charge on land.\\nWhere a testatrix, while on her death bed, knowing that she had and would leave neither personal property nor money, executed her will, bequeathing a pecuniary legacy, and died two days afterward, leaving only a valuable real estate, the legacy will be a charge on the land, although that be specifically devised.\\n8. Same. Construction. Surroundings of testator.\\nThe surroundings of a testator at the time of the execution of his will may be considered in determining whether lands are charged with pecuniary legacies.\\nRrom the chancery court of Lincoln county.\\nHon. Henry 0. Conn, Chancellor.\\nMrs. Robinson, appellee, was the complainant in the court below; Stuart, executor, and others, appellants, were defendants there. The suit was instituted by Mrs. Robinson, a legatee under the will, to subject lands to.the payment of a legacy.\\nThe late Miss Mary Emily Stuart, an aged maiden, who, in her lifetime lived and who died at Brookhaven, while on her deathbed made a last will and testament in these words:\\n\\u201cState of Mississippi, Lincoln county. I, Mary Emily Stuart, of Lincoln county, Mississippi, of sound and disposing mind and memory, make this my last will. I will, devise, and bequeath all of my estate and property as follows: To my cousin, Mrs. Elizabeth Stuart Eobinson, of Washington, D. C., daughter of my uncle, James Stuart, ($500) five hundred dollars in loving remembrance. To my niece, Mrs. Martha Stuart Cochran, of Waco, Texas? a tract of Eobinson county, Texas, land, known as a part of the P. S. McNeill tract, consisting of eight hundred and forty acres.\\n\\u201cThere are relics here belonging to the Cope family, which I will describe and trust to Mrs. Gussie Stuart to hand over to Mrs. Cochran. There is a small silver spoon, one hundred years old, which came out of my grandfather Stuart\\u2019s family, which is all I have of that table silver. There is one pin cushion, mounted in silver, dated 1184, formerly owned by Jennie Wilkins White, my grandmother; also one black Lama shawl, lama lace, which belonged to Mrs. Criswell, which is to be given to Mrs. Cochran. I have a book written by college students, \\u201cAddresses and Lectures to the Young,\\u201d which I gave to Mrs. Cochran. Should there be any thing specially among the heirlooms that Mrs. Kate Cooney Abbott would specially like to have, I want her to have it.\\n\\u201cTo my dear and beloved friend, Mrs. Mary Jane Grafton, widow of James Grafton, of Lincoln county, Mississippi, I leave to her the place known as the \\u2018Abells place,' situated near Montgomery, in Lincoln county, Mississippi, in loving remembrance. I hereby appoint Mack Stuart, of Beauregard, Mississippi, my beloved cousin, as executor of my estate without bond.\\n\\u201cTo my beloved cousin, George Eobert Stuart; my entire property situated in the town of Brookhaven, Lincoln county, Mississippi. In the event of his death the property is to be given to my beloved cousin, Jennie Yee Stuart. In case both should die, the property is to belong to Mack Stuart or his heirs. To Mrs. W. S. Bowen I leave my iron bedstead and the furniture in the room. To Mrs. East, wife of the Reverend Mr. East, who so kindly nursed me, I leave my piano. To Mrs. R. 0. Boone, my beloved friend, I leave the amount of fifty dollars to be paid at the convenience of the executor.\\n\\u201cI also request my executor to settle bills of Thomas Perkins, amounting to fourteen dollars and some cents; also my drug bill at Grafton\\u2019s Drug Store; also Doctor Johnson\\u2019s bill for services rendered me in professional capacity.\\n\\u201cThe said executor, Mack Stuart, shall at my death proceed to wind up the affairs of the estate as the will directs. [Eifty dollars to Mrs. East instead of the piano, and piano to Ida Keenan.]\\n\\u201cIn witness whereof, I have signed, published, and declared this instrument as my will, at Brookhaven, Lincoln county, Mississippi, this the 3d day of May, A.D., 1899.\\n\\u201cMary Emily Stuart.\\n\\u201cWitnesses: Mrs. Belle Larkin, Mrs. Jane Keenan.\\u201d\\nMiss Stuart, the testatrix, died on May 5, 1899, two days after the execution of the will, aud the will was duly proved and admitted to probate, and the executor named qualified as such.\\nThe bill in this case avers that at the time the testatrix executed the will, and at the time of her death, she had no money or personal property save the trifling articles mentioned in the will, which were entirely of inadequate value to satisfy the pecuniary legacies made by the will; that the testatrix knew when she made the will, and when she died, that the legacies could not be paid save by charging them on the land, because, as she well knew, there was no other source from which they could be paid; that it was the intention of the testatrix to charge the lands devised by her with the payment of the legacies, \\\"and that the lands were valuable, the Brookhaven lots alone being worth several thousand dollars. The defendants, now appellants, demurred to the bill, their demurrer was overruled, and they appealed to the supreme court.\\nA. G. McNair and McWillie & Thompson, for appellants.\\nIs complainant\\u2019s legacy charged on the real estate? We think not. This question must be determined from the will itself. There is no ambiguity in its terms; the doctrine contended for by appellee that the court must construe the will in the light of the testatrix\\u2019s surroundings has no application; that doctrine applies only when there is some doubt as to the meaning of the terms of the will. This is announced in the case of Gilliam v. Chancellor, 43 Miss., 431, so much relied upon by appellee. The will itself in this case must control,, and the averments of the bill which are in conflict with it count for naught.\\nWe have therefore a case in which a money legacy is given to the complainant; specific real estate is given to the devisees, defendants. It turns out that there is no money, and no source from which it can be derived. It cannot be said with any more force, for instance, that the Abells\\u2019 place, devised to Mrs. Grafton, is to be subjected to Mrs. Robinson\\u2019s money legacy, than it could be said, had the testatrix not owned the Abells\\u2019 place, or if there had been no such place, but had been $500 in money on hand at the death of the testatrix, that the default in Mrs. Grafton\\u2019s devise should be made good by encroachment upon Mrs. Robinson\\u2019s legacy. The thing is as long as it is broad. In order to make a. money legacy a charge on real estate, specifically devised, if must appear from the will, either by express direction to that effect or by clear implication from the instrument taken as a whole, that the testator so intended. The court will not'find any better discussion of this question than the opinion cf Chancellor Kent in Lupton v. Lupton, 2 Johns. Ch., 512. See the case with notes. 1 N. Y. Ch. Rep. (L. ed.), 614. See, also, Knotts v. Bailey, 54 Miss., 235.\\nThe will in. this case does not blend the real and personal estate as one fund in the residuary clause or otherwise. None of the devises of land are on condition that the legacies are to be paid, and there is no residuary legatee or devisee. The direction in the last clause of the will that the executor should \\u201cproceed to wind up the affairs of the estate as the will directs,\\u201d does not aid Mrs. Robinson. It would have been his duty to have done so without the provision.\\nP. Z. Jones, for appellee.\\nWe recognize the general rule that legacies are payable primarily out of the personal estate, and that generally when the personal estate proves insufficient, legacies abate; that they are not chargeable on the land except by express terms or by necessary implication. It will be noted that this is not a case where the insufficiency of the personal estate arose after the death of testator. It existed prior to her death, and prior to the making of the will, and at the time of its publication. The first provision of the will contains this clause: \\u201cI will, devise, and bequeath all my estate and property as follows,\\u201d and the very next item gives a pecuniary legacy to appellee.\\nThe question arises as to what the testatrix meant by \\u201cmy estate and property.\\u201d If at the time of the making of the will she had both real and personal property, does not the use of the terms \\u201cmy estate and property\\u201d blend her personal and real estate in one common mass; and if this be true, is not the legacy'chargeable on the lands the same as though there were a blending of the two estates in the residuary clause of the will? .If she owned no personal estate at the time of the making of the will, then she intended to refer to her real estate.\\n' Counsel for appellant contends that parol evidence is inadmissible .because the will is unambiguous; that parol evidence cannot create an ambiguity and then solve it, for this would be, they. say, to substitute for the will actually made by the testator, one which the court thinks she intended to make. They fail to observe a very important distinction between the interpretation of the written words of. the instrument and the direct evidence of intention on the part of the testator.\\nIt is said in Schlottman v. Hoffman, IS Miss., 199, \\u201cIt is a well settled canon for the construction of wills that the court will take into consideration the attending circumstances of the testator, the quantity and character of his estate; the state of his family, and all the facts known to him which may be reasonably supposed to have influenced him in the disposition of his property. But when viewed in this light and from the standpoint of the testator, if the language of the will cannot be reasonably so construed as to carry out his discovered purpose, the will, and not the intent of the testator, must control. In other words, if the will as made, may without variance to its terms be so construed as to effectuate the purpose of the testator as disclosed by the will and attending circumstances, the court will so construe it.\\u201d\\nThe question of patent and latent ambiguities arises in this matter. When the will is considered in connection with the surrounding circumstances at the date of its execution, doubt arises as to the intent of the testator. The presumption is that the legacy was to be paid out of the personal estate, but the facts and circumstances show that there was no personal estate; then was it not the intention of the testatrix that this legacy be paid out of the real estate ? The terms used in the will and its language are applicable alike to either personal or real estate, the words used being, \\u201cI will, devise, and bequeath all my estate and property as follows.\\u201d Estate and property are of three kinds, real, .personal, and mixed. And in arriving at the intention of the testatrix it becomes necessary to ascertain the condition of her estate at the time of the making of the will. It is alleged in the bill that the testatrix had no money and no personal property at the time of the making of the will. The demurrer, of course, admits that this allega tion is true, but the counsel contends that it makes no difference whether she had personal property or not; that the legacy fails unless there is personal property, and can in no event, under the terms of this will, be charged against the land. In the e^se of Schlotiman v. Hoffman, supra, three kinds of ambiguities are mentioned, an intermediate class partaking of the nature of both patent and latent ambiguities; when the words are all sensible, and have a settled meaning, but at the same time admit of two interpretations according to the subject-matter in the contemplation of the parties. Our court, however, assigned this class of ambiguities to that of latent ambiguities. Ambiguity in the case at bar, if any exists, is of the nature of that here suggested. The subject-matter in the contemplation of the testatrix at the time of the making of her will was the disposition of her estate. This estate consisted mainly and almost entirely of lands. The main purpose and pole star in the construction of a will is to ascertain the intention of the testator, and in doing this it seems to be held by all the authorities that che court should place itself \\u201cin his (the testator\\u2019s) situation to see things as he saw them and to apply his language as he understood and intended it.\\u201d This is not done to vary the terms of the will, or contradict it in any particular, but to ascertain its true meaning. Page on Wills, sec. 823. Ib. sec. 816 et seq. Bingall v. Volz, 16 L. R. A., 321; Echford v. Echford, 26 L. R. A., 370; Whitcomb v. Rodman, 28 L. R. A., 149; Sherwood v. Shewood, 30 Am. St. Rep., 757; Gilliam v. Chancellor, 43 Miss., 437.\\nA case very similar to the one at bar has been decided recently by the supreme court of Missouri. It is Lutz v. Clotilde, 50 L. R. A., 847. The question of patent and latent ambiguities is not discussed. No fine sophistry is indulged in. There is a review of a great many,of the authorities on this question and the result reached is adverse to the contention of the appellants in this-case. It approved from Hoyt v. Hoyt, 85 N. Y., 142, this language: \\u201cIt is assumed that no man in making a final disposition of his estate will make a legacy save with the honest intention that it shall be paid. Hence it is seen from the provisions of the will prior to the legacy that the testator must have known that he had already disposed -of his personal estate, and there would not be enough left to pay the legacy, and the bare fact of giving a legacy indicates an intention that it .shall be made from the real estate.\\u201d\", \"word_count\": \"2556\", \"char_count\": \"14360\", \"text\": \"Calhoon, J..,\\ndelivered the opinion of the court.\\nFrom the will in this record, which the reporter will publish in full, considered in the light of the surroundings of the testatrix at the time she made it, we conclude that her intent was that the money legacies were to be satisfied out of the lands specifically devised. This is not a case where a testator left money or personalty sufficient to satisfy pecuniary bequests. Miss Stuart had neither, and knew she had neither, and it cannot be supposed that, on her deathbed, only two days before she ceased to breathe, she had the purpose to perpetrate a ghastly joke. Clotilde v. Lutz (Mo. Sup.), 57 S. W., 1018; 50 L. R. A., 847; Davidson v. Coon (Ind.), 25 N. E., 601; 9 L. R. A., 584.\\nAffirmed.\"}"

miss/455.json

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+"{\"id\": \"455\", \"name\": \"Edwards v. Cash et al.\", \"name_abbreviation\": \"Edwards v. Cash\", \"decision_date\": \"1930-02-10\", \"docket_number\": \"No. 28362\", \"first_page\": \"507\", \"last_page\": \"514\", \"citations\": \"156 Miss. 507\", \"volume\": \"156\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:24:03.488016+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edwards v. Cash et al.\", \"head_matter\": \"Edwards v. Cash et al.\\n(Division A.\\nFeb. 10, 1930.\\nSuggestion of Error Overruled, Feb. 21, 1930.)\\n[126 So. 33.\\nNo. 28362.]\\nJ. F. Dean, of Senatobia, for appellant.\\nHerbert Holme's, of Senatobia, and Herbert Fant, of Sardis, for appellees.\\nAkgued orally by J. F. Dean, for appellant, and by Herbert M. Holmes and Herbert Fant, for appellee.\", \"word_count\": \"1600\", \"char_count\": \"9065\", \"text\": \"McGowen, J.,\\ndelivered the opinion of the court.\\n' The appellant, Rosie Edwards, presented for probate, in solemn form, a paper purporting to be the will of Charlie Johnson, deceased, and made the administrator of the decedent's estate and Annie Johnson, his wife and the only heir, parties to the proceeding, the latter being appellees here. Answer was filed, denying' that the paper was the last will and testament of the deceased; that it was executed as the statute requires, or that it was attested by credible witnesses \\u2014 in short, alleged that the paper was a 'forgery. The issue, being made up as above indicated, was submitted by the court to the jury, who returned a verdict for the contestants appellees here; and from the judgment entered on said verdict an appeal is prosecuted here.\\nThe will presented is as follows:\\n\\\"In the Year of Our Lord.\\nDecember 17, 1919.\\n\\\"I, Charlie Johnson in the county of Panola in State of Mississippi. Being of sound mind and memory, and understanding do make my last will and testament in manner and form following first I give devise an bequeath to my wife Annie and my Neath Rossie Edwards all of my possession or estate to be divided equal.\\nCharlie X Johnson.\\n\\\"witness Lonza Lee Edwards\\n\\\"Mahala. Tankson\\\"\\nThe evidence shows that Charlie Johnson, a negro, died in January, 1929, and left a considerable estate. The proponent, Rosie Edwards, was Johnson's niece, and had been reared by him. Johnson executed the will mentioned on the day of his marriage to the contestant, Annie Johnson, and' at that time Rosie Edwards was also married.\\nThe names of the persons who signed themselves as attesting witnesses are Lonza Liee Edwards, a stepson of the proponent, and Mahala Tankson. Mahala Tankson wa.s served with process to attend the court as a witness a few days before the convening of court, but did not appear, and no delay of the trial of the cause was asked on that account.\\nBen Edwards, a brother of Lonza Lee Edwards, testified that he was present when Charlie Johnson executed the will, and saw the witnesses named sign it, bnt that he did not sign as a witness, because he could not write his name.\\nLonza Lee Edwards was called as a witness in July, 1929, and stated on the trial of the case at that time that he was twenty-one years of age, but that when the will was executed he was only twelve years old. When objection was raised by counsel for contestant as to this witness' credibility or competency as an attesting' witness to the execution of the will, the court reserved a ruling, hut, at the conclusion of all the evidence, it offered to counsel on both sides to pass on all reservations made during the trial, and did pass upon several. Upon asking counsel if they had any further objections upon which it should pass, no response was made.\\nCounsel for appellant, proponent in the court below, secured an instruction in the language of the statute as to execution of wills, with the following further statement: \\\"The court further instructs the jury that the word credible means competent and the question of competency relates to the time of the attestation and that the jury are the sole judges of whether or not the evidence preponderates in establishing whether the witness to the will was competent or credible 'on December 17, 1919, when said will is alleged to have been executed.\\\"'\\nCounsel for appellees, the contestants in the court below, procured from the court similar instructions.\\nWe do not think it is necessary to consider the other assignments of error, as no new propositions of law are presented, and they are without merit. The assignment which we shall consider is ' the court erred in submitting to the jury the question of the competency of a witness when that is the sole province of \\\\the judge. That the court cannot delegate its power to determine this question has been settled so long and so often that it is almost useless to submit authorities on that point.\\\" Let it be remembered that the witness when presented to testi fy in the case was twenty-one years of age, and no question of his competency as a witness to. deliver evidence in a trial was raised. The precise question as we understand the record, is that, at the time of the execution of the will, one of the attesting witnesses was a. child under fourteen years of age \\u2014 about twelve years old at the time of attesting; that the presumption was that he was incompetent to testify as a witness or attest a will. This presents a very interesting and serious question, as the appellant did not offer evidence in support of the witness' competency save his own statement as a witness on the witness stand nine years, after he had attested the will as a witness, and when he was under fourteen years ' of age. No evidence was offered by others who knew him at that age as to his ability, at that time, to apprehend facts, remember them, truthfully state them, and his appreciation of the solemnity of his oath as a witness at that tender age.\\nCounsel for appellant, the proponent here, was offered an opportunity by the court below to have this precise question which is raised here presented there. For reasons best known th themselves, counsel on both sides did not avail themselves of the opportunity to have the court pass upon this question, and, consequently, counsel for appellant cannot complain here because he secured instructions submitting the competency of the attesting witness as such to the jury- \\u2014 in other words, if error was committed, and, we -do not intimate any decision on that question, counsel for the appellant, by the requested instruction, induced the court to submit the question to the jury, thereby waiving any right to complain here on appeal ; nor can complaint be made because the court granted similar instructions to the contestant. The case was tried by the jury, as counsel- requested and desired it, and, having lost his case, he cannot now complain here of an alleged error which was induced and procured at the hands of the court by his own request.\\nCounsel cites the case of Peters v. State, 106 Miss. 333, 63 So. 666, in which this court held, on this question, that there must be a capacity to understand questions put, and to form and express intelligent answers, and there must also be a sense of moral responsibility, a consciousness of the duty to speak the truth, and, further, that the question of the capacity of a witness to testify is primarily a question for the judge, and his decision will not be reversed on appeal, unless it is clearly erroneous. In this case, it was the question of the competency of a witness six years of age offered as a witness; and this, and the other cases cited by counsel, unquestionably present the law, but the question here presented is entirety different, and counsel seem to appreciate that fact by requesting that this question be submitted to the jury for their determination.\\nIn the case of Liverpool Insurance Company v. Van Os, 63 Miss. 431, 56 Am. Rep. 810, which ivas cited in the case of Wilson v. Zook, 69 Miss. 700, 13 So. 351, Judge Cooper, speaking for the court, held that, where both the plaintiff and defendant in a case, in instructions granted by the court, invoke substantially the same rule of law for the guidance of the jury in determining their verdict, the fact that the rule so invoked is erroneous does not, in favor of either party, constitute a good ground for reversal of the judgment rendered. See, also, Clisby v. Mobile & O. R. Co., 78 Miss. 948, 29 So. 913; Yazoo & M. V. R. Co. v. Schraag, 84 Miss. 155, 36 So. 193; Illinois Cent. R. Co. v. Jones (Miss.), 16 So. 300, 301; Queen City Mfg. Co. v. Blalack (Miss.), 18 So. 800; Yazoo & M. V. R. Co. v. Williams, 87 Miss. 344, 39 So. 489. Both the appellant and appellee, in the court below, requested the court to submit the competency of Tjonza Lee Edwards as an attesting witness to the will to the jury, and the court granted their request; consequently they cannot complain of it here. But counsel states; in his brief that this quoted part of the charge was a modification by the court. It is not shown by the record to be a modification. If a party ask for an instruction, and the same be modified by the court, the rule is that, if such is used by the party requesting the instruction, he may not complain of the error in the modification thereof; and appellant therefore waived objection to the modification by accepting and using the same, and, further, the record must show the modification. See Y. & M. V. R. Co. v. Byrd, 89 Miss. 308, 42 So. 286; Williams v. State, 95 Miss. 671, 49 So. 513; Hardaway v. State, 128 Miss. 722, 91 So. 418.\\nWe find no reversible error in this record. Affirmed.\"}"

