ADOPTED NOVEMBER 1, A.D., 1890

PREAMBLE

We, the people of Mississippi in convention assembled, grateful to Almighty God, and invoking his blessing on our work, do ordain and establish this constitution.

Cross References —

Political power and rights of the people, see Miss. Const. Art. 3, §§ 5, 6.

JUDICIAL DECISIONS

1. In general.

The Constitution must be construed on the theory that it is to last for all time. L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 1910 Miss. LEXIS 286 (Miss. 1910), limited, Merrill Engineering Co. v. Capital Nat'l Bank, 192 Miss. 378, 5 So. 2d 666, 1942 Miss. LEXIS 5 (Miss. 1942).

A court in construing the Constitution must look alone to the perfected work-the Constitution itself. Dixon v. State, 74 Miss. 271, 20 So. 839, 1896 Miss. LEXIS 110 (Miss. 1896).

Ratification of the Constitution by the people was unnecessary to its validity. Sproule v. Fredericks, 69 Miss. 898, 11 So. 472, 1892 Miss. LEXIS 10 (Miss. 1892).

A constitutional convention has no power to impair vested rights of individuals. Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873).

Article 1. Distribution of Powers.

§ 1. Powers of government.

The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

HISTORY: 1817 art II § 1; 1832 art II § 1; 1869 art III § 1.

JUDICIAL DECISIONS

1. In general.

2. Legislative powers and functions–In general.

3. – – Review of administrative decisions, legislative powers and functions.

4. – – Crimes, legislative powers and functions.

5. – – Education, legislative powers and functions.

6. – – Delegation of legislative powers, legislative powers and functions.

7. – – Incorporation of municipalities, legislative powers and functions.

8. Judicial powers and functions–In general.

9. – – Crimes, judicial powers and functions.

10. – – Elections, judicial powers and functions.

11. – – Determining validity of legislation, judicial powers and functions.

12. – – Construction of legislation, judicial powers and functions.

13. – – Municipal ordinances, judicial powers and functions.

14. – – Review of administrative decisions, judicial powers and functions.

15. Executive powers and functions.

16. Encroachment–In general.

17. – – Upon legislative power, encroachment.

18. – – Upon judicial power, encroachment.

19. – – Discretion of prosecutor, encroachment.

20. – – Upon executive power, encroachment.

1. In general.

The portion of the Sovereign Immunity Act (§§11-46-1 et seq.) requiring that all claims against the State be governed by case law governing sovereign immunity as it existed immediately prior to the decision in Pruett v. City of Rosedale (Miss. 1982) 421 So. 2d 1046 is unconstitutional as it violates the doctrine of separation of powers and the prohibition against reviving or amending a law by reference to its title only. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

The participation of the Lieutenant Governor on the Joint Legislative Budget Committee was not a violation of the constitutional provision for separation of executive and legislative powers. The Lieutenant Governor is constitutionally an officer of both the executive and legislative departments and is eligible as President of the Senate to receive the legislative powers conferred upon him by the legislation creating the Joint Legislative Budget Committee. Neither the statute creating the Joint Legislative Budget Committee nor the Lieutenant Governor’s service on the committee constituted a violation of the constitutionally mandated separation of powers. Kirksey v. Dye, 564 So. 2d 1333, 1990 Miss. LEXIS 38 (Miss. 1990).

Claim upon which relief can be granted is stated where allegation is that member of Executive Department of Government is exercising legislative powers within Senate; court has authority and responsibility to decide question where it is alleged that one arguably member of executive department is exercising legislative powers, where court had for many years entertained and decided controversies wherein parties claimed that members of one department of government were exercising powers in another in violation of constitutional mandate for separation of powers. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

Workmen’s Compensation Law does not violate § 1 of the state constitution which provides that the powers of the government of the state shall be divided into three distinct departments and each of them confided to a separate magistracy. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

Constitutional provision dividing powers of government into departments impliedly prohibits advisory opinions by one department to another, except as Constitution provides therefor. In re Opinion of Justices, 148 Miss. 427, 114 So. 887, 1927 Miss. LEXIS 99 (Miss. 1927).

The separation of the legislative, judicial and executive powers of government is fundamental under the federal and state Constitutions and an ordinance of a constitutional convention cannot violate it. Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873).

2. Legislative powers and functions–In general.

Circuit court’s overruling of the Mississippi Public Employees’ Retirement System’s denial of disability benefits to a teacher was reversed, as substantial evidence supported the agency’s decision. However, the teacher was to submit to an evaluation by a physician of the agency’s choice, as well as an updated exam by her physician if she so chose. Public Emples. Ret. Sys. v. Howard, 905 So. 2d 1279, 2005 Miss. LEXIS 387 (Miss. 2005).

State constitution does not grant specific legislative powers, but limits them. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Legislative and not judicial power held exercised in reducing authority of revenue agent, though it work abatement of a suit. Miller v. Globe-Rutgers Fire Ins. Co., 143 Miss. 489, 108 So. 180, 1926 Miss. LEXIS 284 (Miss. 1926).

3. – – Review of administrative decisions, legislative powers and functions.

It is beyond the power of the legislature to grant a trial de novo to permit the court or jury to substitute their own judgment for that of the Civil Service Commission, when the commission has exercised a purely executive function. City of Meridian v. Davidson, 211 Miss. 683, 53 So. 2d 48, 1951 Miss. LEXIS 399 (Miss. 1951).

4. – – Crimes, legislative powers and functions.

Under the Uniform Controlled Substances Law, the penalties prescribed for violations thereof are inextricably tied to the various schedules, and therefore the portions of Code 1972, §41-29-111 by which the state board of health is given the authority to move a substance from one schedule to another, to add substances to any schedule, and to delete substances from any schedule are an unconstitutional attempt to delegate the authority to define crimes and fix the punishments therefor which is vested exclusively in the legislature; such unconstitutional portions are separable from the remaining provisions of the Uniform Controlled Substances Law. Howell v. State, 300 So. 2d 774, 1974 Miss. LEXIS 1632, 1974 Miss. LEXIS 1633 (Miss. 1974).

5. – – Education, legislative powers and functions.

The abolition of fraternal societies at state educational institutions is within the power of the legislature and is not violative of this section. Board of Trustees v. Waugh, 105 Miss. 623, 62 So. 827, 1913 Miss. LEXIS 242 (Miss. 1913), aff'd, 237 U.S. 589, 35 S. Ct. 720, 59 L. Ed. 1131, 1915 U.S. LEXIS 1371 (U.S. 1915).

6. – – Delegation of legislative powers, legislative powers and functions.

The provision in §11-46-6 [repealed] providing that, until the Sovereign Immunity Act (§§11-46-1 et seq.) becomes effective, all claims against the State and political subdivisions “shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So. 2d 1046” and relevant statutory law governing sovereign immunity delegates all authority to the court, as the court is told to apply the “case law,” which is not even confined to Mississippi case law, on sovereign immunity as it existed on November 10, 1982; the court is required to go beyond the 4 corners of the statute to find the substantive law governing sovereign immunity, a legislatively imposed responsibility on the court “which comes perilously close to delegation to the court the power to legislate on this particular subject,” which under the Mississippi Constitution only the legislature may do. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

A statute directing organization of a water district if the court finds the project feasible from an engineering standpoint and practical, and that its creation will meet a public necessity and be conducive to the public welfare of the state as a whole, is not unconstitutional as conferring on the judiciary authority to answer legislative questions. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

The last two sentences of Code 1942, § 5825, providing that the insurance commission shall obtain from every stock fire company authorized to do business in the state a written opinion as to the amount of commission such company should pay local agents and that the majority opinion shall fix the amount or rate of commissions to paid local agents in the state, are unconstitutional, since even assuming some power to fix agents’ commission rates is delegated to the insurance commission, the statute constitutes an improper delegation of legislative authority because it fails to provide adequate standards for the guidance of the administrative agency, and constitutes an improper delegation of legislative authority to private groups. State v. Allstate Ins. Co., 231 Miss. 869, 97 So. 2d 372, 1957 Miss. LEXIS 576 (Miss. 1957).

Statute providing for supervision and inspection of public offices and public institutions did not contravene this section as attempting to confer judicial and legislative powers upon executive officers. State ex rel. Knox v. Board of Sup'rs, 141 Miss. 701, 105 So. 541, 1925 Miss. LEXIS 189 (Miss. 1925).

The statutes giving the board of supervisors the right to regulate the taking of fish in their respective counties do not give a judicial body legislative authority. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

7. – – Incorporation of municipalities, legislative powers and functions.

The commingling of powers in the chancellor to determine the question of the existence of public convenience and necessity for the incorporation of a new municipality, as well as that of the reasonableness of the incorporation, does not violate the prohibition against unlawful delegation of governmental powers, since a finding by the chancellor of the existence of specified requirements for such incorporation is largely ministerial, affording little if any discretion on the part of the chancellor. Rouse v. Pascagoula, 230 So. 2d 543, 1970 Miss. LEXIS 1549 (Miss. 1970).

The statutory power given the governor to determine the right to incorporate municipalities is not violative of the Constitution. City of Jackson v. Whiting, 84 Miss. 163, 36 So. 611, 1904 Miss. LEXIS 76 (Miss. 1904).

8. Judicial powers and functions–In general.

Power to grant the authority to require parents in Mississippi to support their adult children financially was confided to the Mississippi Legislature. The Mississippi courts were without the constitutional power to declare otherwise. Hays v. Alexander, 114 So.3d 704, 2013 Miss. LEXIS 324 (Miss. 2013).

Sections 43-21-119 and 43-21-123, which govern the development and implementation of the annual budget for a youth court in Mississippi, do not violate Mississippi’s constitutional separation of powers doctrine with respect to youth court judges’ ability to participate in the development and implementation of the budget as approved by the board of supervisors. Moore v. Board of Supervisors, 658 So. 2d 883, 1995 Miss. LEXIS 366 (Miss. 1995).

In an action by an employee for actual and punitive damages against an employer on the ground that the employee had been discharged when he refused to drop a workman’s compensation claim against the employer, the trial court properly sustained the employer’s demurrer where there is no provision in the Mississippi Workman’s Compensation Law for relief in cases of retaliatory discharge and where such an exception to the common law rule that a contract of employment for an indefinite term may be terminated at the will of either party rests solely within the power of the Legislature and should not be undertaken by the judiciary. Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874, 1981 Miss. LEXIS 1913 (Miss. 1981).

Statute (Laws of 1944, ch 208, § 10, § 3825-11) providing for appeal to the circuit court from the determination of the Civil Service Commission in removing, suspending, demoting or discharging municipal firemen or policemen for misconduct and that on such appeal the accused shall have the right to a trial by jury, is not unconstitutional as foisting upon the judiciary the performance of nonjudicial powers by providing for a trial de novo in the circuit court, where the statute by its express terms limits the judicial function to determining whether or not the judgment of the commission had such a basis in substantial evidence as not to affirmatively show that the commission had acted in bad faith or without cause. City of Meridian v. Davidson, 211 Miss. 683, 53 So. 2d 48, 1951 Miss. LEXIS 399 (Miss. 1951).

School trustees are not judicial officers, but administrative bodies; and while they may determine primarily whether a child is white or colored, their finding is not judicial and does not preclude the court from determining the fact. Moreau v. Grandich, 114 Miss. 560, 75 So. 434, 1917 Miss. LEXIS 66 (Miss. 1917).

The determination of a constitutional provision is a judicial and not a legislative matter. State ex rel. McClurg v. Powell, 77 Miss. 543, 27 So. 927, 1900 Miss. LEXIS 38 (Miss. 1900).

It is the province of the court and not the legislature to declare what is a nuisance. Quintini v. Mayor, etc. of Bay St. Louis, 64 Miss. 483, 1 So. 625, 1886 Miss. LEXIS 96 (Miss. 1886).

9. – – Crimes, judicial powers and functions.

Capital rape statute which requires imposition of death sentence or life imprisonment did not violate separation of powers doctrine since power to determine appropriate punishment for criminal acts lies in legislative branch. Fisher v. State, 690 So. 2d 268, 1996 Miss. LEXIS 490 (Miss. 1996).

10. – – Elections, judicial powers and functions.

Equity might well interfere to prevent elections authorizing bond issues directly affecting property-rights where such election is attempted to be held without authority of law. Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

An election will be enjoined which is to be held in violation of the Constitution and laws of the state, at the instance of a party who will be directly injured thereby. Conner v. Gray, 88 Miss. 489, 41 So. 186, 1906 Miss. LEXIS 170 (Miss. 1906); Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

The judiciary are not empowered to grant writs of supersedeas to prevent the holding of local option elections. Bond v. State, 68 Miss. 648, 9 So. 353, 1891 Miss. LEXIS 10 (Miss. 1891).

11. – – Determining validity of legislation, judicial powers and functions.

Adoption of Senate rules challenged in current case, without record of dissent, would not serve as estoppel against Senators challenging validity of rules, because such would have effect of establishing new method of amending Constitution, by waiver and estoppel; exhaustion of nonjudicial remedies of constitutional challenge is not required before filing lawsuit. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

The court must uphold a statute where there is a reasonable doubt of its constitutionality. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

Until the contrary is shown courts presume statutes to be constitutional. Smith County v. Eastman Gardner Co., 53 So. 7 (Miss. 1910); Beasley v. McElhaney, 53 So. 8 (Miss. 1910); L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 1910 Miss. LEXIS 286 (Miss. 1910), limited, Merrill Engineering Co. v. Capital Nat'l Bank, 192 Miss. 378, 5 So. 2d 666, 1942 Miss. LEXIS 5 (Miss. 1942); Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977, 1911 Miss. LEXIS 142 (Miss. 1911).

A statute susceptible of a construction which upholds its validity will be upheld. State v. Louisville & N.R.R., 97 Miss. 35, 51 So. 918 (1910).

Statutes not in palpable conflict with the Constitution will not be condemned. Hart v. State, 87 Miss. 171, 39 So. 523, 1905 Miss. LEXIS 125 (Miss. 1905).

A case in which § 4936, Code of 1906, is held to be unconstitutional when it relates to jurisdiction, but not as to procedure. Arbuckle v. State, 80 Miss. 15, 31 So. 437, 1902 Miss. LEXIS 219 (Miss. 1902).

Unless it is necessary to a determination of the issues, the Supreme Court will not pass on the constitutionality of any statute. Hallum v. Mobile & O. R. Co., 24 So. 909 (Miss. 1899); Hendricks v. State, 79 Miss. 368, 30 So. 708, 1901 Miss. LEXIS 65 (Miss. 1901); Bell v. Kerr, 80 Miss. 177, 31 So. 708, 1902 Miss. LEXIS 237 (Miss. 1902); Alabama & V. R. Co. v. Overstreet, 85 Miss. 78, 37 So. 819, 1904 Miss. LEXIS 156 (Miss. 1904); Native Lumber Co. v. Board of Supervisors, 89 Miss. 171, 42 So. 665, 1906 Miss. LEXIS 67 (Miss. 1906); Flora v. American Express Co., 92 Miss. 66, 45 So. 149, 1907 Miss. LEXIS 9 (Miss. 1907); Ex parte Jones, 112 Miss. 27, 72 So. 845, 1916 Miss. LEXIS 57 (Miss. 1916); Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

The Supreme Court will not determine the wisdom or policy of a statute. Daily v. Swope, 47 Miss. 367, 1872 Miss. LEXIS 83 (Miss. 1872); State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 1905 Miss. LEXIS 184 (Miss. 1905); Bobo v. Board of Levee Comm'rs, 92 Miss. 792, 46 So. 819, 1908 Miss. LEXIS 248 (Miss. 1908); Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911); State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912) (suggestion of error overruled in 103 M 263, 60 So. 215); Darnell v. Johnston, 109 Miss. 570, 68 So. 780 (Miss. 1915).

12. – – Construction of legislation, judicial powers and functions.

Trial judge is not required, prior to accepting a guilty plea, to inform a defendant of the sex offender registration laws, Miss. Code Ann. §§45-33-25 through 31 because Miss. Code Ann. §45-33-39(1) confers no right on a criminal defendant charged with a sex crime and imposes no duty on trial judges, and judicial rules, such as the rules of evidence, civil procedure, criminal procedure, and professional conduct, neither come from the Legislature nor require legislative approval; the Mississippi legislative branch of government may not, through procedural legislation, control the function of the judiciary, and subservience to legislation that mandates what trial judges must say to a defendant in a courtroom during a plea hearing would be tantamount to both an abdication of judicial duty, as well as tacit approval of legislative usurpation of the judicial prerogative. Magyar v. State, 18 So.3d 807, 2009 Miss. LEXIS 388 (Miss. 2009), cert. denied, 560 U.S. 903, 130 S. Ct. 3274, 176 L. Ed. 2d 1182, 2010 U.S. LEXIS 3999 (U.S. 2010).

Whether law is needed and advisable in general government is a matter solely for the wisdom of the legislature, but it is duty of courts to construe the law and apply it to cases presented and determine whether the state constitution authorizes the legislation. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

It is the province of the Supreme Court to construe penal statutes as they are written. Hatton v. State, 92 Miss. 651, 46 So. 708, 1908 Miss. LEXIS 246 (Miss. 1908).

Courts cannot change a statute. Yerger v. State, 91 Miss. 802, 45 So. 849, 1907 Miss. LEXIS 196 (Miss. 1907); Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911); State v. Traylor, 100 Miss. 544, 56 So. 521, 1911 Miss. LEXIS 49 (Miss. 1911).

Construction of laws is within the province of the courts and not the legislature. Planters' Bank of Tennessee v. Black, 19 Miss. 43, 1848 Miss. LEXIS 154 (Miss. 1848); Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873); McCulloch v. Stone, 64 Miss. 378, 8 So. 236, 1886 Miss. LEXIS 76 (Miss. 1886).

13. – – Municipal ordinances, judicial powers and functions.

Local board is in the best position to interpret its own local ordinances; thus, by giving great weight to the board’s interpretation, the supreme court ensures it sticks to its constitutional role as the judiciary, and the supreme court restrains its branch from becoming a super-municipal board, a role that would certainly usurp the powers of the local governing body. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

Mississippi’s law does not run afoul of the constitution; the board of supervisors is not overstepping its bounds into the judiciary’s role by interpreting local ordinances but is simply acting within its own established role as creator and enforcer of local law, and similarly, by giving deference to a local board’s interpretation, the supreme court is not ceding its judicial power. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

No violation of this section is involved in the court’s modification of an ordinance annexing territory to a municipality. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

14. – – Review of administrative decisions, judicial powers and functions.

In an action arising out of the termination of an affiliation agreement, a chancellor violated the doctrine of separation of powers, Miss. Const. Art. 1, § 1, by not affording deference to the Board of Trustees of Mississippi State Institutions of Higher Learning’s interpretation and implementation of its own policy regarding the independence of affiliated entities. Limbert v. Miss. Univ. for Women Alumnae Ass'n, 998 So. 2d 993, 2008 Miss. LEXIS 583 (Miss. 2008).

This section does not preclude an appeal to the courts from an order of the Educational Finance Commission. Board of Education v. State Educational Finance Com., 243 Miss. 782, 138 So. 2d 912, 1962 Miss. LEXIS 408 (Miss. 1962).

15. Executive powers and functions.

Statute which allowed the Executive Branch to make appropriations decisions was constitutional, as it did not violate the doctrine of separation of powers, because budget reductions imposed on state agencies by the Governor of the State of Mississippi pursuant to the statute were an exercise of the Executive’s constitutional power to control the budget. Clark v. Bryant, 253 So.3d 297, 2018 Miss. LEXIS 385 (Miss. 2018).

The court rejected the argument that local governments operate subject to the separation of powers theory of government wherein the mayor is the executive power and board of aldermen are the legislative power and that, therefore, they cannot both exercise appointment powers because that would be a solely executive power vested entirely in the Mayor. Tisdale v. Clay, 728 So. 2d 1084, 1998 Miss. LEXIS 551 (Miss. 1998).

A suit cannot be maintained against the state for the recovery of an award which the governor has refused to order paid, since the offering and payment of rewards for the arrest of escaped criminals is intrusted solely to the discretion of the executive. State v. Dinkins, 77 Miss. 874, 27 So. 832, 1900 Miss. LEXIS 32 (Miss. 1900).

16. Encroachment–In general.

Legislator could not simultaneously serve dual roles as a state representative and a city’s selectman because the service in both roles violated separation of powers; the role of state representative was legislative in nature, and the role of selectman was a mixed legislative and executive role. Myers v. City of McComb, 943 So. 2d 1, 2006 Miss. LEXIS 537 (Miss. 2006).

The Board of Trustees of State Institutions of Higher Learning is an executive rather than a legislative body as indicated by the enumeration of the Board of Trustees’ powers and duties contained within the Mississippi Constitution and applicable statutes; thus, appointment of the Board of Trustees by the Governor rather than the legislature is not an encroachment upon the powers of the legislative branch of the government. Van Slyke v. Board of Trustees of State Inst. of Higher Learning, 613 So. 2d 872, 1993 Miss. LEXIS 55 (Miss. 1993).

17. – – Upon legislative power, encroachment.

Senate possesses power to make rules regarding the exercise of legislative powers that inhere in it, and it may confer these powers upon one or more of its members, one of which is Lieutenant Governor by virtue of § 129 of Constitution; therefore, separation of powers doctrine is not violated by Lieutenant Governor’s exercising power in Senate pursuant to Senate rules. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

Although an act of the legislature may appear to the court as morally wrong and unjust, yet it is not for the courts to define the limits of legislative discretion in the absence of constitutional inhibition. Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

18. – – Upon judicial power, encroachment.

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Miss. Code Ann. §11-51-81’s “three-court rule” is unconstitutional because it usurps the Mississippi Supreme Court’s constitutional rule-making power and violates the doctrine of separation of powers. Thus, any litigant whose case originates in either justice court or municipal court, and whose case is ultimately decided by the circuit court, whether it be via a trial de novo or on appellate review from a final judgment of the county court conducted by the circuit court under the applicable statute, shall have the right to appeal to the Mississippi Supreme Court. Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

The portion of §11-46-6 [repealed] requiring Mississippi courts in determining sovereign immunity to apply the case law as it existed on November 10, 1982, is unconstitutional and void because it “freezes in time and place the common law as it existed at that particular moment,” and does not permit a judge to apply the common law as it exists the moment the judge makes his or her decision; while a court may be told by a statute to apply common law principles in its interpretation, the court cannot also be told that the common law it applies cannot grow or change with the experience of mankind, as such a mandate suffocates the judicial function. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

The provisions of Code 1942, § 6334-05 providing for trial de novo before a jury on an appeal in the Circuit court are unconstitutional and invalid as a violation of the provisions of state constitution relating to separation of powers. Loftin v. George County Board of Education, 183 So. 2d 621, 1966 Miss. LEXIS 1426 (Miss. 1966).

It is usurpation of judicial power for legislature to declare suit abated and give permission to others to revive it, though object, reduction of power of officer, be within legislative power, if properly exercised. Miller v. Hay, 143 Miss. 471, 109 So. 16, 1926 Miss. LEXIS 282 (Miss. 1926).

It is not a violation of this section to provide that all questions of negligence and contributory negligence be left to the jury. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

A direction by the legislature that in estimating damages accruing to the owner of land taken for public use the benefits which will result to the owner shall be allowed in extinguishment of the claim, is judicial, and therefore void. Isom v. Mississippi C. R. Co., 36 Miss. 300, 1858 Miss. LEXIS 98 (Miss. 1858).

Legislature not authorized to construe laws. Planters' Bank of Tennessee v. Black, 19 Miss. 43, 1848 Miss. LEXIS 154 (Miss. 1848); Lawson v. Jeffries, 47 Miss. 686, 1873 Miss. LEXIS 25 (Miss. 1873); McCulloch v. Stone, 64 Miss. 378, 8 So. 236, 1886 Miss. LEXIS 76 (Miss. 1886).

19. – – Discretion of prosecutor, encroachment.

Exercise of prosecutorial discretion in electing, or refusing, to indict criminal defendant under habitual criminal statute (§99-19-81) does not constitute encroachment by prosecutor on judicial power to determine appropriate criminal sentence. Washington v. State, 478 So. 2d 1028, 1985 Miss. LEXIS 2277 (Miss. 1985).

20. – – Upon executive power, encroachment.

There was no violation of the separation of powers requirement where one person served both as chairman of a solid waste management authority and as a county administrator; although involving many duties which could be characterized either as executive or ministerial, the offices were primarily ministerial because the positions existed to carry out the will of the board of supervisors, in whose hands the ultimate decision making power resided. Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 1999 Miss. App. LEXIS 173 (Miss. Ct. App. 1999).

Section 37-13-91, the compulsory school attendance law, is unconstitutional insofar as it requires the selection and supervision of school attendance officers to be undertaken by youth court judges; the youth court judge’s selection and supervision of school attendance officers as provided for in the statute violates Article I, §§ 1 and 2 of the Mississippi Constitution-the separation of powers provisions-because the judge is charged with the executive function of administering an existing law, far removed from judiciary functions. In the Interest of R.G., 632 So. 2d 953, 1994 Miss. LEXIS 108 (Miss. 1994).

An employee’s positions of veteran service clerk and inventory control clerk for the county, and his position as a member of the city council, were not held in violation of the separation of powers provision of the Mississippi Constitution, in that his positions with the county were ministerial and did not require that he exercise executive or judicial powers. Ball v. Fitzpatrick, 602 So. 2d 873, 1992 Miss. LEXIS 397 (Miss. 1992).

Statute providing for the regulation, supervision and control of motor carriers is not unconstitutional in providing that in addition to other available remedies, the state, or any party aggrieved by any final finding, order, or judgment of the public service commission, shall have the right, regardless of the amount involved, of appeal to the first judicial district circuit court of Hinds County, Mississippi, since the provision in question merely provides a new method or procedure by which orders of such administrative board may be reviewed by a court, conferring no new judicial power on the court, but simply creating a new procedure by which existing judicial power may be exercised. Dixie Greyhound Lines, Inc. v. Mississippi Public Service Com., 190 Miss. 704, 1 So. 2d 489, 200 So. 579, 1941 Miss. LEXIS 60 (Miss. 1941).

Supreme Court held unauthorized to answer questions whether lieutenant governor’s duty to preside over new senate should be discharged by president pro tempore of preceding senate. In re Opinion of Justices, 148 Miss. 427, 114 So. 887, 1927 Miss. LEXIS 99 (Miss. 1927).

Statute providing for auditing and inspection of public offices did not violate this section as attempting to confer upon executive officers legislative and judicial powers. State ex rel. Knox v. Board of Sup'rs, 141 Miss. 701, 105 So. 541, 1925 Miss. LEXIS 189 (Miss. 1925).

This section is not violated by c 57, Laws of 1904, reimbursing an ex-tax collector whose money had been erroneously paid into the state treasury. Henry v. Carter, 88 Miss. 21, 40 So. 995, 1906 Miss. LEXIS 148 (Miss. 1906).

Acts of the penitentiary board of control within the scope of authority granted by a constitutional act of the legislature will not be reviewed by the courts. Henry v. State, 87 Miss. 1, 39 So. 856 (Miss. 1905).

The courts will not undertake to control the attorney-general in the matter of his official opinions. Woodbury v. McClurg, 78 Miss. 831, 29 So. 514, 1901 Miss. LEXIS 131 (Miss. 1901).

The governor cannot be compelled by mandamus to perform any act. Vicksburg & M. R. Co. v. Lowry, 61 Miss. 102, 1883 Miss. LEXIS 79 (Miss. 1883).

ATTORNEY GENERAL OPINIONS

Clerk at WIC distribution center of county welfare agency is ministerial position and not office; therefore, separation of powers doctrine does not prohibit alderlady from holding this position. Crawford, Sept. 16, 1992, A.G. Op. #92-0707.

Because city councilman and state senator are both within legislative branch, separation of powers does not prohibit person from serving simultaneously in both capacities. Moore, Sept. 24, 1992, A.G. Op. #92-0720.

Administrative law judge for Workers’ Compensation Commission may serve on school board for public schools without violating separation of powers doctrine. Ellis, Nov. 18, 1992, A.G. Op. #92-0819.

Serving in dual capacity of city councilman/state senator would not be violation of doctrine of separation of powers. Jordan, Nov. 25, 1992, A.G. Op. #92-0910.

Because administrative authority to assign courtrooms for convenience of defendants in justice court would not constitute exercise of any core power of judiciary, there would be no violation of doctrine of separation of powers for one person holding offices of mayor and justice court clerk. Young, Dec. 3, 1992, A.G. Op. #92-0914.

Service in two branches of government simultaneously is contrary to the separation of powers doctrine when the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character; since an alderman exercises power at the core of the legislative branch, while a natural gas commissioner performs discretionary, policy making functions, that is, exercises core power in the executive branch, a person would be prohibited from serving simultaneously as an alderman and a commissioner. Gerhart, January 30, 1998, A.G. Op. #98-0040.

Holding the positions of Full Professor of Marine Science, Associate Director of Research and Sponsored Programs and Commissioner on the Commission on Marine Resources, presents no violation of the doctrine of separation of powers. Aston, April 17, 1998, A.G. Op. #98-0172.

A municipal judge may not hold an office or position in the executive branch which involves formulation of economic development policy, zoning or land use, or other policies of the city. Wise, July 24, 1998, A.G. Op. #98-0371.

A person may not simultaneously be a school attendance officer and a county supervisor since a school attendance officer is in the executive branch of government and a county supervisor is an officer of the judicial branch of government. Lanford, July 31, 1998, A.G. Op. #98-0384.

The separation of powers doctrine does not prohibit a person from serving as a city council member and as a bookkeeper in the office of the county tax collector. Fitzpatrick, Jan. 7, 2000, A.G. Op. #99-0719.

The separation of powers doctrine prohibits a person from serving simultaneously as a director of a juvenile detention center and a justice court judge. Perkins, Sr., Jan. 14, 2000, A.G. Op. #99-0724.

A position of Youth Court Investigator and Compliance Officer is not a de facto violation of the separation of powers clause. McGehee, Nov. 17, 2000, A.G. Op. #2000-0640.

A municipal alderman cannot serve as a municipal police officer while continuing to hold the office of alderman, even if the service in question is in two separate municipalities. White, Jan. 11, 2002, A.G. Op. #01-0779.

A county board of supervisors may not appoint a member of the board as Emergency Management Director. Walley, Mar. 15, 2002, A.G. Op. #02-0106.

Service in the national guard simultaneously with service as a municipal alderman would not violate the Mississippi Constitution. Purnell, June 7, 2002, A.G. Op. #02-0257.

A member of the state legislature may simultaneously serve as an elected municipal alderman, as both positions are squarely within the legislative branch of government. White, July 3, 2002, A.G. Op. #02-0134.

The powers and duties of the director of a resources development council the council do not involve the exercise of core powers of the executive branch, and therefore a legislator’s employment as executive director does not give rise to constitutional concern. Ruffin, Sept. 6, 2002, A.G. Op. #02-0516.

City councilman also serving as the executive director of the county emergency communications commission would exercise substantial policy making powers at the core of two branches of government and would be prohibited under separation of powers from simultaneously serving in both capacities. Faneca, Nov. 15, 2002, A.G. Op. #02-0625.

A municipal alderman may serve as a member of the National Guard without running afoul of Miss. Const., art. 1, §§ 1 and 2. Moore, Nov. 15, 2002, A.G. Op. #02-0663.

An individual may not serve as both a correctional officer (executive branch) and a county supervisor (judicial branch) without violating Miss. Const., art. 1, §§ 1 and 2. Epps, Mar. 21, 2003, A.G. Op. #03-0098.

A municipal court judge is in the judicial branch of government and a youth court prosecutor is in the executive branch of government, thereby making the holding of both offices simultaneously a violation of the separation of powers doctrine. Littleton, Mar. 14, 2003, A.G. Op. #03-0122.

The separation of powers doctrine prohibits a person from serving simultaneously as a justice court judge and as a city clerk. Byrd, Mar. 28, 2003, A.G. Op. #03-0119.

A person may not serve as a member of a county board of supervisors while also serving as an elected school board member. Chaney, May 16, 2003, A.G. Op. 03-0232.

The separation of powers doctrine set forth in the Mississippi Constitution prohibits a person from serving simultaneously as a member of the Mississippi House of Representatives and as a member of the Mississippi Civil War Battlefield Commission. Lingle, Sept. 19, 2003, A.G. Op. 03-0456.

A deputy sheriff, upon being sworn in as a city councilman, must vacate his position as a deputy sheriff. Stokes, May 21, 2004, A.G. Op. 04-0206.

A deputy sheriff of a county is an officer in the executive branch of government, therefore, the separation of powers provision of the Mississippi Constitution would apply to this situation and prohibit the party in question from holding both offices. Stokes, May 21, 2004, A.G. Op. 04-0206.

The separation of powers doctrine would prohibit a member of the county board of supervisors from also serving as an investigator with the district attorney’s office. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed by UPS or Fed Ex. Abron, June, 21, 2004, A.G. Op. 04-0241.

The separation of powers doctrine would not prohibit a member of the county board of supervisors from also serving as a guidance counselor employed by the Department of Corrections in a state prison, or being employed by a private prison. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed as a security guard by a local bingo hall. Abron, June, 21, 2004, A.G. Op. 04-0241.

The Mississippi Constitution prohibits an individual from holding both the office of alderman and deputy sheriff at the same time. Curtis, July 23, 2004, A.G. Op. 04-0341.

Argument that a city councilman is not subject to the separation of powers doctrine because under the city’s special charter that office exercises both legislative and executive powers lacks merit. McGee, Aug. 6, 2004, A.G. Op. 04-0333.

Upon being sworn in as a member of the House of Representatives, a person vacated his position as a school district trustee. Kemp, Aug. 6, 2004, A.G. Op. 04-0365.

Asking questions and seeking information on the operations of a municipal department by a city councilman for the purposes of reporting back to the full council is permitted. However, if the line is crossed between gathering information and actually making administrative decisions for the department, a violation of the separation of powers doctrine may exist. Rupp, Oct. 1, 2004, A.G. Op. 04-0449.

Any authority a board of aldermen may have with regard to employment, termination, and/or suspension without pay, must be exercised by the body as a whole. An individual alderman has no authority in this regard and no authority to direct the actions of individual employees. Cook, Oct. 15, 2004, A.G. Op. 04-0503.

If the Legislature has decided not to renew the authority of a state agency, then the Governor lacks the authority to re-create that agency using an executive order. McCoy, May 20, 2004, A.G. Op. 04-0227.

An individual can serve as a city alderman and bailiff simultaneously without being in violation of this section. Stockton, Apr. 11, 2005, A.G. Op. 05-0197.

The Separation of Powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, prohibits an individual from holding two offices in two different branches of government simultaneously. An individual may simultaneously serve as a member of a county school board and as county circuit clerk because both offices are within the executive branch of the government. Maples, February 16, 2007, A.G. Op. #07-00074, 2007 Miss. AG LEXIS 22.

Under the separation of powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, one may not simultaneously hold the offices of alderman and school board member because the office of alderman is in the legislative branch of government and the office of school board member is in the executive branch of government. Gibbs, March 9, 2007, A.G. Op. #07-107, 2007 Miss. AG LEXIS 73.

RESEARCH REFERENCES

ALR.

Constitutionality of statute making mere filing of affidavit of bias or prejudice sufficient to disqualify judge. 5 A.L.R. 1275, 46 A.L.R. 1179.

Power of judiciary to compel legislature to make apportionment of representatives or election districts as required by Constitution. 46 A.L.R. 964.

Constitutionality of city manager or commission form of municipal government. 67 A.L.R. 737.

Constitutionality of statutes for formation or change of political districts or municipal corporations as affected by objection that they confer nondelegable powers, or impose nonjudicial functions, on a court. 69 A.L.R. 266.

Office of lieutenant governor as primarily executive or legislative. 70 A.L.R. 1095.

Constitutionality of statute providing for refund of taxes illegally or erroneously exacted. 98 A.L.R. 284.

Power of legislature, absent constitutional provision in that regard, to authorize or require court or justices thereof to render advisory opinion upon request of governor or of either house of legislature. 103 A.L.R. 1087.

Mandamus to governor. 105 A.L.R. 1124.

Availability of writ of prohibition as means of controlling administrative or executive boards or officers. 115 A.L.R. 3, 159 A.L.R. 627.

Power to detach land from municipal corporation, towns, or villages. 117 A.L.R. 267.

Power of legislature respecting admission to bar. 144 A.L.R. 150.

Constitutionality of arbitration statutes. 55 A.L.R.2d 432.

Implied cause of action for damages for violation of provisions of state constitutions. 75 A.L.R.5th 619.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 202 et seq.

CJS.

C.J.S. Constitutional Law §§ 54 to 59, 111 to 227, 441.

C.J.S. Courts §§ 2 to 15.

C.J.S. States §§ 75-81, 171-174, 240-243.

Law Reviews.

1987 Mississippi Supreme Court Review, Civil procedure. 57 Miss. L. J. 443, August, 1987.

Morton, Rules, rulemaking, and the ruled: the Mississippi Supreme Court as self-proclaimed ruler. 12 Miss. C. L. Rev. 293, Fall, 1991.

Southwick, Separation of Powers at the State Level: Interpretations and Challenges in Mississippi, 72 Miss. L.J. 927, Spring, 2003.

Separation of Powers at the State Level, Part II: Service in a Civilian Public Office and in the National Guard, 74 Miss. L.J. 47, Fall, 2004.

§ 2. Encroachment of power.

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

HISTORY: 1817 art II § 2; 1832 art II § 2; 1869 art III § 1.

JUDICIAL DECISIONS

1. Encroachment of power – In general.

2. – – Legislative branch, encroachment of power.

3. – – Executive branch, encroachment of power.

4. – – Judicial branch, encroachment of power.

5. Determination of criminal penalties.

6. Judicial review of administrative decisions.

7. Incompatible offices and vacation thereof.

8. Ratification of de facto or improperly appointed officer’s acts.

9. Regulation of public employment.

10. Reimbursement of officials.

1. Encroachment of power – In general.

Senate possesses power to make rules regarding the exercise of legislative powers that inhere in it, and it may confer these powers upon one or more of its members, one of which is Lieutenant Governor by virtue of § 129 of Constitution; therefore, separation of powers doctrine is not violated by Lieutenant Governor’s exercising power in Senate pursuant to Senate rules. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

The statute giving the circuit judge and governor authority to determine reasonableness and correctness of account for services of accountant in auditing county books is not violative of the Constitution. Jackson County v. Neville, 131 Miss. 599, 95 So. 626, 1923 Miss. LEXIS 206 (Miss. 1923).

2. – – Legislative branch, encroachment of power.

Court of Appeals erred in affirming the denial of defendant’s petition for post-conviction relief because the circuit court lacked jurisdiction and authority to accept his guilty pleas when he never had been charged with a crime, the Legislature did not have power to limit the number of claims that could be plead in a particular pleading, the docket sheet reflected that no criminal information, even assuming one ever existed, was filed with the circuit court, and the criminal files did not include any charging document. Ashwell v. State, 226 So.3d 69, 2017 Miss. LEXIS 341 (Miss. 2017).

2000 Miss. Laws 304, § 3, which abates any suits brought by a municipality to recover additional payments under Miss. Code Ann. §27-65-75 (1972) in excess of the amounts authorized in 2000 Miss. Laws 304, does not violate the separation of powers doctrine, as the Legislature did not revive the right to bring the same suit in the name of another. City of Belmont v. Miss. State Tax Comm'n, 860 So. 2d 289, 2003 Miss. LEXIS 132 (Miss. 2003).

The 1989 Public Trust Tidelands Act (§§29-15-1 through29-15-23) did not violate the separation of powers doctrine in Article 1, § 2 of the Mississippi Constitution by granting the Secretary of State, as a member of the executive branch, discretion in drawing and revising the preliminary tideland boundary map, in spite of the argument that the discretion afforded him in drawing the final boundary map gave him the authority to convey public trust lands which could otherwise be conveyed only by legislative enactment, since his discretion was limited to comments and/or documentation regarding the preliminary map submitted within a 60-day period, and any disagreements or discrepancies resulting from the preliminary map could be either negotiated or brought to trial; the Act did not give the Secretary of State the power or authority to make laws, but rather it provided that he be used as a tool in the implementation of the Act. Secretary of State v. Wiesenberg, 633 So. 2d 983, 1994 Miss. LEXIS 36 (Miss. 1994).

The Board of Trustees of State Institutions of Higher Learning is an executive rather than a legislative body as indicated by the enumeration of the Board of Trustees’ powers and duties contained within the Mississippi Constitution and applicable statutes; thus, appointment of the Board of Trustees by the Governor rather than the legislature is not an encroachment upon the powers of the legislative branch of the government. Van Slyke v. Board of Trustees of State Inst. of Higher Learning, 613 So. 2d 872, 1993 Miss. LEXIS 55 (Miss. 1993).

Claim upon which relief can be granted is stated where allegation is that member of Executive Department of Government is exercising legislative powers within Senate; Court has authority and responsibility to decide question where it is alleged that one arguably member of executive department is exercising legislative powers, where court had for many years entertained and decided controversies wherein parties claimed that members of one department of government were exercising powers in another in violation of constitutional mandate for separation of powers. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

No violation of this section is involved in the court’s modification of an ordinance annexing territory to a municipality. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

A statute directing organization of a water district if the court finds the project feasible from an engineering standpoint and practical, and that its creation will meet a public necessity and be conducive to the public welfare of the state as a whole, is not unconstitutional as conferring on the judiciary authority to answer legislative questions. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

Statutes cannot be saved where the language applies to employees of all corporations, by construing it to apply to corporations engaged in a hazardous business; this is not severance between constitutional and unconstitutional provisions, but judicial legislation. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 So. 533, 1902 Miss. LEXIS 212 (Miss. 1902).

3. – – Executive branch, encroachment of power.

Sheriff, rather than a circuit court, was to make hiring, firing, and compensation changes affecting bailiffs, as bailiffs were deputies of the sheriff. A circuit court order and order and opinion stating that bailiffs fell under the authority of the judiciary rather than the sheriff were void in part to the extent that they directly violated the Mississippi Constitution and statutory law. Lewis v. Hinds County Circuit Court, 158 So.3d 1117, 2015 Miss. LEXIS 102 (Miss. 2015).

There was no violation of the separation of powers requirement where one person served both as chairman of a solid waste management authority and as a county administrator; although involving many duties which could be characterized either as executive or ministerial, the offices were primarily ministerial because the positions existed to carry out the will of the board of supervisors, in whose hands the ultimate decision making power resided. Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 1999 Miss. App. LEXIS 173 (Miss. Ct. App. 1999).

The court rejected the argument that local governments operate subject to the separation of powers theory of government wherein the mayor is the executive power and board of aldermen are the legislative power and that, therefore, they cannot both exercise appointment powers because that would be a solely executive power vested entirely in the Mayor. Tisdale v. Clay, 728 So. 2d 1084, 1998 Miss. LEXIS 551 (Miss. 1998).

Section 37-13-91, the compulsory school attendance law, is unconstitutional insofar as it requires the selection and supervision of school attendance officers to be undertaken by youth court judges; the youth court judge’s selection and supervision of school attendance officers as provided for in the statute violates Article I, §§ 1 and 2 of the Mississippi Constitution-the separation of powers provisions-because the judge is charged with the executive function of administering an existing law, far removed from judiciary functions. In the Interest of R.G., 632 So. 2d 953, 1994 Miss. LEXIS 108 (Miss. 1994).

Duties and responsibilities, including allowing authority for Educational Television to contract (§37-63-11), giving concurrence for the use of funds to travel outside the continental United States (§25-3-41), advertising for and accepting bids on equipment for the State Crime Laboratory (§63-11-47), granting authority for the purchase of motor vehicles by state departments, institutions, or agencies (§25-1-77), and approving dispersement of funds by the Mississippi Air and Water Pollution Commission (§49-17-13), are administrative functions within the prerogative of the executive department, and statutes vesting those powers and functions in members of the legislature violate Miss Const Art 1 § 2 and are unconstitutional. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

Statute which allowed the Executive Branch to make appropriations decisions was constitutional, as it did not violate the doctrine of separation of powers, because budget reductions imposed on state agencies by the Governor of the State of Mississippi pursuant to the statute were an exercise of the Executive’s constitutional power to control the budget. Clark v. Bryant, 253 So.3d 297, 2018 Miss. LEXIS 385 (Miss. 2018).

4. – – Judicial branch, encroachment of power.

The time frame for viewing ballots after an election is a legislative function, and the Supreme Court of Mississippi has no authority to modify the statutory limitation. Simply put, a substantive right is created by statute to view the ballot-box contents for a limited time after an election is conducted, and this right does not restrict any party’s discovery rights under the Mississippi Rules of Civil Procedure. Smith v. Webster, 233 So.3d 242, 2017 Miss. LEXIS 207 (Miss. 2017).

To the extent Tuck v. Blackmon, 798 So. 2d 402 (Miss. 2001) held that the judiciary possesses some power to interfere in the Legislature’s internal procedure, it is overruled; at least to the extent that the political question doctrine turns on a textually demonstrable constitutional commitment of the issue to a coordinate branch political department it cannot be considered a matter of discretion given the Mississippi Constitution’s absolute separation of powers. Gunn v. Hughes, 210 So.3d 969, 2017 Miss. LEXIS 54 (Miss. 2017).

Petition of a member of the Legislature raised an issue the judiciary lacked authority to adjudicate because the constitutional authority, and duty, to decide whether the speaker of the house violated the constitutional provision requiring bills to be read upon a member’s request was squarely within the power of the legislative branch; by requesting the courts to force the speaker to read bills in a particular manner, the member sought to involve the judiciary in legislative procedural matters. Gunn v. Hughes, 210 So.3d 969, 2017 Miss. LEXIS 54 (Miss. 2017).

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Miss. Code Ann. §11-51-81’s “three-court rule” is unconstitutional because it usurps the Mississippi Supreme Court’s constitutional rule-making power and violates the doctrine of separation of powers. Thus, any litigant whose case originates in either justice court or municipal court, and whose case is ultimately decided by the circuit court, whether it be via a trial de novo or on appellate review from a final judgment of the county court conducted by the circuit court under the applicable statute, shall have the right to appeal to the Mississippi Supreme Court. Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Trial judge is not required, prior to accepting a guilty plea, to inform a defendant of the sex offender registration laws, Miss. Code Ann. §§45-33-25 through 31 because Miss. Code Ann. §45-33-39(1) confers no right on a criminal defendant charged with a sex crime and imposes no duty on trial judges, and judicial rules, such as the rules of evidence, civil procedure, criminal procedure, and professional conduct, neither come from the Legislature nor require legislative approval; the Mississippi legislative branch of government may not, through procedural legislation, control the function of the judiciary, and subservience to legislation that mandates what trial judges must say to a defendant in a courtroom during a plea hearing would be tantamount to both an abdication of judicial duty, as well as tacit approval of legislative usurpation of the judicial prerogative. Magyar v. State, 18 So.3d 807, 2009 Miss. LEXIS 388 (Miss. 2009), cert. denied, 560 U.S. 903, 130 S. Ct. 3274, 176 L. Ed. 2d 1182, 2010 U.S. LEXIS 3999 (U.S. 2010).

The provisions of Code 1942 § 6334-05 providing for trial de novo before a jury on an appeal in the Circuit court are unconstitutional and invalid as a violation of the provisions of constitution relating to separation of powers. Loftin v. George County Board of Education, 183 So. 2d 621, 1966 Miss. LEXIS 1426 (Miss. 1966).

This section and § 144 of the Constitution, providing that judicial power shall be vested in the courts, are not violated by Code 1942, § 4073, authorizing Land Commissioner, with written approval of Attorney General, to strike land from lists of lands sold to State for delinquent taxes, when tax sale was void, since § 4073 does not empower Attorney General to usurp function of courts or to act judicially, but requires him to perform a constitutional duty of his office by making his legal learning and discretionary opinion available to proper state officer in exercise of state function in a matter of public policy. State v. Southern Pine Co., 205 Miss. 80, 38 So. 2d 442, 1949 Miss. LEXIS 414 (Miss. 1949).

Legislative and not judicial power held exercised in reducing authority of revenue agent, though it work abatement of a suit. Miller v. Globe-Rutgers Fire Ins. Co., 143 Miss. 489, 108 So. 180, 1926 Miss. LEXIS 284 (Miss. 1926).

Statute providing for supervision and inspection of public offices and public institutions did not contravene this section as attempting to confer judicial and legislative powers upon executive officers. State ex rel. Knox v. Board of Sup'rs, 141 Miss. 701, 105 So. 541, 1925 Miss. LEXIS 189 (Miss. 1925).

5. Determination of criminal penalties.

Exercise of prosecutorial discretion in electing, or refusing, to indict criminal defendant under habitual criminal statute (§99-19-81) does not constitute encroachment by prosecutor on judicial power to determine appropriate criminal sentence. Washington v. State, 478 So. 2d 1028, 1985 Miss. LEXIS 2277 (Miss. 1985).

Under the Uniform Controlled Substances Law, the penalties prescribed for violations thereof are inextricably tied to the various schedules, and therefore the portions of Code 1972, §41-29-111 by which the state board of health is given the authority to move a substance from one schedule to another, to add substances to any schedule, and to delete substances from any schedule are an unconstitutional attempt to delegate the authority to define crimes and fix the punishments therefor which is vested exclusively in the legislature; such unconstitutional portions are separable from the remaining provisions of the Uniform Controlled Substances Law. Howell v. State, 300 So. 2d 774, 1974 Miss. LEXIS 1632, 1974 Miss. LEXIS 1633 (Miss. 1974).

6. Judicial review of administrative decisions.

Local board is in the best position to interpret its own local ordinances; thus, by giving great weight to the board’s interpretation, the supreme court ensures it sticks to its constitutional role as the judiciary, and the supreme court restrains its branch from becoming a super-municipal board, a role that would certainly usurp the powers of the local governing body. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

Mississippi’s law does not run afoul of the constitution; the board of supervisors is not overstepping its bounds into the judiciary’s role by interpreting local ordinances but is simply acting within its own established role as creator and enforcer of local law, and similarly, by giving deference to a local board’s interpretation, the supreme court is not ceding its judicial power. Hatfield v. Bd. of Supervisors of Madison Cty., 235 So.3d 18, 2017 Miss. LEXIS 315 (Miss. 2017).

This section does not preclude an appeal to the courts from an order of the Educational Finance Commission. Board of Education v. State Educational Finance Com., 243 Miss. 782, 138 So. 2d 912, 1962 Miss. LEXIS 408 (Miss. 1962).

7. Incompatible offices and vacation thereof.

Legislator could not simultaneously serve dual roles as a state representative and a city’s selectman because the service in both roles violated separation of powers; the role of state representative was legislative in nature, and the role of selectman was a mixed legislative and executive role. Myers v. City of McComb, 943 So. 2d 1, 2006 Miss. LEXIS 537 (Miss. 2006).

Although §21-23-5, which allows a mayor or mayor pro tempore of a small municipality to serve as municipal judge, is not unconstitutional under the sections of the state constitution dealing with separation of powers, there is an unavoidable conflict of interest in the holding of the dual offices of mayor and municipal judge, and thus the statute will have no future application as it is contrary to the proper functioning of the judiciary. In re Inquiry Concerning Mun. Judges, 631 So. 2d 758, 1994 Miss. LEXIS 34 (Miss. 1994).

An employee’s positions of veteran service clerk and inventory control clerk for the county, and his position as a member of the city council, were not held in violation of the separation of powers provision of the Mississippi Constitution, in that his positions with the county were ministerial and did not require that he exercise executive or judicial powers. Ball v. Fitzpatrick, 602 So. 2d 873, 1992 Miss. LEXIS 397 (Miss. 1992).

The participation of the Lieutenant Governor on the Joint Legislative Budget Committee was not a violation of the constitutional provision for separation of executive and legislative powers. The Lieutenant Governor is constitutionally an officer of both the executive and legislative departments and is eligible as President of the Senate to receive the legislative powers conferred upon him by the legislation creating the Joint Legislative Budget Committee. Neither the statute creating the Joint Legislative Budget Committee nor the Lieutenant Governor’s service on the committee constituted a violation of the constitutionally mandated separation of powers. Kirksey v. Dye, 564 So. 2d 1333, 1990 Miss. LEXIS 38 (Miss. 1990).

Adjutant general of Mississippi Air National Guard is not prohibited by Mississippi Constitution from appointing state senator to position of major general; however, senator may be prohibited from accepting appointment. Roberts v. Troutt, 475 So. 2d 421, 1985 Miss. LEXIS 2143 (Miss. 1985).

Under Miss Const Art I §§ 1 and 2, a justice court judge, a member of the judicial branch of government, could not serve in that office and at the same time hold a job as a law enforcement official, since law enforcement officials are members of the executive branch and a person may not lawfully be a part of both branches at the same time. In re Anderson, 451 So. 2d 232, 1984 Miss. LEXIS 1783 (Miss. 1984).

Duly elected Justice Court Judge, who in such capacity is a member of the judicial branch of government, may not simultaneously serve as a policeman, which said position designates a person as a member of the executive branch of government; pursuant to the constitution, no person may serve in two branches of government at the same time. In re Anderson, 447 So. 2d 1275, 1984 Miss. LEXIS 1631 (Miss. 1984).

Former §57-1-3(4), which regulates the Board of Economic Development, §25-11-15, which regulates the Board of Trustees of the Public Employees’ Retirement System, §25-53-7, which regulates the Central Data Processing Authority, §25-9-109, which regulates the State Personnel Board, §43-13-107, which regulates the Medicaid Commission, §29-5-1, which regulates the Capitol Commission, §49-5-61, which regulates the Wild Life Heritage Committee, and §47-5-12 [repealed], which regulates the Board of Corrections, are unconstitutional, insofar as they create executive boards and commissions with legislative members, in violation of Miss Const Art 1 § 2, and, accordingly, named legislators could not constitutionally perform any of the executive functions of those boards and commissions; moreover, §§27-103-1,29-5-1,57-1-3,43-13-107,25-53-7,25-9-109, and49-5-61, are unconstitutional insofar as they mandate legislative appointments to executive offices. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

Where members of the Commission of Budget and Accounting, whose activities include the budget-making process, the budget-control process, regulating purchases made by state agencies, administering state employees’ life and health insurance plans, and miscellaneous duties, held office in the legislative department of government, and were voting members of each, the Commission as constituted violated Miss Const Art 1 § 2, and §27-101-1(1), insofar as it was composed simultaneously of members of both the legislative and executive departments as voting members. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

Acceptance of office of school trustee does not vacate office of supervisor. Broadus v. State, 132 Miss. 828, 96 So. 745, 1923 Miss. LEXIS 81 (Miss. 1923).

Statute making the mayor of a town ex-officio justice of the peace does not violate this section. Poplarville Sawmill Co. v. A. Marx & Sons, 117 Miss. 10, 77 So. 815, 1917 Miss. LEXIS 163 (Miss. 1917).

A supervisor accepting an appointment as a member of the board of commissioners of the Yazoo Mississippi Delta board vacates the former office. Haley v. State, 108 Miss. 899, 67 So. 498, 1914 Miss. LEXIS 288 (Miss. 1914).

A justice of the peace accepting the office of mayor automatically vacates the former office. State ex rel. Attorney Gen. v. Armstrong, 91 Miss. 513, 44 So. 809, 1907 Miss. LEXIS 144 (Miss. 1907); Poplarville Sawmill Co. v. A. Marx & Sons, 117 Miss. 10, 77 So. 815, 1917 Miss. LEXIS 163 (Miss. 1917).

8. Ratification of de facto or improperly appointed officer’s acts.

Indictment in murder prosecution held not void because grand juror allegedly served both as election commissioner and grand juror in finding and presentment of indictment. Robinson v. State, 178 Miss. 568, 173 So. 451, 1937 Miss. LEXIS 228 (Miss. 1937).

The official acts of a de facto officer made valid by the statutes is not violative of the Constitution although he is incompetent to hold the office. B. Altman & Co. v. Wall, 111 Miss. 198, 71 So. 318, 1916 Miss. LEXIS 268 (Miss. 1916).

9. Regulation of public employment.

Administration of public purchasing, administration of state employee’s group insurance program, and authority to approve rules adopted by the State Auditor for establishing a merit system for his employees, are administrative functions within the prerogative of the executive department, and thus, named legislators could not constitutionally perform any of those functions because they properly belonged to the executive department; moreover, the statutes vesting those powers in members of the legislature are unconstitutional. Alexander v. State, 441 So. 2d 1329, 1983 Miss. LEXIS 3007 (Miss. 1983).

10. Reimbursement of officials.

Chapter 57, Laws of 1904, reimbursing an ex-tax collector for money erroneously paid into state treasury is not in violation of this section. Henry v. Carter, 88 Miss. 21, 40 So. 995, 1906 Miss. LEXIS 148 (Miss. 1906).

ATTORNEY GENERAL OPINIONS

Service by county supervisor or county port authority commissioner on board of private nonprofit organization does not present separation of powers issue and does not constitute a violation of Article 1 Section 2 of Mississippi Constitution. Mullins, Jan. 27, 1993, A.G. Op. #93-0026.

Serving as a member of a Port Commission in the executive branch of government and as an Alderman of a municipality in the legislative branch of government violates the separation of powers doctrine, and an individual that accepts the Office of Alderman would at once vacate the office of Port Commissioner. O’Neal, July 25, 1997, A.G. Op. #97-0392.

The Mississippi Constitution prohibits a person from serving simultaneously as a city council member within the legislative branch of government and as a commissioner of the Pine Belt Regional Solid Waste Management Authority within the executive branch of government. Bailey, July 18, 1997, A.G. Op. #97-0411.

An alderman may also serve a municipality as a volunteer librarian, unless the State Ethics Commission finds otherwise. Williamson, Aug. 1, 1997, A.G. Op. #97-0436.

No separation of powers problem is presented where a municipal clerk also serves as a part time librarian, since both positions are part of the executive branch of government. Estep, Aug. 29, 1997, A.G. Op. #97-0491.

A person cannot simultaneously serve as a municipal councilman in the legislative branch of government and as a park commissioner appointed by a board of supervisors in the executive branch of government. Magee, Aug. 8, 1997, A.G. Op. #97-0492.

Service in two branches of government simultaneously is contrary to the separation of powers doctrine when the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character; since an alderman exercises power at the core of the legislative branch, while a natural gas commissioner performs discretionary, policy making functions, that is, exercises core power in the executive branch, a person would be prohibited from serving simultaneously as an alderman and a commissioner. Gerhart, January 30, 1998, A.G. Op. #98-0040.

Holding the positions of Full Professor of Marine Science, Associate Director of Research and Sponsored Programs and Commissioner on the Commission on Marine Resources, presents no violation of the doctrine of separation of powers. Aston, April 17, 1998, A.G. Op. #98-0172.

A municipal judge may not hold an office or position in the executive branch which involves formulation of economic development policy, zoning or land use, or other policies of the city. Wise, July 24, 1998, A.G. Op. #98-0371.

A person may not simultaneously be a school attendance officer and a county supervisor since a school attendance officer is in the executive branch of government and a county supervisor is an officer of the judicial branch of government. Lanford, July 31, 1998, A.G. Op. #98-0384.

The separation of powers doctrine does not prohibit a person from serving as a city council member and as a bookkeeper in the office of the county tax collector. Fitzpatrick, Jan. 7, 2000, A.G. Op. #99-0719.

The separation of powers doctrine prohibits a person from serving simultaneously as a director of a juvenile detention center and a justice court judge. Perkins, Sr., Jan. 14, 2000, A.G. Op. #99-0724.

A position of Youth Court Investigator and Compliance Officer is not a de facto violation of the separation of powers clause. McGehee, Nov. 17, 2000, A.G. Op. #2000-0640.

A municipal alderman cannot serve as a municipal police officer while continuing to hold the office of alderman, even if the service in question is in two separate municipalities. White, Jan. 11, 2002, A.G. Op. #01-0779.

A county board of supervisors may not appoint a member of the board as Emergency Management Director. Walley, Mar. 15, 2002, A.G. Op. #02-0106.

Service in the national guard simultaneously with service as a municipal alderman would not violate the Mississippi Constitution. Purnell, June 7, 2002, A.G. Op. #02-0257.

A member of the state legislature may simultaneously serve as an elected municipal alderman, as both positions are squarely within the legislative branch of government. White, July 3, 2002, A.G. Op. #02-0134.

The powers and duties of the director of a resources development council do not involve the exercise of core powers of the executive branch, and therefore a legislator’s employment as executive director does not give rise to constitutional concern. Ruffin, Sept. 6, 2002, A.G. Op. #02-0516.

Serving both as a member of the Mississippi Legislature and as a director on the board of a human resource agency violates the constitutional prohibition against a person in one branch of government exercising any power belonging to any other branch of government. Cockrell, Oct. 25, 2002, A.G. Op. #02-0584.

Since community action agencies are “private, non-profit, non-government bodies”, the separation of powers doctrine would have no application. Cockrell, Oct. 25, 2002, A.G. Op. #02-0584.

City councilman also serving as the executive director of the county emergency communications commission would exercise substantial policy making powers at the core of two branches of government and would be prohibited under separation of powers from simultaneously serving in both capacities. Faneca, Nov. 15, 2002, A.G. Op. #02-0625.

A municipal alderman may serve as a member of the National Guard without running afoul of Miss. Const., Art. 1, §§ 1 and 2. Moore, Nov. 15, 2002, A.G. Op. #02-0663.

An individual may not serve as both a correctional officer (executive branch) and a county supervisor (judicial branch) without violating Miss. Const., Art. 1, §§ 1 and 2. Epps, Mar. 21, 2003, A.G. Op. #03-0098.

A municipal court judge is in the judicial branch of government and a youth court prosecutor is in the executive branch of government, thereby making the holding of both offices simultaneously a violation of the separation of powers doctrine. Littleton, Mar. 14, 2003, A.G. Op. #03-0122.

The separation of powers doctrine prohibits a person from serving simultaneously as a justice court judge and as a city clerk. Byrd, Mar. 28, 2003, A.G. Op. #03-0119.

A person may not serve as a member of a county board of supervisors while also serving as an elected school board member. Chaney, May 16, 2003, A.G. Op. 03-0232.

The separation of powers doctrine set forth in the Mississippi Constitution prohibits a person from serving simultaneously as a member of the Mississippi House of Representatives and as a member of the Mississippi Civil War Battlefield Commission. Lingle, Sept. 19, 2003, A.G. Op. 03-0456.

The separation of powers doctrine applies to local government. Griffin, May 21, 2004, A.G. Op. 04-0200.

A person holding both the positions of city councilman and trustee for a county owned hospital would violate the separation of powers clause of the Mississippi Constitution. Griffin, May 21, 2004, A.G. Op. 04-0200.

A deputy sheriff, upon being sworn in as a city councilman, must vacate his position as a deputy sheriff. Stokes, May 21, 2004, A.G. Op. 04-0206.

A deputy sheriff of a county is an officer in the executive branch of government, therefore, the separation of powers provision of the Mississippi Constitution would apply to this situation and prohibit the party in question from holding both offices. Stokes, May 21, 2004, A.G. Op. 04-0206.

The separation of powers doctrine would prohibit a member of the county board of supervisors from also serving as an investigator with the district attorney’s office. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed by UPS or Fed Ex. Abron, June, 21, 2004, A.G. Op. 04-0241.

The separation of powers doctrine would not prohibit a member of the county board of supervisors from also serving as a guidance counselor employed by the Department of Corrections in a state prison, or being employed by a private prison. Abron, June, 21, 2004, A.G. Op. 04-0241.

A member of the county board of supervisors would not violate the separation of powers doctrine by also being employed as a security guard by a local bingo hall. Abron, June, 21, 2004, A.G. Op. 04-0241.

The Mississippi Constitution prohibits an individual from holding both the office of alderman and deputy sheriff at the same time. Curtis, July 23, 2004, A.G. Op. 04-0341.

Argument that a city councilman is not subject to the separation of powers doctrine because under the city’s special charter that office exercises both legislative and executive powers lacks merit. McGee, Aug. 6, 2004, A.G. Op. 04-0333.

Upon being sworn in as a member of the House of Representatives, a person vacated his position as a school district trustee. Kemp, Aug. 6, 2004, A.G. Op. 04-0365.

Asking questions and seeking information on the operations of a municipal department by a city councilman for the purposes of reporting back to the full council is permitted. However, if the line is crossed between gathering information and actually making administrative decisions for the department, a violation of the separation of powers doctrine may exist. Rupp, Oct. 1, 2004, A.G. Op. 04-0449.

Any authority a board of aldermen may have with regard to employment, termination, and/or suspension without pay, must be exercised by the body as a whole. An individual alderman has no authority in this regard and no authority to direct the actions of individual employees. Cook, Oct. 15, 2004, A.G. Op. 04-0503.

If the Legislature has decided not to renew the authority of a state agency, then the Governor lacks the authority to re-create that agency using an executive order. McCoy, May 20, 2004, A.G. Op. 04-0227.

Service by one individual in the positions of police chief and alderman simultaneously would be a violation of Miss. Const. Art. 1, § 2. Miller, Jan. 21, 2005, A.G. Op. 05-0013.

Firefighter employed by one municipality may lawfully run for the position of alderman in another municipality and, if elected may simultaneously serve in those two positions. Davis, Mar. 11, 2005, A.G. Op. 05-0106.

An individual can serve as a city alderman and bailiff simultaneously without being in violation of this section. Stockton, Apr. 11, 2005, A.G. Op. 05-0197.

The separation of powers provision of the Mississippi Constitution would not prohibit someone from simultaneously being employed in a non-law enforcement administrative capacity for the sheriff’s office and on the city council for a municipality in the same county. Faneca, July 1, 2005, A.G. Op. 05-0328.

Simultaneous service as a justice court judge and a municipal employee would not automatically be a violation of the separation of powers clause. Only if each position exercises core powers of the branch of government in which it may be found will a violation occur. Glover, July 8, 2005, A.G. Op. 05-0342.

It would be a violation of the separation of powers doctrine for a county prosecuting attorney to simultaneously serve as a municipal court judge, and likewise for a town board attorney to simultaneously serve as a municipal court judge. Ready, Aug. 8, 2005, A.G. Op. 05-0363; but see Fondren, Dec. 16, 2005, A.G. Op. 05-0562.

Since the position of county fire coordinator and the office of alderman exercise core powers of two different departments of government, executive and legislative, Miss. Const., Art. 1, § 2, would prohibit an individual from occupying said position and office at the same time. Smith, Aug. 8, 2005, A.G. Op. 05-0380.

The separation of powers doctrine would not prohibit a legislator from being employed as a physician by a community hospital. Smith, Aug. 12, 2005, A.G. Op. 05-0424.

A city attorney may also serve as a member of the house of representatives in the state legislature. Croft, Aug. 26, 2005, A.G. Op. 05-0431.

Under the separation of powers doctrine there is no prohibition against an individual’s simultaneously serving as city alderman and a county “fire training officer.” Cobbins, Oct. 7, 2005, A.G. Op. 05-0486.

There would be no separation of powers violation for an individual to serve as municipal court judge and as the board attorney for the county utility district. To the extent this opinion conflicts with prior opinions on the issue of board attorneys/separation of powers conflicts, they are hereby withdrawn, including, but not limited to: Ready, August 8, 2005, A.G. Op. 05-0363 and Lowrey, Aug. 23, 1995, A.G. Op. 95-0505, Fondren, Dec. 16, 2005, A.G. Op. 05-0562.

Since a county board of supervisors exercises judiciary branch powers, and a regional solid waste management authority is in the executive branch, the separation of powers doctrine prohibits a supervisor in a non-situs county or district for the facility from serving on the waste management authority board. Akins, July 17, 2006, A.G. Op. 06-0335.

For purposes of application of the separation of powers doctrine, under a council-manager form of government, a council member is an officer in the legislature branch of government. Tynes, July 27, 2006, A.G. Op. 06-0277.

For purposes of application of the separation of powers doctrine, a local school board member is an officer exercising powers in the executive branch of government. Bounds, July 27, 2006, A.G. Op. 06-0276.

There is no constitutional prohibition against an individual serving simultaneously as a member of the county school board and as a member of the county zoning commission. Meadows, Sept. 1, 2006, A.G. Op. 06-0418.

The separation of powers doctrine would prohibit persons from simultaneously serving on the county board of supervisors and the initial board of directors for a public improvement district. Dulaney, Oct. 13, 2006, A.G. Op. 06-0497.

An individual serving as both a state representative and a member of a city preservation commission would violate the doctrine of separation of powers. Collins, Nov. 10, 2006, A.G. Op. 06-0565.

A justice court judge may also serve as city attorney without violating the separation of powers doctrine. Perkins, Nov. 10, 2006, A.G. Op. 06-0577.

Where transfer of title to a building by a company to a county is followed by temporary retention of possession by the donating company, and the eighteen-months possession of the building by the company is presumably far less than the building’s appraisal value, therefore, the possession of the building after transfer would not be an impermissible donation. Crow, Dec. 8, 2006, A.G. Op. 06-0583.

An individual is prohibited from simultaneously serving as director of parks and recreation for a city and as a member of the county board of supervisors. Wilcox, Dec. 8, 2006, A.G. Op. 06-0591.

There is no prohibition against an alderman being a candidate for county school superintendent. Shoemake, Dec. 22, 2006, A.G. Op. 06-0630.

The Separation of Powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, prohibits an individual from holding two offices in two different branches of government simultaneously. An individual may simultaneously serve as a member of a county school board and as county circuit clerk because both offices are within the executive branch of the government. Maples, February 16, 2007, A.G. Op. #07-00074, 2007 Miss. AG LEXIS 22.

Under the separation of powers doctrine, Miss. Const. of 1890, Art. 1, §§ 1-2, one may not simultaneously hold the offices of alderman and school board member because the office of alderman is in the legislative branch of government and the office of school board member is in the executive branch of government. Gibbs, March 9, 2007, A.G. Op. #07-107, 2007 Miss. AG LEXIS 73.

The separation of powers doctrine, Miss. Const. of 1890, Art. 1, § 2, does not prohibit a city firefighter from serving simultaneously as a county supervisor. Although the two positions are within separate branches of the county government, a firefighter does not exercise substantial policy-making power at the core of the executive branch so there is no conflict. Inquiries concerning potential ethics issues should be referred to the Ethics Commission. Bowen, March 2, 2007, A.G. Op. #07-00094, 2007 Miss. AG LEXIS 85.

RESEARCH REFERENCES

ALR.

Resignation of one office as affecting eligibility to another office during term of former office. 5 A.L.R. 117, 40 A.L.R. 945.

Effect of election to or acceptance of one office by incumbent of another where both cannot be held by same person. 100 A.L.R. 1162.

Other public offices or employments within prohibition as regards judicial officers of constitutional or statutory provisions against holding more than one office. 89 A.L.R. 1113.

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 63 et seq.

42 Am. Jur. (1st ed), Public Officers and Employees §§ 60 et seq.

CJS.

C.J.S. Constitutional Law §§ 54 to 59, 111 to 227, 441.

C.J.S. Officers and Public Employees §§ 37-42, 119, 120.

Law Reviews.

1983 Mississippi Supreme Court Review: State legislators serving on state executive boards. 54 Miss L. J. 46, March 1984.

1987 Mississippi Supreme Court Review, Civil procedure. 57 Miss. L. J. 443, August, 1987.

Morton, Rules, rulemaking, and the ruled: the Mississippi Supreme Court as self-proclaimed ruler. 12 Miss. C. L. Rev. 293, Fall, 1991.

Southwick, Separation of Powers at the State Level: Interpretations and Challenges in Mississippi, 72 Miss. L.J. 927, Spring, 2003.

Separation of Powers at the State Level, Part II: Service in a Civilian Public Office and in the National Guard, 74 Miss. L.J. 47, Fall, 2004.

Article 2. Boundaries of the State.

§ 3. Repealed.

Repealed by Laws, 1990, ch. 692, eff December 19, 1990.

[Preamble, const 1817]

Editor’s Note —

Former Section 3 stated the limits and boundaries of the state of Mississippi.

The repeal of Section 3 of Article 2 of the Mississippi Constitution of 1890 was proposed by Laws, 1990, Ch. 692 (Senate Concurrent Resolution No. 520), and upon ratification by the electorate on November 6, 1990, was deleted from the Constitution by proclamation of the Secretary of State on December 19, 1990.

§ 4. Acquisition of territory; disputed boundaries.

The Legislature shall have power to consent to the acquisition of additional territory by the state, and to make the same a part thereof; and the Legislature may settle disputed boundaries between this state and its coterminus states whenever such disputes arise.

JUDICIAL DECISIONS

1. In general.

Resolution of disagreement between United States, Mississippi and Alabama with respect to state borders, in connection with waters of Mississippi Sound. United States v. Louisiana, 507 U.S. 7, 113 S. Ct. 1238, 122 L. Ed. 2d 381, 1993 U.S. LEXIS 1763 (U.S. 1993).

Private plaintiffs having initiated action against private defendants in District Court to quiet title to property riparian to Mississippi River, Louisiana having filed a third-party complaint against Mississippi seeking to determine boundary between states, and District Court having denied leave to Louisiana to file bill and then finding land to be part of Mississippi uncompromising language of 28 USCS § 1251(a), which gives original and exclusive jurisdiction to Supreme Court over controversies between two or more States, deprived District Court of jurisdiction over Louisiana’s third-party complaint. While District Court’s adjudication of private action involving boundary did not violate section, adjudication of such action would not be binding on states in any way. However, because both District Court and Court of Appeals intermixed questions of title and location of boundary, matter would be remanded to determine whether, on record, claims of title may fairly be decided without additional proceedings in District Court. Mississippi v. Louisiana, 506 U.S. 73, 113 S. Ct. 549, 121 L. Ed. 2d 466, 1992 U.S. LEXIS 7977 (U.S. 1992).

Luna Bar came into existence by accretion to Carter Point and is, and was, part of Mississippi. Mississippi v. Arkansas, 415 U.S. 289, 94 S. Ct. 1046, 39 L. Ed. 2d 333, 1974 U.S. LEXIS 102 (U.S. 1974).

The Supreme Court will take judicial knowledge of the territorial boundaries of the state. Graham v. State, 196 Miss. 382, 17 So. 2d 210, 1944 Miss. LEXIS 204 (Miss. 1944).

For a decision with reference to boundary line between Louisiana and Mississippi see Louisiana v. Mississippi, 202 U.S. 1, 26 S. Ct. 408, 50 L. Ed. 913, 1906 U.S. LEXIS 1516 (U.S. 1906).

The jurisdiction of the state extends as far out into the sea as may be necessary for public safety. Martin v. O’Brien, 34 Miss. 21 (1857), construing former Art. 2, § 3.

RESEARCH REFERENCES

ALR.

Right of political division to challenge acts or proceedings by which its boundaries or limits are affected. 86 A.L.R. 1367.

CJS.

C.J.S. States §§ 12-36.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Article 3. Bill of Rights.

§ 5. Government originating in the people.

All political power is vested in, and derived from, the people; all government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.

HISTORY: 1817 art I § 2; 1832 art I § 2.

JUDICIAL DECISIONS

1. Elections.

2. Initiative and referendum.

3. Employment and labor relations.

4. Commerce and trade.

5. Access to courts.

1. Elections.

The appointment of members to the Board of Trustees of State Institutions of Higher Learning does not violate the principle of “one-man, one-vote”; the “one-man, one-vote” rule does not apply to appointed positions, and therefore is not applicable to appointed members of the Board of Trustees. Van Slyke v. Board of Trustees of State Inst. of Higher Learning, 613 So. 2d 872, 1993 Miss. LEXIS 55 (Miss. 1993).

The statute which provides for the issuance of county road bonds for construction or reconstruction of roads and bridges in cases of emergency without a submission of the question to a vote of the electors is not unconstitutional. Hutchins v. Board of Supervisors, 227 Miss. 766, 87 So. 2d 54, 1956 Miss. LEXIS 751 (Miss. 1956).

2. Initiative and referendum.

Mississippi Constitution Article III, §§ 5 and 6 do not compel a resurrection of the initiative and referendum petition procedure, which vested in the electorate the power to enact constitutional amendments and legislative measures and the power to reject acts passed by the legislature. State ex rel. Moore v. Molpus, 578 So. 2d 624, 1991 Miss. LEXIS 186 (Miss. 1991).

3. Employment and labor relations.

The statute making it unlawful for a certain class of employers to work their employees over ten hours per day is not violative of this section. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

4. Commerce and trade.

Code 1942, § 1108, known as “Fair Trade Act,” permitting producer, manufacturer or owner to contract with retailer as to resale price of his own product which is in fair and open competition with commodities of same general class produced by others, does not violate this section. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (Miss. 1950).

5. Access to courts.

Circuit court properly dismissed a prisoner’s 42 U.S.C.S. § 1983 action against a circuit court clerk alleging she violated his access to courts right; based on the prisoner’s own dilatory actions related to certain summonses, the isolated failure of the clerk to issue the summonses was not an actionable interference with the prisoner’s access to courts right. Duncan v. Johnson, 14 So.3d 760, 2009 Miss. App. LEXIS 130 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 374 (Miss. 2009).

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 1, 2, 33.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

§ 6. Regulation of government; right to alter.

The people of this state have the inherent, sole, and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they deem it necessary to their safety and happiness; Provided, Such change be not repugnant to the constitution of the United States.

HISTORY: 1817 art I § 2; 1832 art I § 2.

JUDICIAL DECISIONS

1. In general.

2. Relation back of constitutional amendment.

3. Initiative and referendum.

4. Cooperation between State and Federal governments.

5. Subjects of police power–In general.

6. ––– Businesses and occupations, subjects of police power.

7. ––– Corporations, subjects of police power.

8. ––– Drainage legislation, subjects of police power.

9. ––– Fishing, subjects of police power.

10. ––– Labor relations and employment, subjects of police power.

11. ––– Railroads, subjects of police power.

12. ––– Telegraphs and telephones, subjects of police power.

1. In general.

Regulation of business or profession to come within police power of state must have reasonable relation to promotion of public convenience, general prosperity, public health, public morals or public safety. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

The State exists to promote welfare of its citizens, that is, their peace, happiness, and prosperity. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

The State is sovereign over matters confided or reserved to it by the Tenth Amendment to the Federal Constitution. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

The legislature may adopt statutes for the general welfare and convenience of the public. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912); State v. Armstead, 103 Miss. 790, 60 So. 778, 1912 Miss. LEXIS 231 (Miss. 1912).

Under the police power of the state is embraced authority to promote public convenience. State v. Louisville & N.R.R., 97 Miss. 35, 51 So. 918 (1910).

The legislature can constitutionally confer on municipalities the power, by ordinance, to punish as an offense against the municipality an act which constitutes a crime against the state. Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 1899 Miss. LEXIS 98 (Miss. 1899).

2. Relation back of constitutional amendment.

Statutes enacted in anticipation of the adoption, or the taking effect, of constitutional amendments that prescribe the manner of effectuating such amendments, are valid in the absence of a constitutional provision prohibiting such legislation at the time of passage. Ratification of such an amendment relates back and validates the legislation. Burrell v. Mississippi State Tax Com., 536 So. 2d 848, 1988 Miss. LEXIS 367 (Miss. 1988), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

3. Initiative and referendum.

Mississippi Constitution Article III, §§ 5 and 6 do not compel a resurrection of the initiative and referendum petition procedure, which vested in the electorate the power to enact constitutional amendments and legislative measures and the power to reject acts passed by the legislature. State ex rel. Moore v. Molpus, 578 So. 2d 624, 1991 Miss. LEXIS 186 (Miss. 1991).

4. Cooperation between State and Federal governments.

The State Constitution declaring that the State has sole power over its affairs does not prevent cooperation between the State and Federal governments, where each acts within its appropriate sphere, and may at any time reassert its full control over the subject matter. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

5. Subjects of police power–In general.

The people may change the method of selecting any of its officers. State ex rel. Collins v. Jones, 106 Miss. 522, 64 So. 241, 1913 Miss. LEXIS 166 (Miss. 1913).

6. ––– Businesses and occupations, subjects of police power.

Code 1942, § 8912, prohibiting under penalty any person other than a certified public accountant or an attorney from receiving compensation for making or preparing any tax return is not a reasonable exercise of the police power, is not in promotion of the public welfare, and is without reasonable relation to the advancement of public convenience, health, morals, or safety, is arbitrarily discriminatory, and is an infringement of the right to pursue an occupation gainfully, and hence is in violation of the Constitution. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Code 1942, §§ 8905-8911, establishing a class of certified public accountants, providing for their regulation and prohibiting others from holding themselves out as such, is a valid exercise of the police power of the State. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Under the police power the right of every person to pursue a lawful business is subject to uniform regulation. City of Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412, 1913 Miss. LEXIS 123 (Miss. 1913).

Under the police power of the state the legislature has authority to enact laws regulating or suppressing pool and billiard halls. City of Corinth v. Crittenden, 94 Miss. 41, 47 So. 525, 1908 Miss. LEXIS 13 (Miss. 1908).

7. ––– Corporations, subjects of police power.

It [the State] may limit the rights of corporation to contract and regulate its methods of doing business. Yazoo & M. V. R. Co. v. Searles, 85 Miss. 520, 37 So. 939, 1904 Miss. LEXIS 162 (Miss. 1904).

The legislature may pass all necessary laws for the public convenience requiring public service corporations to maintain cattle guards where the line of road passes through inclosed plantations. Kansas C., M. & B. R. Co. v. Spencer, 72 Miss. 491, 17 So. 168, 1894 Miss. LEXIS 130 (Miss. 1894); Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1904).

8. ––– Drainage legislation, subjects of police power.

Under the police power of the state the legislature can enact drainage laws. Cox v. Wallace, 100 Miss. 525, 56 So. 461, 1911 Miss. LEXIS 47 (Miss. 1911).

9. ––– Fishing, subjects of police power.

By virtue of the police power, the state has the right to regulate the time, manner and extent of taking of fish in running streams and lakes with outlets into other waters. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

10. ––– Labor relations and employment, subjects of police power.

The Unemployment Compensation Law does not infringe any of the sovereign powers retained by the State and recited in the State Constitution. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95, 1938 Miss. LEXIS 20 (Miss. 1938).

11. ––– Railroads, subjects of police power.

Section 4058, Code of 1906 (see Code 1942, § 7781), making it the duty of railroad companies to maintain cattle guards where their tracks pass through inclosed land, is within the police power of the state, and, therefore, the Fourteenth Amendment of the Constitution of the United States is not involved. Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1904).

Section 4053, Code of 1906, providing that when a railroad is constructed so as to cross a highway, and a bridge is necessary for passage along the highway across the railroad, it shall be the duty of the railroad company to erect and maintain the bridge, is within the police power of the state. Illinois C. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502, 1902 Miss. LEXIS 196 (Miss. 1902).

12. ––– Telegraphs and telephones, subjects of police power.

A telegraph company, engaged in domestic as well as interstate business, is subject to such reasonable police regulations as the state may impose, it being immaterial that the company was chartered by another state and secured its right to erect its lines along the post roads in this state under an act of Congress. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

RESEARCH REFERENCES

ALR.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Public regulation or control of insurance agents or brokers. 10 A.L.R.2d 950.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 260 et seq.

CJS.

C.J.S. Constitutional Law § 6.

C.J.S. States §§ 75-77.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Southwick and Welsh, Methods of Constitutional Revision: Which Way Mississippi? 56 Miss L. J. 17, April, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

§ 7. Secession prohibited.

The right to withdraw from the Federal Union on account of any real or supposed grievance, shall never be assumed by this state, nor shall any law be passed in derogation of the paramount allegiance of the citizens of this state to the government of the United States.

HISTORY: 1869 art I § 20.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 9-11.

Law Reviews.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss. L. J. 73, April, 1986.

§ 8. Citizens of state.

All persons, resident in this State, citizens of the United States, are hereby declared citizens of the State of Mississippi.

HISTORY: 1869 art I § 1.

RESEARCH REFERENCES

CJS.

C.J.S. Citizens §§ 7, 12, 28, 29.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

§ 9. Subordination of military to civil power.

The military shall be in strict subordination to the civil power.

HISTORY: 1869 art I § 25.

JUDICIAL DECISIONS

1. Authority of governor.

2. Authority of military officer.

1. Authority of governor.

What Governor does in execution of laws, and acts of militia under his authority, must be as civil officers, and in strict subordination to the general law of the land. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Requirement that Governor shall see that laws are executed means that laws shall be carried into effect, and not arbitrary enforcement by executive of what he considers law. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Governor’s decision as to whether exigency justifies calling out militia, held subject to judicial review. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

2. Authority of military officer.

Member of militia who by rank has any executive authority may receive, and as lawful officer execute warrant, or have it done under his supervision, and make return upon it as sheriff or constable. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

RESEARCH REFERENCES

Am. Jur.

53A Am. Jur. 2d, Military, and Civil Defense §§ 241-244, 246.

CJS.

C.J.S. Armed Services §§ 11-20, 48, 49, 60, 341, 342.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

§ 10. Treason.

