IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-00315-SCT IN THE MATTER OF THE ESTATE OF JOAN ARMSTRONG, DECEASED: JOHN R. ARMSTRONG

v. TERRY L. ARMSTRONG, EXECUTOR DATE OF JUDGMENT: 02/12/2014 TRIAL JUDGE: HON. JAYE A. BRADLEY TRIAL COURT ATTORNEYS: E. FOLEY RANSON STACIE E. ZORN COURT FROM W HICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: STACIE ELIZABETH ZORN ATTORNEY FOR APPELLEE: E. FOLEY RANSON NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES DISPOSITION: REVERSED AND REMANDED - 07/30/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND COLEMAN, JJ. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. This is a case of f irst im pression regarding the i n t e rp r e t a t i on of Mississippi Code Section 91-5-33, known as the “Slay er Statute, ” which s tates that any one who “wilf ully cause[ s] or procure[ s]” the death of another s hall not inherit f rom his or her victim

. John R. Arm strong, a severely m entally ill m an, killed Joan A rm strong, his eighty -y ear-old m other. This f act is not disputed b y any party

. The Circuit Court of Jackson County determ ined that John was not com

petent to stand trial f

or the m urder of Joan, and John was c omm itted to the
state h ospital at W hitf

ield, where he resides today

. Based on the Slay er Statute, John’s f oursiblings r equested that the devise to John in their m other’s will be declared void. T h e

chancellor granted their m otion, and John, thr o u g h his court-appointed guardian ad litem , appeals the ruling. Finding that a hearing to determ ine John’s m ental s tatus a t the tim e of the

m urder is necessary prior to gr a n t i n g the m o tion, we reverse and rem and f or a hearing consistent with this opinion.

STATEMENT OF FACTS AND PROCEEDINGS BELOW ¶2. On August 7, 2010, Joan Arm strong was contacted b y several of h er son’s neighbors, who were worried a

bout their children’s saf

ety , af ter they n oticed John acting erratically

. John h a d a long history of serious m ental illness, having been treated since 1989. 1 Joan picked up John at his apartm ent and brought him back to her condom inium

. Joan had invited

som e of her f

riends to com e over to the con d o m i n i u m swimm ing pool. W orried that his

m other was leaving him , John went upstairs an d retrieved a crochet-covered brick, which he used to hit Joan r epeatedly over the h e a d. He then m oved h er body to the bathroom and repeatedly stabbed h er. H e inf orm e d law e nf

o rcem ent of

f icers f r om the O cean Springs Police Departm ent (OSPD) that he was preparing her body to be buried by

bleeding her. ¶3. Joan’s death certif icate listed her cause of death a s “ contusion of brain with subdural and s ubarachnoid hem orrhage [ due to] m ultiple b lunt f

orce injurie s of head.” J oan also sustained m

u ltiple s tab wounds and rib f ractures. Joan’s death was listed as a hom icide due to the m ultiple strikes to her head.

1 Jo h n su f f ers f ro m d elu sio n s an d h allu cin atio n s an d h as b e e n di a gnosed as a p aran o id sch izo p h ren ic. 2¶4. John adm itted to the OSPD that he had killed J oan. His conf e ssion was overheard by his sister-in-law, Lee. John was arrested and subsequently indicted f

o r Joan’s m

urder. ¶5. The circuit court ordered that John receive a m ental evaluation and treatm ent f rom the
state hospital a t W hitf

ield, t o d e t e r mi n e if h e was com petent to s tand trial. Dr. Reb McMichael, Chief of Forensic Services at the Mississippi State Hospital, opined that John

was not com

petent to stand trial. T h e circuit c ourt then comm itted J ohn t o W hitf ield, ordering that h e rem ain at that f acility until he w a s d eclared com petent to stand trial. John continues to undergo treatm e nt at W hitf ield. ¶6. Terry L. Arm strong, John’s brother, f iled a p etition in the Chancery C ourt of Jackson County , M ississippi, to probate Joan’s will. The will a ppointed Terry as executor. Joan lef t her estate equally to h e r f ive children. T he petit i o n listed the f o llowing children as Joan’s sole heirs-at-law: Terry L

