Volume 242 — Mississippi Reports

<bold>1. Rape — evidence — conviction sustained.</bold> Prosecutrix' testimony, which was neither contradicted nor discredited by other evidence or by any facts or surrounding circumstances, was sufficient to support conviction of rape. Sec. 2358, Code 1942. <bold>2. Criminal law — identity — testimony of recognition by voice —</bold> <bold>weight to be given.</bold> Weight to be given voice recognition testimony is a question of fact for the jury. <bold>3. Criminal law — facts relating to alleged rape by defendant's</bold> <bold>companion properly admitted.</bold> Court did not err in permitting testimony to be given by prosecutrix relating to alleged rape of prosecutrix by defendant's companion prior to testimony concerning alleged rape of prosecutrix by defendant.<page_number>Page 98</page_number> <bold>4. Criminal law — facts relating to commission of other crimes —</bold> <bold>not to be excluded when.</bold> Evidence which is material, relevant and otherwise competent to prove guilt of accused to charge of rape cannot be excluded because it discloses facts relating to commission of other crimes, particularly when fact of commission of such other crimes forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts. <bold>5. Criminal law — rape — corroborating testimony with reference</bold> <bold>to pillow case and torn strips of clothing used for tying</bold> <bold>victim of assault properly admitted.</bold> Testimony of witness, who went to home of prosecutrix about two hours after rape had been committed, concerning a pillow case which had been placed over head of prosecutrix and strips of clothing with which she had been bound, was merely corroborative of testimony of prosecutrix relating to such articles which had already been introduced in evidence and Court did not err in admitting such testimony. Headnotes as revised by Kyle, J.

<bold>1. Motor vehicles — negligence — proximate cause — crossing over</bold> <bold>center line of road — evidence supported verdict for</bold> <bold>plaintiff.</bold> Evidence sustained findings that defendant motorist negligently crossed over center line of road and collided with plaintiff's oncoming automobile, and that such negligence was a proximate cause of collision. Headnote as approved by Ethridge, J.

<bold>1. Criminal law — instructions — accomplice — testimony of</bold> <bold>weighed with caution — instruction properly refused.</bold> Refusal to instruct that testimony of an accomplice should be weighed with caution was not error where evidence did not<page_number>Page 408</page_number> show that defendant, who was charged with murder, had an accomplice. <bold>2. Criminal law — same — same — same — giving of instruction</bold> <bold>discretionary.</bold> Giving of an instruction that testimony of an accomplice should be weighed with caution is discretionary. <bold>3. Criminal law — continuance — overruling motion for</bold> <bold>continuance of second trial, following mistrial, not an abuse</bold> <bold>of discretion.</bold> Overruling of motion for continuance of second trial, following mistrial, was not an abuse of discretion, even though court reporter was unable to furnish a transcript of testimony of State's witnesses on the first trial, on date second trial commenced, where defendant had other methods of establishing what State's witnesses testified to on first trial, defendant's counsel agreed to the date set for the second trial, and all witnesses and special venire of jurors were present on such day. Sec. 1520, Code 1942. <bold>4. Criminal law — mistrial — bill of exceptions — absent bill of</bold> <bold>exceptions determination of trial court presumed to be</bold> <bold>correct.</bold> In absence of a bill of exceptions, determination of trial court, in prosecution for murder, that a piece of iron purportedly held up by a deputy sheriff where jury could see it was not exhibited to jury and therefore did not constitute grounds for mistrial, had to be presumed correct. <bold>5. Criminal law — mistrial — incident complained of not</bold> <bold>sufficiently prejudicial to support reversal.</bold> Even if a deputy sheriff, in murder prosecution, held up a piece of iron where jury could see it, and the object could not have caused death of defendant's victim, such incident was not sufficiently prejudicial to support reversal where defendant's guilt was established by weight of the evidence. <bold>6. Criminal law — bill of exceptions — object of bill of</bold> <bold>exceptions.</bold> Object of a bill of exceptions is to put of record matters which transpire on the trial and which are not of record otherwise. Sec. 1532, Code 1942. <bold>7. Criminal law — mistrial — bill of exceptions — controlling</bold> <bold>weight could not be given ex parte statements of appellant's</bold> <bold>counsel, on appeal, absent bill of exceptions.</bold> Controlling weight could not be given to ex parte statements of appellant's counsel, on appeal, as to whether or not a certain thing occurred during course of trial, where counsel<page_number>Page 409</page_number> admitted he did not see the incident, there was no bill of exceptions adequately supporting the asseveration, and trial judge found that incident did not occur. Sec. 1532, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Eminent domain — damages — cost of removal of personal</bold> <bold>property as an element of damages.</bold> Evidence of cost of removing automobiles from condemned right of way was admissible for consideration of jury in estimating value before and value after taking of land. Sec. 17, Constitution 1890; Sec. 2760, Code 1942. <bold>2. Eminent domain — damages — due compensation for condemned</bold> <bold>property — when made.</bold> Due compensation for condemned property is made when owner is paid value of land taken and damages, if any, which result to him as a consequence of taking, without considering either general public benefits or injuries resulting from use to which land is to be taken, shared by general public. Sec. 17, Constitution 1890; Sec. 2760, Code 1942. <bold>3. Eminent domain — damages — award excessive — remittitur</bold> <bold>ordered.</bold> Verdict of $117,500 for condemned right of way was so grossly excessive as to evince bias, passion and prejudice on part of jury and was reduced to $90,000. Sec. 17, Constitution 1890; Sec. 2760, Code 1942. Headnotes as approved by McElroy, J.