Treason against the state shall consist only in levying war against the same or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

HISTORY: 1817 art VI § 3; 1832 art VII § 3; 1869 art I § 26.

RESEARCH REFERENCES

ALR.

Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 73 A.L.R. 1494.

Validity, under First Amendment and 42 USCS § 1983, of public college or university’s refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus. 50 A.L.R. Fed. 516.

CJS.

C.J.S. Treason §§ 3, 5, 14, 15.

Lawyers’ Edition.

The Supreme Court and the First Amendment right to petition the Government for a redress of grievances. 30 L. Ed. 2d 914.

The Supreme Court and the First Amendment right of association. 33 L. Ed. 2d 865.

Law Reviews.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss. L. J. 73, April, 1986.

§ 11. Peaceful assemblage; right to petition government.

The right of the people peaceably to assemble and petition the government on any subject shall never be impaired.

HISTORY: 1817 art I, § 22; 1832 art I, § 22; 1869 art I, § 6.

JUDICIAL DECISIONS

1. Fees and permits.

2. Freedom of speech.

3. Immunity of government agents.

1. Fees and permits.

County ordinance requiring permits for parades, demonstrations, assemblies, and other private uses of public property and requiring permit fee of up to $1,000 per day, and empowering county administrator to adjust fee amount to meet expense incidental to administering ordinance and maintaining public order in connection with licensed activity, as implemented and construed by county, violated free speech guarantee as there were no narrowly drawn, reasonable, and definite standards guiding hand of county administrator to prevent him from encouraging some views and discouraging others through arbitrary imposition of fees, and fee would depend on administrator’s measure of amount of hostility likely to be created by speech, based on speech’s content. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101, 1992 U.S. LEXIS 3692 (U.S. 1992).

2. Freedom of speech.

City ordinance making it a misdemeanor to place on public or private property symbol, object, appellation, characterization, or graffiti which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on basis of race, color, creed, religion or gender was, even as narrowly construed by state Supreme Court, facially violative of First Amendment when applied to prosecute person who allegedly burned cross inside fenced yard of family; ordinance did not fall within any exception to prohibition against content discrimination, and although ordinance could be said to promote compelling state interest its content discrimination was not reasonably necessary to achieve such interest. R. A. V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305, 1992 U.S. LEXIS 3863 (U.S. 1992).

3. Immunity of government agents.

Federal Bureau of Investigation agents were absolutely immune from claims that they violated §§ 11 and 13 of Article 3 of of Mississippi Constitution where they acted within outer perimeter of their duties, and there were no implied damage remedies under such constitutional provisions. Kenyatta v. Moore, 623 F. Supp. 220, 1985 U.S. Dist. LEXIS 15522 (S.D. Miss. 1985).

RESEARCH REFERENCES

ALR.

Validity of statute or ordinance prohibiting or regulating holding of meeting in street. 10 A.L.R. 1483, 25 A.L.R. 114.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Validity of statute or ordinance against picketing. 35 A.L.R. 1200; 108 A.L.R. 1119; 122 A.L.R. 1043; 125 A.L.R. 963; 130 A.L.R. 1303.

Public speaking in street. 62 A.L.R. 404.

Use of streets or parks for religious purposes. 133 A.L.R. 1402.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Validity of Restrictions Imposed during National Political Conventions Impinging upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465.

Validity, under First Amendment and 42 USCS § 1983, of public college or university’s refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus. 50 A.L.R. Fed. 516.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 390-392.

CJS.

C.J.S. Constitutional Law §§ 462, 466, 612 to 629.

Lawyers’ Edition.

The Supreme Court and the First Amendment right to petition the Government for a redress of grievances. 30 L. Ed. 2d 914.

The Supreme Court and the First Amendment right of association. 33 L. Ed. 2d 865.

Law Reviews.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss. L. J. 73, April, 1986.

§ 12. Right to bear arms.

The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons.

HISTORY: 1817 art I § 23; 1832 art I § 23; 1869 art I § 15.

Cross References —

Governor’s power to call militia, see Miss. Const. Art. 9, § 217.

JUDICIAL DECISIONS

1. Carrying concealed weapons.

2. Possession of firearm by convicted felon.

1. Carrying concealed weapons.

Miss. Const. art. 3, § 12, Miss. Code Ann. §97-37-1(2), and Miss. Code Ann. §45-9-55 establish the express legislative action and the State law prohibitions, and an employee may be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting reasons independently declared legally impermissible; an employee is wrongfully discharged if terminated for an act specifically allowed by State law, the prohibition of which is specifically disallowed by statutory law. Swindol v. Aurora Flight Scis. Corp., 194 So.3d 847, 2016 Miss. LEXIS 131 (Miss. 2016).

A person, not a tramp, traveling 62 miles from his place of residence and beyond the circle of his friends in the pursuit of legitimate business, and having a substantial sum of money on his person, is not guilty of unlawfully carrying a concealed weapon. Patterson v. State, 251 Miss. 565, 170 So. 2d 635, 1965 Miss. LEXIS 883 (Miss. 1965).

This section does not authorize carrying concealed weapons on the person in one’s home. Wilson v. State, 81 Miss. 404, 33 So. 171, 1902 Miss. LEXIS 159 (Miss. 1902).

2. Possession of firearm by convicted felon.

Section 97-37-5 does not violate the rights of citizens to keep and bear arms, as provided in Article 3, Section 12 of the Constitution. James v. State, 731 So. 2d 1135, 1999 Miss. LEXIS 33 (Miss. 1999).

RESEARCH REFERENCES

ALR.

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms. 86 A.L.R.4th 931.

Validity of state statute proscribing possession or carrying of knife. 47 A.L.R.4th 651.

Validity of state statutes restricting right of aliens to bear arms. 28 A.L.R.4th 1096.

Validity of State Gun Control Legislation Under State Constitutional Provisions Securing Right to Bear Arms – Convicted Felons. 85 A.L.R.6th 641.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law § 329.

CJS.

C.J.S. Weapons §§ 3-8.

Law Reviews.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

§ 12A. Right to hunt, fish and harvest wildlife.

The people have the right to hunt, fish and harvest wildlife, including by the use of traditional methods, subject only to laws and regulations that promote wildlife conservation and management and that preserve the future of hunting and fishing, as the Legislature may prescribe by general law. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. This section may not be construed to modify any provision of law relating to trespass, property rights, the regulation of commercial activities or the maintenance of levees pursuant to Article 11.

HISTORY: Laws, 2012, Ch. 2024 (See Editor’s note).

Editor’s Note —

House Concurrent Resolution 30 (Chapter 2024), 2012 Regular Session, amended Article 3 of the Mississippi Constitution of 1890 by adding a new Section 12A. HCR 30 was approved by a majority of the electors of Mississippi at the November 4, 2014, election.

Article 15, § 273(10) of the Mississippi Constitution provides that initiatives approved by the electors take effect thirty (30) days from the date of the official declaration of the vote by the Secretary of State. The Secretary of State certified the November 4, 2014, election on December 2, 2014.

The last paragraph of HCR 30 provides as follows:

“BE IT FURTHER RESOLVED, That the Attorney General of the State of Mississippi shall submit this resolution, immediately upon adoption by the Legislature of the State of Mississippi, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.”

However, after the bill was approved, the United States Supreme Court, in the case of Shelby County v. Holder (June 25, 2013), struck down the coverage formula that determined what jurisdictions are subject to Section 5 of the Voting Rights Act, so the coverage formula can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5.

Because of the Shelby County decision, the United States Attorney General is not making any determinations under Section 5 on voting or election changes made by states. The Supreme Court did not strike down Section 5, so it is still in effect. For that reason, the Mississippi Attorney General’s Office submitted House Concurrent Resolution 30 (2012) to the United States Attorney General in order to technically meet the requirements of Section 5 and fulfill the Legislative direction in the final paragraph of the Resolution.

By letter dated March 6, 2014, the United States Attorney General responded that he is not making determinations on the merits of any bill that is submitted under Section 5. The submission of HCR 30 (2012) and the response from the United States Attorney General technically met the requirements of Section 5 and fulfilled the Legislative direction in the final paragraph of the Resolution.

§ 13. Freedom of speech and press; libel.

The freedom of speech and of the press shall be held sacred; and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.

HISTORY: 1817 art I §§ 6, 7 and 8; 1832 art I §§ 6, 7 and 8; 1869 art I § 4.

JUDICIAL DECISIONS

1. In general.

2. Access to judicial proceedings.

3. Attorneys.

4. Constitutionality.

5. Criticism of judicial acts.

6. Judicial comments.

7. Defamation–In general.

8. ––– Parody, defamation.

9. Disloyalty to the flag or government.

10. Education and students.

11. Employment and labor relations.

12. Immunity of government officers.

13. Licenses and permits.

14. Obscene literature.

15. Sexual devices.

1. In general.

Judge’s remarks violated Miss. Code Jud. Conduct Canons 1, 2(A) & (B), 3(B)(5), constituting willful misconduct in the judicial office which brought the judicial office into disrepute, thus causing the judge’s conduct to be actionable pursuant to Miss. Const. Art. 6, § 177A; the judge’s comments were disparaging results and not matters of legitimate public concern and went beyond the realm of protected campaign speech. Miss. Comm'n on Judicial Performance v. Osborne, 2009 Miss. LEXIS 9 (Miss. Feb. 5, 2009), op. withdrawn, sub. op., 11 So.3d 107, 2009 Miss. LEXIS 278 (Miss. 2009).

The mere fact that the discretion granted to the Secretary of State in the Public Trust Tidelands Act could be interpreted in different lights, does not automatically render it vague; the procedure established by the tidelands legislation has a reasonable relation to the governmental purpose of establishing the boundary of public trust lands and as such is not vague. Columbia Land Dev., LLC v. Sec'y of State, 868 So. 2d 1006, 2004 Miss. LEXIS 286 (Miss. 2004).

City ordinance making it a misdemeanor to place on public or private property symbol, object, appellation, characterization, or graffiti which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on basis of race, color, creed, religion or gender was, even as narrowly construed by state Supreme Court, facially violative of First Amendment when applied to prosecute person who allegedly burned cross inside fenced yard of family; ordinance did not fall within any exception to prohibition against content discrimination, and although ordinance could be said to promote compelling state interest its content discrimination was not reasonably necessary to achieve such interest. R. A. V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305, 1992 U.S. LEXIS 3863 (U.S. 1992).

The breach of the peace statute, Section 97-35-13, is not unconstitutionally vague. Although the statute may have been constructed with broad language and could arguably be construed in a manner which would reach constitutionally protected speech or conduct, a statute may not be construed “so as to infringe upon the state or federally protected constitutional rights” of any individual. Jones v. Meridian, 552 So. 2d 820, 1989 Miss. LEXIS 422 (Miss. 1989).

Statute (Code 1942 § 2402), which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophecies concerning the states of this and other nations, irrespective of whether the communication was with an evil or sinister purpose or advocated or incited subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment to the United States Constitution.Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943); Cummings v. State, 194 Miss. 59, 11 So. 2d 683, 1943 Miss. LEXIS 32 (Miss.), rev'd, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600, 1943 U.S. LEXIS 489 (U.S. 1943); Benoit v. State, 194 Miss. 74, 11 So. 2d 689, 1943 Miss. LEXIS 33 (Miss.), rev'd, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600, 1943 U.S. LEXIS 489 (U.S. 1943).

Freedom of speech includes the freedom to speak unwisdom or even heresy. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

2. Access to judicial proceedings.

An accused’s right to a fair trial and the press and public’s right of access to criminal proceedings must be balanced when determining whether access to legal proceedings should be restricted. The press and public are entitled to notice and a hearing before a closure order is entered, and any submission in a trial court for closure, either by a party or by the court’s own motion, and be it a letter, written motion, or oral motion, either in chambers or open court, must be docketed, as notice to the press and public, in the court clerk’s office for at least 24 hours before any hearing on such submission, with the usual notice to all parties. The requirement should not be taken to mean that a greater notice period may not be afforded where feasible. Preferably, the submission should be a written motion if time and circumstances allow. A hearing must be held in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure. The movant must be required to advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure. In considering the less restrictive alternatives to closure, the court must articulate the alternatives considered and why they were rejected. The court must then make written findings of fact and conclusions of law specific enough that a reviewing court can determine whether the closure order was properly entered. A transcript of the closure hearing should be made public and if a petition for extraordinary relief concerning a closure order is filed in the Supreme Court, it should be accompanied by the transcript, the court’s findings of fact and conclusions of law, and the evidence adduced at the hearing upon which the judge based the findings and conclusions. These requirements cannot be avoided by an agreement between the defendant and the State that proceedings and files should be closed. Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 1990 Miss. LEXIS 710 (Miss. 1990).

Civil and criminal sanctions imposed by Georgia upon publication of name of rape victim obtained from official court records open to public inspection violated constitutional protection of freedom of press. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328, 1975 U.S. LEXIS 139 (U.S. 1975).

Ordinarily a court has no right generally to deny to the press opportunity to learn, and the right to publish, the legitimate facts of trials during the public progress thereof. Brannon v. State, 202 Miss. 571, 29 So. 2d 916, 1947 Miss. LEXIS 319 (Miss. 1947).

3. Attorneys.

The appellate court would deny a writ of prohibition seeking to enjoin an attorney’s representation of a particular client, on the asserted basis that the representation would violate the Mississippi State Bar’s Canons of Ethics, since prior restraints on speech are not tolerated absent the clearest imminent danger, and the lawyer’s right and responsibility of zealous advocacy on behalf of his client is among the most precious forms of speech. Thornton v. Breland, 441 So. 2d 1348, 1983 Miss. LEXIS 3063 (Miss. 1983).

An attorney in arguing a case has no right under this section to read law books to the jury. Oakes v. State, 98 Miss. 80, 54 So. 79, 1910 Miss. LEXIS 103 (Miss. 1910).

4. Constitutionality.

Where, pursuant to its authority under Miss. Const. Art. VI, § 177A, the Mississippi Commission on Judicial Performance recommended that a judge be sanctioned for extra-judicial public statements of his views on the rights of gays and lesbians, the Supreme Court of Mississippi determined that gay rights was a political/public issue, and the judge’s statements were religious speech protected by U.S. Const. Amend. I and Miss. Const. Art. III, § 13. Miss. Comm'n on Judicial Performance v. Wilkerson, 876 So. 2d 1006, 2004 Miss. LEXIS 796 (Miss. 2004).

5. Criticism of judicial acts.

The right of free speech is not exceeded by publishing a criticism of completed judicial action. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

A newspaper editorial published after the court had adjourned, commenting on the circuit judge’s crusade against liquor selling and gambling, that the results thereof were exceedingly small, that any belief that crime was rampant in the community was unfounded, and expressing confidence in the local law enforcement officers, and the like, did not constitute constructive contempt. Tisdale v. State, 4 So. 2d 356 (Miss. 1941).

6. Judicial comments.

Order that the judge be suspended from office for a period of one year was appropriate because his commentary on Caucasian officials and their African-American appointees in his jurisdiction was not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity. The comments were not made within the content, form, or context of a matter of legitimate public concern. Miss. Comm'n on Judicial Performance v. Osborne, 11 So.3d 107, 2009 Miss. LEXIS 278 (Miss. 2009).

7. Defamation–In general.

Where author, after tape recording interviews with psychoanalyst, wrote magazine article which was later published as book and which contained lengthy passages in quotation marks attributed to psychoanalyst, some of which had no identical statement appearing in author’s taped interviews, author was not entitled to summary judgment in suit by psychoanalyst for libel, because deliberate alteration of words uttered by public figure does not equate with knowledge of falsity for purpose of New York Times standard, unless alteration results in material change in meaning conveyed by statement; and (2), with respect to some of the quotations, evidence presented question for jury whether author acted with knowledge of falsity or with reckless disregard as to truth or falsity. Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447, 1991 U.S. LEXIS 3630 (U.S. 1991).

Private figure seeking damages in defamation action against newspaper bears burden of proving that defamatory statements of public concern are false. Philadelphia Newspapers v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. 2d 783, 1986 U.S. LEXIS 97 (U.S. 1986).

Truth is a defense to defamation action. Fulton v. Mississippi Publishers Corp., 498 So. 2d 1215, 1986 Miss. LEXIS 2649 (Miss. 1986).

Three doctors who worked in the emergency room of a hospital whose administrator was the center of controversy within the hospital and county government generally for his institution of efficiency programs that rankled the medical staff, including the three doctors, became vortex public figures when they issued an ultimatum to the board of trustees of the hospital even if they had not theretofore been public figures; accordingly, the three doctors had no right of recovery for libel absent proof by clear and convincing evidence of actual malice on the part of a newspaper writer who criticized them sharply in an editorial. Ferguson v. Watkins, 448 So. 2d 271, 1984 Miss. LEXIS 1638 (Miss. 1984).

In action against newspaper for invasion of privacy, failure to allege that publication was made with knowledge of its falsity, with reckless disregard for truth, or maliciously was not adequate to support demurrer since plaintiffs were not public figures and since jurisdiction recognized common law right to privacy, and the allegations, though possibly subject to technical criticism, sufficiently charged a tort to warrant a trial on the merits. Deaton v. Delta Democrat Publishing Co., 326 So. 2d 471, 1976 Miss. LEXIS 1746 (Miss. 1976).

Proof of the substantial truth of a publication, made with good motives and for justifiable ends, is a complete defense to an action for libel. Smith v. Byrd, 225 Miss. 331, 83 So. 2d 172, 1955 Miss. LEXIS 588 (Miss. 1955).

8. ––– Parody, defamation.

First Amendment prohibits public figure from recovering damages for intentional infliction of emotional distress as result of parody, absent showing of false statement of fact which was made with actual malice; therefore, minister who was public figure and whose picture was used in advertisement parody labeled “ad parody- not to be taken seriously” could not recover damages for intentional infliction of emotional distress. Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41, 1988 U.S. LEXIS 941 (U.S. 1988).

9. Disloyalty to the flag or government.

A statute making it a criminal offense to indoctrinate any creed, theory, or any set of principles which reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

10. Education and students.

Public schools have authority to promulgate and enforce a reasonable dress code for faculty, staff and students, provided only that it does not infringe rights otherwise protected, and even then the schools may enforce such a code when undergirded by some compelling governmental interest reasonably related to their educational mission, so long as the least restrictive means reasonably available are employed. Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

11. Employment and labor relations.

Because plaintiff fireman’s letter to a newspaper addressed a matter of public concern, how candidates would treat city employees and their raises, and defendant city submitted no evidence the letter interfered with work relationships or the fireman’s job, the city had to show cause why summary judgment should not enter on the fireman’s Miss. Const. Art. 3, § 13 demotion/retaliation claim. Montgomery v. Mississippi, 498 F. Supp. 2d 892, 2007 U.S. Dist. LEXIS 49604 (S.D. Miss. 2007).

Employee speech is entitled to judicial protection only if it pertains to matters of public concern, and this protection does not extend to comments of personal interest. Even employee speech on matters of public interest must be balanced against the government’s interest in promoting efficiency, integrity and proper discipline in the discharge of public service. Thus, a police chief’s request that an officer maintain a “low profile” did not wrongfully suppress the officer’s constitutional right to free speech since the request was “well within the legitimate and necessary means inherent to the efficient operation of a police department which is deeply involved in combating narcotics activity in the community.” Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

A public school teacher’s wearing of a head-wrap as an expression of her religious and cultural heritage as a member of the African Hebrew Israelites in violation of the school’s dress code was constitutionally protected religious and cultural expression, such that the Mississippi Employment Security Commission had no authority to deny her claim for unemployment compensation benefits after she was discharged for insubordination when she refused to discontinue wearing the head-wrap, even though there is no specific tenet of the African Hebrew Israelites mandating that women wear headdress, the teacher was not a regular participant in the organized activities of a particular church, synagogue or other religious body, she might have been “selective in wearing the traditional head-wrap” in that at times she did not wear it, and even though her conduct may have been misconduct had it not been constitutionally protected expression. Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

Where the decision not to reemploy an elementary school teacher was made, not because of her activities in speaking out against the school board and participating in teacher’s organizations, but, rather, because of her disregard of school policy in taking leave without permission, such reasons supported the proposition that the protected activities under the First Amendment were not a “substantial factor” in the non-reemployment decision. Board of Trustees v. Gates, 461 So. 2d 730, 1984 Miss. LEXIS 2053 (Miss. 1984).

12. Immunity of government officers.

Federal Bureau of Investigation agents were absolutely immune from claims that they violated §§ 11 and 13 of Article 3 of of Mississippi Constitution where they acted within outer perimeter of their duties, and there were no implied damage remedies under such constitutional provisions. Kenyatta v. Moore, 623 F. Supp. 220, 1985 U.S. Dist. LEXIS 15522 (S.D. Miss. 1985).

13. Licenses and permits.

County ordinance requiring permits for parades, demonstrations, assemblies, and other private uses of public property and requiring permit fee of up to $1,000 per day, and empowering county administrator to adjust fee amount to meet expense incidental to administering ordinance and maintaining public order in connection with licensed activity, as implemented and construed by county, violated free speech guarantee as there were no narrowly drawn, reasonable, and definite standards guiding hand of county administrator to prevent him from encouraging some views and discouraging others through arbitrary imposition of fees, and fee would depend on administrator’s measure of amount of hostility likely to be created by speech, based on speech’s content. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101, 1992 U.S. LEXIS 3692 (U.S. 1992).

14. Obscene literature.

A statute prohibiting the sale of obscene literature does not violate this section. Williams v. State, 130 Miss. 827, 94 So. 882, 1922 Miss. LEXIS 245 (Miss. 1922).

15. Sexual devices.

Sale of sexual devices, or the right of access to such devices by users, is not encompassed by the constitutionally protected right of privacy; advertising of the devices, or their sale is not constitutionally protected speech. PHE, Inc. v. State, 877 So. 2d 1244, 2004 Miss. LEXIS 269 (Miss. 2004).

RESEARCH REFERENCES

ALR.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Validity of statute or ordinance against picketing. 35 A.L.R. 1200; 108 A.L.R. 1119; 122 A.L.R. 1043; 125 A.L.R. 963; 130 A.L.R. 1303.

Constitutionality of statutes forbidding or regulating dissemination of betting odds or other gambling information. 47 A.L.R. 1135.

Public speaking in street. 62 A.L.R. 404.

Constitutionality of corrupt practices acts. 69 A.L.R. 377.

Validity or legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 73 A.L.R. 1494.

Constitutionality and construction of statutes relating to charges and attacks on candidates for nomination or election to public office. 96 A.L.R. 582.

Validity and construction of statute or ordinance relating to distribution of advertising matter. 114 A.L.R. 1446.

Constitutional guaranties of freedom of speech and of the press as applied to statutes and ordinances providing for licensing or otherwise regulating distribution of printed matter or solicitation or subscriptions therefor. 127 A.L.R. 962.

Duty of secrecy on part of members of, or witnesses or other persons present before, grand jury. 127 A.L.R. 272.

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes. 128 A.L.R. 1361, 130 A.L.R. 1504.

Right of labor union to publicize that commodity is nonunion-made, or that competing commodity is union-made. 131 A.L.R. 1068.

Use of streets or parks for religious purposes. 133 A.L.R. 1402.

Freedom of speech and press as limitation on power to punish for contempt. 159 A.L.R. 1379.

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc. 3 A.L.R.2d 1431.

Public regulation and prohibition of sound amplifiers or loud-speaker broadcasts in streets and other public places. 10 A.L.R.2d 627.

Peaceful picketing of private residence. 42 A.L.R.3d 1353.

Propriety of exclusion of press or other media representatives from civil trial. 79 A.L.R.3d 401.

Validity, propriety, and effect of allowing or prohibiting media’s broadcasting, recording, or photographing court proceedings. 14 A.L.R.4th 121.

Defamation: nature and extent of privilege accorded public statements, relating to subject of legislative business or concern, made by member of state or local legislature or council outside of formal proceedings. 41 A.L.R.4th 1116.

Validity of criminal defamation statutes. 68 A.L.R.4th 1014.

Intrusion by news-gathering entity as invasion of right of privacy. 69 A.L.R.4th 1059.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Libel and slander: Charging one with breach or nonperformance of contract. 45 A.L.R.5th 739.

Propriety of prophylactic availability programs. 52 A.L.R.5th 477.

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity. 52 A.L.R.5th 195.

Defamation: Publication of letter to editor in newspaper as actionable. 54 A.L.R.5th 443.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute. 83 A.L.R.5th 467.

First amendment challenges to display of religious symbols on public property. 107 A.L.R.5th 1.

First Amendment protection afforded to comic books, comic strips, and cartoons. 118 A.L.R.5th 213.

Construction and Application of Federal and State Constitutional and Statutory Speech or Debate Provisions. 24 A.L.R.6th 255.

First Amendment Protection Afforded to Web Site Operators. 30 A.L.R. 6th 299.

Validity of Restrictions Imposed during National Political Conventions Impinging upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Characteristics of Forum. 70 A.L.R.6th 513.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Manner of Restriction. 71 A.L.R.6th 471.

Constitutional Challenges to Compelled Speech – General Principles. 72 A.L.R.6th 513.

Constitutional Challenges to Compelled Speech – Particular Situations or Circumstances. 73 A.L.R.6th 281.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

Prohibition of federal agency’s keeping of records on methods of individual exercise of First Amendment rights, under Privacy Act of 1974 (5 USCS § 552a(e)(7)). 63 A.L.R. Fed. 674.

Propriety, under First Amendment, of school board’s censorship of public school libraries or coursebooks. 64 A.L.R. Fed. 771.

What oral statement of student is sufficiently disruptive so as to fall beyond protection of First Amendment. 76 A.L.R. Fed. 599.

First Amendment guaranty of freedom of speech or press as defense to liability stemming from speech allegedly causing bodily injury. 94 A.L.R. Fed. 26.

First Amendment protection for publicly employed firefighters subjected to discharge, transfer, or discipline because of speech. 106 A.L.R. Fed. 396.

Validity and construction of public school regulation of student distribution of religious documents at school. 136 A.L.R. Fed. 551.

Protection of Commercial Speech Under First Amendment – Supreme Court Cases. 164 A.L.R. Fed. 1.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 379-389.

50 Am. Jur. 2d, Libel and Slander §§ 489 et seq.

22 Am. Jur. Proof of Facts 3d 203, Termination or Demotion of a Public Employee in Retaliation for Speaking Out as a Violation of Free Speech.

CJS.

C.J.S. Constitutional Law §§ 539, 542.

C.J.S. Libel and Slander; Injurious Falsehood §§ 108, 109.

Lawyers’ Edition.

Constitutionality of regulation of obscene motion pictures. 22 L. Ed. 2d 949.

Public employee’s right of free speech under Federal Constitution’s First Amendment – Supreme Court cases. 97 L. Ed. 2d 903.

Governmental regulation of nonlabor picketing as violating freedom of speech or press under Federal Constitution’s First Amendment – Supreme Court cases. 101 L. Ed. 2d 1052.

Tax legislation as violating Federal Constitution’s First Amendment-Supreme Court cases. 103 L. Ed. 2d 951.

Supreme Court’s views as to constitutionality of laws prohibiting, or of criminal convictions for, desecration, defiance, disrespect, or misuse of American flag. 105 L. Ed. 2d 809.

Supreme Court’s views regarding Federal Constitution’s First Amendment guarantees of freedom of speech or press as applied to electoral process. 119 L. Ed. 2d 607.

Law Reviews.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Comment, Ferguson v. Watkins: The Vortex Within Mississippi Defamation Law. 55 Miss L. J. 619, September 1985.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

§ 14. Due process.

No person shall be deprived of life, liberty, or property except by due process of law.

HISTORY: 1817 art I § 10; 1832 art I § 10; 1869 art I § 2.

JUDICIAL DECISIONS

1. In general.

2. Notice and hearing.

3. Taxation–In general.

4. – – Tax sales, taxation.

5. – – License and use taxes, taxation.

6. – – Sales and use taxes, taxation.

7. Employment and labor relations.

8. Judicial proceedings–In general.

9. – – Gifts, judicial proceedings.

10. – – Discovery, judicial proceedings.

11. – – Divorce, alimony, maintenance, and support, judicial proceedings.

12. – – Child custody, judicial proceedings.

13. – – Contempt, judicial proceedings.

14. – – Real property, judicial proceedings.

15. – – Adoption, judicial proceedings.

16. – – Education, judicial proceedings.

17. – – Juvenile detention, judicial proceedings.

18. Crimes and criminal procedure – In general.

19. – – Admissibility of evidence, crimes and criminal procedure.

20. – – Affidavits or indictments, crimes and criminal procedure.

21. – – Assistance of counsel, crimes and criminal procedure.

22. – – Change of venue, crimes and criminal procedure.

23. – – Competency of defendant, crimes and criminal procedure.

24. – – Confessions, crimes and criminal procedure.

25. – – Contempt, crimes and criminal procedure.

26. – – Cross examination, crimes and criminal procedure.

27. – – Disclosure of evidence, crimes and criminal procedure.

28. – – Disqualification of judge, crimes and criminal procedure.

29. – – Jury trial, crimes and criminal procedure.

30. – – Examination and qualification of jurors, crimes and criminal procedure.

31. – – Fair trial, crimes and criminal procedure.

32. – – Freedom of speech or press, crimes and criminal procedure.

33. – – Guilty pleas, crimes and criminal procedure.

34. – – Identification of defendant, crimes and criminal procedure.

35. – – Insanity defense, crimes and criminal procedure.

36. – – Instructions, crimes and criminal procedure.

37. – – Loss or destruction of evidence, crimes and criminal procedure.

38. – – Post-conviction relief, crimes and criminal procedure.

39. – – Production of evidence and witnesses, crimes and criminal procedure.

40. – – Sentence and punishment, crimes and criminal procedure.

41. – – Time for review, crimes and criminal procedure.

42. – – Vague or indefinite statutes, crimes and criminal procedure.

43. Prisons and prisoners–In general.

44. – – Administrative segregation, prisons and prisoners.

45. – – Earned time, prisons and prisoners.

46. – – Parole, prisons and prisoners.

47. – – Probation, prisons and prisoners.

48. – – Transfer, prisons and prisoners.

49. – – Visitation rights, prisons and prisoners.

50. Penalties and forfeitures–In general.

51. – – Attorney fees, penalties and forfeitures.

52. – – Prisons and prisoners, penalties and forfeitures.

53. – – Liquor offenses, penalties and forfeitures.

54. Racial discrimination.

55. Public improvements and highways.

56. Use of property–In general.

57. – – Zoning laws, use of property.

58. Eminent domain.

59. Negligence and contributory negligence.

60. Animal legislation.

61. Political parties and elections.

62. Regulation of business and professions – In general.

63. – – Accountants and tax preparers, regulation of business and professions.

64. – – Attorneys, regulation of business and professions.

65. – – Banks and banking, regulation of business and professions.

66. – – Education, regulation of business and professions.

67. – – Insurance, regulation of business and professions.

68. – – Physicians, regulation of business and professions.

69. – – Utilities, regulation of business and professions.

70. – – Price control, regulation of business and professions.

71. – – Taxis, regulation of business and professions.

72. – – Railroads, regulation of business and professions.

73. – – Sunday closing laws, regulation of business and professions.

74. Unemployment compensation.

75. Workers compensation.

76. Retirement benefits.

77. Sovereign immunity.

78. Damages.

79. Education, schools and students.

80. Landlord-tenant disputes.

81. Municipal ordinances.

82. Miscellaneous.

83. Right to confrontation.

1. In general.

No due-process violation occurred when the Mississippi Division of Medicaid (DOM) was allowed to recoup the respiratory-therapist salaries that a long-term skilled nursing facility was erroneously paid because the facility was afforded all the due-process protections provided by the DOM’s administrative process and availed itself of the appeals afforded by both the chancery court and the appellate court. CLC of Biloxi, LLC v. Miss. Div. of Medicaid, 238 So.3d 16, 2018 Miss. App. LEXIS 73 (Miss. Ct. App. 2018).

Supposed “notice” to a special assistant attorney general is not sufficient under Miss. R. Civ. P. 24(d) or Miss. R. App. P. 44; therefore, a hospital was procedurally barred from bringing constitutional challenges to Miss. Code Ann. §41-7-191(16) under Miss. Const. Art. 4, § 87, Miss. Const. Art. 3, § 14, and the Fourteenth Amendment where there was no notice to the Mississippi Attorney General. Oktibbeha County Hosp. v. Miss. State Dep't of Health, 956 So. 2d 207, 2007 Miss. LEXIS 277 (Miss. 2007).

In a negligence action by property owners in Mississippi regarding flooding, Mississippi had a strong interest in adjudicating the dispute because Mississippi residents were injured, Mississippi property was destroyed, and the City of Mobile, Alabama, and the Board of Water & Sewer Commissioners of the City of Mobile continued to release water from the subject reservoir. Also, the interest of the hundreds of other Mississippi property owners in obtaining convenient and effective relief was furthered by keeping the suit in Mississippi because their property was located in the county where the suit was filed; maintenance of the suit did not offend “traditional notions of fair play and substantial justice,” and application of the “long-arm” statute in the case did not violate the United States Constitution. Horne v. Mobile Area Water & Sewer Sys., 897 So. 2d 972, 2004 Miss. LEXIS 846 (Miss. 2004), cert. denied, 544 U.S. 922, 125 S. Ct. 1652, 161 L. Ed. 2d 479, 2005 U.S. LEXIS 2480 (U.S. 2005), cert. denied, 544 U.S. 922, 125 S. Ct. 1662, 161 L. Ed. 2d 480, 2005 U.S. LEXIS 2484 (U.S. 2005).

The Mississippi statute forbidding nuisances, §§95-3-1 et seq., is not unconstitutionally vague; adequate notice was clearly provided by the terms of the statute, which were clearly understandable words that left no room for misinterpretation. Collins v. City of Hazlehurst, 151 F. Supp. 2d 749, 2001 U.S. Dist. LEXIS 10765 (S.D. Miss. 2001).

When legislature extinguishes “right” via legislation that affects general class of people, legislative process provides all process that is due. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

State Constitution’s guarantee of due process of law includes fair and impartial trial. Brown by & Through Webb v. Blackwood, 697 So. 2d 763, 1997 Miss. LEXIS 168 (Miss. 1997).

The trial court erred in enjoining the National Collegiate Athletic Association from interfering with the right of a Mississippi State University football player to engage in intercollegiate athletics, on the asserted basis of the Association’s violation of procedural due process in suspending the player, since the privilege of engaging in interscholastic athletics is not a “property” right. National Collegiate Athletic Asso. v. Gillard, 352 So. 2d 1072, 1977 Miss. LEXIS 1985 (Miss. 1977).

Due process when applied to substantive rights is now interpreted to mean that the government is without the right to deprive a person of life, liberty, or property by an act that has no reasonable relation to any proper governmental purpose, or which is so far beyond the necessity of the case as to be in arbitrary exercise of governmental power. Craig v. North Mississippi Community Hospital, 206 Miss. 11, 39 So. 2d 523, 1949 Miss. LEXIS 239 (Miss. 1949).

Where the end is legitimate the means is for the legislature to choose, the only limitation thereon under due process being that the means chosen must not be so far beyond the necessity of the case as to be an arbitrary exercise of governmental power. Craig v. North Mississippi Community Hospital, 206 Miss. 11, 39 So. 2d 523, 1949 Miss. LEXIS 239 (Miss. 1949).

“Liberty” within constitutional provisions against depriving any person thereof except by due process of law includes “liberty of contract,” which, in turn, means freedom from arbitrary or unreasonable restraint. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

By what procedure private property may be taken for public use rests with the legislature subject to the requirements of due process of law and that section of the state constitution which provides that private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof. McAllister v. Graham, 6 So. 2d 300 (Miss. 1942).

In order for a statute to survive when confronted with due process of law, it must not appear to be arbitrary or capricious, but must have a reasonable relation to a legitimate end. Saucier v. Life & Casualty Ins. Co., 189 Miss. 693, 198 So. 625, 1940 Miss. LEXIS 155 (Miss. 1940).

The phrase “due process of law” has been expanded beyond its literal meaning of due procedure and is now interpreted to mean that the government is without right to deprive a person of life, liberty, or property by an act that has no reasonable relation to any proper governmental purpose, or which is so far beyond the necessity of the case as to be an arbitrary exercise of governmental power. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Due-process clause does not prevent State from adapting life to the continuous change in social and economic conditions. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Each case involving due process must be decided on the social and economic conditions that exist when the statute was enacted or at time case is decided. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

If statute has reasonable relation to governmental purpose and is calculated to carry out some governmental design, courts cannot strike it down as being “arbitrary.” Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

The word “liberty” defined. Wilby v. State, 93 Miss. 767, 47 So. 465, 1908 Miss. LEXIS 144 (Miss. 1908).

The legislature, under this section, is without power to deprive a plaintiff of a sum of money admitted to be due him. East v. King, 77 Miss. 738, 27 So. 608, 1900 Miss. LEXIS 11 (Miss. 1900).

2. Notice and hearing.

Fines were void because the chancery court violated individuals’ due process rights by failing to provide individuals with notice of the alleged Mississippi Public Records Act of 1983 violations and charges to be adjudicated against them; none of the individuals were named in either lawsuit in their individual capacity or given notice that they could potentially be fined. Miss. Dep't of Audit v. Gulf Publ. Co., 235 So.3d 1452, 2016 Miss. App. LEXIS 170 (Miss. Ct. App. 2016), rev'd, in part, vacated, 236 So.3d 32, 2017 Miss. LEXIS 437 (Miss. 2017).

Procedure the Mississippi Oil and Gas Board utilized in amending a rule did not violate contestants’ constitutional rights because the contestants were given full and fair notice of the petition to amend the rule and were allowed to lodge their objections to said rule; the contestants were represented vigorously by competent counsel, allowed to call witnesses, and put exhibits into evidence during a public hearing on the matter. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).

Insurance company’s due process rights were violated by the county court’s entry of sanctions against it in an action to which it was not a party and had not received formal notice. State Farm Mut. Auto. Ins. Co. v. Jones, 37 So.3d 87, 2009 Miss. App. LEXIS 829 (Miss. Ct. App. 2009), cert. denied, 36 So.3d 455, 2010 Miss. LEXIS 292 (Miss. 2010).

Rather than a denial of due process, the appellate court found that the student failed to take advantage of the process; the student was provided notice of and the opportunity to be heard at all of the hearings, including the one held on the summary judgment motion, and the student, for whatever reason, simply failed to attend the hearings. Harvey v. Stone County Sch. Dist., 982 So. 2d 463, 2008 Miss. App. LEXIS 20 (Miss. Ct. App. 2008).

Order finding a father in contempt for his nonpayment of child support was upheld where he had received a valid summons for the initial hearing; because the father appeared at the hearing at which he was found in contempt, any defects in the issuance of the notice by the court administrator were waived, and the father was not deprived of notice or the ability to prepare. Bailey v. Fischer, 946 So. 2d 404, 2006 Miss. App. LEXIS 425 (Miss. Ct. App. 2006).

Indictment explicitly stated that defendant was being charged with motor vehicle theft under Miss. Code Ann. §97-17-42; there was no evidence presented that defendant was surprised or that he did not know, to his prejudice, that he was being prosecuted under §97-17-42 for motor vehicle theft; therefore, there being no prejudice or surprise, the trial judge did not abuse his discretion in permitting an on-the-record amendment of the indictment. Mixon v. State, 921 So. 2d 275, 2005 Miss. LEXIS 798 (Miss. 2005).

Claimant, a teacher, was not denied procedural due process in her claim for disability benefits. Neither the referral by a doctor to a clinic where he was a director, nor the unavailability of the author of a medical report for cross-examination at the hearing constituted a violation of due process. Pub. Emples. Ret. Sys. v. Stamps, 898 So. 2d 664, 2005 Miss. LEXIS 255 (Miss. 2005).

Father was subject to the chancery court’s continuing jurisdiction and received notice of the trial date; the document which gave the father notice of the hearing was a Miss. R. Civ. P. 81 summons and it listed the time and date for the father to appear, which he did, and he was present when the case was transferred to the other chancellor, such that the father had every opportunity to check with the chancery clerk’s office and the mother’s attorney regarding the case’s status. Vincent v. Griffin, 852 So. 2d 620, 2003 Miss. App. LEXIS 924 (Miss. Ct. App. 2003), rev'd, 872 So. 2d 676, 2004 Miss. LEXIS 501 (Miss. 2004).

State employee who was under investigation for improper sexual conduct continued to receive full pay and benefits for the duration of the employee’s leave, and the state agency was not required to afford the employee the opportunity for a hearing within 20 days, thus, the employee was not denied due process. Further, the employee had the opportunity to make arguments, put on witnesses, and cross-examine witnesses at the Mississippi Employee Appeals Board hearing. Davis v. Miss. State Dep't of Health, 856 So. 2d 485, 2003 Miss. App. LEXIS 286 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 674 (Miss. 2003).

Former employer that had consistently and arrogantly denied a former employee’s right to an accounting of earnings allegedly in the employer’s possession was not denied due process or its rights to a remedy when the chancery court ordered an equitable accounting without holding a hearing. Univ. Nursing Assocs., PLLC v. Phillips, 842 So. 2d 1270, 2003 Miss. LEXIS 59 (Miss. 2003).

The procedures surrounding a school principal’s termination were not “tainted,” and no violation of his due process rights occurred, even though it could have been inferred from a witness’ reluctance to make a statement and from her affidavit that she felt compelled to testify or lose her job, since such “evidence” of coercion was insufficient to overcome the “presumption of honesty and integrity” in the school board members who served as adjudicators and conducted the dismissal hearing. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

The due process clause of the Mississippi Constitution required that a plaintiff’s appeal, which had been dismissed for failure to file a timely notice of appeal, be reinstated, since (1) 3 jury verdict forms which did not contain the word “judgment” did not constitute final judgments and therefore were not appealable, (2) the plaintiff was never notified of the existence of those forms, they were not in the court file, were not entered on the docket, and were presented to the judge ex parte, and (3) the plaintiff filed her notice of appeal within 30 days of the disposition of the post-trial motions and timely perfected her appeal to the Supreme Court. Roberts v. Grafe Auto Co., 653 So. 2d 250, 1994 Miss. LEXIS 360 (Miss. 1994).

The procedures followed at an administrative hearing before 3 members of the school board on a teacher’s 6-month suspension violated the teacher’s right to due process where, during a break in the formal proceedings, the 3 school board members told the teacher that they intended to reject suspension in favor of a formal reprimand, the teacher claimed to have relied on this information and rested her case prematurely, and the board ultimately reached a decision to suspend the teacher; although the teacher was afforded an opportunity to be heard, the school board, by its own actions, prevented her from taking full advantage of her right to present evidence in her favor by leading her to believe that there was no need to present additional evidence. Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

Where a suspended teacher’s procedural due process rights had been violated at her hearing before the school board, the chancery court erred in ordering the teacher’s reinstatement rather than a rehearing as required by §37-9-113(4). Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

The statutory law providing for pre-hearing suspension of a driver’s license when the driver refuses to submit to a breathalyzer test is not violative of minimum due process requirements. Lavinghouse v. Mississippi Highway Safety Patrol, 620 So. 2d 971, 1993 Miss. LEXIS 255 (Miss. 1993).

A county board of supervisors could not bar a chancery clerk, who had temporarily vacated his positions as clerk of the board of supervisors and county auditor, from performing his duties in those positions based upon a claim that the chancery clerk had failed to perform his duties, without affording him a hearing so as to comply with due process requirements. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

The highway patrol had no authority to deliver a stolen pickup truck, which had an altered vehicle identification number and had been seized from an innocent purchaser pursuant to a valid search warrant, to an insurance company, which had paid the owner the full value of the truck under a theft loss insurance policy and was therefore the lawful owner of the vehicle, absent court approval with no advance notice to the innocent purchaser of its intent to do so and without giving him an opportunity contest the matter in a court of competent jurisdiction; the appropriate procedure would have been for the highway patrol, once the truck served no further purpose in the criminal investigation or prosecution, to make a motion in the justice court for authority to release it to the insurance company, and to give the innocent purchaser and the insurance company reasonable notice of such application and an opportunity to be heard; however, the circuit court erred in directing return of the pickup truck to the innocent purchaser without making the insurance company a party to the hearing or giving it any notice of the proceeding, as this was a blatant violation of the insurance company’s right to due process. Weaver v. State, 597 So. 2d 609, 1992 Miss. LEXIS 177 (Miss. 1992).

Notice of an employer’s appeal of a referee’s decision was sufficient to satisfy the claimant’s minimum due process rights, where the Board of Review mailed a notice to the claimant but did not notify the claimant’s attorney of the appeal. Notifying the claimant only and not the attorney satisfies minimum due process requirements so long as such notice is “reasonably calculated” to apprise the claimant of necessary information. Booth v. Mississippi Employment Sec. Com., 588 So. 2d 422, 1991 Miss. LEXIS 653 (Miss. 1991).

An award of attorney’s fees in a contempt proceeding against the husband in a divorce action was improper where the only evidence presented regarding attorney’s fees was an affidavit, with attached attorney time sheets, setting out the hours worked, the hourly rates, and costs, for a total fee of $4,450, and the husband 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. Griffin v. Griffin, 579 So. 2d 1266, 1991 Miss. LEXIS 322 (Miss. 1991).

The administrator of an estate is required to provide actual notice to known or reasonably ascertainable legitimate children who are potential heirs and whose claims would be barred by the running of the 90-day period from the notice of publication to creditors under the nonclaim statute, §91-1-15(3)(c). To hold otherwise would encourage administrators and executors to benefit as heirs at law by setting in motion the shortest filing period which, unbeknownst to the potential heir, has significantly shortened the time for the potential heir to meet with the statutory requirements to inherit as an heir. Smith v. Estate of King, 579 So. 2d 1250, 1991 Miss. LEXIS 250 (Miss. 1991).

A chancellor’s refusal to grant a motion to set aside judgment pursuant to MRCP 60(b)(6) was an abuse of discretion where the record was devoid of any notice to the defendant as to the date of the trial; notice, whether of the time and place of a hearing, the contents of a complaint, or of the specific nature of a criminal charge, is the essence of due process. Johnson v. Weston Lumber & Bldg. Supply Co., 566 So. 2d 466, 1990 Miss. LEXIS 441 (Miss. 1990), but see Koerner v. Crittenden, 635 So. 2d 833, 1994 Miss. LEXIS 184 (Miss. 1994).

A circuit judge erred in deciding not to subject a creditor to liability for injurious violation of a debtor’s constitutional right to due process when the creditor seized the debtor’s mobile home and furnishings in compliance with §11-37-101 simply because the creditor acted pursuant to a presumptively valid (albeit unconstitutional) statute. An evidentiary hearing should have been held, and the creditor’s claim of good faith reliance on a presumptively valid statute should have been considered in light of not only the sincerity in its belief that it was acting properly, but the reasonableness of its actions under the circumstances. A fact finder conceivably could have concluded that the creditor’s “surprise” seizure of the debtor’s mobile home and its contents was, under the circumstances, unreasonable and compensable, where the record indicated no explanation for the necessity of an immediate seizure. Underwood v. Foremost Financial Services Corp., 563 So. 2d 1387, 1990 Miss. LEXIS 286 (Miss. 1990).

In an action against a husband for contempt for failing to abide by the terms of a divorce decree, the husband was deprived of due process where, after the husband was held in contempt, the chancellor did not allow him to present evidence in support of his motion for a new trial in order to prove that he had abided by the terms of the divorce decree, and the chancellor then dispensed with the husband’s motion for a new trial by denying it without hearing the additional evidence. Weeks v. Weeks, 556 So. 2d 348, 1990 Miss. LEXIS 12 (Miss. 1990).

Any violation of the county’s regulations regarding notice of non-compliance with the county’s subdivision ordinance did not deprive a developer and lot owners of their due process right with respect to the county’s action for declaratory and injunctive relief to bring the lot into compliance with the ordinance since such a procedure was not a prerequisite to the filing and prosecution of the lawsuit. Additionally, the rights of the developer and the lot owners in the premises was reasonable advance notice of the lawsuit and the opportunity to appear and be heard. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

Notice procedure set forth in Emergency School Leasing Authority Act, §37-7-301, is adequate under both Mississippi and United States Constitutions. Cox v. Jackson Municipal Separate School Dist., 503 So. 2d 265, 1987 Miss. LEXIS 2355 (Miss. 1987).

In bond judgment and declaratory judgment actions by objectors against a county utility district that proposed to issue revenue bonds to finance a water and sewage treatment center, notwithstanding that the objectors may not have been afforded reasonable advance notice of the meeting in which the board of commissioners formerly adopted resolutions concerning the project, the revenue bond was valid and did not violate due process. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

The Constitutions of the United States and Mississippi require that no person may be deprived of his property except by due process of law, and an administrative body must protect such rights before depriving a person of his property. Mississippi Tel. Corp. v. Mississippi Public Service Com., 427 So. 2d 963, 1983 Miss. LEXIS 2445 (Miss. 1983).

Due process requirement is directed to the protection of individuals and does not apply to frustrate state agencies in their relationships with each other; county board of supervisors has the power to allocate space in the courthouse, and it would be impractical to hamper them in the exercise of this duty by granting traditional due process safeguards to those effected by their decisions in such matters. Tally v. Board of Supervisors, 307 So. 2d 553, 1975 Miss. LEXIS 1826 (Miss. 1975).

Statutes providing for the seizure, forfeiture as contraband, and sale of firearms used for the illegal hunting of deer are fatally defective and unconstitutional as to an owner out of possession and innocent of knowledge of the illegal purpose for which the guns are used, in that they provide no notice, actual or constructive, to be given to such an owner. Kellogg v. Strickland, 191 So. 2d 536, 1966 Miss. LEXIS 1221 (Miss. 1966).

Where the purchaser of land at a tax sale was not joined as a party to an eminent domain action, and the Highway Commission, after judgment, entered upon the property, took possession of the condemned right of way, and began construction work thereon, purchaser had been denied due process and his property had been taken without compensation. Mississippi State Highway Com. v. Casey, 253 Miss. 685, 178 So. 2d 859, 1965 Miss. LEXIS 1033 (Miss. 1965).

Action of chancery court in proceeding, at the appellee’s request, with the hearing upon the merits of the cause at the time set therefor in the absence of appellant without justifiable excuse, did not deprive appellant of his property without due process of law, nor was he denied the equal protection of the law, where it appeared that not only had the appellant been granted repeated continuances, but had also been fully advised as to the date of the hearing. Webb v. Bonner, 232 Miss. 153, 98 So. 2d 143, 1957 Miss. LEXIS 455 (Miss. 1957).

Foreign corporations, doing business in Alabama, Tennessee, and Mississippi, were persons within the meaning of attachment statutes and they themselves could sue in the state and were liable to be sued or proceeded against, by attachment or otherwise, as individual nonresident debtors may be sued or proceeded against. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 83 So. 2d 179, 1955 Miss. LEXIS 589 (Miss. 1955).

The provision of the State Bar Act which provides for automatic suspension of a member who fails to pay the required dues but gives a suspended member power to reinstate himself by payment of delinquent dues, does not violate any constitutional rights because of failure to provide for a judicial hearing. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

Since bonds for consolidated school districts may be issued on petition of majority of qualified electors under Code 1942, § 6370 and no provision is made for notice to those affected so that they may have an opportunity to be heard prior to issuance, the validating act, Code 1942, § 4314, must be construed so as to give to those who have had no opportunity to protest action of board the right to hearing, when they respond to notice to taxpayers in validation proceedings, otherwise state constitutional provision against deprivation of property except by due process of law is violated. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

No man can be condemned or divested of his right until he has had an opportunity of being heard and no judgment, order or decree is valid or binding upon a party who has had no notice of proceeding against him. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Court must not only have jurisdiction of subject matter, but also of persons of parties to give validity to its final judgments, orders and decrees and it is not in power of legislature to dispense with this notice, actual or constructive. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Judgment or decree is void against defendant unless there has been legal summons or legal appearance, although defendant has full and definite knowledge of existence of action against him and his action under that knowledge is immaterial. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Code 1942, § 1852, providing method of summoning non-resident defendant in proceeding in chancery court is jurisdictional and is one method provided by law to meet requirement of due process clause of Constitution. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Nonresident who engages in business in this state which is subject to state control is subject to suit for damages in this state on cause of action accruing here out of business transacted in this state and is properly brought into court by service of process upon secretary of state in manner provided by Code 1942, § 1438, and statutes so providing do not violate due process or immunities and privileges clauses of federal constitution. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

Nonresident engaging in business of termite eradication and control in this state under license from State Plant Board authorizing him to conduct such business is subject to action for damages in this state for breach of termite eradication and control contract entered into and to be performed in this state and may be brought into court by service of process upon secretary of state in manner provided by Code 1942, § 1438. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

An order by board of supervisors adjudicating sufficiency of the petition and ordering an election, after a secret session from which interested parties and their attorneys were excluded, and a final judgment of the board excluding wine and beer from the county, pursuant to such election, are without authority of law and a denial of due process. Miles v. Board of Sup'rs, 33 So. 2d 810 (Miss. 1948).

A child’s parents cannot, under the due process of law provisions of the state and Federal constitutions, be deprived by a judicial proceeding of their parental rights without notice thereof, and an opportunity to be heard in opposition thereto. Britt v. Allred, 199 Miss. 786, 25 So. 2d 711, 1946 Miss. LEXIS 246 (Miss. 1946).

Unconstitutionality of provision permitting sheriff to seize and sell automobile for nonpayment of highway privilege tax without notice to owner held separable from, and did not affect validity of, remainder of the taxing statute. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

Statutory provision permitting sheriff to seize and sell automobile when owner has not paid highway privilege tax, without providing for inquiry thereinto or notice to owner, held void as denying due process. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

A case in which it is held §§ 6 and 8, c 195 of the drainage act of 1912 provides sufficient notice for taking of property. Jones v. Belzoni Drainage Dist., 102 Miss. 796, 59 So. 921, 1912 Miss. LEXIS 124 (Miss. 1912).

Notice to complainant of acts of drainage board and opportunity to protect his rights meets requirement of the Constitution. Wilkinson v. Lee, 96 Miss. 688, 51 So. 718 (Miss. 1910).

Chapter 105 of the Laws of 1900 cannot be assailed as unconstitutional because not providing for notice by one who has appeared and contested a case through all the courts. Illinois C. R. Co. v. Denham, 82 Miss. 77, 33 So. 839, 1903 Miss. LEXIS 109 (Miss. 1903).

Personal notice on resident-known defendants is essential to a valid judgment against them. Brown v. Board of Levee Comm'rs, 50 Miss. 468, 1874 Miss. LEXIS 80 (Miss. 1874).

A judgment without notice is void. Jack v. Thompson, 41 Miss. 49, 1866 Miss. LEXIS 4 (Miss. 1866).

A law depriving a citizen of his property without notice or trial, and without opportunity to protect his rights, is void. Donovan v. Mayor & Council of Vicksburg, 29 Miss. 247, 1855 Miss. LEXIS 49 (Miss. 1855).

3. Taxation–In general.

Federal retirees who were state residents were entitled to refunds of state income taxes paid under the state’s unconstitutional tax scheme which taxed federal retirees while exempting the state’s own retired employees. Marx v. Broom, 632 So. 2d 1315, 1994 Miss. LEXIS 117 (Miss. 1994).

A legislative delegation to the tax commission of the duty to determine the portion of taxable income of a given person or corporation which should be allocated to sources within the state is a delegation of a fact-finding duty, and where the legislature provided the standard to be followed in evaluating the taxpayer’s earned income in Mississippi, as distinguished from its earned income from other sources, such a delegation is not unconstitutional. Columbia Gulf Transmission Co. v. Barr, 194 So. 2d 890, 1967 Miss. LEXIS 1424 (Miss. 1967).

Fact that decision of federal court declaring Mississippi poll tax law unconstitutional was handed down on day which was deadline for filing protest petitions against issuance of state aid road bonds, thereby increasing the number of electors in county from 8855 to 13510 and making total number of signatures on petitions insufficient to prevent board of supervisors from issuing bonds without calling election therefor, did not deprive petitioners of their constitutional rights, for the decision of the federal court was a fact beyond the power of the board to alter, but of which they were bound to take cognizance. Ratliff v. Board of Supervisors, 193 So. 2d 137, 1966 Miss. LEXIS 1280 (Miss. 1966).

1934, c 246 held not to deny due process of law to abutting property owners in paying assessment proceedings thereunder. City of Clarksdale v. Fitzgerald, 181 Miss. 135, 179 So. 269, 1938 Miss. LEXIS 55 (Miss. 1938).

Statute, which, for the avowed purpose of relieving unemployment and aiding agriculture and industry, authorized municipalities to raise funds by taxation for the acquisition of lands and the construction of factories which were to be leased to individuals and private corporations on terms which would insure their continued operation, did not violate the due process clause. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Statute authorizing issuance of bonds, payable from taxes, enabling town, desiring to increase employment, to build and lease garment factory, violated State Constitution by lending town’s credit in aid of private corporation. Carothers v. Booneville, 169 Miss. 511, 153 So. 670, 1934 Miss. LEXIS 69 (Miss. 1934).

Statute making tax a debt due by taxpayer for which action may be brought held not invalid as depriving taxpayer of property without due process of law. Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, 1933 Miss. LEXIS 81 (Miss. 1933), aff'd, 292 U.S. 393, 54 S. Ct. 743, 78 L. Ed. 1323, 1934 U.S. LEXIS 718 (U.S. 1934).

Statute making every tax lawfully levied a debt against taxpayers and authorizing recovery thereof by action held not invalid as denying due process of law. George County Bridge Co. v. Catlett, 161 Miss. 120, 135 So. 217, 1931 Miss. LEXIS 255 (Miss. 1931).

The statute providing for assessment of lands by government surveys is lawful. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 1928 Miss. LEXIS 60 (Miss. 1928).

As to power to issue bonds of drainage district in anticipation of taxes see Cox v. Wallace, 100 Miss. 525, 56 So. 461, 1911 Miss. LEXIS 47 (Miss. 1911).

An extension of city limits so as to include property and render it liable to city taxes, though the owner is not benefited thereby, is not to deprive of property without due process of law. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905); Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

A statute providing for the assessment of railroads for back taxes by the state railroad commission, without appeal, does not deprive of property without due process of law, although other taxpayers may, under general laws, appeal from the tribunal fixing their taxes. Yazoo & M. V. R. Co. v. Adams, 77 Miss. 764, 25 So. 355, 1900 Miss. LEXIS 1 (Miss. 1900).

4. – – Tax sales, taxation.

A property owner’s claim of ownership under color of title by virtue of his adverse possession of the property after he purchased the property at a tax sale but before the redemption period had ended and he had the right of possession, was sufficient to apply the “doctrine of relation” back to the date of the tax sale purchase for the purpose of challenging a subsequent zoning ordinance by asserting a pre-existing nonconforming use. In the balancing of public benefit against private property losses, a landowner’s constitutional right under the due process clause prevails. Barrett v. Hinds County, 545 So. 2d 734, 1989 Miss. LEXIS 292 (Miss. 1989).

Unfair cigarette sales law requires proof of intent to both injure competitors and destroy or substantially lessen competition, and mere intent to injure competitors is insufficient; Mississippi unfair cigarette sales law does not violate due process since court cannot conclude that rebate provision bears no rational relation to state’s legitimate interest in protecting healthy market competition and in view of fact that legislature is under no duty to pick least restrictive means for furthering its legitimate interests; protection of public from unfair business practices which tend to injure competitors and destroy or substantially lessen competition is necessarily matter affected with public interest and is legitimate goal of legislative action. Corr-Williams Wholesale Co. v. Stacy Williams Co., 622 F. Supp. 156, 1985 U.S. Dist. LEXIS 14298 (S.D. Miss. 1985).

In a tax sale proceeding, due process is not afforded a landowner if his lands are assessed by a void description, nor can land be conveyed except by a writing containing a description capable of being applied to a particular tract of land. Calmes v. Weill, 243 So. 2d 408, 1971 Miss. LEXIS 1509 (Miss. 1971).

The legislature may provide for a resale of tax lands held by it although the previous sale to the state was invalid. Marble v. Fife, 69 Miss. 596, 13 So. 842, 1891 Miss. LEXIS 168 (Miss. 1891).

The legislature cannot retroactively make valid a void sale of land for taxes. Dingey v. Paxton, 60 Miss. 1038, 1883 Miss. LEXIS 56 (Miss. 1883).

The legislature cannot declare lands forfeited to the state for nonpayment of taxes without sale. Griffin v. Mixon, 38 Miss. 424, 1860 Miss. LEXIS 16 (Miss. 1860).

5. – – License and use taxes, taxation.

The chain store taxing statutes do not violate the concepts of due process and equal protection of the law embodied in the Mississippi and United States Constitution and did not, in this case, deny equal protection of the law to a corporate retailer operating a chain of stores within and without the state. Interco, Inc. v. Rhoden, 220 So. 2d 290, 1969 Miss. LEXIS 1448 (Miss. 1969).

This section is not violated by an annual privilege or premium tax levied on the gross premiums received by foreign insurance companies from contracts or insurance policies written or covering risks in this state, even though the tax is concededly unequal and discriminatory in that a lesser tax is imposed on the business of local companies. Prudential Ins. Co. v. Barnett, 200 Miss. 233, 27 So. 2d 60, 1946 Miss. LEXIS 288 (Miss. 1946).

Licensed person selling beer held not entitled to restrain enforcement of ordinance adopted by board of supervisors finding the district in which such person sold beer was a residential district and prohibiting sale of beer therein. Alexander v. Graves, 178 Miss. 583, 173 So. 417, 1937 Miss. LEXIS 221 (Miss. 1937).

Tobacco tax statute requiring retailers purchasing from wholesalers not having permit to present tobacco to nearest wholesaler having permit to have stamps affixed held not unconstitutional as imposing arbitrary and unreasonable restriction on lawful business and as being without legitimate basis of classification. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

Tobacco tax statute does not violate constitutional provisions prohibiting taking of property for public use without compensation. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

The legislature may impose a license tax on railroads. New Orleans, M. & C.R. Co. v. State, 110 Miss. 290, 70 So. 355, 1915 Miss. LEXIS 37 (Miss. 1915).

The imposition of an additional privilege tax on railroads claiming exemption from state supervision under maximum and minimum provisions in their charters was unconstitutional as depriving such railroads of property without due process of law. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

Under the Constitution a privilege tax on manufacturers, distributors and retailers of Coca-Cola may be levied. Coca-Cola Co. v. Skillman, 91 Miss. 677, 44 So. 985, 1907 Miss. LEXIS 165 (Miss. 1907).

Acts of 1904, c 176, and an ordinance by its authority as to privilege taxes on the business of loaning money on furniture, etc., is violative of this section. Rodge v. Kelly, 88 Miss. 209, 40 So. 552, 1906 Miss. LEXIS 121 (Miss. 1906); Hyland v. Sharp, 88 Miss. 567, 41 So. 264, 1906 Miss. LEXIS 175 (Miss. 1906).

6. – – Sales and use taxes, taxation.

Use tax statute violates due process clause of both State and Federal Constitution in requiring foreign seller, non-domesticated foreign corporation, having no place of business or any agent in this state, its only intra-state activity being sending into State of non-resident solicitors and two resident solicitors to take orders effective only when approved at home office, to become collecting agent for use tax on goods sold by corporation on orders taken as stated, when sales are completed by delivery of goods to common carrier in foreign state. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Decision on former appeal of same case that Use Tax Law of this state is unconstitutional in its requirement that foreign seller collect and pay use tax on goods sold to Mississippi residents when seller is non-domesticated foreign corporation having no place of business or any agent in this state, its only intrastate activity being sending into state of non-resident solicitors to take orders effective only when approved at home office and sales being completed by delivery of goods to common carrier in foreign state, will be adhered to on subsequent appeal, and case does not become new case because state of Tennessee, from which state goods are shipped, is claimed to have relevant Sales Tax Law; because coming to rest in this state feature of original law has been eliminated; or because two salesmen of seller happen to reside in Mississippi for their own personal convenience and not that of employer, since principles controlling law of case doctrine are more binding upon courts than law of precedent. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Question as to what constitutes doing business in this state, territorial jurisdiction and due process of law is judicial, and court is not bound by legislative declaration or definition as to what constitutes doing business, territorial jurisdiction or due process of law, unless such declaration or definition is sanctioned or authorized by constitutional limitations. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Use Tax Law, Chapter 120, Laws of 1942 (Code 1942, §§ 10146-10167), is unconstitutional as to its requirement that a non-resident seller shall collect and pay tax on sales consummated in Tennessee by delivery of property to a common carrier for transportation to purchasers in Mississippi, when the non-resident seller is not doing business in Mississippi and property was sold on orders taken by non-resident salesmen, as it violates the commerce clause by imposing a burden on interstate commerce and denies to seller equal protection and due process of law. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

A retroactive provision in a sales tax law which changes the limitations upon the right of a taxpayer to sue to recover taxes paid is invalid in so far as it undertakes to compel a court to set aside a previous judgment in favor of the taxpayer, since the judgment conferred a vested right which could not be taken away without due process of law. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

Where assessments or returns of additional sales taxes were made by the chairman of the state tax commission from the best information available where the taxpayer’s records were found to be inadequate, and notice was given to the taxpayer setting out the basis for the commissioner’s findings supporting such additional assessment, which assessments were approved by the tax commission and the taxpayer was given an opportunity both by the chairman of the commission and by the tax commission itself to negative by evidence the facts on which the assessments were based, the order of the tax commission approving such assessment did not violate due process, since it was not necessary for the tax commission to set forth the facts on which the assessments were made in its order, as against the contention that orders of quasi-judicial commissions and bodies must be supported by a finding of basic fact. Viator v. State Tax Com., 193 Miss. 266, 5 So. 2d 487, 1942 Miss. LEXIS 78 (Miss.), cert. denied, 316 U.S. 643, 62 S. Ct. 1036, 86 L. Ed. 1728, 1942 U.S. LEXIS 732 (U.S. 1942).

Sales tax statute making the place of business, including the permanent fixtures used in such business, liable to seizure and sale when taxes accrued upon the business conducted on the premises should become due and unpaid, even though it did not expressly provide that the tax should be a lien upon the property of the owner of such place of business, or that the tax should constitute a debt due and owing by the lessor, was not a violation of due process of law, in view of provisions therein permitting any person improperly charged with any tax and required to pay the same to recover it in any proper action or suit and entitling the lessor of the premises and fixtures to petition for a hearing if desired upon receipt by him of a demand from the commissioner to pay the delinquent taxes due by the lessee. Standard Oil Co. v. Stone, 191 Miss. 897, 2 So. 2d 155, 1941 Miss. LEXIS 124 (Miss. 1941).

Sales tax statute in rendering liable and subject to seizure and sale the premises and fixtures of a lessor to satisfy the unpaid sales tax due on retail sales made in the conduct of a business when the premises are equipped with permanent fixtures so that no other commodity than that sold by the lessor of such premises can be sold and handled thereat, is not unconstitutionally discriminatory as being applicable only to gasoline filling stations, since there was a reasonable basis for the distinction in such situation and in not rendering liable and subject to seizure and sale the premises and fixtures of the average landlord, for instance, who leases his store building and fixtures to a merchant engaged in selling general commodities thereat other than those sold by the owner of such premises. Standard Oil Co. v. Stone, 191 Miss. 897, 2 So. 2d 155, 1941 Miss. LEXIS 124 (Miss. 1941).

The statute imposing tax on sales of retail merchants and requiring them to collect tax from customers is not unconstitutional as violative of due-process clauses of State and Federal Constitutions. State ex rel. Rice v. Allen, 180 Miss. 659, 177 So. 763, 1938 Miss. LEXIS 2 (Miss. 1938).

Statute imposing sales tax in greater amount on retail merchants than wholesalers, but requiring payment of the wholesale tax where retailer sold stock in bulk and taxing credit sales on basis of payments, held not unconstitutional as an arbitrary classification violating due process. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

Statute imposing sales tax that exempted sales of school books, agricultural products, and articles in preparing such products for market held not unconstitutional as denying due process because discriminating against those required to pay the tax. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

Statute imposing tax on sales of retail merchants held not unconstitutional as double taxation. Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884, 1936 Miss. LEXIS 6 (Miss. 1936).

Statute requiring retail dealer purchasing tobacco from wholesaler having no permit to present tobacco to wholesaler having permit to have tax stamps affixed does not discriminate against retailer in town some distance from wholesaler and who buys from wholesaler outside State. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

7. Employment and labor relations.

Circuit court erred in dismissing an employee’s appeal of a city civil service commission’s affirmance of his termination on the ground that pursuant to Miss. Unif. Cir. & Cty. R. 5.05 his, decision to wait forty days before he requested its assistance in compelling the commission to file the transcript exceeded the allowable thirty days because under Miss. R. App. P. 2(a)(2), the employee was entitled to notice from the circuit clerk of the deficiency in his appeal and fourteen days to correct any deficiency, and that lack of notice and opportunity to remedy the deficiency deprived the employee of due process; the circuit court may still dismiss an appeal for which an appellant has failed to timely provide a record, but the Mississippi Rules of Appellate Procedure apply to an appeal to circuit court. Fields v. City of Clarksdale, 27 So.3d 464, 2010 Miss. App. LEXIS 49 (Miss. Ct. App. 2010).

Employee was not denied due process when he received notice that he was placed on leave but not informed of the type of leave he was placed on or given a formal notice of suspension where the employee was placed on administrative leave with pay pending the resolution of the investigation, and once the investigation was concluded the employee was properly noticed of the employer’s intention to terminate his employment. Payne v. Miss. Dep't of Mental Health, 964 So. 2d 582, 2007 Miss. App. LEXIS 581 (Miss. Ct. App. 2007).

A college employee was denied due process where her application for duty-related disability benefits was denied by a medical review board that included two physicians, and her subsequent appeal was heard by an appeals board which included the same two physicians; the employee’s constitutional guarantees of due process were violated by virtue of the physicians sitting in judgment of their own conclusions that she was not entitled to disability benefits. Flowers v. Public Emples. Retirement Sys., 748 So. 2d 178, 1999 Miss. App. LEXIS 431 (Miss. Ct. App. 1999), overruled in part, Flowers v. Public Emples. Ret. Sys., 952 So. 2d 972, 2006 Miss. App. LEXIS 778 (Miss. Ct. App. 2006).

A teacher was denied due process where her application for duty-related disability benefits was denied by a medical review board that included two physicians, and her subsequent appeal was heard by an appeals board which included the same two physicians; the teacher’s constitutional guarantees of due process were violated by virtue of the physicians sitting in judgment of their own conclusions that she was not entitled to disability benefits. Burns v. Public Emples. Retirement Sys., 748 So. 2d 181, 1999 Miss. App. LEXIS 430 (Miss. Ct. App. 1999), overruled in part, Flowers v. Public Emples. Ret. Sys., 952 So. 2d 972, 2006 Miss. App. LEXIS 778 (Miss. Ct. App. 2006), overruled in part, Flowers v. Public Emples. Ret. Sys., 2006 Miss. App. LEXIS 247 (Miss. Ct. App. Apr. 4, 2006).

The claimant was deprived of due process where two physicians sat in judgment, as members of the disability appeals committee, of their own conclusions that the claimant was not entitled to disability benefits under the Public Employees’ Retirement System. Flowers v. Public Emples. Retirement Sys., 1999 Miss. App. LEXIS 219 (Miss. Ct. App. June 29, 1999), op. withdrawn, sub. op., 748 So. 2d 178, 1999 Miss. App. LEXIS 431 (Miss. Ct. App. 1999); Burns v. Public Emples. Retirement Sys., 1999 Miss. App. LEXIS 210 (Miss. Ct. App. June 29, 1999), op. withdrawn, sub. op., 748 So. 2d 181, 1999 Miss. App. LEXIS 430 (Miss. Ct. App. 1999); Dean v. Public Emples. Retirement Sys., 1999 Miss. App. LEXIS 209 (Miss. Ct. App. Apr. 20, 1999), aff'd, 797 So. 2d 830, 2000 Miss. LEXIS 258 (Miss. 2000).

A 16-year veteran police officer, who had vested permanent employment rights under the civil service laws, resigned on his own volition and was not “constructively discharged” where he obtained legal counsel when he became aware that he was the object of an investigation and resigned his job on his attorney’s advice. Thus, he could not thereafter pursue an untimely claim that he was denied procedural due process. In order to ensure that a civil service employee preserves his or her procedural due process guarantees, he or she should “stay the course” and remain with the job until relieved from the assignment by an official with statutory authority to fire. While the work environment could become the source of some irritation or embarrassment, such embarrassment will usually afford the civil servant nothing in the way of a procedural due process claim after a voluntary resignation. The instances will be few when a claim of constructive discharge will preserve procedural guarantees that the employee has waived by resigning. The wisdom of “staying the course” is especially crucial in light of state law which deems civil service administrative remedies as the exclusive remedy before relief can be sought in state court. Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

There is no legislative enactment providing teachers’ aides with a valid claim of entitlement to continued employment. Thus, a teacher’s aide’s termination deprived her of no property interest, the taking of which would invoke the due process provisions of the constitution. Harrison County School Bd. v. Morreale, 538 So. 2d 1196, 1989 Miss. LEXIS 51 (Miss. 1989).

A college professor did not have a property interest protected by due process in his grant of tenure. Section 37-101-15 empowers the Board of Trustees of Institutions of Higher Learning to terminate professors’ employment contracts at any time for malfeasance, inefficiency or contumacious conduct but does not create a legitimate expectation of continued employment for a non-tenured employee. If a state regulation conditions receipt of a benefit upon a discretionary decision of an administrator, there is no legitimate claim of entitlement to the benefit. Wicks v. Mississippi Valley State University, 536 So. 2d 20, 1988 Miss. LEXIS 591 (Miss. 1988).

Statutes cannot be enacted under this section authorizing employees of a corporation to recover when employees of individuals, etc., similarly situated cannot. Such statutes must be based on some difference inherent in the nature of the business, which difference serves as a basis for and warrants the classification. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 So. 533, 1902 Miss. LEXIS 212 (Miss. 1902).

8. Judicial proceedings–In general.

County did not show 2004 Miss. Private and Local Laws ch. 920, requiring the county to distribute portions of a gaming fee to a town and a school district, was unconstitutional because the county had no standing to invoke due process protections against the state. Tunica County v. Town of Tunica, 227 So.3d 1007, 2017 Miss. LEXIS 179 (Miss. 2017).

It is outside the supreme court’s authority to decide whether, as a matter of public policy, all indigent parents in Mississippi should be entitled to appointed counsel in termination proceedings; the Mississippi Legislature is the proper authority to address this important issue, as any public-policy determinations of the law are vested exclusively in the legislative branch of government. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

While it was error to not make a determination on whether a father was entitled to appointed counsel before allowing him to proceed pro se, the error was harmless because he was given a fair and adequate hearing, and the presence of an attorney would not have made a difference; the due process provision of the Mississippi Constitution does not require the additional step of appointment of counsel in all termination cases. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

State could not have proved its case against defendant without expert testimony, and the trial court’s denial of funds for the procurement of expert witnesses denied defendant his due process rights under the Fourteenth Amendment to the United States Constitution and Miss. Const. art. III, § 14, as well as his right to a fair trial. Isham v. State, 161 So.3d 1076, 2015 Miss. LEXIS 191 (Miss. 2015).

Although a property owner was afforded minimum due process under the United States and Mississippi Constitutions in a civil forfeiture case, the dismissal of his petition for a failure to attend court was problematic; even if the owner failed to serve a county with a copy of his petition, the county was notified that the petition was filed with the court. Moreover, the county participated in the contest by issuing witness subpoenas; assuming a dismissal of the claim was not required based on a speedy trial issue, the county had to show by a preponderance of the evidence that the property should have been forfeited. 1984 Chevy Camaro v. Lawrence County Sheriff's Dep't, 148 So.3d 672, 2014 Miss. App. LEXIS 562 (Miss. Ct. App. 2014).

Mother was not afforded a fair trial, U.S. Const. Amend. XIV, Miss. Const. Art. 3, §§ 14, 24, where the chancellor was so combative, antagonistic, discourteous, and adversarial that no reasonable person, knowing all the facts, could conclude that the mother was afforded a fair trial; the chancellor’s intemperance with the mother would leave any reasonable person with doubts about his impartiality. Schmidt v. Bermudez, 5 So.3d 1064, 2009 Miss. LEXIS 104 (Miss. 2009).

In a medical malpractice suit against two doctors, the patient was not denied a fair and impartial trial under Miss. Const. Art. III, § 14 when the trial court properly did not excuse for cause a former patient of one of the doctors who had an unspecified surgical procedure performed 15 years before the lawsuit because the former patient was not biased in favor of the doctor and he swore that his prior experience would not cause him to favor the doctor. Heaney v. Hewes, 8 So.3d 221, 2008 Miss. App. LEXIS 588 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 206 (Miss. 2009).

In defendant’s capital murder case, a court properly allowed an expert to testify on behalf of a coworker where the witness had been involved in the lab analysis, and the testimony did not concern an essential element of the crime. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

The right to a trial by a fair and impartial jury is guaranteed by Mississippi Constitution Article III, § 14, § 26, and § 31. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

A plaintiff in a medical malpractice case was denied her right to an impartial jury where there were over 40,000 persons in the county from which a jury could have been drawn and the plaintiff was limited to a jury pool of 25, 48 percent of which were connected in some way to the defendant doctor, because of the “statistical aberration” of the makeup of the venire and the strong likelihood that the opportunity for undue influence over other jurors in the case was too great. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

Unfair cigarette sales law requires proof of intent to both injure competitors and destroy or substantially lessen competition, and mere intent to injure competitors is insufficient; Mississippi unfair cigarette sales law does not violate due process since court cannot conclude that rebate provision bears no rational relation to state’s legitimate interest in protecting healthy market competition and in view of fact that legislature is under no duty to pick least restrictive means for furthering its legitimate interests; protection of public from unfair business practices which tend to injure competitors and destroy or substantially lessen competition is necessarily matter affected with public interest and is legitimate goal of legislative action. Corr-Williams Wholesale Co. v. Stacy Williams Co., 622 F. Supp. 156, 1985 U.S. Dist. LEXIS 14298 (S.D. Miss. 1985).

Section 11-11-5 [Repealed], a venue statute permitting suits against power companies in any county in which a company may have a power line, is constitutional despite its provision for discretion to try a case in one of several counties, since Art III § 14 of Miss. Const. of 1890 and the Fourteenth Amendment of the United States Constitution (both, inter alia, imposing due process requirements), though safeguarding fundamental rights, do not extend to the forum which a state may designate for protection of such rights. Evans v. State Farm Fire & Casualty Co., 336 So. 2d 753, 1976 Miss. LEXIS 1524 (Miss. 1976).

In proceedings for issuance of bonds under Code 1942, § 6370 authorizing consolidated school districts to issue bonds for improvement and repair of school buildings, allegations of objectors that signers of petition did not constitute a majority, which, if true, would render bonds void, was improperly stricken by the court, which should have heard and determined the same as required by due process. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

It is not violative of this section for the Supreme Court to reverse judgment as to amount of damages only without reversing the whole case. New Orleans & N. E. R. Co. v. Snelgrove, 148 Miss. 890, 115 So. 394, 1927 Miss. LEXIS 100 (Miss. 1927), cert. denied, 277 U.S. 596, 48 S. Ct. 559, 72 L. Ed. 1006, 1928 U.S. LEXIS 797 (U.S. 1928).

A reversal or new trial on issue of amount of damages only does not deprive appellant of property without due process of law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1914).

Section 4910, Code of 1906, which denied circuit courts power to grant new trials for excessive verdicts is contrary to this section. Yazoo & M. V. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469, 1907 Miss. LEXIS 67 (Miss. 1907).

To prevent a foreign insurance company suing in state courts where such company has never attempted to do business in the state is violative of this section. Swing v. B. E. Brister & Co., 87 Miss. 516, 40 So. 146, 1905 Miss. LEXIS 181 (Miss. 1905).

Section 4370 of the Code of 1892 (Code 1906 § 4936), in so far as it provides that causes cannot be reversed for jurisdictional defects, deprives one of due process of law. Arbuckle v. State, 80 Miss. 15, 31 So. 437, 1902 Miss. LEXIS 219 (Miss. 1902).

The decision or judgment remaining undisturbed, the revision of an opinion which expresses but the reasons of the decision does not involve “due process of law.” Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 So. 200, 1899 Miss. LEXIS 36 (Miss. 1899), aff'd, 180 U.S. 1, 21 S. Ct. 240, 45 L. Ed. 395, 1901 U.S. LEXIS 1278 (U.S. 1901).

“Due process of law” does not require that a jury try the case. Fant v. Buchanan, 17 So. 371 (Miss. 1895).

The legislature cannot provide for the infliction of a penalty and its collection by summary process, without a judicial proceeding adjudicating the liability. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

A purchase of land by a deputy sheriff at his principal’s sale cannot be set aside by motion; so to do would be to deprive of property without due process of law. Flournoy v. Smith, 4 Miss. 62, 1838 Miss. LEXIS 14 (Miss. 1838).

9. – – Gifts, judicial proceedings.

In an action brought by a donor to set aside gifts of land, the donee “purposefully availed herself of the privilege of conducting activities” within Mississippi for purposes of due process and personal jurisdiction where she had the donation document notarized at the Chancery Clerks’ office by an official of the State. Anderson v. Sonat Exploration Co., 523 So. 2d 1024, 1988 Miss. LEXIS 193 (Miss. 1988).

10. – – Discovery, judicial proceedings.

A litigant is not shut off from all remedies for discovery merely because the rules of civil procedure do not apply to administrative proceedings or because the rules of the administrative agency do not promote it. In appropriate cases, a “pure bill for discovery” will lie and statutory remedies may be available to the end that due process be afforded. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 1989 Miss. LEXIS 184 (Miss. 1989).

Code 1906 § 1938 providing for the filing by a litigant of interrogatories, to be answered by the adverse party residing out of the state, the answer to be used as evidence, does not deprive the adverse party of due process of law. Illinois C. R. Co. v. Sanford, 23 So. 942 (Miss. 1898).

11. – – Divorce, alimony, maintenance, and support, judicial proceedings.

While it could not be said that the increase in child support was unreasonable, it was not requested by the father; the chancellor committed error in sua sponte granting an increase in the amount of child support the mother would be required to pay. Purviance v. Burgess, 980 So. 2d 308, 2007 Miss. App. LEXIS 787 (Miss. Ct. App. 2007).

In a divorce case, a former husband’s right to due process under Miss. Const. Art. 3, § 14 and the U.S. Constitution were not violated since he was afforded a full, complete, and impartial hearing; the husband called witnesses, was afforded the right to cross-examine, and presented documentary evidence to the chancery court. Stuart v. Stuart, 956 So. 2d 295, 2006 Miss. App. LEXIS 759 (Miss. Ct. App. 2006).

The husband’s right to due process was not violated when the judge limited the trial in a divorce proceeding to one day because (1) the husband could have requested a continuance, but did not; (2) the husband could have objected on the record to the time limit, but did not; (3) the record showed that the husband’s counsel indicated a readiness to go forward at the end of the wife’s case-in-chief after the husband’s motion for a directed verdict was overruled by the trial court; and (4) there was no indication in the record from the husband that the time limits placed on the trial were problematic. Moore v. Moore, 757 So. 2d 1043, 2000 Miss. App. LEXIS 125 (Miss. Ct. App. 2000).

The appellant was entitled under his right to due process to a hearing on the issue of a material change of circumstances which if proven would warrant a modification of the divorce decree regarding child support. Childers v. Childers, 717 So. 2d 1279, 1998 Miss. LEXIS 337 (Miss. 1998).

The appellant was afforded a full, complete hearing at which he was given the opportunity to call witnesses and be heard by the trial court during the divorce proceedings on the issues relating to the equitable division of marital assets that he later presented on appeal; accordingly, he was not denied due process of law, as required by both the U.S. Constitution and the Mississippi Constitution on those issues, for he was given an opportunity to be heard on the same issues he sought to modify a few months after the final decree was entered. Childers v. Childers, 717 So. 2d 1279, 1998 Miss. LEXIS 337 (Miss. 1998).

A contemnor was denied due process of law where the show cause hearing for the contempt charges was conducted by the same judge who presided over the divorce proceedings and the related motion for recusal from which the alleged contempt originated, the contemnor was charged with a course of conduct that was committed, for the most part, outside the presence of the court, his conduct associated with the divorce proceedings involved the judge personally, and the judge chose to set a show cause hearing at a date subsequent to the alleged contemptuous conduct. Purvis v. Purvis, 657 So. 2d 794 (Miss. 1994), on rehearing (Miss. Apr. 27, 1995).

A husband had sufficient minimum contacts with Mississippi so that requiring him to submit to an adjudication of his rights in a divorce proceeding did not offend “traditional notions of fair play and substantial justice,” where the husband was physically present in Mississippi at the time he was personally served, and he was domiciled in Mississippi for years and left the state incident to separation from his spouse and family. Chenier v. Chenier, 573 So. 2d 699, 1990 Miss. LEXIS 840 (Miss. 1990).

