Volume 221 — Mississippi Reports

<bold>1. Homicide — evidence — sustained murder conviction.</bold> Evidence sustained a conviction of murder. <bold>2. Indictments — amendments — clerical mistake — Christian</bold> <bold>name.</bold> Where there was a clerical mistake in an indictment for murder as to deceased's Christian name, permitting amendment of indictment prior to trial to state true first name of deceased, was proper under showing made nor was defendant prejudiced or deprived of any substantial right necessary to the ends of justice. Sec. 26, Constitution 1890; Sec. 2532, Code 1942. <bold>3. Continuance — after amendment of indictment — refusal not</bold> <bold>error.</bold> Refusal to grant defendant's oral motion for a continuance made after amendment of indictment to state true name of alleged victim, was not error, especially where motion itself, and motion for new trial, failed to show by affidavit any way in which defendant was prejudiced, and Supreme Court was satisfied that no injustice resulted from such refusal. Secs. 1520, 2532, Code 1942; Rule 11, Rules of Supreme Court. Headnotes as approved by Ethridge, J.

<bold>1. Appeal — interlocutory — dismissed.</bold> Appeal from interlocutory decree dismissed by Supreme Court where such appeal would not settle all controlling principles involved in case. Headnote as approved by Roberds, P.J.

<bold>1. Libel and slander — to orally call a white person a negro —</bold> <bold>generally.</bold> Generally to orally call a white person a negro is not actionable per se, but it may be actionable in certain sections of the country under the social habits and customs prevailing in those sections. Sec. 1059, Code 1942. <bold>2. Libel and slander — libelous per se — what is — generally.</bold> At common law any written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community, is libelous and actionable per se. <bold>3. Libel and slander — to print — that white woman is a negro —</bold> <bold>libelous per se.</bold> Under law of this State, to assert in print that a white woman is a negro is libelous per se. <bold>4. Libel and slander — libelous per se — special damages —</bold> <bold>allegation of or proof unnecessary — Court exercises</bold> <bold>supervisory power over.</bold> If an article is libelous per se, no special damages are necessary to be alleged or proved. The law presumes damages from the writing of the libelous words, but jury will not be given unrestrained power to determine the amount of damage, the Court possessing supervisory power over the jury in such regard. <bold>5. Libel and slander — libelous per se — publication — malicious</bold> <bold>intent unnecessary.</bold> Where written words are libelous per se, malicious intent on part of one guilty of publication is not necessary to sustain the action.<page_number>Page 321</page_number> <bold>6. Libel and slander — printed words — libelous per se —</bold> <bold>correction — no defense — jury — mitigation of damages.</bold> A written correction in newspaper of publication on previous day of words which were libelous per se did not constitute a defense to libel action, but was merely a matter to be considered by jury in mitigation of damages. <bold>7. Appeal — damages — question for jury — reviewing Court.</bold> Ordinarily, the amount of damages is a question for the jury, and reviewing Court will not disturb the finding of the jury in that regard unless it is convinced that the verdict was result of prejudice and passion. <bold>8. Libel and slander — award not excessive.</bold> In action for damages for libel committed when defendant published in its newspaper that plaintiff, a white woman, was a negro, under facts, an award of $5,000 was not so excessive as to indicate that it was the result of prejudice and passion on part of jury. <bold>9. Trial — improper argument — not reversible error.</bold> In such case, argument of plaintiff's counsel to jury, though improper, did not constitute reversible error when trial judge sustained defendant's objection and admonished jury to disregard such remarks. <bold>10. Libel and slander — instructions — refused — incorrect</bold> <bold>statements of law.</bold> Requested instructions to the effect that jury could not find more than nominal damages, that they could not find for plaintiff unless malice was shown, and that if reporter for newspaper had reasonable ground to believe from police report that plaintiff was a negro, they should find for defendant, were properly refused as incorrect statements of law. <bold>11. Libel and slander — instructions — refused — not warranted</bold> <bold>by evidence.</bold> Requested instruction that if jurors believed that mistake of defendant newspaper reporter was caused by conduct of plaintiff herself they should return verdict for defendant, was properly refused, as not warranted by evidence. <bold>12. Libel and slander — damages — instructions — not erroneous.</bold> In such case, instruction that jury, in assessing damages, might take into consideration injury to reputation of plaintiff, her exposure to ridicule, and lowering of confidence of community in her, if any, was not erroneous.<page_number>Page 322</page_number> <bold>13. Libel and slander — principal and agent — printed libel —</bold> <bold>instructions — correct statement of law.</bold> Instruction that if jury believed from preponderance of evidence that defendant newspaper reporter was agent of defendant in publication of the article, and that its preparation and publication were within the scope of his authority, and that as a direct and proximate result of the publication the plaintiff's reputation was injured or she was exposed to ridicule or degraded, it would be duty of jury to find for plaintiff, was not erroneous, but was correct statement of the law. Headnotes as revised by Roberds, P.J.