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+"{\"id\": \"6879265\", \"name\": \"Eddie McCOY, Jr. a/k/a Eddie W. McCoy, Jr. a/k/a Wayne McCoy a/k/a Eddie Wayne McCoy, Jr. a/k/a Eddie McCoy, Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"McCoy v. State\", \"decision_date\": \"2014-10-21\", \"docket_number\": \"No. 2013-KA-00198-COA\", \"first_page\": \"705\", \"last_page\": \"716\", \"citations\": \"160 So. 3d 705\", \"volume\": \"160\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:01:53.159330+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.\", \"parties\": \"Eddie McCOY, Jr. a/k/a Eddie W. McCoy, Jr. a/k/a Wayne McCoy a/k/a Eddie Wayne McCoy, Jr. a/k/a Eddie McCoy, Appellant v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Eddie McCOY, Jr. a/k/a Eddie W. McCoy, Jr. a/k/a Wayne McCoy a/k/a Eddie Wayne McCoy, Jr. a/k/a Eddie McCoy, Appellant v. STATE of Mississippi, Appellee.\\nNo. 2013-KA-00198-COA.\\nCourt of Appeals of Mississippi.\\nOct. 21, 2014.\\nRehearing Denied March 17, 2015.\\nOffice of State Public Defender by George T. Holmes, Hunter Nolan Aikens, attorneys for appellant\\nOffice of the Attorney General by John R. Henry Jr., Laura Hogan Tedder, attorneys for appellee.\\nBefore GRIFFIS, P.J., MAXWELL and FAIR, JJ.\", \"word_count\": \"5198\", \"char_count\": \"31037\", \"text\": \"MAXWELL, J.,\\nfor the Court:\\n\\u00b6 1. Eddie McCoy was convicted of possession of cocaine with the intent to distribute. The charge came after officers found 2.7 grams of cocaine, small plastic bags, scales, a gun, and brass knuckles in his girlfriend's apartment.\\n\\u00b62. On appeal, McCoy challenges the admission of this evidence. He argues it was unlawfully seized in violation of his Fourth Amendment rights. But Fourth Amendment rights are personal. And here McCoy failed to establish that his Fourth Amendment rights were violated. Instead, at the suppression hearing, McCoy stressed that he did not stay with his girlfriend in the apartment. Thus, he failed to show he had a legitimate expectation of privacy in the apartment. Additionally, we find the search was justified for two other independent reasons \\u2014 exigent circumstances and consent. So the drug evidence was properly admitted.\\n\\u00b63. McCoy also challenges the sufficiency of the evidence. He suggests the State failed to prove beyond a reasonable doubt that he possessed the drugs. To prove constructive possession, the State had to show McCoy knowingly exercised control over the drugs. And McCoy claims that, since he did not own or exclusively control the apartment, the State could not prove he knowingly controlled what was inside. But when McCoy, who was in the apartment at the time, realized police officers had knocked on the door and were interviewing his girlfriend, he broke for the bathroom and tried to slam the door. When officers followed, they found him hovering over the trash can where cocaine and baggies were later found. From this, combined with scales and a pistol found near his clothes in another room and the more than $1,200 in cash found in his pocket, we find a reasonable juror could conclude McCoy knowingly possessed cocaine intending to distribute it.\\n\\u00b6 4. Because we also find McCoy's right to a speedy trial was not violated and his claim of ineffective assistance of counsel cannot be evaluated on direct appeal, we affirm his conviction and sentence.\\nBackground\\nI. Events Leading to Arrest\\n\\u00b6 5. A confidential informant told the Hattiesburg Police Department that McCoy was selling drugs out of unit A-7 in Pineview Apartments. So officers went to the apartment for a \\\"knock and talk.\\\" This investigative method involves a knock on the door and a request to interview the resident. Sometimes this leads to a search of the premises if the resident consents.\\n\\u00b6 6. When the officers knocked, McCoy's girlfriend, Chante Robinson, answered the door. Chante lived in the apartment with her mother, Cynthia Robinson, who leased the apartment. While the officers were talking with Chante, McCoy walked into the living room. Officers noticed McCoy had his hands shoved into his pockets.\\n\\u00b6 7. When the officers asked if McCoy would speak to them too, McCoy darted to the bathroom and tried to shut the door. Fearing McCoy was either retrieving a weapon or destroying evidence, the officers ran into the bathroom. They found McCoy hovered over a trash can and escorted him outside of the apartment to wait with another officer.\\n\\u00b6 8. At this point, Cynthia and Chante gave permission to search the apartment. And inside the bathroom where McCoy had fled, the officers found a bag of cocaine in the trash can. They also found a cup containing small empty baggies. In Chante's bedroom, they found a set of scales, a gun, and brass knuckles. They arrested McCoy. During the search incident to arrest, they found more than $1,200 in cash in his pocket. McCoy was later indicted for possession of 2.7 grams of cocaine with the intent to distribute.\\nII. Suppression Hearing\\n\\u00b6 9. Before trial, McCoy's counsel filed a motion to suppress the evidence found in the apartment. He argued the officers' search was illegal because the \\\"knock and talk\\\" was merely a pretext to get around the Fourth Amendment's warrant requirement.\\n\\u00b6 10. At the suppression hearing, the two officers who knocked on the door testified they did not believe, based on the informant's tip, they had sufficient probable cause to obtain a warrant, hence the \\\"knock and talk.\\\" See United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001) (recognizing the \\\" 'knock and talk' strategy as a reasonable investigative tool when officers seek to gain an occupant's consent to search or when officers reasonably suspect criminal activity\\\"); see also Kentucky v. King, \\u2014 U.S. -, 131 S.Ct. 1849, 1860, 179 L.Ed.2d 865 (2011) (recognizing law enforcement may have \\\"entirely proper reasons\\\" for not \\\"seeking] a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired\\\").\\n\\u00b6 11. But when officers knocked, and as they were talking to Chante, exigent circumstances led them to enter the apartment. Based on McCoy's reaction, they believed he was either heading for a weapon or destroying evidence. So they ran after McCoy to stop him. The officers did not search the premises until Cynthia gave her written consent to search the apartment and Chante gave her verbal consent to search her bedroom.\\n\\u00b6 12. Cynthia, and Chante also testified at the hearing. Cynthia confirmed that, though the officers' presence made her nervous, she gave her consent to search \\\"freely\\\" because she \\\"didn't have anything to hide.\\\" However, Chante's testimony was more equivocal. While she agreed she had let the officers in when she answered the door, she said she only gave her consent to search her bedroom because the officers threatened her. She was unwavering, however, on the fact McCoy did not stay in the apartment with her. One of the officers had testified that Chante told him McCoy had been living in the apartment for several months. But Chante disagreed. She claimed she never said McCoy stayed there.\\n\\u00b6 13. McCoy's grandmother was also called to the stand. She testified that McCoy stayed with her, not Chante.\\n\\u00b6 14. The circuit judge sized up this testimony and concluded McCoy did not occupy the apartment with Chante and her mother. Consequently, he had no Fourth Amendment rights in the property he could claim were violated. The judge also found the person who did have rights\\u2014 Cynthia \\u2014 had freely consented to a search. So he denied McCoy's motion to suppress.\\nIII. Trial\\n\\u00b6 15. At trial, the same two officers testified for the State. They described the events that led to the seizure of the drugs, baggies, scales, gun, brass knuckles, and cash. All of these items were entered into evidence.\\n\\u00b6 16. The officers testified how McCoy had immediately run to the bathroom when he saw them talking to Chante. And they described how he tried to block them from the bathroom, and how they had found the cocaine in the trash can he was standing over. Both officers also mentioned that, as they were escorting McCoy out of the apartment, he yelled at Chante to \\\"hold up for your shit.\\\" They interpreted this as McCoy's instruction to Chante to claim the cocaine was hers.\\n\\u00b6 17. At the close of the State's evidence, McCoy moved for a directed verdict, which was denied. McCoy's only witness was his grandmother, who testified McCoy lived with her and only \\\"ever[y] now and then\\\" stayed overnight with Chante.\\n\\u00b6 18. The jury found McCoy guilty of possession of a controlled substance with intent to distribute. The court sentenced him as a habitual offender to life in the custody of the Mississippi Department of Corrections without the benefit or possibility of parole or early release. See Miss. Code Ann. \\u00a7 99-19-83 (Rev. 2007). McCoy immediately appealed. On appeal, he is represented by the Indigent Appeals Division (IAD) of the Office of State Public Defender. In addition to the IAD's brief, McCoy filed a supplemental pro se brief. See M.R.A.P. 28(b).\\nDiscussion\\nI. Motion to Suppress\\n\\u00b6 19. Both briefs suggest the items found in the apartment should have been suppressed. As McCoy and his appellate, counsel see it, this evidence was inadmissible \\\"fruit of the poisonous tree,\\\" obtained in violation of the Fourth Amendment. See Powell v. State, 824 So.2d 661, 667 (\\u00b627) (Miss.Ct.App.2002) (citing Jones v. State, 798 So.2d 1241, 1247 (\\u00b610) (Miss.2001)).\\n\\u00b6 20. While the exclusionary rule bars the use of evidence from unlawful seizures, Fourth Amendment rights are personal. Walker v. State, 913 So.2d 198, 225 (\\u00b6 90) (Miss.2005) (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). What this means is that McCoy could only invoke the exclusionary rule if his Fourth Amendment rights were violated. See id. And under the circumstances here, we agree with the trial judge that McCoy had no Fourth Amendment right to prevent a search or seizure of his girlfriend's mother's apartment.\\nA. No Legitimate Expectation of Privacy\\n\\u00b6 21. As recently summed up by the Mississippi Supreme Court, \\\"[t]he Fourth Amendment of the U.S. Constitution and Article 3, Section 23 of the Mississippi Constitution protect[ ] occupants of a home from warrantless and nonconsensual entry by police.\\\" Cooper v. State, 145 So.3d 1164, 1174 (\\u00b6 33) (Miss.2014) (citing Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). \\\"[T]o claim protection under the Fourth Amendment, a defendant must have a 'legitimate expectation of privacy in the invaded placet.]' \\\" Id. (quoting Olson, 495 U.S. at 95, 110 S.Ct. 1684). Fourth Amendment protection is \\\"typically restricted to those who rent, own, or otherwise reside in the dwelling.\\\" Id. McCoy argues he falls into the \\\"otherwise reside\\\" category, alleging he often stayed overnight with his girlfriend, Chante, in her mother's apartment. See Olson, 495 U.S. at 95, 110 S.Ct. 1684 (holding that an \\\"overnight guest\\\" has a reasonable expectation of privacy in his host's home). But the evidence he offered at the suppression hearing contradicts this claim.\\n\\u00b622. On appeal, McCoy shifts gears. He now relies on the officer's testimony that Chante told him that McCoy had been living in the apartment for several months. But when McCoy called Chante to the witness stand, she denied saying this. Instead, when questioned by both McCoy's counsel and the State, she consistently maintained McCoy did not stay in the apartment.\\n\\u00b6 23. McCoy also called his grandmother, whose brief testimony solely consisted of the fact that McCoy lived with her when he was arrested. Granted, the grandmother did later testify at trial that McCoy stayed with Chante \\\"ever[y] now and then.\\\" But this testimony came at the end of the trial, after the evidence found in the apartment had already been admitted by the judge. Further, this testimony did not establish McCoy was staying with Chante when the officers knocked on her door.\\n\\u00b624. McCoy's appellate counsel asks us to assume McCoy had been staying overnight in the apartment because he was dating Chante. But it was McCoy's burden to establish he had a Fourth Amendment right invaded by the search of the apartment. Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted). And during the suppression hearing, instead of trying to establish his legitimate expectation of privacy in the apartment, McCoy tried to prove the opposite \\u2014 that he was not an occupant. This strategy of distancing himself from the apartment was no doubt to bolster his defense that he had no knowledge or control over the cocaine and contraband found there.\\n\\u00b6 25. Because McCoy failed to establish he had a legitimate expectation of privacy in the apartment, his .argument that the judge wrongly admitted the evidence found there also fails.\\nB. No Warrant Required Under the Circumstances\\n\\u00b6 26. But even if we did assume McCoy had been staying overnight with Chante during the time period of the search, his Fourth Amendment argument still falters. The presumption that a war-rantless entry into' a home to conduct a search or make an arrest is unreasonable has two notable exceptions \\u2014 exigent circumstances and consent. See Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (citing Payton, 445 U.S. 573, 100 S.Ct. 1371; Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). And here we have both.\\n1. Exigent Circumstances\\n\\u00b6 27. \\\"It is well established that 'exigent circumstances,' including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant.\\\" King, 131 S.Ct. at 1854-54 (emphasis added). So long as \\\"the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.\\\" Id. at 1858.\\n\\u00b628. Citing King, McCoy's appellate lawyer argues the officers could not rely on the exigent-circumstances doctrine because they had already violated the Fourth Amendment when the exigency arose by bullying their way into the apartment. But we see no police-created exigency. Chante testified she voluntarily opened the door. She said she did so even though she could not see through the peephole who was on the other side and the only word she heard from the officers was \\\"Hattiesburg.\\\" Though she.was surprised to find police officers at the door, she admitted she \\\"let them in\\\" and voluntarily answered their questions.\\n\\u00b6 29. When McCoy walked in on their interview, instead of refusing to speak to the officers or asking them to leave, he ran to the bathroom and tried to slam the door. ' See id. (\\\"Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.\\\"). The officers had gone to the apartment to follow up on a tip that McCoy was selling drugs out of the apartment. So it was reasonable for them to believe McCoy had run to the bathroom to destroy evidence. See id. at 1857 (\\\"Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain\\\"). Thus, we find the exigent circumstances justified the officers to enter the apartment to stop McCoy. And once in the bathroom, the officers were further justified to detain McCoy and escort him outside of the apartment.\\n2. Consent\\n\\u00b6 30. This brings us to the point in the sequence of events when the actual search \\u2014 the search McCoy claims was unlawful \\u2014 occurred. And what the record shows is that this search was only conducted after the officers obtained written consent from Cynthia, the apartment's leaseholder. So the \\\"fruit\\\" was not borne of a \\\"poisonous tree\\\" but rather from a legal search of the apartment. See Graves v. State, 708 So.2d 858, 863 (\\u00b6 23) (Miss.1997) (citations omitted) (\\\"A voluntary consent to. a search eliminates an officer's need to obtain a search warrant.\\\").\\n\\u00b6 31. In Powell, this court found the defendant had a legitimate expectation of privacy in his girlfriend's car. This was because he had permission to drive the car whenever he wanted and could exclude anyone from the car except his girlfriend and her father, the title holder of the vehicle. Powell, 824 So.2d at 664-65 (\\u00b6 15). But we still decided the defendant's Fourth Amendment rights were not violated when officers searched the vehicle. There was no constitutional violation because \\\"the State presented uncontested evidence that the [girlfriend, the] person given possession by the lawful owner[,] had consented to the search.\\\" Id. at 665 (\\u00b6 16), 667 (\\u00b6\\u00b6 27-28). We find the same to be true here. Even if McCoy had a legiti mate expectation of privacy in the apartment, he failed in his burden to show the search of the apartment violated his Fourth Amendment rights because the State offered uncontested evidence the apartment's lessee had consented to the search.\\n\\u00b632. Thus, we find no error in the denial of McCoy's motion to suppress.\\nII. Motion for Directed Verdict\\n\\u00b6 33. Nor do we find error in the denial of McCoy's motion for a directed verdict. A motion for a directed verdict challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (\\u00b6 16) (Miss.2005). And here, contrary to McCoy's assertions, we find the State's evidence was sufficient to support the charged cocaine offense.\\n\\u00b6 34. When considering the sufficiency of the evidence, we view all evidence in the light most favorable to the State. Id. This means we \\\"give the State the benefit of all favorable inferences reasonably drawn from the evidence.\\\" Grossley v. State, 127 So.3d 1143, 1147 (\\u00b6 10) (Miss.Ct.App.2013) (citing Jones v. State, 20 So.3d 57, 64 (\\u00b6 16) (Miss.Ct.App.2009)). Viewing the evidence in this manner, we ask whether \\\"any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\\\" Bush, 895 So.2d at 843 (\\u00b6 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).\\n\\u00b6 35. The essential element McCoy claims is missing was his possession of the drugs and other distribution-related items found in the apartment. He does not attack the sufficiency of the State's evidence of his intent to distribute cocaine.\\n\\u00b6 36. The State's theory was that McCoy constructively possessed the cocaine and baggies found in the bathroom, as well as the scales, brass knuckles, and gun found in Chante's bedroom. \\\"Possession of a controlled substance may be actual or constructive.\\\" Knight v. State, 72 So.3d 1056, 1063 (\\u00b6 26) (Miss.2011) (citing Dixon v. State, 953 So.2d 1108, 1112 (\\u00b6 9) (Miss.2007)). \\\"Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband.\\\" Id. \\\"The defendant's proximity to the drugs is a factor in establishing constructive possession, but it is not determinative.\\\" Id. \\\"Other incriminating circumstances must be present to establish constructive possession.\\\" Id.\\n\\u00b6 37. McCoy claims that the State was only able to prove his proximity to the drugs. He insists no \\\"other incriminating circumstances\\\" were present because McCoy neither owned nor exerted exclusive control over the apartment. It is true that proving ownership or control over the premises are two Ways to support a constructive-possession theory. See id. But they are not the only ways. The supreme court has also \\\"affirmed a conviction based on constructive possession when . the defendant did not own the premises but was sufficiently tied to the drugs found there by . placing himself in the midst of items implicating his participation in the processing of the substance .\\\" Dixon, 953 So.2d at 1113 (\\u00b6 11) (emphasis added).\\n\\u00b6 38. Here, we find ample evidence that McCoy constructively possessed the cocaine. McCoy was seen with his hands stuffed into his pockets. Once he saw the police, he ran hard for the bathroom, slamming the door to keep the officers out. And when the'officers got to him, he was standing over the trash can where the drugs were found. This was more than mere proximity to the drugs. From this incriminating circumstance, it was reasonable for jurors to conclude McCoy was trying to hide or destroy drugs. This alone showed he had sufficient knowledge and control over the cocaine to have constructively possessed it.\\n\\u00b6 39. Further, his yelling to Chante, \\\"Hold up for your shit,\\\" shows his knowledge of drugs in the trash. And while the other drug-related items were found in another room, they were near where McCoy had stored some of his clothes, which could lead a reasonable juror to conclude he was also storing the scales, brass knuckles, and gun there. See Hemphill v. State, 566 So.2d 207, 209 (Miss.1990) (guns and scales are \\\"tools of the drug trade\\\" and generally relevant in drug cases); see also Martin v. State, 413 So.2d 730, 733-34 (Miss.1982). Further, McCoy had been found in actual possession of the cash. See United States v. Munoz, 957 F.2d 171, 174 (5th Cir.1992) (holding proof of intent to distribute the drugs may be inferred from the presence of \\\"large quantities of cash\\\").\\n\\u00b6 40. Thus, we find the evidence, when viewed in the light most favorable to the State, supports McCoy's conviction of possession of cocaine with intent to distribute.\\nIII. Speedy Trial\\n\\u00b6 41. In his pro se brief, McCoy additionally asserts his right to a speedy trial was violated. But we fail to see any violation, given the length of the delay and the fact McCoy never asserted his right to a speedy trial until now.\\n\\u00b642. Both the United States and Mississippi Constitutions guarantee the accused the right to \\\"a speedy and public trial.\\\" U.S. Const, amend. VI; Miss. Const. art. 3, \\u00a7 26. \\\"A formal indictment or information or an arrest\\u2014 whichever first occurs \\u2014 triggers\\\" this right. McBride v. State, 61 So.3d 138, 142 (\\u00b6 8) (Miss.2011) (citations omitted). Here, McCoy's March 31, 2012 arrest preceded his September 20, 2012 indictment. So for speedy-trial purposes, the clock began running on March 31, 2012. McCoy was tried on January 9, 2013 \\u2014 more than eights months later. And \\\"[i]n Mississippi, a delay of more than eight months is presumptively prejudicial.\\\" Id. at (\\u00b6 7). But the length of delay is only one of four factors that must be considered when a speedy-trial violation is alleged. See id. at (\\u00b6 5) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972)). This factor must be considered alongside the reason for delay, whether McCoy asserted his right to a speedy trial, and whether any prejudice resulted from the delay. See id. (listing the four-factor test from Barker, 407 U.S. at 530, 92 S.Ct. 2182).\\n\\u00b6 43. Here, the length of delay, though presumptively prejudicial, is just barely so \\u2014 only nine days over the presumptive threshold.\\n\\u00b6 44. The record is silent on the reason for the delay of eight months and nine days \\u2014 except it does show McCoy, who had been out on bail since his March arrest, was indicted by the grand jury in September, arraigned a month later in October, and tried three months later the following January.\\n\\u00b645. Why there is no explanation for the delay ties into the third factor \\u2014 the assertion of right. The Mississippi Supreme Court has said that, while \\\"[a]n accused has no duty to bring himself to trial[,] . he does have some responsibility to assert his right to a speedy trial.\\\" Id. at 144 (\\u00b6 20) (internal citations omitted). And the United States \\\"Supreme Court in Barker emphasized 'that failure to assert the right to a speedy trial will make it difficult for a defendant to prove that he was denied a speedy trial.' \\\" McBride, 61 So.3d at 144 (\\u00b620) (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182). During the eight months and nine days between his arrest and trial, McCoy never asserted his right to a speedy trial. Nor did he seek dismissal from the trial court based on the violation of his speedy-trial rights, which would have prompted the trial court's own Barker analysis and evi-dentiary hearing. McCoy claims he verbally asserted his right to a speedy trial as soon as he was arrested on March 31, 2012. But there is simply nothing in the record to support this.\\n\\u00b646. Finally, McCoy has not shown prejudice, though he has alleged it \\u2014 claiming that a witness with the potential to exonerate him died during the delay. McCoy claims this man visited the apartment right before the police showed up that day and \\\"very well may have left the alleged item(s) there in the waste basket of the bathroom/restroom.\\\" But this unidentified man's existence \\u2014 let alone his death \\u2014 is in no way verified from the record. Thus, McCoy has failed to establish his defense was hampered by the delay. And as McCoy was free on bail pending his trial, we find no actual prejudice by the delay.\\n\\u00b647. According to the supreme court, \\\"where the delay is neither intentional nor egregiously protracted, and there is an absence of actual prejudice to the defense, the balance is struck in favor of rejecting a speedy trial claim.\\\" Johnson v. State, 68 So.3d 1239, 1246 (\\u00b6 22) (Miss.2011) (quoting Stevens v. State, 808 So.2d 908, 918 (\\u00b629) (Miss.2002)). Because such is the case here, we reject McCoy's claim that his conviction should be reversed based on a violation of his right to a speedy trial.\\nIV. Ineffective Assistance of Counsel\\n\\u00b6 48. Lastly, McCoy has raised in his pro se brief a claim of ineffective assistance of counsel, alleging various deficiencies by his trial counsel. When a claim of ineffective assistance is raised on direct appeal, we will only consider its merits under two circumstances \\u2014 (1) where the parties have stipulated the record is adequate for us to make an independent finding or (2) where \\\"the record affirmatively shows ineffectiveness of constitutional dimensions[.]\\\" Gill v. State, 126 So.3d 128, 133-34 (\\u00b6 27) (Miss.Ct.App.2013) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (\\u00b6 5) (Miss.Ct.App.1999)). In other words, the record must show counsel's performance was so constitutionally deficient and prejudicial that the trial court should have declared a mistrial sua sponte. See id. at 134 (\\u00b6 27) (citing Colenburg, 735 So.2d at 1102 (\\u00b6 8)).\\n\\u00b6 49. Here, the parties have not stipulated the record is adequate for us to address McCoy's claims. Nor can we see from the record any reason the trial judge should have been alerted to any deficiencies in counsel's performance. Therefore, we decline to address the issue of trial counsel's performance on direct appeal. We dismiss McCoy's claim without prejudice, leaving open the possibility to make these same assertions in a motion for post-conviction relief. See id. at (\\u00b6 30).\\n\\u00b6 50. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.\\nLEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.\\n. In the record, McCoy's girlfriend's name is spelled as both \\\"Chante\\\" and \\\"Shaunte.\\\" This opinion uses \\\"Chante\\\" \\u2014 the spelling used by McCoy.\\n. McCoy's indictment was amended to reflect McCoy's status as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2007).\\n. The State also called the officer who took the bag of cocaine from the apartment to the crime lab and the crime lab's forensic scientist, who confirmed the lab's test results that the bag contained 2.7 grams of cocaine.\\n. On direct examination, Chante testified:\\nQ: When [the officers] asked you, Does [McCoy] stay at the residence with you, and does he have clothes in there, you answered what?\\nA: I answered he has some clothes there.\\nQ: Okay. What did you answer with respect to him staying there?\\nA: He does not stay there.\\nAnd on cross-examination, she further said:\\nQ: [A]m I understanding you right, it's your testimony that Eddie McCoy did not reside there?\\nA; He does not. He did not stay there.\\nQ: He didn't stay there; he didn't receive mail there?\\nA: He did not receive mail there. They asked that same question. I told them no.\\nQ: Okay. Didn't receive mail there. So would he have the right to tell people that they couldn't come in, exclude other people from the premises?\\nA: He don't be there like that to even have to answer a question like that.\\n(Emphasis added).\\n. In his pro se brief, McCoy characterizes his removal from the bathroom as an arrest, which he claims was illegal because the officers had yet to find the evidence against him in the apartment. But at this point McCoy was merely being detained, based on the officers' reasonable suspicion that he had been dealing drugs, formed by the tip and McCoy's behavior when he saw the officers. See Singletary v. State, 318 So.2d 873, 876 (Miss.1975) (\\\"holding] that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest\\\"). While McCoy was detained, the officers gained consent to search the apartment and found the drugs McCoy was trying to destroy, along with the other incriminating items in the apartment. At this point, the officers then had probable cause to arrest McCoy. See id. (holding that \\\"[a]n arrest may be made only when the officer has probable cause\\\"). And based on this arrest, they were permitted to search McCoy's pockets, where they found the cash. See Williams v. State, 763 So.2d 202, 204 (\\u00b6 8) (Miss.Ct.App.2000) (citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)) (\\\"There is no violation of the Fourth Amendment when a person, placed under lawful arrest, is subjected to a full search of his person.\\\").\\n. In his pro se brief, McCoy challenges the legitimacy of Cynthia's consent. He alleges she was not competent to consent because she was under the influence of prescription drugs at the time. But this argument totally relies on documents that are not part of the record and thus outside the scope of our consideration. See Keller v. State, 138 So.3d 817, 874 (\\u00b6 168) (Miss.2014) (citing Tanner v. State, 764 So.2d 385, 402 (\\u00b6 47) (Miss.2000)). What the record shows is that Cynthia testified at the suppression hearing that her consent had been \\\"freely given.\\\"\\n. As the Mississippi supreme court said in Dixon:\\nIn previous decisions, this Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.\\nDixon, 953 So.2d at 1113 (\\u00b6 11). Further, the supreme court noted this list was not exhaustive. Id. at n. 2.\\n. While the jury heard evidence that the gun was registered to Chante, they also heard one of the officers testify Chante had bought the gun for McCoy.\"}"