There can be no per se prohibition against a child witness testifying in a divorce case between the child’s parents. The right of every litigant to compulsory process for witnesses and to have them testify under oath in court is so well grounded that any per se exclusion simply because he or she is a child of the divorcing parents risks offending the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Mississippi Constitution Art 3, § 14. Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor, at a minimum, should follow the procedure required by Crownover v. Crownover (1975) 33 Ill App 3d 327, 337 NE2d 56. Although no parent can be precluded from having a child of the marriage testify in a divorce proceeding simply because of that fact, parents in a divorce proceeding should, if at all possible, refrain from calling children of their marriage as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

A defendant father was not subject to in personam jurisdiction in Mississippi consistent with due process in an action brought by the mother regarding his child support obligations, even though an Ohio court had transferred jurisdiction over the case to a chancery court in Mississippi in accordance with the Uniform Child Custody Jurisdiction Act and the child resided in Mississippi, where the father had no minimum contacts with Mississippi and had not purposely availed himself of the benefits of the laws of the state of Mississippi or derived personal or commercial benefit from his child’s presence in Mississippi. Carpenter v. Allen, 540 So. 2d 1334, 1989 Miss. LEXIS 163 (Miss. 1989).

Award to wife of alimony and child support where such is not sought in pleadings is error, because it deprives husband of due process, although such judgments are not void; therefore, where husband paid alimony and child support for 3 years before complaining about due process violation, decree is final and due process right has been waived. Miller v. Miller, 512 So. 2d 1286, 1987 Miss. LEXIS 2815 (Miss. 1987).

The fixing of a lien upon real and personal property belonging to a former husband who had failed to pay alimony and child support as required by a divorce decree did not deny the husband his constitutional right to due process where the lien had been imposed after a full hearing and where such lien had been necessary to ensure that the husband pay to the wife the support owing to her under the agreement embodied in the decree. Morgan v. Morgan, 397 So. 2d 894, 1981 Miss. LEXIS 2002 (Miss. 1981).

12. – – Child custody, judicial proceedings.

Law does not allow parental rights to supercede the best interests of the child; parental rights, as is true of other fundamental rights, can be forfeited or taken away, and the law does recognize some means by which third parties can overcome the law’s preference of natural parents. Davis v. Vaughn, 126 So.3d 33, 2013 Miss. LEXIS 594 (Miss. 2013).

Chancery court did not err in granting custody to the father after finding that he had not deserted his child because there was no legally compelling reason to alter or abandon the established standards for rebuttal of the natural-parent presumption; requiring the maternal grandmother first to demonstrate that the father had relinquished his right to parent his child was not an undue burden. Davis v. Vaughn, 126 So.3d 33, 2013 Miss. LEXIS 594 (Miss. 2013).

Although the chancellor initially granted the mother’s motion to terminate the father’s parental rights, the Hinds County Chancery Court did not have proper subject matter jurisdiction to do so because the Scott County Chancery Court entered the initial order of child custody; when presented with information regarding the jurisdictional problem, the chancellor immediately corrected the defect by setting aside his previous orders and instructing that any further proceedings regarding the case be brought before the Scott County Chancery Court, pursuant to Miss. Code Ann. §93-5-23. C.M. v. R.D.H., 947 So. 2d 1023, 2007 Miss. App. LEXIS 29 (Miss. Ct. App. 2007).

In proceedings to determine custody of 2 children who had been adjudicated neglected and placed in foster care, the children were denied their due process right of representation where they were without the services of an attorney or guardian ad litem for approximately 3 years during the course of the custody proceedings. Copiah County Dep't of Human Servs. v. Linda D. (In the Interest of R.D.), 658 So. 2d 1378, 1995 Miss. LEXIS 368 (Miss. 1995), overruled in part, D.T. v. Hinds Cnty. Youth Court (In re J.T.), 188 So.3d 1192, 2016 Miss. LEXIS 165 (Miss. 2016).

A mother whose parental rights were terminated under §93-15-103(3)(e) on the ground that there was a “substantial erosion of the relationship” between her and 2 of her children failed to show that the statute was unconstitutionally vague, since a person of common intelligence should have been aware that the result of a factual situation such as the mother’s could well be the termination of one’s parental rights. If the statute were more specific, then the cases in which it could be applied could be so drastically reduced as to make it ineffective in protecting the children it was meant to serve. Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414, 1991 Miss. LEXIS 360 (Miss. 1991).

13. – – Contempt, judicial proceedings.

Defendant’s due process rights were not violated by a contempt conviction because a trial court, even though not required for direct contempt, gave defendant notice and conducted a hearing where she was allowed to present evidence. In re Hampton, 919 So. 2d 949, 2006 Miss. LEXIS 18 (Miss.), cert. denied, 547 U.S. 1131, 126 S. Ct. 2042, 164 L. Ed. 2d 784, 2006 U.S. LEXIS 3868 (U.S. 2006).

Where speaker uttered vulgar, profane and indecent language concerning the presiding judge while the judge was in his retiring room, and where the presiding judge took testimony of deputy sheriff who heard the remarks and then took testimony of the speaker who denied making those remarks and thereafter found the speaker guilty of direct contempt and sentenced him, the presiding judge exceeded his authority in punishing the speaker without filing of an information or other definite charge against the speaker and without giving him notice of the charge and reasonable opportunity to defend himself. Ex parte Wisdom, 223 Miss. 865, 79 So. 2d 523, 1955 Miss. LEXIS 450 (Miss. 1955).

Where words are spoken concerning the presiding judge which were both contemptuous and insulting but they were spoken when the judge had retired to his chambers following the announcement of the decision, the court could not proceed to punish the speaker upon his full knowledge of facts but there had to be a hearing and the court had to rely upon the testimony of the witnesses and the speaker should have been given reasonable notice of the charges by attachment, citation or otherwise so that he may know the nature and the cause of accusation against him and that he may have a reasonable opportunity to be heard and also the speaker should have the right to obtain assistance of counsel and the right to make a record on which an order may be reviewed on appeal. Ex parte Wisdom, 223 Miss. 865, 79 So. 2d 523, 1955 Miss. LEXIS 450 (Miss. 1955).

Where language spoken concerning the presiding judge was both contemptuous and insulting and where the language had been spoken within the actual presence and hearing of the court, it merited some punishment which the court would have had the right to inflict without notice, rule to show cause, or other process. Ex parte Wisdom, 223 Miss. 865, 79 So. 2d 523, 1955 Miss. LEXIS 450 (Miss. 1955).

14. – – Real property, judicial proceedings.

Chancellor did not err in granting partial summary judgment to the county in dismissing the property owner’s claims under Miss. Code Ann. §19-5-22 and 42 U.S.C.S. § 1983 because the initial requirement for either a procedural or substantive due process claim was proving the plaintiff had been deprived by the government of a liberty or property interest; otherwise, no right to due process could accrue. The property owner failed to prove injury to himself since it was the property owner’s tenant, and not the property owner, who the lien was against. LaCroix v. Marshall County Bd. of Supervisors, 28 So.3d 650, 2009 Miss. App. LEXIS 537 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 90 (Miss. 2010).

Failure of a water management district to give notice of its petition to acquire an easement to the life tenants and remaindermen of a piece of property and failure to join the life tenants, before the entering upon and taking possession of the property, was a denial of due process. The life tenants’ and remaindermen’s due process rights were violated by the taking of their property without notice and without a pre-deprivation hearing. Webb v. Town Creek Master Water Mgmt. Dist., 903 So. 2d 701, 2005 Miss. LEXIS 236 (Miss. 2005).

Developer’s federal and state due process claims against a city were unripe because the developer had not suffered a deprivation of property; the city had not made a final determination of whether, or under what circumstances, it would issue a building permit to the developer, or whether it would condemn the developer’s property. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

Failure to make one, claiming title to tax forfeited land under a quitclaim deed of the record owner and by adverse possession, a party to plaintiff’s action against the state to confirm the validity of the patent from the state to such land does not constitute a denial of due process of law, for the reason that the alleged fraud claimed by defendant that the patent was issued for a grossly inadequate consideration was a defense which only the state could raise, and the confirmation decree did not purport to affect defendant’s claims of title. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

15. – – Adoption, judicial proceedings.

Where, in an adoption proceeding, the rights of the prospective adoptive child’s natural parents were not involved, the admission in evidence of the welfare department report, which contained hearsay material consisting of a statement by a welfare worker of conversation and correspondence with others, did not deny the prospective adoptive parents of due process of the law. Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852, 1958 Miss. LEXIS 381 (Miss. 1958).

The granting of authority to the court in adoption proceedings to make investigations limited to matters concerning whether the child is a proper subject for adoption, the petitioners are suitable parents for the child, the adoption is in the best interest of the child, and any other facts or circumstances which might be material to the proposed adoption, is not unreasonable, and such procedures do not constitute a denial of due process of law. Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852, 1958 Miss. LEXIS 381 (Miss. 1958).

Any proceeding to adopt a child without making presumptive father party to proceeding is invalid under due process provision of state and federal constitutions. Davis v. Davis, 37 So. 2d 735 (Miss. 1948).

16. – – Education, judicial proceedings.

Injunction permanently barring the Mississippi High School Activities Association, Inc. from placing the Hattiesberg High School on one year probation after the high school’s baseball team was required to forfeit a baseball game in the 1984 South AA Baseball Tournament was improperly granted in an action brought by the high school baseball team members and their parents, because the parties bringing the action were not third-party beneficiaries to the contract between the high school and the activities association, had no constitutional protected property interests in playing interscholastic sports, and had no standing to assert the due process rights of the high school. Mississippi High School Activities Asso. v. Farris, 501 So. 2d 393, 1987 Miss. LEXIS 2270 (Miss. 1987).

A high school sophomore who, along with a schoolmate, drank 2 or 3 sips of beer at her home before leaving for school was denied procedural due process when, despite there being no school board rule prohibiting the drinking of beer by students at home, the school board took away all her school credits for the semester as punishment for drinking the beer, and, again, where procedures for a de novo hearing before the school board were ignored. Warren County Bd. of Education v. Wilkinson, 500 So. 2d 455, 1986 Miss. LEXIS 2789 (Miss. 1986).

The right of parents to control the religious education of their children is protected by the due process clause. In re Guardianship of Faust, 239 Miss. 299, 123 So. 2d 218, 1960 Miss. LEXIS 286 (Miss. 1960).

17. – – Juvenile detention, judicial proceedings.

The jurisdictional provisions of the Youth Court Act in §43-21-151 do not violate the rights to due process and equal protection under the United States Constitution and the Mississippi Constitution. Miller v. State, 740 So. 2d 858, 1999 Miss. LEXIS 173 (Miss. 1999).

Minors were entitled to some form of due process prior to being placed in a detention center that placed extensive restrictions on its residents. In Interest of M.I., 519 So. 2d 433, 1988 Miss. LEXIS 38 (Miss. 1988).

Code 1942, § 7185-06 which permits a minor to be committed to a state institution as a delinquent child, upon the voluntary appearance of the minor, does not afford due process. Sharp v. State, 240 Miss. 629, 127 So. 2d 865, 1961 Miss. LEXIS 493 (Miss. 1961).

18. Crimes and criminal procedure – In general.

In a statutory rape case, defendant was denied due process under the federal and state constitutions due to acts of prosecutorial misconduct; inter alia, there were improper comments on facts not in evidence, about defendant’s character, and about the credibility of witnesses. White v. State, 228 So.3d 893, 2017 Miss. App. LEXIS 81 (Miss. Ct. App.), cert. denied, 229 So.3d 118, 2017 Miss. LEXIS 389 (Miss. 2017).

Defendant’s due process rights were not violated where the trial judge complied with the minimum requirements of due process, applicable in a revocation hearing, which included written notice of the claimed violations of probation, disclosure to the probationer of evidence against him, an opportunity to be heard and to present witnesses and evidence, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the factfinders as to the evidence relied on and the reasons for revoking probation. Lambert v. State, 904 So. 2d 1150, 2004 Miss. App. LEXIS 1000 (Miss. Ct. App. 2004).

Appellant was properly denied post-conviction relief, because he was not denied due process when he entered his guilty plea for murder and aggravated assault, as appellant had stated at the plea hearing that he understood that he was waiving the rights he would have during a trial, and there was dialogue between appellant and the court discussing self-defense. Jackson v. State, 872 So. 2d 708, 2004 Miss. App. LEXIS 402 (Miss. Ct. App. 2004).

Petition for post-conviction relief was properly denied because inmate’s due process rights were not violated when a special prosecutor was appointed in a murder case; the record showed that the prosecution of the inmate remained in the control of a district attorney, and the special prosecutor did not control crucial prosecutorial decisions. Hollingsworth v. State, 852 So. 2d 612, 2003 Miss. App. LEXIS 925 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 867 (Miss. Ct. App. 2003).

In a capital murder case, the State’s invocation of higher biblical law did not violate the inmate’s rights under the Eighth and Fourteenth Amendments, and under Miss. Const. art. 3, § 14 because the prosecutor was responding to the biblical argument made by the inmate’s attorney; also, the inmate’s ineffective assistance of counsel claim for counsels’ failure to object to the State’s biblical references had to fail. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

In a capital murder case, the unsworn statements of one juror showing that the juror was predisposed to voting for death without weighing mitigating factors was countered with an affidavit from the juror that the juror considered all of the evidence in the case and the unsworn statement of the second juror did not state that the juror was silent during voir dire, that she lied about her views on mitigating evidence, that the juror was unwilling to consider mitigating factors, or that she had a predisposition to the death penalty that she did not disclose during voir dire; thus, the inmate’s claim that the two jurors were predisposed to voting for the death penalty was unsupported and the inmate was not deprived of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments or Miss. Const. art. 3, §§ 14 and 26. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

The defendant’s due process rights were not violated when he was tried in absentia on two traffic citations. Wheeler v. Stewart, 798 So. 2d 386, 2001 Miss. LEXIS 42 (Miss. 2001).

Non-disclosure of the prosecutor’s plea agreement with a codefendant under circumstances where the terms of that agreement might reasonably touch upon the codefendant’s credibility or otherwise undermine confidence in the outcome of the trial may vitiate a criminal conviction and require a new trial. Such rule emanates from Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), later proceeding, 2 Md. App. 146, 233 A.2d 378 (1967), habeas corpus proceeding, 314 F. Supp. 799 (D. Md. 1970), aff’d, 443 F.2d 1307 (4th Cir. Md. 1971), not followed, United States v. Oxman, 740 F.2d 1298, 16 Fed. R. Evid. Serv. 505 (3d Cir. Pa. 1984), disagreed, United States v. Borello, 766 F.2d 46, 1985 U.S. App. LEXIS 19989 (2d Cir. N.Y. 1985); Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

The due process clauses of the federal and state constitutions required that a trial be conducted according to the established criminal procedures, with an adequate opportunity to be heard in defense. Butler v. State, 217 Miss. 40, 63 So. 2d 779, 1953 Miss. LEXIS 410 (Miss. 1953).

Where fundamental and constitutional rights are ignored, due process does not exist, and a fair trial in contemplation of law cannot be had. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

Guarantee of due process does not require that an accused have more than one full opportunity to be heard. Simmons v. State, 197 Miss. 326, 20 So. 2d 64, 21 So. 2d 822, 1945 Miss. LEXIS 323 (Miss. 1945).

19. – – Admissibility of evidence, crimes and criminal procedure.

In a case in which defendant appealed his sentence of death by lethal injection for violating Miss. Code Ann. §97-3-19(2)(f), he argued unsuccessfully that when the prosecutor asked the victim’s grandfather what he believed defendant’s punishment should be, that action violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and under Article 3, Sections 14, 25, and 28 of the Mississippi Constitution. It was highly unlikely that the grandfather’s statement, when read as a whole and taken in context with all the evidence before the sentencing judge, was the reason the judge imposed the death penalty; in fact, the trial judge’s sentencing order, in which he made findings of facts as to the various aggravating and mitigating factors, did not even mention the grandfather’s testimony. Wilson v. State, 21 So.3d 572, 2009 Miss. LEXIS 450 (Miss. 2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191, 2010 U.S. LEXIS 3966 (U.S. 2010).

Defendant was not denied his various constitutional rights where the court did not impermissibly consider the truthfulness of defendant’s confession in deciding it admissible at a suppression hearing because much of the inquiry into truthfulness occurred as a result of impeaching defendant and attempting to ascertain his credibility. Carter v. State, 956 So. 2d 951, 2006 Miss. App. LEXIS 622 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 302 (Miss. 2007).

In a capital murder case where defendant was indicted separately for each of four murders, the State’s pattern of continuously referring to the killing of the other three victims throughout the entire guilt phase denied defendant his fundamental right to a fair trial. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

Law enforcement officers’ use of defendant’s wife as confidential informant did not violate defendant’s right to due process, where neither wife nor officer with whom she spoke testified at trial. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Testimony dealing with victim’s murder, offered at resentencing in capital murder case to give second sentencing jury evidence of specific facts surrounding murder, not to prove murder was “especially atrocious, heinous or cruel,” was relevant, and its admission did not violate due process by relating to aggravating factor not mentioned in motion in limine; defendant entered sentencing hearing knowing that prosecution was seeking death penalty and that State would attempt to prove 2 aggravators and proof associated with each, and was apprised that jury would be informed of facts surrounding murder, but did not object. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

In a murder prosecution involving a victim who died of smoke inhalation after receiving a blow to the head, the admission of facts concerning the murder of another victim who died from shotgun wounds did not violate the defendant’s rights under the Eighth Amendment to the federal constitution or the due process clauses of the Mississippi Constitution and the federal constitution, where the revelation that a second person was missing was necessary in putting together the pieces of the case, evidence that the investigating officers discovered 2 bodies in the trunk of the victim’s car was unavoidable, and the testimony of the other victim’s mother was necessary in that she was the only witness who could testify to seeing the defendant near the victim’s house, she was able to discuss what the victim was doing on the day he was killed, and she was able to give some important time frames. Mackbee v. State, 575 So. 2d 16, 1990 Miss. LEXIS 831 (Miss. 1990).

At trial of sexual battery charge, the exclusion from evidence of letters written by prosecutrix to defendant, predicated on defense’s failure to disclose them in pretrial discovery, did not deprive defendant of his constitutional right to confront witnesses, to a fair trial, and to due process of law, even though the excluded letters, which otherwise were competent evidence, on their face reflected a relationship between defendant and his stepdaughter (prosecutrix) substantially at odds with prosecution’s theory that defendant had employed threats of violence or death to force his stepdaughter to engage in sexual acts with him, contained materials which impeached testimony of prosecutrix, and contradicted other more peripheral parts of prosecution’s case. Coates v. State, 495 So. 2d 464, 1986 Miss. LEXIS 2662 (Miss. 1986).

Accused was not denied due process by the trial court’s refusal to grant a preliminary evidentiary hearing on his motion to suppress identification where there was no showing of illegality in either the photographic identification of the defendant or in the several lineup identifications. Howard v. State, 319 So. 2d 219, 1975 Miss. LEXIS 1471 (Miss. 1975), cert. denied, 425 U.S. 954, 96 S. Ct. 1733, 48 L. Ed. 2d 199, 1976 U.S. LEXIS 1500 (U.S. 1976).

Questions asked by the state’s attorney on cross-examination of defense witnesses in an attempt to impeach their credibility, which were directed not to impeachment by way of false swearing but rather to discrediting the witnesses by repeated questions directed either to the immorality of such witnesses or to a possible financial gain to one witness occasioned by the death of the victim, were prejudicial, requiring prejudicial answers, and being repeatedly pressed on the jury, such questions deprived the defendant of due process, necessitating a reversal of the case. Wood v. State, 257 So. 2d 193, 1972 Miss. LEXIS 1446 (Miss. 1972).

20. – – Affidavits or indictments, crimes and criminal procedure.

Indictment for robbery was appropriate because defendant’s due process rights were not violated as the indictment was not required to have specified the items alleged to have been taken in the robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

There was no merit to appellant’s assertions that his due process rights were violated when an indictment was amended to reflect his habitual offender status because appellant admitted that he was informed of sentencing recommendations prior to his guilty plea, and appellant was aware early in the proceedings that he was to be charged as an habitual offender. Sowell v. State, 970 So. 2d 752, 2007 Miss. App. LEXIS 820 (Miss. Ct. App. 2007).

Defendant’s convictions for the simple assault of a peace officer were appropriate because the trial court did not err in allowing an amendment to his indictments on the morning of trial since the deleted phrase was merely a scrivener’s error and had nothing to do with the charge. The provision was not substantive to the underlying charge of assaulting the officers with punches, kicks, and threats. Graham v. State, 967 So. 2d 670, 2007 Miss. App. LEXIS 721 (Miss. Ct. App. 2007).

Where defendant was tried and convicted by a justice of the peace upon what purported to be an affidavit charging unlawful possession of intoxicating liquor, which affidavit was neither signed nor sworn to prior to trial, but after conviction and appeal taken therefrom such affidavit was signed and sworn to by the officer who had previously procured its issuance, defendant was tried without due process, and on appeal the circuit court could not, by allowing the belated affidavit to stand, at once retroactively bestow upon and borrow from the justice of the peace its jurisdiction. Bramlette v. State, 193 Miss. 24, 8 So. 2d 234, 1942 Miss. LEXIS 95 (Miss. 1942).

21. – – Assistance of counsel, crimes and criminal procedure.

In a child custody case, even though due process entitled a mother to counsel during criminal contempt proceedings, there was no violation of the right to counsel under U.S. Const. Amend. VI where the mother had failed to secure counsel, despite being given 6 months to do so. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

Defendant’s murder conviction was appropriate where her due process rights were not violated because the record was devoid of any evidence or proof as to precisely how additional time by way of a continuance would have assisted counsel. Lyle v. State, 908 So. 2d 189, 2005 Miss. App. LEXIS 520 (Miss. Ct. App. 2005).

While the disciplinary proceedings to which attorneys were subject were quasi-criminal in nature, there was no claim for ineffective assistance of counsel; a bar disciplinary proceeding was not sufficiently criminal in nature to trigger the protection of Strickland. Goeldner v. Miss. Bar, 891 So. 2d 130, 2004 Miss. LEXIS 758 (Miss. 2004).

Undivided loyalty of defense counsel is essential to due process. Smith v. State, 666 So. 2d 810, 1995 Miss. LEXIS 628 (Miss. 1995).

Claim of ineffective assistance of counsel is not procedurally viable where defendant waived issue when he declined to assert that point in his error coram nobis pleading; defendant had not shown sufficient cause to excuse this waiver where record reflected that trial counsel exited state court proceedings at conclusion of direct appeal and did not participate in presentation of error coram nobis pleading. Johnson v. State, 508 So. 2d 1126, 1987 Miss. LEXIS 2588 (Miss. 1987).

Defendant was denied fair trial where trial judge, after admonishing defense counsel on several occasions about continuing ineffectual and repetitive cross-examination of state’s witnesses called for defense and stating that defendant’s counsel was providing state with inadmissible evidence to detriment of his client, had threatened defense counsel with jail in the presence of jury. Waldrop v. State, 506 So. 2d 273, 1987 Miss. LEXIS 2484 (Miss. 1987).

Defendant was denied effective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh den 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 and on remand (CA11 Fla) 737 F.2d 894, habeas corpus proceeding (SD Fla) 587 F Supp 525, affd (CA11 Fla) 737 F.2d 922 and later proceeding (Fla) 453 So. 2d 389, because counsel’s efforts were both deficient and prejudicial where defense counsel did not object to testimony that U.S. Marshals were seeking defendant on parole violation and for escape from such parole, had objected to testimony concerning NCIC report only on ground that witness had testified incorrectly as to it, introduced NCIC into evidence himself, questioned witnesses concerning other alleged crimes of defendant, and made numerous frivolous objections, repeated refusals to follow rulings and instructions from bench, and requested information on how to introduce exhibit. Waldrop v. State, 506 So. 2d 273, 1987 Miss. LEXIS 2484 (Miss. 1987).

In prosecution for possession with intent to distribute marijuana, even though performance at trial by defendant’s counsel may have been deficient, in view of, inter alia, failure to object to damaging hearsay testimony and allowing defendant to testify in own behalf and further incriminate himself, there was nevertheless sufficient evidence to support conviction, and therefore allegedly deficient performance did not prejudice defense under Strickland v. Washington (1984) 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and Leatherwood v. State (Miss. 1985) 473 So. 2d 964. Alexander v. State, 503 So. 2d 235, 1987 Miss. LEXIS 2359 (Miss. 1987).

In a prosecution for possession with intent to deliver a controlled substance, in violation of §§41-29-115,41-29-117, and41-29-119, the record failed affirmatively to establish denial of defendants’ right to effective assistance of counsel; nevertheless, affirmance of the judgment of conviction would not preclude defendants from litigating the issue via proper post-conviction proceedings. Read v. State, 430 So. 2d 832, 1983 Miss. LEXIS 2525 (Miss. 1983).

The duty of the court to assign counsel to defend one who, charged with a capital crime, is unable to employ counsel was not intended as a mere formality, and means more than the mere appointment of counsel. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

It is the duty of the court to see that one accused of a capital crime is represented by counsel, and where it became known to the court prior to the beginning of the trial that counsel had not conferred and advised with the accused, the court should have taken appropriate steps to assure to the accused the advantage guarantied by him under Code 1942, § 2505, and failure to do so was failure to follow the mandatory provisions of the statutes and constituted a denial of due process. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

Under Code 1942, § 2505, the right of the accused to have counsel, and the requirement that such counsel shall have access to the accused, includes the right on the part of the accused to be represented by counsel who have conferred with him prior to trial so that his case may be properly prepared. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

The denial to the accused indicted for murder of representation by counsel who had conferred with him prior to the trial was a denial of a fundamental and not a technical right, and prejudice is presumed. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

Where it was shown at the date of the trial that although nine court appointed defense attorneys had been appointed in ample time therefor, they had failed to confer with the accused, who was indicted for murder, either because the accused was in jail outside the county or otherwise, the accused’s conviction, carrying with it the death penalty, was reversed. McKenzie v. State, 233 Miss. 216, 101 So. 2d 651, 1958 Miss. LEXIS 374 (Miss. 1958).

The trial court is not authorized or required to appoint counsel for a defendant accused of grand larceny, a noncapital felony. Fogle v. State, 231 Miss. 746, 97 So. 2d 645, 1957 Miss. LEXIS 561 (Miss. 1957).

In a prosecution for assault and battery with intent to kill, where defendant was put to trial within minutes after his counsel had withdrawn from the case, the defendant was unable to make an adequate and proper defense and he was therefore deprived of his constitutional rights. Eubanks v. State, 78 So. 2d 588 (Miss. 1955).

Failure to defense attorney to call as witnesses defendant’s two sisters in his behalf was not a denial of due process based upon the assumption that defendant was not properly represented by counsel, where there was no showing in the record as to what the testimony of his witnesses would have been and also where defendant was permitted as a witness to detail conversation between these two sisters, which conversation defendant said he overheard and which presumably constituted the testimony the sisters would have given as witnesses. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

Failure of defense attorney to object to introduction of evidence of shot gun used in committing homicide for which he was on trial and a photograph showing the scene of crime and surroundings, was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

Failure of the defense attorney to make a motion for continuance was not a denial of due process based upon the assumption that the defendant was not properly represented by counsel where a year has elapsed since the homicide and the case had been once continued, in absence of showing that counsel needed more time for preparation of defense. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

This section and Code 1942, § 2505, providing that where any person is in jail charged with capital crime, court, on being satisfied he is unable to employ counsel, shall choose counsel to defend him, do not authorize or require trial court to furnish, or offer to furnish, an attorney to represent a person in his trial on non-capital felony charge of burglary. Odom v. State, 205 Miss. 572, 37 So. 2d 300, 1948 Miss. LEXIS 221 (Miss. 1948), cert. denied, 336 U.S. 932, 69 S. Ct. 747, 93 L. Ed. 1092, 1949 U.S. LEXIS 2611 (U.S. 1949).

22. – – Change of venue, crimes and criminal procedure.

When coverage by local media, including television, radio and newspaper, of capital murder case, which in effect tries and finds defendant guilty not only of capital murder as charged, but also of capital murder in another, uncharged case, is so extensive that at proceedings on voir dire of prospective jurors some 101/2 months after defendant’s arrest, everyone of prospective jurors has heard of case, there is presumption that defendant cannot obtain fair and impartial jury and venue of case should be transferred to county substantially outside area of coverage of local media. Fisher v. State, 481 So. 2d 203, 1985 Miss. LEXIS 2281 (Miss. 1985).

23. – – Competency of defendant, crimes and criminal procedure.

Defendant’s due process rights were not violated by a court’s refusal to grant a mental evaluation because the record indicated that he was alert and understood the nature of the proceedings and the circumstances and consequences surrounding his actions. Coker v. State, 909 So. 2d 1239, 2005 Miss. App. LEXIS 112 (Miss. Ct. App. 2005).

Experts who rendered diagnosis of “no mental disorder” for low intelligence quotient for capital murder defendant, after being appointed to perform mental examination of him to determine his competency to stand trial, afforded defendant constitutionally adequate evaluation and furnished constitutionally adequate report. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

A post-conviction relief petitioner was not entitled to de novo review on appeal from a ruling that he was competent to be executed where the trial judge stated that he relied on §99-19-57(2)(b) and Ford v. Wainwright (1985, US) 91 L. Ed. 2d 335, 106 S. Ct. 2595 in determining the petitioner’s competency, and that the petitioner failed to prove by a preponderance of the evidence that he was not competent to be executed; the petitioner was afforded due process and the trial judge’s ruling could only be reversed if it were against the overwhelming weight of the evidence or an abuse of discretion. Billiot v. State, 655 So. 2d 1, 1995 Miss. LEXIS 88 (Miss. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 818, 133 L. Ed. 2d 762, 1996 U.S. LEXIS 787 (U.S. 1996).

Federal due process clause permits state to apply presumption that criminal defendant is competent to stand trial and require defendant to bear burden of proving otherwise, by preponderance of evidence; such allocation of burden does not offend principal of justice so rooted in traditions and conscience of people as to be ranked fundamental, and there was no reasons to disturb state Supreme Court’s conclusion that state’s presumption of competence was simply restatement of burden of proof. Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353, 1992 U.S. LEXIS 3696 (U.S. 1992).

In a habeas corpus proceeding by one charged with murder and confined to the Mississippi State Hospital after having been found incompetent to stand trial, the petitioner was not denied due process of law where the burden of proof was placed upon him to prove that he had recovered his sanity and was no longer likely to cause harm to himself or others and where the state presented expert testimony that the petitioner was a paranoid schizophrenic then in tenuous remission, and that he would pose a danger to himself or others if released from the hospital. Bethany v. Stubbs, 393 So. 2d 1351, 1981 Miss. LEXIS 1922 (Miss. 1981).

Where petitioner, who had been charged with several criminal offenses, had been confined at the state mental hospital for over nine years under a circuit court order on account of his mental incapacity to stand trial, and where the evidence showed that he was not making any progress and there was no substantial probability that he would attain the capacity to stand trial in the foreseeable future, the due process and equal protection clauses of the United States and Mississippi constitutions required that the state initiate proceedings at the next term of the circuit court to have petitioner committed to a state mental institution under the civil commitment statutes or that he be released from custody. Brown v. Jaquith, 318 So. 2d 856, 1975 Miss. LEXIS 1453 (Miss. 1975).

The right to a preliminary examination into the mental capacity of accused charged with murder, is a substantial, procedural right guaranteed to him by the due process clauses of the federal and state constitutions. Butler v. State, 217 Miss. 40, 63 So. 2d 779, 1953 Miss. LEXIS 410 (Miss. 1953).

Due process clause requires that no one shall be tried for the commission of a crime when he is mentally incapable of making a rational defense, that is, incapable of remembering and intelligently stating the facts on which his defense rests, irrespective of whether his mental condition is casual, temporary or permanent and regardless of the cause therefor. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

Due process clause requires that when it appears in trial court in criminal case that the defendant is probably mentally incapable of making a rational defense, the trial should not proceed until that question has been investigated, and it appears that he is sufficiently rational for the purposes of his defense. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

Murder trial of epileptic, who shortly before commission of homicide had escaped from insane hospital, at a time when he was so sleepy or drowsy, as result of tablets administered to him by sheriff pursuant to doctor’s order, as to be incapable of remembering and intelligently stating what occurred at the homicide, where it was not clear from the state’s evidence as to who was the aggressor, constituted violation of due process. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

24. – – Confessions, crimes and criminal procedure.

Because defendants entered voluntary and intelligent guilty pleas to armed robbery, they waived the right to challenge the voluntariness of their confessions to such under the U.S. Constitution and Miss. Const. Art. 3, §§ 14 and 26; therefore, their motions for post-conviction relief were denied. Holland v. State, 956 So. 2d 322, 2007 Miss. App. LEXIS 56 (Miss. Ct. App. 2007).

State presented ample evidence that the statement made by defendant at booking, and before he was read his Miranda rights, was voluntary and was not in response to express questioning or its functional equivalent. Defendant was simply present in the booking room when two officers were having a discussion about paperwork in order to book him, and defendant voluntarily responded to a question that was posed to one officer by the other officer, of how many charges of homicide were being filed against defendant; defendant independently volunteered the information that he had only shot one person, without compulsion or coercion. Hammons v. State, 918 So. 2d 62, 2005 Miss. LEXIS 515 (Miss. 2005).

Defendant’s motion to suppress his confession, contending that his rights under Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, Miss. Const. art. 3, §§ 14, 26 and 28, and Miss. Unif. Crim. R. Cir. Ct. Prac. 6.03 were violated was properly denied where a psychiatrist testified that defendant was not so impaired by mental disease or defect as to make him clearly incompetent to make a confession. Further, in defendant’s original direct appeal, he challenged the admission of his confession on five separate grounds and that adverse decision constituted the law of the case. Thorson v. State, 895 So. 2d 85, 2004 Miss. LEXIS 1350 (Miss. 2004), cert. denied, 546 U.S. 831, 126 S. Ct. 53, 163 L. Ed. 2d 83, 2005 U.S. LEXIS 6177 (U.S. 2005).

Trial court did not err when it failed to suppress defendant’s statement where the State made out a prima facie case of voluntariness by demonstrating in the suppression hearing that contact was initiated by defendant and multiple Miranda warnings were given; the arresting officer testified as to the voluntariness of the statements and defendant made no attempt to refute the officer’s testimony. Granger v. State, 853 So. 2d 830, 2003 Miss. App. LEXIS 658 (Miss. Ct. App. 2003).

Because (1) defendant was read defendant’s rights, (2) defendant acknowledged that defendant understood those rights, (3) defendant exhibited no erratic behavior calling into question the voluntariness to confess, and (4) no evidence of police coercion was found, the court rejected defendant’s claim that confessions were involuntary, and thus there was no violation of U.S. Const. amend. XIV. Martin v. State, 854 So. 2d 1004, 2003 Miss. LEXIS 335 (Miss. 2003).

A defendant’s statement to police was admissible and not the product of improper inducement, even though a police officer had told the defendant that “it’d be best for him to tell us to help himself,” where the defendant received Miranda warnings twice, he understood his constitutional rights, his statement was a denial rather than a confession, no specific promise was made to him by a law enforcement officer, and he maintained that he would have told the truth regardless of the officer’s comments to him. Chase v. State, 645 So. 2d 829, 1994 Miss. LEXIS 116 (Miss. 1994), cert. denied, 515 U.S. 1123, 115 S. Ct. 2279, 132 L. Ed. 2d 282, 1995 U.S. LEXIS 3828 (U.S. 1995).

The due process clause of the Fourteenth Amendment invalidates a state court conviction grounded in whole or in part upon a confession which is the product of other than reasoned and voluntary choice. Lee v. Mississippi, 332 U.S. 742, 68 S. Ct. 300, 92 L. Ed. 330, 1948 U.S. LEXIS 2619 (U.S. 1948).

A defendant in a state criminal proceeding does not lose the right to contend that his conviction was without due process because upon evidence including a coerced confession, by testifying at the trial that the confession was in fact never made. Lee v. Mississippi, 332 U.S. 742, 68 S. Ct. 300, 92 L. Ed. 330, 1948 U.S. LEXIS 2619 (U.S. 1948).

Use of a confession of guilt by the accused extorted by brutality and violence to obtain a conviction of crime is a denial of due process of law even though coercion was not established until after the confession had been admitted in evidence and counsel for the accused did not thereafter move for its exclusion. Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682, 1936 U.S. LEXIS 527 (U.S. 1936).

25. – – Contempt, crimes and criminal procedure.

In a child custody case, a mother was provided her procedural due process rights with regards to a finding of constructive criminal contempt because the charges were specific, the mother was provided with notice, and she was afforded the opportunity to be heard. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

26. – – Cross examination, crimes and criminal procedure.

In defendant’s criminal prosecution for murder and attempted arson, the State did not dilute defendant’s rights of confrontation and cross-examination under Miss. Const. Art. III, §§ 14, 26 by cross-examining and redirecting its witnesses. The State was permitted to redirect a witness about her statement where defense counsel placed the statement at issue by introducing it into evidence on cross-examination; the State was permitted to ask its witness leading questions about the statement. Brown v. State, 981 So. 2d 1007, 2007 Miss. App. LEXIS 806 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 222 (Miss. 2008).

Defendant’s due process rights were not violated by a prosecutor’s question regarding the invocation of the right to remain silent because defense counsel referred to the issue during direct examination; moreover, defendant failed to invoke the right during questioning after an arrest for sexual battery. McCoy v. State, 878 So. 2d 167, 2004 Miss. App. LEXIS 53 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 910 (Miss. 2004).

In a forgery prosecution, dismissal of the state’s witness after he had given the only evidence introduced in the case which identified the defendant as the person who cashed the check, and had indicated that the defendant had cashed bad checks on other occasions, without giving the defendant an opportunity to cross-examine the witness, was prejudicial error, since it denied the defendant his right to be confronted by witnesses against him, and deprived him of due process of law. Crapps v. State, 221 So. 2d 722, 1969 Miss. LEXIS 1505 (Miss. 1969).

27. – – Disclosure of evidence, crimes and criminal procedure.

Defense counsel was given every opportunity to listen to the tapes and view the transcripts, as all evidence was made available to defense counsel, and no evidence was intentionally withheld by the State; additionally, when applying the four-part test to determine if Brady violations occurred in the inmate’s case with respect to two witnesses, the trial court finding on that issue was supported by the record. Therefore, all exculpatory issues raised by the inmate regarding those two witnesses were without merit, and there was no violation of defendant’s due process rights. Manning v. State, 929 So. 2d 885, 2006 Miss. LEXIS 109 (Miss. 2006).

Where defendant claimed the prosecution suppressed a statement made by a witness to the police on the night of the murder, the court found no Brady violation. Defendant made no showing that the contents of such a statement would have been exculpatory, and defendant had the opportunity at trial to call the witness and examine him thoroughly. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (Miss. Ct. App. 2005).

A county was not denied due process when monetary sanctions were imposed against it in a criminal proceeding for discovery violations, notwithstanding that the board of supervisors did not receive notice on either the hearing on the motion for sanctions or on the hearing on the supplemental motion for sanctions; the county’s board of supervisors was notified of the hearing on the District Attorney’s motion to clarify and was represented by counsel at the hearing, the county made no motions in relation to being allowed to cross-examine the witnesses from the previous hearings, the county did not complain to the trial court regarding the notice that it received, and the county’s attorney was given an opportunity to argue the county’s position at the hearing. State v. Blenden, 748 So. 2d 77, 1999 Miss. LEXIS 219 (Miss. 1999).

Brady violation did not result from failure of defense counsel to learn that capital murder defendant had intelligence quotient (IQ) of 59 from experts at state hospital who were requested by defense to perform psychological examination of defendant, where defense counsel requested and received mental examination to determine defendant’s competency to stand trial, not to determine his IQ, and defense counsel, trial judge and jury were well aware that defendant had only third-grade education and was unable to read and write. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Impeachment evidence as well as exculpatory material comes within the scope of the Brady rule; failure to produce does not depend upon the good faith or bad faith of the prosecution, nor upon the specificity of the defense request. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

A defendant is entitled to know of any advance plea agreement between the state and a codefendant who is to testify against him, and a general discovery request is adequate to impose upon the prosecution the duty of disclosure. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

In a prosecution for sale of less than one ounce of marijuana, due process required making the substance available to the defendant for inspection and analysis, where the outcome of the case was substantially dependent upon the identification of the alleged substance as contraband. Love v. State, 441 So. 2d 1353, 1983 Miss. LEXIS 3051 (Miss. 1983).

Due process is not denied by refusing the request of defendant in a criminal case to require production of a written statement made by a state’s witness to the district attorney, not shown to be at variance with testimony at the trial. Mattox v. State, 243 Miss. 402, 139 So. 2d 653, 1962 Miss. LEXIS 357 (Miss. 1962).

28. – – Disqualification of judge, crimes and criminal procedure.

Where the judge presiding over appellant’s post-conviction motion served a prosecutorial role in the underlying criminal case, these functions were inherently contradictory – zealous advocate versus neutral adjudicator. Appellant’s right to due process was violated by the judge’s failure to recuse himself. Emanuel v. State, 2016 Tex. App. LEXIS 5030 (Tex. App. Tyler May 11, 2016).

A judge who had served as the prosecutor at the time of the defendant’s indictment should have disqualified himself; the very functions involved in the performance of the positions of judge and prosecutor are contradictory and no person can be considered to be impartial while that person is also acting as a partisan. Since the judge failed to disqualify himself, the defendant was deprived of due process, which includes a fair and impartial trial. Jenkins v. State, 570 So. 2d 1191, 1990 Miss. LEXIS 701 (Miss. 1990).

29. – – Jury trial, crimes and criminal procedure.

If exercising ten of 11 peremptory challenges against African-American members of a venire did not suffice as a prima facie case of purposeful discrimination when one-third of the panel was African-American, then it was difficult to imagine what would; therefore, in a robbery case, the state should have been ordered to provide race-neutral reasons for its use of peremptory challenges because a prima facie case was shown by defendant. Scott v. State, 981 So. 2d 979, 2007 Miss. App. LEXIS 419 (Miss. Ct. App. 2007), rev'd, 981 So. 2d 964, 2008 Miss. LEXIS 230 (Miss. 2008).

Defendant argued that the trial judge’s phrase that the jury would “hear both sides” directly opposed his right to remain silent. However, there was not plain error as the judge never stated that phrase meant that defendant had to testify, and the judge explicitly told the jury that the State had the burden of proof and that defendant was not required to testify; the trial judge was also merely trying to note the differences between a grand jury and a trial jury, namely that during grand jury proceedings the defendant’s side of the case is not heard, Robertson v. State, 921 So. 2d 348, 2005 Miss. App. LEXIS 175 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 165 (Miss. 2006).

Although defendant’s rights under the Equal Protection Clause were violated by the state’s striking of one male juror, a court of appeals erred by reversing armed robbery convictions under the plain error standard of review because there was no prejudice to the outcome of the trial since the jury was substantially gender-neutral. McGee v. State, 2006 Miss. LEXIS 469 (Miss. Aug. 31, 2006), op. withdrawn, sub. op., aff'd, 953 So. 2d 211, 2007 Miss. LEXIS 19 (Miss. 2007).

Although the trial court failed to instruct the jury of the elements of aggravated assault against police officers, it appeared beyond a reasonable doubt that the absence of the element instruction did not cause or contribute to the jury reaching the verdict that it reached. The evidence was overwhelming that defendant used his car in a manner that clearly indicated that he was attempting to cause serious bodily injury with a deadly weapon; consequently, that error was harmless and there was also no error in admitting evidence that defendant was being pursued after a robbery in a nearby state (for which defendant had not been convicted), where that evidence was necessary to tell a complete story to the jury. Conerly v. State, 879 So. 2d 1101, 2004 Miss. App. LEXIS 762 (Miss. Ct. App. 2004).

The defendant was not denied due process by the court’s denial of 2 challenges to jurors for cause where the jurors at issue were ultimately excused by peremptory challenge. Sewell v. State, 721 So. 2d 129, 1998 Miss. LEXIS 521 (Miss. 1998).

It is a matter of fundamental fairness and due process that the defendant is entitled to be apprised of communications between the court and the jury during deliberations. The defendant is also entitled to be represented by counsel during this very important procedure. Edlin v. State, 523 So. 2d 42, 1988 Miss. LEXIS 108 (Miss. 1988).

It was basically unfair for the trial court in a prosecution for murder to force defendant to offer his testimony and that of his witnesses to the jury after a fatiguing day in court and at a time when both counsel and jury were exhausted; moreover, due process of law necessitated a forum for defendant to present his case within reasonable hours and under reasonable circumstances. Parker v. State, 454 So. 2d 910, 1984 Miss. LEXIS 1806 (Miss. 1984).

Where evidence disclosed that jury after twenty-three hours of deliberations stood 11 to 1 for verdict of guilty of murder when bailiff stated to jury that judge told him he had until next convening of court to wait until they reached verdict and that as far as he was concerned they could stay there until they rotted and that shortly thereafter the jury returned a verdict of guilty, such conduct constituted a coercive inference on the jury prejudicial to the defendant, it being immaterial whether the judge actually made such statements. McCoy v. State, 207 Miss. 272, 42 So. 2d 195, 1949 Miss. LEXIS 336 (Miss. 1949).

30. – – Examination and qualification of jurors, crimes and criminal procedure.

In defendant’s murder case, the State’s proferred reasons for striking a juror were race neutral because the State’s reason for striking the juror was that the prosecutor once had a contentious civil matter involving members of the juror’s family. Booker v. State, 5 So.3d 411, 2008 Miss. App. LEXIS 77 (Miss. Ct. App.), aff'd, 5 So.3d 356, 2008 Miss. LEXIS 519 (Miss. 2008).

In defendant’s murder case, the State’s proferred reasons for striking a juror were race neutral because, although mistaken, the State believe that the juror had been convicted of four misdemeanors. The juror had actually only been charged with the crimes, not convicted. Booker v. State, 5 So.3d 411, 2008 Miss. App. LEXIS 77 (Miss. Ct. App.), aff'd, 5 So.3d 356, 2008 Miss. LEXIS 519 (Miss. 2008).

Manner in which the trial court conducted the polling of the jury did not deny defendant equal protection of the law where the circuit court adhered to the dictates of case law in determining that in the course of post-trial hearings, juror testimony was only admissible as to objective facts bearing on extraneous influences on the deliberation process. James v. State, 912 So. 2d 982, 2004 Miss. App. LEXIS 902 (Miss. Ct. App. 2004), rev'd, 912 So. 2d 940, 2005 Miss. LEXIS 539 (Miss. 2005).

Defendant argued that a missing juror was tantamount to a silent juror and because of the absent juror, the trial court could not eliminate all doubts as to the exposure of all jurors, and the fact that one juror was not present during the polling process alone was sufficient to establish a denial of due process; however, there was ample evidence that the circuit court went out of its way to assemble the jury and to conduct the polling in strict adherence to the appellate court’s instructions, so that the absence of one juror did not invalidate an otherwise sound procedure. James v. State, 912 So. 2d 982, 2004 Miss. App. LEXIS 902 (Miss. Ct. App. 2004), rev'd, 912 So. 2d 940, 2005 Miss. LEXIS 539 (Miss. 2005).

Where four African-Americans were struck from jury, the State’s arguments that it had prosecuted many defendants in area with their last names, that one was related to a prior defendant who made accusations against the judicial system, and one was unemployed and failed to complete questionnaire, the reasons were sufficiently race neutral to survive defendant’s Batson challenge. Clay v. State, 881 So. 2d 354, 2004 Miss. App. LEXIS 852 (Miss. Ct. App. 2004).

Defendant’s capital murder convictions and death sentence were proper where the killings occurred within a few hours and were all part of the common scheme to rob his ex-father-in-law and eliminate any witnesses; further, although the State struck substantially more women than men, the fact that the selected jury incorporated a proportionally larger percentage of women than were in the venire contradicted defendant’s claim of gender discrimination. Brawner v. State, 872 So. 2d 1, 2004 Miss. LEXIS 458 (Miss. 2004).

Defendant’s failure to make contemporaneous objection left unpreserved her claim that trial court violated her rights to due process by moving venireman to end of list of potential jurors. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A prosecutor’s request of jurors during individual voir dire to give the particular circumstances that each would require in order to return a death sentence were not improperly designed to extract a promise from the jurors that they would certainly vote in favor of the death penalty given a specific set of circumstances, and therefore did not violate the defendant’s constitutional rights. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

In a criminal prosecution, having a deaf person on a jury would constitute a denial of the accused’s rights to due process of law and to a trial before a fair and impartial jury. Weaver v. State, 497 So. 2d 1089, 1986 Miss. LEXIS 2660 (Miss. 1986).

Normally person engaged in law enforcement, or related by blood or marriage to one engaged in law enforcement, is not per se excluded from jury service in criminal case; however, in highly unusual fact situation in which 12 of 39 veniremen considered by court and not excused for cause are either police officers or related by blood or marriage to current or former police officers, and in which uniformed officer serves as foreman, defendant is denied trial by impartial jury. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

31. – – Fair trial, crimes and criminal procedure.

Defendant’s motion for change of venue was properly denied because there was no evidence in the record to indicate that the jurors were not fair and impartial; the trial judge took appropriate steps, through voir dire, jury instruction, and sequestration, to ensure that defendant’s right to a fair trial was preserved. Welde v. State, 3 So.3d 113, 2009 Miss. LEXIS 70 (Miss. 2009).

Defendant’s right to a fair and impartial jury was not violated by an alleged relationship between one juror and a witness for the State because none of the facts asserted by defendant with regard to the relations between the juror and the police officer, who was the witness, could be found in or supported by the record. Hill v. State, 4 So.3d 1063, 2009 Miss. App. LEXIS 14 (Miss. Ct. App. 2009).

Where no errors raised warranted granting post-conviction relief, defendant was not deprived of a fair trial due to the cumulative effect of the alleged errors. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

DNA testing of the knife used in an assault would have been of little assistance to defendant and therefore was not necessary to preserve defendant’s due process guarantees as both the victim and the eyewitness testified that defendant attacked the victim, and if the blood on the knife was found to be defendant’s blood, it would have added little support to his theory of self-defense; thus, defendant was not denied a fair trial nor was his request for expert assistance necessary to preserve his due process guarantees. Grubbs v. State, 956 So. 2d 932, 2006 Miss. App. LEXIS 379 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 313 (Miss. 2007).

Defendant’s right to a fair trial was not violated where defendant could not show that a discovery violation was committed by the State or that he was prejudiced in any way when there was nothing in the record showing knowledge on the part of the State of either of the two defense witnesses, and defendant made no showing how the police could have known of them and thus failed to disclose them; even though defendant claimed prejudice because police and/or the DA’s office failed to find certain witnesses who would have helped him in his defense, he put on no proof at trial of an alleged inadequate investigation. Morris v. State, 927 So. 2d 744, 2006 Miss. LEXIS 113 (Miss. 2006).

Defendant was properly denied post-conviction relief after he pled guilty to armed robbery because the trial court did not err in not disqualifying the assistant district attorney on the ground that he had served as defendant’s court-appointed attorney prior to serving as assistant district attorney. Confidential information was not used in the prosecution of the case, and defendant was not denied fair trial. Vandergriff v. State, 920 So. 2d 486, 2006 Miss. App. LEXIS 50 (Miss. Ct. App. 2006).

There was no evidence that the prosecution’s statements during its opening and closing arguments related to defendant’s presence in jail, prevented defendant from receiving a fair trial or warranted reversal under the plain error doctrine; therefore, defendant’s escape and assault on law enforcement officer convictions were upheld. Sims v. State, 919 So. 2d 264, 2005 Miss. App. LEXIS 433 (Miss. Ct. App. 2005).

Prosecutor did not overstep his bounds when he asked the jury not to let the defendant get away with the murder with which he was charged. Furthermore, the trial court instructed the jury that arguments and statements of counsel were not evidence and that if any argument, statement or remark had no basis in the evidence, then the jury was to disregard that argument, statement or remark; in any event, there was no prosecutorial misconduct and no grounds for reversal in light of said instructions. Davis v. State, 904 So. 2d 1212, 2004 Miss. App. LEXIS 1053 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 269 (Miss. 2005).

Before the appellate court was authorized to overturn a trial court’s denial of a request for expert assistance at public expense, it had to find an abuse of discretion so egregious as to deny due process rendering a trial fundamentally unfair; while it was true that defendant denied signing the waiver of rights form, the overwhelming evidence was that he did, and under the circumstances, defendant did not offer concrete reasons to justify the provision of expert consultation at public expense, such that the denial of defendant’s request for public assistance was not an abuse of discretion resulting in a denial of due process. Stewart v. State, 879 So. 2d 1089, 2004 Miss. App. LEXIS 763 (Miss. Ct. App. 2004).

In defendant’s capital murder case, defendant’s right to a fair trial was not violated by the trial court’s admission of testimony about the sexual assault of the victim, which defendant was not charged with, that occurred in the moments preceding her murder where the sexual molestation was integrally related to her murder such that one could not coherently present the facts of her demise without reference to it, and it described part of the res gestae of the crime charged and helped shed light on defendant’s motive. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

In a rape and simple assault case, admission of photographs of doors showing what were purported to be new locks already testified to by the victim did not affect the fundamental fairness of the trial to the extent that it would constitute reversible error. Williams v. State, 868 So. 2d 346, 2003 Miss. App. LEXIS 669 (Miss. Ct. App. 2003).

Cumulative effect of the State’s repeated instances of arguing facts not in evidence was to deny defendant the right to a fair trial. Flowers v. State, 842 So. 2d 531, 2003 Miss. LEXIS 149 (Miss. 2003).

In a prosecution for a single murder, the defendant was denied a fair trial where the prosecution engaged in a pattern of repeatedly and unnecessarily citing to the killing of three victims throughout the guilt phase proceedings. Flowers v. State, 2000 Miss. LEXIS 116 (Miss. May 11, 2000).

In a prosecution for murder, there was no error in the introduction into evidence of photographs of the murder victim where (1) there was nothing in the record to indicate that the admission of the photographs was simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury, (2) the photographs established that the victim was dead as a result of a criminal act, and the extent, position, and nature of the wounds the victim sustained, and (3) the photographs assisted the jury in visualizing the crime scene and corroborated the testimony of the investigators of the crime scene. Humphrey v. State, 759 So. 2d 368, 2000 Miss. LEXIS 101 (Miss. 2000).

The defendant was not denied a fair trial when the trial court refused to quash the venire on the basis that, of the entire venire of 47 jurors selected for service, 16 had been exposed to pretrial publicity, where those 16 jurors were removed from the venire. Baldwin v. State, 732 So. 2d 236, 1999 Miss. LEXIS 76 (Miss. 1999).

Defendant was not denied due process rights when he was brought into courtroom before jury in shackles, although defense counsel had been granted motion in limine prohibiting jury from viewing defendant in shackles, where, at worst, defendant was 10 feet inside courtroom for few minutes, there was no evidence this incident occurred intentionally, handcuffs were removed immediately after being noticed, and it did not appear incident deprived defendant of his right to fair trial. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Presence of 4 uniformed, armed state troopers in courtroom, as supplement to state court’s security force, does not violate armed robbery defendant’s constitutional right to fair trial. Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525, 1986 U.S. LEXIS 37 (U.S. 1986).

As applied to criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice and in order to declare a denial of it court must find that absence of that fairness fatally infected the trial. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

32. – – Freedom of speech or press, crimes and criminal procedure.

Circuit Court’s closure order in capital murder case was reasonable regulation of time, place, and manner of newspaper’s enjoyment of its First Amendment right; desire of press to inform public about important criminal proceedings can result in publication of matter that can deprive defendant of his right to fair trial; access of press to trial and pretrial processes may be qualified, and record amply supported Circuit Court’s finding that unrestricted access to trial process would result in substantial likelihood of defendant being denied fair trial; additionally, newspaper was not being denied access to pre-trial proceeding in perpetuity, because closure order expired once jury was sequestered and trial began; once that point was be reached, newspaper would be granted access to complete transcript of all closed, pre-trial proceedings. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

33. – – Guilty pleas, crimes and criminal procedure.

Nothing in the record showed that an inmate’s guilty plea was not entered knowingly and voluntarily, given that he was asked about his education, whether he had reviewed the plea petitions, and whether he understood them and that he was waiving certain rights, plus the inmate stated that he understood the charges, the consequences of pleading guilty, and that he was entering his plea voluntarily. Gaddy v. State, 21 So.3d 677, 2009 Miss. App. LEXIS 236 (Miss. Ct. App. 2009), cert. denied, 559 U.S. 1078, 130 S. Ct. 2115, 176 L. Ed. 2d 741, 2010 U.S. LEXIS 3422 (U.S. 2010).

Because appellant inmate did not raise an issue relating to an alleged due process violation based on the lack of a court reporter in a motion for post-conviction relief, the issue was procedurally barred; at any rate, there was a court reporter present at the inmate’s plea colloquy hearing. Shies v. State, 19 So.3d 770, 2009 Miss. App. LEXIS 143 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 504 (Miss. 2009).

Motion for post-conviction relief was properly denied because appellant inmate’s guilty plea to manslaughter under Miss. Unif. Cir. & County Ct. Prac. R. 8.04 was voluntary in nature where he testified that he was guilty, he was satisfied with his attorney, and that he understood the charges against him. Moreover, the entry of a voluntary plea waived speedy trial and confession-related issues. Jenkins v. State, 986 So. 2d 1031, 2008 Miss. App. LEXIS 35 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 369 (Miss. 2008).

Motion for post-conviction relief was denied in a case where defendant’s suspended sentence for statutory rape was revoked because he waived issues relating to a speedy trial and defects in an evidence sample due to a guilty plea, there was no evidence that an indictment was manufactured, and the revocation of the suspended sentence was permitted under Miss. Code Ann. §47-7-34 and Miss. Code Ann. §47-7-37 where defendant had already served a portion of a five-year sentence after the guilty plea was entered. Davis v. State, 954 So. 2d 530, 2007 Miss. App. LEXIS 259 (Miss. Ct. App. 2007).

Because defendant was not informed of the elements of the charge as to his guilty plea, the appellate court reversed and remanded for a hearing as to whether defendant had the elements explained to him prior to pleading guilty, and whether there was a factual basis for the plea. Jones v. State, 936 So. 2d 993, 2006 Miss. App. LEXIS 619 (Miss. Ct. App. 2006).

Record indicated that the trial court, at sentencing, had some evidence that defendant committed the offense, and whether such evidence was substantial was difficult to ascertain; there was some question whether the plea following the second colloquy was knowing, intelligent and voluntary, and the supreme court could see additional facts which raised doubt as to the voluntariness of her plea. Hannah v. State, 2006 Miss. LEXIS 365 (Miss. July 20, 2006), op. withdrawn, sub. op., 943 So. 2d 20, 2006 Miss. LEXIS 578 (Miss. 2006).

Post-conviction relief was properly denied in a case where defendant pled guilty to the sale of cocaine because his guilty plea was voluntary; defendant stated in his petition to enter a plea of guilty that he was entering the plea freely, voluntarily, and of his own accord, with full understanding of all matters set forth in the indictment. Defendant also acknowledged in the petition that he could receive a sentence of zero to 60 years if convicted for the sale of cocaine as an enhanced offender, and that by pleading guilty he could receive a sentence of zero to 30 years. Morris v. State, 922 So. 2d 860, 2006 Miss. App. LEXIS 146 (Miss. Ct. App. 2006).

Defendant entered a valid guilty plea where he waived his right to a trial and the trial court questioned defendant to determine that the entry of the guilty plea was knowingly and voluntarily given; defendant was competent and understood the plea agreement he had signed, and defendant understood that the trial court could impose a sentence anywhere from the minimum to the maximum. Greer v. State, 920 So. 2d 1039, 2005 Miss. App. LEXIS 856 (Miss. Ct. App. 2005), cert. dismissed, 933 So. 2d 303, 2006 Miss. LEXIS 307 (Miss. 2006).

Where a guilty plea was entered, an inmate’s request for post-conviction relief based on a denial of due process under the Fourteenth Amendment and Miss. Const. Art. 3, § 14 was denied because those issues were waived by the entry of the plea. Kelley v. State, 913 So. 2d 379, 2005 Miss. App. LEXIS 277 (Miss. Ct. App. 2005).

Plea agreement signed by defendant expressly addressed each of defendant’s constitutional rights and specifically addressed his right against self-incrimination. Defendant was asked in the plea agreement whether he understood that if he pleaded guilty, he would be waiving his constitutional right against self-incrimination and he answered, “yes”; although the better practice would have been for the trial judge to address defendant’s right against self-incrimination specifically, failure to do so was not reversible error, and defendant’s claim of a denial of due process was rejected. Moore v. State, 906 So. 2d 793, 2004 Miss. App. LEXIS 1152 (Miss. Ct. App. 2004).

In a possession of marijuana case, defendant was not denied his due process rights in the revocation of his post-release supervision as there was evidence that defendant had waived his rights to a hearing and that he had admitted to violating his probation. Hughes v. State, 901 So. 2d 1274, 2004 Miss. App. LEXIS 932 (Miss. Ct. App. 2004).

Valid guilty plea operated as a waiver of all non-jurisdictional rights or defects which were incident to trial; defendant was fully advised of his rights and the maximum sentences he faced if he chose to go to trial, and he was provided a detailed admonishment prior to accepting his guilty plea, such that defendant’s plea was made knowingly, intelligently, and voluntarily and he waived any rights regarding the allegedly coerced confession. Swindoll v. State, 859 So. 2d 1063, 2003 Miss. App. LEXIS 1071 (Miss. Ct. App. 2003).

The State’s plea bargain with a codefendant which was conditional upon his testimony at the defendant’s trial did not violate due process where there was no indication that the codefendant’s plea reduction was made conditional upon “false or specific testimony or a specific result,” and the defendant’s attorney cross-examined the codefendant extensively on the plea bargain; the practice of the State’s withholding its end of a plea bargain until a codefendant has testified is permissible and does not result in tainted and inadmissible testimony, but rather the existence of a plea bargain is to be considered by the trier of fact in determining the credibility of the codefendant’s testimony. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A defendant’s plea of guilty to 2 counts of forgery was not involuntarily entered, even though the trial court did not personally advise the defendant of the minimum and maximum penalties provided by law for the crimes of forgery, where the defendant’s attorney explained to him the maximum and minimum penalties for the charges, the defendant made no claim about the sentence he expected to receive or his belief as to the minimum sentence for the offense charged, and he did not claim that his alleged ignorance was the basis for his guilty plea. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

Although Rule 3.03(3)(B), Miss. Unif. Crim. R. Cir. Ct. Prac. only requires a judge to inquire and determine whether the defendant understands the maximum and minimum penalties when he or she wishes to plead guilty to the offense charged, trial judges should inform criminal defendants on the record of the minimum and maximum penalties for the charged offense in order to insure that no question ever be raised. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

Defendant was entitled to a hearing on his petition for leave to withdraw his guilty plea, on the asserted basis that he had received incorrect advice from counsel regarding the length of his sentence and the terms of his plea bargain. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Miss Const, Art 3, §§ 14 and 26. Sanders v. State, 440 So. 2d 278, 1983 Miss. LEXIS 2905 (Miss. 1983).

In a prosecution upon an indictment for first degree murder, there was no constitutional error in accepting a plea of guilty to the reduced charge of second degree murder given with a protestation of innocence, where it appeared that the defendant had intelligently concluded upon the advice of competent counsel that his interests required entry of a guilty plea and the record contained strong evidence of actual guilt, the fact that the defendant would not have pleaded guilty except to avoid a possible death penalty upon a jury conviction of first degree murder not necessarily demonstrating that the plea was not the product of a free and rational choice. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162, 1970 U.S. LEXIS 3 (U.S. 1970).

The 1968 decision of the United States Supreme Court in United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209, is not retroactive and was not applicable to a guilty plea entered in 1960 by a defendant charged with murder who, at the time of the decision of Jackson, was serving a life sentence in the penitentiary as a consequence. King v. Cook, 211 So. 2d 517, 1968 Miss. LEXIS 1267 (Miss. 1968).

A defendant who in 1960 entered a plea of guilty to an indictment for murder and received a life sentence which he was currently serving, following the decision in 1968 of the United States Supreme Court in United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209, filed a petition for a writ of habeas corpus alleging that the death penalty provision of Code 1942, § 2217 violated the Fifth and Sixth Amendments of the United States Constitution and § 14 of the Mississippi Constitution. In affirming the denial of the writ, the court held that the Jackson rule was inapplicable to the Mississippi general statute on murder for the reason that an accused entering a plea of guilty to a charge of murder under § 2217 is not assured of not receiving the death penalty; for the trial court cannot be required to accept a guilty plea in a capital case and pronounce a sentence of less than death, but may require a jury trial in which the imposition of the death sentence is within the sole province of the jury. King v. Cook, 211 So. 2d 517, 1968 Miss. LEXIS 1267 (Miss. 1968).

An ignorant man in his late twenties, who on day of arrest was indicted and sentenced on his plea of guilty, was held to have been denied due process where, without having the indictment explained to him, he was merely asked whether he understood it, whether he realized that he could be sent to the penitentiary on his plea of guilty, and whether he had a lawyer. Walters v. Ernest, 234 Miss. 315, 106 So. 2d 137, 1958 Miss. LEXIS 493 (Miss. 1958).

34. – – Identification of defendant, crimes and criminal procedure.

Trial court did not err in admitting the victim’s in-court identification of defendant because there was substantial credible evidence supporting the trial court’s findings that the in-court identification testimony was not impermissibly tainted by her pre-trial identification of him and the in-court identification was sufficiently reliable to comport with the requirements of due process since, inter alia: (1) the victim had ample opportunity to view defendant at the time of the attempted crime; (2) the victim’s attention was entirely directed at viewing defendant as he tried to hide behind a tree, located approximately three feet from her bedroom window in her backyard; and (3) the victim’s description of defendant in her conversation with the police dispatcher was sufficiently accurate. Brown v. State, 961 So. 2d 720, 2007 Miss. App. LEXIS 13 (Miss. Ct. App. 2007).

Post-conviction relief was denied in a capital murder case because the issue of whether defendant’s due process rights were violated by the use of a single set of dental molds in a murder case was procedurally barred since the issue was capable of being raised at trial or on direct appeal; even if it was not, identification of defendant by an eyewitness was distinguishable from an expert’s conclusion that defendant inflicted a particular injury based on scientific analysis. Howard v. State, 945 So. 2d 326, 2006 Miss. LEXIS 531 (Miss. 2006), cert. denied, 552 U.S. 829, 128 S. Ct. 49, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9278 (U.S. 2007).

Where witnesses at defendant’s trial identified him in court as the person who shot the victim, he failed to preserve his due process claim. Defendant did not have other persons with him at counsel’s table and he failed to request a pre-trial identification. Amos v. State, 911 So. 2d 644, 2005 Miss. App. LEXIS 652 (Miss. Ct. App. 2005).

Defendant’s conviction for the sale of cocaine within 1,500 feet of a church was proper where his due process rights were not violated by the pre-court identification procedure because there was little likelihood of misidentification and the officer’s degree of attention could have been considered to be at a high level because he did not view defendant in passing or from a great distance. Johnson v. State, 904 So. 2d 162, 2005 Miss. LEXIS 380 (Miss. 2005).

In a shoplifting case, the trial court did not err in admitting the identification testimony or in court identifications by two witnesses, as both witnesses gave an accurate description of defendant to those who assisted in the pursuit, they were certain that the man in a picture shown to them by the police was the same man who had been in the store, and they both testified that they identified defendant as the shoplifter based on their familiarity with him, rather than because his was the only photograph shown to them by the police. Johnson v. State, 882 So. 2d 786, 2004 Miss. App. LEXIS 920 (Miss. Ct. App. 2004).

Appellate court overruled defendant’s argument that an on-the-scene identification violated his due process rights and prevented him from receiving a fair trial. The victim had the opportunity to view defendant two or three times before the armed robbery occurred, the victim testified that he was indeed paying attention before, during, and after the robbery, the record indicated that the victim gave a detailed description of defendant that was largely accurate, and the victim was, as far as the record revealed, unequivocal in his ability to identify defendant on four separate occasions. Johnson v. State, 884 So. 2d 787, 2004 Miss. App. LEXIS 426 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1302 (Miss. 2004).

Chance encounter at the police station with the victim did not amount to a unnecessarily suggestive, single person show-up identification such as to violate due process; the victim’s description given to police was sufficiently accurate for them to identify defendant as a suspect based on nothing besides information obtained from her, and only the briefest of time transpired between the victim’s encounter in the parking lot and her subsequent unanticipated encounter with defendant at the police station, at which time she identified him of her own volition, apparently without any prompting or inquiry from any investigating officer. Garner v. State, 856 So. 2d 729, 2003 Miss. App. LEXIS 936 (Miss. Ct. App. 2003).

Where a defendant is to be identified at trial, and the defendant requests that he or she be seated among other people in the courtroom, the trial judge should exercise broad discretion in determining whether the request should be granted; the factors to be considered by the trial judge include (1) any danger presented to the public by the defendant, (2) the danger of misidentification, (3) the courtroom facilities available, and (4) any other pertinent factors known to the trial judge. Scott v. State, 602 So. 2d 830, 1992 Miss. LEXIS 347 (Miss. 1992).

A trial judge did not abuse his discretion in denying a defendant’s request to be seated among the general public when an in-court identification of the defendant was made where the trial judge thoroughly conducted voir dire examination of the witness before allowing his identification, and the defendant had previously been convicted for escape from an Arkansas prison. Scott v. State, 602 So. 2d 830, 1992 Miss. LEXIS 347 (Miss. 1992).

When a reasonably intelligent eyewitness has had a good opportunity to view the features of the perpetrator of a crime, the method the police use in having the witness identify the defendant recedes in importance in inverse ratio to the intelligence of the witness and opportunity to view the perpetrator. Thus, a rape defendant’s argument that the victim’s in-court identification resulted from an impermissibly suggestive photographic identification of the defendant, or from seeing him at the preliminary hearing, was without merit where the victim was a sensible child who had ample opportunity to view the rapist in the daylight, she gave a description of the defendant to a police officer, the accuracy of which was undisputed, and she identified the defendant’s photograph without hesitation no more than 11/2 hours after the crime. Powell v. State, 566 So. 2d 1228, 1990 Miss. LEXIS 461 (Miss. 1990).

A robbery victim’s in-court identification of the defendant was not tainted by her extensive observation of the defendant at a pre-trial parole revocation hearing where the victim testified at the suppression hearing concerning her ample opportunity to observe the defendant at the time of the robbery. Saucier v. State, 562 So. 2d 1238, 1990 Miss. LEXIS 244 (Miss. 1990), overruled in part, White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

A pretrial voice identification of a burglary defendant was impermissibly suggestive and, therefore, denied the defendant due process of law where the witness heard only one voice after he was shown his stolen items by the police and was told by the police that the man whose voice he was hearing had those items on his person. Estes v. State, 533 So. 2d 437, 1988 Miss. LEXIS 522 (Miss. 1988).

35. – – Insanity defense, crimes and criminal procedure.

Statutes providing insanity shall be no defense to murder indictment held violative of due process clause. Sinclair v. State, 161 Miss. 142, 132 So. 581, 1931 Miss. LEXIS 235 (Miss. 1931).

36. – – Instructions, crimes and criminal procedure.

In a carjacking case, even though an indictment and a jury instruction lacked the specific language “from another person’s immediate actual possession,” as set forth in Miss. Code Ann. §97-3-117(1), they were sufficient because the use of the name of the victim was the equivalent of such. Therefore, there was no due process violation, and defense counsel was not ineffective for submitting the instruction to the jury. Perryman v. State, 16 So.3d 41, 2009 Miss. App. LEXIS 145 (Miss. Ct. App.), cert. denied, 15 So.3d 426, 2009 Miss. LEXIS 404 (Miss. 2009).

Defendant’s convictions for the simple assault of a peace officer were appropriate because even though a jury instruction erroneously allowed the jury to find “physical menace” from words alone, it was a harmless error since it was uncontradicted that defendant attacked the officers with kicks and punches. Graham v. State, 967 So. 2d 670, 2007 Miss. App. LEXIS 721 (Miss. Ct. App. 2007).

The defendant in a murder prosecution was not denied due process when, after deliberating for two hours and 40 minutes, the jury sent a note to the court stating that they could reach a decision, the court instructed the jury to continue to deliberate, and the jury reached a verdict within 30 more minutes. Greenlee v. State, 725 So. 2d 816, 1998 Miss. LEXIS 300 (Miss. 1998).

In first-degree murder case, where trial court instructed on second-degree murder but did not require jury to agree on single theory of first-degree murder, defendant was not entitled as matter of due process to instruction on lesser included offense of robbery, where (a) jury had been instructed on lesser offense of second-degree murder as alternative to either finding guilt of first-degree murder or acquitting defendant, and (b) evidence would have supported second-degree murder conviction; due process concern with eliminating distortion of fact-finding process, which is created when jury is faced with all-or-nothing choice between murder and innocence, was not implicated. Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555, 1991 U.S. LEXIS 3631 (U.S. 1991).

Where, in a murder prosecution, three trials of the defendant were initiated within two years of the crime, one ending in a mistrial and two resulting in convictions, but both convictions were reversed for improper instructions or improper argument by the prosecutor, and the defendant alleged harassment by the state, the defendant would not be released and the prosecution terminated, the sequence of events in the proceedings not constituting a denial of the defendant’s rights to due process and a speedy trial. Smith v. State, 220 So. 2d 313, 1969 Miss. LEXIS 1453 (Miss. 1969).

37. – – Loss or destruction of evidence, crimes and criminal procedure.

Defendant was not deprived of due process where a tape recording of the drug deal had been lost before trial as defendant had admitted at trial that he had sold the drugs for someone else. Irby v. State, 893 So. 2d 1042, 2004 Miss. LEXIS 1403 (Miss. 2004).

In a criminal prosecution for armed robbery, a convenience store clerk identified defendant in a photographic array. Police failure to preserve a record of which pictures were in the array did not violate defendant’s due process rights; there was no evidence of bad faith and having the photographs would not have changed the outcome of the trial. Scott v. State, 877 So. 2d 549, 2004 Miss. App. LEXIS 653 (Miss. Ct. App. 2004).

No constitutional requirement existed that certain investigative procedures be performed at each scene of a suspicious death or that the investigation rise to a certain level of expertise; the sufficiency or insufficiency of a police investigation went to the weight of the evidence, and it was for a jury to decide what evidence to believe, such that the jury believed the State’s witnesses that the investigation was adequate. Cox v. State, 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Defendant was not denied constitutional right to fair trial where he alleged that small particle of skin from abrasion on his right index finger was material, exculpatory evidence that had been intentionally destroyed or lost by state, where there was nothing in testimony suggesting prosecutorial bad faith and where record contained little suggesting that skin particle would have played significant role at trial. Tolbert v. State, 511 So. 2d 1368 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672 (1988)’.

38. – – Post-conviction relief, crimes and criminal procedure.

Defendant was properly denied post-conviction relief after defendant’s probation was revoked; nowhere in the revocation hearing did defendant indicate that defendant did not have proper notice of the hearing or that defendant was not aware of the specific grounds for the revocation. Mathis v. State, 882 So. 2d 798, 2004 Miss. App. LEXIS 934 (Miss. Ct. App. 2004).

Neither due process nor equal protection rights are violated by requiring a prisoner to demonstrate some specific need before requiring the State or county to furnish the prisoner with free copies of trial records in post-conviction relief proceedings. The State is not required to subsidize a “fishing expedition” for grounds upon which to attack a conviction and sentence, merely because the prisoner is indigent. Fleming v. State, 553 So. 2d 505, 1989 Miss. LEXIS 476 (Miss. 1989), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Upon a prima facie showing of the existence of an advance plea agreement between the state and a codefendant who was state’s principal witness, whereby in exchange for testifying for the state the codefendant would receive a lenient sentence for armed robbery, a defendant, who had been convicted for the same robbery as accessory before the fact, may be entitled to post-conviction relief where the agreement had not been disclosed prior to his trial, although the defense had made a general discovery request for exculpatory material, and the existence of any such agreement had been denied by the codefendant while testifying at the defendant’s trial. Case would be remanded to circuit court for evidentiary hearing. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

39. – – Production of evidence and witnesses, crimes and criminal procedure.

In a statutory rape case, a trial court did not abuse its discretion by refusing to appoint an expert where defendant did not show that it would have aided his defense that semen had been planted in the victim’s vagina; defendant did not want an expert to testify at trial, but only requested assistance with cross-examination. Since he was able to conduct such without the aid of an expert, there was no due process violation. Ladd v. State, 969 So. 2d 141, 2007 Miss. App. LEXIS 762 (Miss. Ct. App. 2007).

Defendant’s death sentence after he was convicted of capital murder, rape, and four counts of sexual battery was appropriate because the circuit court judiciously provided defendant with state-funded investigative assistance in developing mitigation evidence; an order authorizing a criminal defense investigator (CDI) was granted, followed by an order granting additional funds for the CDI, and an order provided a psychological evaluation of defendant was also granted. Loden v. State, 971 So. 2d 548, 2007 Miss. LEXIS 558 (Miss. 2007), cert. denied, 555 U.S. 831, 129 S. Ct. 45, 172 L. Ed. 2d 51, 2008 U.S. LEXIS 6568 (U.S. 2008).

Amount of force required to overtake another person’s will to resist is directly proportional to the development of the other’s will; therefore, defendant was properly convicted of kidnapping a child where he used deceit to lure him into a vehicle because the state proved all of the elements of kidnapping, as required by due process. Potts v. State, 955 So. 2d 913, 2007 Miss. App. LEXIS 256 (Miss. Ct. App. 2007).

In a prosecution for capital murder committed during the commission of a rape, the trial court’s failure to provide funds to the defendant to retain an independent pathologist constituted reversible error where the opinion of the State’s pathologist that the victim was raped was the only evidence offered to prove this critical aspect of the State’s case. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

While the due process clause requires that an indigent defendant should at times be allowed an expert in the interest of fundamental fairness, a court is not required to appoint an expert upon demand. Some of the factors to be considered in determining if the defendant was denied a fair trial when the court did not appoint a requested expert include the degree of access the defendant had to the State’s experts and whether those experts were available for vigorous cross-examination. Another consideration is the lack of prejudice or incompetence on the part of the State’s experts. Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

In a capital murder prosecution involving an underlying felony of rape, the defendant’s due process rights were not violated by a delay in providing the defendant with a “sexual assault kit” which collected samples of the victim’s body fluids, even though the defendant did not receive the samples until almost one year after the State’s expert conducted his testing, which allegedly resulting in the “degradation” of the samples so that the defendant was unable to perform accurate tests, where the State fully complied with a court order to preserve half the samples, and any delay in receiving the samples was due to the defendant’s failure to “simply go and get the samples” from the State’s expert and the defendant’s mistaken belief that the expert had used up all the samples. Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

In absence of anything in the record that suggests that a defendant, charged with uttering a forgery, was prejudiced to the point of warranting a new trial by the failure to furnish him with a handwriting expert, the trial court did not err in refusing defendant’s request for the expert. Burt v. State, 493 So. 2d 1325, 1986 Miss. LEXIS 2490 (Miss. 1986).

Code 1942, § 1895 does not authorize a court to procure the attendance and testimony of witnesses for an accused at public expense, and an accused is not deprived of his constitutional right to compulsory process and to due process of law and equal protection of the laws by the refusal of a court to order an allowance for the payment of witnesses sought by the defendant to be subpoenaed from another state pursuant to such section. Diddlemeyer v. State, 234 So. 2d 292, 1970 Miss. LEXIS 1402 (Miss.), cert. denied, 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157, 1970 U.S. LEXIS 471 (U.S. 1970).

In a criminal prosecution, where the trial court was without authority to compel the attendance of witnesses requested by the defendant under any circumstances, so long as they were outside the state, the court’s denial of compulsory process for the attendance of three witnesses confined in penitentiaries in other states, and a fourth witness who resided out of the state, did not constitute a denial of due process or equal protection. Diddlemeyer v. State, 234 So. 2d 292, 1970 Miss. LEXIS 1402 (Miss.), cert. denied, 400 U.S. 917, 91 S. Ct. 177, 27 L. Ed. 2d 157, 1970 U.S. LEXIS 471 (U.S. 1970).

40. – – Sentence and punishment, crimes and criminal procedure.

Inmate’s due-process rights were violated when the jury was allowed to consider an invalid aggravator supported by evidence that was not otherwise admissible, and this error was compounded when the Supreme Court of Mississippi affirmed his sentence. Gillett v. State, 148 So.3d 260, 2014 Miss. LEXIS 287 (Miss. 2014).

Order for restitution which stated that a bank, which was the victim of defendant’s forgeries, was entitled to a judgment against defendant of execution against any of the defendant’s vehicles and/or personal property seized by law enforcement authorities did not violate defendant’s due process rights because defendant was aware that defendant’s personal property had been seized by the authorities and that defendant was going to have to pay restitution. Smith v. State, 130 So.3d 1187, 2014 Miss. App. LEXIS 45 (Miss. Ct. App. 2014).

Post-conviction relief was denied in a case where appellant inmate contended that he was denied due process when he received a 30-year sentence after pleading guilty to three counts of armed robbery. The inmate’s claim of being a first-time offender was completely devoid of merit as he admitted to previous convictions of possession of stolen property and burglary of a vehicle. Oliver v. State, 20 So.3d 16, 2009 Miss. App. LEXIS 202 (Miss. Ct. App.), cert. denied, 19 So.3d 82, 2009 Miss. LEXIS 522 (Miss. 2009).

Defendant’s post-conviction motion was properly dismissed because while defendant retained the ability to challenge the legality of the incarceration, despite entering into an agreed sentencing order whereby defendant agreed not to file an appeal or a motion for postconviction collateral relief, nothing in the record showed that defendant was illegally confined. Thompson v. State, 10 So.3d 525, 2009 Miss. App. LEXIS 48 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 424 (Miss. 2009).

Defendant’s due process rights were not violated in a drug case where he was not provided a separate recidivism hearing since he was not entitled to such, defendant acknowledged that he was indicted as a habitual offender and that the maximum punishment was life, and he also admitted that he was previously convicted of several felonies; defendant was unable to complain about the sentence since he was the beneficiary of a lenient sentence where he was given 17-years, despite being a habitual offender. Minchew v. State, 967 So. 2d 1244, 2007 Miss. App. LEXIS 260 (Miss. Ct. App. 2007).

Post-conviction relief was denied in a case where a portion of a suspended sentence was revoked under Miss. Code Ann. §47-7-37 because there was no due process violation since the evidence relied upon was listed, there was no double jeopardy violation since the original sentence was reinstated, and counsel was not required since the case was not complex. Pruitt v. State, 953 So. 2d 302, 2007 Miss. App. LEXIS 203 (Miss. Ct. App. 2007).

In a case involving the sale of cocaine, defendant’s rights under Miss. Const. Art. 3, §§ 14, 26, 28 and U.S. Const. Amends. 5, 6, 8, and 14 were not violated by the maximum 30-year sentence; the sentence imposed was within the statutory limitation and was within the sound discretion of the trial judge. Johnson v. State, 950 So. 2d 178, 2007 Miss. LEXIS 125 (Miss. 2007).

Defendant’s motion for post-conviction relief was properly denied because his sentence was not unconstitutionally vague and subject to more than one interpretation; he was sentenced to 18 years in prison with 12 years to serve, and 18 minus 12 left six years suspended, which is what the language in the sentencing order reflected. Jones v. State, 956 So. 2d 310, 2006 Miss. App. LEXIS 871 (Miss. Ct. App. 2006).

Defendant’s sentence of two days in jail for driving under the influence and failing to dim his headlights was upheld where there was no absolute constitutional bar to sentence enhancement at a second trial; an on-the-record explanation of an enhanced sentence was not warranted after a trial de novo in a superior court following an appeal from an inferior court. Carr v. State, 942 So. 2d 816, 2006 Miss. App. LEXIS 856 (Miss. Ct. App. 2006).

There was no equal protection violation when appellant received a 15-year sentence for statutory rape; appellant conceded that the statute applied equally to male and female defendants. McKenzie v. State, 946 So. 2d 392, 2006 Miss. App. LEXIS 388 (Miss. Ct. App. 2006).

In a sexual battery case, Miss. Code Ann. §97-3-101(3) authorizes the maximum sentence to be life in prison, but does not require the jury to arrive at that verdict. Because the trial court acted within the limits of the statute and the statute did not require a finding by the jury, the procedure used by the trial court did not violate his due process rights because it did not fail to take into consideration certain factors in determining a proper sentence. Hobgood v. State, 926 So. 2d 847, 2006 Miss. LEXIS 118 (Miss. 2006), cert. denied, 549 U.S. 1118, 127 S. Ct. 928, 166 L. Ed. 2d 714, 2007 U.S. LEXIS 143 (U.S. 2007).