<bold>1. Robbery — accessories — before or after the fact.</bold> In order to be guilty of robbery, one need not necessarily be present at the commission of the crime, and persons absent from the scene of robbery may be liable to prosecution therefor if they were particeps criminis before or after the commission of the robbery. Sec. 1995, Code 1942. <bold>2. Robbery — conspiracy to commit — proved by circumstantial</bold> <bold>evidence.</bold> In prosecution for robbery, brought on theory that defendant and another conspired together to commit the offense, and that defendant knowingly aided and abetted such other in its commission, State was not required to prove an express agreement between defendant and other to commit the crime, as a criminal conspiracy may be proved by circumstantial evidence. <bold>3. Robbery — evidence — sustained conviction.</bold> Evidence sustained a conviction of robbery.<page_number>Page 340</page_number> <bold>4. Robbery — instructions — believe from the evidence — other</bold> <bold>instructions cured error.</bold> In such case, instruction authorizing jury to convict defendant as an actual participant in the crime of robbery was proper, and instruction was not erroneous for failure to require that jury believe "from the evidence" beyond a reasonable doubt that defendant was guilty as charged, where omission of the quoted words in such instruction was cured by other instructions granted to the State and to defendant. Sec. 1995, Code 1942. <bold>5. Criminal law — instructions — assuming robbery had been</bold> <bold>committed — where crime was undisputed.</bold> Where evidence relating to the actual commission of the crime of robbery was undisputed, instruction was not erroneous because it assumed that the robbery had been actually committed. <bold>6. Criminal law — instructions — omission of "and to the</bold> <bold>exclusion of every other reasonable hypothesis" — cured by</bold> <bold>other instructions.</bold> Instruction for State on reasonable doubt which failed to include, after the words "beyond a reasonable doubt," the words "and to the exclusion of every other reasonable hypothesis," was cured by instruction granted defendant in which jury was told that before jury could convict defendant they must believe from evidence beyond every reasonable doubt that defendant aided and abetted in commission of crime, and that they must also believe such to be true to exclusion of every other reasonable hypothesis. <bold>7. Robbery — conspiracy to commit — instructions — properly</bold> <bold>refused.</bold> Under facts of case, instruction which would have required jury to find defendant not guilty unless they believe beyond all reasonable doubt that defendant was driving the automobile in which co-conspirator was riding prior to commission of crime, was properly refused. <bold>8. Criminal law — proof of robbery — before conspiracy</bold> <bold>established — not improper.</bold> Trial court committed no error in permitting witnesses to testify concerning the robbery itself before proof was made that a conspiracy existed between defendant and co-conspirator to commit the crime as State had the right to prove the corpus delicti at the outset, and then show who the perpetrators of the crime were. Headnotes as approved by Kyle, J.

<bold>1. Intoxicating liquors — condemnation proceedings — automobile</bold> <bold>used in liquor traffic — complaint met statutory</bold> <bold>requirements.</bold> In statutory proceeding for condemnation and sale of defendant's automobile allegedly used for transportation of intoxicating liquors, contention that petition was insufficient on its face to support judgment of condemnation because the State was not made a party to petition, was without merit where complaint was made by two constables, and was duly sworn to by them and the county prosecuting attorney; this was sufficient to fully meet the requirements of the statute. <bold>2. Intoxicating liquors — same — same — evidence insufficient —</bold> <bold>complaint dismissed.</bold> In such case, testimony upon which judgment was based was insufficient to show a lawful arrest by constables on charge of reckless driving, so that their search of defendant's automobile without a warrant and without probable cause was illegal, and evidence obtained thereby was inadmissible, and there being no other evidence<page_number>Page 353</page_number> to support the charges alleged in the complaint, Supreme Court would dismiss petition for condemnation and sale of automobile. Sec. 8175, Code 1942. Headnotes as approved by Kyle, J.

<bold>1. Workmen's compensation — Supreme Court — newly discovered</bold> <bold>evidence — motion to remand — sustained.</bold> In workmen's compensation proceeding wherein Supreme Court entered judgment determining that one of two claimants was widow of employee but, while suggestion of error was pending and before judgment became final, a witness was discovered who without dispute was legally married to successful claimant during time she was allegedly married to employee, the Supreme Court had authority to set aside former judgment and remand proceeding to circuit court so that the new evidence could be presented and the rights of the parties determined according to the existing facts. Sec. 6998-27, Code 1942. Headnote as approved by Roberds, P.J. <center> ON MOTION TO ADVANCE</center> Feb. 9, 1953 19 Adv. S. 21 62 So.2d 776 <bold>2. Workmen's compensation — courts — dockets.</bold> A workmen's compensation case is entitled to preference in the circuit court, but is not entitled to be advanced on the docket of the Supreme Court. Chap. 354, Laws 1948. Headnote as approved by McGehee, C.J.