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+"{\"id\": \"7013776\", \"name\": \"In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees\", \"name_abbreviation\": \"V.S.P. v. M.J.W.\", \"decision_date\": \"2013-04-02\", \"docket_number\": \"No. 2011-CA-01438-COA\", \"first_page\": \"1243\", \"last_page\": \"1253\", \"citations\": \"111 So. 3d 1243\", \"volume\": \"111\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:29:38.344550+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEE, C.J., BARNES and FAIR, JJ.\", \"parties\": \"In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees.\", \"head_matter\": \"In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees.\\nNo. 2011-CA-01438-COA.\\nCourt of Appeals of Mississippi.\\nApril 2, 2013.\\nMatthew Shepherd Poole, Jackson, attorney for appellant.\\nRobert M. Logan, Jr., Newton, attorney for appellees.\\nBefore LEE, C.J., BARNES and FAIR, JJ.\", \"word_count\": \"5731\", \"char_count\": \"34234\", \"text\": \"BARNES, J.,\\nfor the Court:\\n\\u00b6 1. This appeal stems from a Newton County Chancery Court judgment where Vincent S. Parker's amended petition to set aside the adoption of his natural son, Andy, by Melanie J. Watkins and Mark S. Lewis, was dismissed with prejudice. On appeal, Parker argues that he cannot have his parental rights terminated, as he was never made a party to the adoption proceeding and did not receive notice, and that the chancellor erred in dismissing the case under Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93-17-6 (Supp.2012). While it is undisputed that Parker did not receive formal notice of the adoption (and should have), this fact does not mean that the adoption is void, as Parker contends. Even if Parker had received notice, he did not meet the standard of demonstrating \\\"a full commitment to the responsibilities of parenthood\\\" under section 93-17-5(3), which would have allowed him, as an unwed father, to object to the adoption. Accordingly, we find no reversible error, and affirm the adoption of Andy and the termination of Parker's parental rights.\\nSTATEMENT OF FACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. Dana Foster and Parker conceived a child, Andy, who was born out of wedlock on May 25, 2004. At the time, Dana was seventeen years old and Parker was nineteen years old. The couple never married, and Parker was not listed as the father on the birth certificate at the hospital. The certificate was never amended. During her pregnancy, Dana lived with Parker at his mother and step-father's mobile home in Brandon, Mississippi. Dana was unemployed, and Parker did seasonal work. Approximately six weeks after Andy's birth, Dana moved out of the residence because she and Parker were not getting along. She also suspected Parker was using drugs. Apparently, Dana did not keep in touch with Parker after she left.\\n\\u00b6 3. Dana moved to her father's mobile home in Richland, Mississippi, where she lived for about a week. Then, Dana and Andy moved in with Mark Lewis, Dana's brother (Andy's natural uncle), and Melanie Watkins, his wife, in Newton County, Mississippi, for approximately one month. After a \\\"little fuss,\\\" Dana moved back to her father's residence.\\n\\u00b6 4. Soon after, in August 2004, Melanie notified the Mississippi Department of Human Services (MDHS), alleging Andy was living in \\\"deplorable conditions\\\" at the mobile home of Dana's father. The Rankin County Youth Court appointed a guardian ad litem (guardian) on behalf of Andy. Dana told MDHS investigators that she wanted to give custody of Andy to Susie and Joe Kirk, friends of Dana's family and godparents to Andy. The Kirks were granted temporary custody, and in September 2004, MDHS concluded that there was no evidence of neglect by Dana. However, the youth court directed Dana to fulfill certain prerequisites before she would be eligible to have Andy returned to her.\\n\\u00b6 5. In November 2004, Melanie and Mark requested the youth court change Andy's custody from the Kirks to them. Melanie testified the Kirks had no objection to this change; thus, after a \\\"shelter hearing,\\\" Melanie and Mark were awarded temporary custody.\\n\\u00b6 6. In January 2005, Andy's first guardian recommended a petition for neglect against Dana be filed in the youth court, because she \\\"has not made progress in improving her ability to care for this child. Dana is bouncing from house to house, wherever anyone will let her stay.\\\" Additionally, the guardian reported Andy was \\\"thriving\\\" with Melanie and Mark. In March 2005, the youth court issued an order finding Andy neglected by Dana, and Andy remained in Melanie and Mark's custody.\\n\\u00b6 7. Also in March 2005, Melanie, with Andy, met Parker at a Waffle House in Brandon, Mississippi, and told him of her intent to adopt Andy. Melanie testified that Parker told her he thought the adoption was in Andy's best interest \\u2014 he did not \\\"need to be a father\\\" at the time, and did not want Dana to have custody.\\n\\u00b6 8. In April 2005, Dana signed a consent to Andy's adoption by Melanie and Mark, and to the termination of her parental rights. On October 26, 2005, a petition for adoption by Melanie and Mark was filed in the Newton County Chancery Court; Parker was not made a party to the proceedings. At this time, Parker's paternity had not been established because he had thus far ignored the youth court's recommendations to have a DNA test performed. On December 16, 2005, the final decree of adoption was entered.\\n\\u00b6 9. Nearly four years later, in September 2009, Dana filed a motion to set aside the adoption. Then, in late 2009, Dana approached Parker, asking him to file a petition to set aside the adoption. In May 2010, Parker filed such a petition, seeking custody of Andy, and Dana joined it. In the petition, Parker claimed Melanie and Mark committed fraud in bringing the adoption proceedings because they intentionally did not notify Parker. Also, he claimed Melanie and Mark conspired together, and coerced Dana into signing the adoption papers. Parker stated Melanie intentionally kept the child away from him and thwarted his efforts at paternity testing.\\n\\u00b6 10. In December 2010, the chancellor dismissed Dana's petition as untimely under Mississippi Code Annotated section 93-17-15 (Rev.2004) because her petition was not filed within six months of the adoption, but Parker's petition remained on the docket. In January 2011, the chancellor ordered paternity testing, and Parker complied. The test confirmed Parker is Andy's biological father. Also, Parker filed an amended petition to set aside the adoption. In it, he stated that he received no service of process or notice of the adoption.\\n\\u00b6 11. In April 2011, a guardian was appointed to represent Andy in the proceedings. The guardian filed a detailed report on all of the parties in July 2011. In his report, the guardian opined that while the adoption did not meet the minimum standards of due process, the fact that Parker had made no attempt to visit Andy from 2005 to 2010, even though he had telephone numbers and \\\"with just a little effort\\\" could have found Melanie, is \\\"a cliff rather than a hill for Mr. Parker to climb\\\" regarding termination of his parental rights. The guardian recommended that if parental rights were not terminated, Andy remain with Melanie and regular visitation start slowly with Parker, and he pay child support to Melanie.\\n\\u00b6 12. In July 2011, a hearing was held on Parker's petition to set aside the adoption. Melanie testified that she did not serve Parker the adoption petition or obtain consent from him in October 2005 because her attorney did not advise her to do so. Further, Parker had not been adjudicated Andy's father at that point. Melanie stated Dana did tell her Parker was the father; however, Melanie expressed her doubts, as Dana was dating several men at the time of Andy's conception. Melanie testified at no point did Parker make an attempt to visit or contact Andy.\\n\\u00b6 13. Mark testified that he and Melanie divorced in approximately 2007, and Melanie has full custody of Andy. Mark now lives in Nevada, and has only visited Andy four times since the divorce. Mark claimed he knew where Parker lived, but Melanie never asked for the information. Also, Parker had not asked him for information about Andy in the last five years.\\n\\u00b6 14. Parker testified that he provided financial support to Dana during her pregnancy, as Dana had no income. He also transported her to the doctor. He claimed he and Dana were engaged before she became pregnant. Once Dana and Andy moved out of his parents' mobile home in June 2004, approximately one month after Andy was born, Parker did not have much contact with her. Parker claimed not to have received summonses for the youth court proceedings, but found out about them through his mother, whom Dana had told about the proceedings. When he met Melanie at the Waffle House, he agreed to the adoption as long as he could visit Andy, but the record indicates he never did. Initially, Parker claimed he had no idea that the December 2005 adoption had taken place until \\\"a couple of years\\\" later, but on cross-examination he stated that he had knowledge of the adoption in May 2006. He was not served any summonses to appear in chancery court, and did not know in which county the adoption took place. He made an effort to communicate with Andy by calling and emailing Melanie, but denied knowing where she lived. He had not seen Andy since the Waffle House meeting over six years ago.\\n\\u00b6 15. On cross-examination, Parker admitted that he had made no attempt to have his name placed on Andy's birth certificate from the time of Andy's birth until his petition to set aside the adoption, or approximately six years. Importantly, Parker admitted that he had an \\\"arrangement\\\" with Dana \\u2014 she would pay for the adoption litigation, but she wanted visitation rights if Parker obtained custody of Andy. At the time of the hearing, Parker was married to another woman and had two other children. They resided at the mobile home in Brandon. Parker was a general laborer but unemployed, although he hoped to start a new job the following week.\\n\\u00b6 16. Dana testified that Parker supported her during the pregnancy \\u2014 he bought groceries, clothes, and a crib for Andy. She also stated he helped care for the baby. Dana claimed to thwart Parker's relationship with Andy by not giving him her new telephone number. Dana stated she left the house of Parker's parents because she suspected Parker was using marijuana and crystal methamphetamine \\u2014 a claim Parker denied. She also admitted that she was paying for this litigation, and if Parker received full custody, she hoped to receive visitation rights from Parker. Dana visited Andy occasionally until October 2009, when the visits ceased due to a conflict with Mark and Melanie. She was aware that Andy had been diagnosed with severe attention deficit hyperactivity disorder.\\n\\u00b6 17. Andy's guardian cross-examined all four witnesses. The investigative reports from the MDHS and the youth court proceedings from 2004 were entered into evidence, as well as the DNA paternity report from January 2011. At the conclusion of Parker's case, Melanie's counsel moved for dismissal under Rule 60(b) and for failure to satisfy the requirements of section 93-17-6.\\n\\u00b6 18. In August 2011, the chancellor issued a final judgment dismissing the petition, finding the petition was not filed within a reasonable time under Rule 60(b), and Parker failed to satisfy section 93-17-6's requirements regarding his commitment to the responsibilities of fatherhood. Parker's parental rights were terminated. Parker filed a motion to reconsider, which was denied. He then timely appealed and asserts the following: (1) as a matter of law, a father cannot have his parental rights terminated if he was never made a party to an adoption proceeding or served with process; (2) the chancellor erred in applying Rule 60(b) and section 93-17-6 to set aside the adoption; and (3) the chancellor abused his discretion in dismissing the case under Rule 60(b) and section 93-17-6.\\nANALYSIS OF THE ISSUES\\n\\u00b6 19. It is undisputed that Parker did not receive proper notice of the adoption. As Andy's biological father, he should have been made a party to the proceedings under section 93-17-5. However, this omission does not mean the adoption is void. The analysis hinges on whether Parker had the right, as an unwed father, to object to the adoption under section 93-17-6. The chancellor found Parker did not have this right, and there is substantial evidence supporting this finding in the record.\\n1. Notice\\n\\u00b6 20. Parker argues that the chancellor erred as a matter of law in terminating his parental rights and not setting aside the adoption because Melanie and Mark did not make him a party to the adoption in 2005. Also, he contends they deprived him of formal notice of the adoption, even though they knew of Parker's paternity and physical location. Parker alleges the chancellor failed to follow clear precedent and compulsory statutes on these matters. He also claims these omissions violated his constitutional rights to due process.\\n\\u00b6 21. This issue presents a question of law, which is reviewed de novo. In re Adoption of J.E.B., 822 So.2d 949, 951 (\\u00b6 4) (Miss.2002) (citing Dep't of Human Sens, v. Gaddis, 730 So.2d 1116, 1117 (\\u00b6 4) (Miss. 1998)). Additionally, we note generally the setting aside of an adoption decree is disfavored in Mississippi. See id. at 952 (\\u00b6 10) (citing Humphrey v. Pannell, 710 So.2d 392, 399 (\\u00b6 35) (Miss.1998)). There is a strong public policy declaration in Mississippi's adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So.2d 702, 705 (\\u00b6 12) (Miss.1998) (citing In re Adoption of R.M.P.C., 512 So.2d 702, 707 (Miss.1987)).\\n\\u00b6 22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father's parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father's attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child's birth and the filing of the adoption petition. Id. at 249, 98 S.Ct. 549. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256, 434 U.S. 246. The Supreme Court held that the natural father's substantive rights under the Due Process Clause were not violated by applying the \\\"best interest of the child\\\" standard in this instance, and the adoption was affirmed. Id. at 254, 256, 98 S.Ct. 549. In Caban v. Mohammed, 441 U.S. 380, 392-94, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.\\n\\u00b6 23. Both parties note in their briefs that at one time section 93-17-5 did not entitle an unwed putative father any notice whatsoever of an adoption. In Smith v. Malouf 722 So.2d 490, 497 (\\u00b6 30) (Miss.1998) (impliedly overruled on other grounds), the Mississippi Supreme Court held that this notice provision of the statute was unconstitutional in light of United States Supreme Court authority. Smith held that a natural unwed father may, in certain circumstances, have a constitutional right to be notified or to withhold his consent to an adoption. Id. The Mississippi Legislature thereafter amended section 93-17-5(3), allowing a father to have the right to object to an adoption if he has demonstrated \\\"a full commitment to the responsibilities of parenthood\\\" within thirty days after the birth of the child. Smith, 722 So.2d at 494 n. 1. While Parker cites to several of these same United States Supreme Court cases found in Smith in support of his argument, he fails to note the main distinction with his case \\u2014 he provided no evidence of an attempt to have a substantial relationship with his child.\\n\\u00b6 24. The case before us presents an unusual set of circumstances regarding notice of the initial adoption proceedings in 2005. Undisputedly, Parker was not made a party or served with any formal notice. Yet these omissions do not automatically void the adoption, as Parker argues. The record indicates that Melanie placed Parker on notice that she intended to adopt Andy at their Waffle House meeting in March 2005, and he orally agreed to the adoption seven months before Melanie filed her petition. Dana consented to the adoption the next month, and in October 2005, Melanie and Mark filed their petition for adoption, noting that there had been no adjudication of paternity. Additionally, Parker admitted at the hearing in July 2011 that he had actual knowledge from Dana that the adoption had been finalized five months after the final decree, in May 2006, but did not file a petition to set aside until approximately four years later. Therefore, the record shows Parker had knowledge of the adoption, but not formal notice through service of process or publication.\\n\\u00b6 25. Pursuant to section 93-17-5(3), had Parker been made a party defendant to the adoption proceeding in October 2005, as an unwed father he would have been entitled to a determination of his \\\"full commitment to the responsibilities of parenthood.\\\" This determination was before the court at the hearing in July 2011, and will be discussed in the next section. As the United States Supreme Court cases cited above explain, constitutional protection is only provided to unwed fathers who demonstrate a supportive, significant relationship with the child. Caban, 441 U.S. at 392-94, 99 S.Ct. 1760; Quilloin, 434 U.S. at 256, 98 S.Ct. 549. Accordingly, the court's finding that Parker did not meet this standard, in effect, negates his right to constitutional protection of his relationship with Andy. Therefore, as a matter of law, the failure to give notice to Parker of the original adoption does not, in and of itself, constitute reversible error.\\n2. Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93-17-6\\n\\u00b6 26. At the end of the hearing, Melanie's attorney argued that Parker's petition was in the nature of a Rule 60(b) motion to set aside what Parker argues is a void judgment \\u2014 the initial adoption decree of 2005. In contrast, Parker's attorney argued that the United States Constitution prevents casting the case solely as a Rule 60 matter, because Parker was never a party to the adoption. The chancellor determined that Melanie had moved for a dismissal of Parker's petition under Rule 60(b), and concluded that Parker's petition had not been filed within a \\\"reasonable time\\\" under Rule 60(b), and also failed under the statutory requirements of section 93-17-6. Therefore, he dismissed Parker's petition and terminated his parental rights.\\n\\u00b6 27. Parker contends that the chancellor improperly applied Rule 60(b) and section 93-17-6 to his petition. Alternatively, Parker claims that even if the chancellor was correct in applying these rules, he abused his discretion in dismissing Parker's claim under section 93-17-6.\\n\\u00b6 28. While Rule 60 was not the appropriate vehicle for dismissal of Parker's petition, the point is moot since Parker did not meet the standard regarding a \\\"full commitment to the responsibilities of parenthood\\\" under section 93-17-6.\\nA. Rule 60(b)\\n\\u00b6 29. Rule 60(b)(6) states, in pertinent part: \\\"On motion . the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . (6) any other reason justifying relief from judgment. The motion shall be made within a reasonable time .(Emphasis added.) The standard of review for \\\"a motion for relief under Rule 60(b) is limited to whether the trial court abused its discretion by ordering or denying relief.\\\" Iuka Guar. Bank v. Beard, 658 So.2d 1367,1373 (Miss. 1995) (citing January v. Barnes, 621 So.2d 915, 927' (Miss.1992)).\\n\\u00b6 30. In the chancellor's bench opinion regarding Rule 60(b), he noted Andy was one year and seven months old when adopted by Melanie and Mark. Parker filed his petition to set aside the adoption four years and five months after the adoption, when Andy was almost six years old. The chancellor found that under the circumstances, this was not within a \\\"reasonable time\\\" pursuant to Rule 60(b). From the testimony, Parker had known about the adoption for at least four years, since May 2006. During this time, Parker had not seen his son or attempted to visit him; so Andy would not remember anything about Parker. The chancellor noted that with very little effort Parker could have learned about the adoption even sooner, because he knew all of the parties.\\n\\u00b6 31. On appeal, Parker does not elaborate on a Rule 60(b) error; he only mentions it by way of his issue statements. In the adoptive parents' brief, however, they cite two cases that are instructive on denial of Rule 60(b) relief in an adoption context. In M.D.T., the natural parents petitioned to set aside the adoption nine years after signing their consent. M.D.T., 722 So.2d at 703 (\\u00b6\\u00b6 2-3). The natural parents made several arguments, including that the adoption was void, and thus their petition needed only be made within a \\\"reasonable time\\\" under Rule 60(b), and not six months under the statute of limitations. Id. at 705 (\\u00b6 15). The supreme court was unpersuaded, holding that even if \\\"a reasonable time\\\" were the correct standard, the petition filed nine years after entry of the adoption decree was not made within a \\\"reasonable time.\\\" Id. at (\\u00b6 16).\\n\\u00b6 32. In J.E.B., the natural father filed a petition to vacate the adoption three years after it was agreed upon, alleging it was void. J.E.B., 822 So.2d at 950-51 (\\u00b6 3). The supreme court reversed the chancery court's grant of the petition to vacate the adoption, reinstating the adoption. Id. at 953 (\\u00b6 15). Finding no jurisdictional defect with the adoption, the supreme court found the petition barred by the six-month statute of limitations. Id. The supreme court stated:\\n[The father/petitioner] should not now be heard, years later, to set aside the decree because it allowed him to retain his parental rights.... Finally, to the extent that he claims relief under Rule 60(b), he is likewise untimely. The motion, as to the allegations of fraud and misrepresentation[,] was not made within six months and as to other claims was not made \\\"within a reasonable time.\\\"\\nId.\\n\\u00b6 33. In each of these cases, the parents had, by their consents, been made parties to the original proceedings. In the case before us, Parker was not made a party defendant and did not file a consent to the adoption. Therefore, Rule 60(b), which \\\"relieve[s] a party . from final judg ment,\\\" is not applicable. The chancellor may, however, have considered the effect of Parker's delay in asserting his parental rights on Andy under doctrines of waiver or laches. While Rule 60(b) was not the proper vehicle, this is not dispositive of the case.\\nB. Mississippi Code Annotated Section 93-17-6\\n\\u00b6 34. The chancellor found that Parker failed to meet the statutory requirements of section 93-17-6 regarding his right to object to the adoption.\\n\\u00b6 35. This Court's scope of review is limited regarding a chancellor's findings of fact. They will not be overturned \\\"when supported by substantial evidence unless an erroneous legal standard is applied .\\\" In re B.N.N., 928 So.2d 197, 200 (\\u00b6 6) (Miss.Ct.App.2006) (quoting Grafe v. Olds, 556 So.2d 690, 692 (Miss.1990)). Additionally, we are reluctant to disturb findings of fact because \\\"[t]he credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.\\\" Rodriguez v. Rodriguez, 2 So.3d 720, 724 (\\u00b6 6) (Miss.Ct.App.2009) (quoting Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967)). However, the chancellor's \\\"interpretation and application of the law is reviewed under a de novo standard.\\\" Nichols v. Funderburk, 883 So.2d 554, 556 (\\u00b6 7) (Miss.2004) (citing Tucker v. Prisock, 791 So.2d 190, 192 (\\u00b6 10) (Miss.2001)).\\n\\u00b6 36. Section 93-17-6 reads, in part:\\n(1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the \\\"alleged father\\\") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding .\\n(3) The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).\\n(4) Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:\\n(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now uniting and able to assume legal and physical care of the child; or\\n(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.\\n(Emphasis added.)\\n\\u00b6 37. The chancellor noted that before Parker could enjoy certain statutory protections as an unwed father, including his right to object to the child's adoption, he had to prove a commitment to parenthood as explained in Section 93-17-6(4); namely, that he established a \\\"substantial relationship\\\" with the child. As authority, the chancellor pointed to the United States Supreme Court's Caban, which established this standard for a putative father. See Caban, 441 U.S. at 393-94, 99 S.Ct. 1760.\\n\\u00b6 38. Parker argues that the chancellor erred \\u215b applying section 93-17-6 because it was not \\\"compulsory\\\" that Parker file a petition for determination of rights \\u2014 Parker's petition objecting to the adoption was permissible under the statute. Parker claims any petition to determine rights under section 93-17-6 would have had to have been filed prior to the grant of adoption. However, Parker misconstrues the statute's application. The chancellor was not penalizing Parker for not petitioning for a determination of rights, but analyzing the factors found in section 93-17-6(4) to determine if Parker could come to court and object to the adoption. Therefore, the chancellor did not err in applying the statute.\\n\\u00b6 39. The chancellor made the following factual findings related to his analysis of section 93-17-6(4). Parker had proof of Dana's pregnancy and Andy's birth, but they were in a relationship for \\\"convenience purposes.\\\" They never married, but lived together at Parker's parents' home for three to six weeks, at which point she left because Parker was not helping to care for the infant. Of note was the fact Melanie's residence in Decatur was approximately thirty miles from Brandon, where Parker resides, yet Parker claimed Melanie absconded with the child. Further, Parker testified that he was not presently in a position to pay child support. The chancellor did not find Dana's testimony credible because she contradicted herself at the hearing, as well as contradicted her testimony from an earlier deposition. And the chancellor found Parker's testimony was \\\"suspect at best, . trfying] to say what he needed to say to establish a relationship.\\\" The chancellor concluded:\\n[Tjestimony has not shown that Mr. Parker has consistently provided support for the child, consistently tried to visit with the child. It does not show anything about him contributing any money towards medical expenses or the cost of the birth of the child.... There is no testimony that he is now willing and able to assume physical care for this child.... There is also no testimony that Mr. Parker made any reasonable diligent efforts to try to locate this child, to try to visit with the child, spend time with the child, and . the testimony has established that without Dana['s] bringing him into this [litigation,] he wouldn't be here today.... She originally also was a party trying to set aside the adoption, but her case [was] dismissed because she signed a consent, and it was years, years later. The statute of limitations had run on her prior to the time she filed her complaint. So, once she was dismissed, then it all fell on Mr. Parker. He had to be the horse that everybody was riding. The trouble is it's at best a three-legged horse.\\n\\u00b6 40. On appeal, Parker argues that testimony showed Dana \\\"absconded\\\" with Andy when he was an infant, and intentionally deprived Parker from visiting him. After examining the record, we are not persuaded by this interpretation of the evidence. Further, our standard of review requires us to defer to the chancellor's interpretation of the evidence as well as the weight and credibility of the witnesses. See Rodriguez, 2 So.3d at 724 (\\u00b6 6).\\n\\u00b6 41. Parker exhibited no interest in asserting his paternal rights until he was approached by Dana over four years after the adoption. Dana confirmed Parker's testimony that she was paying for the litigation to set aside the adoption in the hope that if Parker won, she could obtain visitation rights. We note Parker did nothing to prevent Andy, in his infancy, from being adjudicated \\\"neglected\\\" by the youth court. Moreover, Parker did ve\\u00a5y little for Dana during the pregnancy or thereafter. In sum, he did not demonstrate actions indicative of any commitment to Andy, much less the required showing of a \\\"full commitment to the responsibilities of parenthood.\\\"\\n\\u00b6 42. This issue is without merit.\\nC. Termination of Parental Rights\\n\\u00b6 43. Parker's parental rights were terminated in the chancellor's judgment of August 2011. Parker does not make a separate argument regarding the termination, outside of his arguments above. Accordingly, we shall not address this issue.\\n\\u00b6 44. THE JUDGMENT OF THE CHANCERY COURT OF NEWTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.\\nLEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ\\\" CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.\\n. Pseudonyms are used in this opinion, rather than the parties' names, in order to protect the identity of the child who is the subject of the adoption petition.\\n. The relevant statute regarding parties to an adoption proceeding and notice is Mississippi Code Annotated section 93-17-5 (Rev.2004), which states in pertinent part:\\n(1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons . :(a) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years\\n(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.\\n(4) If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry .\\n(Emphasis added.)\\n.Section 93-17-6 sets out the procedure for a determination of rights of fathers of children born out of wedlock, and whether they can object to an adoption of such children.\\n. Melanie continued to reside in Decatur, Mississippi, after the divorce, and is Andy's sole provider.\\n. However, we note Parker attended only one of the youth court's hearings about Andy, but it is unclear from the record which one.\\n. Section 93-17-6(4) states that \\\"proof of an alleged father's full commitment to the responsibilities of parenthood\\\" would be shown in financial support to the mother and child, or visiting the child.\\n. Section 93-17-6 gives an unwed father, such as Parker, the right to petition for determination of his rights as a putative father, and whether he could object to the adoption. Parker failed to take advantage of this procedure, just as he initially refused to take advantage of the paternity tests ordered by the youth court. Importantly, Parker delayed confirming his paternity for several years after the child was born. Testimony shows Parker ignored court recommendations for DNA paternity testing, but he finally complied in January 2011, over five years after the child was born.\\n. Rule 60(b) states that the \\\"rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.\\\" Since Parker is not a party to the judgment, Rule 60(b), including its requirement that the motion be filed within a reasonable time, is not applicable. See also Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 222 (4th Cir.1999) (\\\"[A] motion for relief under Rule 60(b) . may be brought only by, or on behalf of, a party to the action that generated the contested judgment[.]\\\"); United States v. 8136 S. Dobson Street, Chicago, Ill., 125 F.3d 1076, 1082 (7th Cir.1997) (person seeking relief from a judgment under Rule 60(b) \\\"must have been a party\\\").\"}"