. Arm strong, David Arm strong, Jill Seiler, Gail Jones, and John
Arm strong. Joan’s will was adm itted to probate, and letters testam entary were granted to Terry , as executor. The chancellor also entered an order establishing J oan’s heirs-at-law as Terry Arm strong, David Arm strong, Jill Seiler, Gail Jones, and John Arm s trong. ¶7. Once the heirs-at-law were determ ined, Terry f iled a Motion to Declare Devise Void

as to John, based on the Slay er Statute. Terry r equested that t h i s mo t i o n n ot be heard until the pending crim inal charges against John wer e f i n a lly r esolved. Due to John’s m ental illness, Terry requested that a guardian ad litem be appointed. Terry also f iled a Motion f

or Partial D istribution, acknowledging that signif icant tim e m ight p ass bef

ore John’s guilt was determ ined. Theref

ore, the assets of Joan’s e s tate, exclusive of the portion assigned to John,

3should be distributed to the other f our children. The chancellor e ntered an o rder distributing eighty percent of Joan’s residuary e state equally to f our of Joan’s children and placing John’s twenty percent in a supplem ental needs trust. ¶8. Stacie E. Zorn was appointed to represent John as his guardian ad litem

. In response
to the m otion to declare the devise to John void, John argued that Terry had f ailed to prove he w illf ully or f eloniously caused the death of J o an; the m a tter was not ripe f or hearing because there had been no a djudication of his guilt in the c rim i nal m atter; and that, due to his

m ental incapacity , he lacked the requisite intent to comm it a w i llf ul act; theref

ore, the Slay er Statute was not applicable. ¶9. Af ter the chancellor heard argum ents on the m o tion, she entered an order declaring the devise to John void. The chancellor recognized that this was a case of f irst im pression,

as there had been no decision addressing w hether a p e r son determ ined to b e m entally incom petent to stand trial could be considered to h ave “wilf ully ” c a used the d eath of another. The c hancellor determ i ned that the m eaning of “wilf ully ” should b e i nterpreted within the civil context, and not the crim i nal context. The chancellor f ound the f

ollowing evidence to be proof of John’s willf

ulness in Joan’s killing: 1. John w a s d i s c o v e r e d a t J o a n ’ s h o me w i t h J o a n ’s body by law enf o rcem ent. John was covered in Joan’s blood. 2. I n t h e i mme d i a t e a f term ath of the hom icide, John c onf essed to l a w enf o rcem ent. T h is conf

ession was witnessed b y J ohn’s sister-in-law who of f ered testim ony

at this m otion hearing. 3. OSPD, at the conclusion o f t h e i r i n v e s t i g ation, issued a Com plaint alleging John, “f

eloniously , willf

ully and unlawf

ully with deliberate design” caused the death of Joan.

44. A Jackson County Grand Jury returned an indictm ent a gainst John f or the willf u l and f elonious m

urder of Joan. Based on the above evidence, the chancellor held that John w illf u lly c aused the death of his

m other and could not benef i t f rom her estate p ursuant to the Slay er Statute. The chancellor stated that: [ t]his is the ty

pe of behavior our Sl a y e r S t a tute contem plates. Further, while i t i s a cceptable under our j ustice sy stem to allow a killer t o escape crim i n a l liability d ue to his m ental illness, it would be a perversion of justice to allow him to benef it f rom it in this instance, especially in a court of e q uity

. John tim ely f

iled notice of his appeal. The c hancellor o rdered that the portion of the estate
set a s ide f o r John would r em ain in the registry of the court or other trust account pending the
outcom e of

this appeal. S TATEMENT OF THE ISSUES ¶10. John presents the f ollowing three issues:
I. W hether the Chancery C ourt was p recluded f r o m ru ling upon the Executor’s Motion to Declare Devise V oid under the Mississippi slay er statute, Mississippi Code Annotated § 9 1-5-33, when there has been no outcom e in John’s crim inal proceedings due to his m ental incapacity to stand trial at this tim e. II. W hether an individual charged with m urder but not tried due to m ental incapacity m ay be p r e c l uded f rom i nheriting under the Mississippi slay er statutes, Mississippi Code Annotated §§ 91-1-25 and 91-5-33.
III. W hether t h e E xecutor presented suf f icient evidence to prove that the killing of Joan Arm strong was i ntenti o n a l o n the part of John Arm strong.