<bold>1. Mortgages — suit to set aside foreclosure sale — payment —</bold> <bold>burden of proof.</bold> In suit by mortgagor to set aside and cancel foreclosure sale of his land on the ground that the indebtedness secured by deed of trust had been fully paid and lien discharged prior to sale, burden was upon mortgagor to prove that payment of indebtedness was made to mortgagee or to an authorized agent of mortgagee. <bold>2. Mortgages — future advances — additional loan secured — by</bold> <bold>original mortgage.</bold> Where trust deed provided that lien on land was to secure payment of future advances, and mortgagee made additional loan to mortgagor secured by chattel mortgage after mortgagor had paid money to cover balance due on original indebtedness to company not authorized to act for mortgagee, but before mortgagee had actually received the payment, trust deed was still in full force and effect at time of, and secured, the additional loan. <bold>3. Mortgages — foreclosure sale — no tender of indebtedness</bold> <bold>prior to.</bold> In such suit, evidence sustained holding that no tender of indebtedness<page_number>Page 637</page_number> was made to mortgagee at any time prior to the foreclosure sale. <bold>4. Mortgages — foreclosure in pais — proper.</bold> Although there was a controversy between the parties as to whether deed of trust was still in full force and effect, foreclosure in pais, instead of in equity, was proper. Headnotes as approved by McGehee, C.J.

<bold>1. Workmen's compensation — heart attack — causal connection —</bold> <bold>circumstantially proved.</bold> In proceedings to recover death benefits for member of drilling crew whose body was found near ditch he had been digging wherein it appeared that decedent had complained of pain in chest while removing heavy planks prior to digging ditch, evidence was sufficient to sustain finding of a causal connection between decedent's work and his death, attributed by medical testimony to a<page_number>Page 745</page_number> heart attack, and to prove circumstantially that death had arisen from accidental injury arising out of and in course of decedent's employment. Chap. 354 Sec. 18, Laws 1938. Headnote as approved by Kyle, J. <center> ON MOTION FOR ALLOWANCE OF ATTORNEYS' FEE</center> November 15, 1954 75 So.2d 638 <bold>2. Workmen's compensation — attorney's fees — statutory</bold> <bold>limitation construed.</bold> The limitation of twenty-five per cent of amount recovered set by Workmen's Compensation Law for services of an attorney before the Commission is not applicable to additional services rendered before superior courts. Sec. 6998-32(c), Code 1942. <bold>3. Infants — workmen's compensation — attorney's fees.</bold> Where minors are involved in a compensation proceeding, courts must necessarily determine attorney's fees, and any contract for fees does not bind the minors. <bold>4. Workmen's compensation — attorney's fees — approved —</bold> <bold>allowed.</bold> Where attorneys successfully prosecuted compensation proceeding on behalf of widow and minor children of deceased employee for death benefits before the Commission, the Circuit Court, and the Superior Court, Supreme Court held that for all services for claimants' attorneys in this and like cases should not exceed one-third of the sum recovered, and a fee of thirty-three and one-third per cent was accordingly allowed. Secs. 6998-19(j), 6998-32(c), Code 1942. Headnotes as approved by Gillespie, J. <center> ON MOTION TO CORRECT JUDGMENT</center> November 22, 1954 75 So.2d 923 <bold>5. Workmen's compensation — award — money judgment — statutory</bold> <bold>damages — interest.</bold> Where attorney-referee's order found deceased's weekly wage, that his death arose out of and in course of employment, the date of his death, the persons entitled to benefits, and awarded death benefits in the manner and method set forth in Section 9 of Act as amended, the affirming judgment of full Commission became a judgment for a sum of money in the amount of the benefits definitely fixed by that section of the Act, and upon affirmance of the award by Supreme Court, beneficiaries were entitled to<page_number>Page 746</page_number> recover statutory damages and interest on unpaid installments, but since subsection (b) of Section 9 of the Act did not definitely fix amount of funeral expenses awarded, award of funeral expenses was not a judgment for a "sum of money" and statutory damages and interest were not recoverable thereon. Sec. 1971, Code 1942; Chap. 354 Sec. 9(b), Laws 1948, as amended. Headnote as approved by McGehee, C.J.

<bold>1. Appeal — motion to remove case from docket — sustained.</bold> Where appeal was dismissed and never properly reinstated by Court order, such dismissal was final and appeal was improperly on Court docket, and motion to remove case from docket was sustained. Rule 18, Rules of Supreme Court. <bold>2. Supreme Court — trial court without jurisdiction — until</bold> <bold>mandate issues.</bold> Where plaintiff's original appeal had been dismissed by Supreme Court on ground that there was no final judgment of Circuit Court since defendant's counterclaim had not been disposed of, and costs had been taxed to plaintiff but had never been paid, and consequently no mandate had issued to trial court, trial court had no jurisdiction to proceed on subsequent motion by plaintiff to dismiss defendant's counterclaim. Sec. 1990, Code 1942. <bold>3. Appeal — transfers jurisdiction to Supreme Court — mandate</bold> <bold>reinvests jurisdiction in trial court.</bold> An appeal transfers jurisdiction to Supreme Court where it remains pending disposition of appeal, and after disposition of appeal, until mandate is issued by Clerk of Supreme Court, no jurisdiction is reinvested in lower court, and no proceedings may be had therein until it receives and files mandate. <bold>4. Appeal — costs — Clerk of Supreme Court to withhold mandate.</bold> Clerk of Supreme Court properly withheld mandate so long as costs were not paid. Sec. 1990, Code 1942. Headnotes as approved by Gillespie, J.