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+"{\"id\": \"7014673\", \"name\": \"Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees\", \"name_abbreviation\": \"Taylor v. Galloway\", \"decision_date\": \"2012-12-11\", \"docket_number\": \"No. 2011-CA-01378-COA\", \"first_page\": \"1160\", \"last_page\": \"1171\", \"citations\": \"105 So. 3d 1160\", \"volume\": \"105\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:38:12.535793+00:00\", \"provenance\": \"CAP\", \"judges\": \"BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND MAXWELL, J.\", \"parties\": \"Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees.\", \"head_matter\": \"Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees.\\nNo. 2011-CA-01378-COA.\\nCourt of Appeals of Mississippi.\\nDec. 11, 2012.\\nPaul E. Rogers, Jackson, attorney for appellant.\\nJames L. Martin, Madison, attorney for appellees.\", \"word_count\": \"5307\", \"char_count\": \"31908\", \"text\": \"GRIFFIS, P.J.,\\nfor the Court:\\n\\u00b6 1. Willie M. Galloway and Lucille S. Galloway filed a complaint against Walter Taylor for damages under Mississippi Code Annotated section 95-5-10 (Rev. 2004), commonly referred to as the Mississippi timber trespass statute. The County Court of Madison County, Mississippi, entered a judgment in favor of the Galloways for compensatory damages, statutory damages, and court costs, including attorney's fees. In this appeal, Taylor asserts three issues: (1) whether a statement made by Taylor's father to Taylor was erroneously excluded as hearsay; (2) whether the county court erred when it directed a verdict on the issue of statutory damages under section 95-5-10(2); and (8) whether the county court erred in the award of court costs, including attorney's fees. We affirm in part and reverse and remand in part.\\nFACTS\\n\\u00b6 2. On April 20, 2009, the Galloways filed a complaint against Taylor for the unlawful cutting of timber on 3.92 acres of their property, without their permission, in violation of Mississippi Code Annotated section 95-5-10. On June 10, 2009, Taylor filed an answer and counterclaim. Taylor asserted a claim to the subject property based on adverse possession.\\n\\u00b6 3. The county court held a jury trial on July 19 and 20, 2010. At the conclusion of the evidence, the Galloways made a motion for a directed verdict as to Taylor's counterclaim for adverse possession. The county court granted a directed verdict and dismissed Taylor's counterclaim for adverse possession.\\n\\u00b6 4. The Galloways also made a motion for a directed verdict for the unlawful cutting of trees without consent and for the assessment of statutory damages on the basis that Taylor's actions were willful and in reckless disregard for the Galloways' rights. The county court granted the directed verdict and concluded that the Gal-loways were the owners of the subject property, and Taylor cut timber on the subject property without the Galloways' consent. As a result, the court found that Taylor was liable for compensatory damages and statutory damages under section 95-5-10(1) and (2).\\n\\u00b6 5. The county court judge submitted to the jury the determination of the fair market value of the cut timber. The jury concluded that the fair market value of the cut timber was $17,425.64, and this amount was awarded to the Galloways as compensatory damages under section 95-5-10(1). The issue of statutory damages was not submitted to the jury. The county court determined that reasonable jurors could not have arrived at a verdict in favor of Taylor on the issue of whether he cut the Galloways' timber willfully and in reckless disregard for their rights.\\n\\u00b6 6. On July 30, 2010, the county court entered a final judgment. The Galloways were awarded $17,425.64 in compensatory damages and $43,010 in statutory damages, for a total of $60,435.64.\\n\\u00b6 7. On August 9, 2010, Taylor filed a motion for reconsideration, a motion for a new trial, and a motion for a judgment notwithstanding the verdict. The county court denied these motions. On August 30, 2010, the Galloways filed a motion for court costs under section 95-5-10(3). By order dated September 9, 2010, the county court awarded the Galloways $15,378.51 in court costs, which included the Galloways' attorney's fees.\\n\\u00b6 8. Taylor timely appealed to the Madison County Circuit Court. On August 26, 2011, the circuit court entered an opinion and order that affirmed the county court's judgment. It is from the circuit court's judgment that Taylor now appeals.\\nANALYSIS\\n\\u00b6 9. This case presented a claim for damages under the Mississippi timber trespass statute, Mississippi Code Annotated section 95-5-10, which provides:\\n(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.\\n(2) If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-Five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.\\n(8) All reasonable expert witness fees and attorney's fees shall be assessed as court costs in the discretion of the court.\\n\\u00b6 10. The Galloways asserted a claim for compensatory damages under subsection (1). If a person trespasses on the land of another and cuts any timber, the trespasser shall be responsible to the owner for damages in the amount of \\\"double the fair market value of the tree cut down\\\" and the \\\"reasonable cost of reforestation.\\\" Miss.Code Ann. ? 95-5-10(1). The Gallo-ways may recover under subsection (1) if they prove that they own the land and that Taylor, or his agent, cut trees off their land. Subsection (1) specifically provides that \\\"liability for the damages established in this subsection shall be absolute and unconditional!,] and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability.\\\"\\n\\u00b6 11. The county court judge directed a verdict to grant the Galloways' claim for compensatory damages under section 95-5-10(1). The amount of the fair market value of the cut timber was presented to the jury, and the jury returned a verdict in the amount of $17,425.64. In the final judgment, the county court awarded compensatory damages under section 95-5-10(1) in this amount. Taylor does not challenge this award in this appeal. However, this claim is essential to our consideration of the first issue.\\n\\u00b6 12. The Galloways also asserted a claim for statutory damages under subsection (2). If the cutting is done \\\"without the consent of the owner of such tree [and is] done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down . shall pay to the owner . a penalty\\\" based on the number and sizes of the trees cut. Miss.Code Ann. \\u00a7 95-5-10(2). However, for the Galloways to recover the statutory damages, the statute requires that they prove that Taylor acted \\\"willfully and knowingly, in conscious disregard for the rights of the owner,\\\" when he \\\"cut down, deadened, destroyed or took away such trees.\\\" Id. Unlike subsection (1), statutory damages under subsection (2) could not be recovered if the person who cut the tree was under \\\"good faith or . honest mistake\\\" when he cut the tree. Miss.Code Ann. \\u00a7 95 \\u2014 5\\u201410(1)\\u2014 (2). As to this claim, the county court judge directed a verdict on the claim and awarded damages in the amount of $43,010.\\n\\u00b6 13. The Galloways also asked the court to assess court costs, which include expert-witness fees and attorney's fees, under subsection (3). See Miss.Code Ann. \\u00a7 95-5-10(3). The county court judge awarded court costs in the amount of $15,378.51.\\n\\u00b6 14. With this overview in mind, we address the issues raised by Taylor.\\nI. The county court committed prejudicial error by not allowing Taylor's testimony of conversations with his father.\\n\\u00b6 15. Taylor argues in his first issue that the county court committed reversible error when it refused to allow Taylor to testify about his conversations with his father.\\n\\u00b6 16. At trial, Taylor's counsel asked Taylor about discussions between Taylor and his father. It was apparent that Taylor intended to testify that his father had told him that one day Taylor would own the property in question. When Taylor's counsel began to ask Taylor about his discussions with his father, the Galloways' counsel objected on the ground that such evidence would be hearsay. Taylor's counsel offered the county court judge no explanation as to why the testimony was not hearsay or would otherwise be properly admitted into evidence. The trial judge sustained the objection, and Taylor was not allowed to testify about his conversations with his father.\\n\\u00b6 17. On appeal, Taylor argues that the testimony was not offered to prove the truth of the matter asserted. Hence, he argues that the testimony did not meet the definition of hearsay under Mississippi Rule of Evidence 801(c). 'We review a trial court's ruling regarding the admission or exclusion of evidence under an abuse-of-discretion standard of review.\\\" Hester v. Samples, 74 So.3d 383, 388 (\\u00b6 19) (Miss.Ct.App.2011).\\n\\u00b6 18. It is important to put this argument in context. Taylor does not claim that this evidence would support his de fense to the Galloways' claim for compensatory damage, under section 95-5-10(1). Instead, for the first time in this appeal, Taylor claims that this testimony would be:\\nAn important element of [TaylorJ's defense to [the Galloways'] claim for additional punitive damages under Miss. Code. Ann. \\u00a7 95-5-10(2) [was] that he acted in good faith and not willfully or in reckless disregard for [the Galloways'] rights was testimony regarding that his belief of ownership originated from a conversation between he and his father in 1956 that the subject property belonged to [Taylor]'s father and would be his after his father died.\\nThus, Taylor argues that any statement made by his father that indicated that Taylor would one day own the subject property after his father's death was not hearsay, because the conversation was not offered to prove Taylor's ownership of the property but was offered to show Taylor's good-faith belief that he owned the property-\\n\\u00b6 19. As to the Galloways' claim for compensatory damages under section 95-5-10(1), the only issue was who was the legal owner of the property where the trees were cut. Taylor's testimony about his father's statement would have been offered to rebut the Galloways' claim of ownership. Such testimony of what Taylor's father told him about the ownership of the land would certainly be hearsay when offered for this purpose. \\\"Hearsay\\\" is defined as \\\"a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\\\" M.R.E. 801(c). The trial judge was correct to exclude Taylor's testimony that his father told him he would one day own the property because such an out-of-court statement would have been offered \\\"to prove the truth of the matter asserted,\\\" i.e., ownership. Under Mississippi Rule of Evidence 802, such hearsay would not be admissible.\\n\\u00b620. However, if the testimony was offered to rebut the claim for statutory damages under section 95-5-10(2), the result could be different. The claim for statutory damages required the jury to consider Taylor's subjective belief that he owned the property. As to this claim, it would have been proper for Taylor to testify about his father's out-of-court statement for the nonhearsay reason that it was offered to prove Taylor had a good-faith reason to believe that he owned the property.\\n\\u00b6 21. Unfortunately, at trial, Taylor's counsel offered no response to the Galloways' objection. In fact, Taylor's counsel did not even argue that he sought to elicit this testimony for a nonhearsay purpose. Had Taylor's counsel offered such a response, the trial judge would have had an opportunity to admit the out-of-court statement for its proper purpose, with a limiting instruction. Taylor's coun sel made no such request or argument before the trial judge.\\n\\u00b6 22. Taylor now claims the trial judge was in error, but this matter was not presented to the trial judge. Taylor's counsel could have offered the disputed evidence for a nonhearsay purpose or asked the court to \\\"restrict the evidence to its proper scope and instruct the jury accordingly,\\\" but Taylor's counsel did neither. M.R.E. 105. As a result, we conclude that the trial judge was not in error in the decision to sustain the objection. Had Taylor's counsel argued and offered the testimony for a nonhearsay purpose, under Rule 105, our conclusion may be different. The matter argued on appeal was not properly presented to the trial judge and not preserved for appellate review. Based on the manner in which the testimony was presented, the trial judge's ruling to exclude the evidence was correct. We find no error and affirm the trial court's decision as to this issue.\\nII. Whether the county court erred by entering a directed verdict on the issue of statutory damages under Mississippi Code Annotated section 95-5-10(2) instead of submitting the issue to the jury.\\n\\u00b6 23. Taylor argues in his second issue that the county court committed reversible error when it granted a directed verdict in favor of the Galloways as to statutory damages under section 95-5-10(2). Taylor asserts that this is error because he presented evidence of his good-faith belief that he actually owned the property.\\n\\u00b624. \\\"This Court reviews the trial court's grant or denial of a motion for a directed verdict under a de novo standard of review.\\\" Ryals v. Bertucci, 26 So.3d 1090, 1094 (\\u00b6 16) (Miss.Ct.App.2009). \\\"In conducting such a review, we 'must decide whether the facts presented, together with any reasonable inferences, considered in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.' \\\" Id. (quoting Troupe v. McAuley, 955 So.2d 848, 858 (\\u00b6 28) (Miss.2007)).\\n\\u00b6 25. To award statutory damages under section 95-5-10(2), the cutting must have been done \\\"willfully, or in reckless disregard for the rights of the owner of such tree.\\\" Further, section 95-5-10(2) specifically states what proof the Gallo-ways must offer:\\nTo establish the right of the owner pri-ma facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.\\n\\u00b6 26. Taylor argues that the county court erred when it granted a directed verdict on statutory damages and failed to submit this issue to the jury. Taylor claims that he submitted evidence that he did not act willfully or in reckless disregard for the Galloways' rights. We agree. Taylor's own testimony was sufficient to show that he did not act \\\"in conscious disregard for the rights of the owner,\\\" the Galloways. Taylor presented evidence that he believed he was the actual owner of the subject property. Thus, because there was conflicting evidence over whether Taylor acted willfully or in reckless disregard for the Galloways' rights, the issue should have been presented to the jury.\\n\\u00b6 27. The property in dispute was 3.92 acres of land that is located on the west side of Mt. Pilgram Road in Madison County, Mississippi. At trial, the parties disputed who owned the subject property. It was established that the Galloways were the actual owners, as evidenced by a warranty deed dated October 3, 1972. This fact is not disputed on appeal.\\n\\u00b6 28. Taylor testified that he believed that he owned the subject property. He asserts that this belief was a good-faith belief and negates any willfulness or reckless disregard for the Galloways' rights. Taylor's belief of ownership is based on his history of familial land ownership immediately adjacent to and surrounding the subject property. Taylor's grandfather owned several acres on the west and east sides of Mt. Pilgram Road. In 1954, Taylor's grandfather partitioned all of his property among his five children: parcel one went to Jerry Taylor, Taylor's father; parcel two went to Bessie Taylor B organ, Taylor's aunt; parcel three went to Mattie Taylor Shaw, Taylor's aunt; parcel four went to Willie Taylor, Taylor's uncle; and parcel five went to Emma Taylor Stewart, Taylor's aunt. Parcels four and five were on the west side of Mt. Pilgram Road, while the remaining parcels were on the east side of the road. In 1965, Taylor was deeded his father's property (parcel one), all of which was on the east side of Mr. Pilgram Road. Taylor testified that he believed he owned the subject property because he was born on the subject property in 1931, and he frequently played on the property as a child.\\n\\u00b6 29. In 2008, Taylor was preparing to sell portions of his property. He hired Kenneth Reese to survey his property, which Taylor thought included the subject property. Reese informed Taylor that he could not find any record evidence that Taylor owned the subject property.\\n\\u00b6 30. Nevertheless, on May 12, 2008, Taylor entered into a logging contract with Henson Logging to log the subject property along with another piece of property. Harold Henson paid Taylor for the timber Henson cut and removed from the subject property. According to the Galloways, the fact that Taylor was told there was no record evidence of Taylor owning the subject property is indicative of his willfulness or reckless disregard for their rights.\\n\\u00b6 31. Certainly, the Galloways may be correct. However, this issue should have been presented to a jury because Taylor presented conflicting evidence that he believed \\u2014 in good faith \\u2014 he owned the subject property. \\\"Credibility determination[s], the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.\\\" Garner v. Hickman, 733 So.2d 191, 194-95 (\\u00b6 13) (Miss.1999) (citation omitted). \\\"The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.\\\" Id. Because there was enough conflicting evidence as to whether Taylor acted willfully or in reckless disregard for the Galloways' ownership rights, the issue of statutory damages should have been submitted to the jury.\\n\\u00b6 32. As a result, we reverse the award of statutory damages under section 95-5-10(2) and remand the case to the circuit court for a new trial on statutory damages. On remand, the circuit court shall have a jury determine whether statutory damages should be assessed against Taylor, and if so, the amount of such damages.\\nIII. Whether the county court erred in awarding the Galloways' court costs, including attorney's fees, under Mississippi Code Annotated section 95-5-10(3).\\n\\u00b6 33. In his final issue, Taylor argues that the county court committed reversible error when it awarded court costs and attorney's fees. Section 95-5-10(3) provides that \\\"[a]ll reasonable expert witness fees and attorney's fees shall be assessed as court costs in the discretion of the court.\\\" This provision gives a \\\"trial judge discretion to award expert witness fees and attorneys' fees to a litigant who prevails on a claim of cutting of timber.\\\" Stockstill v. Gammill, 943 So.2d 35, 49 (\\u00b6 29) (Miss.2006) (citation omitted). Our supreme court has ruled:\\nWith the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, this Court has never approved awarding trial expenses and attorney's fees to the successful litigant. It has consistently been our view that such expenses are not allowable as part of the costs. Even where legal counsel for plaintiff unnecessarily put the opposing side to extra legal and trial expenses[,] we refused to permit an award of attorney's fees.\\nId. (quoting Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986)). Further, in Stockstill, our supreme court held that a trial judge properly refused to award court costs and attorneys' fees where the cutting of timber was done by mistake, and no statutory damages were awarded. Id. at 49-50 (\\u00b6\\u00b6 29-30).\\n\\u00b6 34. Because we reverse and remand the issue of statutory damages under section 95-5-10(2), we also reverse and remand the issue of court costs and attorney fees. We make no finding as to whether such costs should be assessed. Instead, section 95-5-10(3) gives the court discretion to award such costs, and the appropriate time to consider such award is at the conclusion of the case.\\nCONCLUSION\\n\\u00b6 35. The award of compensatory damages was not the subject of this appeal. Thus, our conclusion does not impact the award of damages under section 95-5-10(1). We reverse the court's entry of a directed verdict in favor of the Galloways as to the award of statutory damages under section 95-5-10(2) and remand the case to the circuit court for the jury to consider whether such damages are appropriate. We also reverse and remand the award of court costs, which included the Galloways' attorney's fees. At the conclusion of this matter, the trial court in its discretion shall determine whether to assess court costs and attorney's fees under section 95-5-10(3).\\n\\u00b6 36. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.\\nBARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND MAXWELL, J.\\n. Mississippi Rule of Evidence 105 provides:\\nLIMITED ADMISSIBILITY\\nWhen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. The official comment to the rule provides: This rule is a reflection of the existing practice of admitting evidence regarding one party or one purpose and excluding it as regarding another party or another purpose. .\\nThe rule requires that the party affected make a request to limit the evidence. If no request is made, and consequently the evidence is admitted, existing practice suggests that no error has been committed. See Freed v. Killman, 192 Miss. 643, 6 So.2d 909 (1942).\\n. The Galloways later purchased Willie Taylor's property, which was adjacent to and north of the subject property on the west side of Mt. Pilgrim Road.\\n. The remand to the circuit court is required pursuant to Mississippi Code Annotated section 11-51-79 (Rev.2012).\"}"