ANALYSIS

5¶11. F i n d i ngs of a chancellor will not be disturbed on review unless the chanc e l l o r w a s

“m anif estly wrong, clearly er r o n e o u s , or applied the wrong legal standard.” Bluewater Logistics, LLC v. Williford , 55 So. 3d 148, 166 (Miss. 2011) (quoting Powell v. Cam pbell , 912 So. 2 d 978, 981 (Miss. 2005)). The Court will review a chancellor’s judgm ent f or abuse of discretion. Hotboxxx, L LC v. City of G u l fport , 154 So. 3d 21, 24 (Miss. 2015) (citing Mississippi Power Co. v. Hanson , 905 So. 2 d 547, 549 (Miss. 2005); McNeil v. Hester , 753 So. 2d 1057, 1063 (Miss. 2000)). For questions of law, the Court will apply the de novo standard of review. Hotboxxx , 154 So. 3d at 24. ¶12. W h en called upon to exam ine a statute, “the Court f irst looks to the language of the statute.” Lawson v. Honeywell I ntern., Inc. , 75 So. 3d 1024, 1027 (Miss. 2011) (c i ting Pinkton v. State , 481 So. 2d 306, 309 (Miss. 1985)). “If the words of a statute are clear and

unam biguous, the Court applies t h e p l a i n m e aning of the statute and ref rains f rom using principles of statutory construction.” Id. (citing Clark v. State ex rel. Miss. State Med. Ass’n , 381 So. 2d 1046, 1 048 (Miss. 1 9 80)). Sect i o n 91-5-33 of the Mississippi Code reads in pertinent part: If any person shall w ilfully cause or p rocure th e d e a t h of another in any m anner, he shall not take the property , or any part thereof , real or personal, of s u c h o t h e r under any will, testam ent, or codicil. Any d evise to s uch perso n shall be void and, as to the property so devised, the decedent shall b e deem ed to have died intestate. Miss. Code Ann. § 91-5-33 (Rev. 2013) (em phasis added).

6¶13. The key word in this statute is “wilf ully .” In the crim ina l c o n t e x t , t h i s C o u rt has

a ddressed the m eaning of “wilf ully ,” f inding that it is sy

nony m ous w ith “ knowing l y ” a n d “intentionally .” The Court has held that term s “willf ully ” and “knowingly ” have substantially the sam e m eaning in crim inal statutes. O usle y [ v. State ], [ 145 Miss. 4 51,]122 So. [ 731,] 732 [ (1929)] (indictm ent w a s s u f f i cient even though i t used the words “willf

ully , unlawf

ully [ ,] and f

eloniously ” rather t h a n “knowingly ” as used in the statute). See also Boyd v. State , 977 So. 2 d 329, 335 (¶ 22) (Miss. 2008) (“An act ‘wi l lf

ully ’ done is an act ‘knowingly ’ and ‘intentionally ’ done.”); Moore v

. State , 676 So. 2d 244, 246 (Miss. 1996) ( “willf ully ” h as the sam e m eaning as “ knowingly ”). Rely i ng on Ousley , the C ourt o f Appeals h eld that the term s “wilf

ully and f eloniously ” had substantially the sam e m eaning as “purposely or k

nowingly ” when ruling on the suf f icie n c y of a jury instruction f

o r aggravated assau lt. Davis v. State , 909 S o. 2d 749, 7 52-53 (¶ 13) (Miss. Ct. App. 2005). State v. Hawkins , 145 So. 3d 636, 641 ( M i s s . 2 0 1 4 )

. In Ousley , this Court held that “[ a] willf ul act is one that is done knowingly and purposely with the direct obj e c t i n v i e w of injuring another.” Ousley , 122 So. at 732 ( quoting Hazle v . So. Pac. Co. , 173 F. 431 (C.C. Or. 1909)). ¶14. Additionally , the Model Penal Code reads that “[ a] requirem en t t h a t a n o f f ense be

comm itted w ilf

u l ly is satisf

ied if a p erson acts knowing l y w i t h r e spect to the m aterial

e l em ents o f the of

f ense, unless a purpose to im pose f urther requirem ents appear s . ” M o d e l Penal C ode § 2.02(8) (1962). A person acts “knowingly ” with respect t o a m aterial elem ent of an of f ense “if the e lem ent involves the nature of his conduct or the attendant circum stances, h e is aware that his conduct i s of that nature or that such circum stances exist” and “ if the elem e nt involves a r e sult of his conduct, he is aware that it i s practically certain that his conduct will cause such a result.” Model Penal Code § 2.02(2)(b)(i)-(ii) (1962).

