Volume 244 — Mississippi Reports

<bold>1. Criminal law — evidence of other crimes admissible where part</bold> <bold>of res gestae.</bold> Testimony that bullet that killed deceased also struck and injured one-year-old baby deceased was holding in her arms when shot, was admissible as part of the res gestae.<page_number>Page 207</page_number> <bold>2. Criminal law — same.</bold> Evidence that defendant was engaged in selling liquor, that he shot baby deceased was holding in her arm when she was fatally shot, and that he was apparently living in adultery with deceased, was admissible as part of the res gestae where facts concerning the shooting could not have been properly related without bringing out such matters. <bold>3. Witnesses — surprise — refusal of right of cross-examination</bold> <bold>not error where defendant did not follow up request.</bold> Court would be considered to have erred in refusing to allow defendant to cross-examine a witness, where defendant called the witness as his own witness after the witness had testified for the State, and then stated to the Court that he was surprised and would like to cross-examine the witness, but did not show how or why he was surprised, and did not make any showing of what he intended to accomplish by cross-examination. <bold>4. Homicide — evidence — murder conviction sustained.</bold> Evidence was sufficient to sustain murder conviction. Headnotes as approved by Gillespie, J.

<bold>1. Workmen's compensation — evidence — dependents — father and</bold> <bold>minor brothers as.</bold> Evidence sustained finding that decedent's father and his two minor brothers were wholly dependent upon decedent for<page_number>Page 318</page_number> support at the time of decedent's death. Sec. 6998-07, Code 1942. <bold>2. Workmen's compensation — dependents — father's right to death</bold> <bold>benefits due and unpaid did not abate upon parent's death but</bold> <bold>became assets of his estate.</bold> Father's right to compensation as a dependent parent of deceased employee accrued at date of employee's death and did not abate upon parent's death; and due and unpaid installments at time of parent's death constituted assets of his estate. <bold>3. Workmen's compensation — ten percent penalty properly</bold> <bold>assessed against employer.</bold> Ten percent penalty was properly assessed against employer on all installments of compensation that became due between date of first installment and date of award, when claim for death benefits was filed about two and one-half months after death of employee and was controverted by employer and carrier, and no compensation was paid to claimants within 14 days after it became due and employer and carrier did not controvert claim within 14 days required by statute. Secs. 6998-07(a), 6998-19(d, e), Code 1942. <bold>4. Workmen's compensation — benefits — minimum weekly benefits.</bold> Total amount of weekly benefits to be paid by employer in totally dependent cases, regardless of number of dependents, may not be less than $10 per week. Sec. 6998-13(e), Code 1942. Headnotes as approved by Kyle, J.

<bold>1. Aviation — duty of owner of power line to owner of private</bold> <bold>aircraft.</bold> Maintenance of power line across paved drag strip, constructed across power line right-of-way many years after erection of line, did not violate any duty to owners of private aircraft. <bold>2. Aviation — collision between aircraft and power line —</bold> <bold>proximate cause — negligence of pilot.</bold> Sole cause of damage to private aircraft, which crashed after striking power line maintained by defendant across paved drag strip, constructed across power line right-of-way many years after erection of line, was negligence of pilot in attempting to land on drag strip in manner in which he did. Headnotes as approved by McElroy, J.

<bold>1. New trial — verdict not against overwhelming weight of</bold> <bold>evidence.</bold> Verdict against contractor because of defects and poor workmanship in construction of home was not against the overwhelming weight of the evidence. <bold>2. New trial — newly discovered evidence — motion insufficient —</bold> <bold>properly overruled.</bold> Newly discovered evidence of perjury by homeowner and his witnesses concerning appraisal value of home, amount of monthly payments, cost of materials and execution of a note and deed of trust was insufficient to entitle contractor to a new trial when issues involved were whether house was constructed according to good workmanship. <bold>3. New trial — motion not timely filed.</bold> Motion for new trial was not timely when filed long after court had adjourned. Headnotes as approved by Lee, P.J.