miss/7049546.json

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+"{\"id\": \"7049546\", \"name\": \"Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Oliver v. State\", \"decision_date\": \"2009-04-14\", \"docket_number\": \"No. 2007-CP-02071-COA\", \"first_page\": \"16\", \"last_page\": \"24\", \"citations\": \"20 So. 3d 16\", \"volume\": \"20\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:39:09.769167+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEE, P.J., GRIFFIS and BARNES, JJ.\", \"parties\": \"Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2007-CP-02071-COA.\\nCourt of Appeals of Mississippi.\\nApril 14, 2009.\\nRehearing Denied July 28, 2009.\\nCertiorari Denied Oct. 29, 2009.\\nJessie Montrell Oliver, pro se.\\nOffice of the Attorney General by Deirdre Mccrory, attorney for appellee.\\nBefore LEE, P.J., GRIFFIS and BARNES, JJ.\", \"word_count\": \"3358\", \"char_count\": \"20447\", \"text\": \"BARNES, J.,\\nfor the Court.\\n\\u00b6 1. Jessie Montrell Oliver pleaded guilty in the Circuit Court of DeSoto County to three counts of armed robbery and was sentenced to ten years on each count, to be served in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively, followed by ten years of post-release supervision (five years reporting and five years non-reporting). Oliver, proceeding pro se, filed a motion for post-conviction relief, which the circuit court summarily denied. Oliver now appeals. Finding no error, we affirm.\\nSUMMARY OF FACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. Although the record provides very little detail as to the underlying crimes in this case, we can discern that Oliver and his accomplices committed armed robberies of various Hispanic males in DeSoto County over a period of several days in July 2005. Oliver was indicted in April 2006 for conspiracy to commit armed robbery, three counts of armed robbery, and one count of aggravated assault. On October 20, 2006, Oliver pleaded guilty to the three counts of armed robbery and was sentenced to ten years to serve in the custody of the MDOC in Count II, ten years to serve in the custody of the MDOC in Count III, which was ordered to run consecutively to the sentence for Count II, and ten years to serve in the custody of the MDOC in Count IV to be followed by ten years of post-release supervision (five years reporting and five years non-reporting) with this sentence to run consecutively to Count II and Count III. Counts I and V were remanded to the file.\\n\\u00b6 3. On September 26, 2007, Oliver filed a motion for post-conviction relief to vacate and set aside his convictions and sentences, asserting several errors. The circuit court denied Oliver's motion for post-conviction relief on October 31, 2007, stating no evidentiary hearing was warranted. Oliver filed his notice of appeal on November 12, 2007.\\nSTANDARD OF REVIEW\\n\\u00b6 4. We will not disturb a circuit court's denial of a motion for post-conviction relief unless the decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(\\u00b6 3) (Miss.Ct.App.2002). \\\"A [circuit] court may dismiss a motion for post-conviction relief 'if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.' \\\" Dyson v. State, 996 So.2d 172, 173(\\u00b6 3) (Miss.Ct.App.2008) (quoting Miss.Code Ann. \\u00a7 99-39-11(2) (Rev.2007)). \\\"However, where questions of law are raised the applicable standard of review is de novo.\\\" Williams v. State, 872 So.2d 711, 712(\\u00b6 2) (Miss.Ct.App.2004) (citation omitted).\\nI. Whether Oliver was denied due process and subjected to an illegal sentence as a first-time offender.\\n\\u00b6 5. Oliver contends that, as a first-time offender, he received an unduly harsh sentence. \\\"Sentencing is within the discretion of the trial court and will not be disturbed on appeal absent a finding of abuse of discretion.\\\" Brown v. State, 989 So.2d 882, 886(\\u00b6 20) (Miss.Ct.App.2007) (citing Kirksey v. State, 728 So.2d 565, 568(1114) (Miss.1999)). \\\"This Court will not disturb a sentence that is imposed as long as the sentence is within the terms set forth in the statute.\\\" Lee v. State, 918 So.2d 87, 88(\\u00b6 4) (Miss.Ct.App.2006). The mere fact that \\\"a defendant is convicted of a felony for the first time does not preclude a maximum sentence.\\\" Johnson v. State, 908 So.2d 900, 902(\\u00b6 6) (Miss.Ct.App. 2005) (citing Nichols v. State, 826 So.2d 1288, 1292(\\u00b6 16) (Miss.2002)). Thus, the sentence that Oliver received, which was not the maximum sentence available, was not illegal, even if he had been a first-time offender. However, upon review, we find Oliver's claim of being a first-time offender completely devoid of merit as he admitted to previous convictions of possession of stolen property and burglary of a vehicle in his petition to enter his pleas of guilty.\\nII. Whether Oliver's sentences were excessive, disproportionate, and resulted in a violation of the Fifth and Fourteenth Amendments to the United States Constitution.\\n\\u00b6 6. Oliver claims that the sentences imposed by the circuit court were excessive and disproportionate to the offenses as they exceeded Oliver's life expectancy. Oliver calculates that, at the time of his birth, his life expectancy was sixty-four years. He was twenty-seven years old at sentencing; therefore, he claims that forty years is, in effect, a life sentence and that the circuit court judge should have conducted a \\\"sentencing proportionality analysis\\\" prior to imposing Oliver's sentence.\\n\\u00b6 7. As already stated, \\\"[a]s a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal.\\\" Towner v. State, 837 So.2d 221, 227(\\u00b6 20) (Miss.Ct. App.2003) (citing Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992)). \\\"A sentence is subject to review, however, where it is alleged that the penalty imposed is disproportionate to the crime charged.\\\" Williams v. State, 784 So.2d 230, 236(\\u00b6 13) (Miss.Ct.App.2000). In Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court developed a three-prong analysis to identify whether a sentence was disproportionate by reviewing: (1) the gravity of the crime and harshness of the penalties, (2) other criminals' sentences in the same jurisdiction for the same crimes, and (3) sentences other jurisdictions impose for commission of the same crime. In Hoops v. State, 681 So.2d 521, 538 (Miss.1996), the Mississippi Supreme Court further clarified that the Solem three-prong analysis only applies \\\"when a threshold comparison of the crime committed to the sentence imposed leads to an inference of 'gross disproportionality.' \\\" (Citation omitted).\\n\\u00b6 8. The Mississippi Supreme Court has stated that:\\nIn cases where the judge has in effect sentenced the defendant to a term of years that is basically a life sentence, the rule that governs in Mississippi is the one set out in the case Stewart v. State, 372 So.2d 257, 259 (Miss.1979). The rule as set out by the Stewart case states, \\\"... the trial court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term of years reasonably expected to be less than life. The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.\\\" Stewart, 372 So.2d at 259.\\nLindsay v. State, 720 So.2d 182, 185(\\u00b611) (Miss.1998). \\\"[A] trial court has to consid er a defendant's life expectancy when determining the length of a sentence in armed robbery convictions.\\\" Cannon v. State, 919 So.2d 913, 917(\\u00b6 11) (Miss.2005). However, \\\"[a] sentence is not an illegal life sentence if it is reasonably calculated to be less than life.\\\" Roland v. State, 939 So.2d 810, 812(\\u00b6 7) (Miss.Ct.App.2006).\\n\\u00b6 9. Oliver recognizes that he pleaded guilty to three counts of armed robbery, which the circuit court informed him at the plea hearing could carry a sentence of less than life on each count. See Gaskin v. State, 618 So.2d 103, 108 (Miss.1993) (without a jury recommendation, the maximum penalty for armed robbery is \\\"a definite term [of years] . less than life\\\"). Therefore, \\\"[e]ach sentence imposed for conviction of multiple offenses is to be imposed without respect to each other, even where the several offenses grew out of a single unbroken chain of events.\\\" McCline v. State, 856 So.2d 556, 560(\\u00b6 19) (Miss.Ct.App.2003) (citing Erwin v. State, 557 So.2d 799, 803 (Miss.1990)). \\\"This remains true even though the aggregation of the sentences exceeds the defendant's actuarial life expectancy.\\\" Id.\\n\\u00b6 10. However, Oliver counters by claiming that the armed robbery was really just one crime, broken into multiple crimes in order to lengthen the sentence. He also argues that his co-defendant, Arri-ca Jefferson, only received five years, which indicates that his sentence was disproportionate. We reject both of these arguments. Oliver knowingly and voluntarily pleaded guilty to all three counts of armed robbery and was fully informed of the maximum and minimum sentence for each count. As to the issue of Jefferson's sentence, we find that her sentence has no bearing on Oliver's sentences. The plea colloquy shows that Jefferson pleaded guilty to conspiracy, not armed robbery. In order to make a finding of disproportionate sentencing under Solem, the sentences for the same crimes must be comparable. Solem, 463 U.S. at 292, 103 S.Ct. 3001.\\n\\u00b6 11. Regardless, Oliver was only sentenced to a total of thirty years' imprisonment. The remaining ten years were under post-release supervision. This would mean that Oliver, who was twenty-seven when he was sentenced, would be fifty-seven years old when he is released, which is less than Oliver's alleged life expectancy of sixty-four years old. We find no error in the sentences imposed by the circuit court as they were not excessive or disproportionate.\\nIII. Whether the circuit court erred in failing to advise Oliver of his right to a direct appeal to the Mississippi Supreme Court of the imposed sentence.\\n1112. Oliver states that the circuit court erred in failing to advise him that he could appeal his sentences directly to the Mississippi Supreme Court. \\\"[W]hile [Mississippi Code Annotated] section 99-35-101 (Rev.2007) prevents a defendant from appealing his guilty plea itself, a defendant may pursue a direct appeal asserting the illegality of the sentence imposed pursuant to his guilty plea.\\\" Flowers v. State, 978 So.2d 1281, 1285(\\u00b6 11) (Miss.Ct. App.2008). Oliver cites Trotter v. State, 554 So.2d 313 (Miss.1989) for the proposition that a circuit court judge must inform a defendant who pleads guilty that he has the right to appeal his sentence. Nevertheless, although Trotter allows a criminal defendant who pleads guilty to \\\"challenge the sentence that results from the guilty plea on direct appeal[,].... [it] does not stand for the proposition that a trial judge must inform a criminal defendant about his right to directly appeal the sentence resulting from the guilty plea.\\\" Coleman v. State, 979 So.2d 731, 733(\\u00b6 4) (Miss.Ct.App.2008). Accordingly, we find no error in the circuit court's failure to advise Oliver that he had the right to appeal his sentence.\\nIY. Whether Oliver received ineffective assistance of counsel.\\n\\u00b6 13. Oliver claims that he received ineffective assistance of counsel due to (1) counsel's failure to advise him of his right to a speedy trial, and (2) counsel's failure to summon witnesses and conduct an adequate pretrial investigation.\\n\\u00b6 14. For Oliver to establish ineffective assistance of counsel, he \\\"must demonstrate that his attorney's performance was deficient and that this deficiency deprived him of a fair trial.\\\" Beene v. State, 910 So.2d 1152, 1155(\\u00b6 10) (Miss.Ct.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). \\\"[T]here is a strong presumption that counsel's performance falls within the range of reasonable professional assistance [and].... [t]o overcome this presumption, 'the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.' \\\" Madden v. State, 991 So.2d 1231, 1236-37(\\u00b623) (Miss.Ct.App.2008) (citing Strickland, 466 U.S. at 689, 694, 104 S.Ct. 2052).\\nA. Right to Speedy Trial\\n\\u00b6 15. Oliver contends that his defense counsel failed to advise him of his right to a speedy trial prior to the entry of his guilty pleas and that his constitutional rights were violated as there was a delay of more than 270 days between his date of arrest and the trial date. \\\"[A] valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial including the right to a speedy trial, whether of constitutional or statutory origin.\\\" Madden, 991 So.2d at 1237(\\u00b6 25) (quoting Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). \\\"However, this Court may entertain a speedy trial claim in the context of ineffective assistance of counsel.\\\" Hardin v. State, 966 So.2d 844, 847(\\u00b6 11) (Miss.Ct.App.2007) (citing Thomas v. State, 933 So.2d 995, 997(\\u00b64) (Miss. Ct.App.2006)). In order for Oliver to prevail on his claim for ineffective assistance of counsel, he must demonstrate that, but for counsel's errors, his speedy trial claim would have succeeded. Id. at (\\u00b6 7).\\n\\u00b6 16. \\\"The constitutional right to a speedy trial attaches at the time a person is accused, whether at arrest, indictment, or information.\\\" Robinson v. State, 920 So.2d 1015, 1018(\\u00b6 6) (Miss.Ct. App.2005) (citing Smith v. State, 550 So.2d 406, 408 (Miss.1989)). The statutory right to a speedy trial, however, attaches from the date of arraignment. The record reflects that Oliver was taken into custody on August 24, 2005. However, Oliver was not served with a copy of his indictment until April 20, 2006. Oliver also waived his arraignment that same day in the pretrial scheduling order. \\\"If a defendant waives arraignment, that date is considered day one on the speedy trial calendar.\\\" Mayo v. State, 886 So.2d 734, 738(11 17) (Miss.Ct. App.2004) (citation omitted). A trial date was originally set for June 26, 2006, but Oliver's defense counsel filed two motions for continuance, which moved the trial date to November 13, 2006. As there was only a six-month delay between the arraignment and the guilty pleas, mainly due to continuances filed on behalf of Oliver, we find no violation of Oliver's statutory right to a speedy trial.\\n1117. However, in order to assess Oliver's constitutional right to speedy trial claim, this Court must employ the balancing test in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which \\\"requires consideration of the following factors: (1) length of the delay, (2) reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay.\\\" Thomas, 933 So.2d at 997(\\u00b6 7).\\ni. Length of the Delay\\n\\u00b6 18. In considering the first factor, any delay that is more than eight months is presumptively prejudicial and requires the Court to consider the remaining three factors. Id. at (\\u00b6 8). Oliver was arrested on or about August 24, 2005. The circuit court judge noted that Oliver had served 432 days prior to his guilty plea hearing, clearly over eight months, requiring the Court to address the other factors.\\nii. Reason for the Delay\\n\\u00b6 19. As already noted, Oliver requested two continuances after his arraignment and indictment, creating a delay of only 127 days from the original trial date of June 26, 2006. Continuances aside, there is still a delay of over 300 days, more than eight months, from Oliver's arrest date. Therefore, this factor would weigh in Oliver's favor.\\niii. Whether the Defendant Asserted His Right to a Speedy Trial\\n\\u00b6 20. \\\"While the State bears the responsibility to timely bring the accused to trial, the defendant has some responsibility to assert the speedy trial right.\\\" Robinson, 920 So.2d at 1018-19(\\u00b6 9) (citing Wiley v. State, 582 So.2d 1008, 1012 (Miss. 1991)). We find no evidence to show that Oliver asserted such right. However, as he might claim ineffective assistance of counsel based on his attorney's failure to assert the right, we will, for the sake of argument, weigh this factor as neutral.\\niv. Whether the Defendant was Prejudiced by the Delay\\n\\u00b6 21. \\\"[T]hree primary considerations in evaluating whether the defendant has been prejudiced by the delay are: (1) the prevention of oppressive pre-trial incarceration; (2) the minimization of anxiety and concern of the accused; and (3) limiting the possibility the defense will be impaired.\\\" Id. at 1019(\\u00b6 10) (citation omitted). Oliver has not provided this Court with any evidence, other than his pretrial incarceration, which would show how any delay constituted prejudice. We have found that \\\"pre-trial incarceration, without more, is not considered prejudicial.\\\" Id. at (\\u00b6 11). Consequently, we find that Oliver has not established prejudice attributable to the delay in his prosecution.\\n\\u00b6 22. We conclude that there is no ineffective assistance of counsel as Oliver has failed to show this Court how any filing of a motion for a speedy trial would have succeeded. This issue is without merit.\\nB. Failure to Summon Witnesses and Perform Pretrial Investigation\\n\\u00b623. Oliver also asserts that counsel rendered ineffective assistance of counsel in her failure to call witnesses or perform any pretrial investigation. A defendant is obligated to provide \\\"more than conclusory allegations on a claim of ineffective assistance of counsel.\\\" Carpenter v. State, 899 So.2d 916, 921(\\u00b623) (Miss.Ct. App.2005) (citing Wilcher v. State, 863 So.2d 776, 824 (\\u00b6 169) (Miss.2003)). In order for an attorney's \\\"failure to investigate to rise to the level of ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.\\\" Johnson v. State, 987 So.2d 501, 504(\\u00b6 15) (Miss.Ct.App.2008) (citation omitted). While we recognize that defense counsel has a \\\"duty to interview potential witnesses and make an independent investigation of the facts and circumstances of [a] case[,] . a failure to do such will not alone give rise to ineffective assistance of counsel.\\\" Reed v. State, 918 So.2d 776, 778(\\u00b6 5) (Miss.Ct.App.2005) (citing Brown v. State, 798 So.2d 481, 496(\\u00b6 21) (Miss.2001)). Rather the failure to investigate must satisfy the second prong of the Strickland test and affect whether Oliver would have entered his guilty pleas. Id.\\n\\u00b6 24. Oliver has failed to provide this Court with any specific information to this effect. In addition, in Oliver's signed petition to enter a guilty plea, he stated: \\\"I believe that my lawyer is competent and has done all that anyone could do to counsel and assist me, and I am fully satisfied with the advice and help he has given me.\\\" Therefore, we find no merit to this issue.\\n\\u00b6 25. Oliver also claims that as his attorney represented other co-defendants, it was a conflict of interest. In order to prove a conflict of interest, the defendant must demonstrate \\\"that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.\\\" Moore v. State, 985 So.2d 365, 369(\\u00b6 13) (Miss.Ct.App.2008). Again, Oliver has made no such showing.\\n\\u00b6 26. Accordingly, we find that counsel's performance was not deficient, and this issue is without merit.\\nV. Whether the circuit court erred in failing to allow the record to contain a transcript of the guilty plea colloquy.\\n\\u00b6 27. Oliver claims that the circuit court failed to include designated records, specifically the guilty plea colloquy, in the appeal to this Court. As the record before us contains the transcript from the plea colloquy, we find that this assignment of error is without merit.\\n\\u00b6 28. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.\\nKING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ\\\" CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.\\n. Section 99-35-101 of the Mississippi Code Annotated was amended, effective July 1, 2008, to provide that \\\"where [a] defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.\\\" Miss.Code Ann. \\u00a7 99-35-101 (Supp.2008) (emphasis added). However, this change was not in effect at the time of Oliver's entry of his guilty pleas, and as such, it is not applicable here.\\n. Mississippi Code Annotated section 99-17-1 (Rev.2007) states that: \\\"Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned,\\\"\"}"

miss/7059330.json

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+"{\"id\": \"7059330\", \"name\": \"Jermail HUMPHRIES, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Humphries v. State\", \"decision_date\": \"2009-09-15\", \"docket_number\": \"No. 2008-KA-00912-COA\", \"first_page\": \"305\", \"last_page\": \"310\", \"citations\": \"18 So. 3d 305\", \"volume\": \"18\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:18:50.626134+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KING, C.J., BARNES and CARLTON, JJ.\", \"parties\": \"Jermail HUMPHRIES, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Jermail HUMPHRIES, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2008-KA-00912-COA.\\nCourt of Appeals of Mississippi.\\nSept. 15, 2009.\\nLeslie S. Lee, Jackson, Benjamin Allen S\\u00faber, attorneys for appellant.\\nOffice of the Attorney General by Lisa Lynn Blount, attorney for appellee.\\nBefore KING, C.J., BARNES and CARLTON, JJ.\", \"word_count\": \"2056\", \"char_count\": \"13013\", \"text\": \"CARLTON, J.,\\nfor the Court.\\n\\u00b6 1. A Hinds County Circuit Court jury convicted Jermail Humphries of the murder of Armond Butler. The trial court sentenced Humphries to life in the custody of the Mississippi Department of Corrections (MDOC).\\n\\u00b6 2. Humphries argues on appeal that he is, at most, guilty of manslaughter, and asks this Court to reverse his murder conviction and remand his case for a new trial or for re-sentencing on manslaughter. We find no error and affirm Humphries's conviction and sentence.\\nFACTS\\n\\u00b6 3. On September 28, 2006, Zarccheaus Anderson and Michael Buckhalter got into a fight in Jackson, Mississippi over a basketball game. Following the initial altercation, Anderson went to a nearby house, where he related the story of the fight to, among others, the defendant, Humphries.\\n\\u00b6 4. Humphries, Buckhalter, and two other people then drove back to the basketball court, where Buckhalter and Anderson began to fight again. During this second fight, other people became involved, including Buckhalter's friend, Sel-ester Jones, who fought directly with Humphries. After ending up on the ground and receiving a blow to the head, Humphries drew a gun and fired in the air, breaking up the fight and dispersing the crowd.\\n\\u00b6 5. When Anderson and Humphries later encountered Jones, Tian Short, and a group of young people walking down a street, a verbal confrontation ensued. Humphries again fired his gun in the air, causing Jones, Short, and the group to flee. He then fired shots in the general direction of the fleeing group.\\n\\u00b6 6. Later on, while still walking around the neighborhood, Jones, Short, and others encountered Butler and Jerrick Nichols and discussed the fight between Anderson and Buckhalter. A car in which Hum-phries rode passed by this group once, with Humphries hanging out of the window brandishing a gun. The car soon reappeared, at which time Humphries stepped out of the car, drew his gun, rested his hands on the car's roof, and began shooting at the fleeing group. Butler suffered a fatal gunshot wound. Humphries claims he fired his gun over the top of a house in the direction the group ran and that someone else fired shots, although he does not know who.\\n\\u00b6 7. A Hinds County grand jury indicted Humphries for depraved-heart murder pursuant to Mississippi Code Annotated section 97-3-19 (Rev.2006). After the trial, the jury convicted Humphries of murder. The trial court then sentenced Hum-phries to life in the custody of the MDOC.\\n\\u00b6 8. Humphries now appeals his conviction and sentence, raising the following assignments of error: (1) the jury instructions did not properly distinguish between depraved-heart murder and culpable-negligence manslaughter because the instructions did not accurately state the law and did not define the elements of manslaughter, and (2) the evidence presented at trial was insufficient to support a murder conviction.\\nI. Whether the jury instructions were confusing regarding the difference in depraved-heart murder and culpable-negligence manslaughter.\\n\\u00b6 9. Humphries alleges in his first assignment of error that the trial court's failure to properly distinguish between depraved-heart murder and culpable-negligence manslaughter in its jury instructions constitutes reversible error. Humphries further alleges that the trial court failed to instruct the jury on the elements of culpable-negligence manslaughter.\\n\\u00b6 10. This Court has articulated the standard of review for challenges to jury instructions: \\\"In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.\\\" Johnson v. State, 823 So.2d 582, 584(\\u00b6 4) (Miss.Ct.App.2002) (quoting Collins v. State, 691 So.2d 918, 922 (Miss.1997)).\\n\\u00b6 11. \\\"In order to preserve a jury[-]instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue.\\\" Crawford v. State, 787 So.2d 1236, 1245(\\u00b6 35) (Miss.2001). Ordinarily, a \\\"party's failure to object to jury instructions at trial procedurally bars the issue on appeal.\\\" Hawthorne v. State, 835 So.2d 14, 19(\\u00b6 20) (Miss.2003) (citing Walker v. State, 729 So.2d 197, 202(\\u00b6 19) (Miss.1998)). Hum-phries not only failed to object at the trial level to jury instruction D-4, which defined culpable negligence, he submitted the instruction. Moreover, the instruction is virtually identical to the instruction defining culpable negligence manslaughter upheld in Mullen v. State, 986 So.2d 320, 324 (\\u00b6\\u00b6 13-15) (Miss.Ct.App.2007).\\n\\u00b6 12. Although Humphries did object to jury instruction S-2, which defined depraved-heart murder and distinguished it from culpable-negligence manslaughter, he based his objection on the sufficiency of the evidence. At no time did Humphries object to the jury instruction defining depraved-heart murder and distinguishing it from culpable-negligence manslaughter on the grounds that it was an unclear misstatement of the law. Lacking such an objection, we find this assignment of error is procedurally barred.\\n\\u00b6 13. Where a party fails to raise an objection at trial, he is limited on appeal to arguing that the error constituted plain error, which requires the party to show that the trial court's failure affected a substantial right. Waldon v. State, 749 So.2d 262, 267(\\u00b6 14) (Miss.Ct.App.1999) (citing Brown v. State, 690 So.2d 276, 297 (Miss.1996)). Humphries makes no such showing. Mississippi Code Annotated section 97 \\u2014 3\\u201419(l)(b) (Rev.2006) provides the following definition of depraved heart murder:\\n(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:\\n(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.]\\n\\u00b6 14. The challenged jury instructions recited this statutory language almost verbatim. The Mississippi Supreme Court has \\\"consistently held that instructions in a criminal case which follow the language of a pertinent statute are sufficient.\\\" Crenshaw v. State, 520 So.2d 131, 135 (Miss.1988).\\n\\u00b6 15. Mississippi Code Annotated section 97-3-47 (Rev.2006) defines manslaughter as \\\"[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law[.]\\\" The jury instructions properly defined culpable negligence as \\\"conduct which exhibits or manifests wanton or reckless disregard for the safety of human life, or such indifference to the consequences of the defendant's acts under the surrounding circumstances as to render his conduct tantamount to wilfulness.\\\" In addition to the fact that Humphries offered the instruction in question, the Mississippi Supreme Court has endorsed a functionally identical jury instruction. See Shumpert v. State, 935 So.2d 962, 967(\\u00b6 14) (Miss.2006) (defining manslaughter by culpable negligence as \\\"such gross negligence . as to evince a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of an act under the surrounding circumstances as to render such conduct tantamount to willfulness\\\").\\n\\u00b6 16. While Humphries argues that the definitions for depraved-heart murder and culpable-negligence manslaughter are so similar as to create confusion in the minds of jurors, the two crimes are made distinct by the degree of mental culpability, an issue properly resolved by a jury. Id. Jury instruction S-2 drew attention to this distinction, stating that depraved-heart murder \\\"involves a higher degree of recklessness from which malice or deliberate design . may be implied.\\\"\\n\\u00b6 17. Humphries correctly observes that the jury did not receive instructions on the elements of manslaughter. He neglects to mention, however, that he failed to object to this omission at trial and even withdrew his proposed jury instruction that would have provided these elements. Moreover, a review of the record reflects that the offense of manslaughter was not fairly raised by the evidence. The trial court instructed the jury on the elements of depraved-heart murder, the difference between depraved-heart murder and culpable negligence manslaughter, and the meaning of culpable negligence. When the instructions are read as a whole, as the law requires, the jury instructions given correctly and clearly summarized the law; therefore, we find that no injustice resulted from the lack of a separate instruction containing the elements of manslaughter. This assignment of error is without merit.\\nII. Whether the evidence was legally sufficient.\\n\\u00b6 18. Humphries alleges in his second assignment of error that the evidence at trial was insufficient to support a conviction for murder, arguing that: (1) the State presented no evidence of premeditation; (2) Humphries did not intend to hurt Butler when he fired shots in Butler's direction; and (3) another person must have fired the fatal shot.\\n\\u00b6 19. In reviewing issues of legal sufficiency, the Court does not \\\"ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.\\\" Bush v. State, 895 So.2d 836, 843(16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Rather, the Court will \\\"view the evidence in the light most favorable to the prosecution and determine whether a rational juror could have concluded beyond a reasonable doubt that all elements of the crime were satisfied.\\\" Readus v. State, 997 So.2d 941, 944(\\u00b6 13) (Miss.Ct.App.2008) (citation omitted). \\\"The proper remedy for insufficient evidence is for the Court to reverse and render.\\\" Id. (citation omitted). Viewing the evidence in the light most favorable to the prosecution, we find sufficient evidence in the record to support Humphries's conviction of murder.\\n\\u00b6 20. Several eyewitnesses testified that Humphries stepped out of a car, placed his hands on the roof of the car, and pointed a gun in the direction of a group of people that included Butler. The eyewitnesses fled from Humphries but heard bullets \\\"whizzing\\\" past them. No one testified to seeing anyone else fire a gun; Humphries presented no evidence in support of his theory of a second shooter. While Humphries argues there is no evidence of premeditation and that he did not intend to harm Butler, the depraved-heart murder statute does not require a premeditated design to kill or animus toward any particular individual. Humphries's argument, quite simply, misses the point. Instead, the inquiry should focus on whether there is sufficient evidence that Hum-phries's actions were eminently dangerous to others, evincing a depraved heart or without any regard for human life. Rational jurors were free to conclude, despite Humphries's asserted defenses, that: Humphries was the only shooter; he shot into a fleeing crowd of people; and his bullet struck Butler. These inferences were perfectly rational in light of the evidence presented at trial. Shooting into a crowd of people is not only a possible form of depraved-heart murder, it is the classic example of depraved-heart murder. See Readus, 997 So.2d at 942-944 (\\u00b6\\u00b6 4-11) (calling the act of shooting into a crowd the \\\"classic example of depraved[-]heart murder\\\" and holding that evidence was sufficient to support depraved-heart murder where the defendant fired shots inside an apartment that contained several unarmed individuals, even though the defendant claimed to have only intended to fire his gun in the air).\\n\\u00b6 21. We have carefully reviewed the record in this case. Examining the evidence in the light most favorable to the prosecution, we find that a rational juror could find Humphries guilty of depraved-heart murder beyond a reasonable doubt. Although Humphries may have disputed where he pointed his gun when he shot and whether anyone else fired shots, factual disputes raised at trial \\\"are properly resolved by the jury and do not mandate a new trial.\\\" Jones v. State, 791 So.2d 891, 895(\\u00b6 12) (Miss.Ct.App.2001) (quoting Benson v. State, 551 So.2d 188, 193 (Miss.1989)). This assignment of error is without merit.\\n\\u00b6 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.\\nKING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.\"}"