Court found no merit to defendant’s claim that his due process rights were violated when the trial judge failed to honor his plea agreement because the trial judge clearly informed defendant that the recommended sentence was going to be limited to the current charge. The trial judge stated that he would not take any other charges into consideration when sentencing defendant. Black v. State, 919 So. 2d 1017, 2005 Miss. App. LEXIS 466 (Miss. Ct. App. 2005).

Defendant’s petition for post-conviction relief from his conviction of sexual battery was properly denied because defendant failed to establish by any convincing evidence that his attorney’s performance was deficient where prior to entering his guilty plea, defendant stated that his trial counsel had discussed the charge against him and all possible defenses and that he was satisfied with his attorney’s advice. Furthermore, defendant stated that he understood that his sentence could range between zero and thirty years and that he had entered a guilty plea because he had committed the crime charged against him. Myers v. State, 897 So. 2d 198, 2004 Miss. App. LEXIS 1185 (Miss. Ct. App. 2004).

Defendant’s due process rights were not violated by his removal from the intensive supervision program; when defendant was taken off house arrest and placed in the Mississippi Department of Corrections’ custody, he merely experienced a change in his housing assignment and classification, which did not require a hearing since it did not involve a liberty interest. Brown v. Miss. Dep't of Corr., 906 So. 2d 833, 2004 Miss. App. LEXIS 1157 (Miss. Ct. App. 2004).

While not without the authority to decide the merits of an inmate’s application pursuant to Miss. Code Ann. §99-39-27(7), the court found that due process required that it allow the inmate’s motion to be filed in the trial court for consideration of mental retardation evidence as a defense to the death penalty as cruel and unusual punishment under U.S. Const. amend. VIII. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

Contention that it was error for harsher sentence to be imposed after defendant invoked his constitutional right to fair trial would be considered on appeal, though it was not preserved at trial, as right to due process was implicated. Pierce v. Delchamps, Inc., 667 So. 2d 26, 1996 Miss. LEXIS 27 (Miss. 1996).

There was no violation of due process in imposing 25-year sentence for armed robbery following trial, after prior conviction and 15-year sentence pursuant to plea bargain had been set aside; there was no evidence of vindictiveness, particularly since there were two different sentencers and the second sentencer had benefit of hearing evidence at trial, and was the same judge who had granted motion to vacate first sentence on ground that defendant was not properly advised of his rights. Pierce v. Delchamps, Inc., 667 So. 2d 26, 1996 Miss. LEXIS 27 (Miss. 1996).

It is not violation of due process to have appellate court perform reweighing or harmless error analysis when invalid aggravating circumstance is found to exist in capital case. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Submission to a capital sentencing jury of the mitigating factor that the defendant had no “significant” history of criminal activity was not improper, in spite of the defendant’s argument that the factor was unconstitutionally applied in his particular case because it implied that he had at least some criminal history when in fact he had none, where the mitigating factor was taken verbatim from the list provided by the legislature to be considered in imposing sentence, and the defendant had the opportunity during closing argument to dispel any notion the jury might have had that he had a history of criminal activity. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Although criminal defendants in Mississippi generally have no right to be sentenced by the jury, where a specific statute provides such a guarantee, such as §99-19-101, which requires that the jury perform the weighing of aggravating and mitigating factors, Article 3, §§ 14 and 26 of the Mississippi Constitution operate together to elevate the statutory right to one of constitutional significance which the Supreme Court of Mississippi cannot abridge by applying harmless error analysis, whether by disregarding entirely the invalid circumstance or by applying a limiting construction; thus, a murder defendant’s motion for leave to file a post-conviction petition would be granted where the defendant sought relief based on the jury’s reliance on an invalid aggravating circumstance, and the case would be remanded to the circuit court for new sentencing hearings. Wilcher v. State, 635 So. 2d 789, 1993 Miss. LEXIS 447 (Miss. 1993).

A defendant was properly sentenced as a habitual offender pursuant to §99-19-81, even though the habitual offender language of the indictment failed to state the dates of his prior convictions, where all of the information contained in the indictment, and specifically the cause number, afforded the defendant access to the date of judgment. Therefore, the information pertaining to the dates of the judgments was substantially set forth in the indictment and sufficient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment to comply with due process. Benson v. State, 551 So. 2d 188, 1989 Miss. LEXIS 361 (Miss. 1989).

Submission of aggravating circumstances of heinous, atrocious, and cruel crime did not deny defendant his rights under Constitution of Mississippi and United States; although defendant contended there was no evidence supporting this aggravating circumstance and that evidence was uncontroverted that victim was shot dead as soon as he opened door to his house, state argued that there was no evidence that victim was dead or even unconscious when later shots were fired. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Revocation of a suspended sentence without notice and an opportunity to be heard at public hearing to defendant violates the requirements of due process, even though the statute providing for such revocation does not specifically provide for notice and public hearing. Mason v. Cochran, 209 Miss. 163, 46 So. 2d 106, 1950 Miss. LEXIS 375 (Miss. 1950).

Revocation of suspended sentence in hospital where circuit judge was confined as patient, upon ex parte application of sheriff and county attorney, which was concurred in by the district attorney, at a time when defendant was confined in jail on pending charges for violations of law, and without notice or hearing to defendant, constituted violation of the requirements of due process. Mason v. Cochran, 209 Miss. 163, 46 So. 2d 106, 1950 Miss. LEXIS 375 (Miss. 1950).

Where prior to the date of execution set for the defendant, the method thereof was changed from hanging to electrocution by means of an electric chair but no chair had as yet been obtained when such date arrived, resentencing and fixing another date for the execution was not a taking of defendant’s life without due process of law. Childress v. State, 1 So. 2d 494 (Miss. 1941).

41. – – Time for review, crimes and criminal procedure.

The time limitations provisions of the Mississippi Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.) do not work an unconstitutional suspension of the writ of habeas corpus. Cole v. State, 608 So. 2d 1313, 1992 Miss. LEXIS 557 (Miss. 1992).

42. – – Vague or indefinite statutes, crimes and criminal procedure.

Tailgating statute is not impermissibly vague and does not fail to give a driver notice of the prohibited conduct; the statute, coupled with the rules of the road, is sufficiently definite such that an ordinary person can understand the prohibited conduct and that law enforcement can avoid arbitrary enforcement. The statute is sufficiently specific to pass constitutional scrutiny. Nolan v. State, 182 So.3d 484, 2016 Miss. App. LEXIS 21 (Miss. Ct. App. 2016).

Business owner did not meet his burden of showing that he was being deprived of his property without due process of law because the criminal statutes, Miss. Code Ann. §97-33-7 and Miss. Code Ann. §97-33-17, were not too broad in their description of what caused a video game to be an illegal slot machine, and a person with ordinary intelligence would have little difficulty determining what exactly was prohibited; Mississippi did not extend a property right to illegal gambling machines, such that there were no due process rights violations, and Miss. Code Ann. §97-33-7(2) was not unconstitutionally vague. Trainer v. State, 930 So. 2d 373, 2006 Miss. LEXIS 178 (Miss. 2006).

Kidnapping statute, Miss. Code Ann. §97-3-53, is not unconstitutionally vague because the use of other descriptive words in §97-3-53, such as e.g. and inveigle, leave defendants well informed of the crimes of which they are accused. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

Miss. Code Ann. §97-3-95 was held not to be unconstitutionally vague in a sexual battery case where the inmate admitted that he knew that raping an 11-year-old girl was wrong, but he did it anyway. Calhoun v. State, 849 So. 2d 892, 2003 Miss. LEXIS 233 (Miss. 2003).

Criminal statute prohibiting disorderly conduct by failing or refusing to promptly reply with or obey request or order of law enforcement officer was not unconstitutionally vague under due process clause as applied to arcade owner who carried baseball bat toward small crowd in his parking lot; regardless of whether owner was cursing or threatening officer, presence of baseball bat greatly enhanced possibility of grievous injury to police officers or others if disturbance escalated, case concerned officer’s right to control conduct greatly increasing potential for sudden violence, and statute provided adequate notice that failure to obey order under the circumstances could result in arrest. Smith v. City of Picayune, 701 So. 2d 1101, 1997 Miss. LEXIS 379 (Miss. 1997).

Section 97-3-7(2) is not unconstitutionally vague on the ground that it does not define the term “serious bodily harm,” particularly when applied in a case involving brutal injuries; in more ambiguous cases, prosecutors and trial courts should refer to the definition of “serious bodily injury” set out in § 210.0 of the Model Penal Code. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

The sexual battery statute, §97-3-95, is not void for vagueness and in violation of due process of law since, the statute as it applies to a male adult who allegedly stuck his finger into the vagina of a 10-year-old girl, gives prior notice to a person of ordinary intelligence that the defendant’s alleged conduct is forbidden, and there are no indications that the statute encourages erratic arrest and convictions. Roberson v. State, 501 So. 2d 398, 1987 Miss. LEXIS 2267 (Miss. 1987).

43. Prisons and prisoners–In general.

A prison inmate does not have a protected liberty interest in a particular job assignment under the due process clause. However, a liberty interest may be created by state law or prison regulation. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

44. – – Administrative segregation, prisons and prisoners.

Inmates who are placed in administrative segregation have no constitutional basis for demanding the same privileges as those inmates in the general prison population since prison officials have the discretion to determine whether and when to provide prisoners with privileges such as showers, exercise, visitation, and access to personal property. Thus, the 5 hours a week of exercise plus nightly showers of 15 minutes which were provided to an inmate confined to administrative segregation did not constitute cruel and unusual punishment. Additionally, the procedures provided when the inmate was placed in administrative segregation satisfied the due process clause where the inmate received notice of detention and a hearing on the matter. Terrell v. State, 573 So. 2d 730, 1990 Miss. LEXIS 784 (Miss. 1990).

45. – – Earned time, prisons and prisoners.

The unexplained failure to award an inmate meritorious earned time did not amount to a violation of his federal and state constitutional rights to due process and equal protection, since an inmate’s earning of “time” is a matter of grace or privilege under §47-5-142, which provides that “meritorious earned time may be awarded.” Since correctional officials are vested with discretionary power to award time under certain conditions, inmates are not entitled to it. Ross v. State, 584 So. 2d 777, 1991 Miss. LEXIS 483 (Miss. 1991).

46. – – Parole, prisons and prisoners.

Inmate’s due-process rights were not violated when his parole was revoked because upon receiving a certified copy of the order of the court of appeals, the parole board had authority pursuant to Miss. Code Ann. 47-7-27 [Repealed] to immediately revoke the inmate’s parole on his earlier conviction; a preliminary revocation hearing and a parole-revocation hearing were held, and the parole board then sent the inmate a letter, which provided notice of its decision to revoke his parole and afforded an opportunity to present evidence on his behalf. Walker v. State, 35 So.3d 555, 2010 Miss. App. LEXIS 167 (Miss. Ct. App. 2010).

A trial court properly denied a parolee’s petition for writ of habeas corpus, in which the parolee claimed that he was not afforded a timely parole revocation hearing, where the admitted evidence showed that the parolee had violated the conditions of his parole by 2 Tennessee felony convictions and failure to waive extradition back to Mississippi; these were reasonable grounds for revoking his parole, and therefore all procedural due process guarantees were met. Godsey v. Houston, 584 So. 2d 389, 1991 Miss. LEXIS 438 (Miss. 1991).

The Mississippi parole statutes do not create a constitutionally protected liberty interest in the form of an expectation of parole because of the use of the permissive “may” in §47-7-3, which provides that a prisoner “may be released on parole as hereinafter provided,” read in the context of the other provisions of that section and, as well, those of §47-7-17. Thus, Mississippi law did not vest a convicted and incarcerated felon with a liberty interest in parole entitling him to due process of law incident to his application for parole. Harden v. State, 547 So. 2d 1150, 1989 Miss. LEXIS 370 (Miss. 1989).

47. – – Probation, prisons and prisoners.

Denial of the inmate’s motion for postconviction relief was appropriate because his due process rights were not violated by the failure to appoint counsel for him at his probation revocation hearing. The issues relevant to his probation revocation were not complex nor were they difficult to present; thus, the inmate had no right to counsel. Staten v. State, 967 So. 2d 678, 2007 Miss. App. LEXIS 729 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 294 (Miss. 2008).

Denial of the inmate’s petition for post-conviction relief was proper where his due process rights were not violated by the reference to a probation violation with which he was not charged because the revocation of his probation was clearly based upon a finding that he had failed to avoid persons or places of disreputable or harmful character by remaining in a place where marijuana was being used. Hubbard v. State, 919 So. 2d 1022, 2005 Miss. App. LEXIS 462 (Miss. Ct. App. 2005).

A defendant’s probation revocation violated her due process rights where there was no record of the defendant receiving notice of a probation violation, and the disparity between the court’s statements when probation was revoked, the written and signed order of revocation, and the court’s after-the-fact explanation at the defendant’s post-conviction relief hearing demonstrated a lack of actual notice. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999). But see Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant was deprived of due process by a trial court’s failure to conduct an inquiry as to the reason she was delinquent in paying her probation fines before revoking her probation because of her failure to pay those fines. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999). But see Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant who allegedly violated the terms of his probation by committing the crime of sale of cocaine was denied due process of law by having his probation revoked immediately after a mistrial was declared in his trial on the charge of sale of cocaine where the revocation was based upon the trial which had just resulted in a mistrial, the defendant never agreed that the court could summarily revoke his probation in the event the trial resulted in anything other than a conviction, and he was not given advance notice of a revocation hearing. Grayson v. State, 648 So. 2d 1129, 1994 Miss. LEXIS 630 (Miss. 1994).

Neither the due process clause nor Mississippi law gives rise to a protected liberty interest in the form of an expectation of release on probation. There is no liberty interest in release pursuant to the provisions of §47-7-47, which creates a procedure whereby the courts may place a prisoner on probation, since the language of the statute is permissive rather than mandatory in nature; the statute vests absolute discretion in both the Department of Corrections and the court in determining whether probation should be recommended and granted, and this discretion affords a prisoner no constitutionally recognized liberty interest. Smith v. State, 580 So. 2d 1221, 1991 Miss. LEXIS 326 (Miss. 1991).

A probationer was not denied due process due to the lack of a preliminary hearing in his probation revocation proceedings, even though a hearing expressly designated as “preliminary” was not held, where 3 hearings were held in the circuit courts and the first and second hearings were, for all practical purposes, equivalent to a preliminary hearing. Additionally, the probationer was not wrongfully denied the opportunity to call his own witnesses where he made a last-minute request during the third hearing to call witnesses who allegedly would have testified in his behalf, the court concluded that the witnesses would have offered no new evidence, the probationer had already admitted that he committed probation violations, and at most the witnesses would have testified in regard to the probationer’s character and would have had no effect on the outcome of the case. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

The probation-revocation procedure delineated in §47-7-37 is constitutional; the statute includes the minimum due process requirements applicable to parole and probation revocation procedures. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, 1972 U.S. LEXIS 19 (U.S. 1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, 1973 U.S. LEXIS 70 (U.S. 1973).

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

48. – – Transfer, prisons and prisoners.

A prisoner did not have a protected liberty interest in being transferred from a county correctional facility to a state prison, absent a state law or regulation or prison policy or procedure conditioning such a transfer on proof of misbehavior or some other event. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

49. – – Visitation rights, prisons and prisoners.

Although prisoners do not enjoy an absolute constitutional right to unrestricted visitation, and their visitation privileges are subject to the discretion of prison officials, restrictions on an inmate’s visitation privileges should not be imposed arbitrarily or discriminatorily. Puckett v. Stuckey, 633 So. 2d 978, 1993 Miss. LEXIS 566 (Miss. 1993).

50. Penalties and forfeitures–In general.

Read literally, §§49-7-251 to49-7-257 violate the Mississippi Constitution’s due process guarantee, and therefore the statutes would be construed to include an exception for “innocent owners.” Threlkeld v. State, 586 So. 2d 756, 1991 Miss. LEXIS 533 (Miss. 1991).

51. – – Attorney fees, penalties and forfeitures.

A statute imposing a penalty of an attorney’s fee on certain class and not on all for failure to pay employee, violates this section. Sorenson v. Webb, 111 Miss. 87, 71 So. 273, 1916 Miss. LEXIS 245 (Miss. 1916).

As to the right to impose penalties and counsel fees on depositories for failure to pay on demand see Fidelity & Deposit Co. v. Wilkinson County, 109 Miss. 879, 69 So. 865, 1915 Miss. LEXIS 237 (Miss. 1915).

52. – – Prisons and prisoners, penalties and forfeitures.

The actions of corrections officials in designating a prisoner eligible for earned time, due to an administrative or clerical error, and then in withdrawing that designation, did not amount to a forfeiture of earned time without due process since no earned time was accumulated by the prisoner. Doctor v. State, 522 So. 2d 229, 1988 Miss. LEXIS 81 (Miss. 1988).

53. – – Liquor offenses, penalties and forfeitures.

In an action to condemn and sell an automobile which had been seized while in possession of a third person, who had allegedly used it for transporting intoxicating liquor, the owner, in interposing his claim, was entitled to give a forthcoming bond and gain possession thereof pending a hearing, both in the circuit court and on appeal, as to his ownership thereof, and as to whether he had knowingly permitted it to be used for unlawful purposes in violation of Code 1942, §§ 2618 and 2619. Stringer v. State, 229 Miss. 412, 91 So. 2d 263, 1956 Miss. LEXIS 620 (Miss. 1956).

It is constitutional to give the chancery courts jurisdiction of suits for penalties for violations of liquor laws. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

54. Racial discrimination.

Peremptory strike was not race-neutral because, in requesting the strike, counsel argued that he wished to strike the juror because she was Baptist; however, counsel did not strike another juror who was also Baptist and white, and the juror was not questioned about her religion and whether that would impair her ability to be an impartial juror. Wilson v. Strickland, 953 So. 2d 306, 2007 Miss. App. LEXIS 193 (Miss. Ct. App. 2007).

The statutes of the state authorizing consolidated schools do not discriminate between the white and colored races. Barrett v. Cedar Hill Consol. School Dist., 123 Miss. 370, 85 So. 125, 1920 Miss. LEXIS 33 (Miss. 1920).

It was held that the statute requiring railroads to provide equal separate Pullman accommodations for the white and colored races is not violative of this section. Southern R. Co. v. Norton, 112 Miss. 302, 73 So. 1, 1916 Miss. LEXIS 108 (Miss. 1916).

The board of supervisors by intentionally leaving names of qualified negroes off the jury list violates this section. Farrow v. State, 91 Miss. 509, 45 So. 619, 1907 Miss. LEXIS 130 (Miss. 1907).

55. Public improvements and highways.

Individual citizen has no due process right under Mississippi Constitution to reasonable advance notice and opportunity to be heard before legislative action is taken establishing policy to undertake substantial public improvements and to finance same via bond issue. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

Subsequent to bond validation decree becoming final, taxpayer may not be heard to complain of legality or constitutionality of facet of bond issue or project to be funded which could have been presented and fully heard at bond validation hearing; however, that which could not have been presented (because of limited scope of hearing or whatever) may not be precluded from subsequent litigation consistent with due process. In re Validation of $7,800,000 Combined Utility System Revenue Bond, etc., 465 So. 2d 1003, 1985 Miss. LEXIS 1939 (Miss. 1985).

Chapter 176, Laws of 1914, providing for elections to issue highway bonds does not deprive of property without due process of law. Prather v. Googe, 108 Miss. 670, 67 So. 156, 1914 Miss. LEXIS 259 (Miss. 1914).

56. Use of property–In general.

The discretion granted the Secretary of State by §29-15-7 was not unconstitutionally vague in violation of the Fourteenth Amendment to the United States Constitution and Article 3, § 14 of the Mississippi Constitution, since the procedure established by the tidelands legislation had a reasonable relation to the governmental purpose of establishing the boundary of public trust lands; the mere fact that the discretion granted the Secretary of State could be interpreted in different lights did not automatically render it vague. Secretary of State v. Wiesenberg, 633 So. 2d 983, 1994 Miss. LEXIS 36 (Miss. 1994).

A statute authorizing public utilities to enter on lands to make a preliminary examination and survey with a view to condemnation, subject to liability for any damage done, does not violate this provision. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

57. – – Zoning laws, use of property.

City was not entitled to enforce a zoning ordinance that regulated nonconforming uses to prohibit a mobile-home park operator from replacing individual mobile-homes that were removed from the mobile-home park because the city’s interpretation of the ordinance, after more than thirty years of not enforcing the ordinance in that manner, was both arbitrary and capricious and violated the mobile-home park operator’s constitutional right to enjoy its property. Cleveland MHC, LLC v. City of Richland, 163 So.3d 284, 2015 Miss. LEXIS 230 (Miss. 2015).

City acted arbitrarily and capriciously in adopting a resolution prohibiting the replacement of mobile homes on vacated pads in a mobile home park where Richland, Miss., Ordinance § 405.1 was reasonably interpreted to construe the nonconforming use to relate to the mobile-home park as a whole, and the resolution expanding the ordinance deprived the owner of his constitutional right to enjoy his property. Cleveland MHC, LLC v. City of Richland, 163 So.3d 302, 2014 Miss. App. LEXIS 442 (Miss. Ct. App. 2014), aff'd, 163 So.3d 284, 2015 Miss. LEXIS 230 (Miss. 2015).

Where the building inspector granted the ice company permits for an ice dispenser, the city’s action in applying for a variance and overturning the decision to grant the permit were arbitrary and capricious and violated the company’s due process rights under the United States Constitution and the Mississippi Constitution. No notice of the hearing was given to the company. City of Petal v. Dixie Peanut Co., 994 So. 2d 835, 2008 Miss. App. LEXIS 318 (Miss. Ct. App.), cert. dismissed, 998 So. 2d 1010, 2008 Miss. LEXIS 683 (Miss. 2008).

Absent proof of a significant impact on the values of the neighbors’ property, no property interest existed for which some process was due as a matter of constitutional right; the property owner’s first request to the city to split her lot was made in 1999, and notice was given on April 6, 2001 that the matter would be considered on April 9, so constitutional process was not due, as no property deprivation existed and there was no defect in notice. Hinds v. City of Ocean Springs, 883 So. 2d 111, 2004 Miss. App. LEXIS 278 (Miss. Ct. App.), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1251 (Miss. 2004).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

The due process rights, if any, guaranteed to objectors of a rezoning proposal is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

Although a zoning ordinance enacted under ch 198, Laws 1944, amending ch 448, Laws 1938, a rural zoning statute, may be valid in its general aspects, when applied to a particular area or piece of property and a particular set of facts, the ordinance is so arbitrary and unreasonable as to result in confiscation, the ordinance is void as applied to the particular property or area. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

A rural zoning ordinance enacted under Laws 1944, chapter 198, amending Laws 1938, chapter 448, to be valid, must comply with constitutional requirements that private property shall not be taken or damaged for public use without compensation, and that no person shall be deprived of property except by due process of law. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Rural zoning ordinance, enacted under Laws 1944, ch 198, amending Laws 1938, ch 448, acquires no facility to avoid constitutional guaranties (that private property shall not be taken or damaged for public use without compensation and that no person shall be deprived of property except by due process of law) by the mere device of giving it a name, or by coupling it with a commendatory preamble. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

The effect of an ordinance forbidding the erection of any house, etc., between the road or street of a municipality and the sea without obtaining a special permit therefor, and declaring any such house, etc., a nuisance, was to deprive owners of property of its lawful use without just compensation being first made. Quintini v. Mayor, etc. of Bay St. Louis, 64 Miss. 483, 1 So. 625, 1886 Miss. LEXIS 96 (Miss. 1886).

58. Eminent domain.

Because contestants never raised their takings argument before the Mississippi Oil and Gas Board or on appeal, the claim was procedurally barred. Adams v. Miss. State Oil & Gas Bd., 139 So.3d 58, 2014 Miss. LEXIS 121 (Miss. 2014).

Regardless of the adequacy of the post-deprivation remedies in §65-1-301, the statute must provide a predeprivation hearing before taking property; because it does not provide for such a pre-deprivation hearing, §§65-1-301 to65-1-347 are unconstitutional as violative of procedural due process. Lemon v. Mississippi Transp. Comm'n, 735 So. 2d 1013, 1999 Miss. LEXIS 117 (Miss. 1999).

Owner/developer of a rundown apartment complex did not suffer violations of its right to due process because the owner/developer did not have property interests via contractual rights in the Moderate Rehabilitation Contract or the Annual Contribution Contract at issue and therefore could not have been deprived of the contracts without due process. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

59. Negligence and contributory negligence.

The legislature is not prohibited from changing the common law rule with reference to contributory negligence being a defense. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

The legislature may by statute provide that injuries caused by the running of trains is prima facie evidence of negligence on part of railroad company. New Orleans, M. & C. R. Co. v. Cole, 101 Miss. 173, 57 So. 556, 1911 Miss. LEXIS 117 (Miss. 1911).

The contributory negligence statute is not violative of this section. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

60. Animal legislation.

Neither livestock sanitary board nor its officers have right to seize cattle without process of law and charge owner with costs of dipping them for eradication of ticks; officers of livestock sanitary board seizing cattle without legal process are liable to owner for damages. D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434, 1929 Miss. LEXIS 9 (Miss. 1929).

Chapter 38, Ex Session Laws of 1917, requiring counties to pay owners of cattle injured in dipping is not violative of this section. Hancock County v. Shaw, 120 Miss. 48, 81 So. 647, 1919 Miss. LEXIS 60 (Miss. 1919).

It is lawful for the state board of health to provide for examination of cows used in dairy business. Hawkins v. Hoye, 108 Miss. 282, 66 So. 741, 1914 Miss. LEXIS 201 (Miss. 1914).

The statute regulating and restricting the capture of creatures ferae naturae not reduced to actual possession is not violative of this section. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

A municipal ordinance authorizing the killing of unmuzzled dogs running at large is not invalid. Illinois C. R. Co. v. Peterson, 68 Miss. 454, 10 So. 43, 1891 Miss. LEXIS 33 (Miss. 1891).

61. Political parties and elections.

Primary claim advanced by plaintiff in state court action, that voting malapportionment which allegedly violated one-person, one-vote guaranteed by Article 3, Section 14, was sufficient to stand as independent ground for challenging election procedure, and federal issue under Voting Rights Act could collaterally attach to such claim. Republican Party of Adams County v. Adams County Election Com., 775 F. Supp. 978, 1991 U.S. Dist. LEXIS 15410 (S.D. Miss. 1991).

Section 23-15-217 is not unconstitutionally void for vagueness because ordinary person of common intelligence upon reading it could understand what was allowed and what was not; statute provides two disqualifications upon county election commissioner offering himself as candidate for office: the first, no person holding office of elections commissioner may be candidate for election to any other office at any election held or to be held during 4 year term for which that person has been elected to serve as elections commissioner; second, commissioner may not be candidate for any other office in any election with respect to which he has taken any action in his official capacity; exception to both disqualifications is that incumbent election commissioner may be candidate for re-election. Meeks v. Tallahatchie County, 513 So. 2d 563, 1987 Miss. LEXIS 2856 (Miss. 1987).

Access to candidacy is not fundamental right and §23-15-217 places no special burdens on minority parties or independent candidates; state has legitimate interest in preventing election commissioner from seeking another office while he has control of electors that shall vote for all candidates, where there would be potential for mischief were elections commissioner allowed effective control over registration and poll books, for 2 years, for example, then allowed to resign and seek another elective office. Meeks v. Tallahatchie County, 513 So. 2d 563, 1987 Miss. LEXIS 2856 (Miss. 1987).

When individual files proper qualifying papers and pays requisite filing fee to become candidate for public office, neither state nor, in case of primary election, political party, may arbitrarily or capriciously deprive him or her of place on ballot; process afforded to individual by party executive committee exceeded his minimum due, where individual informally learned that committee was meeting, had acted negatively upon his candidacy, went uninvited to meeting, and there appeared before committee and fully presented his views and case. Meeks v. Tallahatchie County, 513 So. 2d 563, 1987 Miss. LEXIS 2856 (Miss. 1987).

A statute which provides for the creation of a second judicial district in a certain county and the holding of an election to determine whether such district shall be created is not unconstitutional as denying equal protection of the laws. Carter v. Harrison County Election Com., 183 So. 2d 630, 1966 Miss. LEXIS 1430 (Miss. 1966).

62. Regulation of business and professions – In general.

In a case involving a certificate of need, procedural due process rights were not violated where all of the steps under Miss. Code Ann. §41-7-197 were followed; no parties to the proceeding, no health care facilities in the same health care service area, and no others originally noticed, appeared to request a new hearing. The issue of import to satisfy the requirements of the Mississippi State Health Plan was not the specific route, but rather the number of procedures, and notice of a new route was given. Miss. State Dep't of Health v. Baptist Mem. Hospital-DeSoto, Inc., 984 So. 2d 967, 2008 Miss. LEXIS 323 (Miss. 2008).

Massage therapist’s due process rights were not violated when a Mississippi State Board of Massage Therapy member investigated the client’s complaint against the therapist and later participated in the administrative hearing because the Board member’s dual capacity as investigator and hearing participant was procedurally correct. Dawson v. Miss. State Bd. of Massage Therapy, 949 So. 2d 829, 2006 Miss. App. LEXIS 761 (Miss. Ct. App. 2006).

Trial court erred in overturning a board’s denial of an application for a funeral service license where the applicant stated that he planned to do his training in Mississippi, but actually worked in Tennessee; at the board’s hearing, the applicant was allowed to present witnesses and other forms of evidence, and his due process concerns were adequately addressed. Miss. State Bd. of Funeral Servs. v. Coleman, 944 So. 2d 92, 2006 Miss. App. LEXIS 386 (Miss. Ct. App.), cert. denied, 946 So. 2d 368, 2006 Miss. LEXIS 730 (Miss. 2006).

One is entitled to due process of law before an administrative agency. McFadden v. Mississippi State Bd. of Med. Licensure, 735 So. 2d 145, 1999 Miss. LEXIS 64 (Miss. 1999).

Due process does not require allocation of permissible production on the basis of the productivity of each well instead of upon a surface acreage basis. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 1964 Miss. LEXIS 402 (Miss. 1964).

Code 1942, § 1108, known as “Fair Trade Act,” permitting producer, manufacturer or owner to contract with retailer as to resale price of his own product which is in fair and open competition with commodities of same general class produced by others, does not violate this section. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (Miss. 1950).

State cannot, under guise of protecting public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Ordinance and statute prohibiting auction sales by jewelers between certain hours held not to violate due-process clause and equality clause. Matheny v. Simmons, 165 Miss. 429, 139 So. 172, 1932 Miss. LEXIS 261 (Miss. 1932).

Statute forbidding unlawful combinations of cotton ginners does not contravene due process clause. State ex rel. Jordon v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, 1930 Miss. LEXIS 151 (Miss. 1930).

The “bulk sales statute” is constitutional. Wm. R. Moore Dry Goods Co. v. Rowe & Carithers, 97 Miss. 775, 53 So. 626, 1910 Miss. LEXIS 312 (Miss. 1910).; Phillipps & Buttorff Mfg. Co. v. Perkins & Elmore, 53 So. 628 (Miss. 1910).

Pool rooms legalized by statute cannot be prohibited by municipal ordinance. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 1908 Miss. LEXIS 177 (Miss. 1908).

63. – – Accountants and tax preparers, regulation of business and professions.

Code 1942, §§ 8905-8911, establishing a class of certified public accountants, providing for their regulation and prohibiting others from holding themselves out as such, is a valid exercise of the police power of the State. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

Code 1942, § 8912, prohibiting any person other than a certified public accountant or an attorney from receiving compensation for making or preparing any tax return is not a reasonable exercise of the police power, is not in promotion of the public welfare, and is without reasonable relation to the advancement of public convenience, health, morals, or safety, is arbitrarily discriminatory, and is an infringement of the right to pursue an occupation gainfully, and hence is in violation of the Constitution. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

64. – – Attorneys, regulation of business and professions.

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that it does not provide for an appeal to any other state court. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that members of the complaint tribunal are also members of the Mississippi Bar. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

The Rules of Discipline for the Mississippi State Bar do not violate due process or § 33 of the Mississippi Constitution; attorney disciplinary proceedings are an integral part of the functioning of the judicial branch and thus are not subject to the “legislative power” vested in § 33. Hall v. The Mississippi Bar, 631 So. 2d 120, 1993 Miss. LEXIS 568 (Miss. 1993).

An attorney who was suspended from the practice of law following a felony conviction in the federal courts and who was disbarred 3 years later at the conclusion of his appeal of the federal conviction, was not denied equal protection or due process rights on the ground that he would be required to wait 3 years longer before reinstatement than an attorney who chose not to appeal a conviction. All disbarred attorneys are treated equally; the disparity of time arises when an attorney resists the disbarment pending his or her appellate procedures. Had the attorney accepted the disbarment following his conviction, no delay in entering a final order of disbarment would have resulted, and therefore there was no unequal treatment or denial of due process. Additionally, the attorney’s disbarment was not retroactive to the date of his suspension since the attorney’s initiative delayed the entry of the final order; retroactivity cannot be applied when the attorney seeks a stay of the final order. Mississippi State Bar v. Nixon, 562 So. 2d 1288, 1990 Miss. LEXIS 264 (Miss. 1990).

The fact that an attorney for a school’s board of trustees participates in a dismissal hearing, advises the board and generally runs the hearing affords the employee no grounds for complaint unless it can be shown that in fact the attorney corrupted or otherwise destroyed the impartiality of the process. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

Since Bar disciplinary proceedings are inherently adversarial proceedings of a quasi-criminal nature, in the course of those proceedings there is secured to the accused attorney the right to due process of law, and within such secured due process right is the right of the accused attorney to have access to compulsory process for obtaining attendance of witnesses at critical stages of the proceedings. Attorney K. v. Mississippi State Bar Asso., 491 So. 2d 220, 1986 Miss. LEXIS 2522 (Miss. 1986).

65. – – Banks and banking, regulation of business and professions.

State bank guaranty statute authorizing issuance of noninterest-bearing certificates held not invalid as depriving holder of certificate of deposit, to interest-bearing guaranty certificate under earlier statute, of vested right. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

66. – – Education, regulation of business and professions.

Only those persons who, out of personal animosity, or personal or financial stake in the decision, are shown of such bias that the presumption of honesty and integrity of school board members is overcome, shall be disqualified from service on a hearing board based on due process considerations. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

Section 9, Chapter 10, Laws of 1953 (§ 6271-09) prescribing additional qualification for county superintendents of public education, but also providing that no person who was serving as county superintendent of education at the effective date of the Act should be ineligible for the office because of lack of the qualifications prescribed therein, was not invalid as containing an unreasonable discrimination in favor of incumbents, and did not violate the equal protection and due process clauses of the Federal and State Constitutions. State ex rel. Patterson v. Land, 231 Miss. 529, 95 So. 2d 764, 1957 Miss. LEXIS 537 (Miss.), aff'd, 231 Miss. 529, 96 So. 2d 828, 1957 Miss. LEXIS 538 (Miss. 1957).

67. – – Insurance, regulation of business and professions.

If it be said that the legislature by reenacting a statute making persons carrying on certain activities for an insurance company agents of the company adopted the construction put on it by previous judicial decisions, which had the effect to raise an insurance company’s special agent with limited powers, into its general agent when acting for it in the particulars specified herein, with authority to then make material changes in a policy of insurance issued by the company, in violation of its provisions, such statute, so construed, would violate due process of law. Saucier v. Life & Casualty Ins. Co., 189 Miss. 693, 198 So. 625, 1940 Miss. LEXIS 155 (Miss. 1940).

Statute imposing personal liability on policy on agent of insurance company unauthorized to do business in State held not unconstitutional as abridging privilege of contract and depriving agent of defense of agency. Wilkinson v. Goza, 165 Miss. 38, 145 So. 91, 1932 Miss. LEXIS 300 (Miss. 1932).

68. – – Physicians, regulation of business and professions.

Physician, who was licensed and occasionally practiced medicine in Mississippi, and a medical clinic, which had an office and rented timeshare office space in Mississippi, subjected themselves to suit under the clear terms of the long-arm statute, Miss. Code Ann. §13-3-57, by doing business in the state. Considering the interests of Mississippi in providing a forum for legal redress for residents who were negligently injured by out-of-state physicians, the court found that the circuit court’s assumption of personal jurisdiction over the physician comported with traditional notions of fair play and substantial justice and did not offend U.S. Const. Amend. XIV. Estate of Jones v. Phillips, 992 So. 2d 1131, 2008 Miss. LEXIS 420 (Miss. 2008).

Pediatrician was afforded due process upon the suspension of her hospital privileges in the area of neonatal resuscitation. The pediatrician was given the opportunity to appear at the review hearing, to submit evidence, and to review documents supporting the hospital’s decision. Warnick v. Natchez Cmty. Hosp., Inc., 904 So. 2d 1019, 2004 Miss. LEXIS 1409 (Miss. 2004).

The waiver of opening statements in a proceeding before the Board of Medical Licensure did not violate due process. McFadden v. Mississippi State Bd. of Med. Licensure, 735 So. 2d 145, 1999 Miss. LEXIS 64 (Miss. 1999).

The fact that the Board of Medical Licensure performed both investigative and adjudicative functions did not violate due process. McFadden v. Mississippi State Bd. of Med. Licensure, 735 So. 2d 145, 1999 Miss. LEXIS 64 (Miss. 1999).

Physician was collaterally estopped from relitigating issue of whether hospital’s termination of his surgical privileges was state action for purposes of due process clause of State Constitution, where federal court had previously determined that hospital’s actions were not state action for purpose of Federal Constitution. Wong v. Stripling, 700 So. 2d 296, 1997 Miss. LEXIS 385 (Miss. 1997).

Physician’s procedural due process rights were satisfied in proceedings that resulted in denial of reinstatement of medical license when physician was provided with opportunity to be heard, to present witnesses, to cross-examine adverse witnesses, to be represented by attorney of physician’s choice, and physician was given ample notice of hearings and detailed explanation of why license was not reinstated. Montalvo v. Mississippi State Bd. of Medical Licensure, 671 So. 2d 53, 1996 Miss. LEXIS 65 (Miss. 1996).

A physician may be required to be examined and secure license before he practices medicine. State v. Tucker, 102 Miss. 517, 59 So. 826, 1912 Miss. LEXIS 82 (Miss. 1912).

69. – – Utilities, regulation of business and professions.

Public Service Commission deprived ratepayers of procedural due process by failing to require notice to the ratepayers; no notice of the original filing was provided to the ratepayers. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

By approving increased rates based on “mirror construction work in progress” recovery, the Public Service Commission deprived the ratepayers of their money, and the increased rates were not being used to pay for funds during construction as provided by the Base Load Act but were confiscated through governmental decree by rate increase imposed by a privately owned corporation that could not spend it; the taking of private funds is a transfer of property and results in the deprivation of property. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

A bill that created a sewer district and an ordinance that established a gray-water collection system and that regulated the use of public and private sewers and drains were not unconstitutional. Croke v. Lowndes County Bd. of Supervisors, 733 So. 2d 837, 1999 Miss. LEXIS 100 (Miss. 1999).

No impairment of contract rights results from denying to a utility having an exclusive municipal franchise and street lighting contract the right to extend its service into annexed territory which is part of the certificated area of another utility. Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

No impairment of contract obligation is involved in holding that a utility may continue to serve a portion of its certificated area after its annexation to a city, as against a utility having an exclusive franchise. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

70. – – Price control, regulation of business and professions.

The provision for the fixing of prices by the Milk Control Act of 1960, being a valid exercise of the police power, does not violate this provision. Mississippi Milk Com. v. Vance, 240 Miss. 814, 129 So. 2d 642, 1961 Miss. LEXIS 515 (Miss. 1961).

71. – – Taxis, regulation of business and professions.

Permit to operate taxicabs in city constitutes a permit to do that which would otherwise be unlawful; and, being a mere personal privilege, it is revocable for due cause and is not a vested, or property right in a constitutional sense. Allen v. Kosciusko, 207 Miss. 343, 42 So. 2d 388, 1949 Miss. LEXIS 346 (Miss. 1949).

Operator of fleet of taxicabs could not challenge constitutionality of ordinance revoking all taxicab permits and establishing new permit requirements, passed subsequent to revocation of his license without notice and hearing, where he did not apply for a permit under the new ordinance and, therefore, was unaffected thereby. Allen v. Kosciusko, 207 Miss. 343, 42 So. 2d 388, 1949 Miss. LEXIS 346 (Miss. 1949).

72. – – Railroads, regulation of business and professions.

An ordinance requiring railroads to light their crossings is not confiscatory and unreasonable where it applies only to main lines, and not to spurs, side tracks and switch tracks. Illinois C. R. Co. v. Williams, 242 Miss. 586, 135 So. 2d 831, 1961 Miss. LEXIS 595 (Miss. 1961).

State may lawfully require interstate railroad to abolish at own expense highway grade crossings, without regard to financial ability, if reasonably required by public safety. New Orleans & N.E.R. Co. v. State Hwy. Comm'n, 164 Miss. 343, 144 So. 558, 1932 Miss. LEXIS 251 (Miss. 1932).

Chapter 88 Laws of 1908 authorizing railroad commission to require spur tracks violates this section. McInnis v. New Orleans & N. E. R. Co., 109 Miss. 482, 68 So. 481, 1915 Miss. LEXIS 182 (Miss. 1915).

The railroad commission cannot require physical connection of two railroads. Mississippi R. R. Com. v. Yazoo & M. V. R. Co., 100 Miss. 595, 56 So. 668, 1911 Miss. LEXIS 59 (Miss. 1911).

As to legislative power to require railroads to maintain depot in every incorporated village through which road passes see Southern R. Co. v. State, 95 Miss. 657, 48 So. 236, 1909 Miss. LEXIS 200 (Miss. 1909).

As to vested rights of the railroad company by charter see Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

It is lawful by statute to make bills of lading conclusive evidence of receipt of property. Yazoo & M. V. R. Co. v. G. W. Bent & Co., 94 Miss. 681, 47 So. 805, 1909 Miss. LEXIS 331 (Miss. 1909).

Section 3555 of the Code of 1892 (Code 1906 § 4053), though applying to railroads constructed before its passage, does not infringe this section. Illinois C. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502, 1902 Miss. LEXIS 196 (Miss. 1902).

As to right to require railroad companies to maintain cattle guards see Kansas C., M. & B. R. Co. v. Spencer, 72 Miss. 491, 17 So. 168, 1894 Miss. LEXIS 130 (Miss. 1894); Illinois C. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502, 1902 Miss. LEXIS 196 (Miss. 1902); Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 1904 Miss. LEXIS 173 (Miss. 1904).

73. – – Sunday closing laws, regulation of business and professions.

Absent evidence of invidious discrimination as to a class or a person, state Sunday closing laws did not violate due process clause of state and federal constitutions. Genesco, Inc. v. J. C. Penney Co., 313 So. 2d 20, 1975 Miss. LEXIS 1664 (Miss. 1975).

74. Unemployment compensation.

Statute (§71-5-513) which prohibits payment of unemployment benefits to wife who leaves employment in state to accompany husband to another state does not violate equal protection or due process. Warren v. Board of Review, 463 So. 2d 1076, 1985 Miss. LEXIS 1879 (Miss. 1985).

Denial to a union member of benefits under the Unemployment Compensation Act because of his refusal to accept nonunion employment is not a denial of a property right in violation of the due process and equal protection clauses of the Constitutions of the United States and the State of Mississippi. Mills v. Mississippi Employment Sec. Com., 228 Miss. 789, 89 So. 2d 727, 1956 Miss. LEXIS 566 (Miss. 1956).

Determination that drug business employing six persons and dairy business employing four persons was under a common control so as to be within the application of the Mississippi Unemployment Compensation Act did not deprive the defendant of his property without due process of law or deny him the equal protection of the laws, where such determination was based upon evidence that defendant deeded the dairy to his wife to evade liability for benefits under such act that although proceeds of the dairy were used by the wife for remodeling and furnishing their home, defendant retained control over the dairy business, and both businesses were really operated for the benefit of defendant and his family. Mississippi Unemployment Compensation Com. v. Avent, 192 Miss. 85, 4 So. 2d 296, 4 So. 2d 684, 1941 Miss. LEXIS 5 (Miss. 1941).

75. Workers compensation.

Award of workers’ compensation benefits to an employee was overturned where, as a result of the Mississippi Workers’ Compensation Commission’s departure from its own procedural rules, certain medical records were entered into evidence that erroneously provided medical causation relating the employee’s focal dystonia to the employee’s work as a card dealer for the employer; the mandates of due process were not adhered to by the commission. Robinson Prop. Group v. Newton, 975 So. 2d 256, 2007 Miss. App. LEXIS 676 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 284 (Miss. 2008).

Errors occurred when the administrative law judge acted contrary to his ruling at a hearing in which he found that an employee accident report was inadmissible because of discovery violations and when the Mississippi Workers’ Compensation Commission chose to disregard the administrative hearing officer’s decision as to the enforcement of its own procedural rules; however, the employee could not complain that the Commission’s consideration of the employee accident report caused surprise or contend that trial by ambush would have occurred if the administrative hearing officer had allowed the report to be introduced at the hearing because she knew the document existed and what it contained. Thus, although the administrative law judge erred when he reopened the record to admit the employee accident report, the error did not rise to the level of denying the employee due process. Bermond v. Casino Magic, 874 So. 2d 480, 2004 Miss. App. LEXIS 482 (Miss. Ct. App. 2004).

Workers’ compensation claimants challenging constitutionality of workers’ compensation system failed to show that they suffered inordinate delays in resolution of their benefits claims, and, thus, failed to show state-caused due process deprivation arising out of delays in system, where many of delays complained of by claimants were result of their own or their attorneys’ action or inaction. Warren v. Mississippi Workers' Compensation Comm'n, 700 So. 2d 608, 1997 Miss. LEXIS 496 (Miss. 1997).

Under Mississippi and Federal Constitutions, there is no due process violation by virtue of exclusive remedy provisions of Workers’ Compensation Act, §71-3-9, precluding action by wife of injured employee for loss of consortium, even though cause of action for loss of consortium is generally recognized under §93-3-1. West v. Plastifax, Inc., 505 So. 2d 1026, 1987 Miss. LEXIS 2497 (Miss. 1987).

The Workmen’s Compensation Law is not unconstitutional because it makes no discrimination between employees who have been guilty of negligence and employees who have exercised due care or because it denies to the injured employee the right to have damages assessed by a jury according to the conventional methods of the common law. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law is not invalid because it undertakes to put all laborers or employees in one class, or because it undertakes to compensate persons of widely differing rights, or persons of widely differing ages, or persons of widely differing responsibilities as to their families under one standard of compensation. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law does not violate the due process provisions of the state constitution because it abrogates rights of actions for personal injuries recognized by the common law, or rights of action for personal injury in wrongful death created by statutes; or because it subjects the employer to liability for compensation to his injured employee without regard to any neglect or default on the part of the employer or any other person for whom he is responsible; or because the employee’s rights are interfered with, in that he is prevented from having compensation for injuries arising from the employer’s fault commence with the damages actually sustained, and is limited to the measure of the compensation prescribed by the act; or because both the employer and the employee are deprived of their liberty to acquire property by being prevented from making such agreement as they may choose to make respecting terms of employment. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

76. Retirement benefits.

There was no violation of due process where a physician examined the claimant and provided a diagnosis and recommendation, and then voted with his fellow members of the medical board in the initial administrative determination to deny the claimant’s application for disability retirement benefits as such procedure was justifiable by weighing the importance of the claimant’s interests against the risk of an erroneous decision and the costs of alternative procedures. Dean v. Public Emples. Retirement Sys., 797 So. 2d 830, 2000 Miss. LEXIS 258 (Miss. 2000).

77. Sovereign immunity.

There is no “property right” to sue the State, since the Mississippi Legislature has withheld that right through its statutes, and therefore the principle of sovereign immunity, as enacted by the legislature in §§11-46-1 et seq., does not violate the due process clause of the Mississippi Constitution or the 14th Amendment to the United States Constitution.Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

The continuance of electrical power is a property interest worthy of due process protections. Thus, the defense of sovereign immunity was not available to a county where a homeowner alleged that he had been damaged when the county and an electrical utility discontinued his electrical power, since sovereign immunity is no defense where a violation of constitutional rights is concerned. Tucker v. Hinds County, 558 So. 2d 869, 1990 Miss. LEXIS 173 (Miss. 1990).

78. Damages.

In a contract dispute over the installation of a swimming pool, a trial court violated a contractor’s procedural due process rights in basing its judgment on testimony that was neither taken under oath nor subject to cross-examination where the contractor consulted with a concrete finisher, and relied on the finisher’s unsworn opinion. Pulliam v. Chandler, 872 So. 2d 752, 2004 Miss. App. LEXIS 419 (Miss. Ct. App. 2004).

Mississippi’s system for awarding punitive damages is not unconstitutional, and therefore the imposition of punitive damages did not violate a defendant’s constitutional right to due process. Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 1994 Miss. LEXIS 354 (Miss. 1994).

The legislature may authorize the guardian of an infant, or person of unsound mind, to agree upon damages to be paid for the property of the ward taken for public use. Louisville, N. O. & T. R. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 1892 Miss. LEXIS 7 (Miss. 1892).

79. Education, schools and students.

Student’s due process rights were not violated where he was not afforded notice and an opportunity to be heard at a school board meeting regarding his alleged violation of the school district’s weapons policy because the student was afforded notice and an opportunity to be heard before the Appeals Committee. Due process did not require that defendant be afforded with an opportunity to be heard at every step of the student disciplinary process. Hinds County Sch. Dist. Bd. v. R.B., 10 So.3d 387, 2008 Miss. LEXIS 606 (Miss. 2008).

Student was denied his due process rights during disciplinary proceedings against him where not only was the student not allowed to pose questions to the other students involved in the incident, who were not present at the hearing, he had no right to even know the names of the students who accused him; the student received absolutely no notice of the hearing in which the school district was to review the Appeals Committee’s recommendation of expulsion for one year and render a final decision on the disciplinary proceeding, and a one-year expulsion required more than the minimal due process protections of notice and right to be heard. Hinds County Sch. Dist. Bd. of Trs. v. R.B., 10 So.3d 495, 2007 Miss. App. LEXIS 626 (Miss. Ct. App. 2007), rev'd, 10 So.3d 387, 2008 Miss. LEXIS 606 (Miss. 2008).

Superintendent’s due process argument was rejected in a case arising from his dismissal because he was not required to get the notice set forth in Miss. Code Ann. §37-9-109, which covered nonrenewals, and a school district board complied with the procedures set forth in Miss. Code Ann. §37-9-59 and Miss. Code Ann. §37-9-111; moreover, even if §37-9-109 did apply to the case, the superintendent failed to avail himself of the requirements of such. Wilder v. Bd. of Trs. of the Hazlehurst City Sch. Dist., 969 So. 2d 83, 2007 Miss. App. LEXIS 253 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 657 (Miss. 2007).

Right to minimally adequate public education created and entailed by laws of Mississippi is fundamental; as such, young citizens of state enjoy full substantive and procedural protections of due process clause of constitution of state of Mississippi. Clinton Municipal Separate School Dist. v. Byrd, 477 So. 2d 237, 1985 Miss. LEXIS 2204 (Miss. 1985).

As matter of state substantive due process, school board’s disciplinary rule or scheme is constitutionally enforceable where, fairly viewed, it furthers substantial legitimate interest of school district; authority vested in school boards consistent with constitutional limitation includes substantial discretion with respect to administration of punishment to student who violates school rule. Clinton Municipal Separate School Dist. v. Byrd, 477 So. 2d 237, 1985 Miss. LEXIS 2204 (Miss. 1985).

School bonds may be issued upon petition of a majority of qualified voters, without an election and without a notice. In re Magee Consol. School Bonds, 212 Miss. 454, 54 So. 2d 664, 1951 Miss. LEXIS 469 (Miss. 1951).

80. Landlord-tenant disputes.

A landlord’s actions in locking up a tenant’s possessions pursuant to §89-7-51(2) did not violate due process requirements where the landlord failed to use the attachment for rent statutes; since §89-7-51 did not authorize the landlord to use self-help to seize the tenant’s property, there was no state action. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385 (Miss. 1994), rehearing denied.

81. Municipal ordinances.

Clinton, Miss., Zoning Ordinance § 401.05 was unconstitutionally vague as it allegedly applied to property owners when a city attempted to enforce by having the owners remove a treehouse from their front yard because the city provided no notice to the public that it utilized the definition of “accessory structure or use” to define “accessory building or use;” according to the ordinance, an “accessory structure” could be either a “detached structure” or a “use;” there was no definition of “detached structure,” but there was a definition of “structure.” Further, the definition of use“ was vague as well. Mayor of Clinton v. Welch, 888 So. 2d 416, 2004 Miss. LEXIS 1412 (Miss. 2004).

A city’s noise control ordinance, which prohibited “unnecessary or unusual noises. . . which either annoys, injures or endangers the comfort, repose, health or safety of others. . . ,” violated the due process clauses of the federal and state constitutions because it failed to provide clear notice and sufficiently definite warning of the conduct that was prohibited. A statute is unconstitutionally vague when the standard of conduct it specifies is dependent upon the individualized sensitivity of each complainant, and whether a noise is “unnecessary,” “unusual” or “annoying” depends upon the ear of the listener. Nichols v. Gulfport, 589 So. 2d 1280, 1991 Miss. LEXIS 796 (Miss. 1991).

82. Miscellaneous.

Chancellor properly found that notice of the administrative was legally sufficient where the developer received a notice of intent and an opportunity for an administrative hearing. Watkins Dev., LLC v. Hosemann, 214 So.3d 1101, 2016 Miss. App. LEXIS 434 (Miss. Ct. App. 2016), aff'd in part and rev'd in part, 214 So.3d 1050, 2017 Miss. LEXIS 74 (Miss. 2017).

There was no due process violation with respect to doctors on the Mississippi Public Employees’ Retirement System Medical Board examining claimants, making a diagnosis and recommendation, and then voting as members of the Medical Board on the disability claims; therefore, the denial of a disability claim was upheld. Flowers v. Public Emples. Ret. Sys., 2006 Miss. App. LEXIS 247 (Miss. Ct. App. Apr. 4, 2006), op. withdrawn, sub. op., 952 So. 2d 972, 2006 Miss. App. LEXIS 778 (Miss. Ct. App. 2006).

Arrestee’s due process rights were not violated by an assistant district attorney’s act of providing incorrect identifying information to police that led to a wrongful arrest in a false pretenses case because the overall actions were objectively reasonable, even though a picture of the correct perpetrator and a discrepancy regarding birth dates was contained in a file; as such, the assistant district attorney was entitled to qualified immunity. Stewart v. DA, 923 So. 2d 1017, 2005 Miss. App. LEXIS 589 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 161 (Miss. 2006).

Where the Mississippi Commission on Environmental Quality found that the tire company had committed numerous violations under a National Pollutant Discharge Elimination System (NPDES) permit, the tire company failed to demonstrate that it had been singled out, or that it was selected for prosecution based upon protected classifications. Further, the appellate court deferred to the Mississippi Department of Environmental Quality’s decision regarding the methodology limits the agency implemented, these being based on concentration limits rather than mass limits; in the latter context, the Commission acted within its power in determining that the permit was not “fatally flawed” under the methodology implemented. Titan Tire of Natchez, Inc. v. Miss. Comm'n on Envtl. Quality, 891 So. 2d 195, 2004 Miss. LEXIS 1408 (Miss. 2004).

In a products liability case arising from use of a prescription drug, the trial court abused its discretion in improperly changing venue to Claiborne County because the record was replete with evidence that defendant drug company had sufficiently proved bias in the community of Claiborne County. Therefore, although the trial court correctly found that it was proper to change venue from Jefferson County, Claiborne County was not a proper venue in which a fair trial could be conducted. Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 2004 Miss. LEXIS 494 (Miss. 2004), modified, 2004 Miss. LEXIS 1002 (Miss. Aug. 5, 2004).

Sale of sexual devices, or the right of access to such devices by users, is not encompassed by the constitutionally protected right of privacy; advertising of the devices, or their sale is not constitutionally protected speech. PHE, Inc. v. State, 877 So. 2d 1244, 2004 Miss. LEXIS 269 (Miss. 2004).

Section51-1-4’s 100 cubic feet per second standard for determining what constitutes a public waterway suffers no constitutional or other infirmity when scrutinized under §§ 14, 17 or 81 of the Mississippi Constitution or otherwise, or under federal law, including but not limited to the Equal Footings Doctrine and the congressional enactment of 1817 creating the State of Mississippi. Ryals v. Pigott, 580 So. 2d 1140, 1990 Miss. LEXIS 694 (Miss. 1990), cert. denied, 502 U.S. 940, 112 S. Ct. 377, 116 L. Ed. 2d 328, 1991 U.S. LEXIS 6438 (U.S. 1991).

There is no suggestion of partiality or impropriety in the use of an assistant attorney general as a hearing officer in a hearing before the Department of Natural Resources Permit Board; the attorney general’s office affords counsel to state agencies and there is no conflict or suggestion of unfairness in this arrangement. Thus, an environmental organization, which objected to a modified air emissions permit and was afforded an administrative hearing before the Natural Resources Permit Board, was not denied due process of law on the ground that the hearing officer who sat with the Board was a special assistant attorney general. Furthermore, the environmental organization waived any objections it might have had where it made no objection before the Board and proceeded through the hearing without objection, and the organization admitted having knowledge of the identity of the hearing officer as an assistant attorney general well before the hearing and in time to object if any legitimate objection existed. United Cement Co. v. Safe Air for Environment, Inc., 558 So. 2d 840, 1990 Miss. LEXIS 61 (Miss. 1990).

A person may not be involuntarily committed to a state mental institution unless (1) there is clear and convincing evidence that the person is in substantial need of mental treatment, and (2) the state renders to him a minimally adequate course of care and treatment; accordingly, a deceased had a substantive right not to be “warehoused,” and if he was substantially mentally ill, the state’s right to commit him involuntarily was conditioned on its affording him minimally adequate care and treatment. Chill v. Mississippi Hospital Reimbursement Com., 429 So. 2d 574, 1983 Miss. LEXIS 2563 (Miss. 1983).

Absent proof of malice or ill will, the question of due process violations by the judiciary should be remedied, if necessary, by appeal or otherwise and not through disciplinary proceedings. In re Anderson, 412 So. 2d 743, 1982 Miss. LEXIS 1921 (Miss. 1982).

A provision of the Milk Products Sales Act for recovery by the state of the cost of investigation and of attorney’s fees from violators of the Act is not unconstitutional in failing to provide for the recovery of such costs by a person who is charged with a violation of the Act but is the successful party in a suit. McCaffrey v. State, 220 So. 2d 826, 1969 Miss. LEXIS 1478 (Miss. 1969).

A statute providing for incorporation of a municipality by the proclamation of the Governor, does not violate due process. Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So. 2d 772, 1953 Miss. LEXIS 660 (Miss. 1953).

Laws 1948, ch 430, § 1 amending Laws 1946, ch 363, § 6 (Code 1942, § 7146-06), providing for state aid to nonprofit hospitals under supervision by a state agency in connection with a statewide hospital plan does not violate due process requirement, since it bears a reasonable relation to a governmental purpose as expressed in § 86 of the constitution, imposing upon the legislature the duty to provide for the care of the indigent sick in the hospitals in the state. Craig v. North Mississippi Community Hospital, 206 Miss. 11, 39 So. 2d 523, 1949 Miss. LEXIS 239 (Miss. 1949).

Shareholder of capital stock in an incorporated agricultural association, upon becoming ineligible to hold stock by reason of fact that he is no longer a producer of agricultural products and who is unable to sell or transfer his stock to another eligible producer or organization, is entitled under Code 1942, § 4485 to be paid by the association only the par value of his stock which may be paid by association’s certificate of indebtedness payable out of future earnings, and not the amount representing the proportion that his shares bear to the present assets of the association even though such amount may be greater than the par value of the shares, and such does not deprive the shareholder of property without due process of law in violation of the constitution. Avon Gin Co. v. Bond, 198 Miss. 197, 22 So. 2d 362, 1945 Miss. LEXIS 184 (Miss. 1945).

Chapter 97, Acts of 1908, regulating procedure of levee board does not violate this section. Bobo v. Board of Levee Comm'rs, 92 Miss. 792, 46 So. 819, 1908 Miss. LEXIS 248 (Miss. 1908).

The section is not violated by the statute requiring a conveyance of a homestead to be made by husband and wife jointly. Lady Ensley Furnace Co. v. Rogan, 95 Ala. 594, 11 So. 188, 1891 Ala. LEXIS 385 (Ala. 1891).

83. Right to confrontation.

RESEARCH REFERENCES

ALR.

Compulsory examination for venereal disease. 2 A.L.R. 1332, 22 A.L.R. 1189.

Constitutionality of statute or ordinance providing for destruction of animals. 8 A.L.R. 67.

Constitutionality of statute regulating the time of payment of wages. 12 A.L.R. 612, 26 A.L.R. 1396.

Income tax on nonresident or foreign corporation. 15 A.L.R. 1326; 90 A.L.R. 484, 156 A.L.R. 1370.

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines. 35 A.L.R. 7, 110 A.L.R. 327.

Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained, or providing for its confiscation. 37 A.L.R. 1386.

Asexualization or sterilization of criminals or defectives. 40 A.L.R. 535; 51 A.L.R. 862; 87 A.L.R. 242.

Constitutionality of “civil rights” legislation by state. 49 A.L.R. 505.

Constitutionality of statute relating to injunctions against crime or abatement of nuisance arising from violation of liquor law. 49 A.L.R. 635.

Constitutionality of statute against solicitation of business by or for attorney. 53 A.L.R. 279.

Constitutionality of statute or ordinance prohibiting or regulating advertising by physician, surgeon, or other person professing healing arts. 54 A.L.R. 400.

Constitutionality of statute affecting riparian rights. 56 A.L.R. 277.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense. 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Validity of special statute authorizing exemption of industrial concern from taxation. 64 A.L.R. 1217.

Power to extend boundaries of municipal corporations. 64 A.L.R. 1335.

Schools: free textbooks and other school supplies for individual use of pupils. 67 A.L.R. 1196.

Constitutionality of levee and flood control acts. 70 A.L.R. 1274.

Constitutionality of chain store tax. 73 A.L.R. 1481; 85 A.L.R. 736; 112 A.L.R. 305.

Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 73 A.L.R. 1494.

Constitutionality of statutes or ordinances for taxation of common carriers by automobile. 75 A.L.R. 13.

State income tax on resident in respect of income earned outside the state. 87 A.L.R. 380.

Validity of so-called “sales tax.” 89 A.L.R. 1432, 110 A.L.R. 1485, 117 A.L.R. 846, 128 A.L.R. 893.

Constitutionality of statute permitting state to take or use in evidence depositions in criminal case. 90 A.L.R. 377.

Constitutionality of statutes in relation to registration before voting at election or primary. 91 A.L.R. 349.

Constitutionality and construction of state farm aid laws. 92 A.L.R. 768.

Power of municipal or school authorities to prescribe vaccination or other health measure as a condition of school attendance. 93 A.L.R. 1413.

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted. 98 A.L.R. 284.

Judicial questions regarding Federal Social Security Act or state legislation adopted in anticipation of, or after the passage of, that act, to set up “state plan” contemplated by it. 100 A.L.R. 697; 106 A.L.R. 243; 108 A.L.R. 613; 109 A.L.R. 1346; 118 A.L.R. 1220; 121 A.L.R. 1002.

Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection. 107 A.L.R. 285.

Regulation of use of highway by private motor vehicles for hire. 109 A.L.R. 550.

Power to detach land from municipal corporations, towns, or villages. 117 A.L.R. 267.

Constitutionality of regulations as to milk. 119 A.L.R. 243, 155 A.L.R. 1383.

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes. 128 A.L.R. 1361, 130 A.L.R. 1504.

Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax. 129 A.L.R. 222, 153 A.L.R. 609.

Restrictive covenants, conditions, or agreements in respect of real property discriminating against persons on account of race, color, or religion. 3 A.L.R.2d 466.

Garage as part of house with which it is physically connected within zoning regulations or restrictive covenant. 7 A.L.R.2d 593.

Zoning based on size of commercial or industrial enterprises or units. 7 A.L.R.2d 1007.

Validity of statute, ordinance, or regulation forbidding granting of exclusive rights or franchises to, or abolishing existing exclusive rights secured pursuant to outstanding permits for, taxicabs or hack stands. 8 A.L.R.2d 574.

Validity of building height regulations. 8 A.L.R.2d 963.

Exclusion from municipality of industrial activities inconsistent with residential character. 9 A.L.R.2d 683.

Zoning: change in ownership of nonconforming business or use as affecting right to continuance thereof. 9 A.L.R.2d 1039.

Constitutionality, construction, and application of statutory provisions respecting persons who may prepare tax returns for others. 10 A.L.R.2d 1443.

Validity and construction of regulations as to subdivision maps or plats. 11 A.L.R.2d 524.

Constitutionality, construction, and application of statute relating to dental hygienists. 11 A.L.R.2d 724.

Validity of minimum wage statutes relating to private employment. 39 A.L.R.2d 740.

Validity of statutes, ordinances, or regulations for protection of vegetation against disease or infection. 70 A.L.R.2d 852.

Validity and construction of “right-to-work” laws. 92 A.L.R.2d 598.

Validity of statutory classifications based on population–government employee salary or pension statutes. 96 A.L.R.3d 538.

Validity of statutory classifications based on population–jury selection statutes. 97 A.L.R.3d 434.

Validity of statutory classifications based on population–zoning, building, and land use statutes. 98 A.L.R.3d 679.

Validity of statutory classifications based on population–tax statutes. 98 A.L.R.3d 1083.

Right of jailed or imprisoned parent to visit from minor child. 15 A.L.R.4th 1234.

What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status. 33 A.L.R.4th 964.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 A.L.R.4th 60.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 A.L.R.5th 152.

Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief. 45 A.L.R.5th 531.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions–post-Connelly cases. 48 A.L.R.5th 555.

Duty of prosecutor to present exculpatory evidence to state grand jury. 49 A.L.R.5th 639.

Disqualification of judge for bias against counsel for litigant. 54 A.L.R.5th 575.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 A.L.R.5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 A.L.R.5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 A.L.R.5th 611.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 A.L.R.5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 A.L.R.5th 327.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 A.L.R.5th 1.

Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process. 12 A.L.R.6th 267.

Double Jeopardy Considerations in State Criminal Cases – Supreme Court Cases. 77 A.L.R. Fed. 2d 477.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas - Coercion or Duress. 19 A.L.R.6th 411.

Failure of State Prosecutor to Disclose Exculpatory Tape Recorded Evidence as Violating Due Process. 24 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation - Suspect Injured or Taken Ill. 25 A.L.R.6th 379.

What Constitutes ‘Custodial Interrogation‘ of Juvenile by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation - At Police Station or Sheriff’s Office. 26 A.L.R.6th 451.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Class-of-One Equal Protection Claims Based Upon Real Estate Development, Zoning, and Planning. 68 A.L.R.6th 389.

Construction and Application of Parratt-Hudson Doctrine, Providing That Where Deprivation of Property Interest Is Occasioned by Random and Unauthorized Conduct of State Officials, Procedural Due Process Inquiry Is Limited to Issue of Adequacy of Postdeprivation Remedies Provided by State. 89 A.L.R.6th 1.

School’s Violation of Student’s Substantive Due Process Rights by Suspending or Expelling Student. 90 A.L.R.6th 235.

Right of action under Title IX of Education Amendments Act of 1972 (20 USCS §§ 1681 et seq.) against school or school district for sexual harassment of student by student’s peer. 141 A.L.R. Fed. 407.

Equal protection and due process clause challenges based on racial discrimination – Supreme Court cases. 172 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on sex discrimination – Supreme Court cases. 178 A.L.R. Fed. 25.

Forcible administration of antipsychotic medication to pretrial detainees – Federal cases. 188 A.L.R. Fed. 285.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 586, 588 et seq.

CJS.

C.J.S. Constitutional Law §§ 455 to 518, 540, 557, 576 to 596, 612 to 618, 704, 883, 945 to 1427.

C.J.S. Right to Die § 2.

Lawyers’ Edition.

Notice by publication as sufficient to comply with due process requirements under Federal Constitution’s Fourteenth Amendment – Supreme Court cases. 99 L. Ed. 2d 1029.

Necessity and sufficiency of service of process under due process clause of Federal Constitution’s Fourteenth Amendment – Supreme Court cases. 100 L. Ed. 2d 1015.

Regulation of hotel, motel, or similar lodging establishment as violating due process clause or equal protection clause of Federal Constitution – Supreme Court cases. 107 L. Ed. 2d 1151.

Law Reviews.

1984 Mississippi Supreme Court Review: Wills and Estates. 55 Miss L. J. 120, March, 1985.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

§ 15. Slavery and involuntary servitude prohibited; punishment for crime.

There shall be neither slavery nor involuntary servitude in this state, otherwise than in the punishment of crime, whereof the party shall have been duly convicted.

HISTORY: 1869 art I § 19.

JUDICIAL DECISIONS

1. In general.

Mother’s assertions were without merit that by attempting to force her into the foster care system with her newborn, and by threatening to withhold contact with the child, the Department of Human Services subjected her to unconstitutional involuntary servitude in violation Miss. Const. Art. III, § 15 and U.S. Const. Amend. XIII; in every case in which the supreme court found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction. In the Interest of C.B.Y., 936 So. 2d 974, 2006 Miss. App. LEXIS 617 (Miss. Ct. App. 2006).

In a sale of marijuana case, defendant was not entitled to be set free based on the State’s alleged improper conduct in threatening imprisonment if defendant did not work as an undercover informant, as the evidence showed that defendant had voluntarily agreed to become an informant and never actually performed any act as an informant. Poole v. State, 862 So. 2d 1285, 2004 Miss. App. LEXIS 26 (Miss. Ct. App. 2004).

Law relating to hiring renter or laborer having contracted with another must be construed consistently with this section. Hill v. Duckworth, 155 Miss. 484, 124 So. 641, 1929 Miss. LEXIS 315 (Miss. 1929).

Statute punishing any laborer, renter or share cropper who should leave his employer or leased premises before the expiration of his contract, without the consent of the employer or landlord, and who should enter into a second contract without giving notice of the first contract, was unconstitutional under this section. State v. Armstead, 103 Miss. 790, 60 So. 778, 1912 Miss. LEXIS 231 (Miss. 1912).

RESEARCH REFERENCES

ALR.

Constitutionality of statute requiring persons, regardless of financial condition, to engage in some business, profession, occupation, or employment. 9 A.L.R. 1366.

Injunction against strike as violating constitutional provision against involuntary servitude. 46 A.L.R. 1541.

Selective Training and Service Act. 129 A.L.R. 1171; 147 A.L.R. 1313; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1450; 158 A.L.R. 1450.

Statute providing for apportionment between lessor and lessee of a tax imposed upon the producer of oil, gas, or other natural production as violation of the constitutional provision against impairment of the obligation of contracts. 160 A.L.R. 980.

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, 1, Prohibiting Slavery and Involuntary Servitude – Labor Required as Punishment for Crime. 87 A.L.R.6th 109.

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, 1, Prohibiting Slavery and Involuntary Servitude – Labor Required by Law or Force Not as Punishment for Crime. 88 A.L.R.6th 203.

CJS.

C.J.S. Constitutional Law §§ 482 to 486.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

§ 16. Ex post facto laws; impairment of contract.

Ex post facto laws, or laws impairing the obligation of contracts, shall not be passed.

HISTORY: 1817 art I § 19; 1832 art I § 19; 1869 art I § 9.

JUDICIAL DECISIONS

1. In general.

2. Construction with other constitutional provisions.

3. Construction with Federal Constitution.

4. Ex post facto laws–In general.

5. – – Death penalty cases, ex post facto laws.

6. – – Drugs and alcohol, ex post facto laws.

7. – – Filiation or paternity, ex post facto laws.

8. – – Robbery, ex post facto laws.

9. – Aggravated assault, ex post facto laws.

10. – – Probation or parole, ex post facto laws.

11. – – Usury, ex post facto laws.

12. – – Taxes and monetary penalties, ex post facto laws.

13. Contracts within constitutional protection – In general.

14. – – Marriage and marital property, contracts within constitutional protection.

15. – – Transportation, contracts within constitutional protection.

16. – – Wages and salaries, contracts within constitutional protection.

17. Impairment of obligation of contract–In general.

18. – – Banks and banking, impairment of obligation of contract.

19. – – Game and fish laws, impairment of obligation of contract.

20. – – Jury trial, impairment of obligation of contract.

21. – – Mortgage and foreclosure sales, impairment of obligation of contract.

22. – – Retirement benefits, impairment or obligation of contract.

23. – – Taxes, impairment of obligation of contract.

24. – – Workers compensation laws, impairment of obligation of contract.

25. – – Utilities, impairment of obligation of contract.

26. Impairment of obligation of contract.

1. In general.

Where the attorneys in fact entered into a contract of employment with an attorney to pursue a personal injury claim on the ward’s behalf, and the attorney, primarily out of caution, later submitted a proposed settlement to the chancery court for approval, the chancery court abused its discretion in reducing the lawyer’s fee from a 40 percent contingency fee as provided in the contract to a 33 1/3 percent contingency fee. The contract was not one entered into pursuant to a traditional probate matter and it was not a contract within the parameters of Miss. Unif. Ch. Ct. R. 6.12; the practical effect of the chancellor’s decision, upheld by the court of appeals, was a judicial abrogation of the provisions of the Uniform Durable Power of Attorney Act found in Miss. Code Ann. §§87-3-101 through87-3-113 and it also constituted a failure to uphold Miss. Const. art. 3, § 16 and U.S. Const. Art. 1, § 10, cl. 1, which prohibited the impairment of obligations of contracts. In re Savell v. Renfroe, 876 So. 2d 308, 2004 Miss. LEXIS 800 (Miss. 2004).

Vested rights cannot be destroyed by the legislature creating a new cause of action nor can it destroy a valid defense to an existing cause of action. Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977, 1911 Miss. LEXIS 142 (Miss. 1911).

2. Construction with other constitutional provisions.

The contract clause is of equal dignity and must be read along with Const. § 179. Southern Bell Tel. & Tel. Co. v. Meridian, 241 Miss. 678, 131 So. 2d 666, 1961 Miss. LEXIS 385 (Miss. 1961).

3. Construction with Federal Constitution.

When there is state constitutional entitlement to some due process right, state may not enact legislation to impede that right under ex post facto analysis. Christmas v. State, 700 So. 2d 262, 1997 Miss. LEXIS 246 (Miss. 1997).

Supreme Court will not declare that Act, which does not contravene contract clause of Federal Constitution, does violate identical provision of State Constitution unless compelled to do so by reason of prior decisions of State court construing such provision. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

The Fourteenth Amendment to the Federal Constitution and the law of the land guarantees the right to make contracts pertaining to business. Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880, 1917 Miss. LEXIS 308 (Miss. 1917).

4. Ex post facto laws–In general.

Defendant’s manslaughter sentence was an ex post facto violation because (1) the maximum sentence was 20 years when the crime was committed, but a statutory revision providing a maximum 30-year sentence was applied, and (2) the longer sentence was not ameliorative. Cozart v. State, 226 So.3d 574, 2017 Miss. LEXIS 210 (Miss. 2017).

Defendant’s enhanced sentence as a violent habitual offender based, in part, on a statute classifying defendant’s prior burglary of a dwelling conviction as a violent crime that was enacted after defendant committed that crime, was not an ex post facto violation because the sentence was imposed for defendant’s latest crime, which was aggravated due to being repetitive. Miller v. State, 225 So.3d 12, 2017 Miss. App. LEXIS 246 (Miss. Ct. App. 2017).

Court of appeals declined to find that the sex-offender-registration statutory scheme violated the Ex Post Facto Clause because there was no intervening decision by either the United States Supreme Court or Mississippi Supreme Court. Williams v. State, 161 So.3d 1124, 2015 Miss. App. LEXIS 197 (Miss. Ct. App. 2015).

The retroactive application of the 1995 amendment to the statute, which substantively changed the elements of the crime by deleting the requirement of proving that the children were left in destitute and necessitous circumstances and raising the age of the children protected, violated the constitutional prohibition against ex post facto laws. Knowles v. State, 708 So. 2d 549, 1998 Miss. LEXIS 57 (Miss. 1998).

§97-3-95(c) was not applied retroactively to defendant where subsection (c) was added to statute in 1983 to be effective from and after March 29, 1983, and incident giving rise to prosecution occurred in August, 1983. Cantrell v. State, 507 So. 2d 325, 1987 Miss. LEXIS 2478 (Miss. 1987).

This provision relates exclusively to criminal or penal statutes. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

A constitutional amendment authorizing a recovery for property damaged applies to railroad companies in operation before the adoption of the amendment. Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

An indictment cannot be predicated on an offense committed prior to its enactment. Barton v. State, 94 Miss. 375, 47 So. 521, 1908 Miss. LEXIS 12 (Miss. 1908).

A law is not ex post facto which modifies the rigor of the criminal law. McGuire v. State, 76 Miss. 504, 25 So. 495, 1898 Miss. LEXIS 148 (Miss. 1898).

If two things conjointly constitute a crime and the legislature makes each an offense the later act can, under this section, operate only prospectively. State v. Gillis, 75 Miss. 331, 24 So. 25, 1897 Miss. LEXIS 149 (Miss. 1897).

A statute amending a criminal law which precludes a defense available under the former law is, as to crimes committed before the amendment, ex post facto; and so is one changing, but not mitigating, the punishment previously prescribed. Lindsey v. State, 65 Miss. 542, 5 So. 99, 1888 Miss. LEXIS 41 (Miss. 1888).

A statute, passed after suit brought but before verdict denying costs, not applied. Gayden v. Bates, 1 Miss. 209, 1825 Miss. LEXIS 6 (Miss. 1825).

5. – – Death penalty cases, ex post facto laws.

Circuit court did not err in resentencing defendant to serve a sentence of life without the possibility of parole pursuant to Miss. Code Ann. §99-19-107 after vacating his death sentence because it correctly applied §99-19-107 in resentencing defendant, and since defendant’s death penalty was found unconstitutional by the United States Supreme Court’s ruling in Atkins, the application of § 99-19-107 was appropriate; the statute clearly states that no one whose death penalty was ruled unconstitutional can receive life with parole, and the application of the statute in no way constitutes an ex post facto punishment in violation of Miss. Const. art. 3, § 16 and U.S. Const. art. I, § 10. Neal v. State, 27 So.3d 460, 2009 Miss. App. LEXIS 774 (Miss. Ct. App. 2009).

Appellant’s motion for post-conviction relief was properly denied as untimely filed because appellant’s sentence of life without parole, under Miss. Code Ann. §97-3-21, following his plea of guilty to capital murder, did not violate his constitutional right against ex post facto application of the law because (1) the Supreme Court of Mississippi previously held that the imposition of the new sentencing option of life without parole did not violate the prohibition against ex post facto laws, and (2) sentencing under Miss. Code Ann. §97-3-21 clearly and lawfully directed capital defendants whose pretrial, trial, or resentencing proceedings took place after July 1, 1994, to have their sentencing juries given the option of life without parole in addition to life with the possibility of parole and death. Randall v. State, 987 So. 2d 453, 2008 Miss. App. LEXIS 110 (Miss. Ct. App. 2008).

After the supreme court remanded defendant’s matter for resentencing and the circuit court resentenced defendant to life imprisonment without the possibility of parole, defendant challenged the applicability of Miss. Code Ann. §99-19-107; however, defendant’s challenge was procedurally barred because defendant failed to raise the issue before the matter was remanded, and further, application of that statute as opposed to Miss. Code Ann. §97-3-21, which was in effect at the time of the commission of the offense, did not violate ex post facto provisions. Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Bell v. State, 160 So.3d 188, 2015 Miss. LEXIS 4 (Miss. 2015).

Retroactive application of statute granting Supreme Court authority in its review of death penalty cases to reweigh aggravating and mitigating circumstances and to conduct harmless error analysis is violation of state constitutional provisions against ex post facto law. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

In a capital murder prosecution arising from a murder committed in 1976, the application of §99-19-81 in sentencing the defendant constituted an ex post facto law in violation of Art I, § X of the United States Constitution and Art 3, § 16 of the Mississippi Constitution because §99-19-81 was not yet in effect at the time the murder was committed; the defendant should have been sentenced pursuant to §97-3-21, which governed the penalty for capital murder in 1976. Johnston v. State, 618 So. 2d 90, 1993 Miss. LEXIS 181 (Miss. 1993).

Where a new statute gave condemned a choice as to the method of infliction of death penalty, the law was not an ex post facto law as to persons who were sentenced to death before enactment. Wetzel v. Wiggins, 226 Miss. 671, 85 So. 2d 469, 1956 Miss. LEXIS 448 (Miss.), cert. denied, 352 U.S. 807, 77 S. Ct. 80, 1 L. Ed. 2d 39, 1956 U.S. LEXIS 400 (U.S. 1956).

A statute providing that juries in capital cases may fix the punishment at imprisonment for life in the penitentiary is not ex post facto, even in its application to offenses committed before its passage and when the death penalty was fixed by law. McGuire v. State, 76 Miss. 504, 25 So. 495, 1898 Miss. LEXIS 148 (Miss. 1898).

6. – – Drugs and alcohol, ex post facto laws.

Trial court erred in summarily dismissing an inmate’s petition seeking trusty status; since the record lacked sufficient factual findings to determine whether the application of Miss. Code Ann. §47-5-138.1 to the inmate constituted an ex post facto violation, resolution of this issue required an evidentiary hearing. Horton v. Epps, 20 So.3d 24, 2009 Miss. App. LEXIS 210 (Miss. Ct. App. 2009).

The amendment to Miss. Code Ann. §47-5-138.1 was not an ex post facto law; even though the amended statute held that an offender was not eligible for trusty status if the offender was convicted of trafficking in controlled substances, defendant continued to receive the 10 days for 30 days time benefit under the prior statute. Ross v. Epps, 922 So. 2d 847, 2006 Miss. App. LEXIS 141 (Miss. Ct. App. 2006).

Where the sale of marijuana for which appellant was convicted occurred when the maximum penalty for such sale was four years imprisonment or a fine of two thousand dollars, or both, the trial court erred in sentencing appellant to a term of ten years and fining him five thousand dollars under the provisions of Code 1972, §41-29-139, which did not become effective until after the sale in question had occurred; punishment for a crime may not be increased after the crime has been committed under the provisions of Miss Const § 16 and U.S. Const Art 1 § 10 Cl 1. King v. State, 304 So. 2d 650, 1974 Miss. LEXIS 1466 (Miss. 1974).

Indictment for possession of still in December, 1923, held defective for failure to negative statutory exceptions. State v. Clark, 145 Miss. 207, 110 So. 447, 1926 Miss. LEXIS 15 (Miss. 1926).

7. – – Filiation or paternity, ex post facto laws.

The prohibition of ex post facto laws does not preclude the application of a statute providing for filiation proceedings in the case of a child born before its effective date. Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766, 1963 Miss. LEXIS 536 (Miss. 1963).

8. – – Robbery, ex post facto laws.

A 7-year sentence for armed robbery committed with a knife in 1980 in violation of §97-3-79 was not an unconstitutional application of an ex post facto law, even though §47-7-3 denied eligibility for parole prior to 1982 only when a robbery was committed with the display of a firearm, where the sentencing order merely established that the defendant serve 7 years and made no mention of “mandatory” or “without parole.” Additionally, the sentencing chapter and the parole chapter are separate and distinct; the granting of parole or denial of parole under §47-7-3 is the exclusive responsibility of the state parole board, which is independent of the circuit court’s sentencing authority. Thus, sentencing authority was provided for under §97-3-79, rather than § 47-7-3, and the defendant was not “sentenced” under the parole statute, which was later amended. Mitchell v. State, 561 So. 2d 1037, 1990 Miss. LEXIS 258 (Miss. 1990).

A petitioner who enters a guilty plea to armed robbery pursuant to plea bargain agreement upon erroneous advice of counsel that petitioner will be eligible for earned good time and will be subject to release after serving 7 years of sentence is not subjected to ex post facto law when Mississippi Department of Corrections changes administrative policy to comply with §§47-5-139 and47-7-3, causing petitioner to serve minimum of 10 years. Coleman v. State, 483 So. 2d 680, 1986 Miss. LEXIS 2336 (Miss. 1986).

A defendant convicted of armed robbery after 1977 and sentenced to serve less than 10 years in the penitentiary, and who was therefore not eligible for parole pursuant to §47-7-3, was not subjected to enforcement of an ex post facto law by a policy of the Department of Corrections administratively barring him from earning good time after January, 1981, although good time earned prior to that date was not taken away, notwithstanding the provisions of §47-5-139(7), since the statutory provisions regarding good time remained unchanged, and since administrative interpretation of a clearly worded statute is not a “law” within the scope and contemplation of the ex post facto clauses of the federal and state Constitutions. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

9. – Aggravated assault, ex post facto laws.