7¶15. However, Section 91-5-33 is a civil statute. The usual m eaning of “willf ul” in tort law is that an “actor has intentionally done an act of an unreasonable character in disregard o f a risk known t o him or so obvious that he m ust b e taken to have b een aware of it, and so great

as t o m ake it h ighly probable that h arm would f ollow.” W

. P rosser, Handbook of t he Law of
Torts § 34 (1971). ¶16. This Court has held that a person who willf ully causes the death of another is barred f rom participating in the victim ’s estate. Genna v. Harrington , 2 54 S o. 2d 525, 527 (Miss. 1971). “Mississippi’s Slay er Statute is strictly construed and narrow in purpose.” In re Estate of Miller , 840 So. 2d 7 0 3 , 7 0 6 ( M iss. 2003). “The s ole purpose of a ‘ slay er statute’ is to
p r e v ent the slay er f

r om benef

itting f rom the death of the victim or prof iting f ro m t h e wrongdoing. Id. (quoting 26B C.J.S. Descent and Distribution § 57, at 362-63 (2001)). ¶17. Mississippi courts have not addressed w hether the Slay er Statute prec l u d e s i n sane persons f rom inheriting f

rom their victim s. Som e cases have discussed m anslaughter pleas, which are benef

icial to this analy sis. In Henry v. T oney , 211 Miss. 93, 50 So. 2d 921 (1951), the Court was presented w ith the issue of whether John Henry willf ully c aused the death of his wif e, s u c h t h a t h e c ould n ot inherit her land. Henry was charged with second-degree

m urder but pleaded guilty to m anslaughter. Id. at 922. T he C ourt note d t h a t, under Mississippi sta t u tes, m anslaughter is not necessarily a willf ul killing. I

d. at 923. “For that

reason, it is obvious that such plea cannot be conclusive evidence of guilt o f such a killing. On the contrary , it can am ount to only slight evidence, or e v idence m erely that the k illing has occurred.” Id. The Court reversed the f inding of the trial court that Henry could not inherit

8his w if

e’s property and rem anded the case f or a new trial, instructing the trial court that “ all evidence w hich will throw any light on the i ssue of whether or not this killing was willf ul is

com petent and adm issible.” Id. ¶18. In Hood v. V

anDevender , 661 So. 2d 198 (Miss. 1995), Linda VanDevender killed her husband. L inda was c harged with m urder, pleaded guilty to m anslaughter, and received

a twenty -y ear-suspended sentence. Id. at 201. No f urther evidence of culpability was of f ered by her husband’s e state. Id. The chancellor determ ined that the estate had f a iled to show that Linda willf

u lly killed her husband. Id. at 200. ¶19. On appeal, the Court considered “whether e v idence of a guilty plea to the charge of

m anslaughter i s suf

f icient, standing a lone, to enable a f a c t f i n der to conclude that one is prohibited f

rom inheriting under our statutes which precluding o ne who willf ull y k ills another f rom inheriting f

rom that person.” Id. at 201. R ely i ng o n Franklin Life Insurance Com pany v. Strickland , 3 76 F. Supp. 280, 2 83 (N.D. Miss. 1974) (“Although a plea of guilty in a crim inal proceeding and conviction thereon ar e clearly adm issible in e vidence, they are

o r d i narily not conclusive on the pleader and m ay be explained or r ebutted in a su b s e q u e n t civil case . ” ) , H

e n r y , 5 0 S o. 2d at 923 (Pleading guilty t o m anslaughter is o nly “slight evidence, or evidence m erely that the killing h as occurred.”), and M ississippi m anslaughter
statutes which do not require w illf ulness, the C ourt r

uled that Linda w as not prohibited f rom inheriting f

r om her deceased husband’s estate. H ood , 661 So. 2d at 201. ¶20. Num erous courts have held that an insane person would not be precluded by a slay er
statute f rom inheriting f

rom his o r her victim , due to their m ental condition at the tim e of the

9killing. See Estates of L add , 9 1 Cal. App. 3d 219, 226, 153 Cal. Rptr. 8 88 (Ct. App. 1979)

(Court held that a m other, who was insane at the t im e she m urde red her two sons, was not barred f rom inheriting her two sons’ estates by statute, which provides that no person who has unlawf

ully and intentionally c aused the death of a decedent shall be entitled to succeed
to any portion o f estate or to take under any will of decedent, because insane persons are not capable of

acting “intentionally

. ”); Hill v. Morris , 85 So. 2d 847, 851 (Fla. Sup. Ct. 1956) (“The ef f ect of the j udgm ent of a cquittal by r eason of insanity was to establish conclusively that p etitioner was not guilty of the public o f f ense with which she was charged, b ecause as

a m atter of crim inal l aw she lacked the capacity to comm it the crim e.” Theref o re, the court held the insane widow was perm itted to inherit f rom h er deceased husband.); Turner v. E s tate of Turner , 454 N.E.2d 1 247, 1252 (Ind. Ct. App. 1983) (The c ourt ruled t h a t t h e equitable doctrine which sought t o bar a p erson f rom prof iting f rom his w r o n g f