miss/7436242.json

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+"{\"id\": \"7436242\", \"name\": \"Oliver PATTON, Jr. a/k/a Walter Patton a/k/a Arthur Patton a/k/a Johnny Harold McFarland a/k/a Willie Henderson a/k/a Albert Jackson v. STATE of Mississippi\", \"name_abbreviation\": \"Patton v. State\", \"decision_date\": \"1996-06-18\", \"docket_number\": \"No. 93-KA-00194-COA\", \"first_page\": \"808\", \"last_page\": \"808\", \"citations\": \"687 So. 2d 808\", \"volume\": \"687\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:26:53.332064+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRIDGES, P.J., and DIAZ and PAYNE, JJ.\", \"parties\": \"Oliver PATTON, Jr. a/k/a Walter Patton a/k/a Arthur Patton a/k/a Johnny Harold McFarland a/k/a Willie Henderson a/k/a Albert Jackson v. STATE of Mississippi.\", \"head_matter\": \"Oliver PATTON, Jr. a/k/a Walter Patton a/k/a Arthur Patton a/k/a Johnny Harold McFarland a/k/a Willie Henderson a/k/a Albert Jackson v. STATE of Mississippi.\\nNo. 93-KA-00194-COA.\\nCourt of Appeals of Mississippi.\\nJune 18, 1996.\\nJames L. Farrior, III, Gulfport, for Appellant.\\nMichael C. Moore, Attorney General, Jean Smith Vaughan, Sp. Asst. Attorney General, Jackson, for Appellee.\\nBefore BRIDGES, P.J., and DIAZ and PAYNE, JJ.\", \"word_count\": \"98\", \"char_count\": \"668\", \"text\": \"Appeal No. 8510529 from Judgment dated October 3, 1986; Robert T. Mills, Ruling Judge, Jackson County Circuit Court.\\nAffirmed.\\nFRAISER, C.J., and BARBER, COLEMAN, KING, MeMILLIN and SOUTHWICK, JJ., concur.\\nTHOMAS, P. J., not participating.\"}"

miss/7437018.json

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+"{\"id\": \"7437018\", \"name\": \"The MISSISSIPPI BAR v. John Thomas MURPHY, Jr.\", \"name_abbreviation\": \"Mississippi Bar v. Murphy\", \"decision_date\": \"1996-05-30\", \"docket_number\": \"No. 95-BD-00973-SCT\", \"first_page\": \"845\", \"last_page\": \"846\", \"citations\": \"675 So. 2d 845\", \"volume\": \"675\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:16:16.608292+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The MISSISSIPPI BAR v. John Thomas MURPHY, Jr.\", \"head_matter\": \"The MISSISSIPPI BAR v. John Thomas MURPHY, Jr.\\nNo. 95-BD-00973-SCT.\\nSupreme Court of Mississippi.\\nMay 30, 1996.\", \"word_count\": \"1137\", \"char_count\": \"6696\", \"text\": \"ORDER OF DISBARMENT\\nMeRAE, Justice.\\nThis matter came before the Court sitting en banc as a Formal Complaint filed on September 26, 1995 by the Mississippi Bar against John Thomas Murphy, Jr., a member of the Bar now serving time in federal prison in Pensacola, Florida.' Since Murphy entered a guilty plea to a felony charge in federal court, the Bar sought to disbar him pursuant to Rule 6(a) of the Rules of Discipline for the Mississippi Bar. This Court entered an Order to Show Cause on February 15, 1996. More than thirty days have passed and Murphy has not shown cause as to why he should not be disbarred. The Court, having fully considered the Formal Complaint and being fully advised in the premises, finds as follows:\\nMurphy entered a guilty plea on June 15, 1995 to one count of theft or embezzlement of government property pursuant to 18 U.S.C. \\u00a7 641 in the United States District Court, Southern District of Mississippi. He was sentenced on August 25, 1995 to serve five months in the custody of the United States Bureau of Prisons and upon release, to serve an additional three years supervised release. He further was ordered to pay $38,-207.26 in restitution. Judgment was entered in United States v. Murphy, No. 3:95cr22LS (S.D.Miss. Aug. 30, 1995).\\nRule 6(a) of the Rules of Discipline provides as follows for the disbarment of an attorney who pleads guilty to a felony:\\nWhenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contendere therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. \\u00a7 99-15-26 (Supp. 1993), or any similar provision in state or federal law therein of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment of conviction or order accepting and acknowledging the offer or tender of a guilty plea pursuant to Miss. Code Ann. \\u00a7 99-15-26 (Supp.1993), or any similar provision in the state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.\\nPursuant to this rule, entry of a plea of guilty to a felony mandates automatic disbarment. Mississippi Bar v. Sykes, 637 So.2d 192 (Miss.1994). This Court has stated that disbarment \\\"serves to help to preserve the dignity and reputation of the legal profession and also ensures protection of the public from such conduct.\\\" In re Baker, 649 So.2d 850, 853 (Miss.1995).\\nIT IS THEREFORE ORDERED as follows:\\n1. John Thomas Murphy, Jr. is hereby disbarred from the practice of law in the State of Mississippi and his name shall be immediately removed from the rolls of the Mississippi State Bar;\\n2. The Clerk of the Supreme Court of Mississippi (the Clerk) shall immediately forward to the attorneys of record for each party herein a copy of this Order of Disbarment, and shall send Mr. Murphy's copy by certified mail, return receipt requested;\\n3. The Clerk shall immediately forward an attested copy of this Order of Disbarment to the Clerks of the United States District Coui't, Northern and Southern Districts of Mississippi, to the Clerk of the United States Court of Appeals for the Fifth Circuit, and to the Clerk of the Supreme Court of the United States;\\n4. The Clerk shall immediately forward an attested copy of this Order of Disbarment to the judges of the circuit, chancery and county courts of the districts where Murphy resided and practiced law, with instructions to include a copy of this judgment upon the minutes of their respective courts;\\n5. The Clerk shall forward an attested copy of this Order of Disbarment to the Executive Director of the Mississippi State Bar;\\n6. The Bar is entitled to recover from Mr. Murphy all costs of this disciplinary proceeding, as well as all previously assessed sums. The Bar shall file its Motion for Costs and Expenses with the Coui't within ten (10) days of the filing of this Order;\\n7. Mr. Murphy is hereby enjoined from practicing law in Mississippi; from holding himself out as an attorney at law; from performing any legal service for others; from accepting any fee directly or indirectly for legal services to be performed for others; from appearing as counsel or in any representative capacity in any proceeding in any court of the State of Mississippi, or before any administrative body or agency thereof; from holding himself out to others as or using his name in any manner, in conjunction with the phrases \\\"attorney at law,\\\" \\\"attorney,\\\" \\\"counselor at law,\\\" \\\"counselor,\\\" or \\\"lawyer,\\\" for the period of his disbarment until such time as he is reinstated to the practice of law in this State by the Supreme Court of Mississippi;\\n8. Within ten (10) days of receipt of this Order of Disbarment, Mr. Murphy shall notify in writing each of his Mississippi clients of his disbarment and of his consequent inability to act as an attorney and shall advise each such client to promptly substitute another attorney or attorneys in his place or to seek legal advice elsewhere;\\n9. Mr. Murphy shall return all files, papers, monies and other properties belonging to his Mississippi clients in his possession, if any such clients request same after receiving notification from him. Within thirty (30) days of receipt of this Order of Disbarment, Mr. Murphy shall file with this Court an Affidavit stating that all current Mississippi clients have been notified of his disbarment and that all files, papers, monies and other property belonging to such clients have been returned as ordered herein; and showing in the cases where it was not possible to notify such clients or return their property, that due diligence was used to do so;\\n10. Within ten (10) days of receipt of this Order of Disbarment, Mr. Murphy shall notify every attorney and adverse party in any Mississippi proceeding in which he is involved and all affected courts and agencies, of his disbarment and consequent inability to act as an attorney. Within thirty (30) days of receipt of this Order of Disbarment, Mr. Murphy shall file with this Court an Affidavit stating that all attorneys or adverse parties in any such proceeding in which he is involved, and all affected courts and agencies, have been notified of his disbarment and consequent inability to act as an attorney.\\nSO ORDERED.\"}"