Defendant’s enhanced sentences for his convictions of aggravated assault on law enforcement officers were inappropriate because he should have been sentenced under Miss. Code Ann. §97-37-37(1), which became effective on July 1, 2004, and which was in effect at the time his crime was committed. Instead, he was sentenced under Miss. Code Ann. §97-37-37(2), which was not in effect at the time his crime was committed. Mayers v. State, 42 So.3d 33, 2010 Miss. App. LEXIS 88 (Miss. Ct. App.), cert. denied, 42 So.3d 24, 2010 Miss. LEXIS 437 (Miss. 2010).

10. – – Probation or parole, ex post facto laws.

Trial court did not err in upholding the decision of the Mississippi Department of Corrections (MDOC) to deny an inmate trusty status because the MDOC, pursuant to Miss. Code Ann. §47-7-3(2), stopped applying trusty time to reduce an offender’s parole eligibility date, and the MDOC’s decision to change its application of the trusty-time policy was not an ex post facto application of the law as to defendant; therefore, the inmate’s placement into trusty status would not reduce the amount of time that he had to serve before becoming eligible for parole on his kidnaping conviction. Rice v. State, 28 So.3d 683, 2010 Miss. App. LEXIS 61 (Miss. Ct. App. 2010).

No constitutional prohibition existed on the Mississippi Department of Corrections’ new interpretation of Miss. Code Ann. §99-19-21 where administrative correction of a prior misinterpretation of parole laws did not violate the ex post facto clause; because the Mississippi parole statutes used the word “may” rather than “shall,” prisoners had no constitutionally recognized liberty interest in parole. Snow v. Johnson, 913 So. 2d 334, 2005 Miss. App. LEXIS 257 (Miss. Ct. App. 2005).

An administrative correction of a prior misinterpretation of parole laws is not a change in the law so as to violate the ex post facto clause of the United States or Mississippi Constitutions; even if the correction of a former mistaken interpretation of parole law did reach the level of a change in law, administrative decisions with regard to parole law eligibility are not “laws annexed to the crime when committed.” Taylor v. Mississippi State Probation & Parole Board, 365 So. 2d 621, 1978 Miss. LEXIS 2418 (Miss. 1978).

11. – – Usury, ex post facto laws.

Laws regulating interest should not have retroactive operation. Eastin v. Vandorn, 1 Miss. 214, 1826 Miss. LEXIS 1 (Miss. 1826).

12. – – Taxes and monetary penalties, ex post facto laws.

Where the Laws of 1910, c 148, imposed a tax on a dog and the Laws of February 5, 1914, imposed a penalty for failure to pay such tax, the latter statute is not ex post facto. State v. Widman, 112 Miss. 1, 72 So. 782, 1916 Miss. LEXIS 49 (Miss. 1916).

13. Contracts within constitutional protection – In general.

Miss. Const. Art. 3, § 16 and U.S. Const. Art. 1, § 10, cl. 1 were violated when a decision was retroactively applied to releases executed in a personal injury case; the law in effect at the time the releases were executed stated that the release of an agent had no effect on a principal’s vicarious liability. The validity and obligation of a contract could not have been impaired by a court decision altering the construction of the law. Whitaker v. T & M Foods, Ltd., 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009).

Contracts clause of the Mississippi Constitution, Miss. Const. Art. III, § 16, prohibited the retroactive application of precedent that limited an employer’s vicarious liability for the negligence of its employee because the rights of an injured party could not be impaired by a subsequent judicial decision altering the construction of the law. Dimple v. T & M Foods, Ltd., 2008 Miss. LEXIS 486 (Miss. Oct. 2, 2008), sub. op., 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009).

Financial adviser found that elimination of personnel and positions was required as part of the remedy for the school district’s deficit. The school district had the authority to alter the offer of renewed employment that had already been made to the assistant principal even after the deadline that would usually apply to school employee contract renewal; the school district’s actions were not unconstitutional. McKnight v. Mound Bayou Pub. Sch. Dist., 879 So. 2d 493, 2004 Miss. App. LEXIS 223 (Miss. Ct. App. 2004).

A tort action does not come within the constitutional provision prohibiting impairment of existing contracts, and a statute increasing the homestead exemption could properly be applied to judgment which was rendered after the passage of the act, even though the cause of action arose before the statute was passed. Odom v. Luehr, 226 Miss. 661, 85 So. 2d 218, 1956 Miss. LEXIS 446 (Miss. 1956).

“Obligation of contract” within constitutional provisions prohibiting State from passing laws impairing obligation of contract depends on law in existence when contract was made, and means law under which contract was made as well as all remedies for its enforcement or after provided remedies equally adequate. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

Generally, no vested rights exist in prevailing laws which will preclude their amendment or repeal. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

Duty arising by operation of law is not a contract in the constitutional sense. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

A contract with levee board cannot be impaired by legislature. Franklin v. Ellis, 130 Miss. 164, 93 So. 738, 1922 Miss. LEXIS 195 (Miss. 1922).

The right to acquire and enjoy realty without limit as to value and quantity guaranteed in the charter of a corporation cannot be impaired by subsequent legislation under the police power of the state. Southern Realty Co. v. Tchula Co-operative Stores, 114 Miss. 309, 75 So. 121, 1917 Miss. LEXIS 36 (Miss. 1917).

Taxes are not due by virtue of contract. Crow v. Cartledge, 99 Miss. 281, 54 So. 947, 1911 Miss. LEXIS 208 (Miss. 1911), limited, McDonald v. State Tax Com., 158 Miss. 331, 130 So. 473, 1930 Miss. LEXIS 52 (Miss. 1930).

A contract valid when made under decisions of the courts of the state cannot be impaired by any subsequent action of the legislature or decision of its courts altering its construction of the laws under which it was made. Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247, 1910 Miss. LEXIS 317 (Miss. 1910).

When the state parts with its property, even by donation, the transaction constitutes a contract, and the property is thereby placed beyond legislative control. Commercial Bank of Natchez v. Chambers, 16 Miss. 9, 1847 Miss. LEXIS 1 (Miss. 1847).

14. – – Marriage and marital property, contracts within constitutional protection.

Marriage is not a contract within the meaning of the Constitution. Carson v. Carson, 40 Miss. 349, 1866 Miss. LEXIS 76 (Miss. 1866).

Dower interest, before death of husband, not within the protection of the provision. Magee v. Young, 40 Miss. 164, 1866 Miss. LEXIS 59 (Miss. 1866).

15. – – Transportation, contracts within constitutional protection.

A right by charter granted to a railroad company to fix rates within maximum limits is a contract which cannot be impaired by subsequent legislation. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

The provisions of the charter of a railroad company enacted before the adoption of the Constitution of 1890 authorizing it to establish and charge for the transportation of person and property within maximum limits prescribed constitute a contract between the state and the company, the obligations of which cannot be impaired. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885); Stone v. Natchez, J. & C. R. Co., 62 Miss. 646, 1885 Miss. LEXIS 121 (Miss. 1885), writ of error dismissed, 131 U.S. 442, 9 S. Ct. 801, 33 L. Ed. 216, 1888 U.S. LEXIS 2481 (U.S. 1888); Mississippi R. Com. v. Gulf & S. I. R. Co., 78 Miss. 750, 29 So. 789, 1901 Miss. LEXIS 141 (Miss. 1901).

The right granted by a charter to a railroad to fix its tariff of freights below a maximum is a contract. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

The grant of a right to keep a ferry is not a contract. Sullivan v. Board of Supervisors, 58 Miss. 790, 1881 Miss. LEXIS 37 (Miss. 1881); Seal v. Donnelly, 60 Miss. 658, 1882 Miss. LEXIS 109 (Miss. 1882); Montjoy v. Pillow, 64 Miss. 705, 2 So. 108, 1887 Miss. LEXIS 93 (Miss. 1887).

The grant of an exclusive privilege to keep a public wharf is a contract. Martin v. O’Brien, 34 Miss. 21 (1857), construing former Art. 2, § 3.

16. – – Wages and salaries, contracts within constitutional protection.

The salary of an officer is not within the constitutional protection. State v. Smedes, 26 Miss. 47, 1853 Miss. LEXIS 39 (Miss. 1853); Hyde v. State, 52 Miss. 665, 1876 Miss. LEXIS 272 (Miss. 1876).

17. Impairment of obligation of contract–In general.

Couple did not rely on any statutory authority when they entered into the contract with the driver’s insurer but instead they entered into the contract based upon prior judicial decisions regarding the release of a tortfeasor in a vicarious liability situation; thus, the contracts clause of Miss. Const. art. 3, § 16 was not applicable. Whitaker v. T & M Foods, Ltd., 7 So.3d 946, 2007 Miss. App. LEXIS 634 (Miss. Ct. App. 2007), reversed by, remanded by 2008 Miss. LEXIS 486 (Miss. Oct. 2, 2008), reversed by, remanded by 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009)supra.

The constitutional provision that “laws impairing the obligation of contract shall not be passed” is qualified by proper exercise of the police power of the state. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).

Where the circuit court reversed an order of the state oil and gas board integrating all interest in gas under lands in two drilling units as authorized by statute, and where on appeal it was argued that the statute and order violated due process and the impairment of contract clause of the state and federal constitutions, the supreme court must decide the question of constitutionality of statute although the judgment was not based on any constitutional grounds. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).

Code 1942, § 1108, known as “Fair Trade Act,” permitting producer, manufacturer or owner to contract with retailer as to resale price of his own product which is in fair and open competition with commodities of same general class produced by others, does not violate this section. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (Miss. 1950).

Where a former statute did not expressly declare a usurious contract void, a modified statute under which the contract as made by the parties would be valid does not impair the obligations of the contract, but simply withdraws previous impediments and renders it enforceable as made. Deposit Guaranty Bank & Trust Co. v. Williams, 193 Miss. 432, 9 So. 2d 638, 1942 Miss. LEXIS 115 (Miss. 1942).

Where the applicable statutes, at the time the state highway commission took over a county road under an agreement to maintain it without expense to the county, contained no provision authorizing the commission to obligate itself by any such contract, subsequent abandonment and surrender to the county of a portion of such road so taken over did not constitute an impairment of the obligation of a contract. Wilkinson County v. State Highway Com., 191 Miss. 750, 4 So. 2d 298, 1941 Miss. LEXIS 187 (Miss. 1941).

Statute (Laws 1932, c 278) providing for scaling down of indebtedness of a drainage district when assessed benefits received are less than its bonded or other indebtedness, and providing for issuance of liquidation certificates, which may be made payable at dates different from original obligations, and providing that payment of such certificates would prevent further levy on lands for the benefits received, held unconstitutional as impairing obligation of contracts evidenced by bonds issued before enactment of the statute. Pryor v. Goza, 172 Miss. 46, 159 So. 99, 1935 Miss. LEXIS 105 (Miss. 1935).

Legislation of State impairing obligation of contract made under its authority is void, and courts in enforcing contract will pursue same course and apply same remedies as though such void legislation had never existed. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

A statute within the police power of the state and beneficial does not impair the freedom of contract. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

Allowance of recovery against railroad for damages incurred in construction and operation of the railroad would not constitute an impairment of the obligation of a contract because its charter, and the acts amendatory to it, authorized construction of the railroad and the taking of property therefor at a time when the constitutional provisions pertaining to eminent domain required payment of compensation only for property “taken,” but did not contain the subsequently added words “or damaged.” Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

It is not in the power of the legislature to pass a statute of limitations against bonds not due; and where such bonds are payable to bearer it cannot require an affidavit of the holder showing a chain of title. Priestly v. Watkins, 62 Miss. 798, 1885 Miss. LEXIS 151 (Miss. 1885).

See as to statutes affecting remedies. Musgrove v. Vicksburg & N. R. R. Co., 50 Miss. 677, 1874 Miss. LEXIS 107 (Miss. 1874), overruled in part, State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1987 Miss. LEXIS 2787 (Miss. 1987).

The legislature cannot enlarge the exemptions of property from liability to existing creditors; so to do would be to impair the obligations of contracts. Lessley v. Phipps, 49 Miss. 790, 1874 Miss. LEXIS 14 (Miss. 1874); Johnson v. Fletcher, 54 Miss. 628, 1877 Miss. LEXIS 61 (Miss. 1877); Rice v. Smith, 72 Miss. 42, 16 So. 417, 1894 Miss. LEXIS 91 (Miss. 1894).

A statute which prohibits a corporation from assigning promissory notes, the charter not expressly conferring the right, is valid. McIntyre v. Ingraham, 35 Miss. 25, 1858 Miss. LEXIS 5 (Miss. 1858).

18. – – Banks and banking, impairment of obligation of contract.

State bank guaranty statute providing for issuance of noninterest-bearing guaranty certificates held not invalid as impairing obligation of contract of holder for interest-bearing certificate of deposit. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

Where a bank’s charter empowered it “to receive money on deposit and pay away the same free of expense, discount bills of exchange and notes, and to make loans,” and in the course of its business the bank discounted and held promissory notes, a subsequent statute, declaring it to be unlawful for any state bank to transfer, by indorsement or otherwise, any note, bill receivable, or other evidence of debt, and providing for the abatement of such debts when sued upon, was unconstitutional as impairing the obligation of contract. Planters' Bank of Mississippi v. Sharp, 47 U.S. 301, 12 L. Ed. 447, 1848 U.S. LEXIS 318 (U.S. 1848).

A statute requiring banks to pay specie on their obligations after a fixed time is valid. Commercial Bank of Natchez v. State, 14 Miss. 599, 1846 Miss. LEXIS 101 (Miss. 1846).

Act of 1843, prescribing mode of procedure against banks for violations of charters, does not impair the obligation of contracts. Commercial Bank of Rodney v. State, 12 Miss. 439, 1845 Miss. LEXIS 30 (Miss. 1845); Nevitt v. Bank of Port Gibson, 14 Miss. 513, 1846 Miss. LEXIS 100 (Miss. 1846).

19. – – Game and fish laws, impairment of obligation of contract.

Where statute repealing game and fish laws did not expressly repudiate indebtedness incurred by county in enforcing repealed laws, and interpretation of statute to repudiate such debt would make statute unconstitutional as impairing obligation of contract, legislature would be presumed not to have intended to repudiate debt. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

Interpretation of statute repealing game and fish laws as abrogating obligation incurred by county for printing licenses and copies of game and fish law used in carrying out repealed law would impair obligation of contract and make repealing Act void to extent it impaired obligation of contract. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

20. – – Jury trial, impairment of obligation of contract.

The jury statutes are not violative of the Constitution. Lewis v. State, 91 Miss. 505, 45 So. 360, 1907 Miss. LEXIS 174 (Miss. 1907).

21. – – Mortgage and foreclosure sales, impairment of obligation of contract.

In a proceeding to distribute the surplus fund remaining after a foreclosure sale of real property, the trial court erred in concluding that the defaulting landowners were entitled to a $15,000 homestead exemption where all but one of their creditors had obtained and enrolled judgments against them prior to the effective date of the law increasing the homestead exemption from $5,000 to $15,000; nor did the increased exemption apply to the remaining creditor where its claim was pending on the effective date of the new law. Thus, the $15,000 exemption was applicable to all of the creditors’ claim. Builders Supply Co. v. Pine Belt Sav. & Loan Asso., 369 So. 2d 743, 1979 Miss. LEXIS 2257 (Miss. 1979).

Act authorizing postponement of mortgage foreclosure sales and extension of time for redemption from such sales with certain limitations safeguarding rights of mortgagees was not violative of constitutional provision against impairment of obligations of contracts. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

Holders of deed of trust could not complain of delay in fixing benefits to be paid by mortgagor under Act providing for postponement of mortgage foreclosure sales, where holders move for dissolution of injunction restraining foreclosure sale on ground that Act was unconstitutional without claiming benefits under Act which are properly determinable on final hearing. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

22. – – Retirement benefits, impairment or obligation of contract.

Section 25-11-114(2)(a), which mandates that the pre-retirement death benefits of a Mississippi Public Employees’ Retirement System member must go to the member’s surviving spouse, regardless of whom the member has duly designated as his or her beneficiary, was unconstitutional as applied because it impaired a contractual right that the deceased employee acquired when he became a member of the public retirement system. Public Emples. Retirement Sys. v. Porter, 763 So. 2d 845, 2000 Miss. LEXIS 39 (Miss. 2000).

Section 25-11-103(f), which provides that the spouse of a member of the Public Employees’ Retirement System shall be the member’s beneficiary unless the member has designated another beneficiary subsequent to the date of marriage, does not constitute an unreasonable impairment of an employee’s contractual right contrary to the United States and Mississippi Constitutions because it provides protection to those whose spouse fails to redesignate due to “inadvertence” while allowing an employee to make a “conscious decision” to redesignate if he or she does not want his or her spouse to receive the death benefits. Dillon v. Beal, 632 So. 2d 1298, 1994 Miss. LEXIS 113 (Miss. 1994).

23. – – Taxes, impairment of obligation of contract.

Where an amendment to the 1944 Act entitled the town of Heidelberg to one-third of oil severance taxes returned to Jasper County by reducing the amount payable by one-third of tax which was produced in the municipality, the amendment was not unconstitutional and it did not impair the town’s obligation in contracts which it held with holders of water and sewer system bonds issued under resolution of mayor and board of aldermen, pledging 75 per cent of all revenue collected by the town under 1944 Act or any amendments or substitutes therefor to retire the bonds. Town of Heidelberg v. Jasper County, 218 Miss. 147, 65 So. 2d 463, 1953 Miss. LEXIS 524 (Miss. 1953).

The unconstitutional impairment of a contract results from the enactment of a statute (Laws 1924, c 170) permitting the successor of a revenue agent to report on the merits of pending suits for collection of delinquent taxes and share in the commission allowed on the amounts collected by such suits, where the prior statute under which the suits were brought permitted the agent to continue suits brought by him in the name of his successor, and enjoy the resulting commission. Mississippi ex rel. Robertson v. Miller, 276 U.S. 174, 48 S. Ct. 266, 72 L. Ed. 517, 1928 U.S. LEXIS 71 (U.S. 1928).

It was constitutional for the legislature by the repeal of the statutes rendering contracts unenforceable for failure to pay privilege tax to revive the remedy for rendering such contracts enforceable. Sullivan v. Ammons, 95 Miss. 196, 48 So. 244, 1909 Miss. LEXIS 203 (Miss. 1909).

If the legislature create a board of public improvements and levy a tax on land irrevocably devoting the taxes to the satisfaction of the debts which the board was authorized to contract, the state cannot by subsequent act, after the debts are contracted, abate the tax or release the land from liability therefor. Forsdick v. Board of Levee Comm'rs, 76 Miss. 859, 26 So. 637, 1899 Miss. LEXIS 31 (Miss. 1899).

Certain statutes (Laws 1875, p. 11, undertaking to abate taxes due a levee board; Laws 1876, p. 350, in so far as it sought to avoid taxes due such levee board; and Laws 1884, p. 182, relating to levee lands held by purchasers and providing for quitclaims by the state) held void, in whole or in part, as violating the obligations of contracts of bondholders. Woodruff v. State, 77 Miss. 68, 25 So. 483, 1899 Miss. LEXIS 48 (Miss. 1899).

Where, by its charter, a municipality is authorized to raise money and appropriate it to city purposes, the legislature can divert the money to a different purpose. State Board of Education v. Aberdeen, 56 Miss. 518, 1879 Miss. LEXIS 157 (Miss. 1879).

24. – – Workers compensation laws, impairment of obligation of contract.

The Workmen’s Compensation Law does not impair right of employer and employee to contract. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

25. – – Utilities, impairment of obligation of contract.

H.B. 997, clarifying Miss. Code Ann. §§77-3-13,77-3-17, and17-3-21 did not violate the Contracts Clause of the federal and state constitutions because the regulation of the state’s public utilities fell within the legislature’s authority, and where a city failed to secure Mississippi Public Service Commission approval for an acquisition from a power company, its contractual rights had not vested. City of Starkville v. 4-County Elec. Power Ass'n, 909 So. 2d 1094, 2005 Miss. LEXIS 189 (Miss. 2005).

A college, consumer of electricity, was not denied due process when it was given an opportunity to be heard (which it utilized fully) in a proceeding in which the public service commission issued a cease and desist order against one utility company which was furnishing service to the college within the certificated area of another utility; nor did the issuance of the order impair the contract between the college and the first utility company, for the contract was not paramount to the legislative authority vested in the commission at the time the contract was made. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

No taking without due process results from denying to a utility having an exclusive municipal franchise and street lighting contract the right to extend its service into annexed territory which is part of the certificated area of another utility. Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

No taking without due process is involved in holding that a utility may continue to serve a portion of its certificated area after its annexation to a city, as against a utility having an exclusive municipal franchise. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

This provision precludes a municipality from charging rent to a telephone company previously granted the free use of its streets. Southern Bell Tel. & Tel. Co. v. Meridian, 241 Miss. 678, 131 So. 2d 666, 1961 Miss. LEXIS 385 (Miss. 1961).

26. Impairment of obligation of contract.

Where a purchase order stated “TERMS: Net 30 Days from Invoice Date,” defendant prime contractor and plaintiff subcontractor had by contract altered the 15-day payment arrangement under Miss. Code Ann. §31-5-27 on a public construction project and thus, the subcontractor was not entitled to interest for payments made outside the 15 day limit of §31-5-27; the agreement under the purchase order was not a violation of public policy as such a contract was not prohibited by the Mississippi Constitution or the United States Constitution, a statute, or condemned by court decisions. APAC-Mississippi, Inc. v. James Constr. Group, L.L.C., 370 F. Supp. 2d 528, 2005 U.S. Dist. LEXIS 8778 (S.D. Miss.), op. withdrawn, 386 F. Supp. 2d 725, 2005 U.S. Dist. LEXIS 20575 (S.D. Miss. 2005).

RESEARCH REFERENCES

ALR.

Constitutionality of statute extending period for redemption from judicial or tax sale, or sale upon mortgage foreclosure. 1 A.L.R. 143; 38 A.L.R. 229; 89 A.L.R. 966.

Impairment of obligation of convict labor contracts. 3 A.L.R. 1671.

Power of state to change private contract rates for public utilities. 9 A.L.R. 1423.

Constitutionality of statute regulating the time of payment of wages. 12 A.L.R. 612; 26 A.L.R. 1396.

Power to require nonassenting creditors or bondholders to accept securities of, or shares in, new or reorganized corporation. 28 A.L.R. 1196, 88 A.L.R. 1238.

Constitutionality of statute relating to injunctions against crime or abatement of nuisance arising from violation of liquor law. 49 A.L.R. 635.

Constitutional or statutory changes affecting grand jury or substituting information for indictment as an ex post facto law. 53 A.L.R. 716.

Validity of curative statute impairing judgment or rendering it ineffective. 53 A.L.R. 1134, 136 A.L.R. 328.

Effect of statutory change of penalty or punishment after conviction. 55 A.L.R. 443.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense. 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Constitutionality of statute restoring competency of convicts as witnesses. 63 A.L.R. 982.

Constitutionality of statutes providing for consolidation or merger of public utility corporations. 66 A.L.R. 1568.

Constitutionality of levee and flood control acts. 70 A.L.R. 1274.

Applicability of constitutional or statutory provisions relating to added liability of stockholders to holders of stock issued, or stockholders of corporations organized, before their enactment. 72 A.L.R. 1252.

Constitutionality of statutes or ordinances for taxation of common carriers by automobile. 75 A.L.R. 13.

Constitutionality, construction, and effect of statutory or charter provisions relating to the sale of all or substantially all of the assets of corporation or division or distribution of proceeds. 79 A.L.R. 624.

Subsequent issue of bonds by public body as impairing obligation to prior creditors. 87 A.L.R. 397.

Statutes in relation to interest as obnoxious to constitutional provision against impairing obligation of contracts. 87 A.L.R. 462.

Validity of so-called “sales tax.” 89 A.L.R. 1432, 110 A.L.R. 1485, 117 A.L.R. 846, 128 A.L.R. 893.

Constitutionality of statute permitting state to take or use in evidence depositions in criminal case. 90 A.L.R. 377.

Raising maximum limit of permissible municipal indebtedness as impairing obligation of existing municipal contracts. 90 A.L.R. 859.

Constitutionality of statutes limiting hours of labor in private industry. 90 A.L.R. 814.

Debtor’s exemption statutes as impairing obligations of existing contracts. 93 A.L.R. 177.

Contract for payment in gold or silver or in gold or silver coin (“gold coin” clauses). 95 A.L.R. 1383; 101 A.L.R. 1318; 114 A.L.R. 820.

Constitutional provision against impairing obligation of contract as applicable to statutes affecting rights or remedies of holders or owners of improvement bonds or liens. 97 A.L.R. 911.

Validity of privilege tax as applied to contractor performing contract with Federal government. 97 A.L.R. 1257, 114 A.L.R. 347.

Constitutional provision against impairing obligation of contracts as applied to rights or remedies of owners of property subject to assessment for local improvements. 100 A.L.R. 164.

Constitutionality, construction and application of statute permitting release of part of property subject to tax liens or special assessments. 100 A.L.R. 418.

Validity, effect, and enforceability of provision of bonds, coupons, or other obligations of municipal or political body or of statute or ordinance under which they are issued, that they will be accepted in payment of taxes. 100 A.L.R. 1339.

Power of corporations to change obligations to stockholders. 105 A.L.R. 1452, 117 A.L.R. 1290.

Constitutionality of statute providing for proceedings supplementary to execution. 106 A.L.R. 383.

Statutes affecting mortgagee’s rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract. 108 A.L.R. 891; 115 A.L.R. 435; 130 A.L.R. 1482; 133 A.L.R. 1473.

Tax exemption as unconstitutionally impairing public obligations antedating the exemption. 109 A.L.R. 817.

Constitutional prohibition of ex post facto laws as applicable to statutes relating to joinder of offenses or defendants. 110 A.L.R. 1308.

Constitutional provisions against impairment of obligations of contract as applied to sinking funds for retirement of municipal or other public bonds. 115 A.L.R. 220.

Power to detach land from municipal corporations, towns, or villages. 117 A.L.R. 267.

Applicability to existing claims of statute shortening period for filing claims against decedent’s estate; and constitutionality of statute as so applied. 117 A.L.R. 1208.

Statutes affecting province of jury in criminal case as applicable in prosecutions for offense committed prior to its adoption. 118 A.L.R. 724.

Selective Training and Service Acts. 129 A.L.R. 1171; 147 A.L.R. 1313; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1450; 158 A.L.R. 1450.

Constitutionality of statute changing rights of withdrawing members of building and loan association. 133 A.L.R. 1493.

Statute regarding right of surviving spouse in estate of deceased spouse as affecting contract or waiver in that regard executed before passage of the statute. 137 A.L.R. 1099.

Validity and construction of war legislation in nature of moratory statute. 137 A.L.R. 1380, 147 A.L.R. 1311.

Comment Note: Tax exemptions and the contract clause. 173 A.L.R. 15.

Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income. 7 A.L.R.2d 692.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period. 79 A.L.R.2d 1080.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation – post-Batson state cases. 63 A.L.R.5th 375.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 411 et seq. (ex post facto laws).

16A Am. Jur. 2d, Constitutional Law §§ 450 et seq. (obligation of contracts).

CJS.

C.J.S. Constitutional Law §§ 390 to 428.

16A C.J.S., Constitutional Law §§ 431 et seq. (ex post facto laws).

Lawyers’ Edition.

Supreme Court’s views as to constitutionality, construction, and application of 42 USCS § 1981, providing for equal rights as to such matters as contracts and legal proceedings. 105 L. Ed. 2d 737.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

§ 17. Taking property for public use; due compensation.

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

HISTORY: 1817 art I § 13; 1832 art I § 13; 1869 art I § 10.

Cross References —

Exercise of right of eminent domain, see §11-27-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Validity of statutes–In general.

3. ––– Attorney’s fees, validity of statutes.

4. ––– Landowner’s rights, validity of statutes.

5. ––– Waterways, validity of statutes.

6. ––– Price regulation, validity of statutes.

7. Right of eminent domain–In general.

8. ––– Political subdivisions and municipalities, right of eminent domain.

9. ––– Taxing power, right of eminent domain.

10. ––– Public utilities, right of eminent domain.

11. ––– Sewers and drains, right of eminent domain.

12. ––– Streets and highways, right of eminent domain.

13. ––– Railroad rights of way, right of eminent domain.

14. ––– Drainage, right of eminent domain.

15. ––– Waterways, right of eminent domain.

16. – Zoning, right of eminent domain.

17. Right to due compensation–In general.

18. ––– Construction and operation of railroads, right to due compensation.

19. ––– Airports and air space, right to due compensation.

20. ––– Sewerage systems, right to due compensation.

21. ––– Waterworks, right to due compensation.

22. – – Construction and use of streets and highways, right to due compensation.

23. ––– Change of grade of street or highway, right to due compensation.

24. ––– Vacation or closing of street or highway, or railroad, right to due compensation.

25. ––– Additional public use of property devoted to public use, right to due compensation.

26. ––– Measure of compensation or damages, right to due compensation.

27. – – Burden of proof, right to due compensation.

28. Actions and remedies–In general.

29. – – Actions by or against political subdivisions, actions and remedies.

30. ––– Determination of public use, actions and remedies.

31. ––– Injunctions, actions and remedies.

32. ––– Negligence, actions and remedies.

1. In general.

Circuit court properly affirmed a county board of supervisors’ decisions declining to abandon a road and declining to award damages to an owner because the road at issue was listed as public in the county road registry, it had been maintained by the public since the 1980s, and the owner’s appeal was untimely. Seyfarth v. Adams Cty. Bd. of Supervisors, 267 So.3d 767, 2019 Miss. LEXIS 162 (Miss. 2019).

Where the allegations by a farm against the Mississippi Transportation Commission for flooding of the farm’s property had sounded in negligence, the farm could not assert Miss. Const. Art. 3, § 17 for the first time in its response to the Commission’s summary judgment motion as a defense, because the MTC did not have sufficient notice of the taking claim for the farm’s response to the summary judgment motion. B & W Farms v. Miss. Transp.Comm'n, 922 So. 2d 857, 2006 Miss. App. LEXIS 149 (Miss. Ct. App. 2006).

This section makes the question of Public use a judicial question; but the question of necessity is a legislative question. Horne v. Pearl River Valley Water Supply Dist., 249 Miss. 358, 162 So. 2d 504, 1964 Miss. LEXIS 398 (Miss. 1964).

Whether there is a public necessity for a taking is essentially a legislative question. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The living owner of a future interest must have his “day in court,” or its equivalent, and is therefore a necessary party to a condemnation proceeding. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Whether a taking is for a public use is a judicial question. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

This section is not applicable except where property is taken or damaged for public use by the public authorities or corporations, vested with the power of eminent domain. Burkett v. Ross, 227 Miss. 315, 86 So. 2d 33, 1956 Miss. LEXIS 691 (Miss. 1956).

Since a municipality is a creature of the Legislature, it may, within the limitations of this section and § 24 of the State Constitution, impart to it some of its sovereignty by statute. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 221, 1955 Miss. LEXIS 426 (Miss. 1955).

Eminent domain rights are attributes of sovereignty, and are inherent in all sovereignty, and therefore would exist without any constitutional recognition. Erwin v. Mississippi State Highway Com., 213 Miss. 885, 58 So. 2d 52, 1952 Miss. LEXIS 438 (Miss. 1952).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

To afford a property owner relief hereunder, it is not necessary that there shall be an actual taking of any portion of his property or that there be a physical invasion thereof. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

By what procedure private property may be taken for public use rests with the legislature subject to the requirements of due process of law and that section of the state constitution which provides that private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof. McAllister v. Graham, 6 So. 2d 300 (Miss. 1942).

This section is self-executing. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935); State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Liability under constitutional provision providing that private property shall not be taken or damaged for public use except on compensation being first made is not dependent on negligence but on taking or damaging. Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

This section is mandatory so as to entitle owner of property damaged for public use to remedy at common law, in absence of statute providing redress. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

Property damaged for public use, as well as property physically invaded, must be compensated for. Kwong v. Board of Mississippi Levee Comm'rs, 164 Miss. 250, 144 So. 693, 1933 Miss. LEXIS 221 (Miss. 1933).

A guarantee in the Constitution cannot be overridden by the public policy of the state. Hill v. Woodward, 100 Miss. 879, 57 So. 294, 1911 Miss. LEXIS 89 (Miss. 1911).

The term “property” includes every species of value, right or interest and any invasion of property rights entitles one to damages, although such may be nominal. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

A statute regulating and restricting the capture of creatures ferae naturae, not reduced to actual possession, is not violative of this section. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

This section does not authorize the courts to determine the necessity for the taking of property in the exercise of eminent domain. Ham v. Board of Levee Comm'rs, 83 Miss. 534, 35 So. 943, 1903 Miss. LEXIS 74 (Miss. 1903); Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

The section enlarges the previous rule, in that it provides that property cannot be damaged (though not taken) for public use without due compensation first made. Alabama & V. R. Co. v. Bloom, 71 Miss. 247, 15 So. 72, 1893 Miss. LEXIS 204 (Miss. 1893).

The private property meant is property of a specific, fixed, and tangible nature, capable of possession and transmission. Commissioners of Homochitto River v. Withers, 29 Miss. 21, 1855 Miss. LEXIS 28 (Miss. 1855), aff'd, 61 U.S. 84, 15 L. Ed. 816, 1857 U.S. LEXIS 433 (U.S. 1858).

2. Validity of statutes–In general.

District court found that the Eleventh Amendment to the U.S. Constitution did not bar an association from proceeding with an action against Mississippi’s Fiscal Officer in his official capacity, alleging that powers he was given under amendments to Miss. Code Ann. §83-21-21 violated the Fifth and Fourteenth Amendments to the U.S. Constitution because he was able to take private property without just compensation, but that it could not hear claims the association made against the State of Mississippi or a claim it made against the Fiscal Officer which alleged that the amendments violated Miss. Const. art. 3, § 17. Miss. Surplus Lines Ass'n v. Mississippi, 384 F. Supp. 2d 982, 2005 U.S. Dist. LEXIS 18454 (S.D. Miss. 2005).

An ordinance requiring the removal of non-conforming signs after five years pursuant to an exercise of police power was not an unconstitutional taking of property. Red Roof Inns, Inc. v. City of Ridgeland, 797 So. 2d 898, 2001 Miss. LEXIS 49 (Miss. 2001).

Outdoor Advertising Act (Code 1972, §§49-23-1 through49-23-29) does not violate Miss Const § 17 or U.S. Const Amendment 14. Mississippi State Highway Com. v. Roberts Enterprises, Inc., 304 So. 2d 637, 1974 Miss. LEXIS 1457 (Miss. 1974).

The Legislature has granted each municipality power to amend its special charter, but when municipality undertakes to make this amendment whether as to substance or form, it must follow the statute as to manner and method by which such amendment may be made. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 221, 1955 Miss. LEXIS 426 (Miss. 1955).

3. ––– Attorney’s fees, validity of statutes.

Section99-15-17, which limits the compensation which an attorney may receive for the representation of an indigent, does not amount to an unconstitutional taking of an attorney’s property, deprive indigent defendants of the effective assistance of counsel, or violate the equal protection clause. The statute allows for “reimbursement of actual expenses,” which can be interpreted to include reimbursement for all actual costs to the lawyer for the purpose of keeping his or her door open to handle the case; there is a rebuttable presumption that a court-appointed attorney’s actual overhead within the statute is $25 per hour. This construction of §99-15-17 will allow an attorney to receive $1,000 in profit plus his or her actual expenses. A rebuttal presumption arises that the actual cost contemplated by the statute is the average of $25 per hour; this figure may be subject to change when the 1988 survey conducted by the Mississippi State Bar is updated. The trial court is bound by the $25 per hour figure only when proof to the contrary is not forthcoming. The hours submitted by an attorney are subject to scrutiny under a reasonable and necessary standard. Specific expenses must be approved by the court before the attorney incurs the expenses. Court approved expenses include, but are not limited to, such items as the cost of an investigator, the cost of an expert witness, and a trip to interview witnesses. This interpretation of the statute avoids unconstitutionality on all grounds. Wilson v. State, 574 So. 2d 1338, 1990 Miss. LEXIS 842 (Miss. 1990).

4. ––– Landowner’s rights, validity of statutes.

City was not entitled to enforce a zoning ordinance that regulated nonconforming uses to prohibit a mobile-home park operator from replacing individual mobile-homes that were removed from the mobile-home park because the city’s interpretation of the ordinance, after more than thirty years of not enforcing the ordinance in that manner, was both arbitrary and capricious and violated the mobile-home park operator’s constitutional right to enjoy its property. Cleveland MHC, LLC v. City of Richland, 163 So.3d 284, 2015 Miss. LEXIS 230 (Miss. 2015).

Neither the constitution nor the laws of this state impose liability on a contractor lawfully acting in behalf of the United States in performing a lawful public function without negligence, the landowner’s remedy, if any, being against the public agency having the work done. Pigott v. Boeing Co., 240 So. 2d 63, 1970 Miss. LEXIS 1268 (Miss. 1970).

Land is not taken or damaged for public use by a city’s surveyor’s going thereon to make a survey. City of Laurel v. Bush, 238 Miss. 718, 120 So. 2d 149, 1960 Miss. LEXIS 461 (Miss. 1960).

5. ––– Waterways, validity of statutes.

Section51-1-4’s 100 cubic feet per second standard for determining what constitutes a public waterway suffers no constitutional or other infirmity when scrutinized under §§ 14, 17 or 81 of the Mississippi Constitution or otherwise, or under federal law, including but not limited to the Equal Footings Doctrine and the congressional enactment of 1817 creating the State of Mississippi. Ryals v. Pigott, 580 So. 2d 1140, 1990 Miss. LEXIS 694 (Miss. 1990), cert. denied, 502 U.S. 940, 112 S. Ct. 377, 116 L. Ed. 2d 328, 1991 U.S. LEXIS 6438 (U.S. 1991).

The 2 lakes artificially created by dredging for fill materials used in construction of Interstate Highway I-10 are not part of the State’s tidelands public trust, and to strip these artificial tidelands from their record titleholders would constitute a taking within the Fifth and Fourteenth Amendments to the United States Constitution and within Mississippi Constitution Article 3, § 17, which taking would require just compensation from the State. Cinque Bambini Partnership v. State, 491 So. 2d 508, 1986 Miss. LEXIS 2462 (Miss. 1986), aff'd, 484 U.S. 469, 108 S. Ct. 791, 98 L. Ed. 2d 877, 1988 U.S. LEXIS 939 (U.S. 1988).

A statute empowering a water district to condemn lands within a quarter-mile of the shore line of its reservoir where necessary for the project and the exercise of its powers and functions does not authorize a taking for other than public purposes because it authorizes the district to lease or sell land for the purpose of operating recreational facilities for profit, to dispose of any property for the furtherance of its business, and a repurchase by leaseholders of a limited portion of the property condemned. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

Where the city used underlying waters of Mississippi Sound for the purpose of constructing a small craft commercial harbor, this did not constitute taking property for public use without compensation despite the fact that construction of the harbor would deprive the property owners of access to boating, fishing, etc. Xidis v. Gulfport, 221 Miss. 79, 72 So. 2d 153, 1954 Miss. LEXIS 515 (Miss. 1954).

6. ––– Price regulation, validity of statutes.

The provision for the fixing of prices by the Milk Control Act of 1960, being a valid exercise of the police power, does not violate this provision. Mississippi Milk Com. v. Vance, 240 Miss. 814, 129 So. 2d 642, 1961 Miss. LEXIS 515 (Miss. 1961).

7. Right of eminent domain–In general.

Plaintiff landowner, whose dilapidated structure was demolished by defendant city on public safety grounds, was given sufficient notice and time to clean the property himself; due to the fact that he did not comply with the city’s directives within the time given, the city was authorized to clear his property and assess the costs to him without that constituting a taking under the Mississippi Constitution. Pearson v. City of Louisville, 2008 U.S. Dist. LEXIS 89580 (N.D. Miss. Nov. 4, 2008).

Judgment for eminent domain taking under Miss. Const. Art. 3 § 17 was affirmed because the evidence was sufficient to support the verdict; there was reasonable access left to the property after the taking; the jury awarded the landowner several thousand dollars more than the original offer, indicating the jury awarded some damages for the lack of access; and there was no problem with the jury instructions as they provided a correct statement of the statutory procedure involved in eminent domain. North Biloxi Dev. Co., L.L.C. v. Miss. Transp. Comm'n, 912 So. 2d 1118, 2005 Miss. App. LEXIS 750 (Miss. Ct. App. 2005).

Since Article 3, Section 17 mandates that a determination of public use be made whenever private property is taken, and the condemnor has the burden of proof on the issue of public use, §§65-1-301 to65-1-347, strictly construed, are unconstitutional for not providing a predeprivation opportunity for the landowner to challenge the taking and to make the condemnor satisfy its burden on the issue of public use. Lemon v. Mississippi Transp. Comm'n, 735 So. 2d 1013, 1999 Miss. LEXIS 117 (Miss. 1999).

Whether a taking by eminent domain is for a public use is a judicial question and Code 1942, § 2782 creates a specific and exclusive remedy for determining the right to eminent domain and public necessity. Texas Gas Transmission Corp. v. Council, 199 So. 2d 247, 1967 Miss. LEXIS 1289 (Miss. 1967).

A condemnor has the burden of proving that the use for which property is taken is public. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The uses for which property is taken are none the less public because served through the agency of lessees of the public authority. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

A taking for a public use is not invalid merely because of an incidental benefit to private individuals. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The burden of proof is on a landowner who alleges lack of necessity for a taking authorized by the legislature. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

Whether a taking is necessary is within the discretion of the condemnor, with the exercise of which the courts will interfere only when abuse or fraud is shown. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

Where the uses for which property is taken are public, it is not necessary to show specifically what uses are to be made of particular parts. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

The general rule is that the power of eminent domain should be construed favorably to landowner and that no greater estate can be taken than the particular use requires. Berry v. Southern Pine Electric Power Asso., 222 Miss. 260, 76 So. 2d 212, 1954 Miss. LEXIS 644 (Miss. 1954).

That proceedings in eminent domain were authorized and directed by resolution rather than by ordinance by city operating under legislative charter providing that city may exercise right of eminent domain and that deeds and contracts necessary to be made in writing shall be authorized by resolution of council is immaterial as distinction between two devices when applied to specific act is one of language only and it is formal attested action of council expressive of its determination that counts. McLaurin v. State, 41 So. 2d 41 (Miss. 1949).

This section applies to all persons, natural and artificial. Eady v. State, 121 So. 295 (Miss. 1929).

Power to exercise the right of eminent domain by private or municipal corporations is limited to express terms or clear implication. Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 1910 Miss. LEXIS 174 (Miss. 1910).

The right of eminent domain is an inherent and essential element of sovereignty; this is recognized by the Constitution and limitations placed on it; the section is not enabling but restrictive. Brown v. Beatty, 34 Miss. 227, 1857 Miss. LEXIS 128 (Miss. 1857).

8. ––– Political subdivisions and municipalities, right of eminent domain.

Constitution prohibiting taking or damaging of property for public use applies to state and political subdivisions including municipality, regardless of whether the taking or damaging is in exercise of governmental function or not. Hodges v. Drew, 172 Miss. 668, 159 So. 298, 1935 Miss. LEXIS 112 (Miss. 1935); Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

A municipality may by legislative authority charge the costs of paving a sidewalk as a lien on abutting lots of different owners according to the front foot rule, and to do so is not a taking of private property for public use without compensation. Wilzinski v. Greenville, 85 Miss. 393, 37 So. 807, 1904 Miss. LEXIS 150 (Miss. 1904).

The section embraces municipalities and prohibits them from taking or damaging private property without compensation, etc., embracing both direct and consequential damages. Mayor, etc., of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, 1894 Miss. LEXIS 96 (Miss. 1894).

9. ––– Taxing power, right of eminent domain.

Where the purchaser of land at a tax sale was not joined as a party to an eminent domain action, and the Highway Commission, after judgment, entered upon the property, took possession of the condemned right of way, and began construction work thereon, purchaser had been denied due process and his property had been taken without compensation. Mississippi State Highway Com. v. Casey, 253 Miss. 685, 178 So. 2d 859, 1965 Miss. LEXIS 1033 (Miss. 1965).

Section held inapplicable to taxing power, but only to taking of specific property for public use. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

This section is inapplicable to a statute which, for the avowed purpose of relieving unemployment and aiding agriculture and industry, authorized municipalities to raise funds by taxation for the acquisition of lands and the construction of factories to be leased to individuals and private corporations on terms which would insure their continued operation. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Tobacco tax statute does not violate constitutional provisions prohibiting taking of property for public use without compensation. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

Inhibition against taking property except on due compensation has no application to taxing property. Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818, 1927 Miss. LEXIS 277 (Miss. 1927), aff'd, 276 U.S. 599, 48 S. Ct. 320, 72 L. Ed. 724, 1928 U.S. LEXIS 126 (U.S. 1928).

Local assessments, beyond the limits of taxation, are, according to what is probably dicta, violative of this provision. Town of Macon v. Patty, 57 Miss. 378, 1879 Miss. LEXIS 93 (Miss. 1879).

The power of eminent domain and the power of taxation are distinct, and the exercise of the latter is not a taking within this provision. Griffin v. Dogan, 48 Miss. 11, 1873 Miss. LEXIS 30 (Miss. 1873); Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876).

A statute providing for the investiture of the state with title to land because of nonpayment of taxes, without a sale, is void. Griffin v. Mixon, 38 Miss. 424, 1860 Miss. LEXIS 16 (Miss. 1860).

10. ––– Public utilities, right of eminent domain.

The holder of a 16th section agricultural lease, which reserved to the board of supervisors the right to grant or sell a right-of-way across said land for any public utility line, had the right to prevent the construction of a pipeline across his leasehold lands under a purported pipeline easement granted by the board of supervisors, where the holder of the easement was not a public utility because its transmission of gas through the proposed pipeline was not open to the public and it had not acquired a certificate of public convenience and necessity. Holder v. Mississippi Fuel Co., 317 So. 2d 891, 1975 Miss. LEXIS 1778 (Miss. 1975).

A statute authorizing public utilities to enter on lands to make a preliminary examination and survey with a view to condemnation, subject to liability for any damage done, does not violate this provision. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

An easement acquired by eminent domain for telephone and telegraph lines, may be used for television transmission along with other telephone and telegraph purposes and such use was a public use and such television transmission would be done by company as common carrier. Ball v. American Tel. & Tel. Co., 227 Miss. 218, 86 So. 2d 42, 1956 Miss. LEXIS 677 (Miss. 1956).

Destruction or impairment of a rural telephone system, using only one wire and the earth for the return of the current which completed the circuit, resulting by induction because of the subsequent construction of a parallel electric distribution system was not a damaging of public property within the purview of this section, where such electric distribution system was without defect and the damage to the telephone system could be avoided by installing a second wire, the owner of such telephone system acquiring no property right in the continuation of the one-wire system. Wade v. State, 196 So. 510 (Miss. 1940).

Under legislative grant a telephone company may condemn the right of way of a railroad. Western Union Tel. Co. v. Louisville & N. R. Co., 107 Miss. 626, 65 So. 650, 1914 Miss. LEXIS 129 (Miss. 1914), aff'd, 250 U.S. 363, 39 S. Ct. 513, 63 L. Ed. 1032, 1919 U.S. LEXIS 1756 (U.S. 1919); Louisville & N. R. Co. v. Western Union Tel. Co., 234 U.S. 369, 34 S. Ct. 810, 58 L. Ed. 1356, 1914 U.S. LEXIS 1156 (U.S. 1914).

Telephone companies may condemn a railroad right of way for its poles and fixtures. Cumberland Tel. & Tel. Co. v. Yazoo & M. V. R. Co., 90 Miss. 686, 44 So. 166, 1907 Miss. LEXIS 115 (Miss. 1907).

11. ––– Sewers and drains, right of eminent domain.

Requiring a landowner to connect to the sewer system was not a taking. Croke v. Southgate Sewer Dist., 857 So. 2d 774, 2003 Miss. LEXIS 557 (Miss. 2003).

City could not be compelled to condemn complainant’s whole right to construct sewerage system where public necessity only required equal easement with that of complainants. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

As to right of drainage district to divert flood waters upon outside riparian owners, see Indian Creek Drainage Dist. v. Garrott, 123 Miss. 301, 85 So. 312, 1920 Miss. LEXIS 31 (Miss. 1920).

As to eminent domain under c 270, Laws of 1914. Riverside Drainage Dist. v. Buckner, 108 Miss. 427, 66 So. 784, 1914 Miss. LEXIS 211 (Miss. 1914).

12. ––– Streets and highways, right of eminent domain.

The negotiated conveyance in lieu of eminent domain of a portion of the property used as a church and cemetery by the occupying church organization to the state highway commission for highway purposes did not constitute an abandonment of the conveyed property for the purpose for which it was originally granted so as to give the holders of a mere possibility of reverter therein a cause of action against the highway department, particularly where there was no evidence that the remainder of the property would not continue to be used for the purposes for which it was conveyed. Patrick v. Mississippi State Highway Com., 184 So. 2d 850, 1966 Miss. LEXIS 1482 (Miss. 1966).

The acquisition by eminent domain of an easement or right-of-way primarily, if not exclusively, for the benefit of a landowner whose means of ingress and egress had been cut off by reason of the acquisition from him of a portion of the right-of-way for a public limited access highway was a mere byproduct of laying out the highway, and being essential for the construction of the highway, was itself a taking for a public use and not violative of this section. J. & G. Express, Inc. v. Pic-Walsh Freight Co., 175 So. 2d 606 (Miss. 1965).

Construction of a clover-leaf intersection the effect of which was to change the points at which abutting owners may enter a highway constitutes a taking. Hamilton v. Mississippi State Highway Com., 240 Miss. 895, 128 So. 2d 742, 1961 Miss. LEXIS 521 (Miss. 1961).

An abutting property owner may not enjoin a municipality from raising or lowering a street on the showing that it will injure his property, nor may he have the change eliminated or the original grade restored or have a reworking of the reconstruction in a manner to avoid the alleged damage caused by the casting of surface water on his property by an injunction. City of Water Valley v. Poteete, 203 Miss. 382, 33 So. 2d 794, 1948 Miss. LEXIS 283 (Miss. 1948).

Where a property owner creates a subdivision and lays it off into lots with streets and reserves the right in the streets to operate a public utility, a city which afterwards takes in such subdivision takes the streets burdened with the rights of the original owner and must condemn rights under the power of eminent domain to secure them from the owner. Gwin v. Greenwood, 150 Miss. 656, 115 So. 890, 1928 Miss. LEXIS 102 (Miss. 1928).

13. ––– Railroad rights of way, right of eminent domain.

The State’s acquisition of an abandoned railroad right-of-way contiguous to the boundary of a state penitentiary was clearly for a public purpose where there was no suggestion that the State had any plan to use the property in any fashion except to be a part of the state penitentiary grounds. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

14. ––– Drainage, right of eminent domain.

Landowner may bring action for damage to real property caused by construction of drainage canal notwithstanding failure of property owner to first present claim to county board of supervisors, as required by statute (§65-7-61) where damage constitutes violation of Mississippi Constitution and where violation takes place in absence of prior notice. Runge v. Necaise Constr. Co., 467 So. 2d 666, 1985 Miss. LEXIS 2021 (Miss. 1985).

This section is self-executing: therefore no legislation is necessary to permit a landowner to sue for damages to his property through erosion by an uncared-for county-constructed drainage ditch. Dorsey v. County of Adams, 246 Miss. 369, 149 So. 2d 493, 1963 Miss. LEXIS 451 (Miss. 1963).

A landowner may not be deprived without compensation of the right to a crossing over a drainage canal. Beaver Dam Drainage Dist. v. McClain, 241 Miss. 865, 133 So. 2d 615, 1961 Miss. LEXIS 414 (Miss. 1961).

State Highway Commission was not liable for negligence of its engineers in so constructing ditches on sides of highway as to cause water of creek to overflow owners’ farm lands. State Highway Com. v. Knight, 170 Miss. 60, 154 So. 263, 1934 Miss. LEXIS 97 (Miss. 1934).

A riparian owner or drainage district may erect levees or other works to protect lands from the accidental or flood waters of the stream. Jones v. George, 126 Miss. 576, 89 So. 231, 1921 Miss. LEXIS 66 (Miss. 1921).

This section does not apply as to the liability vel non of a corporation, public or private, for unauthorized acts of its officers and agents. Stephens v. Beaver Dam Drainage Dist., 123 Miss. 884, 86 So. 641, 1920 Miss. LEXIS 90 (Miss. 1920).

15. ––– Waterways, right of eminent domain.

Power to condemn land for a public water supply reservoir includes perimeter lands for the control of access and of polluting. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

16. – Zoning, right of eminent domain.

An amendment of a zoning ordinance that changed the zone containing the plaintiff’s business from a permitted use to a conditional use zone did not constitute a taking. Walters v. City of Greenville, 751 So. 2d 1206, 1999 Miss. App. LEXIS 674 (Miss. Ct. App. 1999).

A bill for an injunction to require the owner of land located approximately 3500 feet from the main airport runway to top or remove trees which had been permitted to extend into a restricted area more than 50 feet above the surface established by an otherwise valid zoning order as an instrument approach zone and transition surface zone, was dismissed on the ground that the zoning restriction constituted an unlawful taking or damage of private property for public use without due compensation. Ballard v. Maraman, 191 So. 2d 126, 1966 Miss. LEXIS 1203 (Miss. 1966).

A city and a municipal airport authority which, by enactment of an authorized valid zoning ordinance, had assumed, for the protection of an instrument approach zone and a transition surface zone, to prohibit the owner of property located approximately 3500 feet from the main airport runway from using or encroaching upon air space more than 50 feet above his land, had so interfered with and restricted the owner’s use and enjoyment of his private property for public use as to constitute a taking or damaging thereof without due compensation. Ballard v. Maraman, 191 So. 2d 126, 1966 Miss. LEXIS 1203 (Miss. 1966).

Rural zoning ordinance enacted under Laws 1944, ch 198, amending Laws 1938, ch 448, to be valid, must comply with constitutional requirements that private property shall not be taken or damaged for public use without compensation, and that no person shall be deprived of property except by due process of law. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Rural zoning ordinance, enacted under Laws 1944, ch 198, amending Laws 1938, ch 448, acquires no facility to avoid constitutional guaranties (that private property shall not be taken or damaged for public use without compensation and that no person shall be deprived of property except by due process of law) by the mere device of giving it a name, nor by coupling it with a commendatory preamble. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Although a zoning ordinance enacted under ch 198, Laws 1944, amending ch 448, Laws 1938, a rural zoning statute, may be valid in its general aspects, it is void as applied to a particular property or area, if, when applied to such particular area or piece of property and a particular set of facts, the ordinance is so arbitrary and unreasonable as to result in confiscation. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

17. Right to due compensation–In general.

Circuit Court properly granted summary judgment in favor of a city because a lessee was not entitled to compensation where the city notified the lessee that it could no longer sell fireworks on newly annexed land, the regulation of fireworks sales was considered a police power, and the pre-existing-use doctrine and/or grandfathering was not applicable to ordinances relating to police powers, and the regulation of fireworks sales was considered a police power. Pearson's Fireworks, Inc. v. City of Hattiesburg, 212 So.3d 778, 2014 Miss. LEXIS 391 (Miss. 2014).

Where the State deposited the funds for eminent domain proceeding, the landowners had the right to withdraw the funds from any point thereafter; therefore, the State no longer had control of the funds and had no obligation to pay interest on those funds from the date of deposit. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

Where jury’s verdict of amount owed to landowners for property taken by the State was between the values set by all three experts, the verdict was not contrary to the weight of the credible evidence, or the result of bias, passion, or prejudice. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

While this section gives individuals the constitutional right not to have their private property taken without just compensation, it does not extend to a constitutional right to particular jury instructions pertaining to the taking of the property of an individual. Carlton v. Mississippi Transp. Comm'n, 749 So. 2d 170, 1999 Miss. App. LEXIS 474 (Miss. Ct. App. 1999).

There was no confiscatory taking without payment of due compensation when the defendant city refused to rezone residential property to light commercial, notwithstanding that property across the street had already been commercially developed by various businesses, since the city’s decision was “fairly debatable.” Burdine v. City of Greenville, 755 So. 2d 1154, 1999 Miss. App. LEXIS 332 (Miss. Ct. App. 1999).

A restrictive covenant is an interest in real property for which due compensation must be paid upon a taking by the exercise of eminent domain powers. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

In an action by the owner of a building for damages allegedly caused to the structure by construction work on a city street by contractors employed by the city and its urban renewal agency, the trial court erred in directing a verdict in favor of the agency and the city where factual questions existed as to whether there was a causal connection between the construction work and the damage to the building. Walker v. Laurel Urban Renewal Agency, 383 So. 2d 149, 1980 Miss. LEXIS 2001 (Miss. 1980).

Due compensation requirements of the United States and Mississippi constitutions did not prohibit taxing a landowner with appeal costs and damages pursuant to Code 1972 §§11-3-23 [repealed] and11-27-29 where he appealed from a judgment in a special court of eminent domain and was not successful in having the award increased. Antley v. Mississippi State Highway Com., 318 So. 2d 847, 1975 Miss. LEXIS 1452 (Miss. 1975).

This section does not contemplate or require that condemned land must be evaluated on the same day that a physical entry is made of it, but rather that payment, based upon an evaluation within a reasonable time prior thereto, must be made to the condemnee before actual physical possession of the property is taken by the condemnor. Pearl River Valley Water Supply Dist. v. Wright, 203 So. 2d 296, 1967 Miss. LEXIS 1356 (Miss. 1967).

If, in an eminent domain proceeding, the landowner is required to pay the costs of appeal to the Supreme Court when the condemning agency has appealed, the owner will be paid less than due compensation for his property and the constitutional requirement set forth in this section would thereby be nullified. Pearl River Valley Water Supply Dist. v. Brown, 254 Miss. 700, 184 So. 2d 407, 1966 Miss. LEXIS 1466 (Miss. 1966).

The condemnor must offer evidence of the value of the property taken. Morgan v. State, 161 So. 2d 780 (Miss. 1964).

The owners of an executory interest in land following a defeasible fee, upon an uncertain event, have a compensable interest on a taking or damaging. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Since the littoral rights incident to the ownership of beach front property along the Mississippi Gulf Coast is a most valuable attribute of such property, the state, acting through the county, could not, without first paying just compensation, “pump up” the submerged bottoms adjacent to privately owned uplands, and thereby cut off direct access to the water. Williams v. Otis Engineering Corp., 140 So. 2d 838 (Miss. 1962).

An assessment of damages for a taking for public use should not be set aside unless so excessive as to be contrary to the great weight of the evidence or to indicate bias or prejudice. Mississippi State Highway Com. v. Baker, 241 Miss. 738, 133 So. 2d 277, 1961 Miss. LEXIS 394 (Miss. 1961).

The annexation of lands to a city over the objection of their owners is not a taking of property without compensation. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

Private property shall not be damaged for public use without compensation. City of Jackson v. Cook, 214 Miss. 201, 58 So. 2d 498, 1952 Miss. LEXIS 459 (Miss. 1952).

Statute authorizing county supervisors to take land for a sea wall and requiring landowners to claim compensation within a specified time does not violate the Constitution forbidding the taking of property without compensation first being made. Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322, 1938 Miss. LEXIS 27 (Miss. 1938).

Neither the State nor any of its political subdivisions is required to tender in actual cash just compensation for property taken or damaged in eminent domain proceeding, and the requirement of just compensation in advance is satisfied when public faith and credit are pledged to a reasonably prompt ascertainment of payment and there is adequate provision for enforcing the pledge. Byrd v. Board of Sup'rs, 179 Miss. 880, 176 So. 386, 176 So. 910, 1937 Miss. LEXIS 55 (Miss. 1937).

To make it liable the board of supervisors must give such directions as make the act of the overseer their act, and mere notice of bad condition and failure to repair does not make it liable. Rainey v. Hinds County, 79 Miss. 238, 30 So. 636, 1901 Miss. LEXIS 44 (Miss. 1901).

The owner of land damaged by the taking of the land of another is entitled to compensation. Richardson v. Board of Mississippi Levee Comm'rs, 77 Miss. 518, 26 So. 963, 1899 Miss. LEXIS 65 (Miss. 1899).

The legislature may authorize the guardian of an infant, or person of unsound mind, to agree upon damages to be paid for the property of the ward taken for public use. Louisville, N. O. & T. R. Co. v. Blythe, 69 Miss. 939, 11 So. 111, 1892 Miss. LEXIS 7 (Miss. 1892).

The legislature cannot limit the time within which the owner may claim compensation. Yazoo-Mississippi Delta Levee Bd. v. Dancy, 65 Miss. 335, 3 So. 568, 1887 Miss. LEXIS 65 (Miss. 1887).

Compensation must be in money, and cannot be diminished by supposed benefits resulting from the improvement. Brown v. Beatty, 34 Miss. 227, 1857 Miss. LEXIS 128 (Miss. 1857); Isom v. Mississippi C. R. Co., 36 Miss. 300, 1858 Miss. LEXIS 98 (Miss. 1858); Penrice v. Wallis, 37 Miss. 172, 1859 Miss. LEXIS 14 (Miss. 1859); New Orleans, J. & G. N. R. Co. v. Moye, 39 Miss. 374, 1860 Miss. LEXIS 61 (Miss. 1860).

Compensation must precede the seizure of the property for public uses. Thompson v. Grand G. R. & B. Co., 4 Miss. 240, 1839 Miss. LEXIS 22 (Miss. 1839); Yazoo-Mississippi Delta Levee Bd. v. Dancy, 65 Miss. 335, 3 So. 568, 1887 Miss. LEXIS 65 (Miss. 1887).

18. ––– Construction and operation of railroads, right to due compensation.

State may lawfully require interstate railroad to abolish at own expense highway grade crossings, without regard to financial ability, if reasonably required by public safety. New Orleans & N.E.R. Co. v. State Hwy. Comm'n, 164 Miss. 343, 144 So. 558, 1932 Miss. LEXIS 251 (Miss. 1932).

Under municipal authority a street railway may lay its tracks across railroad tracks in the street without making compensation. Mississippi C. R. Co. v. Hattiesburg Traction Co., 109 Miss. 101, 67 So. 897, 1915 Miss. LEXIS 120 (Miss. 1915).

A railroad previously chartered held not exempt from liability to a private property owner for damages to her property caused by the operation of the road in such a manner as to create a private nuisance. Alabama & V. R. Co. v. King, 93 Miss. 379, 47 So. 857, 1908 Miss. LEXIS 162 (Miss. 1908).

This section contemplates damage caused from smoke, soot and cinders. King v. Vicksburg R. & L. Co., 88 Miss. 456, 42 So. 204, 1906 Miss. LEXIS 201 (Miss. 1906).

A railroad company cannot escape liability for damages to property, not taken on the ground that they are only such as necessarily and naturally arise from the proper management and control of its trains. Alabama & V. R. Co. v. Bloom, 71 Miss. 247, 15 So. 72, 1893 Miss. LEXIS 204 (Miss. 1893).

The legislature cannot provide for the appropriation of private property to a mere private enterprise, but it is not essential that the enterprise should be exclusively a state undertaking; the right of eminent domain may be exercised for the construction of railroads. Brown v. Beatty, 34 Miss. 227, 1857 Miss. LEXIS 128 (Miss. 1857).

19. ––– Airports and air space, right to due compensation.

Although a municipal airport had informally, without resorting to eminent domain or other legal process, acquired an overflight easement in the air space above the plaintiffs’ land, there had been an actual taking for public use of private property where low overflights of great numbers of aircraft habitually and constantly invaded the air space and substantially impaired the plaintiffs’ use and enjoyment of their property, and the owners were entitled to compensation. Emmons v. Pope, 232 So. 2d 709, 1970 Miss. LEXIS 1636 (Miss. 1970).

Where the use of the air space above the plaintiffs’ land by aircraft approaching and taking off from a municipal airport amounted to a taking for which the plaintiffs were entitled to compensation, they were not limited to recovery against the United States on the theory that federal legislation had placed navigable air spaces in the public domain and had pre-empted the field. Emmons v. Pope, 232 So. 2d 709, 1970 Miss. LEXIS 1636 (Miss. 1970).

20. ––– Sewerage systems, right to due compensation.

Where private builders had dedicated to public use, without any reservation, a part of a sewer system laid in public roads and streets, such portion of the sewer system was not private property protected by this section of the constitution, and a municipality, which had expanded its city limits and had taken over this portion of the system, was not required to pay compensation to the private builders. Stegall v. Jackson, 244 Miss. 169, 141 So. 2d 236, 1962 Miss. LEXIS 435 (Miss. 1962).

City was liable for any special and different damage suffered by property owner, not common to general public, caused by construction and maintenance of its sewerage system whether properly constructed and maintained or not. Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

In action by property owners against city for damages from sewerage system, instruction in substance that jury could not find for plaintiffs unless it believed from preponderance of evidence that injuries, if any, were caused by negligent construction and maintenance of sewerage system by city, held erroneous as presenting false issue and misleading because liability did not depend on negligence. Thompson v. Philadelphia, 180 Miss. 190, 177 So. 39, 1937 Miss. LEXIS 109 (Miss. 1937).

Landowners could recover for damages to land caused by overflow from defective municipal sewage septic tank, in view of constitutional prohibition against taking or damaging of private property for public purposes, as regards municipality’s contention that in maintaining septic tank it was exercising police power of conserving public health, which was governmental function, in exercise of which, although wrongful, municipality was not liable for damage. Hodges v. Drew, 172 Miss. 668, 159 So. 298, 1935 Miss. LEXIS 112 (Miss. 1935).

The Drainage Act of 1912 held not to authorize the taking of property without compensation. Jones v. Belzoni Drainage Dist., 102 Miss. 796, 59 So. 921, 1912 Miss. LEXIS 124 (Miss. 1912).

City was liable for damage caused by discharging sewerage into a stream flowing through plaintiff’s land. Thompson v. Winona, 96 Miss. 591, 51 So. 129, 1910 Miss. LEXIS 160 (Miss. 1910).

21. ––– Waterworks, right to due compensation.

After annexation of the service area of a certificated private water company, a municipality has no right to invade that area in competition with the private company without first paying compensation as provided in this section. City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So. 2d 215, 1965 Miss. LEXIS 1130 (Miss. 1965).

Public uses for which land bordering a water supply reservoir may be taken include facilities for visitors, and a wild life sanctuary. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So. 2d 572, 1963 Miss. LEXIS 369 (Miss. 1963), cert. denied, 376 U.S. 970, 84 S. Ct. 1136, 12 L. Ed. 2d 84, 1964 U.S. LEXIS 1512 (U.S. 1964).

Persons asserting a constitutional right to damages for a city’s negligently diverting water across their property are not required to elect whether to proceed on the ground of negligence or under the Constitution. McDowell v. Natchez, 242 Miss. 386, 135 So. 2d 185, 1961 Miss. LEXIS 574 (Miss. 1961).

Rights of riparian owners were subordinate to the rights of the state insofar as the soil beneath the navigable waters was concerned and the use of these lands for the benefit of the public was vested in the state and the state had the right to impose further and additional uses upon such property for the benefit of the public and in doing so the state was not taking private property for public use. Xidis v. Gulfport, 221 Miss. 79, 72 So. 2d 153, 1954 Miss. LEXIS 515 (Miss. 1954).

Trial court having found as fact that public necessity existed for water tower, granting of writ of prohibition restraining eminent domain court from condemning particular site selected by city grounded upon availability of other suitable sites was without authority. McLaurin v. State, 41 So. 2d 41 (Miss. 1949).

Decision by city that particular site which it seeks to condemn is best adapted to its proposed public use as site for water tower is legislative and is not reviewable by courts; and city is not to be restricted in its choice between two or more available sites. McLaurin v. State, 41 So. 2d 41 (Miss. 1949).

In city’s proceeding to condemn in part right to construct waterworks system, complainants were entitled to compensation for part of easement taken and damages resulting as consequence. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

Damages authorized to be paid by a drainage district does not contemplate the allowance of compensation for damages resulting from negligence. Stephens v. Beaver Dam Drainage Dist., 123 Miss. 884, 86 So. 641, 1920 Miss. LEXIS 90 (Miss. 1920).

22. – – Construction and use of streets and highways, right to due compensation.

It was not error for the special court to preclude testimony on damages to an owner’s remaining property based on loss of access because the owner did not have the right of access along a sight flare in the before condition; if there was no change in the access, there could be no compensation for damages regarding loss of access, and the owner retained access along a road and along the highway outside of the sight flare. Gateway United Methodist Church v. Miss. Transp. Comm'n, 147 So.3d 900, 2014 Miss. App. LEXIS 523 (Miss. Ct. App. 2014).

Special court of eminent domain did not abuse its discretion in disallowing testimony on damages to the remainder of an owner’s for the taking of access along a highway by the Mississippi Transportation Commission (MTC) because the right of MTC to regulate entrances into the highway under the police power was well established and not a compensable taking. Gateway United Methodist Church v. Miss. Transp. Comm'n, 147 So.3d 900, 2014 Miss. App. LEXIS 523 (Miss. Ct. App. 2014).

In a case where a city widened ditches on the owner’s property, a chancery court failed to determine if this exceeded the scope of the city’s prescriptive easement. If, on remand, the chancellor found that the city exceeded the scope of its easement by widening the ditch, the owner would have at least been entitled to damages for the physical occupation of his property, even if the chancellor found no damages to the remainder. Fratesi v. City of Indianola, 972 So. 2d 38, 2008 Miss. App. LEXIS 13 (Miss. Ct. App. 2008).

Homeowners who suffered additional damages allegedly attributable to a highway construction project a few years after the homeowners were compensated for the taking of their property by the condemning authority in an eminent domain action could not recover for the additional damages, even if those damages were not reasonably foreseeable at the time of the original eminent domain trial. King v. Mississippi State Highway Com., 609 So. 2d 1251, 1992 Miss. LEXIS 590 (Miss. 1992).

Where state highway commission wrote landowner that fair market value of property to be taken including all damages was some $40,000, yet when the matter came on for hearing, the commission offered only two appraisers, who testified that the fair market value was $19,000 and $19,700 respectively, and the appraisers testified there were no damages to the remainder despite the facts that the property was being divided into two parcels by a controlled access highway, and the landowner would be forced to travel 3 to 4 miles in going from one parcel to another, the highway would be from 5 to 14 feet above the surrounding land and residences constructed would be greatly below the surface of the highway, and lastly the larger parcel of the remaining property would be completely separated by the highway from the navigable portion of a creek running along the western boundary of the property, an award of $19,700 did not give the landowner full and adequate compensation for the taking of her property. Starkville Coca--Cola Bottling Co. v. Rutherford, 275 So. 2d 381, 1973 Miss. LEXIS 1357 (Miss. 1973).

Where the construction of a frontage road paralleling a limited access highway will substantially impair or damage an abutting property owner’s right of access to the highway in question and will effectively destroy his right of direct and free access thereto as it had previously existed, he is entitled to be compensated for this loss of access as well as for the value of a small parcel of land which will be embraced within the frontage road’s easement. McLaughlin v. State, 210 So. 2d 661, 1968 Miss. LEXIS 1509 (Miss. 1968).

The adoption of a declaratory order by the State Highway Commission wherein a certain highway was designated as a limited access highway did not amount to a taking of an abutting property owner’s right of direct and free access to the highway, nor did it obviate the constitutional necessity of paying just compensation and damages when and if it actually should be taken or damaged. McLaughlin v. State, 210 So. 2d 661, 1968 Miss. LEXIS 1509 (Miss. 1968).

The highway commission is liable in damages to a property lessee where, as a consequence of the reconstruction of a highway, the natural flow of water from the area was caused to increase and carry with it dirt, sand, clay, and other materials so that a lake on the lessee’s land became partially filled. Mississippi State Highway Com. v. Thomas, 202 So. 2d 925, 1967 Miss. LEXIS 1350 (Miss. 1967).

Where the Highway Commission acquired a tract of land for the purpose of removing sand and clay therefrom for use as topping material, and after the property was cleared water ran off more rapidly and in greater quantity and carried with it sand, clay, and debris upon the property of an adjacent owner, the consequential damage was the result of the taking of property by the commission for public use for which recovery could be had under this section. Mississippi State Highway Com. v. Engell, 251 Miss. 855, 171 So. 2d 860, 1965 Miss. LEXIS 911 (Miss. 1965).

Diminution in the flow of traffic past property by changes in the highway system is not such a taking as to require compensation, even though the value of the property may thereby be diminished. Morris v. Mississippi State Highway Com., 240 Miss. 783, 129 So. 2d 367, 1961 Miss. LEXIS 511 (Miss. 1961).

Where a highway, which had not been a limited access highway, was made into a nonaccess highway, this was the equivalent of an appropriation of the abutting property owner’s right to have an easy way of access to the main highway. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that abutting landowner was not entitled to damages resulting solely from inconvenience in entering and leaving his remaining property, provided that the public at large suffered the same inconvenience, was erroneous. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that the Highway Commission could construct the interchange on its right of way without payment of damages to an abutting property owner was erroneous, where it appeared that the construction included a high embankment near the owner’s land, and the commission had revoked the owner’s permit to enter the highway directly, so that his right of access to the highway was impaired. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

Since the city had no power to close an alley except upon first making due compensation to the abutting landowners, if the city had closed the alley without making due compensation and the State Highway Commission had entered upon and obstructed it by a dirt embankment, the city and Highway Commission would have been jointly liable. Collins v. Mississippi State Highway Com., 233 Miss. 474, 102 So. 2d 678, 1958 Miss. LEXIS 405 (Miss. 1958).

A right of ingress and egress to an abutting property owner is a property right and cannot be taken without compensation therefor. Mississippi State Highway Com. v. Spencer, 233 Miss. 155, 101 So. 2d 499, 1958 Miss. LEXIS 366 (Miss. 1958).

County has jurisdiction over road so as to make it liable for damage resulting from an overflow caused by improper construction of road where county followed method prescribed by law, Code 1942, § 8314, notwithstanding State Highway Department and WPA workers did part of the actual construction of the road, with permission of county supervisors. Stigall v. Sharkey County, 207 Miss. 188, 42 So. 2d 116, 1949 Miss. LEXIS 328 (Miss. 1949).

A survey by state and aid in construction of a road would not divest county and invest State with jurisdiction of the road since that must be done by affirmative act of Legislature. Stigall v. Sharkey County, 207 Miss. 188, 42 So. 2d 116, 1949 Miss. LEXIS 328 (Miss. 1949).

Relocation of state highway and abandonment by state highway commission of old highway on which property owner’s premises abutted, allegedly depriving the owner of the right of ingress and egress if the old highway should not be maintained, did not render commission liable to property owner since it was under no duty to maintain the old highway, notwithstanding refusal of the county board of supervisors to maintain it. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

State Highway Commission was liable to a property owner for damage to her land, resulting from its use thereof for parking road machinery during the course of road construction and as an essential part of its work, over the protest of the landowner. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Where the evidence in a proceeding for condemnation by the State Highway Commission tended to show that construction of a railroad right of way adjacent to defendants’ land rendered defendants’ access to their land more inconvenient, it was error to instruct the jury that the defendants could not be allowed anything for the railroad’s right of way or for any grading or construction on such right of way, since this section of the Constitution prohibits both the taking and damaging of private property for public use and property may be damaged without the taking. Smith v. Mississippi State Highway Com., 183 Miss. 741, 184 So. 814, 1938 Miss. LEXIS 289 (Miss. 1938).

Landowners held entitled to recover compensation from State Highway Commission for strip of land taken for State highway without condemnation or compensation, as against contention of Commission that it was not at time of taking of land a corporation so that it could be sued, where Commission was thereafter incorporated, since trespass was continuing one so that cause of action arose when Commission was incorporated. State Highway Com. v. Flint, 177 Miss. 830, 172 So. 299, 1937 Miss. LEXIS 166 (Miss. 1937).

County supervisors’ order transferring portion of highway to highway commission sufficiently established county’s claim of ownership, as respects right to compensation for taking. Herod v. Carroll County, 162 Miss. 78, 138 So. 800, 1932 Miss. LEXIS 111 (Miss. 1932).

County cannot assume jurisdiction over highway, and expend public funds in constructing and repairing it, without paying for damages for taking. Herod v. Carroll County, 162 Miss. 78, 138 So. 800, 1932 Miss. LEXIS 111 (Miss. 1932).

The streets of the city may be devoted to any proper use incident to construction and maintenance of a public thoroughfare, but a city is liable for damages inflicted on abutting property by negligent use of street in failing to provide proper drains. City of Laurel v. Hearn, 143 Miss. 201, 108 So. 491, 1926 Miss. LEXIS 256 (Miss. 1926).

Where a levee or a public road constructed by the county which merely obstructs the flow of overflow waters and returns them to the channels earlier than they would be, the county is not liable to damages from a greater overflow on property not contiguous to the highway caused by the levee. Herring v. Lee County, 130 Miss. 1, 93 So. 436, 1922 Miss. LEXIS 179 (Miss. 1922).

A county is liable where its supervisors approved plans and specifications and accepted work for the negligent construction of a roadbed. Covington County v. Watts, 120 Miss. 428, 82 So. 309, 1919 Miss. LEXIS 102 (Miss. 1919).

The laying of an additional track in the street by street railway would not require compensation to abutting owners. Williams v. Meridian L. & R. Co., 110 Miss. 174, 69 So. 596, 1915 Miss. LEXIS 1 (Miss. 1915).

A municipality is not authorized to extend a street over the right of way of a railroad without exercising the right of eminent domain. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

The legislature may authorize the use of the streets of a municipality to a corporation without compensation to the municipality where the use is confined to its right of way. Mayor, etc., of Canton v. Canton Cotton Warehouse Co., 84 Miss. 268, 36 So. 266, 1904 Miss. LEXIS 39 (Miss. 1904).

A county is not liable for the negligent or tortious acts of a road overseer. Rainey v. Hinds County, 79 Miss. 238, 30 So. 636, 1901 Miss. LEXIS 44 (Miss. 1901).

Under this section a county is liable to the owner for damages to land which it wrongfully causes to be covered with water by the improper construction of a public causeway. Raney v. Hinds County, 78 Miss. 308, 28 So. 875, 1900 Miss. LEXIS 115 (Miss. 1900).

23. ––– Change of grade of street or highway, right to due compensation.

An actual taking or physical invasion of property is not the only basis for compensation. Damage to adjacent private property caused by public use is also compensable. Property is damaged when it is made less valuable. Personal inconvenience, discomfort, or interference with use is not compensable unless it results in the depreciation of value. Even then, compensation is not definite, but these factors are evidence of conditions which adversely affect the value of land. Persons owning property abutting streets have a right to reasonable access to their property from the street, and altering that access may damage the property. Where alteration of access, including light, air and view, diminishes the value of the property, the owner is entitled to compensation; such compensation is commonly termed consequential damages. Gilich v. Mississippi State Highway Com., 574 So. 2d 8, 1990 Miss. LEXIS 778 (Miss. 1990).

Compensation is required for a change of grade in a roadway which adversely affects the value of adjacent property, such as where a change in grade casts increased quantities of water upon the landowner’s property. City of Gulfport v. Anderson, 554 So. 2d 873, 1989 Miss. LEXIS 441 (Miss. 1989).

The alteration of access to property requires compensation only where, and to the extent that, alteration of access diminishes the value of the property. Matters such as parking and increased difficulty in maneuvering automobiles may likewise be considered to the extent of their adverse effect on property value. Additionally, loss of frontage that “moves” buildings and facilities closer to a roadway may adversely affect value and require compensation. However, compensation for such losses is due only to the extent that the damage is caused by governmental action as distinguished from landowner improvements. Thus, such losses are legally illusory where there has been no taking, but only a reclaiming of a right-of-way that the landowner has theretofore enjoyed and where the landowner has boxed himself or herself in by the manner in which he or she has constructed or purchased the improvements on the property. So long as, after the governmental action at issue, there remains access which would be reasonable if the property had been reasonably improved, no compensation is due. City of Gulfport v. Anderson, 554 So. 2d 873, 1989 Miss. LEXIS 441 (Miss. 1989).

While municipalities have the right to alter, change, construct and reconstruct its streets and individual litigants have no right to control their action, yet if in so doing private property is damaged the city is liable for such damage under this section. City of Jackson v. Cook, 214 Miss. 201, 58 So. 2d 498, 1952 Miss. LEXIS 459 (Miss. 1952).

A municipality is liable to an abutting property owner who has made valuable improvements according to the prior established grade of a street, when the municipality raises or lowers the grade to the damage of the property owner. City of Water Valley v. Poteete, 203 Miss. 382, 33 So. 2d 794, 1948 Miss. LEXIS 283 (Miss. 1948).

Injury to abutting property by change of grade of highway by municipality or any other person, natural or artificial, held within constitutional provision that private property shall not be “damaged” for public use without due compensation. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

Statutes held to impliedly authorize payment by State Highway Commission for damage to private property incurred through public use, as by change in grade of highway, although no land is actually appropriated. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

Each of different persons having interest in property damaged by change of grade in street is entitled to compensation. Eady v. State, 121 So. 295 (Miss. 1929).

Owners of abutting property injured by city changing grade of street must be compensated for damage. Eady v. State, 121 So. 295 (Miss. 1929).

Under this section a county or municipality by changing the grade of a street or road to the damage of an abutting property owner is liable for such damages. Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452, 1925 Miss. LEXIS 177 (Miss. 1925).

A city must make compensation where it damages private property for the general welfare by a change of grade of street. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

Barricades in a street erected by the city which interfered with egress and ingress from and to plaintiff’s property entitles him to damages, and this is true where the party damaged has only an equitable title and possession of the property. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

An abutting property owner is not estopped from asserting the liability of the city for injury caused by a change in grade of a street by merely signing a petition to have the street paved. Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858, 1911 Miss. LEXIS 205 (Miss. 1911).

Although a city authorized a railroad to raise a street grade to the damage of abutting property owners, the railroad company will be liable for damages. Yazoo & M. V. R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459, 1905 Miss. LEXIS 110 (Miss. 1905); Brahan v. Meridian Home Tel. Co., 97 Miss. 326, 52 So. 485, 1910 Miss. LEXIS 242 (Miss. 1910).

24. ––– Vacation or closing of street or highway, or railroad, right to due compensation.

A circuit court erred in reducing the acreage of a railroad right-of-way sought to be condemned by the State for a penitentiary based on its finding that the State had shown no need for more than a short stretch of the right-of-way where the circuit court found neither fraud nor clear abuse of discretion. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

This section does not require that a person who seeks to vacate a street pay compensation to persons claiming damage from the vacation. Burkett v. Ross, 227 Miss. 315, 86 So. 2d 33, 1956 Miss. LEXIS 691 (Miss. 1956).

Where there was a finding by chancellor that closing of streets was for public good, in a suit by landowners, whose land did not abut on the closed section of the street, closing ordinance did not violate the constitution. Puyper v. Pure Oil Co., 215 Miss. 121, 60 So. 2d 569, 1952 Miss. LEXIS 545 (Miss. 1952).

The adoption of street closing ordinance was itself a determination by the mayor and board of aldermen that the public interest and welfare required that the street be closed. Puyper v. Pure Oil Co., 215 Miss. 121, 60 So. 2d 569, 1952 Miss. LEXIS 545 (Miss. 1952).

Damages of $5,000 for a condemned highway right of way across middle of a farm for a distance of a mile and a half, consisting of 35.1 acres, was sustained by the evidence, where witnesses estimated the value of the land taken and the reduced value of that remaining at from $2,000 to $15,000, especially where jurors personally inspected and examined the land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Upon abandonment of old highway on which property owner’s premises abutted and relocation of state highway by state highway commission, the mere fact that such owner’s premises have been left off the new paved highway does not of itself afford a legal basis for the recovery of damages; and the damages thereby sustained are not recoverable so long as there remains a public highway, maintained as such in substantially the same location where the old highway existed. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

A county is liable for damages to an abutting landowner for abandoning a public highway. Jackson v. Monroe County, 124 Miss. 264, 86 So. 769, 1920 Miss. LEXIS 505 (Miss. 1920).

An abutting owner is entitled to compensation where to his damage the county has vacated a country road depriving him of access to a farm. Morris v. Covington County, 118 Miss. 875, 80 So. 337, 1918 Miss. LEXIS 142 (Miss. 1918).

The courts have supervisory power over closing an alley by municipal ordinance and it must be judicially determined that the use is a public one. Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, 1915 Miss. LEXIS 236 (Miss. 1915).

Where a municipality closes and vacates an established street, it deprives the owner of abutting lots of a right which is property, and which cannot be taken except on due compensation being first made as provided in this section. Laurel Improv. Co. v. Rowell, 84 Miss. 435, 36 So. 543, 1904 Miss. LEXIS 69 (Miss. 1904).

25. ––– Additional public use of property devoted to public use, right to due compensation.