<bold>1. Eminent domain — evidence — experts as to value.</bold> Opinions of experts as to value of condemned realty are not to be blindly followed, and are to be weighed by jury and to be judged in view of all testimony and jury's own general knowledge of affairs and are to be given such consideration as jury may believe them entitled to receive. <bold>2. Eminent domain — instructions — damages — speculative and</bold> <bold>remote — properly refused as misleading.</bold> Refusal to give requested instruction of State Highway Commission, which was sued by county for damages for injuries to sixteenth section land and taking of part thereof for highway construction, that jury in arriving at its verdict should not consider any element of inconvenience or other elements which are speculative and remote was not error. <bold>3. Eminent domain — damages — award not excessive.</bold> Award of $21,367 to county for damages to 640 acres of sixteenth section land, which was subject to leases having about 14 years to run, because of highway construction, which occupied 42.28 acres, not including two small easements, was not excessive. Chap. 303 Sec. 20, Laws 1958. Headnotes as approved by Jones, J.

<bold>1. Equity — burden of proof — complainant failed to establish</bold> <bold>her right to property sought or its value.</bold> Complainant failed to establish her right to stock of merchandise and store furniture and fixtures in possession of her former husband and his father and mother who were allegedly depleting stock in attempt to make husband insolvent to defraud his creditors and escape support of his children. <bold>2. Equity — amendment — refusal of request to amend bill</bold> <bold>discretionary under state of case.</bold> Refusal of request to amend bill was discretionary, where complainant had testified on matters sought to be alleged at<page_number>Page 482</page_number> first hearing in March 1958 and amendment was asked for in September 1959. Headnotes as approved by Jones, J.

<bold>1. Motor vehicles — collision — automobile and approaching</bold> <bold>unlighted cotton trailer towed in darkness by pickup truck of</bold> <bold>lesser width on country road — negligence — jury questions</bold> <bold>presented.</bold> Whether automobile, approaching unlighted cotton trailer pulled in darkness by pickup truck, or both were on wrong side of country road at time of collision between automobile and trailer, and whether there was causal connection between any absence of reflectors or lights on trailer and accident were jury questions. Sec. 8229-07(b), Code 1942. <bold>2. Discovery — examination of photographs — petition —</bold> <bold>sufficiency.</bold> Petition to trial court to require photographs to be produced and exhibited to adversary should be specific as to what photographs are desired and as to what such photographs portray. Sec. 1659, Code 1942. <bold>3. Appeal — discovery — examination of photographs — harmless</bold> <bold>error.</bold> Any error in requiring defendants, in advance of trial, to produce and exhibit to plaintiff photographs in defendant's possession did not justify reversal. Sec. 1659, Code 1942. <bold>4. Evidence — map or plat — fair representation of section of</bold> <bold>road at scene of collision made by engineer some time after</bold> <bold>accident — admissible for what it was worth.</bold> Plat made of section of road at scene of collision showing width of traveled portion of graveled road and disclosing center line to indicate location of alleged ruts was admissible and fact that it was made some time after accident only affected weight to be given to testimony of plaintiff and engineer who submitted plat. <bold>5. Appeal — damages — appellate review — duty of Supreme Court.</bold> Supreme Court must affirm verdict if not excessive and must order remittitur if excessive. <bold>6. Damages — personal injuries — award not excessive.</bold> Award of $65,000 to 23-year-old man, who was hospitalized for three months, who suffered severe pains in leg, abdomen and head, who, upon reaching maximum improvement, would<page_number>Page 560</page_number> have two-thirds permanent limitation to left knee, and who would lose $11,000 in wages, was not excessive. <bold>7. New trial — newly discovered evidence — motion overruled — no</bold> <bold>probability of different result on new trial.</bold> Overruling of defendants' motion for new trial on ground of newly discovered evidence that plaintiff was driving automobile at time of collision while under influence of intoxicating liquor was discretionary, where testimony to that effect would have merely impeached contrary positive testimony and it was not probable that different result would have been obtained in another trial. Headnotes as approved by McGehee, C.J.

<bold>1. Workmen's compensation — acceptance of premiums — estoppel —</bold> <bold>where no endorsement covering partner placed on policy.</bold> Workmen's compensation carrier, which received proper premium on salary of a partner in the business with knowledge<page_number>Page 768</page_number> at time of status of partner, could not, subsequent to occurrence of compensable injury to partner, escape liability for workmen's compensation coverage because no endorsement to that effect had been placed on the policy. Sec. 6998-40, Code 1942. Headnote as approved by Arrington, J.

<bold>1. Contracts — advances under — provision for, construed.</bold> Contract to effect that processor should in no event be required to pay amount in excess of 80 per cent of estimated value of fish delivered to it by owner of fishing vessels did not bind processor not to advance more than 80 per cent. <bold>2. Guaranty — construed as absolute guaranty requiring no notice</bold> <bold>of default or demand.</bold> Stockholder's guaranty of obligations of corporate fishing vessel owner under agreement with processor, which advanced sums for fishing, was absolute guaranty and required no notice of default or demand by processor. Headnotes as approved by Jones, J.