miss/7446365.json

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+"{\"id\": \"7446365\", \"name\": \"Marvin POWELL v. Christine A. POWELL\", \"name_abbreviation\": \"Powell v. Powell\", \"decision_date\": \"1994-10-20\", \"docket_number\": \"No. 92-CA-00497\", \"first_page\": \"269\", \"last_page\": \"281\", \"citations\": \"644 So. 2d 269\", \"volume\": \"644\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:45:02.858542+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.\", \"parties\": \"Marvin POWELL v. Christine A. POWELL.\", \"head_matter\": \"Marvin POWELL v. Christine A. POWELL.\\nNo. 92-CA-00497.\\nSupreme Court of Mississippi.\\nOct. 20, 1994.\\nHalbert E. Doekins, Jr., Jackson, for appellant.\\nRoy J. Perilloux, Perilloux & Milner, Sean A. Milner, Jackson, for appellee.\", \"word_count\": \"7236\", \"char_count\": \"43400\", \"text\": \"ON PETITION FOR REHEARING\\nJAMES L. ROBERTS, Jr., Justice,\\nfor the Court:\\nThe original opinions are withdrawn and these opinions are substituted therefor.\\nThis appeal arises from an order of the Hinds County Chancery Court, First Judicial District, transferring custody of sixteen-year-old Tracee Resehell Powell from her father Marvin to her mother Christine, awarding Christine child support and attorney's fees, and providing for the garnishment of Marvin's wages. The order had been entered after a hearing unattended by Marvin or counsel on his behalf. We find insufficient evidence that Marvin received notice of the hearing, and hold that he was denied due process by the adjudication of custody and support matters in his absence. We reverse and remand for a new hearing.\\nA.\\nFACTS AND PROCEDURAL HISTORY\\nMarvin and Christine Powell were married in 1972 and had two daughters. Sherrie Mischelle was born in 1973, and Tracee Resc-hell in 1976.\\nOn October 4, 1985, the Chancery Court of the First Judicial District in. Hinds County entered a judgment of divorce. Christine was awarded custody of the girls, then ages 12 and 9, and Marvin was ordered to pay child support in the amount of $300.00 per month until June 1, 1986, at which point the amount would increase to $400.00 per month.\\nOn September 5, 1989, Marvin and Christine agreed to a modification of the divorce judgment, and the Hinds Chancery Court entered an order transferring custody of both daughters to Marvin. Support payments were terminated.\\nOn November 21, 1991, Christine filed a motion for modification of the judgment, seeking custody of Tracee. She alleged that Tracee had expressed a desire to be with her, and that while Marvin was not averse to this, he refused to pay child support absent a court order. Christine requested child support and attorney's fees.\\nOn December 19, 1991, an alias summons was filed in the Hinds Chancery Court, stating that it had been served on Marvin Powell the previous day, apparently at his place of employment. The summons stated that a complaint was attached (Christine's motion for modification), and that Marvin was \\\"required to mail or hand-deliver a copy of a written response\\\" to Christine's lawyer within 30 days. The summons did not set a date or time for a hearing or other procedure.\\nOn March 2, 1992, Christine filed a Notice of Hearing in the Hinds Chancery Court, stating that she would bring her motion before the Court on March 9, 1992 at 9:00 a.m. A certificate of service stated that Christine's lawyer had sent a copy of the notice to Marvin at his home address of 147 Powell Road, Jackson. Marvin contends that he never received this notice.\\nThe hearing was held before the Hinds Chancery Court on March 9, 1992. Present were Christine and her lawyer, Roy Peril-loux. At the hearing, Perilloux stated that after filing the motion for modification, he had received a telephone call from Marvin's last attorney of record, Hal Dockins. Peril-loux also stated that he had spoken with Dockins \\\"last week to advise him of the hearing,\\\" and that Dockins had told him that while he was not representing Marvin, he did not think Marvin was opposed to the motion, except for the child support provision. The Chancellor requested that Perilloux take a quick look around the courthouse for Marvin. Marvin was not found, and the hearing was held.\\nIn an order dated March 12, 1992, the chancellor' transferred custody of Tracee from Marvin to Christine. He awarded $250.00 per month child support, as well as Christine's $550.00 attorney's fees. The judgment provided that an order be served on Marvin's employer, commanding Texas Eastern Transmission Corporation to withhold $250.00 per month for Tracee's support. The withholding order was to take effect immediately. Additionally, a writ of garnishment was served on Texas Eastern Transmission in the amount of $550.00.\\nMarvin filed a motion for relief from the March 12th judgment and to stay the garnishment proceedings. He claimed that although he had been served the alias summons in December 1991, he had never received notice of the hearing held March 9, 1992, and that the alias summons failed to comply with the notice requirements of M.R.C.P. 81. He asked the Court to set aside its judgment as void, to stay or vacate all garnishments, and to assess attorney's fees and court costs.\\nA hearing on this motion was held on April 23,1992. It was attended by Christine, Mar vin, and their lawyers. Marvin's lawyer Hal Dockins made the following statement concerning his client's alleged lack of notice of the March 9th hearing:\\nMy client never received any notice of the hearing. When he received the alias summons, Your Honor, he came to my office. I called Mr. Perilloux on the phone. I asked Mr. Perilloux, I said, \\\"I notice that your summons does not yet have a hearing date.\\\" He said, \\\"I haven't set it yet.\\\" I never heard from Mr. Powell or Mr. Peril-loux again. I saw Mr. Perilloux in the hallway one day when I was here on another matter, and he asked me a question about Mr. Powell's case. And I advised him that I had advised Mr. Powell that he should take some sort of action on the case. I was on another matter. I never received any notice of the hearing date. Mr. Powell never received notice of a hearing date. The next thing we knew about the case Mr. Powell was being garnished.\\nPerilloux had a somewhat different recollection of the conversation in the hallway:\\n(M)r. Dockins and (Carol English) were having a conversation at the counter on Friday, March the 6th, prior to this hearing, when I happened by. And Carol asked me was the hearing before you that Monday still on. And I said, \\\"You couldn't have asked me at a more appropriate time,\\\" because Mr. Dockins had made a telephone call on this case. And I turned to Hal and asked him, \\\"Are you representing Mr. Powell?\\\" And his response was, \\\"Definitely not.\\\" And I said somewhat in a joking manner, Judge, \\\"Speak now or forever hold your peace,\\\" to which Hal said, \\\"I am definitely not representing him. He's fair game.\\\" Judge, I think there's a waiver problem here.\\nDockins denied that he had ever told Peril-loux that he was no longer representing Marvin Powell.\\nThe chancellor was unsympathetic to Marvin's claim that he had not received notice of the March 9th hearing. He stated that he had an affidavit from Perilloux, swearing that he had sent notice of the hearing by first class U.S. mail to Marvin at his Powell Road address in Jackson. However, no such affidavit appears in the record. The chancellor held that notice of the hearing had been given, and denied Marvin's motion to set aside the judgment.\\nThe chancellor then permitted Dockins to call Marvin to make an offer of proof. Marvin testified that he had been employed at Texas Eastern for sixteen years, and that it was there he had been served the alias summons. He stated that the summons had given no indication of when or where he was to appear to defend his rights, and that had he received notice of the hearing, he would have appeared. Upon questioning by the judge, Marvin stated that he had no objection to Tracee going to live with Christine, and that he had no objection to paying child support.\\nThe chancellor denied Marvin's motion in an order dated April 28, 1992. On May 18, 1992, Marvin appealed the judgment to this Court.\\nB.\\nNOTICE\\nI. WHETHER A RULE 4 ALIAS SUMMONS, WHICH FAILED TO GIVE NOTICE OF THE DATE, TIME AND PLACE OF A MODIFICATION OF CHILD CUSTODY HEARING, COMPLIES WITH THE NOTICE REQUIREMENTS OF M.C.R.P. 81(d)(5).\\nII. WHETHER A LETTER CONTAINING THE DATE AND TIME OF A HEARING ALLEGEDLY MAILED TO THE RESPONDENT TWO MONTHS AFTER SERVICE OF THE RULE 4 ALIAS SUMMONS IS SUFFICIENT NOTICE OF HEARING OF RULE 81(d) MATTERS WHERE THE RULE 4 ALIAS SUMMONS DID NOT CONTAIN THE REQUIRED NOTICE OF THE DATE, TIME AND PLACE OF THE HEARING.\\nIII. WHETHER RESPONDENT'S RIGHT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE CORRELATING SECTION OF THE MISSISSIPPI CONSTITUTION WAS VIOLATED WHERE THE NOTICE OF THE TIME, PLACE AND DATE DID NOT COMPLY WITH M.R.C.P. 81(d)(5).\\nMarvin argues that the summons with which he was served on December 18, 1991, was of the wrong variety, and did not comply with the notice requirements of M.R.C.P. 81(d)(5). He notes that he was served with a Rule 4 or \\\"alias\\\" summons, which requires a written response to be delivered to the plaintiffs attorney within thirty days. Marvin contends that he should have been served with a Rule 81 summons, which does not require a response, but sets a time and place for a hearing in court concerning the matters set out in the complaint. Marvin also contends that he was not notified of the March 9, 1992, hearing on Christine's motion; in particular, he denies having received the notice Roy Perilloux certifies he mailed to Marvin on February 19, 1992.\\nChristine argues that Marvin was properly apprised of her motion for modification by service of the summons and complaint, and that the notice requirements of Rule 81 were met by the notice of hearing she claims was sent to Marvin on February 19, 1992. M.R.C.P. 81\\nM.R.C.P. 81 governs procedure in twelve categories of civil actions, including child custody actions. The comment to the Rule states:\\nRule 81(a) lists 12 categories of civil actions which are not governed entirely by the M.R.C.P. In each of those actions there are statutory provisions detailing certain procedures to be utilized . (h)ow-ever in any instance in the twelve listed categories in which the controlling statutes are silent as to a procedure, such as security for costs, form of summons and methods of service of process and notices, service and filing of pleadings, computation of time, pleadings and motions, discovery, subpoenas, judgments and the like, the M.R.C.P. govern.\\nComment, Rule 81. The statute pertaining to child custody (including modification of a custody order) is Miss.Code Ann. (1972) \\u00a7 93-5-23 (Supp.1992). It is silent concerning the procedures for summons and service of process; therefore, the M.R.C.P. govern. See Covington v. Covington, 459 So.2d 780 (Miss.1984) (where statute addressing chancery court's contempt power is silent as to methods of service of notices, M.R.C.P. govern).\\nRule 81(d)(1) provides that child support actions are \\\"triable 30 days after completion of service of process in any manner other than publication.\\\" Rule 81(d)(4) provides:\\nNo answer shall be required in any action or matter enumerated in subpara-graphs (1) and (2) above but any defendant or respondent may file an answer or other pleading or the court may require an answer if it deems it necessary to properly develop the issues .\\n(emphasis added). Finally, Rule 81(d)(5) provides:\\nUpon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order entered on that day be continued to a later day for hearing without additional summons on the defendant or respondent\\n(emphasis added). The Comment to Rule 81 states that section (d)(5) \\\"recognizes that since no answer is required of a defendant/respondent, then the summons issued shall inform him of the time and place where he is to appear and defend.\\\" Form ID in the Appendix to the Rules is entitled \\\"Rule 81 Summons.\\\" It notices the defendant that a complaint is attached, and provides blanks for the date, time and courthouse where the defendant should appear. It also states that the defendant may, but is not required to file an answer. A Form IA summons (an \\\"alias summons\\\"), on the other hand, notifies the defendant that he must deliver a response to the attached complaint to the plaintiffs lawyer within 30 days.\\nThe summons with which Marvin was served on December 18, 1991, was an alias summons. It stated that Marvin was required to respond within 30 days to Roy Perilloux; it did not set a time, date and place for a hearing on the complaint. In short, it did not comply with the requirements of Rule 81. \\u215b\\nIn Saddler v. Saddler, 556 So.2d 344 (Miss.1990), this Court considered whether a Rule 4 summons, served with a motion for modification of a divorce decree, was proper, where the custodial mother sought increased child support from the father. Lear, the mother, who alleged that Walter's income had substantially increased, had Walter served with the Rule 4 summons, pleadings, requests for admissions, and interrogatories. Walter did not answer any of the above. Several months later, Lear filed an application for a default judgment with an affidavit concerning Walter's finances. She also requested an evidentiary hearing to establish the precise amounts of increased child support and attorney's fees. Ten days later, a default judgment was entered, finding that Lear was entitled to an increase in child support and attorney's fees, and setting a date for a hearing three weeks later. At the hearing, the chancellor denied Walter's motion to set aside the default judgment, and ordered him to pay increased child support and attorney's fees. We reversed, holding that the entry of default was improper:\\nIt is patent and obvious that the Chancellor erred in granting the default judgment. Rule 81(d)(5) requires the issuance of summons commanding the defendant to appear and defend at a time and place at which the action is to be heard and precludes a default judgment. That kind of summons was not issued in this case.\\nSaddler v. Saddler, 556 So.2d at 346 (Miss.1990).\\nThe proper procedure under Rule 81 would have been to serve Marvin with the motion for modification and a Rule 81 summons, setting a time and date for a hearing at the Hinds Chancery Court, First Judicial District, and informing him that he was not required to respond in writing. It appears from the record that at the time Marvin was served with the motion and Rule 4 summons, no date was set for a hearing. It is clear that under Rule 81, even had Marvin been served with the correct form of summons, he would not have been required to respond in writing to the motion. The effect of the Rule 4 summons was merely to inform Marvin that a motion for modification had been filed. Such \\\"notice\\\" does not comply with Rule 81, which requires that a date and time be set for a hearing. Therefore, the Court finds that when proceeding under matters enumerated in Rule 81, a proper 81 summons must be served.\\nC.\\nAdditionally, we reverse the awards of child support and attorney's fees, and set aside the writ of garnishment on Marvin's wages. Applicable law, appropriate for consideration of these matters on remand, follows.\\nChild Support\\nIV. WHETHER AN AWARD OF CHILD SUPPORT IS PROPER WHERE COUNSEL FOR THE MOVING PARTY FAILED TO PLACE INTO THE RECORD ANY EVIDENCE OF THE RESPONDENT'S PRESENT INCOME, THE NEEDS OF THE CHILD, OR THE RESPONDENT'S PRESENT ABILITY TO PAY THE CHILD SUPPORT AWARD.\\nMarvin argues that the chancellor abused his discretion in awarding child support without taking into consideration all the relevant factors \\u2014 in particular, Marvin's ability to pay. Marvin notes that he has remarried and has custody of Tracee's sister, and contends that the evidence of his circumstances at the March 9th hearing was insufficient. He also contends that the record is similarly devoid of any evidence on Tracee's actual needs. Christine argues that the record shows that Marvin did not have difficulty paying $400.00 a month (when he was paying Christine support for both daughters), and that he is still employed at the same company at the same job; therefore, he can still afford $250.00 per month. She also argues that the chancellor's reasoning that \\\"costs have gone up,\\\" justifying an increase, was within the chancellor's discretion. Finally, she contends that since Marvin stated at the April 23rd hearing that he had no objection to paying child support, he effectively waived this issue on appeal.