Where an abutting property owner’s predecessor in title had conveyed a highway right of way to the state highway commission, and subsequently a gas company, pursuant to permission obtained from the state highway commission, laid a gas distribution line wholly within the right of way, the abutting property owner was not entitled to rent from the gas company, under evidence showing that his property was not damaged or depreciated in value by the use of the right of way for the distribution line; nor was there violation of the abutting property owner’s rights under § 17 of the Mississippi Constitution. Mississippi Valley Gas Co. v. Boydstun, 230 Miss. 11, 92 So. 2d 334, 1957 Miss. LEXIS 340 (Miss. 1957).

Where a right of way was conveyed to the state highway commission for highway purposes, and electric power company constructed power lines on the highway right of way, the landowner could recover damages for the additional servitude on the ground that private property should not be taken or damaged for public use except on due compensation. Berry v. Southern Pine Electric Power Asso., 222 Miss. 260, 76 So. 2d 212, 1954 Miss. LEXIS 644 (Miss. 1954).

Where state constructed a bridge across the bay of St. Louis, which bridge was partly across area of riparian owners who had been granted the privilege and license of planting and gathering oysters and erecting bath-houses and other structures, the state by building this bridge exercised its power to impose an additional public use upon a property which was already set aside for public purposes and the exercise of this power was not taking of property for which compensation must be made. Crary v. State Highway Com., 219 Miss. 284, 68 So. 2d 468, 1953 Miss. LEXIS 389 (Miss. 1953).

This section of the Constitution prohibits the taking of private property for public use without compensation but does not prevent the imposition of an additional public use upon property already set aside for a public purpose. Bailey v. Pierce, 194 So. 743 (Miss. 1940).

The public interest is subject to legislative control, and the legislature may devote public property to an additional public use without compensation for such use. Bailey v. Pierce, 194 So. 743 (Miss. 1940).

Under this section the State Highway Commission was not required to make compensation to the county for the use of school lands because of construction across such lands of a public highway. Bailey v. Pierce, 194 So. 743 (Miss. 1940).

26. ––– Measure of compensation or damages, right to due compensation.

Landowner’s expert appraiser’s opinion as to the diminution in value of the remainder of the landowner’s property occasioned by the taking of an easement for a pipeline should have been excluded under Miss. R. Evid. 702 because he failed to offer admissible market-data or comparable-sales evidence. Gulf S. Pipeline Co., LP v. Pitre, 35 So.3d 494, 2010 Miss. LEXIS 199 (Miss. 2010).

Company, which was leasing the property that was taken by the Mississippi Transportation Commission, was not entitled to any of the condemnation award of the lessor because it had no leasehold interest as its leases had terminated. Thus, the special court properly granted the Commission’s motion for partial summary judgment finding that (1) the company was only entitled to compensation for the value of the billboards on the property that was taken and (2) compensation could only be calculated using the cost analysis, which would provide the company with the new cost of its signs, less depreciation. Eller Media Co. v. Miss. Transp. Comm'n, 882 So. 2d 198, 2004 Miss. LEXIS 973 (Miss. 2004).

In an eminent domain case, the special court properly granted the Mississippi Transportation Commission’s motion for summary judgment awarding the company, which was leasing the property that was taken and on which it had placed three billboard signs, $ 57,700 for each billboard sign because the parties had entered into and filed a stipulation that the cost new, less depreciation, for each billboard on the property was $ 57,700. Eller Media Co. v. Miss. Transp. Comm'n, 882 So. 2d 198, 2004 Miss. LEXIS 973 (Miss. 2004).

Where jury’s verdict of amount owed to landowners for property taken by the State was between the values set by all three experts, the verdict was not contrary to the weight of the credible evidence, or the result of bias, passion, or prejudice. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

Where a contractor demolished more property than was condemned, such additional property was not taken without compensation, and a new trial to determine the value of such property was not required; instead, the property owner’s remedy was an action for the damage to the remaining property. Checkers Drive-In Restaurants, Inc. v. Mississippi Transp. Comm'n, 755 So. 2d 1238, 2000 Miss. App. LEXIS 22 (Miss. Ct. App. 2000).

Where public improvements are to be financed by a special assessment upon a class of property owners, a condemnee may not claim the present value of the assessment in diminution of the value of the remainder of his or her property after a portion has been taken. Dear v. Madison County by & Through Madison County Bd. of Supervisors, 649 So. 2d 1260, 1995 Miss. LEXIS 32 (Miss. 1995).

Neither access to property remaining after taking for public road nor parking on property are attributes or capabilities of land subject to separate valuation in eminent domain proceedings; they may be considered only insofar as they affect value of property remaining after taking. Trustees of Wade Baptist Church v. Mississippi State Highway Com., 469 So. 2d 1241, 1985 Miss. LEXIS 2094 (Miss. 1985).

In arriving at fair market value of entire tract before taking, evidence of the reproduction cost of buildings on the property taken is admissible as a factor to be considered by the jury in arriving at a fair market value; although whether testimony relative to the reproduction cost is admissible in a given case lies largely in the sound discretion of the trial judge, such testimony is always admissible when it is established that the improvements are reasonably adopted to the land and the depreciated value of the improvement adds to the value of the entire property by the amount of their depreciated value; when such testimony is admitted, the condemnor is entitled to such instruction that such testimony is not evidence of market value but only a factor to be considered along with the other testimony in arriving at a fair market value. Mississippi State Highway Com. v. Owen, 308 So. 2d 228, 1975 Miss. LEXIS 1854 (Miss. 1975).

Although there is a danger in admitting testimony as to specific items of damage in an eminent domain proceeding, in that it could result in the pyramiding of damages by the jury, such testimony is competent when related to the before and after value rather than as a basis for a separate verdict, and in a proceeding involving the taking of a grocery store, testimony as to the cost of removing the stock of goods and store fixtures from the premises was admissible, as a consequence of the taking and as an element of damage. Blackwelder v. Bryant, 246 So. 2d 512, 1971 Miss. LEXIS 1400 (Miss. 1971).

In arriving at the before and after value in an eminent domain proceeding, a witness may testify as to any injuries which depreciate the value of the remaining land, provided that the witness connects such injuries with the before and after value and considers them not as a specific item of damage but as bearing on such market value. Blackwelder v. Bryant, 246 So. 2d 512, 1971 Miss. LEXIS 1400 (Miss. 1971).

The acceptance of testimony as to the value of condemned land on the date of hearing was error as contrary to the rule establishing the date of filing of the condemnation proceeding as the proper date to be used to determine values by the “before and after” method, but such error was harmless where it was not contended that there was any change in market value between the date of filing and the date of hearing. Mississippi State Highway Com. v. Frierson, 240 So. 2d 457, 1970 Miss. LEXIS 1295 (Miss. 1970).

In an action for damages brought by lessees against the highway commission for damages, it was reversible error for the trial court to give conflicting instructions on the measure of damages recoverable. Mississippi State Highway Com. v. Thomas, 202 So. 2d 925, 1967 Miss. LEXIS 1350 (Miss. 1967).

A proper instruction as to the measure of damages where a leasehold has been damaged without an actual taking is the difference between the fair market value of the leasehold before and after the completion of the work for public use from which the damage results. Mississippi State Highway Com. v. Thomas, 202 So. 2d 925, 1967 Miss. LEXIS 1350 (Miss. 1967).

In the absence of some stipulation to the contrary, the date of the institution of the suit in the special eminent domain court is the date of the taking, and it is the value of the land immediately before this taking which this section contemplates will constitute the “before the taking” computation. Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 172 So. 2d 196, 1965 Miss. LEXIS 1131 (Miss. 1965).

The anticipated profits from a cemetery business cannot be taken into consideration in determining the fair, cash market value of the land sought to be acquired. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Save in exceptional cases where part of a tract is taken, due compensation is the value of property taken and the damage done to the fair market value of the entire tract by the taking. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Any type of damage may be considered insofar as it affects the fair market value of the remaining property. Mississippi State Highway Com. v. Colonial Inn, Inc., 246 Miss. 422, 149 So. 2d 851, 1963 Miss. LEXIS 459 (Miss. 1963).

The cost of removing personal property from the premises condemned may be shown as bearing upon the question of value. Mississippi State Highway Com. v. Rogers, 242 Miss. 439, 136 So. 2d 216, 1961 Miss. LEXIS 581 (Miss. 1961).

The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken. Mississippi State Highway Com. v. Tomlinson, 223 Miss. 623, 78 So. 2d 797, 1955 Miss. LEXIS 417 (Miss. 1955).

Where land was condemned to raise grade of highway, a judgment in the eminent domain covered all damages which might reasonably result to the property owners from the construction of the highway and the property owners were not entitled to any further damage resulting from the second elevation of the grade of the highway. Mississippi State Highway Com. v. Tomlinson, 223 Miss. 623, 78 So. 2d 797, 1955 Miss. LEXIS 417 (Miss. 1955).

In eminent domain proceedings, under unusual conditions where the before and after values test is inapplicable to the peculiar facts, court will adopt rule supported by reason, logic and common sense, designed to result, as far as may be humanly possible, in ascertainment of true, accurate damage suffered by property owner. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

In eminent domain proceedings, measure of damage to property not actually taken is difference between fair market value of such property before, as compared to such value after, the taking. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

In eminent domain proceedings, measure of damage to property not actually taken, if property has no market value, is difference between fair, reasonable value of such property before, as compared to such value after, the taking. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

In eminent domain proceedings, jury must base its verdict on difference in before and after value of property, but replacement, reconstruction and remedying costs may be shown and used as bearing upon accuracy, or inaccuracy, of amount of damage deduced from proof of comparative values. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

Landowner, in condemnation proceedings, cannot recover damages for specific injuries to his remaining land, but evidence of such injuries is competent if, but not unless, such would affect the market value of the remaining land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Admitting evidence, in proceedings to condemn highway right of way, of specific injuries to remaining land, such as cost of rebuilding and removing barns and silo, digging new pools, and constructing three miles of fence, was not error where landowner was careful to connect the specific items of cost with, and have witnesses consider them only as bearing upon, market value of the remaining land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

It was the province of the jury to fix damages from conflicting testimony in condemnation proceedings by state highway commission. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Court may, in a proper case, allow interest as part of the damages or compensation to which the owner is entitled when property is taken under power of eminent domain. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Question in condemnation proceeding of prior interest and rate thereof, as element of damage, should have been admitted to and passed upon by the jury, and the amount of the verdict constituted the total damage fixed by the jury, and the trial judge had no power to add thereto prior interest, nor to fix the rate thereof. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Upon relocation of state highway and abandonment of old highway, allegedly depriving property owner of right of egress and ingress of old highway should not be repaired and maintained, the proper measure of damages is not the difference in the value of plaintiff’s property as now located by reason of such relocation and abandonment and its value if it abutted on the new highway, but it is the difference in its value as now located and the amount that it would be worth if the old highway were maintained as theretofore. Quin v. Mississippi State Highway Com., 194 Miss. 411, 11 So. 2d 810, 1943 Miss. LEXIS 39 (Miss. 1943).

Since due compensation hereunder entails the ascertainment of such compensation, and the duty of ascertaining the amount is necessarily cast upon the parties seeking to condemn or who have damaged the property for public use, the full measure of due compensation required hereunder includes the cost incurred in its ascertainment. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Due compensation for the taking or damaging of property for public use includes an allowance of five per cent upon the amount of an affirmed judgment against the condemning authority. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Due compensation hereunder includes interest at the legal rate on a judgment obtained for damages from the date of the original rendition thereof. State Highway Com. v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, 1941 Miss. LEXIS 6 (Miss. 1941).

Where the rule that the measure of damages in an eminent domain proceeding is the difference between the fair market value of the property before the taking and the fair market value after the taking, is applicable, the owner of the land cannot recover damages for specific injuries to the remaining land, although evidence of such injuries is competent if, but not unless, they would affect the market value of the remaining land. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Due compensation hereunder is a judicial and not a legislative question. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The market value of property is the price which it will bring when it is offered by sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The formula for measuring compensation to be awarded the owner in an eminent domain proceeding, when a part of his land is taken for public use is: When part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering the general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The formula or the rule of before and after taking, must be construed in connection with the facts of the case the court is then considering and the particular questions there presented for decision. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken, as in the case of a highway, the proper construction of the contemplated highway. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The many items which may arise in a highway condemnation case as to depreciation caused property are never competent as separate items of recoverable damage. State Highway Com. v. Day, 181 Miss. 708, 180 So. 794, 1938 Miss. LEXIS 111 (Miss. 1938).

For measure of damages, see Richardson v. Levee Comm'rs, 68 Miss. 539, 9 So. 351, 1891 Miss. LEXIS 9 (Miss. 1891).

The legislature may direct the appointment of commissioners by the chancery court to estimate damages. New Orleans, B. R., V. & M. R. Co. v. Drake, 60 Miss. 621, 1882 Miss. LEXIS 104 (Miss. 1882).

27. – – Burden of proof, right to due compensation.

Because an expert in an eminent domain action had little or no knowledge as to the valuation of a business sign based on the cost approach, his testimony based on a quote from a sign company should have been stricken since he was merely acting as a conduit for hearsay about another expert’s opinion, in violation of Miss. R. Evid. 703; however, additur was not an appropriate remedy in this case because the jury verdict was based on inadmissible evidence. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

The condemnor has the burden of proving the value of the condemned property. Ellis v. Mississippi State Highway Com., 487 So. 2d 1339, 1986 Miss. LEXIS 2456 (Miss. 1986).

Additur was not appropriate in an eminent domain case because the damages awarded to two land owners were not contrary to the overwhelming weight of the evidence; the admissibility of an expert’s opinion regarding the value of the land was waived, so the jury properly took into account the valuation evidence presented by both parties in making its decision. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

In action by owner, or lessee, against State Highway Commission for damages to plaintiff’s property and business resulting from raising of grade of highway adjoining plaintiff’s property, burden is on plaintiff to show legal damage and extent thereof. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

Burden of proof is on condemnor on issue of damages sustained by the taking. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

In an eminent domain proceeding by the state highway commission to condemn land for the construction of a state highway, the burden of proof on the question of damages was on the highway commission, and the court below did not err in refusing an instruction that the burden of proof was upon the landowner to establish by a preponderance of the evidence the damages sustained by the taking of the property for a public highway. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

28. Actions and remedies–In general.

Landowners’ inverse condemnation claim against the State of Mississippi did not fail as a matter of law due to the land in question being public trust tidelands because there was a factual dispute as to the boundary of the public trust tidelands, which a jury resolved. State v. Murphy, 202 So.3d 1243, 2016 Miss. LEXIS 446 (Miss. 2016).

When a developer sued a city, the city’s public utilities commission, and a utilities department (department) for damage to the developer’s property in installing utility lines, the developer’s inverse condemnation failed because it was not alleged that the damage was committed for a “public use.” Kelley v. Corinth PUC, 200 So.3d 1107, 2016 Miss. App. LEXIS 36 (Miss. Ct. App.), cert. denied, — So.3d —, 2016 Miss. LEXIS 393 (Miss. 2016), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 394 (Miss. 2016), cert. denied, 203 So.3d 599, 2016 Miss. LEXIS 403 (Miss. 2016).

Suit against the state transportation commission, alleging a taking without just compensation in violation of Miss. Const. Art. 3, § 17, need not have been brought under the Mississippi Tort Claims Act, and thus was not time-barred under Miss. Code Ann. §11-46-11(3), because the constitutional provision was self-executing. McLemore v. Miss. Transp. Comm'n, 992 So. 2d 1107, 2008 Miss. LEXIS 305 (Miss. 2008).

While the question of whether the taking of property is necessary is a legislative question which the courts should not disturb absent fraud or abuse of discretion, the question of whether there is a public use is a judicial question without regard to legislative assertions that the use is public; thus, a trial court did not err when it determined whether a landowner’s property was in fact taken for a contemplated public use without giving discretion to the city legislature’s determination of public necessity. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

A trial court did not err by determining that the condemnor city, rather than the landowner, had the burden of proving that the landowner’s property was being taken for a public use, even though the city legislature had made a determination of public necessity. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

In a suit to enjoin the county sheriff and members of the board of supervisors of the county from removing top soil from a portion of land leased to plaintiff and to nullify an order by the board of supervisors cancelling plaintiff’s lease, the chancery court had jurisdiction to hear the dispute and award damages against the governmental subdivision in order to provide a remedy for plaintiff’s constitutionally guaranteed right against taking of property without payment of due compensation therefor. Williams v. Walley, 295 So. 2d 286, 1974 Miss. LEXIS 1500 (Miss. 1974).

Landowners, joining in equity suit to abate common nuisance and for damages, have right to have their controversy adjudicated in court of competent jurisdiction, and chancery court in which suit was brought has jurisdiction to proceed, after settlement of suit on abatement of nuisance issue, to full and complete determination of all remaining issues, even though they may cover only legal rights and require granting of none of legal remedies. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

29. – – Actions by or against political subdivisions, actions and remedies.

Property owners’ inverse condemnation action against a city was time-barred because each heavy rain that caused a city ditch to damage the owners’ property was not a separate taking, as the taking began when the owners knew damage had occurred. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

Property owners’ inverse condemnation action against a city was time-barred because (1) the language “without limitation or qualification” in an opinion interpreting Miss. Const. art. 3, § 17 only applied to the type of damage, (2) no Mississippi authority held otherwise, so no constitutional rights were violated or materially impaired, and (3) the cause of action accrued upon discovering an injury, not the injury’s cause. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

It was not error to hold the State of Mississippi completely liable for an inverse condemnation claim when a city took possession of the land for construction of a harbor, and the State was not involved in the harbor project, because the State assumed ownership of the property and leased the property to the city. State v. Murphy, 202 So.3d 1243, 2016 Miss. LEXIS 446 (Miss. 2016).

Because property owners failed to plead a taking claim in their complaint, they were barred from attempting to argue that theory on appeal; even a liberal reading of the owners’ complaint would not and did not put Mississippi Department of Transportation on notice of a constitutional taking claim. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

Developer’s regulatory takings claim, that a city erroneously applied an otherwise valid flood plain ordinance, was unripe for review because, when the developer was notified that Moderate Rehabilitation program contracts related to an apartment complex the developer owned would not be renewed, it suspended plans to rehabilitate the complex and abandoned all avenues of review that were available to it; consequently, the court was unable to evaluate the extent to which the city interfered with the developer’s reasonable investment-backed expectations because no final decision had been made, nor even sought, regarding the application of the flood-zone ordinance. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

To the extent that a developer alleged an ordinary takings claim against a city, such claim was unripe because the city had not made a final decision on whether to condemn the developer’s property, and had done nothing more than state its intent to proceed with condemnation. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

Regional housing authority, in distributing alternative housing vouchers to the tenants of a flooded apartment complex, did not effect a taking under Mississippi law because the housing authority did not force the tenants to abandon their leases or interfere with the owner/developer’s reasonable investment-backed expectations since the tenants were simply given an option to either accept the voucher and use it elsewhere, or to decline the voucher and remain under their leases at the apartment complex. Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

In a dispute surrounding the enactment of a district ordinance regulating the disposal of wastewater, residents, who owned septic systems, alleged that the enactment of the ordinance amounted to a taking. A genuine issue of material fact existed; therefore, the chancellor erred in granting summary judgment on this issue, and the record was insufficiently developed to afford review. Green v. Cleary Water, Sewer & Fire Dist., 910 So. 2d 1022, 2005 Miss. LEXIS 394 (Miss. 2005), cert. denied, 547 U.S. 1098, 126 S. Ct. 1883, 164 L. Ed. 2d 568, 2006 U.S. LEXIS 3287 (U.S. 2006).

Section 47-5-112 [repealed] did not violate any “right” enjoyed by a county under the Fifth Amendment to the United States Constitution or § 17 of the Mississippi Constitution, since political subdivisions of a state have no Fifth or Fourteenth Amendment protections against the state, and § 17 of the Mississippi Constitution applies only to “private” property. State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 1994 Miss. LEXIS 163 (Miss. 1994).

The theory of the allowance of damages under this section is not maintainable under a declaration grounded directly and solely upon the negligence of a municipality, since the defenses available to the defendant in a suit for damages under this provision, and a suit based on the theory of negligence, are entirely different. City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595, 1940 Miss. LEXIS 27 (Miss. 1940).

Suit against State Highway Commission will lie only for liability imposed by statute, though Commission is body corporate and may sue and be sued. State Highway Com. v. Knight, 170 Miss. 60, 154 So. 263, 1934 Miss. LEXIS 97 (Miss. 1934).

30. ––– Determination of public use, actions and remedies.

The evidence was sufficient to support a trial court’s dismissal of a city’s condemnation petition based on a finding of no public use where the city’s contract with a gaming corporation for use of the land for the alleged purpose of urban renewal did not comply with §43-35-19(b)’s competitive bidding requirement, and the city failed to provide conditions, restrictions, or covenants in its contract with the gaming corporation to ensure that the property would be used for the purpose of gaming enterprise or other related establishments. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

In a hearing on a motion to dismiss an eminent domain action on the ground that the taking was not one for public use, the mandate of Article 3, § 17 of the Mississippi Constitution that the question of public use be decided as a judicial, not a legislative, question was not complied with where there was merely a legislative assertion of public use but no evidence that the use would in fact be public. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

31. ––– Injunctions, actions and remedies.

Equity has jurisdiction, on grounds of injunctive relief and to prevent multiplicity of suits, of suit filed by a number of landowners against State Highway Commission for injunction to restrain continuation by defendant of common nuisance caused by obstruction of water course through respective lands of plaintiffs and for damages done to their crops and lands. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

Where officers or agents of State, as such, seize or trespass upon private property, owner can maintain suit to eject officers or agents or to enjoin further trespass. State Mineral Lease Com. v. Lawrence, 171 Miss. 442, 157 So. 897, 1934 Miss. LEXIS 265 (Miss. 1934).

The use to be made of the property to be taken can only be raised by injunction. Vinegar Bend Lumber Co. v. Oak Grove & G. R. Co., 89 Miss. 84, 43 So. 292, 1906 Miss. LEXIS 98 (Miss. 1906).

32. ––– Negligence, actions and remedies.

Property owners’ alleged personal injury damages were not recoverable under Miss. Const. art. 3, § 17 because nothing in that provision provided a remedy for injuries outside the scope of physical damage to property. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

Where plaintiffs in declaration in a suit against city allege that the city was liable for negligently flooding plaintiff’s property by draining water from a street, and plaintiff also alleged liability under the Constitution, the two grounds are not inconsistent, because negligence charge is simply an enlargement of the charge of damage without negligence. City of Jackson v. Cook, 214 Miss. 201, 58 So. 2d 498, 1952 Miss. LEXIS 459 (Miss. 1952).

This section was not applicable to a suit to recover damages to plaintiff’s property grounded on a municipality’s negligence in constructing and maintaining a culvert and sewer, so as to justify an instruction that plaintiff was entitled to recover unless plaintiff’s damage was caused solely by an unprecedented rainfall. City of Meridian v. Peavy, 188 Miss. 168, 194 So. 595, 1940 Miss. LEXIS 27 (Miss. 1940).

ATTORNEY GENERAL OPINIONS

City must reimburse individuals for water line laid and maintained at expense of individuals, where land was later annexed by city; however, owners of water line may dedicate water line to municipality which will then maintain water line as part of municipal water system. Belk, Oct. 14, 1992, A.G. Op. #92-0699.

RESEARCH REFERENCES

ALR.

Profits derived from business conducted on property taken by eminent domain as evidence of market value. 7 A.L.R. 163.

Exercise of eminent domain for purpose of irrigating land of private owner. 9 A.L.R. 583, 27 A.L.R. 519.

Right to condemn property previously condemned or purchased for public use, but not actually so used. 12 A.L.R. 1502.

Right of abutting owner for compensation to railroad in street under constitutional provision against damaging property for public use without compensation. 22 A.L.R. 145.

Right to use or permit use of street or highway for private telephone or telegraph line. 34 A.L.R. 405.

Liability of municipality for damages or compensation for abating as a nuisance what is not in fact such. 46 A.L.R. 362.

Eminent domain: combination of public and private uses or purposes. 53 A.L.R. 9.

Public benefit or convenience as distinguished from use by the public as ground for the exercise of the power of eminent domain. 54 A.L.R. 7.

Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised. 58 A.L.R. 787.

Protection of rights of mortgagee in eminent domain proceedings. 58 A.L.R. 1534; 110 A.L.R. 542; 154 A.L.R. 1110.

Power to extend boundaries of municipal corporation. 64 A.L.R. 1335.

Exercise of eminent domain for purpose of library. 66 A.L.R. 1496.

Exercise of power of eminent domain for purposes of logging road or logging railroad. 86 A.L.R. 552.

Exercise of eminent domain for purpose of increasing right or interest which petitioner already owns or relieving the property or petitioner of some burden or obligation in respect of property. 108 A.L.R. 1522.

Right to take property under eminent domain as affected by fact that property is already devoted to cemetery purposes. 109 A.L.R. 1502.

Right to abandon and effect of abandonment of eminent domain proceedings. 121 A.L.R. 12.

Injunction against exercise of power of eminent domain. 133 A.L.R. 11; 93 A.L.R.2d 465.

Lack of diligence to contest a public use on ground that compensation has not been made for private property or rights as affecting right to relief. 133 A.L.R. 11; 93 A.L.R.2d 465.

Deduction of benefits in determining compensation or damages in eminent domain. 145 A.L.R. 7.

Increment to value, from projects for which land is condemned, as a factor in fixing compensation. 147 A.L.R. 66.

Damage to private property caused by negligence of governmental agents as “taking,” “damage,” or “use” for public purposes, in constitutional sense. 2 A.L.R.2d 677.

Electric light or power line in street or highway as additional servitude. 58 A.L.R.2d 525.

Interference with view as matter for consideration in eminent domain. 84 A.L.R.2d 348.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings. 2 A.L.R.3d 1038.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensations. 5 A.L.R.3d 901.

Right to condemn property in excess of needs for a particular public purpose. 6 A.L.R.3d 297.

Zoning as a factor in determination of damages in eminent domain. 9 A.L.R.3d 291.

Eminent domain: deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway. 13 A.L.R.3d 1149.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to source of funds to pay for property. 19 A.L.R.3d 694.

Substitute condemnation: power to condemn property or interest therein to replace other property taken for public use. 20 A.L.R.3d 862.

Traffic noise and vibration form highway as element of damages in eminent domain. 51 A.L.R.3d 860.

Condemned property’s location in relation to proposed site of building complex or similar improvement as factor in fixing compensation. 51 A.L.R.3d 1050.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain. 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding. 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

Eminent domain: Consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages. 59 A.L.R.3d 534.

Assemblage or plottage as factor affecting value in eminent domain proceedings. 8 A.L.R.4th 1202.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 A.L.R.4th 366.

Inverse condemnation state court class actions. 49 A.L.R.4th 618.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel. 59 A.L.R.4th 308.

Application of Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), to “Public Use” Restrictions in Federal and State Constitutions Takings Clauses and Eminent Domain Statutes. 21 A.L.R.6th 261.

What law determines just compensation when licensee of Federal Power Commission exercises power of eminent domain in federal court under § 21 of Federal Power Act (16 USCS § 814). 51 A.L.R. Fed. 929.

Jury trial under Rule 71A(h) of Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., Rule 71A(h), 28 U.S.C.S.) in condemnation proceedings by United States. 164 A.L.R. Fed. 341.

Am. Jur.

26 Am. Jur. 2d, Eminent Domain §§ 1 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration–For condemnation–By state agency–For state transportation facility).

10 Am. Jur. Proof of Facts 2d, Eminent Domain: Lack of Necessity for Taking Property, §§ 9 et seq. (proof of lack of reasonable necessity for taking property for urban renewal project).

CJS.

C.J.S. Eminent Domain §§ 27, 29, 71 to 200.

Lawyers’ Edition.

Public condemnee held entitled to no more than fair market value of condemned property under Fifth Amendment. 80 L. Ed. 2d 376.

Governmental regulation of place of amusement, entertainment, or recreation as violating rights of owner or operator under equal protection clause of Federal Constitution’s Fourteenth Amendment-Supreme Court cases. 104 L. Ed. 2d 1078.

Law Reviews.

Evidence of Business Factors in Condemnation Proceedings Concerning Certificates of Public Convenience and Necessity. 52 Miss. L. J. 927, December 1982.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

§ 17A. Taking private property by eminent domain; transfer to others prohibited for ten years; exceptions.

No property acquired by the exercise of the power of eminent domain under the laws of the State of Mississippi shall, for a period of ten years after its acquisition, be transferred or any interest therein transferred to any person, non-governmental entity, public-private partnership, corporation, or other business entity with the following exceptions:

(1) The above provisions shall not apply to drainage and levee facilities and usage, roads and bridges for public conveyance, flood control projects with a levee component, seawalls, dams, toll roads, public airports, public ports, public harbors, public wayports, common carriers or facilities for public utilities and other entities used in the generation, transmission, storage or distribution of telephone, telecommunication, gas, carbon dioxide, electricity, water, sewer, natural gas, liquid hydrocarbons or other utility products.

(2) The above provisions shall not apply where the use of eminent domain (a) removes a public nuisance; (b) removes a structure that is beyond repair or unfit for human habitation or use; (c) is used to acquire abandoned property; or (d) eliminates a direct threat to public health or safety caused by the property in its current condition.

Editor’s Note —

During the November 8, 2011, election, a citizen-initiated Constitutional amendment, Initiative # 31 - Eminent Domain, was approved by a majority of the electors of Mississippi. The Governor, by Executive Order No. 1074, dated January 9, 2012, directed the Secretary of State to insert Initiative # 31 in the Mississippi Constitution as Article 3, § 17A.

Article 15, § 273(10) of the Mississippi Constitution provides that initiatives approved by the electors take effect thirty (30) days from the date of the official declaration of the vote by the Secretary of State. The Secretary of State certified the November 8, 2011, election on December 8, 2011.

Executive Order No. 1074, signed by Governor Haley Barbour on January 9, 2012, provides:

“To the Secretary of State

“State of Mississippi:

“WHEREAS, Three (3) Constitutional Initiatives proposed Amendments to the Mississippi Constitution and met the requirements of the Mississippi Constitution and the laws of this State to be placed on the November 8, 2011 ballot, as follows: Initiative # 26 - Definition of “Person”; Initiative # 27 - Voter Identification; and Initiative # 31 - Eminent Domain; and

“WHEREAS, The Constitution requires that the Initiatives “receive a majority of the votes thereon and not less than forty percent (40%) of the total votes cast at the election at which the measure was submitted to be approved.” Miss. Const. Art. 15, § 273(7).

“WHEREAS, Initiative # 27 and Initiative # 31 were approved by the electors of Mississippi in accordance with Miss. Const. Art. 15, § 273(7); and

“WHEREAS, Art. 15, § 273 further provides that initiatives approved by the electors take effect thirty (30) days from the date of the official declaration of the vote by the Secretary of State. Miss. Const. Art. 15, § 273(10). The Secretary of State certified the November 8, 2011, election results on December 8, 2011; and

“WHEREAS, Unlike Initiative # 26, which failed to pass the electorate, Initiative # 27 and Initiative # 31 were both silent as to where the proposed Amendments to the Mississippi Constitution would be placed; furthermore, the Mississippi Constitution, as well as statutory law, is silent as to who has the administrative and/or ministerial authority to insert the initiatives of the people of Mississippi, passed by the electorate, as part of the Constitution; and

“WHEREAS, Article 5, § 123 of the Mississippi Constitution grants the Governor of the State of Mississippi the authority to “see that the laws are faithfully executed”; and

“WHEREAS, Section 7-1-5 of the Mississippi Code Annotated sets forth the powers of the Governor of the State of Mississippi, including, but not limited to, serving as the supreme executive officer of the State, seeing that the laws are faithfully executed, and supervising the official conduct of executive and ministerial officers; and

“WHEREAS, in the absence of constitutional and/or statutory provision providing otherwise, the Governor has the authority to provide direction for carrying out all lawful administrative and ministerial functions of state government; and

“NOW, THEREFORE, I, Haley Barbour, Governor of the State of Mississippi, under, and by virtue of the authority vested in me by the Constitution and Laws of this State, do hereby direct the Secretary of State C. Delbert Hosemann, Jr., as follows:

“To insert Initiative # 31 in the Mississippi Constitution as Art. 3, § 17A, to follow Art. 3, § 17, where the constitutional requirements for the taking of property for public use are located;

“To insert Initiative # 27 in the Mississippi Constitution as Art. 12, § 249A, to follow Art. 12, § 249, where the constitutional requirements to vote in the State of Mississippi are located;

“I do authorize and direct you, upon receipt of this Executive Order, to take notice and be governed accordingly.

“IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of Mississippi to be affixed.

“DONE at the Capitol, in the City of Jackson, this the 9th day of January, in the year of our Lord two thousand and twelve, and of the two hundred and thirty-sixth year of the United States of America.”

§ 18. Freedom of religion.

No religious test as a qualification for office shall be required; and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred. The rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state, or to exclude the Holy Bible from use in any public school of this state.

HISTORY: 1817 art I §§ 3, 4; 1832 art I §§ 3, 4; 1869 art I § 23.

Cross References —

Right of parents to refuse tests on newborn infants, see §41-21-203.

JUDICIAL DECISIONS

1. Free exercise of religion.

2. Establishment of religion–In general.

3. – – – Preference to religious sect, establishment of religion.

4. Marriage and family.

5. Jury selection.

1. Free exercise of religion.

Where defendant asserted that he fit into the exception carved out for ritual slaughter under §75-33-3(3) of Mississippi’s meat inspection law because he gave the meat away and only charged for the ritual slaughter, the chancellor’s concern for not violating the First Amendment rights of defendant and his customers resulted in his allowing defendant greater freedoms than either §75-33-3(3) or the First Amendment requires. Spell v. Muhammad, 756 So. 2d 748, 2000 Miss. LEXIS 6 (Miss. 2000).

A high school athletic association’s anti-recruiting rule, which required that a participant in interscholastic activities attend a school in the school district of which his or her parents or guardian were bona fide residents, did not violate the constitutional right to free exercise of religion since the rule did not prevent a parent or child from actively practicing their chosen religion and did not regulate the conduct of student athletes to the point of interfering with any religious practice; any interference with religious practices was incidental to the stated purpose of the rule-to deter overzealous athletic recruiting practices-and the rule was reasonably related to that purpose. Mississippi High Sch. Activities Ass'n v. Coleman, 631 So. 2d 768, 1994 Miss. LEXIS 32 (Miss. 1994).

Jehovah’s Witness has right, based upon freedom of religion, to undergo surgery but refused to be given blood transfusion and such right outweighs interest of state in insuring that wounded Witness receive transfusion in order to insure that Witness is alive to testify in subsequent criminal trial. In re Brown, 478 So. 2d 1033, 1985 Miss. LEXIS 2285 (Miss. 1985).

Code 1942 §§ 1273-01 and 1273-02 which authorize a majority of the beneficiaries of a religious trust to take over and divest the mother church of church property without regard to the habendum clause of the deed, if a court should determine that there is “deep seated disagreement”, and which permit the court to appoint trustees, were violative of the religious liberty clauses of the Mississippi and federal constitutions. Sustar v. Williams, 263 So. 2d 537, 1972 Miss. LEXIS 1333 (Miss. 1972).

Statute (Code 1942 § 2402), making it a criminal offense to indoctrinate any creed, theory, or any set of principles which reasonably tend to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment to the United States Constitution.Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943) (reversing 194 M 1, 11 So. 2d 663; Cummings v. State, 194 M 59, 11 So. 2d 683; Benoit v. State, 194 M 74, 11 So. 2d 689).

A statute which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies and prophecies concerning the state of this and other nations, irrespective of whether the communications was with an evil or sinister purpose of advocated or indicated subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

2. Establishment of religion–In general.

First Amendment did not shield a church administration from civil claims of sexual abuse by priests because there was nothing religious about such reprehensible conduct, and plaintiffs’ claim of negligent hiring, retention and supervision of a priest was simply a negligence claim. Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 2005 Miss. LEXIS 295 (Miss. 2005).

Inclusion of invocation and benediction by member of clergy at public high school graduation ceremony is forbidden by establishment clause where public school officials direct performance of such exercise and state, in practical sense, compels attendance; state may not place students who object to such exercise in position of having to either participate or protest. Invocation and benediction are not rendered valid by fact that attendance is voluntary in strict legal sense, prayers were anticipated to be brief, there was attempt to make prayers inclusive and acceptable to most, and for many persons such occasion traditionally involves prayer would lack significance without such religious exercise. Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467, 1992 U.S. LEXIS 4364 (U.S. 1992).

If disbarred attorney’s failure to participate in organized religion had been determinative of the denial of his petition for reinstatement, then his constitutional rights would have been violated. Williams v. Mississippi State Bar Asso., 492 So. 2d 578, 1986 Miss. LEXIS 2538 (Miss. 1986).

3. – – – Preference to religious sect, establishment of religion.

Provisions for a textbook fund for the purchase of free textbooks and for the distribution and loan thereof to pupils in elementary schools including qualified private schools were not in contravention of constitutional prohibition against support of sectarian schools, or control by religious sects over any part of the school or other educational funds of the state, or the prohibition against loaning or giving public property or credit to private persons, the fact that the books were merely loaned to the pupils of such schools being in keeping with the state’s paramount duty to educate children and avoid the constitutional prohibition against giving any preference to any religious sect. Chance v. Mississippi State Textbook Rating & Purchasing Board, 190 Miss. 453, 200 So. 706, 1941 Miss. LEXIS 66 (Miss. 1941).

4. Marriage and family.

The Constitution does not announce a paramount public policy prohibiting legislation which would allow a bigamous wife to recover benefits under the Workmen’s Compensation Law. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

Workmen’s Compensation Act which allows payments of compensation to acknowledged illegitimate child dependent upon deceased’s labor, and to bigamous wife upon death of the putative husband are not repugnant to the Constitution nor any public policy in regard to bigamy. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

5. Jury selection.

Mississippi caselaw did not extend the Batson protection to religiously based peremptory strikes of jurors; the only objection offered by defendant was a Batson objection. Because defendant did not object that religiously based peremptory strikes violated Miss. Const. art. 3, § 18 and Miss. Code Ann. §13-5-2, the trial judge did not err in accepting the reason offered by the State as a race-neutral reason not prohibited by Batson. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

Peremptory challenges based on a person’s membership in a particular religious order or denomination violates the State Constitution by permitting preference of one religion over another. Thorson v. State, 721 So. 2d 590, 1998 Miss. LEXIS 392 (Miss. 1998).

RESEARCH REFERENCES

ALR.

Validity and construction of statute or ordinance relating to distribution of advertising matter. 22 A.L.R. 1484, 114 A.L.R. 1446.

Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case. 52 A.L.R. 919.

Power of municipal or school authorities to prescribe vaccination or other health measure as a condition of school attendance. 93 A.L.R. 1413.

Constitutionality, construction, and application of statute exempting schemes for benefit of public, religious, or charitable purposes from statutes or constitutional provisions against lotteries or gambling. 103 A.L.R. 875.

Validity of provision in respect of racial or religious differences, in zoning ordinance or regulation which is not confined to that matter but embraces, or is part of, a broader zoning plan. 126 A.L.R. 638.

Power of legislature or school authorities to prescribe and enforce oath of allegience, salute to flag, or other ritual of a patriotic character. 127 A.L.R. 1502; 141 A.L.R. 1030; 147 A.L.R. 698.

Validity of statutory or municipal regulation of soliciting of alms or contributions for charitable, religious, or individual purposes. 128 A.L.R. 1361, 130 A.L.R. 1504.

Discrimination because of race, color, or creed in respect of appointment, duties, compensation, etc., of schoolteachers or other public officers or employees. 130 A.L.R. 1512.

Use of streets or parks for religious purposes. 133 A.L.R. 1402.

Validity, construction, and application of statutes or regulations concerning recreational or social activities of pupils of public schools. 134 A.L.R. 1274.

Constitutional guaranty of freedom of religion as applied to license taxes or regulations. 146 A.L.R. 109, 152 A.L.R. 322.

Sectarianism in schools. 45 A.L.R.2d 742.

Validity, under establishment of religion clause of federal or state constitution, of provision making day of religious observance a legal holiday. 90 A.L.R.3d 752.

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization. 44 A.L.R.4th 1207.

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number. 93 A.L.R.5th 1.

Landlord’s refusal to rent to unmarried couple as protected by landlord’s religious beliefs. 10 A.L.R.6th 513.

Wearing of Religious Symbols in Courtroom as Protected by First Amendment. 18 A.L.R.6th 775.

State Constitutional Challenges to the Display of Religious Symbols on Public Property. 26 A.L.R. 6th 145.

Constitutionality of Legislative Prayer Practices. 30 A.L.R.6th 459.

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

Giving of invocation with religious content at public-school-sponsored events to which public is invited or admitted as violation of establishment clause of First Amendment. 98 A.L.R. Fed. 206.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolution theory in public schools. 102 A.L.R. Fed. 537.

Constitutionality of teaching or otherwise promoting secular humanism in public schools. 103 A.L.R. Fed. 538.

Bible distribution or use in public schools–modern cases. 111 A.L.R. Fed. 1.

Validity and construction of public school regulation of student distribution of religious documents at school. 136 A.L.R. Fed. 551.

What constitutes “hybrid rights” claim under Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876.163 A.L.R. Fed. 493.

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 321, 375-378.

CJS.

C.J.S. Constitutional Law §§ 513 to 517.

C.J.S. Officers and Public Employees § 34.

Lawyers’ Edition.

Establishment and free exercise of religion clauses of Federal Constitution’s first Amendment as applied to public schools – Supreme Court Cases. 96 L. Ed. 2d 828.

Tax legislation as violating Federal Constitution’s First Amendment – Supreme Court cases. 103 L. Ed. 2d 951.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to governmental regulations or activities allegedly supporting public observance of Sabbath or of religious holiday. 106 L. Ed. 2d 752.

Law Reviews.

Collins, Reliance on State Constitutions: Some Random Thoughts. 54 Miss L. J. 371, Sept.-Dec., 1984.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Roy, Constitutional Law – Mississippi’s Recognition of a Privacy Right To Refuse Medical Treatment. 7 Miss. C. L. Rev. 47, Fall, 1986.

Comment: a call to secure religious exercise under the Mississippi constitution. 62 Miss. L. J. 133, Spring, 1992.

§ 19. Repealed.

Repealed by Laws, 1977, ch. 584, eff December 22, 1978.

[1817 art VI § 2; 1832 art VII § 2; 1869 art I § 27]

Editor’s Note —

Former Section 19 prohibited dueling and both disenfranchised and disqualified persons involved in a duel from holding public office.

The repeal of Section 19 of Article 3 of the Constitution of 1890 was proposed by Laws, 1977, Ch. 584 (Senate Concurrent Resolution No. 528) and upon ratification by the electorate on November 7, 1978, was deleted from the Constitution by proclamation of the Secretary of State on December 22, 1978.

§ 20. Specific term of office.

No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all officers shall be for some specified period.

HISTORY: 1817 art VI § 12; 1832 art I § 30; 1869 art I § 29.

JUDICIAL DECISIONS

1. Public office and officers–In general.

2. ––– Failure to fix term of office, public office and officers.

3. ––– Police and fire officers, public office and officers.

1. Public office and officers–In general.

Claimant to office of Jones County Community Hospital trustee could not prevail upon a contention that he had been removed from office in violation of Mississippi Constitution §§ 20 and 175. State ex rel. Pair v. Burroughs, 487 So. 2d 220, 1986 Miss. LEXIS 2437 (Miss. 1986).

In order to come within this provision and § 175 of the Constitution, the officer’s duty must be continuing, be defined by rules prescribed by law, to be discharged by him in his own right and not by permission and under the supervision and control of another. Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

Position is “public office” when created by law with duties cast upon incumbent involving exercise of some portion of sovereign power in performance of which public is concerned and which are continuing in their nature, “continuing” meaning enduring and permanent, whereas “public employment” is position lacking one or more foregoing elements. State by Mitchell v. McLaurin, 159 Miss. 188, 131 So. 89, 1930 Miss. LEXIS 359 (Miss. 1930).

Length of time required to perform special and transient duties is not test of whether person discharging duties is public officer or employee. State by Mitchell v. McLaurin, 159 Miss. 188, 131 So. 89, 1930 Miss. LEXIS 359 (Miss. 1930).

Members of State hospital removal improvement and land sale commission held not “public officers” within constitutional provision and statute relating to term of office. State by Mitchell v. McLaurin, 159 Miss. 188, 131 So. 89, 1930 Miss. LEXIS 359 (Miss. 1930).

Under this section neither a deputy auditor nor a deputy land commissioner is a public officer. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881, 1921 Miss. LEXIS 44 (Miss. 1921).

2. ––– Failure to fix term of office, public office and officers.

Act creating seawall districts and providing for appointment of commissioners was not unconstitutional because of failure to fix terms of such commissioners in view of general statute fixing the terms of all officers not otherwise provided for by law. Board of Mayor & Aldermen v. Moreau, 109 Miss. 407, 69 So. 214, 1915 Miss. LEXIS 171 (Miss. 1915).

If the legislature create an office and provide that the officer shall hold until his successor is elected, and yet make no provision for an election of a successor, the officer will hold until the next general election, but no longer. Houston v. Royston, 8 Miss. 543, 1843 Miss. LEXIS 122 (Miss. 1843).

3. ––– Police and fire officers, public office and officers.

A policeman, serving only by permission of the mayor and council of a city, who not only prescribed his duties but also supervised and controlled the performance thereof, is not a public officer entitled to invoke the constitutional provisions (§§ 20 and 175) against removal during term of office except upon conviction of wilful neglect of duty or misdemeanor in office. Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

Act (Laws 1940, ch 287; Code 1942 §§ 3472-3494) providing for retirement benefits for firemen and policemen but making them available for supernumerary tasks after retirement does not violate this section. Mayor & Aldermen of Vicksburg v. Crichlow, 196 Miss. 259, 16 So. 2d 749, 1944 Miss. LEXIS 185 (Miss. 1944).

An act of the legislature or an ordinance of a municipality authorizing the appointment of a policeman during good behavior is unconstitutional and void. Monette v. State, 91 Miss. 662, 44 So. 989 (Miss. 1907), overruled in part, Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

RESEARCH REFERENCES

ALR.

Beginning or expiration of term of elective officer where no time is fixed by law. 80 A.L.R. 1290, 135 A.L.R. 1173.

Power of legislature to extend term of public office. 97 A.L.R. 1428.

CJS.

C.J.S. Counties §§ 101 to 103.

C.J.S. Municipal Corporations §§ 362, 363.

C.J.S. Officers and Public Employees §§ 86-94.

C.J.S. States §§ 88, 89, 151-153, 169, 170.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond, 56 Miss L. J. 73, April, 1986.

§ 21. Writ of habeas corpus.

The privilege of the writ of habeas corpus shall not be suspended, unless when in the case of rebellion or invasion, the public safety may require it, nor ever without the authority of the legislature.

HISTORY: 1817 art I § 13; 1832 art I § 13; 1869 art I § 5.

JUDICIAL DECISIONS

1. Acts subject to judicial review.

2. Habeas corpus applications within section.

3. Double Jeopardy.

1. Acts subject to judicial review.

Mandamus, prohibition, or injunction cannot direct or restrain Governor in the exercise of his power, but any act which may injure a citizen in his legal rights under the law is subject to redress in the courts. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

Action of Governor calling out national guard and what members of militia may do in pursuance of such order, held subject to judicial review at suit or other appropriate legal challenge of any citizen who can show he has been unlawfully affected in his private personal or private property rights. State v. McPhail, 182 Miss. 360, 180 So. 387, 1938 Miss. LEXIS 147 (Miss. 1938).

2. Habeas corpus applications within section.

Petitioner was not denied his right to a writ of habeas corpus when his notice of appeal in writ of state habeas corpus was denied as a successive writ; the Mississippi Legislature had enacted a comprehensive procedure for postconviction relief through the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §99-39-3(1). Austin v. State, 914 So. 2d 1281, 2005 Miss. App. LEXIS 916 (Miss. Ct. App. 2005).

Mississippi Post-Conviction Collateral Relief Act does not suspend the writ of habeas corpus in violation of Miss. Const. Art. III, § 21, as the act is merely a codification of existing constraints on review traditionally practiced by the Mississippi Supreme Court. Putnam v. State, 877 So. 2d 468, 2003 Miss. App. LEXIS 1205 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 861 (Miss. 2004).

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The time limitations provisions of the Mississippi Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.) do not work an unconstitutional suspension of the writ of habeas corpus. Cole v. State, 608 So. 2d 1313, 1992 Miss. LEXIS 557 (Miss. 1992).

One who has been denied bail may seek his or her liberty via habeas corpus. There is nothing in the Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.), §99-35-115, Miss. Sup. Ct. R. 9 or Unif. Crim. R. Cir. Ct. Prac. 7.02 which purports to suspend this right nor could the right ever be suspended except in the limited circumstance provided for by the constitution. Although purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the Post-Conviction Collateral Relief Act since that Act, in the pure post-conviction collateral relief sense, is arguably “post-conviction habeas corpus renamed,” matters of appeal may appropriately be addressed through true habeas corpus actions; bail pending appeal via habeas corpus is incident to the direct review of a conviction or sentence and, therefore, is not affected, prohibited or otherwise governed by the Uniform Post-Conviction Collateral Relief Act. Habeas corpus is one way of seeking liberty following conviction and pending appeal, and statutory and uniform rule procedure another, although the standards for granting or denying bail remain the same in either situation. Treigle v. Treigle, 555 So. 2d 738, 1990 Miss. LEXIS 139 (Miss. 1990).

3. Double Jeopardy.

Under the Fifth Amendment and Miss. Const. Art. 3, § 21, a trial court’s imposition of defendant’s original ten-year term after his second parole violation was not an unlawful extension or increase of his sentence in violation of his right against double jeopardy because, although the written sentencing order did not reflect the court’s imposition of the ten-year sentence but merely that all but 18 months of that sentence were suspended, on two occasions defendant was clearly informed in open court that his sentence was for ten years. Harvey v. State, 919 So. 2d 282, 2005 Miss. App. LEXIS 377 (Miss. Ct. App. 2005).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus §§ 1, 2 et seq.

41 Am. Jur. Trials 349, Habeas Corpus: Pretrial Motions.

CJS.

C.J.S. Habeas Corpus §§ 4, 5.

Lawyers’ Edition.

When is person “in custody” in violation of Federal Constitution, so as to be eligible for relief under federal habeas corpus legislation-Supreme Court cases. 104 L. Ed. 2d 1122.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

§ 22. Double jeopardy.

No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.

HISTORY: 1817 art I § 13; 1832 art I § 13; 1869 art I § 5.

JUDICIAL DECISIONS

1. In general.

2. When jeopardy attaches–In general.

3. – – Judgments and judicial proceedings generally, when jeopardy attaches.

4. – – Discharge of jury or juror, when jeopardy attaches.

5. – – Dismissal or nolle prosequi, when jeopardy attaches.

6. – – Mistrial, when jeopardy attaches.

7. – – Plea agreements, when jeopardy attaches.

8. – – Quashing of indictment, when jeopardy attaches.

9. – – Reversal of conviction, when jeopardy attaches.

10. – – Revocation of parole or probation, when jeopardy attaches.

11. – Revocation of bond, when jeopardy attaches.

12. – – Attorney disciplinary proceedings, when jeopardy attaches.

13. – – Impaneling and swearing in of jury, when jeopardy attaches.

14. Identity of offenses–In general.

15. – – Offenses against different governments, identity of offenses.

16. Sentence and punishment–In general.

17. Addition of a condition to a suspended sentence.

18. – – Guilty pleas, sentence and punishment.

19. – – Habitual offenders, sentence and punishment.

20. – – Parole, probation, or suspended sentence, sentence and punishment.

21. – – Attorney disciplinary proceedings, sentence and punishment.

22. Motions to dismiss.

23. Different elements, no double jeopardy.

1. In general.

Defendant’s convictions on two counts of armed robbery for taking the same money did not violate the protection against double jeopardy in the Fifth Amendment or this section, because there were two victims. Reynolds v. State, 227 So.3d 428, 2017 Miss. App. LEXIS 556 (Miss. Ct. App. 2017).

Although the prior domestic incident was mentioned in testimony, defendant was not tried for the alleged simple assault, nor was the jury asked to render a finding of innocence or guilt with regard to the prior unadjudicated incident, and, in fact, the trial court gave a limiting instruction; thus, no jeopardy attached with regard to the prior domestic incident for purposes of a constitutional right being violated, and the court did not violate the rule prohibiting the admissibility of relevant evidence when the constitutions provided otherwise. Chase v. State, — So.3d —, 2020 Miss. App. LEXIS 47 (Miss. Ct. App. Feb. 18, 2020).

Trial court did not err in determining that defendant failed to establish any double jeopardy violation because the case failed to involve facts wherein the State prosecuted defendant twice for the same crime; the offenses occurred on different dates, in different counties, and arose out of distinctly different facts. Williams v. State, 167 So.3d 252, 2015 Miss. App. LEXIS 311 (Miss. Ct. App. 2015).

In a case in which defendant appealed the dismissal of his motion for post-conviction relief, he argued unsuccessfully that he was subjected to double jeopardy because he was charged with armed robbery on three occasions: (1) in Count II of his indictment, (2) in Count IV of his indictment, and (3) when he pled guilty to the charge of armed robbery. The State filed an Order of Nolle Prosequi on Counts I, II, III, and V; therefore, the burglary charge in Count II was passed to the file, and defendant was no longer charged with nor convicted of Count II. Ewing v. State, 34 So.3d 612, 2009 Miss. App. LEXIS 661 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 245 (Miss. 2010).

Denial of the inmate’s petition for post-conviction relief was appropriate where he was not permitted to address a double jeopardy claim for the first time in a postconviction relief motion. Hoskins v. State, 934 So. 2d 326, 2006 Miss. App. LEXIS 186 (Miss. Ct. App. 2006).

Appellate court affirmed the denial of the inmate’s motion for post-conviction relief because the inmate was not subjected to double jeopardy for the separate convictions of conspiracy to commit capital murder and attempted capital murder as they are two separate crimes. Lee v. State, 918 So. 2d 87, 2006 Miss. App. LEXIS 23 (Miss. Ct. App. 2006).

Defendant was not subjected to double jeopardy, as while the two offenses were committed close in time and against the same victim, the record reflected that the grand larcenies occurred at different times, in different locations, and arose from separate acts. Hughery v. State, 915 So. 2d 457, 2005 Miss. App. LEXIS 265 (Miss. Ct. App.), cert. denied, 921 So. 2d 1279, 2005 Miss. LEXIS 779 (Miss. 2005).

Defendant was prosecuted for aggravated assault in State court, not possession of a firearm by a priorly convicted felon but even if he had been prosecuted for possession of a firearm by a priorly convicted felon, there would have been no bar to his prosecution by the State because the State of Mississippi and the federal government were different and distinct sovereigns. There was no double jeopardy violation, and res judicata or collateral estoppel (argued by defendant), did not apply in said criminal action. Acreman v. State, 907 So. 2d 1005, 2005 Miss. App. LEXIS 276 (Miss. Ct. App. 2005).

Defendant was not subjected to double jeopardy where the crimes of aggravated assault and armed robbery. although they arose from the same incident, the two crimes were separate. Johnson v. State, 848 So. 2d 906, 2003 Miss. App. LEXIS 588 (Miss. Ct. App. 2003).

There was no double jeopardy violation in a case where DUI defendant’s two prior DUI convictions were considered for the sole purpose of enhancing punishment. Horn v. State, 825 So. 2d 725, 2002 Miss. App. LEXIS 503 (Miss. Ct. App. 2002).

Although state may freely define crimes and assign punishments, it is not allowed to punish defendant for crime containing elements which are completely enveloped by offense for which defendant was previously convicted. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Where there is a conviction for both capital murder and the underlying felony, at the most the double jeopardy clause is violated only if the charges for the felony murder and the underlying felony are tried separately. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

The constitutional principles of double jeopardy are not violated by the “double use” of the pecuniary gain factor in elevating a murder to the status of capital murder because it was perpetrated by one who had been given something of value for the killing pursuant to §97-3-19(2)(d) and in imposing the death penalty for committing murder by pecuniary gain pursuant to §99-19-101(5)(f). Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Submission of aggravating circumstance of pecuniary gain did not constitute double jeopardy and fail meaningfully to narrow class of persons eligible for death sentence. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Where the defendant has been acquitted on the merits of her case by reason of a directed verdict, such acquittal is a bar to any future accusation of the same offense. State v. Thornhill, 251 Miss. 718, 171 So. 2d 308, 1965 Miss. LEXIS 896 (Miss. 1965); Smith v. State, 198 So. 2d 220, 1967 Miss. LEXIS 1249 (Miss. 1967).

An actual conviction or acquittal on the merits must be shown to support a plea of former jeopardy. Conwill v. State, 124 Miss. 716, 86 So. 876, 1920 Miss. LEXIS 532 (Miss. 1920); Lovern v. State, 140 Miss. 635, 105 So. 759, 1925 Miss. LEXIS 299 (Miss. 1925); Harris v. State, 158 Miss. 439, 130 So. 697, 1930 Miss. LEXIS 80 (Miss. 1930).

2. When jeopardy attaches–In general.

In a case where defendant was convicted of several crimes relating to the arson and burglary of a residence, his double jeopardy rights were not violated due to the fact that some of the elements of the crimes overlapped; each of the crimes involved required proof of an additional fact that the other did not. McCollins v. State, 952 So. 2d 305, 2007 Miss. App. LEXIS 167 (Miss. Ct. App. 2007).

Because the first indictment was nolle prosequi before defendant pled guilty, defendant was not subject to double jeopardy as there was no prejudice. McKenzie v. State, 856 So. 2d 344, 2003 Miss. App. LEXIS 132 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 7 (Miss. 2004), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 57 (Miss. 2007).

Twenty-one-year delay between entry of nolle prosequi on murder indictment and reindictment for same murder did not violate defendant’s due process rights, though witnesses for both state and defense had died during period between trials; testimony from previous trials was available and was read to jury, defendant did not put into record any facts he could have proved by deceased witnesses that did not go to jury through their prior testimony, and state did not intentionally delay prosecution to gain tactical advantage. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

A defendant’s double jeopardy right not to be re-prosecuted for the same offense accrues instantly upon the happening of some event in criminal proceedings against him or her, though the original jeopardy must have “terminated” in order for such a right to accrue; thereafter, lapse of time neither strengthens nor diminishes the right as no subsequent event affects an accrued double jeopardy right. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

3. – – Judgments and judicial proceedings generally, when jeopardy attaches.

State was not collaterally estopped under the Double Jeopardy Clause from trying appellant for possession of a weapon by a convicted felon because whether appellant was in possession of a weapon was never litigated and resolved in his favor; appellant was not acquitted based on the jury’s finding he had no weapon in his possession, but instead, he was merely permitted by the circuit court to plead guilty to the lesser-included charge of simple stalking. Johnson v. State, 159 So.3d 601, 2014 Miss. App. LEXIS 667 (Miss. Ct. App. 2014).

Jeopardy had not attached when the municipal court dismissed defendant’s driving under the influence (DUI) charge in the municipal court, where the municipal judge received no evidence and heard no witnesses before dismissing the DUI charge. Moreover, the judge’s comments on the order relative to the DUI charge did not contain any findings of the court, but rather, the court merely recorded the reasons that the prosecutor gave for not proceeding to trial on the DUI charge; such notations in the order did not constitute either an acquittal or an adjudication, such that the subsequent indictment or trial of defendant would be barred by the Double Jeopardy Clause, U.S. Const. amend. V, Miss. Const. art. 3, § 22. Deeds v. State, 27 So.3d 1135, 2009 Miss. LEXIS 588 (Miss. 2009), cert. denied, 562 U.S. 836, 131 S. Ct. 150, 178 L. Ed. 2d 37, 2010 U.S. LEXIS 5807 (U.S. 2010).

Where defendant defrauded furniture sellers by telephone, wire communications, or mail, defendant’s second indictment for wire fraud did not conflict with double jeopardy rules, because wire fraud charge was a distinct offense, and required proof of different elements than the initial charge of false pretenses, which had been dismissed. McGee v. State, 853 So. 2d 125, 2003 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 834 (Miss. Ct. App. 2003).

Juvenile who has been adjudicated delinquent in youth court may not subsequently be tried as adult on same charges. In Interest of W.R.A., 481 So. 2d 280, 1985 Miss. LEXIS 2422 (Miss. 1985).

In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted. State v. Pace, 210 Miss. 448, 49 So. 2d 710, 1951 Miss. LEXIS 281 (Miss. 1951).

Oral testimony was properly taken to settle the doubt as to whether the accused had actually been in former jeopardy. State v. Pace, 210 Miss. 448, 49 So. 2d 710, 1951 Miss. LEXIS 281 (Miss. 1951).

If a former acquittal was obtained by collusion it will be no bar. Howell v. State, 104 Miss. 295, 61 So. 314, 1913 Miss. LEXIS 32 (Miss. 1913).

For an instance where a defective affidavit charging defendant with assault and battery before a magistrate upon which he was convicted was sufficient to bar a trial under an indictment for assault, see Henry v. State, 97 Miss. 787, 53 So. 397, 1910 Miss. LEXIS 297 (Miss. 1910).

An acquittal or conviction in a court without jurisdiction does not bar a subsequent prosecution for the same offense. Montross v. State, 61 Miss. 429, 1883 Miss. LEXIS 154 (Miss. 1883).

A conviction or acquittal before a justice of the peace without an affidavit or written charge, is no bar to a subsequent prosecution. Bigham v. State, 59 Miss. 529, 1882 Miss. LEXIS 151 (Miss. 1882); Wilcox v. Williamson, 61 Miss. 310, 1883 Miss. LEXIS 127 (Miss. 1883); Woodson v. State, 94 Miss. 370, 48 So. 295, 1908 Miss. LEXIS 43 (Miss. 1908).

A conviction or acquittal on an invalid indictment is no bar to a second prosecution. State v. McGraw, 1 Miss. 208, 1825 Miss. LEXIS 5 (Miss. 1825); Kohlheimer v. State, 39 Miss. 548, 1860 Miss. LEXIS 87 (Miss. 1860).

4. – – Discharge of jury or juror, when jeopardy attaches.

Trial court did not err in declaring a mistrial in an armed robbery case because, by the time a Batson challenge was raised, other jurors in the case had already been dismissed; jeopardy did not attach because the record indicated that the jury had not been sworn, despite a trial court’s order that stated otherwise. Gaskin v. State, 873 So. 2d 965, 2004 Miss. LEXIS 288 (Miss. 2004).

A plea of former jeopardy is not sustained by the facts that after the jury had been qualified, but before it had been accepted by both parties the justice of the peace discharged jury, and continued the case to a later date. Green v. Everson, 141 Miss. 129, 106 So. 265, 1925 Miss. LEXIS 219 (Miss. 1925).

A prisoner is not entitled to a discharge because after the introduction of evidence one of the jurors was reminded that he had been upon the grand jury which found the indictment and, making the fact known, was discharged by the court. Roberts v. State, 72 Miss. 728, 18 So. 481, 1895 Miss. LEXIS 64 (Miss. 1895).

A discharge of the jury upon the return of a verdict, in the absence of the prisoner while in jail, entitles the defendant to a discharge. Finch v. State, 53 Miss. 363, 1876 Miss. LEXIS 80 (Miss. 1876).

5. – – Dismissal or nolle prosequi, when jeopardy attaches.

In a 28 U.S.C.S. § 2254 case, a pro se state inmate unsuccessfully argued that the initial indictment had to have been nolle prosequied before a second indictment could be issued in order for a second indictment to not place him in double jeopardy. Since he was only tried on the second and superseding indictment, double jeopardy was not implicated in the case. Eason v. King, 2010 U.S. Dist. LEXIS 79238 (S.D. Miss. Aug. 4, 2010).

The defendant’s entry of a guilty plea did not violate double jeopardy where (1) the defendant was initially indicted for grand larceny, but subsequently agreed to enter a pre-trial intervention program and agreed with the district attorney to nolle prosse the charge, (2) the defendant thereafter failed to comply with the terms of the pre-trial intervention program, (3) the district attorney then filed a motion to remove the defendant from the program and filed an information charging him with grand larceny, (4) the circuit court judge entered an order for the defendant’s removal from the pre-trial intervention program, and (5) the defendant waived his right to be re-indicted for grand larceny, pled guilty, and was sentenced. Martin v. State, 766 So. 2d 812, 2000 Miss. App. LEXIS 415 (Miss. Ct. App. 2000).

Where nolle prosequi is entered, that particular case is at an end on the docket, but this does not bar another prosecution for same offense if commenced in the court where the case originated. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Five-year period from defendant’s mistrial on murder charges to entry of nolle prosequi on indictment did not violate defendant’s due process rights, as formal accusation ended with entry of nolle prosequi. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Because the first indictment was nolle prosequi before defendant pled guilty, defendant was not subject to double jeopardy as there was no prejudice. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

A nolle prosequi entered upon the motion of the district attorney did not terminate the defendant’s original jeopardy or accrue unto him the right not to be re-indicted and re-prosecuted for the same offense where the State had unsuccessfully sought the defendant’s conviction through 2 successive trials which both ended when the jury became deadlocked so that there was a “manifest necessity” to declare a mistrial in each case, there was nothing to suggest any prosecutorial misconduct or manipulation in moving for the nolle prosequi, and there was no objection by the defendant to the entry of the nolle prosequi. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Trial judge’s actions were tantamount to acquittal on charge of armed robbery and thereby dismissed charge of armed robbery as to one victim where trial judge determined that state had failed to produce evidence to prove that defendant robbed alleged victim with deadly weapon, where State had attempted to establish armed robbery of alleged victim with testimony and had simply failed to prove armed robbery, rejecting claim that inability to produce alleged victim was result of manifest necessity due to his intervening illness, because state could have sought continuance but instead elected to proceed with proof until defense counsel made motion for directed verdict. Reed v. State, 506 So. 2d 277, 1987 Miss. LEXIS 2483 (Miss. 1987).

An order of the justice of peace court, dismissing the case against the accused for want of prosecution, showing that the accused was not prosecuted or put in jeopardy in that court, was insufficient to sustain the accused’s plea of former jeopardy in bar of judgment and sentence upon his being convicted, in a circuit court, of the charge of assault. Robinson v. State, 91 So. 2d 272 (Miss. 1956).

Defendant was not placed in jeopardy twice for the same offense where, upon his appeal to the circuit court from his conviction in the police court of keeping open a grocery store on the Sabbath, the prosecution was nol-prossed, and thereafter he was again arrested for the same offense, entered a plea of nolo contendere in the police justice’s court and upon an appeal therefrom was convicted in the circuit court in a trial on the merits. Walton v. Tupelo, 229 Miss. 193, 90 So. 2d 193, 1956 Miss. LEXIS 600 (Miss. 1956).

The use of the words “without prejudice” serves to prevent the dismissal from operating as a bar to any new suit or prosecution on the same charge. State v. Pace, 210 Miss. 448, 49 So. 2d 710, 1951 Miss. LEXIS 281 (Miss. 1951).

That district attorney at close of evidence entered no. pros., did not prevent subsequent prosecution under another indictment. Maxey v. State, 158 Miss. 444, 130 So. 692, 1930 Miss. LEXIS 77 (Miss. 1930).

Where defendant was tried on previous indictment, but jury did not agree and district attorney entered nol. pros., second prosecution was not barred. Smith v. State, 158 Miss. 355, 128 So. 891, 1930 Miss. LEXIS 12 (Miss. 1930).

Nolle prosequi is not a bar to another indictment for the same offense. Casey v. State, 96 Miss. 427, 50 So. 978, 1910 Miss. LEXIS 151 (Miss. 1910).

6. – – Mistrial, when jeopardy attaches.

Defendant’s retrial for murder following a mistrial due to a deadlocked jury did not violate double jeopardy. Thompson v. State, 269 So.3d 301, 2018 Miss. App. LEXIS 175 (Miss. Ct. App. 2018).

Defendant’s second trial did not violate double jeopardy because under the circumstances, which included a witness’s unexpected family emergency, the importance of his testimony, and the uncertainty that a continuance would suffice, manifest necessity existed to declare a mistrial; defendant’s valued right to have the trial concluded by the first tribunal was subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Montgomery v. State, 253 So.3d 305, 2018 Miss. LEXIS 382 (Miss. 2018).

Trial court did not err in failing to dismiss an indictment on the basis of double jeopardy because the prosecution had not deliberately provoked a mistrial by failing to disclose to defendant prior to trial that an officer would testify that defendant had surrendered defendant’s driver’s license prior to running from officers. Daniels v. State, 9 So.3d 1194, 2009 Miss. App. LEXIS 252 (Miss. Ct. App. 2009).

Where the State moved for a mistrial, no double jeopardy emanated from the first trial because a manifest necessity arose in the discovery by the State during direct examination that its first witness (defendant’s companion, charged as an accessory) was unrepresented by counsel. Because this witness had made incriminating statements, it was his rights, not defendant’s, that the State believed were violated, and there was no showing of harm to defendant or bad faith prosecutorial misconduct. Knox v. State, 912 So. 2d 1004, 2005 Miss. App. LEXIS 207 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 686 (Miss. 2005).

Where the State’s discovery violations during defendant’s second murder prosecution were unintentional and a mistrial ordered, double jeopardy principles did not apply because there was no prosecutorial manipulation of its disclosure obligation. Roberson v. State, 856 So. 2d 532, 2003 Miss. App. LEXIS 404 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 569 (Miss. 2003).

Where defendant’s first trial resulted in a mistrial, based on a Batson challenge, because the jury had not been sworn, the rules prohibiting double jeopardy were not violated; as such double jeopardy protection did not attach to defendant’s first proceeding, so as to preclude a second trial. Gaskin v. State, 856 So. 2d 363, 2003 Miss. App. LEXIS 164 (Miss. Ct. App. 2003).

Defendant who moves for mistrial generally is barred from later complaining of double jeopardy violation; to overcome bar, defendant must show that error occurred and that it was committed by the prosecution purposefully to force defendant to move for mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Double jeopardy does not arise from grant of mistrial on defendant’s motion without proof of judicial error prejudicing defendant or bad faith prosecutorial misconduct. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Alleged error committed by the prosecution in requesting and receiving information on jury panel members from circuit clerk, resulting in mistrial on defendant’s request, was insufficient to trigger double jeopardy so as to bar second trial where defendant failed to prove prosecutor’s intent to force defendant to request mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

In a defendant’s second trial conducted approximately one week after the declaration of a mistrial during his first trial did not violate the constitutional prohibition against double jeopardy where the first trial ended in a mistrial declared by the court on its own motion when the prosecutor brought to his attention that a juror had failed to divulge that she was related to a law enforcement officer. Box v. State, 610 So. 2d 1148, 1992 Miss. LEXIS 748 (Miss. 1992).

A reindictment and retrial after the first trial resulted in a mistrial due to a hung jury, did not violate the prohibition against double jeopardy, in spite of the defendant’s argument that there was no manifest necessity for dismissing the first indictment and that the reindictment and retrial was for the purpose of allowing the prosecution to strengthen its case, where there was no variance between the indictments, the proof offered and the defense asserted, and the second indictment did not charge the defendant with a different or additional offense. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

A retrial of a defendant for rape, after the trial judge declared a mistrial sua sponte during a previous trial for the same offense, would not violate the double jeopardy provisions of the Mississippi and United States Constitutions, in spite of the defendant’s argument that the mistrial was the fault of prosecution witnesses whose behavior could be imputed to the State, where the State did not elicit or provoke the witnesses’ questionable behavior, the problem occurred on cross-examination, there was no evidence of bad faith on the part of the State, and it was the defendant’s wife’s outbursts from the gallery which finally triggered a mistrial. Spann v. State, 557 So. 2d 530, 1990 Miss. LEXIS 49 (Miss. 1990).

If the trial judge’s declaration of a mistrial was a manifest necessity, and there was no abuse of discretion, then a criminal defendant may be tried again on the same charge. If there was not a manifest necessity for the mistrial, then a retrial is barred. Whether the standard has been met depends on the facts and circumstances of each case. Spann v. State, 557 So. 2d 530, 1990 Miss. LEXIS 49 (Miss. 1990).

A continuance in a bench trial is not sufficiently like a mistrial in all situations so as to invoke an analysis for determining whether the resumed hearing is barred by double jeopardy. King v. State, 527 So. 2d 641, 1988 Miss. LEXIS 240 (Miss. 1988).

The grant of a mistrial in a homicide case upon defendant’s motion and on the ground that the jurors had failed to follow the trial judge’s instruction to avoid media coverage of the trial did not form the basis of a double jeopardy claim in absence of showing of bad faith on the part of anyone connected with state having to do with the release of information to a news reporter, although a police officer had talked by phone with the reporter. Watts v. State, 492 So. 2d 1281, 1986 Miss. LEXIS 2525 (Miss. 1986).

Fourth prosecution is not barred on double jeopardy grounds where 3 proceeding trials have ended in mistrials. Wallace v. State, 466 So. 2d 900, 1985 Miss. LEXIS 1991 (Miss. 1985).

Under this section, in order for a plea of former jeopardy to avail, it must appear that defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted, and the fact of two prior mistrials caused by hung juries does not bar a third trial. Mallette v. State, 349 So. 2d 546, 1977 Miss. LEXIS 2169 (Miss. 1977).

The trial court properly granted a mistrial after two jurors became separated from the others and visited in a motel lobby, after being sequestered and expressly instructed to remain together; defendant was not placed in double jeopardy when his trial was begun the second time. Schwarzauer v. State, 339 So. 2d 980, 1976 Miss. LEXIS 1680 (Miss. 1976).

Where, on motion of the prosecution, the trial judge declared a mistrial because after the jury had been empaneled one juror expressed an opinion as to the sanity of the defendant, the mistrial furnished no basis for plea of former jeopardy. Smith v. State, 198 So. 2d 220, 1967 Miss. LEXIS 1249 (Miss. 1967).

7. – – Plea agreements, when jeopardy attaches.

There was no double jeopardy violation when a trial court required defendant to pay restitution to a bank which was the victim of defendant’s forgeries, when the forgery charges were retired to the inactive files because defendant pleaded guilty to a charge of shoplifting and agreed in plea negotiations to make restitution for both the shoplifting and forgery charges, as defendant was never acquitted or convicted of the forgeries. Smith v. State, 130 So.3d 1187, 2014 Miss. App. LEXIS 45 (Miss. Ct. App. 2014).

Although defendant claimed that the court’s decision to set his pleas aside and bring him to trial constituted a breach of the plea agreement on the State’s behalf, an abuse of discretion, and double jeopardy, the circuit court did not abuse its discretion by disregarding the original plea agreement and putting the case on the trial docket because defendant’s guilty pleas were involuntary. There was no reason why defendant should not have been proceeded against as if no trial had previously taken place; therefore, defendant could not get his convictions set aside and then claim that he was protected from a new trial by the Double Jeopardy Clauses of the Mississippi and United States Constitutions, Miss. Const. art. 3, § 22 and U.S. Const. amend. V. Catchings v. State, 111 So.3d 1238, 2013 Miss. App. LEXIS 146 (Miss. Ct. App.), cert. dismissed, 121 So.3d 918, 2013 Miss. LEXIS 573 (Miss. 2013).

Defendant’s voluntary refusal to testify against his co-defendant constituted a material breach of his plea bargain agreement with the State, and, as a result of his breach, the parties were returned to the status quo ante; thus, defendant had no double jeopardy defense available concerning re-indictment and conviction on the charges. Also, the transcript of defendant’s guilty plea hearing clearly showed that he was aware that the State would seek to invalidate his plea and reinstate the charges if he failed to testify truthfully against his co-defendant; additionally, as to the reinstatement of a kidnapping charge, it was fully within the State’s authority to re-indict defendant for the same offense after an order of nolle prosequi had been entered. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

Following vacation of defendant’s second-degree murder conviction due to defendant’s breach of plea agreement, state’s prosecution of defendant for first-degree murder does not violate double jeopardy, where agreement specified that it would be null and void if defendant refused to testify as required by agreement. Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L. Ed. 2d 1, 1987 U.S. LEXIS 2866 (U.S. 1987).

8. – – Quashing of indictment, when jeopardy attaches.

In prosecution for attempted burglary of business dwelling, double jeopardy clause of United States and Mississippi Constitutions was not violated by retrial of defendant following order quashing indictment due to its insufficiency and failure to charge crime, since defendant was neither acquitted nor convicted, having successfully persuaded trial court not to submit issue of guilt or innocence to jury empaneled to try him. City of Jackson v. Keane, 502 So. 2d 1185, 1987 Miss. LEXIS 2676 (Miss. 1987).

9. – – Reversal of conviction, when jeopardy attaches.

Capital murder defendant’s multiple trials did not violate the Double Jeopardy Clause. Because defendant had not been acquitted, his convictions had not been upheld on appeal, and he had not received multiple punishments, the Double Jeopardy Clause had not been implicated. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017), rev'd, — U.S. —, 139 S. Ct. 2228, 204 L. Ed. 2d 638, 2019 U.S. LEXIS 4196 (U.S. 2019).

Defendant’s six trials for the four murders did not violate his rights under the Double Jeopardy Clause because he had not been acquitted, his convictions had not been upheld on appeal, and he had not received multiple punishments, as his first,second, and third trials resulted in convictions that were overturned, and in his fourth and fifth trials the jury was unable to reach a unanimous decision. Because his double jeopardy protections had not been violated, defendant could not assert a due process claim on the same grounds. Flowers v. State, 158 So.3d 1009, 2014 Miss. LEXIS 569 (Miss. 2014), vacated, — U.S. —, 136 S. Ct. 2157, 195 L. Ed. 2d 817, 2016 U.S. LEXIS 3930 (U.S. 2016).

The double jeopardy clause did not bar reprosecution of a defendant for murder following the Supreme Court’s reversal of his conviction where the conviction was reversed on procedural grounds and the defendant was allowed to plead guilty to lesser offenses pursuant to the bargain, but the defendant subsequently refused to plead guilty to the lesser offenses. The defendant could be prosecuted for the murder under the original indictment since the reversal of his murder conviction on procedural grounds did not constitute a rendering of the case nor a discharge of the defendant, and the defendant’s refusal to plead guilty to the lesser offenses was a breach of the bargain. State v. Danley, 573 So. 2d 691, 1990 Miss. LEXIS 834 (Miss. 1990).

Where conviction of manslaughter under indictment for murder is reversed on application of accused, cause stands for trial de novo on original indictment, and accused may again be tried for murder. Butler v. State, 177 Miss. 91, 170 So. 148, 1936 Miss. LEXIS 234 (Miss. 1936).

Where defendant was convicted with unlawfully possessing intoxicating liquors and the conviction was reversed and remanded because of failure to prove venue, the remanding of the case would not place defendant in double jeopardy, even though defendant had moved to exclude state’s evidence and had requested peremptory instruction in his favor. Crum v. State, 216 Miss. 780, 63 So. 2d 242, 1953 Miss. LEXIS 695 (Miss. 1953).

Reversal of conviction of manslaughter on ground that the trial court should have directed an acquittal did not constitute double jeopardy, and a demurrer to the plea of former jeopardy was properly sustained. Harris v. State, 158 Miss. 439, 130 So. 697, 1930 Miss. LEXIS 80 (Miss. 1930).

10. – – Revocation of parole or probation, when jeopardy attaches.

Reinstatement of defendant’s suspended sentence did not constitute double jeopardy because the trial court did not attempt to impose a greater sentence than that already levied on defendant. Leech v. State, 994 So. 2d 850, 2008 Miss. App. LEXIS 422 (Miss. Ct. App. 2008), cert. dismissed, 999 So. 2d 852, 2009 Miss. LEXIS 50 (Miss. 2009).

Protection guaranteed by the Double Jeopardy Clauses of the Fifth Amendment and Miss. Const. Art. 3, § 22, and the doctrine of collateral estoppel, did not preclude the State from charging defendant with a cocaine offense that was the basis for an unsuccessful petition to revoke his probation, because there were different issues and burdens of proof involved in a revocation hearing and a trial on the indictment. A revocation hearing is conducted to enforce the court’s order imposing conditions on a defendant under a suspended sentence, and the issue to be determined at trial on the indictment is whether the State has proven beyond a reasonable doubt the elements of the charge; therefore, collateral estoppel does not apply. Oliver v. State, 922 So. 2d 36, 2006 Miss. App. LEXIS 112 (Miss. Ct. App. 2006).

Use of burglary charge against defendant to revoke his mistaken probation resulting from an embezzlement conviction was not a trial on the merits for burglary, and defendant’s subsequent trial on burglary charge did not place him twice in jeopardy. Lightsey v. State, 493 So. 2d 375, 1986 Miss. LEXIS 2583 (Miss. 1986).

11. – Revocation of bond, when jeopardy attaches.

The defendant in a murder prosecution was not subjected to double jeopardy when his bond on an unrelated pending charge was revoked based on the fact that there was probable cause to believe that he committed the murder at issue. Johnson v. State, 768 So. 2d 934, 2000 Miss. App. LEXIS 184 (Miss. Ct. App. 2000), cert. denied, 532 U.S. 930, 121 S. Ct. 1378, 149 L. Ed. 2d 304, 2001 U.S. LEXIS 2341 (U.S. 2001).

12. – – Attorney disciplinary proceedings, when jeopardy attaches.

Double jeopardy rights were not violated in attorney disciplinary proceedings where earlier proceedings before Mississippi State Bar Committee on Complaints were dismissed and no investigatory hearing held in connection therewith, such dismissal being functional equivalent of grand jury’s refusal to indict or magistrate’s refusal to bind defendant over to await action of next grand jury. Mississippi State Bar v. Young, 509 So. 2d 210, 1987 Miss. LEXIS 2600 (Miss. 1987).

13. – – Impaneling and swearing in of jury, when jeopardy attaches.

No jeopardy attached upon the impaneling and swearing in of the first jury, since the circuit court was without jurisdiction to try the minor defendant for manslaughter, and she was not placed in jeopardy for a second time by her subsequent trial for murder and conviction of manslaughter, after she had been certified by the youth court to the circuit court for trial as an adult. Butler v. State, 489 So. 2d 1093, 1986 Miss. LEXIS 2507 (Miss. 1986).

14. Identity of offenses–In general.

Defendant was not subjected to double jeopardy because defendant was originally found guilty of capital murder and sentenced to death, but, on remand, a separate criminal information was filed for the crime of burglary, and defendant’s guilty plea to that offense was accepted. Thus, defendant was allowed to plead guilty to murder (less than capital) and burglary in exchange for the State of Mississippi not seeking the death penalty. Pinkney v. State, 192 So.3d 337, 2015 Miss. App. LEXIS 614 (Miss. Ct. App. 2015).

Indictment for robbery was appropriate because defendant’s due process rights were not violated as the indictment was not required to have specified the items alleged to have been taken in the robbery. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Defendant’s double jeopardy rights were not violated by her convictions for three counts of driving under the influence and negligently causing death because the State was not required to specifically list the substance or substances that defendant allegedly was driving under the influence of at the time of the accident. Defendant was only convicted of one count of driving under the influence of hydrocodone and negligently causing the death or injury of another for each death or injury so caused. Teston v. State, 44 So.3d 977, 2008 Miss. App. LEXIS 681 (Miss. Ct. App. 2008), cert. dismissed, 44 So.3d 969, 2010 Miss. LEXIS 520 (Miss. 2010).

Defendant argued that the jury’s verdict of not guilty to the charge of capital murder also acquitted her of any underlying and lesser-included offenses, and that she should have been discharged as a matter of law and pursuant to the prohibition against double jeopardy; however, Miss. Code Ann. §99-19-5(1) allowed a jury to find a defendant guilty of inferior offenses, the commission of which was necessarily included in the offense with which defendant was charged. Because murder was a lesser-included offense of capital murder, the trial court did not err in accepting a verdict of guilty of murder and defendant’s double jeopardy rights were not violated. Colburn v. State, 990 So. 2d 206, 2008 Miss. App. LEXIS 74 (Miss. Ct. App. 2008).

Defendant’s claim of double jeopardy, pursuant to the Fifth Amendment, was without merit where application of the Blockburger test revealed that elements of each of the crimes of shooting into a vehicle, Miss. Code Ann. §97-25-47, and aggravated assault, Miss. Code Ann. §97-3-7(2) were not contained in the other. Graves v. State, 969 So. 2d 845, 2007 Miss. LEXIS 676 (Miss. 2007).

Appellant’s conviction for DUI manslaughter and two counts of DUI mayhem in violation of Miss. Code Ann. §63-11-30 did not subject him to double jeopardy. Each of the counts were predicated upon separate felonies, one instance of manslaughter and two instances of mutilation or mayhem that appellant committed as a result of his drunk driving. Moreno v. State, 967 So. 2d 701, 2007 Miss. App. LEXIS 739 (Miss. Ct. App. 2007).

Trial court properly dismissed defendant’s motion for post-conviction relief where he was not subjected to double jeopardy by being convicted of three criminal offenses arising out of a single incident; a criminal defendant could be convicted of more than one offense that arose out of a single event where each offense required proof of a different element. Ward v. State, 944 So. 2d 908, 2006 Miss. App. LEXIS 860 (Miss. Ct. App. 2006).

