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KENNIE E. MIDDLETON v. JAMES CHARLES EVERS

NOVEMBER 12, 1987

KENNIE E. MIDDLETON
v.
JAMES CHARLES EVERS



BEFORE ROY NOBLE LEE, ROBERTSON and GRIFFIN

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Kennie E. Middleton has appealed from a judgment of the Circuit Court of Jefferson County, entered upon a jury verdict, holding that James Charles Evers is the duly elected Mayor of the Town of Fayette, Mississippi, and is entitled to a commission from the Governor of the State of Mississippi entitling him to hold the office. Middleton assigns nine (9) errors, which he asserts were committed by the lower court during the trial, and contends that, if it appears to this Court the will of the voters cannot be ascertained, another special election should be ordered, or, the case should be remanded to the lower court for a new trial. Evers has cross-appealed as to three rulings of the lower court, which were objectionable to him.

The Democratic municipal primary election for the office of Mayor, Town of Fayette, Mississippi, was held May 14, 1985. A run-off election was held between appellant Middleton and appellee Evers on May 21, 1985, and it was determined that appellant was the winner by a margin of eleven (11) legal votes.

 On June 3, 1985, appellee filed a petition with the Fayette Democratic Executive Committee contesting the result of the election and, on June 10, 1985, the executive committee, without notifying contestant Evers, met and determined that the Middleton win should be upheld. Thereupon, Evers filed a petition for judicial review,

 alleging numerous irregularities in the second primary election.

 Pursuant to MCA 23-3-47 (1972), a special tribunal was convened, with Circuit Judge Joe G. Moss presiding over the contest. On July 15, 1985, the contest hearing commenced before the special tribunal, and on July 19, 1985, the tribunal held that a" substantial departure from statutory requirements "for the holding of elections had occurred during the second primary, and it was recommended that the second election be set aside and a special election be ordered by the Governor.

 On August 20, 1985, a special election was held, and, after tabulation of the votes, Middleton was again determined to be the winner. The official results of the election were: Middleton - 483 votes; Evers - 475 votes.

 Subsequently, Evers filed a Petition to Contest Election in the Circuit Court of Jefferson County, alleging certain irregularities in the election. This contest came to trial on October 14, 1985, with Honorable Edwin E. Benoist, Jr., presiding, and, after hearing the testimony and evidence, which included the testimony of many of the contested voters, the Circuit Clerk of Jefferson County and two expert witnesses, the jury unanimously found that all contested ballots should have been counted, and determined that Evers received the greatest number of legal votes cast in the August 20, 1985, special mayoral election. Pursuant to MCA 23-5-187 (1972), the Circuit Court Clerk issued a certificate to the Governor of the State of Mississippi, stating the jury's determination and qualifying Evers to be commissioned by the Governor to the office of Mayor of the Town of Fayette, Jefferson County, Mississippi.

 I.

 THE TRIAL JUDGE WAS BIASED AND SUCH BIAS PREJUDICED THE APPELLANT.

 The basis of this assigned error is a statement made by the trial judge to appellant's attorney following a discussion between the judge and a potential juror as to whether the juror would be qualified to serve, since he had been convicted of a felony. An individual seeing and hearing the conversation reported same to the appellant's attorney, who inquired of the judge concerning the incident. The judge referred to the person reporting the matter to appellant's attorney as" Your little pimp. "The attorney made a motion for mistrial because of the incident, and, on this appeal, he contends that, as a result of the trial judge's attitude, he

 did not receive a fair trial.

 An occasional display of irritation, usually regretted as soon as made, does not suffice to show personal bias or prejudice, whether the irritation was justified or not. See Walker v. Bishop, 408 F.2d 1378, 1381 (8th Cir. 1969); Rosen v. Sugarman, 357 F.2d 794, 798 (2d Cir. 1966).

 Cases cited by appellant, such as Smith v. State, 238 S.E.2d 116 (Ga. 1977), and Hulme v. Woleslagel, 493 P.2d 541 (Kan. 1972), are distinguished from the case at bar.

 We have carefully examined the record in this case and do not find any conduct or statement, other than that referred to hereinabove, made by the judge during the trial, which could be interpreted to show partiality, prejudice or unfairness, and we are convinced that the trial below was conducted fairly and even handedly by the trial judge as to both parties. Therefore, the Assignment I is rejected.

 II.

 THE JURY INSTRUCTIONS FAILED TO CORRECTLY STATE THE LAW AND SERVED ONLY TO CONFUSE THE JURY.

 We find it necessary to address only the Instruction P-2 granted for the appellee, which follows:

 In order for a person to have been eligible to vote in the subject special election he or she must have been registered for a period of at least thirty (30) days prior to the said election, and have been a resident of the precinct in which he voted. A person is a resident of the precinct in which he voted, if he intended to permanently reside in such precinct, and this is true whether or not he was physically present in the precinct or not. A person will keep his residence, once it is established, until it is clearly shown that he has abandoned such residence.

 Therefore, if you believe from a preponderance of the evidence, that any voter intended to permanently reside in Fayette, Mississippi, or that he/she had formerly resided in Fayette, Mississippi but never abandoned his/her permanent residence, then you must count his/her ballot.

 Following the Instruction P-2, the court granted Instruction D-8:

 The court instructs the jury that a person's residence is where he or she has his or her true, fixed, permanent home and principal establishment, and to which whenever he or she is absent, he or she has the intention of returning. The court further instructs the jury that when a person acquires another residence and removes him or herself to the other residence with intent to remain there, he or she has then changed his or her residence.

 The appellant contends that Instruction P-2 did not adequately state the law and that it was confusing to the jury. Appellee concedes that the instruction was erroneous but that, considering all of the instructions together, particularly P-2 followed by D-8, they correctly announced the law and removed any inaccuracy and confusion. The rule is well settled that instructions to the jury are to be taken collectively and read and considered together, and if, in reading the instructions together they adequately and properly instruct the jury on the issues, any individual instruction given to the jury will not constitute reversible error. Detroit Marine Engineering v. McRee, 510 So.2d ...


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