<bold>1. Attorney and client — disbarment proceeding — effect of</bold> <bold>pending prosecution — Court's discretion.</bold> Chancery Court had discretion to either proceed with hearing of petition for disbarment of attorney, filed by special committee of local bar, or to hold proceeding in abeyance pending outcome of attorney's appeal from conviction in Circuit Court for felony with which he was charged. Sec. 8667, Code 1942. <bold>2. Attorney and client — same — same — Court as not abusing</bold> <bold>discretion.</bold> Chancery Court's action in proceeding with hearing of petition to disbar attorney filed by special committee of local bar, rather than holding such proceeding in abeyance pending outcome of attorney's appeal from conviction in Circuit Court for felony, was not abuse of discretion. Sec. 8667, Code 1942. <bold>3. Attorney and client — same — evidence warranted disbarment.</bold> Evidence sustained charges perferred against attorney, and warranted his disbarment on ground that he conspired with others to cause automobile collision for purpose of defrauding insurer. Headnotes as approved by McGehee, C.J.<page_number>Page 418</page_number> <center> ON SUGGESTION OF ERROR</center> July 10, 1962 <cross_reference>143 So.2d 434</cross_reference> <bold>4. Attorney and client — disbarment proceeding — charges of</bold> <bold>disbarment petition not denied, true.</bold> Attorney who neither admits nor denies averments of petition to disbar him, in effect admits them. Sec. 1291, Code 1942. <bold>5. Attorney and client — same — special proceeding peculiar to</bold> <bold>itself.</bold> "Disbarment proceeding" is neither civil nor criminal action; it is special proceeding peculiar to itself, disciplinary in nature, and of summary character resulting from inherent power of courts over their officers. <bold>6. Attorney and client — same — automatic disbarment for</bold> <bold>commission of felony.</bold> Automatic disbarment for commission of felony is part of punishment for commission of crime. Sec. 8667, Code 1942. <bold>7. Attorney and client — same — misconduct of attorney within</bold> <bold>sphere of his official duties — effect of pending</bold> <bold>prosecution.</bold> Where misconduct of attorney falls within sphere of his official duties, it is no objection to disbarment proceedings that indictment is pending against him for same misconduct. <bold>8. Attorney and client — same — automatic disbarment as not</bold> <bold>precluding separate disbarment proceedings.</bold> Fact that attorney has been convicted of felony, resulting in automatic disbarment, does not preclude separate disbarment proceedings to determine fitness of attorney to continue in capacity as officer of court. Sec. 8667, Code 1942. <bold>9. Attorney and client — same — final judgment of conviction as</bold> <bold>not precluding separate disbarment proceedings.</bold> Final judgment of conviction does not preclude separate disbarment proceedings against attorney, where his conduct affects his moral character and capacity as lawyer. <bold>10. Attorney and client — same — pardon, as not precluding</bold> <bold>separate disbarment proceeding.</bold> Granting of pardon to attorney convicted of crime does not prevent court having jurisdiction from disbarring him because of acts upon which conviction was based.<page_number>Page 419</page_number> <bold>11. Attorney and client — same — acquittal, as not barring</bold> <bold>adjudication in disbarment proceeding.</bold> Acquittal of attorney in prosecution for criminal acts does not bar adjudication in disbarment proceedings based on such acts or conduct involved in them. Headnotes as approved by Ethridge, J.

<bold>1. Motor vehicles — intersectional collision — proximate cause —</bold> <bold>defendant's negligence, sole proximate cause of accident.</bold> Negligence of driver of farm tractor, which was being driven on intersecting street, and which, after stopping, must have rolled onto highway, was sole proximate cause of collision between front end of tractor and defendants' truck and trailer which had right of way at intersection and which was being driven entirely on pavement of highway. Headnote as approved by Ethridge, J.

<bold>1. Brokers — real estate broker not entitled to commission from</bold> <bold>seller.</bold> Real estate broker, which had no contract or understanding with purchasers that they were to pay a commission, was not entitled to a commission from seller, who was trying to sell house himself and who advertised it for sale, and who sold it through assistance of relative of buyer who was brought over to look at house by salesman for broker. <center> ON MOTIONS</center> July 10, 1962 143 So.2d 432 <bold>2. Appeal — supersedeas bonds — liability of sureties — not</bold> <bold>necessary parties to appeal.</bold> Sureties on supersedeas bond are bound by their contract to stand liable for principals named in bond and it is not necessary to summon them on appeal to Supreme Court. <bold>3. Appeal — supersedeas bonds — motion of sureties to correct</bold> <bold>judgment sustained.</bold> Supreme Court's reversal of lower courts and rendition of judgment for defendants inured to benefit of sureties on supersedeas bond of defendants against whom judgment had been granted below, so that where sureties' appeal had been dismissed in Supreme Court and final judgment did not mention order dismissing such appeal, judgment would be corrected so as to set aside lower court judgments against sureties. Headnotes as approved by Rodgers, J.