Offenses of kidnapping under Miss. Code Ann. §97-3-53 and armed robbery under Miss. Code Ann. §97-3-79 were clearly separate and distinct, with each requiring proof of additional facts the other did not; kidnapping, for example, required proof of intent to cause such person to be secretly confined or imprisoned against their will, whereas armed robbery did not, and armed robbery required the taking of personal property of another, but kidnapping did not. Thus, the crimes were separate and distinct regardless of their temporal overlap or their arising from a common nucleus of operative facts, and defendant’s double jeopardy rights were not violated through being convicted of both kidnapping and armed robbery. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

Denial of the inmate’s petition for post-conviction relief was proper where double jeopardy protection was not implicated because Miss. Code Ann. §63-11-30(5) required an element not required by Miss. Code Ann. §97-3-47, namely, that of intoxication. Ramage v. State, 914 So. 2d 274, 2005 Miss. App. LEXIS 772 (Miss. Ct. App. 2005).

As defendant remained in possession of cocaine after he sold it to the officer, he could be convicted for both possession and sale of a controlled substance under Miss. Code Ann. §41-29-139(a)(1) without a double jeopardy violation. McDonald v. State, 921 So. 2d 353, 2005 Miss. App. LEXIS 334 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 159 (Miss. 2006).

Where defendant was tried in a second case for statutory rape, sexual battery, and fondling, double jeopardy was not violated; while the victims were the same, the factual bases supporting the charges in the current indictment were totally different from the factual bases undergirding the charges in the first case. Moses v. State, 885 So. 2d 730, 2004 Miss. App. LEXIS 912 (Miss. Ct. App. 2004).

Where defendant robbed the victim, a store clerk, at gunpoint, and pistol whipped the victim numerous times, the offenses of robbery with the use of a deadly weapon, and aggravated assault, clearly required different elements of proof, and double jeopardy did not apply. Houston v. State, 887 So. 2d 808, 2004 Miss. App. LEXIS 451 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1448 (Miss. 2004).

Quantity of pseudoephedrine described in count one, a violation of Miss. Code Ann. §41-29-313(1)(a)(ii), was the same quantity of the drug that was identified in count two, a violation of §41-29-313(3); this exposed defendant to multiple punishments for the same conduct, and under double jeopardy considerations, the court reversed defendant’s conviction under count two. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Convictions for armed carjacking and armed robbery occurring during the same episode did not constitute double jeopardy where the carjacking charge was based on the taking of a delivery truck and the robbery charge was based on the theft of money from one of the occupants of the truck. McCline v. State, 856 So. 2d 556, 2003 Miss. App. LEXIS 460 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 722 (Miss. 2003).

A prior conviction for reckless driving does not present a bar to a prosecution for felony murder, arising out of the same nucleus of facts, based on the underlying felony of driving while intoxicated as a third offender because proof of reckless driving is not necessary to prove felony driving while intoxicated or felony murder. Lee v. State, 759 So. 2d 390, 2000 Miss. LEXIS 94 (Miss. 2000).

For the purpose of double jeopardy analysis, the offense of speeding and the offense of failure to appear in court after being issued a traffic citation are entirely separate offenses, with each offense obviously containing some or all elements not contained in the other. Stidham v. State, 750 So. 2d 1238, 1999 Miss. LEXIS 372 (Miss. 1999).

The defendant’s conviction for both attempted armed robbery and aggravated assault did not violate the double jeopardy provisions of the federal and state constitutions since each offense required different elements of proof. Greenwood v. State, 744 So. 2d 767, 1999 Miss. LEXIS 223 (Miss. 1999).

Blockburger or “same-elements test” of whether double jeopardy bar applies in context of multiple punishment or multiple prosecution inquires whether each offense contains an element not contained in the other; if not, they are same offense for double jeopardy purposes. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Test for determining when separate conspiracy exists, for purpose of determining whether subsequent prosecution is barred by double jeopardy, requires government to prove, by preponderance of the evidence, a separate conspiracy focusing upon elements of time, persons acting as coconspirators, statutory offenses charged in indictments, overt acts charged by government or any other description of offense charged which indicates nature and scope of activity which government sought to punish in each case, and place where events alleged as part of conspiracy took place. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Subsequent prosecution of defendants, who had been acquitted of conspiracy to commit forgery and/or defraud corporation out of money for forged soybean weight certificates, on charge of conspiracy to defraud Farmer’s Home Administration was barred by double jeopardy clause, even though second prosecution accused defendants of trying to defraud different victim, as corporation was named in both indictments and, in addition, same time frame was involved, persons named as coconspirators were substantially the same, offenses charged in both indictments were conspiracy to defraud and to cheat, overt acts by defendants amounted to same course of conduct of transferring forged soybean certificates to company which issued checks in defendants’ names representing payment for soybeans purportedly delivered to corporation, and conduct occurred in same counties. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

In context of double jeopardy, underlying felony in felony murder is, by definition, included in greater offense and may not be punished separately. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A defendant’s convictions for both murder-for-hire capital murder under §97-3-19(2)(d) and conspiracy to commit capital murder under §97-1-1 violated the constitutional protection against double jeopardy, since the definition of murder-for-hire in §97-3-19(2)(d) completely encompasses the agreement or conspiracy to commit capital murder. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

Since conspiracy and burglary are separate and distinct crimes requiring proof of different elements, a defendant did not have a double jeopardy claim based on the prosecution of these 2 crimes arising from the same incident, despite the fact that the prosecution chose to prosecute the defendant for these crimes at separate trials. House v. State, 645 So. 2d 931, 1994 Miss. LEXIS 537 (Miss. 1994).

A defendant’s right to be free from double jeopardy was not violated, even though the defendant was tried, convicted and sentenced for two distinct offenses – simple assault and simple assault upon a law enforcement officer – arising from the same incident, because the defendant engaged in conduct which was severable into two separate offenses where he intervened in an ongoing assault to aid another perpetrator by preventing a third party from assisting the victim, and he subsequently committed an assault against the same victim by pointing his pistol at him. Moore v. State, 617 So. 2d 272, 1993 Miss. LEXIS 128 (Miss. 1993).

Section63-11-30 proscribes the act of drunk driving rather than the act of negligent killing; thus, an indictment charging the defendant with 2 counts of violating §63-11-30 based on only one act of drunk driving subjected the defendant to double jeopardy and required reversal of the conviction on the second count. Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

A defendant’s right to be shielded from double jeopardy was violated where the defendant was convicted and punished for both kidnapping under §97-3-53 and capital murder while engaged in the crime of kidnapping under §97-3-19(2)(e); since the defendant was indicted, tried and found guilty of capital murder under §97-3-19(2)(e) with the kidnapping as the underlying felony, and thereafter exposed to trial for his life, the State was precluded from punishing him further for the §97-3-53 kidnapping. Meeks v. State, 604 So. 2d 748, 1992 Miss. LEXIS 400 (Miss. 1992).

An indictment charging the defendant with rape under §97-3-65 was proper, even though the indictment used the language “a female person under the age of 14,” while the statute states, in pertinent part, “a child under the age of 14.” The indictment’s language was wholly included within the statutory language, since a female person under the age of 14 is a child under the age of 14; the indictment need not use the precise words of the statute. Furthermore, the defendant was not prejudiced in the preparation of his defense or exposed to double jeopardy by the indictment’s language. Allman v. State, 571 So. 2d 244, 1990 Miss. LEXIS 705 (Miss. 1990).

The constitutional prohibition against double jeopardy was violated where the defendant was prosecuted for 2 counts of aggravated assault arising from an automobile accident, after the defendant had been charged with and plead guilty to the misdemeanor offense of driving an automobile on the wrong side of the highway, since the defendant’s conduct in driving on the wrong side of the highway was the same conduct which the state relied upon in the felony prosecution for the assault charges. Harrelson v. State, 569 So. 2d 295, 1990 Miss. LEXIS 635 (Miss. 1990), overruled in part, Powell v. State, 806 So. 2d 1069, 2001 Miss. LEXIS 271 (Miss. 2001).

The offenses of aggravated assault under §97-3-7 and shooting into a dwelling house under §97-37-29 did not constitute the “same offense” for double jeopardy purposes where at least 18 shots were fired into the house and the victim was not struck with all 18 shots; the 2 statutes require proof of different facts in that shooting into a dwelling house is not required to establish an aggravated assault, and neither injury nor attempt to injure is required to prove the offense of shooting into a dwelling house. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

Although a substantive offense and a conspiracy to commit are 2 separate offenses, where there is a common nucleus of operative facts existing in both indictments, and where the ultimate fact has been determined in a prior acquittal of the substantive offense by a final judgment, a conspiracy trial is barred thereafter under the constitutional double jeopardy provision. Griffin v. State, 545 So. 2d 729, 1989 Miss. LEXIS 289 (Miss. 1989), limited, State v. Thomas, 645 So. 2d 931, 1994 Miss. LEXIS 554 (Miss. 1994).

A defendant’s conviction and sentence on a charge of rape did not subject him to double jeopardy even though he had also been convicted and sentenced on a burglary charge which arose out of the same facts and circumstances as the rape charge. Norman v. State, 543 So. 2d 1163, 1989 Miss. LEXIS 264 (Miss. 1989).

The prosecution of a defendant for robbery with a deadly weapon after a prior conviction for kidnapping arising from the same incident was not barred by double jeopardy since the crimes of armed robbery and kidnapping required different elements of proof. Brock v. State, 530 So. 2d 146, 1988 Miss. LEXIS 361 (Miss. 1988).

Where a defendant was charged with misdemeanor driving under the influence of alcohol, forfeiture of his bond and entry of a sentence of guilty into the docket constituted a conviction such that a subsequent trial for felonious driving under the influence was barred by the principle of double jeopardy. Bennett v. State, 528 So. 2d 815, 1988 Miss. LEXIS 311 (Miss. 1988).

Defendant’s constitutional double jeopardy right was violated where he had previously been acquitted of crime of murder while in commission of rape, which was based on same series of acts upon which subsequent conviction of kidnapping was based. Dixon v. State, 513 So. 2d 951, 1987 Miss. LEXIS 2836 (Miss. 1987).

Double jeopardy clauses of federal and state constitutions were not violated where defendant was originally indicted for capital murder of rape victim, which was subsequently reduced to murder as result of plea bargain, and later charged with rape; in capital murder indictment, defendant was charged with underlying felony of burglary, and nothing in that indictment suggested defendant committed rape. McFee v. State, 511 So. 2d 130, 1987 Miss. LEXIS 2630 (Miss. 1987).

Separate prosecutions for sales of illegal controlled substances, arising from incidents occurring one week apart from each other, do not violate double jeopardy even where same undercover agent has induced sales at same general location using same modus operandi. Barnette v. State, 478 So. 2d 800, 1985 Miss. LEXIS 2282 (Miss. 1985).

Prosecution for aggravated assault on police officer is not barred by prior prosecution for aggravated assault on another police officer arising out of same incident. Lee v. State, 469 So. 2d 1225, 1985 Miss. LEXIS 1900 (Miss. 1985).

Where a body of a victim was severely burned by a fire, which also consumed his house, and where the defendant was acquitted of the murder, double jeopardy clause of Article 3 § 22 did not bar the subsequent prosecution of the defendant for the arson of the victim’s home. Harden v. State, 460 So. 2d 1194, 1984 Miss. LEXIS 1963 (Miss. 1984).

Defendant’s prior conviction for rape did not preclude, on double jeopardy grounds, his prosecution for burglary, even though both arose out of the same general set of facts and testimony in both trials was essentially the same, since the essential statutory elements of the two charges are entirely different. Smith v. State, 429 So. 2d 252, 1983 Miss. LEXIS 2480 (Miss. 1983).

Defendant’s motion to dismiss, on double jeopardy grounds, an indictment charging him with armed burglary of an inhabited dwelling at nighttime was improperly denied, where there was a common nucleus of operative facts from which arose the prosecution for burglary and an earlier prosecution for rape, where defendant had earlier been acquitted of the rape, where the not guilty verdict in the rape trial was well within the evidence, where defendant’s only defense at the rape trial was that another person committed the crime, where the jury could not rationally have acquitted him on any other basis, and where the state offered substantial evidence during the rape trial to show that he broke and entered the rape victim’s home. Sanders v. State, 429 So. 2d 245, 1983 Miss. LEXIS 2499 (Miss. 1983).

Indictment of defendant for felonious battery of a child did not subject him to former jeopardy, though he had previously been acquitted of a charge of manslaughter with respect to the same child’s death, since defendant was not thereby subjected to being tried twice for the same offense, the essentials of felonious battery including intent and mutilation, neither of which is necessary to a conviction for manslaughter, and the indictment for manslaughter thus did not constitute the basis for a conviction of felonious battery. State v. Cox, 339 So. 2d 1374, 1976 Miss. LEXIS 1697 (Miss. 1976).

Where the fact clearly established that the possession and sale of marijuana was a single transaction, the defendant could properly be charged with possession and sale, but he could be convicted of only one charge, and the state having elected to try him first for the possession, his conviction and sentence on that charge precluded the state from trying him for the sale. Laughter v. State, 241 So. 2d 641, 1970 Miss. LEXIS 1348 (Miss. 1970).

A defendant, convicted in a federal court of the offense of interstate transportation of stolen property, is not placed in double jeopardy when subsequently prosecuted in a state court for embezzlement of the same property. Bell v. State, 251 Miss. 511, 170 So. 2d 428, 1965 Miss. LEXIS 877 (Miss. 1965).

Rule against double jeopardy is not violated by punishing as contempt of court an act which has been punished as a penal offense. Church v. State, 239 Miss. 1, 111 So. 2d 228, 1959 Miss. LEXIS 541 (Miss. 1959).

One acquitted of violating the general statute penalizing adultery and fornication (Code 1942 § 1998) is not put twice in jeopardy by being charged under the statute penalizing incestuous relationships. (Code 1942 § 2000). Ratcliff v. State, 234 Miss. 724, 107 So. 2d 728, 1958 Miss. LEXIS 542 (Miss. 1958).

In view of accused’s testimony that he had not been tried on the afternoon of his arrest for speeding, and no affidavit therefor had been made, his contention of double jeopardy, under a later speeding conviction in the circuit court, would fail since the offense for which he was tried in the justice of peace court was not the same offense as involved in the appeal, and if no affidavit had been made, the conviction in the justice of peace court was void and no bar to a subsequent prosecution. Gangloff v. State, 232 Miss. 395, 99 So. 2d 461, 1958 Miss. LEXIS 285 (Miss. 1958).

When a single unlawful act results in the killing of more than one person, each homicide constitutes a separate offense for which the defendant may be tried without being twice put in jeopardy for the same offense. Burton v. State, 226 Miss. 31, 79 So. 2d 242, 1955 Miss. LEXIS 605 (Miss. 1955).

There is a distinction between an offense and the unlawful act out of which it arises and the test as to whether the accused has been put in double jeopardy is not whether the accused has been tried for the same act but whether he had been put in jeopardy for the same offense. Burton v. State, 226 Miss. 31, 79 So. 2d 242, 1955 Miss. LEXIS 605 (Miss. 1955).

To entitle the accused to plead former jeopardy, the offenses charged in two prosecutions must be the same in law and in fact. Burton v. State, 226 Miss. 31, 79 So. 2d 242, 1955 Miss. LEXIS 605 (Miss. 1955).

A conviction of accused for failure to support his family is not a bar to a prosecution for abandonment of wife and child. McRae v. State, 104 Miss. 861, 61 So. 977, 1913 Miss. LEXIS 90 (Miss. 1913).

A conviction on Sunday bars a subsequent prosecution for the same offense. Cherry v. State, 103 Miss. 225, 60 So. 138, 1912 Miss. LEXIS 159 (Miss. 1912).

A prosecution in the circuit court is barred by a former conviction by a justice of the peace of the same offense. Smith v. State, 101 Miss. 853, 58 So. 539, 1912 Miss. LEXIS 18 (Miss. 1912).

A prosecution of an officer for converting certain funds to his own use is barred by a former conviction under a charge of failure to turn over money. McInnis v. State, 97 Miss. 280, 52 So. 634, 1910 Miss. LEXIS 258 (Miss. 1910).

On the trial of a charge of unlawful sale of liquors several sales were established and the state elected to stand on one of which the accused was acquitted. He cannot again be tried on one of the sales proved in the first trial. King v. State, 99 Miss. 23, 54 So. 657, 1910 Miss. LEXIS 6 (Miss. 1910); Williams v. State, 102 Miss. 274, 59 So. 87, 1912 Miss. LEXIS 52 (Miss. 1912).

A prosecution on an indictment for embezzling a particular item of an account is barred by an acquittal under an indictment for embezzling a “balance of the account.” State v. Caston, 96 Miss. 183, 50 So. 569, 1909 Miss. LEXIS 38 (Miss. 1909).

The mere failure of a justice of the peace to properly sentence the defendant does not prevent his pleading former jeopardy on a trial under an indictment for the same offense found prior to the trial before the justice, where the defendant had not been arrested before the indictment. Smithey v. State, 93 Miss. 257, 46 So. 410, 1908 Miss. LEXIS 82 (Miss. 1908).

A person convicted under a municipal ordinance prohibiting leaking water pipes for more than two days bars another prosecution for like offense on the same street committed any time prior to the affidavit in the original prosecution. Crumpler v. Vicksburg, 89 Miss. 214, 42 So. 673, 1906 Miss. LEXIS 76 (Miss. 1906).

Section 1412 of the Code, providing that the conviction of a defendant by a justice of the peace for a misdemeanor shall not bar a prosecution for a felony in the same matter, is not violative of this section. Tate v. Board of Levee Comm'rs, 84 Miss. 388, 36 So. 395, 1904 Miss. LEXIS 50 (Miss. 1904).

Under a charge of aiming and discharging firearms at another, an acquittal under an indictment for assault and battery with intent to kill and murder does not bar the prosecution. Richardson v. State, 79 Miss. 289, 30 So. 650, 1901 Miss. LEXIS 50 (Miss. 1901).

The offenses must be identical. Chiles v. Gallagher, 67 Miss. 413, 7 So. 208, 1889 Miss. LEXIS 36 (Miss. 1889).

A prosecution for assault and battery or a simple assault will be barred by a conviction or acquittal upon an indictment for assault and battery with intent to kill. Jones v. State, 66 Miss. 380, 6 So. 231, 1889 Miss. LEXIS 109 (Miss. 1889).

Where defendant was acquitted under an indictment charging an offense against a daughter does not bar a subsequent prosecution for the offense committed against a stepdaughter. Sims v. State, 66 Miss. 33, 5 So. 525, 1888 Miss. LEXIS 54 (Miss. 1888).

A prosecution for disturbance of public worship by other means than drunkenness is not barred by a conviction on a charge of drunkenness at the time. Smith v. State, 67 Miss. 116, 7 So. 208, 1889 Miss. LEXIS 35 (Miss. 1889); Ball v. State, 67 Miss. 358, 7 So. 353, 1889 Miss. LEXIS 91 (Miss. 1889).

It is no bar to a prosecution for gaming that defendant was convicted of gaming at a date subsequent to the time laid in the indictment unless evidence of the former gaming was adduced in the trial. Pope v. State, 63 Miss. 53, 1885 Miss. LEXIS 12 (Miss. 1885).

A plea of former jeopardy to an indictment for slander which sets out different words charged in the affidavit on which defendant was convicted to those charged in the indictment is bad. Seal v. State, 2 Miss. Dec. 450 (1883).

An acquittal under an indictment for murder which does not charge an assault and battery is not good in bar of a subsequent prosecution for the latter offense. Moore v. State, 59 Miss. 25, 1881 Miss. LEXIS 67 (Miss. 1881).

A person in one difficulty may be subject to conviction for committing separate assaults upon two separate adversaries and a conviction for one will not bar a conviction for the other. Teat v. State, 53 Miss. 439, 1876 Miss. LEXIS 94 (Miss. 1876).

15. – – Offenses against different governments, identity of offenses.

Bank robbery is a crime under both laws of the United States and of the State of Mississippi, and a defendant’s conviction under the laws of the United States will be no bar to his subsequent prosecution and conviction under the laws of Mississippi for the commission of the identical act for which he had previously been convicted in the federal courts. Bankston v. State, 236 So. 2d 757, 1970 Miss. LEXIS 1504 (Miss. 1970).

The legislature can constitutionally confer on municipalities the power by ordinance to punish as an offense against the municipality an act which constitutes a crime against the state. Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 1899 Miss. LEXIS 98 (Miss. 1899).

A conviction of an offense under a municipal ordinance is not a bar to a prosecution by the state for same act. Johnson v. State, 59 Miss. 543, 1882 Miss. LEXIS 155 (Miss. 1882).

16. Sentence and punishment–In general.

Having failed to prove at trial that defendant was a habitual offender under Miss. Code Ann. §99-19-81, the State could not attempt to prove his habitual-offender status on remand, as that would violate the prohibition against double jeopardy set forth in Miss. Const. art. III, § 22. Grayer v. State, 2013 Miss. LEXIS 187 (Miss. May 2, 2013), op. withdrawn, sub. op., 120 So.3d 964, 2013 Miss. LEXIS 370 (Miss. 2013).

Decision to revoke appellant’s, an inmate’s, probation was appropriate, but a remand to the trial court was necessary because the handwritten addendum to the revocation order caused the inmate’s new sentence to exceed the five-year maximum sentence and the State conceded that the handwritten addendum imposing three years’ post-release supervision, instead of two years, was a clerical error. Although the inmate claimed that the new sentence subjected him to cruel and unusual punishment and to double jeopardy, double jeopardy was only violated if the court attempted to administer a longer sentence than what was originally conferred upon the inmate. Whitaker v. State, 22 So.3d 326, 2009 Miss. App. LEXIS 760 (Miss. Ct. App. 2009).

Inmate’s claim that the use of the robbery aggravating factor during sentencing was inappropriate as it allowed the use of the underlying felony, which elevated the crime to capital murder, was without merit on double jeopardy grounds because there was no threat of multiple prosecutions for the same offense or for repeated punishment arising from the same conviction; the sentencing phase of a capital murder trial was one part of the whole trial which included the guilt phase, and the use of the underlying felony at sentencing did not expose the inmate to double jeopardy. Brawner v. State, 947 So. 2d 254, 2006 Miss. LEXIS 625 (Miss. 2006).

Trial court sentenced defendant to criminal contempt for refusal to testify in co-defendant’s trial; because his failure to testify constituted a material breach of the plea agreement, the State reinstated the kidnapping charge, for which defendant was subsequently convicted and sentenced to 25 years’ imprisonment. Defendant contended that the kidnapping conviction and sentence constituted a second punishment for his refusal to testify, thus subjecting him to double jeopardy; however, defendant was punished once for his refusal to testify against his co-defendant and once for the separate and distinct crime of kidnapping the victims, and, thus, his right double jeopardy rights were not violated as he was not punished multiple times for the same crime. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

Petitioner’s argument that he was sentenced twice for the same offense and was subjected to double jeopardy lacked merit because the petitioner was not given a second sentence, but instead, after learning that federal authorities would not allow the petitioner to serve his state and federal sentences concurrently, the circuit court simply corrected its sentencing order, which it had authority to do because the sentencing order was amended before the end of the circuit court term. Toney v. State, 906 So. 2d 28, 2004 Miss. App. LEXIS 1030 (Miss. Ct. App. 2004).

By being subject to both a criminal prosecution and civil fines for tax evasion, defendant was not exposed to double criminal prosecutions in violation of the Double Jeopardy Clause. Also, the indictment was not multiplicitous. King v. State, 897 So. 2d 981, 2004 Miss. App. LEXIS 689 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 224 (Miss. 2005).

Because the offenses of possession under Miss. Code Ann. §41-29-313 and conspiracy were considered separate criminal violations separately punishable, no double jeopardy principle was violated. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

While it may be true that the language of Miss. Code Ann. §41-29-313(1)(a)(i) regarding “any amount” of the prohibited substances was primarily intended to cover situations where lesser quantities of the suspect materials were discovered and, therefore, the showing of multiple items was required to strengthen the inference of wrongful intent, it is nevertheless true that “any amount” plainly means just that – any amount; therefore, the possession of 250 – or 250,000, for that matter – dosage units of pseudoephedrine simultaneously with the possession of any one of the other prohibited substances listed in the statute constitutes a consummated violation of §41-29-313(1)(a)(i), and, if a defendant is charged, convicted, and sentenced for that violation, it would plainly constitute a double jeopardy violation to attempt to punish defendant a second time for the possession of the exact same supply of pills, simply on the basis that the quantity happened to exceed the permissible level under a separate criminal statute. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

The double jeopardy clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of §63-11-30 subsequent to administrative license suspension pursuant to §63-11-23(2). Keyes v. State, 708 So. 2d 540, 1998 Miss. LEXIS 33 (Miss. 1998).

Since Mississippi’s capital sentencing procedure requires the jury to determine whether the State has proved its case for the death penalty, the double jeopardy clause will protect a defendant from any subsequent attempt to subject him or her to the death penalty after a jury has impliedly acquitted him or her of the death penalty by determining that only a life sentence was warranted. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The double jeopardy clause did not afford a capital murder defendant protection against further capital sentencing procedures where he was originally sentenced to death by a jury, the death sentence was subsequently reversed due to a confrontation clause problem but there was no finding that the State had failed to prove its case for the death penalty, and the defendant and the State then entered into a sentencing agreement which was found to be void; since there was no acquittal of the death penalty, the double jeopardy clause would not prohibit the State from seeking the death penalty at a subsequent sentencing hearing. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

17. Addition of a condition to a suspended sentence.

Addition of the condition of house arrest to an inmate’s suspended sentence was not an impermissible increase in the level of punishment to invoke constitutional concerns of double jeopardy under U.S. Const. Amend. V and Miss. Const. Art. 3, § 22. The inmate had not been actually acquitted or convicted in a former trial on the merits for which he was again sought to be convicted. Williams v. State, 4 So.3d 388, 2009 Miss. App. LEXIS 128 (Miss. Ct. App. 2009).

18. – – Guilty pleas, sentence and punishment.

Where appellant pleaded guilty to possession of cocaine, he was sentenced to serve ten years concurrently with a sentence for a crime he committed in Tennessee. The trial court did not violate the double jeopardy clause by accepting his guilty plea on one date and then sentencing him during a separate hearing; defendant only received one criminal sentence. Brown v. State, 920 So. 2d 1037, 2005 Miss. App. LEXIS 794 (Miss. Ct. App. 2005).

Double jeopardy was not implicated where the defendant was tried for capital murder and for the same burglary that was necessary to support the capital murder offense, and he eventually pled guilty to the lesser included offense of murder and to burglary of an occupied dwelling. Pinkney v. State, 2000 Miss. LEXIS 95 (Miss. Apr. 20, 2000), op. withdrawn, sub. op., 757 So. 2d 297, 2000 Miss. LEXIS 173 (Miss. 2000).

Treble civil penalty of $84,460.60 for Medicaid fraud, and imposition of prison sentence after defendant failed to pay penalty, did not constitute double jeopardy when considered with other punishment received when defendant pleaded guilty, such as a fine for actual amount of fraud and two-year probation; all punishment was imposed in a single proceeding, and punishment was within statutory authority. Jennings v. State, 700 So. 2d 1326, 1997 Miss. LEXIS 459 (Miss. 1997), overruled in part, Rowland v. State, 42 So.3d 503, 2010 Miss. LEXIS 386 (Miss. 2010).

A trial court erred in allowing a defendant to plead guilty to both capital murder and the underlying felony of burglary which elevated the murder to capital murder; sentencing the defendant separately for both felony murder and the underlying felony violated his right against double jeopardy. Fuselier v. State, 654 So. 2d 519, 1995 Miss. LEXIS 222 (Miss. 1995).

A trial court’s imposition of a sentence of 491/2 years imprisonment upon finding that the defendant had violated a plea agreement which provided that the charges against the defendant would be dismissed following restitution and 3 years of good behavior pursuant to §99-15-26, in spite of the defendant’s argument that the maximum sentence he should have received was 3 years since the plea bargain required him to “go straight” for only 3 years as a condition of dismissal, since the defendant had not been adjudged guilty or sentenced for the original charges until the date when the 491/2 year sentence was imposed, and therefore the 3-year period of conditional good behavior did not amount to a sentencing ceiling for double jeopardy purposes. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

In §99-15-26 proceedings, the trial court never accepts the guilty plea and never imposes a sentence if the defendant fulfills the court-imposed conditions; where a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior because to do so would expose the defendant to double jeopardy. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

19. – – Habitual offenders, sentence and punishment.

The use of the defendant’s prior convictions for driving under the influence of alcohol (DUI) to obtain a conviction for felony DUI did not violate the double jeopardy clause. Smith v. State, 736 So. 2d 381, 1999 Miss. App. LEXIS 43 (Miss. Ct. App. 1999).

The prohibition against double jeopardy did not preclude the State at resentencing from enhancing a defendant’s life sentence for murder with the habitual offender statute where the defendant was initially sentenced to death and therefore his status as an habitual offender was not determined until after the sentencing trial on remand; since the defendant’s status as an habitual offender had not previously been determined, the finding of habitual offender status on resentencing was not barred by double jeopardy. Gray v. State, 605 So. 2d 791, 1992 Miss. LEXIS 481 (Miss. 1992).

The State would not be permitted a second chance to prove the habitual offender status of a defendant where the habitual offender portion of the sentence had been vacated due to the insufficiency of the evidence presented to prove the necessary prior convictions; Article 3, § 22 of the Mississippi Constitution would bar the State from perfecting its evidence through successive attempts. Cox v. State, 586 So. 2d 761, 1991 Miss. LEXIS 588 (Miss. 1991).

The holding of a hearing on the issue of habitual offender status, which resulted in a sentence of life without parole, following a bifurcated guilt and sentencing trial on a charge of capital murder, which resulted in a jury verdict of a life sentence, meaning life with parole, rather than death, did not violate the defendant’s right against double jeopardy. At the capital murder sentencing hearing on the matter of whether the defendant should be sentenced to death, the defendant was not put in jeopardy on the issue of sentence enhancement based on recidivism. Hoover v. State, 552 So. 2d 834, 1989 Miss. LEXIS 439 (Miss. 1989).

A habitual offender’s sentencing hearing, as a trial on the sentence, constitutes jeopardy for the purpose of the constitutional right against double jeopardy. Ellis v. State, 520 So. 2d 495, 1988 Miss. LEXIS 153 (Miss. 1988).

Remanding case for resentencing under habitual offender statute would offend double jeopardy clause because habitual offender sentencing is itself trial on eligibility for harsher sentence and therefore constitutes jeopardy. Young v. State, 507 So. 2d 48, 1987 Miss. LEXIS 2442 (Miss. 1987).

Const Art 3 § 22, the Double Jeopardy Clause, precluded the state from having a second chance to establish defendant’s habitual offender status under §99-19-81, where no evidence had been admitted to support such a conviction apart from evidence erroneously admitted by the trial court. De Bussi v. State, 453 So. 2d 1030, 1984 Miss. LEXIS 1826 (Miss. 1984).

20. – – Parole, probation, or suspended sentence, sentence and punishment.

Where appellant served four years of his six-year sentence for the sale of cocaine, he was released; upon the revocation of his suspended two-year sentence, the trial court violated appellant’s protection against double jeopardy by imposing a three-year term of imprisonment. The trial court exposed him to a period of incarceration exceeding the original suspended sentence. Branch v. State, 996 So. 2d 829, 2008 Miss. App. LEXIS 782 (Miss. Ct. App. 2008).

Post-conviction relief was denied in a case where a portion of a suspended sentence was revoked under Miss. Code Ann. §47-7-37 because there was no due process violation since the evidence relied upon was listed, there was no double jeopardy violation since the original sentence was reinstated, and counsel was not required since the case was not complex. Pruitt v. State, 953 So. 2d 302, 2007 Miss. App. LEXIS 203 (Miss. Ct. App. 2007).

Administrative proceedings did not invoke the double jeopardy clause, and as such defendant was not unconstitutionally subjected to double jeopardy where his removal from the intensive supervision program and reclassification into the general prison population, as well as the imposition of his original sentence, were administrative, not criminal proceedings; double jeopardy protections did not apply to suspension revocation hearings. Brown v. Miss. Dep't of Corr., 906 So. 2d 833, 2004 Miss. App. LEXIS 1157 (Miss. Ct. App. 2004).

Because the inmate failed the urine test four months short of completing one year in the Intensive Supervision Program (ISP), there was no denial of due process or equal protection in denial of an evidentiary hearing, and no double jeopardy issue arose because the Mississippi Department of Corrections (MDOC) simply changed the inmate’s statute as a prisoner by revoking the inmate from ISP and placing the inmate in an MDOC facility to serve the remainder of the inmate’s sentence. McBride v. Sparkman, 860 So. 2d 1237, 2003 Miss. App. LEXIS 1070 (Miss. Ct. App. 2003).

Defendant did not suffer a double jeopardy violation where the trial court’s petition to revoke probation or to revoke suspension of a sentence was not a criminal case and not a trial on the merits of the case; there was no subsequent conviction and sentence, only an indictment, and defendant failed to show he was previously convicted of the crime of possession of cocaine when the trial judge revoked his bond, and defendant did not show that jeopardy attached at probation and bail revocation hearings. Thomas v. State, 845 So. 2d 751, 2003 Miss. App. LEXIS 444 (Miss. Ct. App. 2003).

It was a violation of the prohibition against double jeopardy for the court to resentence the defendant to a term of 30 years where (1) the defendant was originally sentenced to a term of 20 years, with five years suspended, on condition that he would later give testimony against “any unindicted person in the case,” and (2) the defendant failed to fulfill the condition of his sentence. Johnson v. State, 753 So. 2d 449, 1999 Miss. App. LEXIS 658 (Miss. Ct. App. 1999).

Double jeopardy protection does not apply to a hearing to revoke a suspended sentence. Cooper v. State, 737 So. 2d 1042, 1999 Miss. App. LEXIS 444 (Miss. Ct. App. 1999).

Where a person, convicted of an offense less than felony, is required to enter into a bond to keep peace and to be of good behavior there is no violation of the constitution in placing him in double jeopardy for the same offense. Arnold v. State, 213 Miss. 667, 57 So. 2d 484, 1952 Miss. LEXIS 408 (Miss. 1952).

It is not violative of the section for the court, upon a conviction of an offender, to suspend the sentence except as to costs, and at a future term to impose a fine, etc. Gibson v. State, 68 Miss. 241, 8 So. 329, 1890 Miss. LEXIS 23 (Miss. 1890).

21. – – Attorney disciplinary proceedings, sentence and punishment.

An appeal by the Mississippi State Bar to enhance an attorney’s punishment for his violation of disciplinary rules did not violate the attorney’s constitutional right against double jeopardy. Mississippi State Bar v. Blackmon, 600 So. 2d 166, 1992 Miss. LEXIS 154 (Miss. 1992).

22. Motions to dismiss.

Where defendant was convicted of driving under the influence, and of open-container and improper stop offenses in municipal court, and he appealed to the circuit court, as to the city’s cross-appeal, the circuit court’s dismissal of the open-container and improper stop charges was, in effect, an acquittal. A reversal by the appellate court for a second trial on those two charges would have violated defendant’s constitutional right to protection from double jeopardy. McDonald v. City of Aberdeen, 906 So. 2d 774, 2004 Miss. App. LEXIS 1143 (Miss. Ct. App. 2004).

The Supreme Court was authorized to treat a circuit court’s denial of a criminal defendant’s motion to dismiss the indictment against him on double jeopardy grounds as a “final judgment” in a civil action under §11-51-3, which authorizes an appeal from a final judgment, and §9-3-9, which gives the Supreme Court jurisdiction of an appeal from any final judgment in the circuit court, since the double jeopardy claim went beyond the defendant’s right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore denial of the claim was final and justified immediate determination. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

23. Different elements, no double jeopardy.

Defendant’s motor-vehicle theft conviction did not violate the Double Jeopardy Clause because defendant’s acquittal of conspiracy to commit motor-vehicle theft did not preclude any other conviction based on aiding and abetting motor-vehicle theft. Peel v. State, 283 So.3d 203, 2019 Miss. App. LEXIS 104 (Miss. Ct. App. 2019).

No double-jeopardy violation was found in defendant’s convictions for armed robbery because defendant committed four offenses, simultaneously, that arose from a common nucleus of operative fact, in that defendant took property from four separate individuals, thus committing four separate crimes. Miller v. State, 192 So.3d 383, 2016 Miss. App. LEXIS 315 (Miss. Ct. App. 2016).

Trial court properly denied the inmate’s post-conviction relief motion, because the inmate’s conviction for capital murder and subsequent indictment and conviction for armed robbery did not constitute double jeopardy since each indictment charged separate and distinct offenses, involving different victims. Washington v. State, 158 So.3d 1246, 2015 Miss. App. LEXIS 119 (Miss. Ct. App. 2015).

Appellant did not experience double jeopardy because he was never prosecuted twice for the same offense; burglary and sexual battery required proof of different facts, and thus, even if the prosecution had pursued the sexual-battery charge, appellant would not have been subjected to double jeopardy since he pleaded guilty to burglary. Stamps v. State, 151 So.3d 248, 2014 Miss. App. LEXIS 651 (Miss. Ct. App. 2014).

Defendant’s right against double-jeopardy was not violated because, while the counts for fondling, under Miss. Code Ann. §97-5-23(1), and the attempted-sexual-battery, under Miss. Code. Ann. §97-1-7, stemmed from the same encounter, the elements of the crimes were not the same as each count contained an element not contained in the other. Attempted sexual battery did not contain the element of gratification of lust, while fondling did not require the element of penetration. Moore v. State, 112 So.3d 1084, 2013 Miss. App. LEXIS 207 (Miss. Ct. App. 2013).

As a conviction of possession of a firearm by a convicted felon (Miss. Code Ann. §97-37-5) required proof of a prior felony, while conviction of carrying a concealed weapon (Miss. Code Ann. §97-37-1) required proof that the weapon be concealed, each offense had an element not present in the other; therefore, defendant’s conviction of both charges did not violate the double jeopardy ban. Wilson v. State, 95 So.3d 1282, 2012 Miss. App. LEXIS 538 (Miss. Ct. App. 2012).

Defendant’s argument that the application of Miss. Code Ann. §97-37-37 constituted double jeopardy because it required proof of the same elements as the underlying crimes was procedurally barred because it was not raised at trial. Notwithstanding the procedural bar, the argument was without merit because the statute was clearly a sentence enhancement and did not set out separate elements of the underlying felony. Mayers v. State, 42 So.3d 33, 2010 Miss. App. LEXIS 88 (Miss. Ct. App.), cert. denied, 42 So.3d 24, 2010 Miss. LEXIS 437 (Miss. 2010).

Crime of sexual abuse of a vulnerable adult under Miss. Code Ann. §43-47-19 does not encompass the crime of sexual battery under Miss. Code Ann. §97-3-95, and a conviction of both offenses does not implicate double jeopardy concerns because the crimes require additional and different elements of proof; specifically, the former offense does not require proof of penetration, while the latter offense does require this proof. Additionally, abuse of a vulnerable adult requires proof that defendant willfully inflicted physical pain or injury upon a vulnerable adult, while sexual battery has no such requirement; there are additional differences in that sexual battery does not require that the victim’s abilities to provide for his or her protection from sexual contact be impaired by the infirmities of aging or that the victim be a patient or resident of a care facility, while the charge of abuse of a vulnerable adult does require this additional element. Simoneaux v. State, 29 So.3d 26, 2009 Miss. App. LEXIS 445 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 115 (Miss. 2010), cert. denied, 562 U.S. 836, 131 S. Ct. 151, 178 L. Ed. 2d 38, 2010 U.S. LEXIS 6093 (U.S. 2010).

Defendant confessed to police that he choked the victim, duct taped a plastic bag around his head to suffocate the victim, placed the victim’s body in the trunk of his car, and dumped the body in the woods; double jeopardy did not bar defendant’s prosecution for both capital murder and kidnapping. The Supreme Court of Mississippi held that the crimes of capital murder and kidnapping each require proof of an element not necessary to the other. Nelson v. State, 10 So.3d 898, 2009 Miss. LEXIS 198 (Miss. 2009).

Court properly denied defendant’s motion for a directed verdict because the crime of statutory rape did not encompass the crime of gratification of lust. The crime of gratification of lust did not require any proof of sexual intercourse or proof of a laceration/tearing of the child’s genitalia, and as such, statutory rape required proof of an additional element not required by gratification of lust, and there was no double jeopardy. Branch v. State, 998 So. 2d 411, 2008 Miss. LEXIS 545 (Miss. 2008).

Defendant was not subject to double jeopardy, even though defendant was issued a citation for resisting arrest and was later convicted of simple assault on a law enforcement officer, where a clear reading of the statutes established that the two offenses contained an element that was lacking from the other. Roncali v. State, 980 So. 2d 959, 2008 Miss. App. LEXIS 223 (Miss. Ct. App. 2008).

Defendant’s motion for post-conviction relief was properly denied where defendant’s convictions for conspiracy to commit capital murder, accessory before the fact of grand larceny, and accessory before the fact of burglary of a dwelling with intent to commit assault did not subject defendant to double jeopardy; defendant’s crimes were completely different and required proving different sets of elements. Byrom v. State, 978 So. 2d 689, 2008 Miss. App. LEXIS 188 (Miss. Ct. App. 2008).

Defendant’s argument that the State should not have been able to prosecute him for capital murder, while at the same time prosecute him for conspiracy to commit capital murder was without merit because the State was required to show that defendant offered two individuals money to murder the victims, which was independent of the two individuals’ agreement with defendant that included assisting in the preparations for the man who actually did the killing. Vickers v. State, 994 So. 2d 200, 2008 Miss. App. LEXIS 208 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 675 (Miss. 2008).

Defendant’s prosecutions for both shooting into a vehicle under Miss. Code Ann. §97-25-47 and murder under Miss. Code Ann. §97-3-19(1)(a), did not subject him to double jeopardy since the crimes charged required additional facts separate from each other; murder, unlike shooting into a vehicle, required the deliberate killing of an individual and did not require defendant to have shot into a vehicle, while shooting into a vehicle required only that defendant willfully shot into or at a vehicle. Further, the facts were such that it was not clear whether defendant shot into the vehicle when he killed the victim, as there was testimony to the effect that the victim may have had all or part of his head outside the vehicle when he was shot; in essence, the facts were such that defendant could have been found guilty of murder and of shooting into a vehicle without any risk of exposure to double jeopardy. Peacock v. State, 970 So. 2d 197, 2007 Miss. App. LEXIS 763 (Miss. Ct. App. 2007).

ATTORNEY GENERAL OPINIONS

Revocation of probation or parole because a person has been charged with another crime, whether or not he is subsequently convicted of the charged offense, does not constitute double jeopardy. Smith, Apr. 6, 2001, A.G. Op. #01-0175.

RESEARCH REFERENCES

ALR.

Plea of former jeopardy or of former conviction or acquittal where jury was not sworn. 12 A.L.R. 1006.

Plea of former jeopardy where jury discharged because of misconduct or disqualification of one or more of their number. 38 A.L.R. 706.

Constitutionality of statute relating to injunctions against crime or abatement of nuisance arising from violation of liquor law. 49 A.L.R. 635.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense. 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Plea of double jeopardy where jury was discharged because of inability of the prosecution to present testimony. 74 A.L.R. 803.

Award of venire de novo or new trial after verdict of guilty as to one or more counts and acquittal to another as permitting retrial or conviction on latter count. 80 A.L.R. 1106.

Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy. 97 A.L.R. 160.

Necessity and sufficiency of pleading by prosecution to contest defendant’s plea of former jeopardy. 113 A.L.R. 1146.

Right of court to accept verdict upon one or more counts of an indictment or information when jury is unable to reach a verdict on all counts or is silent as to part of counts, and effect of such acceptance. 114 A.L.R. 1406.

Former acquittal or conviction under indictment or other information for rape or other sexual offense which does not allege that female was under age of consent as bar to subsequent prosecution under indictment or information which alleges that she was under age of consent; and vice versa. 119 A.L.R. 1205.

Plea of former jeopardy where jury is discharged because of illness or insanity of juror. 125 A.L.R. 694.

Former jeopardy as ground for habeas corpus. 8 A.L.R.2d 285.

Conviction of lesser offense as bar to prosecution for greater on new trial. 61 A.L.R.2d 1141.

Propriety, and effect as double jeopardy, of court’s grant of new trial in criminal case on its own motion. 85 A.L.R.2d 486.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense. 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 A.L.R.3d 905.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery committed of another person at the same time. 51 A.L.R.3d 693.

Propriety of trial court’s declaration of mistrial or discharge of jury, without accused’s consent, on ground of prosecution’s disclosure of prejudicial matter, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial. 98 A.L.R.3d 997.

Applicability of double jeopardy to juvenile court proceedings. 5 A.L.R.4th 234.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts-modern view. 6 A.L.R.4th 802.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 A.L.R.4th 970.

Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial-state cases. 40 A.L.R.4th 741.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts – Modern view. 97 A.L.R.5th 201.

Acquittal or conviction in state court as bar to federal prosecution based on same act or transaction. 18 A.L.R. Fed. 393.

Double jeopardy considerations in federal criminal cases – Supreme Court cases. 162 A.L.R. Fed. 415.

Am. Jur.

21 Am. Jur. 2d, Criminal Law §§ 146 et seq.

41 Am. Jur. Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

CJS.

C.J.S. Criminal Law § 208.

Lawyers’ Edition.

Limitations under double jeopardy clause of Fifth Amendment upon state criminal prosecutions. 25 L. Ed. 2d 968.

Retrial de novo without any judicial determination of sufficiency of evidence at prior bench trial held not to violate double jeopardy clause. 80 L. Ed. 2d 311.

Double jeopardy clause held to prohibit state from sentencing defendant to death after life sentence he had initially received was set aside on appeal. 81 L. Ed. 2d 164.

Prosecution on charges of murder and aggravated robbery after guilty pleas to two lesser charges had been accepted by court over state’s objection held not prohibited by double jeopardy clause. 81 L. Ed. 2d 425.

Double jeopardy clause held to bar state robbery conviction following prior state conviction for capital murder committed during robbery. 82 L. Ed. 2d 801.

Retrial of defendant held not barred by double jeopardy clause even through jury acquitted him of one count but was unable to agree as to other counts. 83 L. Ed. 2d 242.

Law Reviews.

Draft of New Constitution for State of Mississippi, Constitutional Study Commission, 7 Miss. C. L. Rev. 1, Fall, 1986.

Munford and Wiggs, Commentary on the Bill of Rights in the Mississippi Constitution of 1890 and Beyond. 56 Miss L. J. 73, April, 1986.

Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, Fall, 2004.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 4:1.

§ 23. Searches and seizures.

The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.

HISTORY: 1817 art I § 9; 1832 art I § 9; 1869 art I § 14.

JUDICIAL DECISIONS

1. Construction with Federal Constitution.

2. Searches and seizures –In general.

3. – Excessive force, searches and seizures.

4. – – Expectation of privacy, searches and seizures.

5. – – Stops and detentions, searches and seizures.

6. – – Speculative or threatened harm, searches and seizures.

7. – – Validity of statutes, searches and seizures.

8. – – Vehicular searches, searches and seizures.

9. – – Chemical tests, searches and seizures.

10. – – Inspections, searches and seizures.

11. – – Property or premises protected, searches and seizures.

12. – – Persons entitled to object, searches and seizures.

13. Search warrants–In general.

14. – – Affidavits, search warrants.

15. – – Description in affidavit or warrant, search warrants.

16. – – Showing of probable cause, search warrants.

17. – – Execution of incorrect or invalid warrant, search warrants.

18. – – Magistrates issuing warrant, search warrants.

19. – – Persons authorized to serve warrant, search warrants.

20. – – Persons authorized to execute warrant, search warrants.

21. – – Time specified, search warrants.

22. Return, search warrants.

23. Warrantless searches and seizures – In general.

24. – – Admissibility of evidence, warrantless searches and seizures.

25. – – Admissions of defendant, warrantless searches and seizures.

26. – – Firefighters, warrantless searches and seizures.

27. – – Inspections, warrantless searches and seizures.

28. – – Abandoned property, warrantless searches and seizures.

29. – – Arrest, warrantless searches and seizures.

30. – – Motor vehicle searches, warrantless searches and seizures.

31. – – Probable cause, warrantless searches and seizures.

31.5. – Reasonable suspicion – warrantless searches and seizures.

32. – – Plain view doctrine, warrantless searches and seizures.

33. – – Consent or waiver, warrantless searches and seizures.

34. – – Exigent circumstances, warrantless searches and seizures.

35. – – Damages, warrantless searches and seizures.

36. – – Unreasonable searches and seizures, warrantless searches and seizures.

37. Arrest supported by probable cause.

1. Construction with Federal Constitution.

Roadblock set up by city police department was not conducted in violation of defendant’s rights arising under Miss. Const. Art. 3, § 23; in view of the striking similarities between the Fourth Amendment and Miss. Const. Art. 3, § 23, and the lack of a history of differentiation between the two by the Mississippi Supreme Court, there was no tenable basis to accept defendant’s contention that the roadblock was unconstitutional. Sasser v. City of Richland, 850 So. 2d 206, 2003 Miss. App. LEXIS 627 (Miss. Ct. App. 2003), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

This section and the Fourth Amendment to the U. S. Constitution are identical in substance and purpose. Potter v. United States, 362 F.2d 493, 1966 U.S. App. LEXIS 5709 (5th Cir. Fla. 1966).

2. Searches and seizures –In general.

Although defendant was not given an initial appearance until six days after his arrest, which violated Miss. Unif. Cir. & County Ct. Prac. R. 6.03, because defendant was not taken for his initial appearance within 48 hours of arrest, the failure to comply with Rule 6.03 did not violate defendant’s U.S. Const. amend IV or Miss. Const. Art. 3, § 23, rights because a probable cause determination was made well within the required 48-hour period, when defendant was served with an arrest warrant on the day after his arrest. Lawrence v. State, 869 So. 2d 353, 2003 Miss. LEXIS 296 (Miss. 2003), cert. denied, 540 U.S. 1164, 124 S. Ct. 1178, 157 L. Ed. 2d 1211, 2004 U.S. LEXIS 892 (U.S. 2004).

Through Miss. Unif. Cir. & County Ct. Prac. R. 6.03, Mississippi has provided a procedure for a fair and reliable determination of probable cause by a judicial officer promptly after arrest. If the procedure of Rule 6.03 is followed, the U.S. Const. amend IV and Miss. Const. Art. 3, § 23, rights of the accused are protected; however, the converse does not necessarily follow, failure to follow the exact procedure of Rule 6.03 does not necessarily result in a Fourth Amendment or Article 3 violation. Lawrence v. State, 869 So. 2d 353, 2003 Miss. LEXIS 296 (Miss. 2003), cert. denied, 540 U.S. 1164, 124 S. Ct. 1178, 157 L. Ed. 2d 1211, 2004 U.S. LEXIS 892 (U.S. 2004).

A search and seizure question was preserved for review by the Supreme Court, even though the defendant did not use the term “Fourth Amendment” or “Section 23” at the initial suppression hearing, where there was no doubt that the defendant was seeking protection of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, § 23 of the Mississippi Constitution. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

Law enforcement officers have no authority to search the person of an individual because they may suspect that he is violating the law or because they are desirous of physically searching the person of an individual to see if he has in his possession contraband so that he may be arrested and prosecuted. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

The provisions for search and seizure are strictly construed against the state and in favor of the citizen. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

Provisions for search and seizure are construed strictly against the state. Lacaze v. State, 254 Miss. 523, 183 So. 2d 176, 1966 Miss. LEXIS 1556 (Miss. 1966).

Provisions for search and seizure are construed strictly against the state. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

Before proof can be made of facts discovered in a search by an officer the state must introduce the affidavit and search warrant authorizing the search or show their loss or destruction unless there has been a waiver of them at the time of the search. Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503, 1924 Miss. LEXIS 316 (Miss. 1924); Wells v. State, 135 Miss. 764, 100 So. 674, 1924 Miss. LEXIS 82 (Miss. 1924); Nelson v. State, 137 Miss. 170, 102 So. 166, 1924 Miss. LEXIS 209 (Miss. 1924).

The statutes authorizing searches and seizures are to be strictly construed against the state. Turner v. State, 133 Miss. 738, 98 So. 240, 1923 Miss. LEXIS 189 (Miss. 1923); State v. Watson, 133 Miss. 796, 98 So. 241, 1923 Miss. LEXIS 190 (Miss. 1923).

This section has application to searches and seizures made through governmental agencies of the state and has no application nor bearing on unauthorized acts of private persons. Hampton v. State, 132 Miss. 154, 96 So. 165, 1923 Miss. LEXIS 43 (Miss. 1923); Smith v. State, 133 Miss. 730, 98 So. 344, 1923 Miss. LEXIS 195 (Miss. 1923); Owens v. State, 133 Miss. 753, 98 So. 233, 1923 Miss. LEXIS 188 (Miss. 1923); Taylor v. State, 134 Miss. 110, 98 So. 459, 1924 Miss. LEXIS 245 (Miss. 1924); Rignall v. State, 134 Miss. 169, 98 So. 444, 1923 Miss. LEXIS 237 (Miss. 1923); Spears v. State, 99 So. 361 (Miss. 1924); McCarthy v. Gulfport, 134 Miss. 632, 99 So. 501, 1924 Miss. LEXIS 315 (Miss. 1924); Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503, 1924 Miss. LEXIS 316 (Miss. 1924); Wells v. State, 135 Miss. 764, 100 So. 674, 1924 Miss. LEXIS 82 (Miss. 1924); Jordan v. State, 135 Miss. 785, 100 So. 384, 1924 Miss. LEXIS 75 (Miss. 1924); Butler v. State, 135 Miss. 885, 101 So. 193, 1924 Miss. LEXIS 87 (Miss. 1924); Morton v. State, 136 Miss. 284, 101 So. 379, 1924 Miss. LEXIS 129 (Miss. 1924); Robinson v. State, 136 Miss. 850, 101 So. 706, 1924 Miss. LEXIS 176 (Miss. 1924); Nicaise v. State, 141 Miss. 611, 106 So. 817, 1926 Miss. LEXIS 456 (Miss. 1926); Brewer v. State, 142 Miss. 100, 107 So. 376, 1926 Miss. LEXIS 73 (Miss. 1926); Canteberry v. State, 142 Miss. 462, 107 So. 672, 1926 Miss. LEXIS 108 (Miss. 1926); Holliday v. State, 180 So. 800 (Miss. 1938).

3. – Excessive force, searches and seizures.

Trial court had not erred by finding that two police officers violated an individual’s constitutional rights by using excessive force in arresting him. The officers continued to use force on the individual after he was subdued and handcuffed; as a result, their actions were grossly disproportionate to the lack of resistance the individual offered and malicious. City of Jackson v. Powell, 917 So. 2d 59, 2005 Miss. LEXIS 755 (Miss. 2005).

4. – – Expectation of privacy, searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile as defendant had no expectation of privacy. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Trial court did not err in denying defendant’s motion to suppress evidence found in his girlfriend’s apartment because he had no Fourth Amendment right to prevent a search or seizure; defendant failed to establish he had a legitimate expectation of privacy in the apartment because the girlfriend consistently maintained he did not stay in the apartment. McCoy v. State, 160 So.3d 705, 2014 Miss. App. LEXIS 594 (Miss. Ct. App. 2014), cert. dismissed, 160 So.3d 704, 2015 Miss. LEXIS 362 (Miss. 2015).

Failing to suppress bag of cocaine was not in violation of defendant’s due process rights or his rights under U.S. Const. Amend. IV because the action of the officers in having the bag of cocaine removed from defendant’s mouth did not shock the conscience. Ellis v. State, 21 So.3d 669, 2009 Miss. App. LEXIS 208 (Miss. Ct. App.), cert. denied, 20 So.3d 680, 2009 Miss. LEXIS 553 (Miss. 2009).

Defendant failed to establish that he had a reasonable expectation of privacy in a motel room where money from a bank robbery was found as the room was registered in the name of a third party; as defendant did not produce evidence that he had a reasonable expectation of privacy in the motel room, he lacked standing to contest the search and the admission of the evidence obtained as a result of the search. Lyons v. State, 942 So. 2d 247, 2006 Miss. App. LEXIS 501 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 269 (Miss. 2007).

Defendant had no standing to challenge under U.S. Const. Amend. IV, or Miss. Const. Art. III, § 23, evidence seized from the vehicle that he stole after killing a victim because defendant had not expectation of privacy in the stolen vehicle. Walker v. State, 913 So. 2d 198, 2005 Miss. LEXIS 216 (Miss.), cert. denied, 546 U.S. 1038, 126 S. Ct. 743, 163 L. Ed. 2d 581, 2005 U.S. LEXIS 8688 (U.S. 2005).

A defendant’s constitutional right to privacy was not violated by the State’s taking the defendant to the health department for treatment of gonorrhea where the defendant was charged with capital rape of a child who was found to have gonorrhea, since the State’s interest in operating a prison and providing for the health of inmates outweighed the privacy interests of the defendant. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

Within the contemplation of § 23 of the Mississippi Constitution, students have a reasonable expectation of privacy in their school lockers. However, this expectation of privacy is considerably less than the student would have in the privacy of his or her home, or even, perhaps, in his or her automobile. Since that interest is less than in these other circumstances, and because it necessarily clashes with the broad discretionary authority and responsibility of school officials, a lesser showing is required before school officials may have the authority to search a student’s locker. S.C. v. State, 583 So. 2d 188, 1991 Miss. LEXIS 387 (Miss. 1991).

5. – – Stops and detentions, searches and seizures.

Investigatory stop which led to defendant’s arrest violated defendant’s constitutional right to be free from unreasonable searches and seizures because the stop was based on a tip from an anonymous caller who reported a person driving erratically in a particular vehicle and flashing what appeared to be some type of badge at other drivers, but there was a lack of sufficient indicia of reliability in the case, coupled with the police officers’ failure to corroborate the criminal activity reported. Cook v. Rankin County, 2014 Miss. LEXIS 506 (Miss. Oct. 16, 2014).

Because the anonymous tip was suitably corroborated to provide reasonable suspicion for an investigatory stop, the officers were justified in making an investigatory stop to resolve the ambiguous situation; thus, defendant’s conviction for misdemeanor driving under the influence was lawful. Cook v. Rankin County, 168 So.3d 1089, 2013 Miss. App. LEXIS 831 (Miss. Ct. App. 2013), rev'd, 2014 Miss. LEXIS 506 (Miss. Oct. 16, 2014).

Defendant was legally stopped under the Fourth Amendment, U.S. Const. amend. IV, and Miss. Const. art. III, § 23 as: (1) he failed to use his turn signal and violated Miss. Code Ann. §63-3-707, even though there was no imminent threat of a collision between his vehicle and an officer’s vehicle that was traveling at a safe distance behind defendant’s vehicle; (2) the subsequent searches of defendant and his vehicle were lawful; (3) defendant was arrested for driving with a suspended license; (4) the glass pipes were found in a search incident to defendant’s arrest; and (5) the inventory search of defendant’s vehicle, during which the methamphetamine was discovered, was conducted according to police department policy and was limited to the areas of the vehicle where defendant’s property could reasonably be expected to be found.. Melton v. State, 118 So.3d 605, 2012 Miss. App. LEXIS 618 (Miss. Ct. App. 2012), cert. denied, 117 So.3d 330, 2013 Miss. LEXIS 375 (Miss. 2013).

Miss. Const. Art. 3, § 23, was not violated by detaining defendant briefly after a traffic stop; once he stopped defendant’s vehicle, the deputy was required to ensure that defendant’s temporary license plate was valid and that defendant had liability insurance, pursuant to Miss. Code Ann. §63-15-4(3). Wade v. State, 33 So.3d 498, 2009 Miss. App. LEXIS 645 (Miss. Ct. App. 2009).

Miss. Const. Art. 3, § 23, was not violated because the fact that defendant did not have a license plate that was “conspicuously displayed” on his rental car, as required by Miss. Code Ann. §27-19-323, provided a reasonable basis to stop defendant’s vehicle. The deputy had probable cause to believe that defendant had committed a traffic violation. Wade v. State, 33 So.3d 498, 2009 Miss. App. LEXIS 645 (Miss. Ct. App. 2009).

Where an officer saw a vehicle speed out of an apartment complex, he called in the tag and dispatch notified him it was expired; as a result, the officer had reasonable suspicion to pull over the driver over for two traffic offenses. Cole v. State, 8 So.3d 250, 2008 Miss. App. LEXIS 824 (Miss. Ct. App. 2008).

Motion to suppress evidence was properly denied in a drug case because a Terry stop did not violate U.S. Const. Amend. IV or Miss. Const. Art. III, § 23 where an officer had a reasonable suspicion that a vehicle had no tag in violation of Miss. Code Ann. §27-19-323 and Miss. Code Ann. §27-19-40, since the officer could not see a “special in-transit tag” on a tinted window. Gonzales v. State, 963 So. 2d 1138, 2007 Miss. LEXIS 496 (Miss. 2007).

An investigatory stop was proper and the investigation did not exceed the scope of the investigatory stop as to indicate a seizure where defendant evaded a road block then acted suspiciously upon the officers’ inspection of the car in which he was a passenger, causing the officers to develop a reasonable suspicion that defendant was engaged in or soon to be engaged in criminal activity. Roberson v. State, 754 So. 2d 542, 2000 Miss. App. LEXIS 1 (Miss. Ct. App. 2000).

There are “degrees” of detainments which fall short of an arrest which requires probable cause; detainments which would become an arrest depending on the outcome of a pending investigation are permissible, though police officers do not have unlimited authority, and may not be clothed with the authority to detain where they are not diligently investigating in such a way which will resolve the matter. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

It was permissible for a police officer to stop an automobile and detain the occupants until a warrant to search the car was obtained where the officer had “staked out” the highway based on phone calls from a confidential informant who had given him reliable information in the past, the officer was familiar with the occupants of the car and the informant had given him their names, and the car make, license plate, and ownership of the car were confirmed by the officer before he pulled the car over. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

A police officer made a permissible Terry stop and pat-down search of a defendant where the defendant was seen by the officer running across a road at 1:30 a.m. in a commercial area which had been the scene of previous burglaries. Nathan v. State, 552 So. 2d 99, 1989 Miss. LEXIS 470 (Miss. 1989).

6. – – Speculative or threatened harm, searches and seizures.

Livestock owners cannot invoke aid of equity to enable them to disregard regulations for dipping stock merely because of threatening invasion of constitutional right. Moss v. Mississippi Live Stock Sanitary Board, 154 Miss. 765, 122 So. 776, 1929 Miss. LEXIS 176 (Miss. 1929).

7. – – Validity of statutes, searches and seizures.

Gambling statute, in so far as it authorizes arrest without warrant for misdemeanor not committed in presence of officer making arrest, held to violate Constitution. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Provisions of gambling statute authorizing breaking into place for purpose of searching and making arrest without search warrant held to violate constitutional provision prohibiting unreasonable searches and seizures. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Chapter 244, Laws of 1924, § 1, providing that a search warrant might issue upon the affidavit of any credible person that he has reason to believe and does believe certain facts, does not violate this section. Winters v. State, 142 Miss. 71, 107 So. 281, 1926 Miss. LEXIS 66 (Miss. 1926).

Chapter 115, Laws of 1908 and c 134, Laws of 1910, relating to the unlawful possession and sale of intoxicating liquors, are constitutional. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911); Loeb v. State, 133 Miss. 883, 98 So. 449, 1923 Miss. LEXIS 196 (Miss. 1923); Bufkin v. State, 134 Miss. 1, 98 So. 452, 1923 Miss. LEXIS 238 (Miss. 1923).

8. – – Vehicular searches, searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile as defendant had no expectation of privacy. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Miss. Const. Art. 3, § 23, was not violated by detaining defendant after a traffic stop; defendant’s behavior and contradictory and unlikely answers aroused the deputy’s suspicions. Further, it took only three minutes for another officer to arrive with a dog who alerted for the presence of drugs in defendant’s vehicle. Wade v. State, 33 So.3d 498, 2009 Miss. App. LEXIS 645 (Miss. Ct. App. 2009).

Search of a vehicle was a valid inventory search where defendant was legally arrested, there was no one available to remove defendant’s vehicle from the roadside, and under such circumstances, the standard procedure was to call a wrecker to impound the vehicle and conduct an inventory search. Garrison v. State, 918 So. 2d 846, 2005 Miss. App. LEXIS 696 (Miss. Ct. App. 2005).

Seizure of defendant for driving under the influence following a stop at a routine police roadblock being conducted to check vehicles for compliance with traffic laws relating to registration and licensing requirements did not violate defendant’s rights under either Miss. Const. Art 3, § 23 or the Fourth Amendment to the Constitution of the United States, and the trial court properly admitted a test result showing defendant’s blood alcohol content as .152. Dixon v. State, 828 So. 2d 844, 2002 Miss. App. LEXIS 549 (Miss. Ct. App. 2002).

A roadblock set up to check licenses and to check outstanding warrants was constitutional as the degree of intrusion into the defendant’s liberty caused by the roadblock was minimal where the defendant was treated the same way as any other driver who approached this roadblock and the roadblock did not involve drug dogs or mandatory searches of automobiles. Dale v. State, 785 So. 2d 1102, 2001 Miss. App. LEXIS 204 (Miss. Ct. App. 2001).

The trial court did not err in not suppressing evidence seized from the defendant’s car without a warrant pursuant to the automobile exception where (1) the defendant arrived at a hospital emergency room with a coperpetrator who had been shot, removed the coperpetrator from his car and attempted to leave, (2) the defendant’s car, however, stalled and an officer detained the defendant and transported him to the emergency room, (3) the officer returned to the defendant’s vehicle where he noticed that the trunk was partially open and he saw bloody money in it, (4) the officer then looked into the passenger compartment and observed the handle of a firearm protruding from under the driver’s seat, and (5) the officer then, without first obtaining a warrant, removed the gun from the car. Moore v. State, 2000 Miss. LEXIS 264 (Miss. Dec. 21, 2000), op. withdrawn, sub. op., 787 So. 2d 1282, 2001 Miss. LEXIS 164 (Miss. 2001).

Police officers were authorized to make an inventory of the contents of an automobile in custody after it had been lawfully seized for failure to display a license tag, so that marijuana discovered in the course of the inventory was not the product of an unlawful search; the inventory of property lawfully seized is in a different legal category from that of a search of an automobile incident to a lawful arrest, or the search of a movable vehicle on probable cause that the vehicle is being used to convey contraband. Moore v. State, 261 So. 2d 126, 1972 Miss. LEXIS 1282 (Miss. 1972).

The defendant was not materially prejudiced by a search of his automobile which resulted in the discovery of items which were sent to the Federal Bureau of Investigation laboratories during a homicide investigation, where a special agent of the FBI, called as a witness for the defendant, testified that none of the items could in any way establish a connection between the defendant and the homicide victim. Taylor v. State, 254 So. 2d 728, 1971 Miss. LEXIS 1264 (Miss. 1971).

In view of the statute requiring police officers to remove a vehicle from the highway when it is a danger to the traveling public, the partial unloading of a rental truck which was so heavily loaded that it could not be moved without being partially unloaded, and the removal of the truck to the courthouse, was not an illegal search, where at the time the officers moved the truck, they did not search it or seize any of its contents, and did not know that a crime had been committed. Williamson v. State, 248 So. 2d 634, 1971 Miss. LEXIS 1476 (Miss. 1971).

It was neither a trespass nor an unlawful search, nor was it illegal for a deputy sheriff to look into a station wagon recently occupied by three persons subsequently charged with burglary, and through the windows of the vehicle to observe and consider marks and other indicia that tended to establish that the vehicle had been used for the transportation of property allegedly stolen. Wilson v. State, 186 So. 2d 208, 1966 Miss. LEXIS 1296 (Miss. 1966).

The search of an automobile begins when its pursuit begins. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

The search of a vehicle without authority of law must be based upon probable cause, supported by information from a credible person, and the facts upon which the officer acts must be sufficient to constitute probable cause, and this is a judicial question for the decision of the court. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

Constitutional rights of defendant in prosecution for assault and battery with intent to kill were violated warranting reversal of conviction where proof of state failed to show any authority for seizure of defendant’s automobile, the search of his premises and seizure of his coat and pistol, the examination of the person of defendant for a bullet wound and a photograph thereof, the sheriff’s comparison of a tire on the automobile with the dim track which he had observed at the scene, and on cross-examination of defendant the state was permitted to ask questions showing guilt of another crime, notwithstanding that record failed to show any objections thereto or that a motion for new trial was made. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

Belief by an officer based on information from a credible person that intoxicating liquor is being transported in an automobile, is sufficient probable cause to authorize a search by him of the automobile without a warrant. Moore v. State, 138 Miss. 116, 103 So. 483, 1925 Miss. LEXIS 105 (Miss. 1925).

9. – – Chemical tests, searches and seizures.

Defendant’s conviction for DUI maiming was proper because he consented to a blood sample, he never objected to the introduction of the blood-analysis evidence during the course of the testimony by a witness with the Mississippi Crime Laboratory, defendant did not object to the admission of testimony by a doctor regarding the amount of other substances found in the blood sample and the impairing effects of the other substances, defendant’s objection made at trial did not state with requisite specificity the basis for the objection to the admission of the testimony, and a deputy was permitted to testify as to what he personally observed concerning defendant’s written consent to the blood test. Irby v. State, 2010 Miss. LEXIS 423 (Miss. Aug. 12, 2010), sub. op., 49 So.3d 94, 2010 Miss. LEXIS 638 (Miss. 2010).

There was no constitutional violation where the state crime laboratory requested and obtained a second blood sample from the defendant in a murder prosecution after it found a discrepancy between the identification numbers of the vials of blood and the numbers listed on the submission form with regard to the original sample. Morris v. State, 777 So. 2d 16, 2000 Miss. LEXIS 113 (Miss. 2000).

Section 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident regardless of the existence of probable cause to believe that alcohol or drugs were involved, is unconstitutional because it requires search and seizure absent probable cause. McDuff v. State, 763 So. 2d 850, 2000 Miss. LEXIS 110 (Miss. 2000).

An officer’s failure to inform the defendant that he had a right to refuse the officer’s request for a blood sample did not render the test results inadmissable in a manslaughter prosecution against the defendant where the officer had probable cause to obtain the blood sample in that the officer knew that the defendant was the driver of an automobile which had collided head on with another vehicle, the collision occurred on a straight and level highway when the road condition was dry, the officer knew that at least two people were dead in the vehicle which the defendant hit, the officer had observed a beer in the defendant’s vehicle, and the defendant had slurred speech and dilated pupils. For a search which would otherwise be illegal, absent consent, knowledgeable waiver of one’s constitutional right not to be searched is guaranteed by Article 3, § 23 of the Mississippi Constitution. However, blood searches which are based upon probable cause are not illegal, and, therefore, the question of the defendant’s knowledgeable waiver was not relevant. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

There was no constitutional violation in obtaining hair and blood samples from a defendant where he was under lawful arrest, the blood was removed in a reasonable manner by a physician at a hospital, the hair samples were taken by a registered nurse, and the officers “had good reason to examine” the defendant’s hair. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

Where defendant was in lawful custody, his right to be secure from an unreasonable search was not violated by police officers who administered a photoelectric intoximeter test, which tests the breath of a person without intrusion into the body. Jackson v. State, 310 So. 2d 898, 1975 Miss. LEXIS 1915 (Miss. 1975).

10. – – Inspections, searches and seizures.

Warrantless search of automobile junkyard, conducted pursuant to state administrative inspection statute, does not violate junkyard owner’s Fourth Amendment rights because the operation of the junkyard, part of which was devoted to vehicle dismantling, was a closely regulated business, resulting in junkyard operator having reduced expectation of privacy in business property. New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601, 1987 U.S. LEXIS 2725 (U.S. 1987).

Guaranties against unreasonable searches and seizures do not apply to routine inspections by sanitary officers, nor does it apply to inspections made pursuant to advance information that the health laws have been, or are about to be, violated. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

No search warrant is necessary in entering premises for sanitary inspections and to investigate conditions detrimental to health so long as no resort to force even of the mildest nature is required, and this is especially true with respect to a restaurant business. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

11. – – Property or premises protected, searches and seizures.

Possession of stolen property is illegal per se, and the seizure of such is not within the constitutional guaranty. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

Where two officers went upon the premises of the defendant without a search warrant and purchased intoxicating liquor, this evidence was not obtained by illegal search and was not excludable on the ground of unlawful search and seizure because no search was involved. Peebles v. State, 57 So. 2d 263 (Miss. 1952).

12. – – Persons entitled to object, searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Where firefighters discovered a locked metal box in defendant’s home after they extinguished a fire and turned the box over to the police, defendant lacked standing to challenge the search of the box as unlawful because he denied ownership of the box when questioned by the police. King v. State, 987 So. 2d 490, 2008 Miss. App. LEXIS 404 (Miss. Ct. App. 2008).

Where the proof shows that a portion of a residence is in the sole, separate, and exclusive possession of an individual other than the one named by the search warrant, that individual has a reasonable expectation of privacy in his or her solely occupied portion. Graves v. State, 708 So. 2d 858, 1997 Miss. LEXIS 743 (Miss. 1997).

Citizens may challenge governmental actions contrary to law where the action would otherwise escape challenge. Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

A defendant did not have standing to object to a search of his sister’s residence and subsequent seizure of cocaine where the defendant resided elsewhere, did not possess a key to the house, did not have permission to “have the run of the place,” and, aside from the familial relationship, was “little more than a babysitter.” Hopson v. State, 625 So. 2d 395, 1993 Miss. LEXIS 422 (Miss. 1993).

A defendant did not have standing to object to the search of his friend’s apartment, in which he was an occasional overnight guest, where he had no key to the apartment, exercised no control over it, and was there on occasion only by the friend’s permission. Thus, stolen items which were found during a search of the apartment were admissible in the defendant’s burglary trial. White v. State, 571 So. 2d 956, 1990 Miss. LEXIS 758 (Miss. 1990).

A defendant did not have standing to object to the search of a trailer where the true owner of the trailer consented to the search and, when the defendant was arrested, he denied ownership of the trailer. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

Where marijuana plants that were seized were not actually situated upon defendant’s property, but instead were removed from neighboring land, the defendant was not in a position to complain of any irregularity or defect, if any, in the search warrant since the fruit of the search came from a search of property other than his own. Freeland v. State, 285 So. 2d 895, 1973 Miss. LEXIS 1310 (Miss. 1973).

As to the occupant of an automobile who was neither its owner nor driver, any search of the vehicle was not unlawful although the search was made without a warrant, and such person could not object to the admission in evidence at his trial on a charge of burglary of articles which the searching officers had discovered. Bradshaw v. State, 192 So. 2d 387, 1966 Miss. LEXIS 1248 (Miss. 1966), cert. denied, 389 U.S. 941, 88 S. Ct. 299, 19 L. Ed. 2d 293, 1967 U.S. LEXIS 397 (U.S. 1967).

No constitutional right of an accused against unreasonable search and seizure is violated hereunder, unless the houses and possessions searched are the property of the person complaining or unless he is entitled to or is exercising possession thereof under such circumstances as to make him the owner for the time being. Brown v. State, 192 Miss. 314, 5 So. 2d 426, 1941 Miss. LEXIS 40 (Miss. 1941).

Where officers had a search warrant for the search of lands, premises and possessions of a defendant charged with unlawful possession of intoxicating liquors, defendant could not complain of violation of this section because the liquors were found on adjoining premises as to which the officers had no search warrant and in which defendant had no right of possession as would make him the owner thereof for the time being. Brown v. State, 192 Miss. 314, 5 So. 2d 426, 1941 Miss. LEXIS 40 (Miss. 1941).

13. Search warrants–In general.

Defendant was not entitled to suppress cocaine found in the house in which defendant was staying because the search was based on probable cause and a valid search warrant—as police officers’ observations corroborated the anonymous tips they had received about defendant selling cocaine and marijuana out of the house and the officers observed defendant attempting to eat marijuana when the automobile in which defendant was a passenger was stopped shortly after leaving the house—and the officers reasonably relied on a facially valid search warrant. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Defendant had standing to challenge the search and seizure of his computer files by the police after he had authorized a third party to work on his computer’s operating system where the illicit photographs were not obtained as a direct result of the third party’s private search but rather under the purported authority of an invalid search warrant. Chesney v. State, 165 So.3d 498, 2015 Miss. App. LEXIS 277 (Miss. Ct. App. 2015).

After an appellate court reversed defendant’s drug possession conviction by finding that the trial court should have granted defendant’s suppression motion because the magistrate who issued the search warrant lacked a substantial basis for concluding that probable cause existed and because the probable cause determination was base upon false and/or omitted information, the state supreme court held that there there was no showing that the investigator intentionally misrepresented facts or made them in reckless disregard for the truth; the investigator described the confidential informant (CI) who provided information about defendant’s activities as reliable in the past because he knew him to be a reliable CI used by the police department on occasion, and he was able to independently corroborate the CI’s reliability when a controlled buy resulted in defendant selling cocaine to the CI. The investigator’s omission of the fact that there was a controlled buy the day before did not constitute a reckless disregard for the truth, and the omission was adequately explained by the investigator, who testified that he was protecting the identity of the CI; as such, the warrant was supported by adequate probable cause. Roach v. State, 7 So.3d 911, 2009 Miss. LEXIS 199 (Miss.), cert. denied, 558 U.S. 949, 130 S. Ct. 399, 175 L. Ed. 2d 274, 2009 U.S. LEXIS 7474 (U.S. 2009).

Though a “telephonic search warrant” was not recognized in Mississippi, under the Leon good faith exception to warrantless searches, police officers’ good faith belief that a telephonic warrant was valid justified admission of drugs found in a search of a defendant’s apartment. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

A narcotics agent’s failure to hand the defendant a copy of the search warrant for her residence did not require reversal even though the defendant should have received a copy of the warrant pursuant to §41-29-157; failure to follow this ministerial provision does not void an otherwise valid search. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions, and statutes providing for their issuance and execution are sustained, under constitutional provisions forbidding unreasonable search and seizure, only as a necessary means in suppression of crime and detection and punishment of criminals. Brooks v. Wynn, 209 Miss. 156, 46 So. 2d 97, 1950 Miss. LEXIS 374 (Miss. 1950).

Search warrant issued in connection with a prosecution for violation of liquor laws with no return day named therein is void and cannot be amended. Buxton v. State, 205 Miss. 692, 39 So. 2d 310, 1949 Miss. LEXIS 460 (Miss. 1949).

Search warrant on which search of premises has been made, evidence obtained, and defendant convicted, is functus officio; that is, it has fulfilled purpose of its creation and is of no further virtue or effect. Riley v. State, 204 Miss. 562, 37 So. 2d 768, 1948 Miss. LEXIS 389 (Miss. 1948).

In the absence of a provision to the contrary, a justice of the peace of one judicial district of the county may issue a search warrant to be served in another judicial district of the county. Goffredo v. State, 145 Miss. 66, 111 So. 131, 1927 Miss. LEXIS 141 (Miss. 1927).

A warrant cannot be issued to search a person and such warrant is to such extent void. Comby v. State, 141 Miss. 561, 106 So. 827, 1926 Miss. LEXIS 465 (Miss. 1926); Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666, 1926 Miss. LEXIS 105 (Miss. 1926); Robinson v. State, 143 Miss. 247, 108 So. 903, 1926 Miss. LEXIS 262 (Miss. 1926).

A search warrant must be returnable within a reasonable time after its issuance and the time within which it is to be executed fixed in the warrant, and after the return date of the warrant it becomes functus officio and cannot be executed. Taylor v. State, 137 Miss. 217, 102 So. 267, 1924 Miss. LEXIS 329 (Miss. 1924).

A search warrant directed to the wrong officer is not necessarily void but may be amended. Matthews v. State, 134 Miss. 807, 100 So. 18, 1924 Miss. LEXIS 327 (Miss. 1924).

14. – – Affidavits, search warrants.

Given that a confidential informant (CI) provided reliable information on the same day that the search warrant was issued and that the CI had given reliable information in the past, the information supporting the search warrants was sufficiently reliable; under a totality-of-the-circumstances review, it was evident that there was a substantial basis for the magistrate’s determination that the search warrant’s language concerning ‘‘stolen items’’ was supported by sufficiently reliable information. Sutton v. State,—So.3d —, 2018 Miss. LEXIS 128 (Miss. Mar. 15, 2018).

Where defendant was taken to a hospital after a two-car collision, the search warrant for a blood draw was invalid because: (1) the officer who requested the search warrant falsely stated in his affidavit that defendant had (a) refused to submit to an “analysis of his breath” after having been offered an opportunity to submit, and (b) been placed under arrest for driving while under the influence, although at that time he had not yet been arrested; and (2) there were no exigent circumstances present at the hospital that would have justified a blood test since defendant was not fleeing, and the officer obviously had time to secure a warrant, albeit an invalid one. As to the admissibility of defendant’s statements about having consumed several beers, made to police at the scene of the accident, defendant did not claim that he was in custody at the time, and his statements clearly had probative value, thus the trial court did not abuse its discretion in allowing the statements to be admitted into evidence despite the defendant’s argument that he was disoriented, confused, and suffering from shock and retrograde amnesia when he made the statements and they were therefore not reliable. Shaw v. State, 938 So. 2d 853, 2005 Miss. App. LEXIS 987 (Miss. Ct. App. 2005), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 602 (Miss. 2006).

An affidavit offered by a police officer for the purpose of getting a warrant can be based on hearsay. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

When defendant asserts that information contained in affidavit supporting application for search warrant constitutes false swearing, then reviewing court must determine, with false material set aside, whether affidavit’s remaining content, together with sworn oral testimony presented to issuing magistrate, is sufficient to establish probable cause. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Even though underlying facts stated in affidavit for search warrant, considered alone, may not be sufficient to confer probable cause for issuance of warrant, oral testimony adduced before issuing magistrate, when taken together with affidavit, may sufficiently establish probable cause for issuance of search warrant under totality of circumstances test. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Under totality of circumstances test, written affidavit supplemented by oral testimony of police officers can, as combined, establish substantial basis for magistrate’s determination that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Under totality of circumstances test, affidavit in which affiant relates substance of interview with eyewitness who observed suspect shooting into occupied building, gave description which fit that of suspect and identified automobile in presence of affiant is sufficient to enable magistrate requested to issue warrant for search of suspect’s home to make practical decision that there is fair probability that evidence of crime will be found at suspect’s residence. Walker v. State, 473 So. 2d 435, 1985 Miss. LEXIS 2186 (Miss. 1985).

Under totality of circumstances analysis, affiant may establish probable cause for issuance of search warrant on basis of information obtained by affiant from confidential informant where affidavit establishes that confidential informant has demonstrated both personal knowledge of location of evidence and declaration against informant’s interest and where affiant swears that informant has given reliable information on activity being investigated in past. Breckenridge v. State, 472 So. 2d 373, 1985 Miss. LEXIS 2449 (Miss. 1985).

Trial court may allow state opportunity at trial to amend proof and present original affidavit containing judge’s jurat as opposed to defective copy of affidavit presented at suppression hearing. McCommon v. State, 467 So. 2d 940, 1985 Miss. LEXIS 2043 (Miss.), cert. denied, 474 U.S. 984, 106 S. Ct. 393, 88 L. Ed. 2d 345, 1985 U.S. LEXIS 4442 (U.S. 1985).

In a prosecution for marijuana possession, the failure of the justice court judge to sign the jurat of the affidavit did not render the search warrant fatally defective where the sworn statement of the police officer affiant, which is the most critical aspect of the validity of the affidavit, was properly taken and where defendant did not challenge the validity of the finding of probable cause. Powell v. State, 355 So. 2d 1378, 1978 Miss. LEXIS 2004 (Miss. 1978).

Evidence obtained during a search under a warrant was inadmissible in a prosecution for unlawful possession of intoxicating liquor, where the warrant was issued upon an affidavit which stated that the affiant had information from reliable informants that an illegal whisky distillery was concealed on the defendant’s property and that the whisky was being stored for purposes of sale, such affidavit not stating facts upon which the justice could judicially determine probable cause. Routh v. State, 230 So. 2d 562, 1970 Miss. LEXIS 1553 (Miss. 1970).

Affidavit form, signed by sheriff, for search warrant in intoxicating liquor case, presented to justice of the peace by deputy sheriff, did not comply with the requirement of this section that search warrant be supported by oath or affirmation, where sheriff did not personally appear before the justice of the peace; and, accordingly, evidence obtained under the search warrant so issued was illegally obtained and inadmissible. Boyd v. State, 206 Miss. 573, 40 So. 2d 303, 1949 Miss. LEXIS 285 (Miss. 1949).