\\nDecisions regarding modification of child support are within the discretion of the chancellor, and this Court will reverse only where there is manifest error in findings of fact, or an abuse of discretion. Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376 (Miss.1991). The party seeking modification must show a material change of circumstances of the father, mother, or children arising subsequent to the original decree. McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992); Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986). The factors to be considered are 1) increased needs of children due to advanced age and maturity; 2) increase in expenses; 3) inflation; 4) relative financial condition and earning capacity of the parties; 5) health and special medical needs of the child, both physical and psychological; 6) health and special medical needs of the parents, both physical and psychological; 7) necessary living expenses of the father; 8) estimated amount of income taxes each party must pay; 9) free use of residence, furnishings, and automobile; and 10) other facts and circumstances bearing on the support as shown by the evidence. McEachern v. McEachern, 605 So.2d at 813 (Miss.1992); Adams v. Adams, 467 So.2d 211, 215 (Miss.1985).\\nIn the ease at bar, the only evidence concerning Marvin's ability to pay was Christine's testimony that he still worked at Texas Eastern, and that he had had no difficulty paying $400.00 per month when that was required. Moreover, there was no evidence presented concerning the other relevant factors \\u2014 for example, Christine's income, or lack thereof. Finally, because Marvin was not present at the March 9th hearing, he was unable to testify as to his capacity to pay, or to question Christine's statements concerning Tracee's needs.\\nIt is true that Marvin stated at the April 23rd hearing that he had no objection to paying child support. It is also true that the chancellor's award of $250.00 per month support for sixteen year old Tracee was probably reasonable. However, in reviewing an award of child support, as any matter, this Court looks to the record to see if sufficient evidence supports the chancellor's findings. See, e.g., Hammett v. Woods, 602 So.2d at 828-829 (Miss.1992) (no substantial evidence in record to support increase in support obligation). The award of child support in the amount of $250.00 per month is reversed and remanded for more complete findings on the factors articulated above, and consideration of same.\\nAttorney's Fees\\nV. WHETHER AN ATTORNEY FEES AWARD IS PROPER WHERE COUNSEL FOR THE MOVING PARTY FAILED TO PLACE INTO THE RECORD EVIDENCE OF ENTITLEMENT TO FEES, THE ATTORNEY'S TIME, ITEMIZATION OF SERVICES RENDERED, OR REASONABLENESS OF THE ATTORNEY'S HOURLY RATE.\\nVI. WHETHER A WRIT OF GARNISHMENT FOR ATTORNEY'S FEES IS VOID WHERE THE WRIT WAS EXECUTED FOUR DAYS AFTER ENTRY OF JUDGMENT.\\nFees\\nMarvin argues that the record is devoid of documentary evidence concerning the attorney's fees he was ordered to pay. Without proof of entitlement to fees, amount of attorney time, services rendered, or reasonableness of the award, he contends that the award of $550.00 must be reversed. Christine argues that the amount awarded was within the discretion of the chancellor, and should stand.\\nThis Court has many times held that the amount of attorney's fees is a matter left to the discretion of the chancellor. See, e.g., Greenlee v. Mitchell, 607 So.2d 97 (Miss.1992); Smith v. Dorsey, 599 So.2d 529 (Miss.1992); Young v. Huron Smith Oil Co., Inc., 564 So.2d 36 (Miss.1990). However, the award must be supported by sufficient evidence, and not merely \\\"plucked out of the air.\\\" Young, 564 So.2d at 40; Carter v. Clegg, 557 So.2d 1187, 1192 (Miss.1990). See also Holleman v. Holleman, 527 So.2d 90, 96 (Miss.1988). Where the evidence is insufficient, this Court will reverse the award. Karenina by Vronsky v. Presley, 526 So.2d 518, 525 (Miss.1988); McKee v. McKee, 418 So.2d 764 (Miss.1982).\\nAt the March 9th hearing, no evidence, such as a timesheet showing the number of attorney hours spent, was presented in support of the award of $550.00. The chancellor merely asked Christine what she owed Perilloux, and assigned the fee to Marvin. Moreover, this was done in Marvin's absence. In Griffin v. Griffin, 579 So.2d 1266 (Miss.1991), this Court reversed an award of attorney's fees, finding that the evidence supporting it \\u2014 which included timesheets and an affidavit setting out hours worked, hourly rates, and costs \\u2014 was insufficient. The Court noted that there was no explanation for the number of hours required, or the usual charge in the community. The Court held that the chancellor had erred in granting the award against the husband in his absence:\\n(P)arties are entitled to notice and due process. Sylvester was not present when the evidence was presented and was not given the opportunity to examine witnesses and to question the reasonableness of the award .\\nThe attorney's fee of $4,450.00 was a substantial fee and it was allowed in an ex parte hearing, regardless of the opposing parties' right to be present at the hearing.\\nGriffin v. Griffin, 579 So.2d at 1268 (Miss.1991). See also Lenoir v. Lenoir, 611 So.2d 200 (Miss.1992) (award of attorney's fees reversed and remanded, where party to whom they were assigned had not been present, and had not had opportunity to question their reasonableness). The attorney's fees Marvin was ordered to pay were assigned to him at what was, in effect, an ex parte hearing. Under Griffin v. Griffin and Lenoir v. Lenoir above, it was an abuse of discretion for the chancellor to award the fees in Marvin's absence. Furthermore, it was error for the chancellor to award the fees without sufficient supporting evidence. The award of attorney's fees against Marvin is reversed. On remand, if attorney's fees are awarded to either party, the record should contain sufficient evidence to support such an award.\\nGarnishment Proceedings\\nMarvin argues that issuing the Writ of Garnishment to Texas Eastern in the amount of $550.00 on March 16, 1992, four days after the judgment, was \\\"premature\\\" and \\\"illegal,\\\" being in violation of M.R.C.P. 62(a), which mandates an automatic 10-day stay of execution. He states that he did not have an opportunity to defend against the motion for garnishment, and that his paycheck was in fact garnished, with ensuing stigma. Chris tine contends that the garnishment was \\\"voluntarily stayed\\\" pending the hearing of Marvin's Motion for Relief of Judgment, and that no funds were withheld from Marvin's wages until his appeal was perfected without super-sedeas. Therefore, she contends, any error is moot and harmless.\\nM.R.C.P. 62 provides in part:\\n(a) Automatic Stay; Exceptions. Except as stated herein or as otherwise provided by statute or order of the court for good cause shown, no execution shall be issued upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry or the disposition of a motion for a new trial, whichever last occurs .\\nThe record contains the following documents filed subsequent to entry of the March 12th judgment, which included the award of attorney's fees: 1) an order issued March 12th to Texas Eastern to withhold $250.00 per month of Marvin's wages for child support; 2) a \\\"Suggestion for Writ of Garnishment\\\" submitted by Roy Perilloux on March 16th against Texas Eastern in the amount of $550.00; 3) a Writ of Garnishment for $550.00 issued March 16th, and served on Texas Eastern on March 18th; Marvin's Motion for Relief and to Stay Garnishment Proceedings, filed March 20th; a Notice of Hearing on the motion for April 1st, also filed March 20th; an Answer by Texas Eastern filed April 3rd; a Renotice of Hearing for April 23rd, filed April 10th; and the chancellor's April 28th Order Denying Relief from the Judgment and Denying Stay of Garnishment Proceedings.\\nThere is no evidence that Marvin's wages were in fact garnished in the amount of $550.00. We cannot address Marvin's claim that the writ was executed .prematurely, without knowing when it was executed. See, e.g., Wallace v. State, 607 So.2d 1184, 1189 (Miss.1992) (\\\"Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them\\\"). The grant of attorney's fees is reversed; as discussed above, the record on remand should contain adequate documentation supporting any award of fees. If garnishment is again ordered, the record should contain documentation of this as well.\\nD.\\nAttorney's Fees On Appeal\\nVII. WHETHER THE APPELLANT IS ENTITLED TO ATTORNEYS FEES AND COSTS OF APPEAL WHERE HE WAS REQUIRED TO INCUR THOSE EXPENSES TO PROTECT HIS RIGHT TO CUSTODY OF A MINOR CHILD AND WHERE OTHER SUBSTANTIAL RIGHTS OF THE APPELLANT WERE VIOLATED AT THE TRIAL COURT LEVEL.\\nMarvin argues that but for Christine's failure to follow the requirements of Rule 81 in informing him of the modification hearing, he would have been present to defend his interests, and thus his Motion for Relief from Judgment and this appeal would have been avoided. He contends that because it is Christine's fault he could not defend his interests at the hearing, she should bear a part of his attorney's fees and costs incurred in his appeal.\\nChristine argues that under Miss.Code Ann. (1972) \\u00a7 11-3-23 (Supp.1992), she is entitled to collect 15% of the chancellor's award if that award is affirmed. Multiplying the number of months left in Tracee's minority (60) by the monthly award of $250.00, and adding the attorney's fees award of $550.00, she reaches a total of $15,550, fifteen per cent of which is $2332.50. Accordingly, Christine has moved for an award in this amount \\\"as a reasonable attorney's fee.\\\"\\nSection 11-3-23, providing for damages to be awarded by this Court where it affirms the judgment of a lower court, has been applied to domestic cases. See, e.g., Lumbermens Mutual Casualty Co. v. Rhodes, 459 So.2d 244 (Miss.1984). However, \\u00a7 11-3-23 applies only to unconditional affirmances on appeal. Old Secur. Casualty Ins. Co. v. Clemmer, 458 So.2d 732 (Miss. 1984). Because Christine does not prevail on appeal, she is not entitled to an award under this statute.\\nMarvin cites no authority for his argument that Christine should bear a part of the costs incurred for this appeal. An appellant has an affirmative duty to provide support for his assignments of error. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990) This Court feels no compunction to address an assignment of error in the absence of such support. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 776 (Miss.1992). Moreover, there is no merit to Marvin's argument. This Court does not award attorney's fees simply because a party was compelled to appeal to vindicate his rights, and incurred costs in doing so. We have also held that attorney's fees should not be awarded as a means to penalize. Lenoir v. Lenoir, 611 So.2d 200 (Miss.1992). Finally, Marvin presents no evidence concerning Christine's ability to pay his requested costs and attorney's fees, and made no showing that he is unable to pay them. When a party is able to pay attorney's fees, an award of such fees is inappropriate. Lenoir v. Lenoir, 611 So.2d 200, 204 (Miss.1992); Hammett v. Woods, 602 So.2d 825, 830 (Miss.1992), citing Martin v. Martin, 566 So.2d 704, 707 (Miss.1990)\\nMarvin's assignment of error seeking attorney's fees for this appeal is without merit, and is denied. Christine's motion for attorney's fees on appeal is also denied.\\nThe case is reversed and remanded for proceedings not inconsistent with this opinion.\\nREVERSED AND REMANDED.\\nHAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.\\nSMITH, J., dissents with separate written opinion joined by PRATHER, P.J.\\n. The record contains copies of two other summons for Marvin, dated November 21, 1991, directed to his home address of 147 Powell Road in Jackson. These summons were apparently not served.\\n. Dockins had not represented Marvin in the original divorce proceedings, but had represented him in a modification of the decree.\\n. Apparently a court employee, never specifically identified in the record.\\n. This Court's finding in Covington v. Covington, 459 So.2d 780 (Miss.1984), was correct at the time it was decided based upon Rule 81 at that time. However, since Covington Rule 81 was changed. In Hunt v. Hunt, 629 So.2d 548 (Miss.1993) and Cooley v. Cooley, 574 So.2d 694 (Miss.1991), the Court decided those cases without applying amended Rule 81. Therefore, to the extent that those cases are in conflict with today's holding they are overruled. Although a Rule 81 summons must be served, we do not find that personal jurisdiction is lost once a court had personal jurisdiction over the defendant at the time of the divorce, but hold that Rule 81 matters, because of their nature, require special notice.\\n. It is noted that the award of $550.00 in this case is significantly lower than the $4,450.00 award in Griffin. It is also noted that in Gray v. Gray, 562 So.2d 79 (Miss.1990), this Court affirmed an award of $500.00 in attorney's fees as \\\"within the chancellor's discretion,\\\" while admitting that \\\"the proof offered in the case . may be insufficient.\\\" 562 So.2d at 83. However, in Gray, there was some evidence supporting the award, in the form of a statement itemizing the attorney's charges. There is no such statement in the record in the case at bar.\\n. We express no opinion concerning the merits of the attorney's fees award to Christine.\"}"

miss/7457581.json

@@ -0,0 +1 @@
+"{\"id\": \"7457581\", \"name\": \"MADISON COUNTY BOARD OF EDUCATION, C. Melvin Ray, Shirley Simmons, J. William Caston, Olevia Crawford, Marcy Querin and Earl Harper v. Jerry L. HALE\", \"name_abbreviation\": \"Madison County Board of Education v. Hale\", \"decision_date\": \"1995-06-13\", \"docket_number\": \"No. 93-CA-01129-COA\", \"first_page\": \"1334\", \"last_page\": \"1334\", \"citations\": \"667 So. 2d 1334\", \"volume\": \"667\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:34:36.568656+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, P.J., KING and McMILLIN, JJ.\", \"parties\": \"MADISON COUNTY BOARD OF EDUCATION, C. Melvin Ray, Shirley Simmons, J. William Caston, Olevia Crawford, Marcy Querin and Earl Harper v. Jerry L. HALE.\", \"head_matter\": \"MADISON COUNTY BOARD OF EDUCATION, C. Melvin Ray, Shirley Simmons, J. William Caston, Olevia Crawford, Marcy Querin and Earl Harper v. Jerry L. HALE.\\nNo. 93-CA-01129-COA.\\nCourt of Appeals of Mississippi.\\nJune 13, 1995.\\nJerry R. Wallace, Wallace & Associates, Ridgeland, for appellants.\\nJohn A. Howell, Raymond, for appellee.\", \"word_count\": \"94\", \"char_count\": \"631\", \"text\": \"Appeal No. 3900 from Judgment dated September 24, 1993, Robert Louis Goza, Jr., Ruling Judge, Madison County Circuit Court.\\nBefore THOMAS, P.J., KING and McMILLIN, JJ.\\nReversed and Rendered.\\nFRAISER, C.J., BRIDGES, BARBER, COLEMAN, DIAZ, PAYNE and SOUTHWICK, JJ., concur.\\nKING, J., concurs in result only.\"}"

miss/7477792.json

@@ -0,0 +1 @@
+"{\"id\": \"7477792\", \"name\": \"Ray Alexander GILBERT v. STATE of Mississippi\", \"name_abbreviation\": \"Gilbert v. State\", \"decision_date\": \"1992-12-10\", \"docket_number\": \"No. 91-KP-0707\", \"first_page\": \"917\", \"last_page\": \"918\", \"citations\": \"614 So. 2d 917\", \"volume\": \"614\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:02:14.144170+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROY NOBLE LEE, C.J., and BANKS and ROBERTS, JJ.\", \"parties\": \"Ray Alexander GILBERT v. STATE of Mississippi.\", \"head_matter\": \"Ray Alexander GILBERT v. STATE of Mississippi.\\nNo. 91-KP-0707.\\nSupreme Court of Mississippi.\\nDec. 10, 1992.\\nRehearing Denied March 25, 1993.\\nRay Alexander Gilbert, pro se.\\nMichael C. Moore, Afty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.\\nBefore ROY NOBLE LEE, C.J., and BANKS and ROBERTS, JJ.\", \"word_count\": \"52\", \"char_count\": \"334\", \"text\": \"Affirmed.\"}"