<bold>1. Criminal law — rape — instructions — peremptory for State for</bold> <bold>attempted rape, reversible error.</bold> Instruction telling jury that if defendant was not guilty of rape then the jury must find defendant guilty of attempted rape was error as a peremptory instruction for the State. <bold>2. Criminal law — Rule 11, Supreme Court, not applicable where</bold> <bold>error substantial.</bold> Error in effect in giving a peremptory instruction for the State in criminal prosecution was substantial, and required a reversal where there was conflict in the evidence on the issue of guilt. Rule 11, Supreme Court Rules. Headnotes as approved by Ethridge, J.

<bold>1. Railroads — injuries to persons on or near track — evidence —</bold> <bold>trespassers.</bold> In action for death of decedent who was run over by defendant's train, evidence sustained finding that decedent was a<page_number>Page 734</page_number> trespasser on railroad right-of-way and that decedent was drunk to extent that he was unconscious at time he was struck by train. Sec. 1741, Code 1942. <bold>2. Appeal — railroads — injuries to persons on or near track —</bold> <bold>evidence — trespassers — finding of Chancellor.</bold> Chancellor as trier of facts had right to accept as true engineer's testimony that he saw decedent for first time when he was only about 240 feet from point where decedent was lying, and Supreme Court could not say that Chancellor was manifestly wrong in his finding that that was first time engineer could have seen decedent placed as he was on railroad right-of-way. Sec. 1741, Code 1942. <bold>3. Railroads — injuries to persons on or near track — persons</bold> <bold>entitled to lookout — trespassers.</bold> The servants of railroad company in charge of its train are under no duty to keep a lookout for trespassers on railroad track, and need only exercise reasonable care to prevent injuring such trespasser after they have discovered and realized his peril. Sec. 1741, Code 1942. <bold>4. Railroads — injuries to persons on or near track — statutory</bold> <bold>presumption — prima facie case — rebuttal.</bold> Proof of fact that decedent was killed by running of train of defendant at time and place shown by evidence was prima facie proof of negligence authorizing recovery, and to overcome such statutory presumption, it developed upon defendant railroad to exculpate itself by establishing to satisfaction of Chancellor as trier of facts such circumstances of excuse as would relieve it from liability. Sec. 1741, Code 1942. <bold>5. Railroads — injuries to persons on or near track — statutory</bold> <bold>presumption — prima facie case — rebuttal — circumstantial</bold> <bold>evidence.</bold> To exculpate railroad from liability for death of decedent struck by train it was not absolutely necessary that eyewitnesses be produced to testify that they saw accident in any or all of its details, but facts relied on to overcome statutory presumption of negligence could be proved in all or in part by circumstances, that is, prima facie presumption created by statute can be overcome by circumstantial evidence, but such evidence must be convincing, full and complete. Sec. 1741, Code 1942.<page_number>Page 735</page_number> <bold>6. Railroads — injuries to persons on or near track — prima</bold> <bold>facie case — evidence sufficient to overcome statutory</bold> <bold>presumption.</bold> Evidence, including showing that train and its appliances were in good order, that statutory warning signals were given, that engineer did not see decedent on right-of-way until he was approximately 240 feet from point where decedent was lying, and that engineer applied his brakes fully as soon as he saw decedent lying on right-of-way and brought train to a stop, was sufficient to overcome statutory presumption of negligence. Secs. 1741, 7777, Code 1942. <bold>7. Railroads — injuries to persons on or near track — witnesses</bold> <bold>— evidence — experiments.</bold> Testimony of witnesses who testified concerning experiments made by them during week before trial for purpose of determining how far a man, lying where decedent was lying when train approached crossing, could be seen from direction from which train was coming was properly considered by Chancellor to discredit testimony of defendant's engineer, who stated that he had not seen decedent until he was only 240 feet from him, but weight to be given to testimony was for Chancellor to determine. Secs. 1741, 7777, Code 1942. <bold>8. Railroads — injuries to persons on or near track — evidence.</bold> Finding that noise made by engineer in giving alarm and running of train caused decedent to arouse from his drunken condition and straighten up to extent that side of train hit him and carried him 85 to 100 feet was not erroneous as constituting conjecture and as being contrary to physical facts where evidence and physical facts clearly showed that injury was due solely to decedent's own negligence. Secs. 1741, 7777, Code 1942. Headnotes as approved by Kyle, J.