Issuance of search warrants in case involving possession of intoxicating liquors upon the statutory affidavit, that the affiant “has reason to believe and does believe,” etc., does not violate Constitution. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

A search warrant, issued in case involving possession of intoxicating liquors upon the statutory affidavit that the affiant “has reason to believe and does believe,” was not invalid as a violation of the Fourth Amendment to the Federal Constitution, since such amendment applies only to the exercise of Federal authority and has no application to state action. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

Where proceedings for the abatement of the nuisances of selling intoxicating liquors and carrying on gambling on certain premises were instituted by a bill in chancery sworn to by a private citizen, particularly describing the place, and the character of appliances or property used in connection with such business, the seizure of the property in question was made upon an affidavit substantially in accord with the requirements of this section although not in name a search warrant. Caravella v. State, 185 Miss. 1, 186 So. 653, 1939 Miss. LEXIS 118 (Miss. 1939).

Under statute setting forth form of search warrant for stolen property, there must be an allegation both that the affiant has reason to believe and that he does believe that such stolen articles are concealed on premises, to constitute probable cause required for search of a person’s premises for stolen goods, and mere suspicion, however strong, is not sufficient. Jones v. State, 180 Miss. 210, 177 So. 35, 1937 Miss. LEXIS 108 (Miss. 1937).

An affidavit for search warrant, stating that affiant had suspicion that stolen hog was concealed on premises of accused and omitting words “and affiant has reason to believe and does believe” that stolen hog was on premises of accused, was insufficient to support valid search warrant. Jones v. State, 180 Miss. 210, 177 So. 35, 1937 Miss. LEXIS 108 (Miss. 1937).

Affidavit for search warrant stating that affiant had suspicion that stolen goods were concealed on premises of accused, instead of stating in statutory words that affiant “had reason to believe and does believe” that stolen goods were on premises of accused, was insufficient to support valid search warrant, since under Constitution suspicion is not sufficient foundation for issuance of search warrant. Bouchillon v. State, 179 Miss. 791, 177 So. 34, 1937 Miss. LEXIS 88 (Miss. 1937).

Signing affidavit by affiant in presence of justice affixing jurat thereto held to constitute necessary “oath” for affidavit for search warrant. Atwood v. State, 146 Miss. 662, 111 So. 865, 1927 Miss. LEXIS 231 (Miss. 1927).

The affidavit must be made for a search warrant, but the mere failure of affiant to sign the affidavit does not render the warrant void. Winters v. State, 142 Miss. 71, 107 So. 281, 1926 Miss. LEXIS 66 (Miss. 1926).

If search warrant and affidavit have been lost, copies thereof are admissible in evidence on defendant’s demand. Mitchell v. State, 139 Miss. 108, 103 So. 815, 1925 Miss. LEXIS 129 (Miss. 1925).

The affidavit for a search warrant must allege in substance that the officer has reason to believe and “does believe” before a valid warrant can issue thereon for search and seizure. Porter v. State, 135 Miss. 789, 100 So. 377, 1924 Miss. LEXIS 70 (Miss. 1924); Morrison v. State, 140 Miss. 221, 105 So. 497, 1925 Miss. LEXIS 252 (Miss. 1925).

A material deficiency in the affidavit or warrant will render the warrant void. Turner v. State, 133 Miss. 738, 98 So. 240, 1923 Miss. LEXIS 189 (Miss. 1923); State v. Watson, 133 Miss. 796, 98 So. 241, 1923 Miss. LEXIS 190 (Miss. 1923).

The affidavit for the search warrant may be made on information and belief. Loeb v. State, 133 Miss. 883, 98 So. 449, 1923 Miss. LEXIS 196 (Miss. 1923).

15. – – Description in affidavit or warrant, search warrants.

Exclusionary rule applied because the evidence seized pursuant to the invalid warrant could not be purged of the primary taint of the illegal search; the warrant was so facially deficient that the executing officers could not have presumed it to be valid since they did not have any way to distinguish stolen items from property that was not stolen. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018)

Because a search warrant insufficiently described the stolen goods to be seized, and there was no probable cause for any drug-related language to be included in it, the warrant was invalid; there was no probable cause to issue a search warrant for any illegal drug activity because there was no substantial basis for the inclusion of the language related to drug activity. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018)

Search warrant failed adequately to describe the property to be seized because the description of ‘‘stolen items’’ was inadequate to inform the officers executing the search as to which items in a house were to be seized; there was no means to distinguish stolen items from any items that rightfully belonged in the house, and the warrant should have included a more particularized description of at least some of the property to be seized, especially since it was clear from the record it could have. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018)

Search warrant was void and unenforceable on its face because the section of the warrant denoting the location for the search to be executed was completely blank. Moreover, the good faith exception was inapplicable to the facts of the case. State ex rel. Miss. Bureau of Narcotics v. Canada, 164 So.3d 1003, 2015 Miss. LEXIS 304 (Miss. 2015).

There was no error in the denial of a motion to suppress a black box taken from the floorboard of a truck, or the data contained therein, because removal of the black box was within the scope of the search warrant, which specifically stated that the resulting search was to include items inside the vehicle that tended to demonstrate that defendant was intoxicated at the time of an accident. Taylor v. State, 94 So.3d 298, 2011 Miss. App. LEXIS 238 (Miss. Ct. App. 2011), cert. denied, 96 So.3d 732, 2012 Miss. LEXIS 371 (Miss. 2012).

A general search warrant for “documents relating to a chop shop” was not sufficiently stated with particularity. Logan v. State, 1999 Miss. App. LEXIS 182 (Miss. Ct. App. Apr. 20, 1999), rev'd, 2000 Miss. LEXIS 128 (Miss. May 25, 2000).

A search warrant was not defective because it erroneously named the defendant as the owner of the property to be searched. The Fourth Amendment does not require that either the affidavit or the warrant give the name of the owner of the property to be searched; identifying the owner of the premises is relevant only to assist and aid in particularizing the place to be searched. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

An affidavit for a search warrant was not fatally defective merely because the attached page containing a description of the residence to be searched was not signed by the affiants, where other pages of the affidavit were signed, and the narcotics agent who was the author of the warrant and application swore that the description was not substituted. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

The search of a one-story building, pursuant to an affidavit and search warrant for a 2-story dwelling, did not violate the defendant’s constitutional rights where the officer who made the affidavit for the search warrant had driven by the defendant’s property in a rural area and thought that there was only one building-the 2-story building-on the property, the defendant owned all the property but resided in the one-story building, the officers went to the unoccupied 2-story building when they arrived on the property but received no answer, the defendant came to the front door of the one-story building and the officers went there and served him with the warrant, and the officers searched the one-story building and found marijuana in that building. The affidavit and search warrant sufficiently directed the officers to the defendant’s premises where they found him in his residence, executed the warrant and discovered marijuana, and therefore the trial court was not in error when it denied the defendant’s motion to suppress the evidence found in the search. Hamilton v. State, 556 So. 2d 685, 1990 Miss. LEXIS 17 (Miss.), cert. denied, 497 U.S. 1024, 110 S. Ct. 3271, 111 L. Ed. 2d 781, 1990 U.S. LEXIS 3605 (U.S. 1990).

A storm shed was within the “curtilage” of a residence and, therefore, within the scope of a search warrant that permitted a search of the residence, where the shed was approximately 150 to 175 feet from the house, the shed was the type of building used in connection with a residence, there were only a few trees separating the house and shed, and, most importantly, the house and shed were on the same side of the fence and not separated by it. Arnett v. State, 532 So. 2d 1003, 1988 Miss. LEXIS 457 (Miss. 1988).

Search warrant providing that searching officers were to search for guns used in murder authorized officers to take reasonable actions such as looking behind wall plaque and credit cards found there were therefore lawfully seized. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Although only two items taken in a particular burglary were named in a search warrant, stolen property taken in a number of other burglaries was lawfully seized by the officers, where the officers were lawfully in the house, the property was in open view and most of it was recognized as stolen property. Bounds v. Hardy, 261 So. 2d 119, 1972 Miss. LEXIS 1279 (Miss. 1972).

Although only two items taken in a particular burglary were named in the search warrant, stolen property taken in a number of other burglaries was lawfully seized by the officers, where the officers were lawfully in the house, the property was in open view, and much of it was recognized as stolen property, and where, if the officers had to leave and secure a warrant describing each piece of property, an intolerable burden would be placed on them, and a premium would be bestowed upon the criminal because of a multitude of burglaries. Bounds v. Hardy, 261 So. 2d 119, 1972 Miss. LEXIS 1279 (Miss. 1972).

The description of property to be seized under a search warrant as “stolen property” is no description and utterly void, for the thing or things to be seized, other than contraband, must be described with particularity. Conn v. State, 251 Miss. 488, 170 So. 2d 20, 1964 Miss. LEXIS 366 (Miss. 1964).

Where a search warrant authorizes search of the residence and outhouses of the unknown owner of the 80 acre tract of land described as “all of SW 1/4 of § 28, township 5 north, range 2 east, lying north of Pearson and Whitfield Road in Rankin County, Mississippi,” this search warrant contained sufficient description of property. Watkins v. State, 67 So. 2d 292 (Miss. 1953).

Any description of places or things to be searched, which is sufficient to enable officer to locate them with reasonable certainty, is in compliance with this constitutional requirement. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

Description of premises of defendant in affidavit and search warrant as “located at 97 feet on First Street by 148 feet on Warran Avenue, Lot A, Block 4, Swalm Subdivision,” and authorizing search of buildings and vehicles owned or used by defendant located as stated, is sufficient description of lot used by defendant, 50 feet by 60 feet, on corner, being portion of described property which was owned by defendant’s family, since description was sufficient to enable officer to locate with reasonable certainty place to be searched, and officer did locate it by means of such description without difficulty. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

Search warrant authorizes search of locked metal box or locker in outhouse in backyard of lot on which defendant’s resident is situated when property to be searched, as described in both affidavit and warrant, includes residence and outhouses on premises. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661, 1949 Miss. LEXIS 402 (Miss. 1949).

Descriptions in search warrants need not be positively specific and definite, but are sufficient if the places and things to be searched are designated in such manner that the officer making the search may locate them with reasonable certainty. West v. State, 42 So. 2d 751 (Miss. 1949).

Description in search warrant of defendant’s residence as being located on named road 1 1/2 miles from specified city was not insufficient merely because it did not state in which direction from the city limits the premises to be searched was located. West v. State, 42 So. 2d 751 (Miss. 1949).

A warrant which describes the place to be searched as “in the residence” and the outhouses and grounds “near the residence” of a specified person does not authorize a search of the residence of another 150 yards away, even though the residence of such other person is owned by the person specified in the warrant and is located on the same tract of land. Cox v. State, 201 Miss. 568, 29 So. 2d 661, 1947 Miss. LEXIS 421 (Miss. 1947).

A search warrant describing location to be searched as in the dwelling house, outhouses on the premises used or occupied by a named individual on the place of another named individual “on cross roads 2 miles south of Soreby’s Store in 2nd house on left side of road,” was sufficiently definite so as to be valid where the officer located the place to be searched from such description. Williams v. State, 198 Miss. 848, 23 So. 2d 692, 1945 Miss. LEXIS 260 (Miss. 1945).

Evidence obtained under valid search warrant was admissible in prosecution for possessing integral parts of a distillery, where parts of the distillery were in possession of defendant at the place described in the search warrant. Williams v. State, 198 Miss. 848, 23 So. 2d 692, 1945 Miss. LEXIS 260 (Miss. 1945).

Seizure of shotgun shells, while searching defendant’s home under liquor search warrant not describing shells, held unlawful, since possession of shells was not unlawful per se. Cofer v. State, 152 Miss. 761, 118 So. 613, 1928 Miss. LEXIS 217 (Miss. 1928).

Affidavit for search warrant, describing place as estate of deceased person, is not sufficient. Parkinson v. State, 145 Miss. 237, 110 So. 513, 1926 Miss. LEXIS 21 (Miss. 1926).

The warrant and affidavit must give the name of the person in possession of the premises to be searched. Brewer v. State, 142 Miss. 100, 107 So. 376, 1926 Miss. LEXIS 73 (Miss. 1926).

Officers lawfully on the premises may testify to facts discovered by them and may seize a still kept in violation of law and give evidence of such facts although such officer held search warrant for discovery of intoxicating liquor only. Reynolds v. State, 136 Miss. 329, 101 So. 485, 1924 Miss. LEXIS 140 (Miss. 1924).

A search warrant to search one automobile is not good to search a different automobile. Vaugh v. State, 136 Miss. 314, 101 So. 439 (1924), citing Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922); Butler v. State, 129 Miss. 778, 93 So. 3, 1922 Miss. LEXIS 88 (Miss. 1922); Owens v. State, 133 Miss. 753, 98 So. 233, 1923 Miss. LEXIS 188 (Miss. 1923).

The affidavit and the search warrant must specifically designate the place of places to be searched and the person or thing to be seized. Miller v. State, 129 Miss. 774, 93 So. 2, 1922 Miss. LEXIS 87 (Miss. 1922); Smith v. State, 133 Miss. 730, 98 So. 344, 1923 Miss. LEXIS 195 (Miss. 1923); Owens v. State, 133 Miss. 753, 98 So. 233, 1923 Miss. LEXIS 188 (Miss. 1923); State v. Watson, 133 Miss. 796, 98 So. 241, 1923 Miss. LEXIS 190 (Miss. 1923); Loeb v. State, 133 Miss. 883, 98 So. 449, 1923 Miss. LEXIS 196 (Miss. 1923); Fatimo v. State, 134 Miss. 175, 98 So. 537, 1924 Miss. LEXIS 249 (Miss. 1924); Falkner v. State, 134 Miss. 253, 98 So. 691, 1924 Miss. LEXIS 259 (Miss. 1924); Spears v. State, 99 So. 361 (Miss. 1924); Butler v. State, 135 Miss. 885, 101 So. 193, 1924 Miss. LEXIS 87 (Miss. 1924); Sanders v. State, 141 Miss. 615, 106 So. 822, 1926 Miss. LEXIS 460 (Miss. 1926); Webb v. Sardis, 143 Miss. 92, 108 So. 442, 1926 Miss. LEXIS 245 (Miss. 1926).

16. – – Showing of probable cause, search warrants.

Threshold requirements for probable cause to support the issuance of the original search warrant were not met, and therefore the trial court erred by denying defendant’s motion to suppress the evidence obtained as a result of the first and second search warrants, where the chief admitted that he had only spoken with the confidential informant a couple of times and he had never met, and there was nothing in the affidavit to establish that the information provided by the informant was credible or reliable or that the chief attempted to corroborate the informant’s statement through additional independent investigation. Chesney v. State, 165 So.3d 498, 2015 Miss. App. LEXIS 277 (Miss. Ct. App. 2015).

Trial court did not err by finding that there was a substantial basis for a finding of probable cause to issue a search warrants for defendant’s person and vehicle because the oral testimony of the officer who requested the search warrant raised a fair probability that evidence of the crime would be found on defendant’s person and in defendant’s vehicle. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Defendant’s conviction for the possession of child pornography was appropriate because there was a substantial basis for the issuance of the search warrant. The probable cause for the search warrant was not rendered stale simply because an investigator first discovered the allegations 9 or 10 months after the alleged incident occurred and that was especially true in the context of allegations by small children, who might be too ashamed or frightened to inform others that something inappropriate might have occurred because they were expressly ordered or threatened to remain silent. Renfrow v. State, 34 So.3d 617, 2009 Miss. App. LEXIS 775 (Miss. Ct. App. 2009), cert. dismissed, 31 So.3d 1217, 2010 Miss. LEXIS 213 (Miss. 2010).

Search warrant was supported by probable cause because an officer personally observed a drug transaction and subsequently took a statement that the buyer regularly purchased cocaine from the pool hall; that information supported the prior anonymous statements that defendant kept and sold cocaine at the pool hall. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

Search warrant affidavit was detailed, the confidential informant was an eyewitness to illegal acts and had a reliable track record, and the magistrate proceeded on more than mere suspicion in issuing the warrant; there was no merit to defendant’s argument that under the given facts the warrant was fatally defective because of inadequate probable cause, and the trial court did not err in admitting the evidence obtained from the search of defendant’s residence. Flake v. State, 948 So. 2d 493, 2007 Miss. App. LEXIS 47 (Miss. Ct. App. 2007).

When a magistrate issuing a search warrant is given false facts which are indispensable to a probable cause determination, probable cause cannot exist, and the fruits of the search must be suppressed, even if the search warrant was properly issued based on the false facts which were presented to the magistrate; the appellate court reversed and remanded defendant’s case to the trial court to consider whether a police officer knowingly and intentionally gave false and misleading information to the magistrate judge issuing the search warrant. Turner v. State, 945 So. 2d 992, 2007 Miss. App. LEXIS 5 (Miss. Ct. App. 2007).

Motion to suppress evidence was denied in a case involving church burglaries because there was probable cause to issue a warrant to search defendant’s residence based on statements from a witness that saw defendant and his friend near the church in the middle of the night, a witness that saw defendant carve a certain phrase found at the church on another wall, a neighbor who saw defendant exit a vehicle with the lights off, and another party who saw defendant in possession of property matching the description of some taken from the church. Dimaio v. State, 951 So. 2d 581, 2006 Miss. App. LEXIS 782 (Miss. Ct. App. 2006).

Where defendant was charged with and found guilty of felony driving under the influence of alcohol, the trial court did not err in denying defense counsel’s motion to suppress evidence of defendant’s blood alcohol results, because the warrant authorizing the blood alcohol test was valid and defendant’s constitutional rights had not been violated. Inter alia, the officer observed defendant’s slurred speech and staggered walk, and he noted that defendant’s breath smelled of alcohol and defendant actually admitted to having drunk four beers that morning and was unable to recite the alphabet. Dove v. State, 912 So. 2d 1091, 2005 Miss. App. LEXIS 738 (Miss. Ct. App. 2005).

Where defendant was convicted of felonious sexual intercourse with a child under the age of 14, felonious sexual penetration with a child less than 18, and possession of materials depicting children under the age of 18 engaging in sexually explicit conduct, the circuit had not erred in not granting his pretrial motion to suppress evidence obtained by a search warrant based on the statements of the child victim, because she specifically stated that defendant had showed her pictures of nude people on his computer screen doing things she described as “gross.” She used language to describe acts performed on her and by her in relation to defendant in such sexually explicit terms that veracity could easily be inferred. Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

Although defendant’s motion to suppress items found in his house should have been granted because the issuing justice had not been presented with a basis of reliability for the informer’s statement on which the officers relied, the Miss. Code Ann. §41-29-313(1)(a)(i) conviction was not reversed because the evidence that ended in defendant’s conviction did not come from defendant’s house but from the search of other property on which a clandestine methamphetamine lab was found and the search of that property was not dependent on the search warrant issued for defendant’s house. Roebuck v. State, 2005 Miss. App. LEXIS 167 (Miss. Ct. App. Mar. 8, 2005), sub. op., op. withdrawn, 915 So. 2d 1132, 2005 Miss. App. LEXIS 1006 (Miss. Ct. App. 2005).

Where appellate court held that motion to suppress should have been granted, it did not find fault due to the lack of the word “reliable” in the affidavit or to underlying facts and circumstances but found it because nothing in the record suggested that the officers had presented the justice with any basis of reliability on the informer’s statement. Roebuck v. State, 2005 Miss. App. LEXIS 167 (Miss. Ct. App. Mar. 8, 2005), sub. op., op. withdrawn, 915 So. 2d 1132, 2005 Miss. App. LEXIS 1006 (Miss. Ct. App. 2005).

In a drug case, there was sufficient probable cause for the issuance of a search warrant under the “totality of the circumstances” test where the evidence showed that police had received tips about a methamphetamine laboratory hidden behind a tarp underneath a trailer; the informant was well known to police, and the information presented to the magistrate contained specific details. Kerns v. State, 923 So. 2d 210, 2005 Miss. App. LEXIS 243 (Miss. Ct. App.), aff'd in part and rev'd in part, 923 So. 2d 196, 2005 Miss. LEXIS 799 (Miss. 2005).

Though the search warrant was not accompanied by the “underlying facts and circumstances” sheet, which was to contain facts supporting issuance of same, that fact alone did not render the search warrant fatally flawed where the officer’s sworn testimony was that the eyewitness (an arrested person), had given detailed information regarding the location of the residence where the drugs were being manufactured and had also stated that he had bought and supplied defendants with precursor elements; said information was furnished by an eyewitness as opposed to an informant, a credibility determination was not required, and there was probable cause to support issuance of the search warrant. Pittman v. State, 904 So. 2d 1185, 2004 Miss. App. LEXIS 1043 (Miss. Ct. App. 2004).

Probable cause under Mississippi Constitution Art. 3, § 23 did not exist for the issuance of a search warrant because the information given to police by a confidential informant (CI) was not independently corroborated, she was unknown to the police, and no indicia of reliability were either included in the affidavit or presented orally to the issuing judge. State v. Woods, 866 So. 2d 422, 2003 Miss. LEXIS 531 (Miss. 2003).

Affidavit in support of the warrant to search defendant’s apartment lacked veracity or reliability as it was completely devoid of corroborating information to support confidential informant’s claims that she had seen crack cocaine in the apartment; the trial court properly granted defendant’s motion to suppress his confession and the seized cocaine as fruit of the poisonous tree. State v. Woods, 2002 Miss. LEXIS 402 (Miss. Dec. 5, 2002), op. withdrawn, sub. op., 866 So. 2d 422, 2003 Miss. LEXIS 531 (Miss. 2003).

Probable cause for the issuance of a warrant to search the defendant’s residence was established where (1) the magistrate was informed by the police that an undercover drug operation had occurred that day and that the defendant had been arrested for the sale of $ 220 worth of cocaine, (2) an informant had set up the buy by calling the defendant at his residence, and the police suspected the origin of the cocaine was indeed his residence, and (3) the residence had been under surveillance as a drug distribution center due to complaints of anonymous neighbors. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

Task of court reviewing whether search warrant was issued upon probable cause is to insure that issuing magistrate had substantial basis for concluding that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Information necessary to establish probable cause must be information reasonably leading officer to believe that, then and there, contraband or evidence material to criminal investigation would be found. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In determining question of probable cause for issuance of warrant, oral testimony is admissible before officer who is required to issue search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In making its review of whether search warrant was issued upon probable cause, reviewing court looks both to facts and circumstances set forth in affidavit for search warrant and as well, sworn oral testimony presented to issuing magistrate. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Affidavit supporting application for warrant to search defendant’s motel room, when excised of false information, was not by itself sufficient to establish probable cause for issuance of warrant, where affidavit provided merely that officer who was executing other warrant found defendant in possession of large quantity of currency and motel room key, and motel manager verified that motel room was registered to defendant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Probable cause did not exist for issuance of warrant to search defendant’s motel room based on information that defendant was present, with others, when drugs were purchased by confidential source, that defendant was present when police officers executed other warrant which yielded 4 grams of cocaine, and that officers found on defendant’s person large amount of money and motel room key. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

A warrant to search a murder suspect’s trailer was supported by sufficient probable cause, in spite of his argument that no facts were provided to the judge to support an inference that evidence of the crime would be in the trailer, where the crime involved the theft of cash, clothing, guns and other items likely to be kept at a suspect’s residence. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

Probable cause existed for the issuance of a search warrant for a defendant’s residence, in spite of the defendants’ argument that an informant’s personal observation of marijuana at the residence 2 weeks earlier was stale and too remote, where 2 narcotics agents saw a sale of marijuana, which came from one of the defendants and from the house in question on the day of the search. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

Detailed underlying facts supporting the affidavits for 2 search warrants furnished the judge with probable cause for issuing the search warrants, even though the criminal investigator who executed the affidavits erred in some of the statements set forth in the underlying facts, where the investigator was cross-examined at the suppression hearing at great length by the defendant’s attorney, there was no showing that the investigator intentionally misrepresented those facts or made them in reckless disregard for the truth, and the remaining underlying facts clearly constituted probable cause for the issuance of the search warrants. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

In determining whether probable cause existed for a particular search or search warrant, judges must scrupulously examine the facts in each case, make a careful evaluation, and make a determination in their own best judgment. Probable cause is not what some officer thought, and not some conduct that was simply unusual or that simply roused the suspicion that illegal activity could be afoot, when there was at the same time just as likely a possibility that nothing at all illegal was transpiring. Rather, it must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found. Rooks v. State, 529 So. 2d 546, 1988 Miss. LEXIS 232 (Miss. 1988).

Where available information shows only that a crime has been committed and that a particular person has committed it, there is probable cause only for the issuance of an arrest warrant. The mere fact that a person committed a crime does not necessarily mean that there is probable cause to search that person’s dwelling for evidence of that crime. Carney v. State, 525 So. 2d 776, 1988 Miss. LEXIS 175 (Miss. 1988).

Affidavit and facts established substantial basis for judge’s determination that probable cause to issue warrant existed where judge testified that after swearing in officers, he based his probable cause determination on written affidavit and officers and investigator testified that they were sworn in by judge and provided him with oral statements in addition to written affidavit. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Probable cause did exist to obtain search warrant for defendant’s residence where officer who served as affiant for warrants testified that state had composite drawing of man who used victim’s credit cards, number of truck license tag registered to defendant was listed on credit card purchase receipt, authorities had observed truck in defendant’s yard whose tag number was used in purchase, and officer who identified defendant from composite prepared photographic lineup from which merchant identified defendant as man using victim’s credit card to make purchases day following victim’s murder. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

Totality of circumstances was sufficient to establish probable cause to issue search warrant for automobile and home, although underlying facts stated in affidavit for search warrant considered alone may not have been sufficient, where oral testimony was adduced before magistrate which, taken together with affidavit, sufficiently established that probable cause existed. Hickson v. State, 512 So. 2d 1, 1987 Miss. LEXIS 2759 (Miss. 1987).

Defendant was not entitled to have evidence suppressed where the affidavit for the warrant under which the search was conducted supplied the issuing magistrate with a substantial basis to conclude that there was a fair probability that contraband could be found in the vehicle to be searched. Harper v. State, 485 So. 2d 1064, 1986 Miss. LEXIS 2777 (Miss. 1986).

Showing that suspect departed bar with murder victim shortly prior to time of victim’s death and returned to bar shortly thereafter in disheveled condition and in hurry to get friends to leave is sufficient to establish probable cause for search of suspect’s home. Hester v. State, 463 So. 2d 1087, 1985 Miss. LEXIS 1896 (Miss. 1985).

Although officers who executed the affidavit for a search warrant had not been previously acquainted, either personally or officially, with defendant’s neighbor who supplied the information as to marijuana plants growing on defendant’s property, and had no previous experience as to his reliability based on former tips, or otherwise, inasmuch as the informant was an eyewitness to the growing of the marijuana, which he had observed simply by looking across the imaginary line separating his property from defendant’s property, and inasmuch as his statements with respect to it were supported and borne out when he took several other plants to the police where it was identified by them as being marijuana, the information in the hands of the officers was ample, and was sufficiently set out in detail in the affidavit, to justify a finding of probable cause and the issuance of a warrant. Wolf v. State, 281 So. 2d 445, 1973 Miss. LEXIS 1497 (Miss. 1973).

An affidavit stating that a reliable informer told the police officer affiant that he had observed narcotics in the apartment and had purchased narcotics from someone in the house on past occasions, and that there had been a two-week continual surveillance of the house revealing that people left the house in an intoxicated condition, was sufficient to allow the magistrate to determine the existence of probable cause for search of the house. Holland v. State, 263 So. 2d 566, 1972 Miss. LEXIS 1338 (Miss. 1972).

An affidavit which stated not only that the informant had seen marijuana in the place to be searched, but that the informant had actually furnished the officer a sample of the drug, that the officer had personally observed known users of marijuana go to and from the place sought to be searched, the actual known facts plus the surrounding circumstances were such as to lead a reasonably prudent and cautious man to believe that the law was being violated and that contraband was being kept in the residence of the defendant at the time the warrant was issued, and the facts stated in the affidavit were sufficient to establish probable cause, resulting in the proper issuance of the search warrant involved. Boring v. State, 253 So. 2d 251, 1971 Miss. LEXIS 1214 (Miss. 1971), cert. denied, 405 U.S. 1040, 92 S. Ct. 1310, 31 L. Ed. 2d 581, 1972 U.S. LEXIS 3074 (U.S. 1972).

It is no longer the law of Mississippi that the issuance of a search warrant is a conclusive judicial finding of the magistrate of the existence of probable cause; inquiry may now be made at the trial as to whether probable cause existed before the issuance of the warrant. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

An affidavit stating that the defendant had come to the informant’s home with three marijuana cigarettes which he gave to the informant’s wife at a time when the informant was not home, some two weeks prior to the issuance of a search warrant, was not based on the personal knowledge of the informant and contained no information that an offense was being committed on the premises to be searched, and was not sufficient for a reasonable finding that probable cause existed for a search of the defendant’s residence. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

In determining whether probable cause existed for the issuance of a search warrant based upon information received by officers from an informant, a two-part test is applicable; part one requires that the magistrate have been informed of some of the underlying circumstances from which the informer reached his conclusions-that is the magistrate must have been reasonably satisfied that the informer acquired his knowledge by personal observation or in some other dependable manner, while part two requires that the magistrate have known some of the underlying circumstances from which the officers concluded that the informer was credible or his information reliable. Barker v. State, 241 So. 2d 355, 1970 Miss. LEXIS 1335 (Miss. 1970).

Where there was nothing in the affidavit upon which to base a finding of probable cause, and it was incapable of being aided by the unsworn statement of the affiant to the magistrate that he had bought a half pint of whisky at the premises to be searched, the search warrant was improperly issued. Northcutt v. State, 206 So. 2d 824, 1967 Miss. LEXIS 1245 (Miss. 1967).

Information obtained from an anonymous telephone informer that the defendant would be transporting whisky in a certain automobile at a certain place and time does not constitute probable cause for the search of the defendant’s automobile and the seizure of liquor found there. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

A judicial finding of the officer issuing the search warrant, of the existence of probable cause therefor, is conclusive and cannot be inquired into. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

Under statute providing for issuance of search warrant where person has reason to believe and does believe that stolen articles are concealed on person’s premises, information upon which he has reason to believe and does believe must be such as would lead a reasonably prudent person to believe facts which, if established, would be sufficient to amount to a probability. Jones v. State, 180 Miss. 210, 177 So. 35, 1937 Miss. LEXIS 108 (Miss. 1937).

17. – – Execution of incorrect or invalid warrant, search warrants.

Trial court did not err by admitting evidence found during the execution of a search warrant based on a clerical error requiring officers to knock and announce; even though officers merely entered after pulling open a chain, the evidence showed they specifically requested a warrant not requiring a knock and announce. Caldwell v. State, 938 So. 2d 317, 2006 Miss. App. LEXIS 674 (Miss. Ct. App. 2006).

Where defendant was arrested for speeding and reckless driving, defendant was subjected to a pat-down search at the time of the arrest, and also to a warrantless search at the place of detention, where cocaine was discovered in defendant’s shoe, these searches being exceptions to the warrant requirement. Jackson v. State, 856 So. 2d 412, 2003 Miss. App. LEXIS 258 (Miss. Ct. App. 2003).

Return on gun warrant clearly indicating warrant was served coupled with officers’ testimony refuted testimony that marijuana warrant instead of gun warrant was served prior to its execution. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Search, under invalid warrant, of defendant’s automobile while defendant was in jail for burglary, violated Constitution; automobile being “possession” of defendant. Millette v. State, 167 Miss. 172, 148 So. 788, 1933 Miss. LEXIS 123 (Miss. 1933).

18. – – Magistrates issuing warrant, search warrants.

There was no merit to a defendant’s claim that the judge who issued 2 search warrants was not neutral and detached on the basis that the judge who went to the scene of the crime and saw the body also issued the search warrants, where there was no showing as to how this, in and of itself, created any prejudice or bias towards the defendant. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

A judge who issues a search warrant is not required to confer on the searching officer the full range of authority allowed by law. The judge is within his prerogatives to limit the officer’s authority, either by use of a pre-printed form or by interlined language. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (Miss. 1988).

Justice Court Judge who issued search warrant was neutral and detached magistrate where nothing in record indicated that judge acted in biased manner when he issued search warrant; central requirement for valid search warrant is that it must be issued by neutral and detached magistrate, and substantial involvement in search is forbidden; however, magistrate who goes to scene, issues warrant, and remains there for some time does not abdicate his proper position. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Fact that magistrate primarily relies on fact that sworn police officers are asking for search warrant rather than on anything in particular in affidavit of underlying facts and circumstances does not mean that magistrate is not acting in neutral and detached manner in issuing warrant where judge issues warrant only if judge feels that it is warranted. McCommon v. State, 467 So. 2d 940, 1985 Miss. LEXIS 2043 (Miss.), cert. denied, 474 U.S. 984, 106 S. Ct. 393, 88 L. Ed. 2d 345, 1985 U.S. LEXIS 4442 (U.S. 1985).

A justice of the peace has jurisdiction to issue a search warrant on proper affidavit made before him, to be executed in any part of the county and may be made returnable to the proper court, but an error in making it returnable to himself in the wrong district does not render the warrant void. Reynolds v. State, 136 Miss. 329, 101 So. 485, 1924 Miss. LEXIS 140 (Miss. 1924).

A search warrant issued by a city clerk is void. Robinson v. State, 135 Miss. 774, 100 So. 377, 1924 Miss. LEXIS 69 (Miss. 1924).

The mayor of a municipal corporation who is ex officio justice of the peace may issue a search warrant to be served anywhere within the limits of his county the same as other justices of the peace of the county. Falkner v. State, 134 Miss. 101, 98 So. 345, 1923 Miss. LEXIS 236 (Miss. 1923).

19. – – Persons authorized to serve warrant, search warrants.

An agent of the alcoholic beverage control division did not have authority to serve a search warrant issued for the purpose of making a search for illegal gambling equipment, since such agents have no police powers other than those expressly granted by the provisions of this section or by the provisions of the local option alcoholic beverage control law. Presley v. State, 229 So. 2d 830, 1969 Miss. LEXIS 1259 (Miss. 1969).

Warrant directing search for and seizure of intoxicating liquor, issued merely to any lawful officer of the county, constitutes a legal search warrant, but the coroner, unless the sheriff is disqualified under Code 1942 § 3906, cannot lawfully serve it. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

Warrant issued by justice of the peace addressed and delivered to the coroner as such directing him to search for and seize intoxicating liquor although the sheriff suffered no disqualification within the purview of Code 1942 § 3906, and which was served as directed by the coroner while acting as such officer, was illegal and evidence obtained under authority of the search warrant was inadmissible, notwithstanding that the warrant was also addressed to any lawful officer of the county. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

20. – – Persons authorized to execute warrant, search warrants.

An unreasonable search characterized a search for liquor, over objection of the owner of the premises, by a district attorney with the original search warrant in his pocket before a deputy sheriff arrived in the house and laid a copy of the warrant on a table. Adams v. State, 202 Miss. 68, 30 So. 2d 593, 1947 Miss. LEXIS 243 (Miss. 1947).

21. – – Time specified, search warrants.

A search conducted at 11:30 p.m. exceeded the officer’s authority under the search warrant where the warrant authorized searches only “in the daytime”; thus, the fruits of the search were inadmissible at trial. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (Miss. 1988).

22. Return, search warrants.

In a drug case, a trial court did not err in admitting items into evidence that were not on an original search warrant inventory, but were included on the return, because any error resulting from the ministerial act of the return did not invalidate the properly issued search warrant. Kerns v. State, 923 So. 2d 210, 2005 Miss. App. LEXIS 243 (Miss. Ct. App.), aff'd in part and rev'd in part, 923 So. 2d 196, 2005 Miss. LEXIS 799 (Miss. 2005).

23. Warrantless searches and seizures – In general.

Officer stopped defendant for failure to have a tag light, smelled alcohol, and then asked defendant to get in his squad car where he gave her a breath test, which she passed. Nevertheless, he kept her in his patrol car for 20 minutes until she consented to a search of her car, and the officer then conducted a pat-down search, sticking his hands in her pockets; the officer testified that defendant was nervous, that he was fearful, and that he had no cage for defendant in his patrol car, and consequently, the Mississippi Court of Appeals held the trial court erred in concluding the officer did not have a reasonable suspicion of criminal activity, or a reasonable fear for his safety to have allowed for the pat-down search which revealed cocaine. State v. White, 918 So. 2d 763, 2005 Miss. App. LEXIS 336 (Miss. Ct. App. 2005).

With regard to defendant’s contention that the State conducted illegal surveillance of his telephone calls by placing a digital tape recorder on his telephone, the court found that defendant was not entitled to relief because he had waived the right to challenge the State’s evidence by entering a valid guilty plea to the offense of conspiracy to manufacture methamphetamine. Sweat v. State, 910 So. 2d 12, 2004 Miss. App. LEXIS 1110 (Miss. Ct. App. 2004), aff'd in part and rev'd in part, 912 So. 2d 458, 2005 Miss. LEXIS 661 (Miss. 2005).

In a possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance case, after a drug store clerk informed the police that two suspects purchased large amounts of ephedrine/pseudoephedrine contained in over-the-counter cold medications and described their car, a be on the lookout announcement was made and the officers investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search the car relieved the officer of any need for a search warrant; thus, the admission of the evidence of the pills found was proper and did not violate defendant’s federal and state constitutional rights under U.S. Const. amend. IV and Miss. Const. Art. 3, § 23. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

Photographing a defendant’s injured hand, which was within the plain view of police officers and was incident to a lawful arrest, was not an improper search, as defendant had no more of a reasonable expectation of privacy with respect to his hand than he would have had with his handwriting. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Though a “telephonic search warrant” was not recognized in Mississippi, under the Leon good faith exception to warrantless searches, police officers’ good faith belief that a telephonic warrant was valid justified admission of drugs found in a search of a defendant’s apartment. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Officers had probable cause to believe that defendant was dealing marijuana, they were attempting to prevent the destruction of evidence instead of effectuating arrest and seizure, and they reasonably believed in good faith they had a valid telephonic search warrant and were acting reasonably in the midst of exigent circumstances; thus, the trial court, even in the absence of a state statute allowing telephonic search warrants, properly upheld the search as a reasonable warrantless search. White v. State, 2002 Miss. LEXIS 311 (Miss. Oct. 24, 2002), op. withdrawn, sub. op., 2003 Miss. LEXIS 208 (Miss. Apr. 10, 2003), op. withdrawn, sub. op., 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Mississippi Supreme Court adopts the Leon good faith exception to warrantless searches. White v. State, 2002 Miss. LEXIS 311 (Miss. Oct. 24, 2002), op. withdrawn, sub. op., 2003 Miss. LEXIS 208 (Miss. Apr. 10, 2003), op. withdrawn, sub. op., 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

An officer cannot obviate the necessity of obtaining a search warrant before invading the private premises of a citizen merely by carrying with him other persons who are not officers to make the search. Holder v. State, 230 Miss. 792, 93 So. 2d 841, 1957 Miss. LEXIS 423 (Miss. 1957).

Sheriff had no right to search trunk on premises, while investigating murder, without a search warrant. Page v. State, 208 Miss. 347, 44 So. 2d 459, 1950 Miss. LEXIS 254 (Miss. 1950).

To establish probable cause founded upon information received from someone warranting a search by a law enforcement officer without a search warrant, the law requires that the information upon which the law enforcement officer acts, when not his personal information, must be given by a credible person-credible in the legal sense, as being a person whose known standing or reputation in the community for veracity and reliability entitled him to belief by a reasonably prudent person, and the facts must be shown to be within the knowledge of the informant, it not being sufficient merely to show that the officer actually believed the information to be true; and accordingly, a search of a defendant’s automobile, leading to a prosecution for the unlawful possession of intoxicating liquors, based upon information obtained by the searching officer from a negro who had been before the court a number of times for violation of the liquor laws and not shown to be within the personal knowledge of the informant, was illegal. McGowan v. State, 184 Miss. 96, 185 So. 826, 1939 Miss. LEXIS 50 (Miss. 1939), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

Where circuit judge directed deputy sheriff to obtain wine and deputy went to defendant’s place of business and informed defendant that he desired to purchase wine for circuit judge, and defendant told deputy that if judge wanted it to take it without paying for it, manner in which wine was secured did not violate unreasonable search or seizure provision of Constitution. Sacco v. Sacco, 174 So. 248 (Miss. 1937).

24. – – Admissibility of evidence, warrantless searches and seizures.

Because defendant had been lawfully detained on grounds of reasonable suspicion, his flight provided Mississippi Bureau of Narcotic agents with justification to pursue him; whether defendant had been frisked prior to his flight, he was up to that point lawfully detained under Terry and temporarily not free to leave, but his unprovoked flight was a consummate act of evasion, designed to prevent his further detention and carried out by his desire to avoid jail. Cole v. State,—So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Anonymous tip, alone, did not possess sufficient indicia of reliability to provide Mississippi Bureau of Narcotic agents with reasonable suspicion to stop a group or its individual members because they were merely acting upon information provided through an anonymous tip; however, the agents personally observed ‘‘suspicious’’ behavior as soon as they arrived on the scene, thereby establishing an independent ground for reasonable suspicion. Cole v. State,—So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Defendant was not entitled to suppress a small amount of methamphetamine that was seized by conservation officers when they entered onto the private property of defendant’s grandparent because the area where the evidence was seized was on an open field across the road from defendant’s home and outside the curtilage of defendant’s home. Therefore, defendant lacked standing to contest the search as defendant did not have a reasonable expectation of privacy on the open land of defendant’s grandparent. Tullos v. State, — So.3d —, 2019 Miss. App. LEXIS 598 (Miss. Ct. App. Dec. 17, 2019).

Trial court did not err in denying defendant’s motion to suppress as a deputy had reasonable suspicion to stop defendant because the anonymous tips stated that certain named individuals would be traveling in a specific car heading to a particular location, and that those individuals were involved in the robbery of the victim’s liquor store; and, when the deputy saw the car matching the description in the be-on-the-lookout notice, he observed one of the individuals allegedly involved in the robbery in the passenger seat; and because defendant’s flight was sufficient for the deputy to follow in pursuit. Hamp v. State, 207 So.3d 684, 2016 Miss. App. LEXIS 790 (Miss. Ct. App. 2016).

In a case in which defendant appealed his conviction and sentence for felony driving under the influence (DUI) as a habitual offender pursuant to Miss. Code Ann. §99-19-81, he argued unsuccessfully that the trial court erred in failing to grant his pretrial motion to suppress evidence because: (1) the police chief had no authority to stop or arrest him, (2) he never committed any offense in the chief’s jurisdiction, (3) his arrest occurred when the pursuit to make the arrest began, and (4) he had not committed any felony at that time. When the police chief began his pursuit, it was not a pursuit for the purpose of making an arrest, rather, it was a pursuit to give a courtesy warning; at the time defendant was arrested at his home, he had committed the crime of felony DUI, as well as the crime of driving with a suspended license. Delker v. State, 50 So.3d 309, 2009 Miss. App. LEXIS 597 (Miss. Ct. App. 2009), aff'd, 50 So.3d 300, 2010 Miss. LEXIS 529 (Miss. 2010).

Motion to suppress evidence was denied in a drug case because, even though there was an anonymous tip, deputies had sufficient evidence to warrant a further investigation; the caller gave fresh information, deputies were escorted to defendant’s trailer by his mother, and a search warrant was obtained due to other suspicious circumstances that occurred while the deputies were on the property. Four people were seen running from defendant’s trailer, and deputies thought that the trailer was on fire due to smoke. Baker v. State, 991 So. 2d 185, 2008 Miss. App. LEXIS 563 (Miss. Ct. App. 2008).

Motion to suppress evidence was denied in an armed robbery case because police had a reasonable suspicion for stopping defendant while investigating the crime; defendant was observed near the robbery about 15 minutes later, and he and the other people with him fit the description of the perpetrators. Carter v. State, 965 So. 2d 705, 2007 Miss. App. LEXIS 287 (Miss. Ct. App. 2007).

There was adequate support for the trial judge to deny defendant’s motion to suppress the evidence under the Fourth Amendment and Miss. Const. Art. 3, § 23 because: (1) the initial encounter with defendant could be properly characterized as a voluntary conversation; (2) there was no illegal detention of defendant; and (3) defendant’s initial consent and then the withdrawal of his consent after suspicious items were found gave the officers probable cause to believe that more evidence of the manufacture and use of methamphetamine was located on defendant’s property, and they obtained a search warrant and uncovered more items. Melton v. State, 950 So. 2d 1067, 2007 Miss. App. LEXIS 121 (Miss. Ct. App. 2007).

Consent alone is sufficient to permit the taking of a blood sample, and there is no need for a search warrant or exigent circumstances; where a defendant wishes for the trial court to consider whether diminished capacity made his consent ineffective, he has the burden of introducing evidence to raise that issue. Sumrall v. State, 955 So. 2d 332, 2006 Miss. App. LEXIS 404 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 137 (Miss. 2007).

Although rape defendant’s consent to procurement of pubic hairs was improperly obtained after defendant had invoked the right to counsel, the error was harmless, as the evidence was of a scientific nature, and not of a communicative nature, and the evidence was not protected by the right against self-incrimination; additionally, the evidence obtained was subject to a search warrant, for which probable cause clearly existed. Forrest v. State, 2003 Miss. App. LEXIS 706 (Miss. Ct. App. Aug. 12, 2003), op. withdrawn, sub. op., 863 So. 2d 1056, 2003 Miss. App. LEXIS 1255 (Miss. Ct. App. 2003), op. withdrawn, 2004 Miss. App. LEXIS 112 (Miss. Ct. App. Jan. 20, 2004).

Mississippi Supreme Court adopts the U.S. Supreme Court’s Leon good faith exception to warrantless searches. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

In a prosecution for possession of a controlled substance, cocaine which had been discarded by the defendant was not the fruit of an illegal search and seizure, and was therefore properly admitted into evidence, since the defendant was not “seized or arrested” when he discarded the drugs where the defendant did not stop when police officers ordered him to do so for the purpose of checking his identification, and he threw down the cocaine while he was walking away from the officers; the defendant was not restrained or stopped at the time he discarded the cocaine, and therefore the cocaine was abandoned and not the fruit of an unlawful seizure or arrest. Harper v. State, 635 So. 2d 864, 1994 Miss. LEXIS 201 (Miss. 1994), limited, Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

Marijuana seized from a bundle of clothes which the defendant was carrying from her motel room constituted “fruit of the poisonous tree” and was therefore inadmissible, where an unlawful warrantless search of the motel room lead officers to set up a surveillance, during which the defendant exited the motel room with bundles of clothing from which the marijuana was seized. Marshall v. State, 584 So. 2d 437, 1991 Miss. LEXIS 507 (Miss. 1991).

Testimony of police officers as to a conversation in defendant’s home between the defendant and a confidential informer, who was invited into the home, which was electronically transmitted to the officers by a transmitter concealed on the informer, was admissible in defendant’s trial for illegal sale and possession of a controlled substance, notwithstanding that no search warrant had been issued. Lee v. State, 489 So. 2d 1382, 1986 Miss. LEXIS 2465 (Miss. 1986).

Warrantless arrest of murder suspect is based upon probable cause where suspect admits having passed marked $2 bill which was stolen during murder-robbery and suspect matches description of person who passed bill; even if arrest were illegal, statement given by suspect following arrest is admissible at trial where intervening circumstances and nonexistence of flagrant violation by police indicate that statement is voluntarily given. Swanier v. State, 473 So. 2d 180, 1985 Miss. LEXIS 2155 (Miss. 1985).

Where police officer who had obtained a search warrant allowing a search of defendant’s apartment, saw defendant and 2 other people driving away from the house in defendant’s car, and police officer testified that he stopped defendant to serve warrant and ordered the occupant out of the car, and during a “patdown” of defendant, police officer found 3 boxes containing marijuana and upon a search of the automobile 3 additional boxes of marijuana were found, the search of the defendant was an illegal search, and the contraband obtained as a result was inadmissible in evidence. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

Defendant does not waive his objection to illegally obtained evidence by testifying in his own behalf, although he admits having the contraband in his possession. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

Where the driver of a rental truck had been in jail all night after an arrest on an invalid driver’s license charge, a warrantless and detailed inspection the next day of the contents of the truck by officers who did not then know that a crime involving the contents of the truck had been committed, was not incident to a lawful arrest; and the search, which revealed that a crime involving stolen property had been committed, was illegal and evidence obtained by it was inadmissible. Williamson v. State, 248 So. 2d 634, 1971 Miss. LEXIS 1476 (Miss. 1971).

Where an automobile was used in a crime and provided one of the means by which the defendants were apprehended and identified, it became evidence to be used in the prosecution, and it was the duty of officers not only to seize the automobile but to preserve it as evidence, and a search of the vehicle even though not incident to the arrest, was reasonable. Dorsey v. State, 243 So. 2d 550, 1971 Miss. LEXIS 1514 (Miss. 1971).

Where defendant’s automobile was impounded upon his arrest for driving his automobile without a license tag, it was proper police practice for the arresting officers, being responsible for the contents of the car, to inventory the same in the presence of the defendant, and a substance alleged to be marijuana, found during such inventory, was not inadmissible in a subsequent prosecution as the product of an illegal search and seizure. Jackson v. State, 243 So. 2d 396, 1970 Miss. LEXIS 1397 (Miss. 1970).

Where the defendant was arrested in his automobile by city police outside the city limits, on a misdemeanor charge of switching automobile tags, and later, while defendant was incarcerated, the police conducted searches of the defendant’s automobile without having obtained a search warrant, the searches were unlawful, and evidence seized in such searches was inadmissible in a prosecution of the defendant on a charge of felonious possession of narcotic drugs. Mellen v. Mellen, 230 So. 2d 209, 1970 Miss. LEXIS 1540 (Miss. 1970).

Obtaining fingerprint evidence violates the Fourth and Fourteenth Amendments to the federal constitution, so as to make such evidence inadmissible in a state criminal trial, where (1) the fingerprints were obtained while the accused was detained at police headquarters without probable cause for his arrest, (2) the detention at police headquarters of the accused was not authorized by a judicial officer, (3) the accused was unnecessarily required to undergo two fingerprinting sessions, and (4) the accused was not merely fingerprinted during the first of the two sessions, but was also subjected to interrogation. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, 1969 U.S. LEXIS 1869 (U.S. 1969).

A defendant who was not present at the time and place where a search and seizure took place is without standing to attack its legality, and cannot object to the introduction in evidence of the fruits of the seizure. Robinson v. State, 219 So. 2d 916, 1969 Miss. LEXIS 1430 (Miss. 1969).

An officer who boarded a truck without probable cause to believe that the law was being violated may not testify as to the illegal contents of the truck or the reckless manner in which it was driven. Barnes v. State, 249 Miss. 482, 162 So. 2d 865, 1964 Miss. LEXIS 409 (Miss. 1964).

A pistol seen under a leg of a motorist and removed by a patrolman who had halted the car to check the driver’s license is not obtained by an unlawful search and seizure so as to be inadmissible in a prosecution for carrying a concealed weapon. Morgan v. Heidelberg, 246 Miss. 481, 150 So. 2d 512, 1963 Miss. LEXIS 468 (Miss. 1963).

In a prosecution for the unlawful possession of intoxicating liquor, State’s evidence obtained in a search of the defendant’s premises pursuant to search warrant was inadmissible where the affidavit and search warrant were not produced on the trial, and the proof was insufficient to show their loss. Harvey v. State, 232 Miss. 294, 98 So. 2d 764, 1957 Miss. LEXIS 475 (Miss. 1957).

Where the sheriff, who was without a search warrant, after investigating the scene of the theft, together with the owner of the stolen property went upon the defendant’s premises and, without consent of the defendant or his wife, searched the defendant’s premises and found the stolen property, the testimony of the sheriff and the property owner was incompetent as to anything found upon the defendant’s premises. Holder v. State, 230 Miss. 792, 93 So. 2d 841, 1957 Miss. LEXIS 423 (Miss. 1957).

Where sheriff who had lawfully arrested accused at his home and on the following day without search warrant, while accused in jail, found some empty shells, it was error to admit in homicide prosecution the testimony of sheriff concerning the empty shells and also to admit the shells in evidence. Martin v. State, 217 Miss. 506, 64 So. 2d 629, 1953 Miss. LEXIS 459 (Miss. 1953).

Where a warrant was issued to search certain rural store premises and officers while searching premises noticed man other than owner leaving with a suitcase, and seized the suitcase in possession of the accused, who was not committing any misdemeanor at the time the chase was commenced, the search and seizure was not authorized and following the federal rule evidence obtained thereby was inadmissible in prosecution for unlawful possession of intoxicating liquors. Jones v. State, 216 Miss. 263, 62 So. 2d 334, 1953 Miss. LEXIS 632 (Miss. 1953).

Where officers who were lawfully upon premises under a warrant based on probable cause to search for intoxicating liquors found and recognized some stolen property, this property was of contraband nature subject to seizure though it was not one of the designated objects of search, and the evidence of this stolen property obtained by such seizure was admissible in prosecution for theft of the property. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

Where a warrant entitled the officer to search outhouse of owner and a defendant lived in the block house and ran a cafe on the land of the owner, also paid taxes and this house was between 100 and 200 yards away from house in which owner resided and operated the store, the house used by the defendant was not an outhouse, and the search of the premises, where whisky was found was illegal and the evidence was inadmissible. Thompson v. State, 213 Miss. 325, 56 So. 2d 808, 1952 Miss. LEXIS 369 (Miss. 1952).

Acts of officer, who had no warrant, in commanding a girl to set a jug down, and in reaching into her room and removing the jug, constituted an unlawful invasion of her place of abode and the evidence thus obtained could not be used legally against the girl on her trial of a charge of possessing intoxicating liquor since the officer did not know that it was whisky until after he opened the glass jug at the police station. Davis v. Columbus, 212 Miss. 181, 54 So. 2d 275, 1951 Miss. LEXIS 440 (Miss. 1951).

Where officer had no knowledge or information of any kind that a hardware store was burglarized and he proceeded to search the defendant, the evidence obtained by the officer under such circumstances was inadmissible on the trial of the burglary charge. Acuna v. State, 54 So. 2d 256 (Miss. 1951).

Testimony based upon knowledge acquired in searching defendant’s premises without a search warrant, in violation of the constitution, was inadmissible in the trial of the defendant whose premises had been unlawfully searched. Acuna v. State, 54 So. 2d 256 (Miss. 1951).

A sheriff entering a private backyard without a warrant and arresting owner for possession of intoxicating liquors was a trespasser making an unlawful arrest and no evidence there obtained was competent. Hartfield v. State, 209 Miss. 787, 48 So. 2d 507, 1950 Miss. LEXIS 443 (Miss. 1950).

Where sheriff hid himself near spot which he believed was being used to keep whisky but without suspecting that defendant rather than someone else would appear, and shortly thereafter defendant appeared with something in his hand and sheriff, after arresting him, discovered whisky in the bottle, arrest was unlawful and evidence inadmissible. Harrison v. State, 44 So. 2d 403 (Miss. 1950).

Conviction of unlawful possession of intoxicating liquor cannot be sustained when proof of fact arises out of evidence obtained in violation of defendant’s constitutional rights to be secure in person, house and possession from unreasonable search and seizure. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Taking paper bag containing liquor from defendant’s son about to leave premises being searched under proper warrant did not constitute an unlawful search of his person, making evidence obtained thereby inadmissible. West v. State, 42 So. 2d 751 (Miss. 1949).

Evidence procured under search warrant illegal because no return day was named therein is inadmissible in prosecution for violation of liquor laws. Buxton v. State, 205 Miss. 692, 39 So. 2d 310, 1949 Miss. LEXIS 460 (Miss. 1949).

Evidence obtained as result of illegal arrest and search of person is not admissible in prosecution for unlawful possession of intoxicating liquor. Haney v. State, 43 So. 2d 383 (Miss. 1949); Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Evidence obtained by second search, under original search warrant, is inadmissible against defendant when second search is made after original search had been completed and the evidence obtained, and after defendant has been arrested, pleaded guilty and paid fine. Riley v. State, 204 Miss. 562, 37 So. 2d 768, 1948 Miss. LEXIS 389 (Miss. 1948).

Admission in evidence of incriminating articles connected with the crime as its fruits was not error, when the arrest is a lawful one, examination of the articles by the arresting officer is an incident to the arrest and no search is necessary. Poore v. State, 205 Miss. 528, 37 So. 2d 3, 1948 Miss. LEXIS 218 (Miss. 1948), cert. denied, 336 U.S. 922, 69 S. Ct. 656, 93 L. Ed. 1084, 1949 U.S. LEXIS 2670 (U.S. 1949).

Where highway patrolman pursued motorist to check his driver’s license, stopped latter’s automobile, and thereafter searched it without a warrant and without reason to believe that motorist had violated any laws, and motorist had committed no misdemeanor in the patrolman’s presence, evidence that patrolman found whiskey in the automobile was illegally obtained and therefore inadmissible in a prosecution for unlawful possession of intoxicating liquor. Gause v. State, 203 Miss. 377, 34 So. 2d 729, 1948 Miss. LEXIS 282 (Miss. 1948).

Evidence obtained by coroner under illegal warrant for search and seizure of intoxicating liquor was inadmissible in prosecution for permitting games of chance to be played for money on defendant’s premises. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

Evidence in prosecution for unlawful possession of whisky, that sheriff found on defendant’s person a key which fitted door to room wherein the whisky was found, was inadmissible, where the arrest and search of the defendant was illegal because the sheriff had no warrant therefor. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

An arrest by sheriff without a warrant, of a person who has committed no crime in his presence is illegal, and a search of the person is likewise illegal and the evidence obtained thereby is inadmissible. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

Sheriff’s search of defendant’s premises was not unreasonable and he could have arrested the defendant without a warrant had he been at home, and his testimony in homicide prosecution as to what he found at the scene of the crime on defendant’s premises without a search warrant was properly admitted, where deceased’s body was found by the roadside and the sheriff followed trail from body to the home of defendant where he discovered that the yard had recently been thoroughly cleaned, blood near the front steps covered with ashes, a smoldering fire in the back yard wherein many things, including clothes, had been burned, and blood-stained blocks of wood hidden in a hollow tree, since the sheriff had probable cause to believe that a felony had been committed. Stogner v. Crystal Springs Baptist Church, 22 So. 2d 368 (Miss. 1945).

Where peace officer, suspecting illegal sale of beer in the back room of a restaurant, upon being refused admittance thereto, took up his position on the back porch, not for the purpose of making an arrest, but for the purpose of ascertaining whether a misdemeanor would be committed in his presence, such officer was a trespasser and information as to the illegal sale of beer gained there was illegally obtained and was inadmissible in evidence. Hattiesburg Coca Cola Bottling Co. v. Cawley, 2 So. 2d 143 (Miss. 1941).

Evidence of Federal officers who arrested defendant accused of unlawful possession of distillery held not inadmissible on ground that officers had no search warrant, since it was not shown that still was upon premises owned by defendant or that he had interest in such premises, and constitutional prohibition against searches and seizures applied to State and not to Federal officers. McLemore v. State, 178 Miss. 525, 172 So. 139, 1937 Miss. LEXIS 176 (Miss. 1937).

In burglary prosecution, evidence obtained by search without search warrant by private individuals held admissible, since constitutional provision against search and seizure without warrant is applicable only to governmental agencies. Colburn v. State, 175 Miss. 704, 166 So. 920, 1936 Miss. LEXIS 45 (Miss. 1936).

Constitution prohibiting unlawful searches and seizures is inapplicable to unlawful or unauthorized acts of trespass of private citizens as to competency of their evidence. Davis v. State, 175 Miss. 324, 166 So. 761, 1936 Miss. LEXIS 40 (Miss. 1936).

Where private citizen pursued defendant who had picked up suitcase from among weeds and, after defendant had escaped, notified town marshal that defendant was thought to have had whisky, evidence that suitcase permanently abandoned by defendant in tall grass contained whisky held admissible, notwithstanding absence of search warrant. Davis v. State, 175 Miss. 324, 166 So. 761, 1936 Miss. LEXIS 40 (Miss. 1936).

Broadly speaking, Federal officers, being entitled to act in States, are also “State officers” and cannot be deemed private individuals in making search violating State Constitution, and hence evidence obtained by such search is inadmissible in State courts. Little v. State, 171 Miss. 818, 159 So. 103, 1935 Miss. LEXIS 26 (Miss. 1935).

Obtaining evidence unlawfully by search or arrest by officer without authority of law is compelling defendant to testify against himself. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Evidence of intoxicating liquor procured when sheriff dipped handkerchief in liquor on ground which came from bottles broken by defendant after running away from marshal ordering defendant to halt, without seeing him with any liquor, held illegally obtained, and was inadmissible. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Persons not owners of premises searched could not complain of evidence obtained against them by illegal search. Polk v. State, 167 Miss. 506, 142 So. 480, 1932 Miss. LEXIS 197 (Miss. 1932).

Evidence obtained through search by private individual of effects of accused’s person held not unlawful, so as to render evidence obtained inadmissible. Cutrer v. State, 161 Miss. 710, 138 So. 343, 1931 Miss. LEXIS 310 (Miss. 1931).

Officer discovering liquor law violation by overhearing conversation while secreted on public road right of way held not “trespasser,” and evidence obtained was admissible. Goode v. State, 158 Miss. 616, 131 So. 106, 1930 Miss. LEXIS 103 (Miss. 1930).

Search of premises leased by defendant and not described in warrant held unlawful, and evidence obtained not admissible; “possession” defined. Planters' Lumber Co. v. Griffin Chapel M. E. Church, 157 Miss. 714, 124 So. 479, 1929 Miss. LEXIS 368 (Miss. 1929).

An officer cannot insert in the affidavit and warrant after the search is made the name of the person searched, and evidence thus obtained is inadmissible. Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555, 1928 Miss. LEXIS 41 (Miss. 1928).

The question of competency of evidence on the ground that it was obtained by illegal search and seizure of an automobile and the question of the sufficiency of evidence to constitute probable cause must be objected to when offered, and is a matter for the trial court, and not the officer to determine, and if not objected to the incompetency thereof will not be considered. Jordan v. State, 111 So. 860 (Miss. 1927).

Evidence obtained by search, where affidavit insufficiently described the place as the estate of the deceased person was inadmissible. Parkinson v. State, 145 Miss. 237, 110 So. 513, 1926 Miss. LEXIS 21 (Miss. 1926).

The admission of incompetent evidence obtained from an unlawful search where defendant made no specific objections nor motion to exclude, but obtained instruction eliminating testimony from jury’s consideration, is not reversible error. Bailey v. State, 143 Miss. 210, 108 So. 497, 1926 Miss. LEXIS 257 (Miss. 1926).

It must appear that property searched without a search warrant was owned by, or in possession of, the defendant, before evidence thereof thus obtained is inadmissible. Lovern v. State, 140 Miss. 635, 105 So. 759, 1925 Miss. LEXIS 299 (Miss. 1925).

Evidence procured unlawfully by an officer is inadmissible in evidence. Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922); Williams v. State, 129 Miss. 469, 92 So. 584, 1922 Miss. LEXIS 64 (Miss. 1922); Butler v. State, 129 Miss. 778, 93 So. 3, 1922 Miss. LEXIS 88 (Miss. 1922); State v. Patterson, 130 Miss. 680, 95 So. 96, 1922 Miss. LEXIS 260 (Miss. 1922); Strangi v. State, 134 Miss. 31, 98 So. 340, 1923 Miss. LEXIS 235 (Miss. 1923); Spears v. State, 99 So. 361 (Miss. 1924); Matthews v. State, 134 Miss. 807, 100 So. 18, 1924 Miss. LEXIS 327 (Miss. 1924); Morton v. State, 136 Miss. 284, 101 So. 379, 1924 Miss. LEXIS 129 (Miss. 1924); Deaton v. State, 137 Miss. 164, 102 So. 175, 1924 Miss. LEXIS 213 (Miss. 1924); Borders v. State, 138 Miss. 788, 104 So. 145, 1925 Miss. LEXIS 99 (Miss. 1925); Orick v. State, 140 Miss. 184, 105 So. 465, 1925 Miss. LEXIS 250 (Miss. 1925); Harrell v. State, 140 Miss. 737, 106 So. 268, 1925 Miss. LEXIS 309 (Miss. 1925).

25. – – Admissions of defendant, warrantless searches and seizures.

Where an officer was responding to a dispatch regarding a bank robbery, he saw defendant crouched behind cars outside a market; the officer had reasonable suspicion to believe that defendant was a shoplifter and acted reasonably in stopping to investigate, and defendant was not entitled to suppress the statements he made when the officer stopped him because the stop was not illegal. Wilson v. State, 935 So. 2d 945, 2006 Miss. LEXIS 303 (Miss. 2006), cert. denied, 549 U.S. 1348, 127 S. Ct. 2047, 167 L. Ed. 2d 780, 2007 U.S. LEXIS 4088 (U.S. 2007).

Where a person states to the officer before arrest or search that certain kegs in automobile in the presence of the officer contain whisky, he may be arrested without a warrant and the whisky seized without a warrant. Williamson v. State, 140 Miss. 841, 105 So. 479, 1925 Miss. LEXIS 314 (Miss. 1925).

26. – – Firefighters, warrantless searches and seizures.

The Fourth Amendment to the Federal Constitution and Article 3, § 23 of the Mississippi Constitution apply to volunteer firefighters who conduct a warrantless search of fire-damaged premises. Rose v. State, 586 So. 2d 746, 1991 Miss. LEXIS 527 (Miss. 1991).

27. – – Inspections, warrantless searches and seizures.

Where a county sought to enter landowners’ property in order to determine whether they were in violation of the county flood plain ordinance – and claimed that it was conducting a criminal investigation on the property – the county was required to obtain a search warrant supported by probable cause because absent consent or some recognized exception or exigency for which a warrant was not required, warrantless entries were illegal. Blakeney v. Warren County, 973 So. 2d 1037, 2008 Miss. App. LEXIS 63 (Miss. Ct. App. 2008).

Search and seizure of diseased hog meat found in accused’s restaurant by city health officers without a search warrant, upon advance information that the health laws had been, or were about to be, violated, did not constitute a violation of the constitutional prohibitions against unreasonable searches and seizures. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

28. – – Abandoned property, warrantless searches and seizures.

Circuit court did not err in admitting into evidence a firearm and marijuana found in the street because defendant surrendered his Fourth Amendment protections as to those items when he abandoned them; defendant was not considered arrested under the Fourth Amendment until he was captured by the chasing Mississippi Bureau of Narcotic agents and placed into custody because he was in no way restrained during his flight, and thus, no arrest occurred within the confines of the Fourth Amendment. Cole v. State, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Fourth Amendment does not prohibit warrantless search and seizure of garbage which has been left for collection on curb outside of home, and thus rights of accused narcotics traffickers were not violated where police investigators obtained bagged garbage left by accused on curb from garbage collector who picked them up at fixed collection time. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30, 1988 U.S. LEXIS 2279 (U.S. 1988).

In a burglary prosecution, where a police officer testified that he observed the defendant throw or drop three bottles at his feet, even though the officer did not have probable cause at the time to arrest the defendant or to search him, once the bottles were abandoned by the defendant, their possession by the officers did not stem from a search, and the defendant was in no position to protest the possession on the basis of constitutional provisions as to searches. Branning v. State, 222 So. 2d 667, 1969 Miss. LEXIS 1539 (Miss. 1969).

29. – – Arrest, warrantless searches and seizures.

Because the pursuit, seizure, and ultimate arrest of defendant were legal, it necessarily followed that the additional marijuana found on his person was lawfully obtained; therefore, it was not fruit of the poisonous tree. Cole v. State, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Mississippi Bureau of Narcotic agents’ decision to conduct a Terry frisk of defendant’s person was justified, and thus, defendant’s subsequent, unprovoked flight from his lawful, temporary detention provided the agents with further reasonable suspicion to pursue him, and ultimately, the probable cause necessary to effectuate an arrest. Cole v. State, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Scope of investigatory stop was not exceeded by Mississippi Bureau of Narcotic agents’ conduct because the agents discovered a firearm, and thus, they were justified in their decision to conduct a Terry frisk of defendant person in order to determine whether he possessed a weapon that could be used to assault the agents. Cole v. State, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Mississippi Bureau of Narcotic agents’ investigatory stop was lawful under Terry, both at its inception and in its scope, because the agents were entitled to conduct a carefully limited search of the outer clothing of defendant in an attempt to discover weapons the could be used toassault them; defendant was not under arrest because he was not physically placed under arrest and did not personally submit to any show of authority. Cole v. State, — So.3d —, 2018 Miss. LEXIS 54 (Miss. Feb. 1, 2018).

Defendant was not illegally arrested because while he was detained, police officers gained consent to search his girlfriend’s apartment and found the drugs defendant was trying to destroy, along with the other incriminating items in the apartment; at that point, the officers probable cause to arrest defendant, and based on that arrest, the officers were permitted to search defendant’s pockets. McCoy v. State, 160 So.3d 705, 2014 Miss. App. LEXIS 594 (Miss. Ct. App. 2014), cert. dismissed, 160 So.3d 704, 2015 Miss. LEXIS 362 (Miss. 2015).

Search and seizure of defendant’s truck and the cocaine contained therein were proper as incident to a lawful custodial arrest because defendant was lawfully arrested based on probable cause and the cocaine found inside his vehicle was clearly within the permissible scope of the search, i.e. a container located in the passenger compartment of the vehicle. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

Checkpoint for the purpose of valid license checking was constitutional; where defendant was stopped, arrested for driving with a suspended license, and had his car searched, his constitutional rights were not violated as defendant was not singled out and the search was conducted incident to a lawful arrest as the deputy had probable cause to believe defendant was driving without a proper license. Johnston v. State, 853 So. 2d 144, 2003 Miss. App. LEXIS 503 (Miss. Ct. App. 2003).

Police radio broadcast describing rape suspect, which led officer to look for defendant, established probable cause for arrest and reasonable suspicion justifying stop of defendant’s vehicle, and validating defendant’s subsequent consent to search of vehicle, rendering rifle and flashlight recovered during vehicle search admissible. Ellis v. State, 667 So. 2d 599, 1995 Miss. LEXIS 596 (Miss. 1995).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid as a search incident to an arrest for driving with a suspended license where the police officer searched the car after the defendant had been frisked, handcuffed and placed in the back seat of the officer’s patrol car, and therefore the officer could have had no reasonable fear that the defendant might have had a weapon or could have been in a position to destroy incriminating evidence from the crime which led to his arrest. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

The search of a defendant’s person incident to his arrest for carrying a concealed weapon was reasonable within the confines of the Fourth Amendment, even though the search took place after the defendant was taken to the county jail rather than at the time and place of the arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

The search of a defendant’s jacket incident to his arrest for carrying a concealed weapon was reasonable within the meaning of the Fourth Amendment where the arresting officers saw the defendant take the jacket off and place it on a guard rail beside him, since the jacket was in the area within the defendant’s immediate control at the time of his arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

A defendant’s arrest for driving while intoxicated was legal, and therefore the subsequent intoxilyzer test was not tainted, even though the arresting officer did not observe the defendant driving, where the defendant admitted to the arresting officer that he had been driving an automobile which was involved in an accident, and the defendant was publicly intoxicated in the presence of the officer and others in violation of §97-29-47. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

Arrest of defendant at his home without arrest warrant was proper because it was supported by probable cause, where defendant was arrested for house burglary upon seizure from his room of 2 guns, serial numbers of which matched 2 weapons reported stolen from nearby homes, and officers had gone into his home pursuant to valid search warrant. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Warrantless arrest of murder suspect is based upon probable cause where suspect admits having passed marked $2 bill which was stolen during murder-robbery and suspect matches description of person who passed bill; even if arrest were illegal, statement given by suspect following arrest is admissible at trial where intervening circumstances and nonexistence of flagrant violation by police indicate that statement is voluntarily given. Swanier v. State, 473 So. 2d 180, 1985 Miss. LEXIS 2155 (Miss. 1985).

In defendant’s trial for murder of a police officer which occurred during a “shoot-out” at a dwelling house, the warrantless search of the house immediately following defendant’s arrest was a lawful search instant to an arrest and the items therein seized were admissible into evidence; where the search incident to the arrest was delayed by the removal of bomb devices discovered during the initial search, the final portion of the search after reentry was merely a continuation of the original search and was not unreasonable, and the items therein seized were also admissible into evidence. Norman v. State, 302 So. 2d 254, 1974 Miss. LEXIS 1416 (Miss. 1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453, 1975 U.S. LEXIS 1588 (U.S. 1975).

The arrest, in the defendant’s apartment, of a person whom the police incorrectly believed to be the defendant, was made in good faith where the police had probable cause to arrest the defendant and where the person arrested fit the description which they had of the defendant, and a search of the apartment incident to the arrest and the seizure of articles subsequently admitted as evidence against the defendant in a robbery prosecution were valid. Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484, 1971 U.S. LEXIS 59 (U.S. 1971).

Where arresting officers were informed over the police radio that someone described by an informer had attempted to make a sale of LSD, and the automobile in which such person was riding was described and the description met the description of an automobile in which defendants were riding when arrested, the information given the officers by radio constituted sufficient probable cause to justify an arrest, and the warrantless search of the automobile was not illegal. Hamburg v. State, 248 So. 2d 430, 1971 Miss. LEXIS 1466 (Miss. 1971).

Empty cartridge hulls, taken from the cab of the defendant’s truck after a search without a warrant conducted after the defendant’s arrest in a nearby cafe, were products of an illegal search and seizure, and objection to their admission should have been sustained. Kent v. State, 241 So. 2d 657, 1970 Miss. LEXIS 1353 (Miss. 1970).

A rifle taken without a warrant from the cab of the defendant’s truck was not procured by an unlawful search and seizure, where the defendant had been validly arrested, the rifle was observable through the truck windows, and the sheriff testified that he knew from observation the caliber and type of the rifle and who made it. Kent v. State, 241 So. 2d 657, 1970 Miss. LEXIS 1353 (Miss. 1970).

Where police officers arrested a defendant for driving while under the influence of intoxicants, and the arrest took place in a county where intoxicants were outlawed and considered contraband, the officers’ search of the interior of the defendant’s automobile, including a briefcase which lay upon its rear seat and in which drugs were concealed, was not unreasonable. McMillian v. Patton, 235 So. 2d 704, 1970 Miss. LEXIS 1461 (Miss. 1970).

Where a defendant is arrested for the possession of intoxicating liquors transported by him, following a search and seizure without a warrant, his counsel is entitled to know who gave the information that he would be transporting the liquors in a particular automobile at a particular place and time, together with a full disclosure of all of the facts upon which the officer acted, in order that the issue may be presented of whether there was probable cause. Terry v. State, 252 Miss. 479, 173 So. 2d 889, 1965 Miss. LEXIS 1123 (Miss. 1965), overruled, Strode v. State, 231 So. 2d 779, 1970 Miss. LEXIS 1605 (Miss. 1970).

Peace officers had probable cause to arrest defendants, and evidence obtained as a result of search of their persons subsequent to the arrest was admissible in evidence, where one of the officers, to whom the defendants had attempted to sell a new record player at a cheap price, had observed burglary tools in an automobile operated by the defendants. Corn v. State, 250 Miss. 157, 164 So. 2d 777, 1964 Miss. LEXIS 452 (Miss. 1964).

Sheriff entering one’s private backyard without a warrant and arresting owner for possession of intoxicating liquor was a trespasser making unlawful arrest. Hartfield v. State, 209 Miss. 787, 48 So. 2d 507, 1950 Miss. LEXIS 443 (Miss. 1950).

Where the sheriff and deputy sheriff invaded the premises for the purpose of making an unlawful arrest of person other than the owner, without a search warrant, this was a violation of this section. Pettis v. State, 209 Miss. 726, 48 So. 2d 355, 1950 Miss. LEXIS 433 (Miss. 1950).

Where the sheriff and deputy sheriff were unlawful in arresting a person without a warrant for an alleged misdemeanor not committed in their presence and also were unlawful in invading the home of the owner, the acts of the owner in resisting entry were not unlawful. Pettis v. State, 209 Miss. 726, 48 So. 2d 355, 1950 Miss. LEXIS 433 (Miss. 1950).

The action of a sheriff who after spying a cow and truck on highway one-quarter of a mile ahead, overtook the truck, asked defendant occupants if they had a bill of sale to cattle therein, and upon receiving negative answer and unsatisfactory explanation as to the identification of alleged seller, and the presence of cattle, took the defendants into custody, did not constitute an unlawful search and seizure. Quick v. Holcomb, 47 So. 2d 852 (Miss. 1950).

Finding of liquor in purse on rear seat of car by officer making search of automobile under search warrant does not authorize officer to arrest husband of owner of purse for unlawful possession of liquor without warrant, and arrest cannot be vindicated by finding, after arrest, of liquor in possession of defendant husband. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Finding of liquor in purse on rear seat of car, belonging to woman in car, by officer making search of automobile under search warrant does not authorize officer to arrest without warrant former passenger who has left car and entered his own place of business and subsequent search of passenger’s person is unlawful. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

Officer was authorized to arrest defendant for unlawful possession of liquor without warrant only if misdemeanor was being knowingly committed in his presence. Kelly v. State, 43 So. 2d 383 (Miss. 1949).

City marshal held unauthorized to arrest defendant not seen with any liquor when he was called to halt. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346, 1933 Miss. LEXIS 161 (Miss. 1933).

Officer may make arrest for misdemeanor committed in his presence; he may arrest felon when having probable cause to believe person arrested committed crime. Bird v. State, 154 Miss. 493, 122 So. 539, 1929 Miss. LEXIS 154 (Miss. 1929).

Officer may, as incident to arrest, search person for arms and evidence tending to establish commission of crime; admission of hacksaw and other articles taken from defendant at time of arrest for burglary held not erroneous. Bird v. State, 154 Miss. 493, 122 So. 539, 1929 Miss. LEXIS 154 (Miss. 1929).

Officers held to have reasonable ground to believe felony was about to be committed, authorizing arrest without warrant and seizure and use of evidence. Mapp v. State, 152 Miss. 298, 120 So. 170, 1929 Miss. LEXIS 203 (Miss. 1929).

Under this section an officer cannot arrest a person without a warrant for a mere misdemeanor not committed in the officer’s presence. Orick v. State, 140 Miss. 184, 105 So. 465, 1925 Miss. LEXIS 250 (Miss. 1925).

Notwithstanding the provision of this section an officer may enter any premises wherein he has reason to believe and does believe there is concealed a criminal for whose arrest he holds a warrant, or whom he has authority to arrest without a warrant, and a search by an officer in a reasonably necessary manner merely to arrest a person does not render such officer liable to the owner although the officer had no search warrant. Monette v. Toney, 119 Miss. 846, 81 So. 593, 1919 Miss. LEXIS 183 (Miss. 1919).

30. – – Motor vehicle searches, warrantless searches and seizures.

Defendant was not entitled to suppress the cocaine found in an automobile because defendant was a mere passenger in the automobile and, as such, lacked standing to challenge the search of the automobile as defendant had no expectation of privacy. Holloway v. State, 282 So.3d 537, 2019 Miss. App. LEXIS 301 (Miss. Ct. App. 2019).

Defendant’s vehicle was stopped lawfully and an officer had probable cause to conduct a walk-around inspection of the vehicle because police were “looking for a vehicle as a murder weapon,” witnesses identified the victim as being with defendant, police arrested defendant on an outstanding warrant, and an officer noticed something hanging from the vehicle that was later determined to be the victim’s skin. Galloway v. State, 122 So.3d 614, 2013 Miss. LEXIS 328 (Miss. 2013), cert. denied, 572 U.S. 1134, 134 S. Ct. 2661, 189 L. Ed. 2d 209, 2014 U.S. LEXIS 3685 (U.S. 2014).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove, when an informant told officers the subject of outstanding arrest warrants would be driving a similar vehicle, because the good-faith exception to the exclusionary rule did not apply as (1) an officer said the officer did not know the identity of the subject of the arrest warrants, so the officer could not reasonably execute the warrants without verifying the suspect’s identity, and (2) the officer’s misinterpretation of constitutional mandates, contradictions between the officer’s arrest report and testimony, and the officer’s failure to resolve the suspect’s identity made the exception inapplicable. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove because it was clear error to find that officers who stopped the vehicle were allowed to rely on arrest warrants for another person who, an informant told officers, would be driving a similar vehicle, as the officers’ observations and the informant’s information gave the officers no reasonable suspicion since the officers acted, without independent investigation, on the caller’s vague description of the car. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove because it was clear error to find that officers who stopped the vehicle were allowed to rely on arrest warrants for another person who, an informant told officers, would be driving a similar vehicle, as (1) the subject of the warrants was not present, and (2) nothing showed the officers knew the description of the arrest warrants’ subject’s car, so, absent further independent investigation, the officers could only stop defendant to clarify defendant’s identity, but the stop exceeded this permissible scope. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

Defendants’ convictions for possession of more than five kilograms of marijuana were appropriate because, under Miss. Code Ann. §63-3-1213, defendants’ vehicle was seen driving in a careless or imprudent manner and the deputy had the authority to stop them. When defendants acted nervous, the deputy’s retrieval of a drug-detecting dog was appropriate and the drug-detecting dog’s positive alerts created probable cause for the deputy to search the trunk of the rental car. Shelton v. State, 45 So.3d 1203, 2010 Miss. App. LEXIS 141 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 548 (Miss. 2010), cert. denied, 2010 Miss. LEXIS 553 (Miss. Oct. 21, 2010).

Where several witnesses testified that the shooter left the murder scene in defendant’s car, which the police found at defendant’s home shortly after the murder, probable cause existed for a valid warrantless search of defendant’s automobile. Jordan v. State, 995 So. 2d 94, 2008 Miss. LEXIS 489 (Miss. 2008).

Where an officer heard loud music from defendant’s vehicle and saw him cross over the center line, he had probable cause to stop the vehicle; the officer’s inability to cite the noise ordinance did not affect the probable cause finding. Loveless v. City of Booneville, 972 So. 2d 723, 2007 Miss. App. LEXIS 400 (Miss. Ct. App. 2007), cert. dismissed, 973 So. 2d 244, 2008 Miss. LEXIS 2 (Miss. 2008).

In a statutory rape case, defendant was unable to challenge the manner in which police obtained a pair of child’s panties from his vehicle since the issue was not raised below. Roles v. State, 952 So. 2d 1043, 2007 Miss. App. LEXIS 180 (Miss. Ct. App. 2007).

Defendant’s seizure at a roadblock was constitutional because its primary purpose was to check for driver’s licenses and insurance cards and because the officers were consistently and indiscriminately stopping every vehicle coming through the roadblock. McLendon v. State, 945 So. 2d 372, 2006 Miss. LEXIS 548 (Miss. 2006), cert. denied, 551 U.S. 1145, 127 S. Ct. 3008, 168 L. Ed. 2d 727, 2007 U.S. LEXIS 8338 (U.S. 2007).

Officers had reasonable suspicion to stop defendant’s vehicle because they received information from an informant that she had been purchasing marijuana from an individual she knew as “Trouble,” further investigation revealed that “Trouble” was defendant, the officers asked the informant to arrange to buy marijuana from defendant, and as defendant’s vehicle, which matched exactly the description of “Trouble’s” car given by the informant, approached the abandoned bridge, it was stopped by an officer who recognized defendant and knew that he was on probation for a prior conviction. Carlisle v. State, 936 So. 2d 415, 2006 Miss. App. LEXIS 481 (Miss. Ct. App. 2006).

During a traffic stop, defendant was arrested for driving without a license, no taillights, and possession of beer by a minor; his car was searched by police. The circuit court correctly admitted evidence of marijuana found in the vehicle, because the search fit squarely into the automobile exception. Jim v. State, 911 So. 2d 658, 2005 Miss. App. LEXIS 665 (Miss. Ct. App. 2005).

There was sufficient probable cause to search defendant’s vehicle after an accident and to seize beer in the vehicle because the smell of beer on defendant’s breath, coupled with his impaired coordination and his statement that he had consumed a good bit of alcohol earlier in the day, constituted probable cause to seize beer in plain view. Comby v. State, 901 So. 2d 1282, 2004 Miss. App. LEXIS 1153 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 313 (Miss. 2005).

Court erred in denying defendant’s motion to suppress evidence of steroids found in a search of his vehicle during a traffic stop because driving in the left-hand lane of a four-lane highway did not violate state law. Because the stop was not proper, the court erred in not suppressing all contraband that stemmed from the stop. Couldery v. State, 890 So. 2d 959, 2004 Miss. App. LEXIS 1155 (Miss. Ct. App. 2004).

A police officer lawfully stopped the defendant’s motor vehicle on the basis of a tip that it was being operated in a reckless manner, notwithstanding that reckless driving is a misdemeanor and that the officer did not personally observe the vehicle being driven in a reckless manner. Floyd v. City of Crystal Springs, 749 So. 2d 110, 1999 Miss. LEXIS 362 (Miss. 1999).

The warrantless search of a boat pursuant to §49-1-43 was proper under the vehicle exception to the warrant requirement, notwithstanding a three hour delay between the time an officer saw illegal fishing on the boat and the actual search. One 1992 Toyota 4-Runner v. State ex rel. Mississippi Dep't of Wildlife Fisheries & Parks, 721 So. 2d 609, 1998 Mi