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JOE SAIK v. STATE OF MISSISSIPPI

JULY 17, 1985

JOE SAIK
v.
STATE OF MISSISSIPPI, EX REL. MISSISSIPPI BUREAU OF NARCOTICS, ET AL.



BEFORE ROY NOBLE LEE, HAWKINS and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

On August 17, 1982, the State of Mississippi, ex rel. Mississippi Bureau of Narcotics, filed a petition for the forfeiture of a 1980 red two-door Chevrolet Corvette, the record title being vested in Joe Saik. The Circuit Court of the First Judicial District of Hinds County, Mississippi, heard the cause on petition for forfeiture, answer of Joe Saik, and oral and documentary evidence, and entered an order forfeiting the vehicle to the Mississippi Bureau of Narcotics. Saik has appealed to this Court assigning the following error in the trial below:

The lower court was manifestly in error in ordering forfeiture of the red Corvette contrary to law and against the overwhelming weight of the evidence. Facts

 The facts of this case are largely uncontradicted. On February 4, 1982, Joe Saik, who is Joe A. Saik and son of the appellant, Joe E. Saik, transported, in the red Chevrolet Corvette automobile, one (1) pound of marijuana to the parking lot of a Jackson, Mississippi, convenience store, where he sold the marijuana to undercover agents of the Mississippi Bureau of Narcotics. Saik was not arrested at that time by the narcotics agents, in order that they could continue an

 ongoing investigation and surveillance to discover other violators. Joe A. Saik was twenty-two (22) years of age and resided at a house on 3537 Capitol Street, Jackson, Mississippi, the residence being owned by his mother and father.

 Joe A. Saik was indicted in July, 1982, for the February 4 drug sale and the Chevrolet Corvette was seized by MBN agents July 26, 1982, from Joe A. Saik at the 3537 Capitol Street residence. He removed the keys from his pocket and gave them to an MBN officer. He was allowed to remove personal belongings from the automobile, viz, stereo tapes. Appellant, Joe E. Saik, accompanied his son, Joe A. Saik, to the sheriff's office. According to MBN agent Steve Campbell, appellant made a statement that he had bought the car for his son, even though the car was in his own name and that appellant was making the payments on the car.

 The evidence is undisputed that Joe A. Saik sold one pound of marijuana to MBN agents on February 4, 1982, and that on said occasion, he was driving the Chevrolet Corvette in which the marijuana was being transported. The MBN agent testified that he had seen the Corvette parked at the Capitol Street residence three or four days a week. Another agent testified that after February 4, 1982, he observed the Corvette at the West Capitol address two days a week up until Saik was arrested, but had never seen the vehicle driven. A third agent testified that he had seen the Corvette at the Capitol Street residence five or six times, but had never observed anyone driving it. A fourth agent testified that he had observed the Corvette at the West Capitol Street address at least five times.

 Appellant testified that he resides at 4515 Ridgewood Road, Jackson, Mississippi, and formerly lived at 3537 West Capitol, which property was owned by his wife; he owns the 1980 Chevrolet Corvette automobile, vin: 1Z878AS419883, involved in this forfeiture proceeding; purchased the vehicle for himself and paid $10,500 for it, and financed $8,000 with the Postal Employees Credit Union; he has made all the payments on the indebtedness and that there was a lien of $4,773.55 in favor of Mississippi Postal Employees Credit Union at the time of the seizure; *fn1 on February 2, 1982, he had loaned the Corvette to his son, Tommy Saik, on his birthday, and on February 4, 1982, the vehicle was supposed to be at appellant's Ridgewood Road home; Joe A. Saik had no authority to drive the Corvette without appellant's permission and he had no such permission to use the car on February 4, 1982; the tag for the vehicle was purchased by him and registered at the Ridgewood Road address; insurance on the

 vehicle was issued through Nationwide Insurance Company, with loss payable clause to the Postal Employees Credit Union, and is issued in his name alone; the only time Joe A. Saik had a key to the Corvette was when appellant let him borrow it to ride to work; appellant had no knowledge of any illegal trafficking in drugs by Joe A. Saik; and his son has no right, title, claim or interest in the vehicle. The title certificate of the Corvette and the security instrument were introduced in evidence. *fn2

 Law

 Mississippi Code Annotated 41-29-153 (Supp. 1984), is the statute controlling this case. It provides:

 (a) The following are subject to forfeiture:

 * * *

 (4) All conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in paragraph (a) or (2) of this section, [controlled ...


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