u l c onduct had no application where an insane person shot and killed his parents.); Ford v. Ford , 307 Md. 105, 122, 5 12 A.2d 389, 398 (1986) (T h e c o u r t held that the slay er’s rule was not applicable w hen the killer was not crim inally r esponsible at the tim e h e c o mmi t ted the hom icide.); In re V

adlam udi Estate , 183 N .J. Super. 342, 443 A .2d 1 113 (1982) (An insane slay er was allowed to inherit f rom her husband’s e s tate.); In re Wirth’s Estate , 59 Misc. 2d 300, 302-03, 298 N .Y.S.2d 565, 567-68 (Sur. 1969) (Court determ ined i t was not a gainst the state’s p ublic policy to perm it som eo n e w h o h a s killed “while insane subsequently to take

a s hare o f the estate of the deceased or the proceeds of a policy of l if e insurance on the lif

e of the deceased o f which the insane killer is benef iciary .”); In re Lupka’s Estate , 56 Misc.

1 02d 677, 289 N.Y.S.2d 7 05 ( Sur. 1 9 68) (New York court h eld that a husband could t ake under

his wif e’s will although the w if

e died f r om ef f ects of assault b y husband, where husband was

m entally ill at t i me o f a s s a ult.); Quick v. United Benefit L i fe Ins. Co. , 287 N.C. 47, 213 S.E.2d 563, 566 (1975) (Court prevented slay er statute’s application in cases of i nvoluntary

m anslaughter, justif

iable or excusable hom icide, accidental k illing or where the slay er was insane.); Hoffm a n’s E

state , 3 9 Pa. D & C. 208, 209-10 (1940) (W if e who killed her husband but f ound to b e in s a n e w as e ntitled to share in her husband’s estate.); De Zotell v. Mutual Life Ins. C

o. , 6 0 S .D. 5 32, 245 N.W

. 58, 6 5 ( 1932) (South Dakota’s s l a y e r ’ s rule requires that the k iller be “sane” f

or it to apply .); Sim on v

. Dibble , 380 S.W

. 2 d 898, 899 (Tex. Civ.
A p p . 1 964) (A Texas c ourt determ ined the husband could inherit f rom the wif

e he k i l l e d because an insane p e rson was not cap ab l e o f w illf ully taking the lif

e of another.); In re Estate of Mahoney , 126 Vt. 31, 220 A.2d 475 (1966) ( Court d eterm ined slay er s tatute would not be applicable if

the slay e r was insane.). ¶21. Other courts have held that the slay er rule is applicable, e v en if the k iller was insane

at the t im e of the m

urder. See Dougherty v. Cole , 4 01 Ill. App. 3d 341, 3 48, 934 N.E.2d 16, 22 (Ill. App. Ct. 2010) (The c ourt determ ined that, although an indivi d ual was insane f or crim inal purposes, h e was nevertheless cognizant that he w as killing a person; theref ore, the Slay e r Statute prevented the killer f rom benef

itting f rom his actions.); Osm an v. Osm an , 285 Va. 384, 737 S .E.2d 876, 879 (2013) (Virginia’s slay er statute provides that in the absence of a conviction f

or m urder or voluntary m anslaughter, “ a slay er shall m ean an y person ‘who is determ ined, whether bef ore or af ter his death, by a court of appropriate jurisdiction by a

1 1preponderance o f the evidence to h ave comm itted [ m urder o r v o l u

nt a r y m anslaughter].’” The court determ ined that the stipulated evidence clearly dem onstrated that Osm an intended to kill h is m other; theref

ore, he should not be allowed to prof it f rom h is wrongdoing.”); In re Estate of Kissinger , 1 66 W ash. 2d 120, 122, 132, 206 P .3d 665, 6 66, 6 71 (2009) (The court held that a not-guilty -by -r e a s o n-of -insanity v erdict is not a com plete def ense to the slay er
statute. “An action under the slay er statute is civil, and the determ ination of whether a slay ing

w a s willf u l and unlawf

ul m ust be m ade in civil court notwithstanding the result of any crim inal c ase. A f

inding o f not guilty b y reason o f i n s a n i t y does not m a ke an o therwise unlawf u l a c t lawf

ul.” The court determ ined that H o ge’s actions were willf ul and unlawf

ul when he killed his m other, and Hoge was barred f r om recovering f

rom his m other’s estate.). ¶22. I t i s c l ear f

rom well-established prec e d e n t t h a t w i l l f u l i s s y n o n y mo u s w i t h intentionally , knowingly , deliberately , and purposely

. I n o rder f or the Slay er Statute to apply
to this case, John m

u st h ave a cted w illf

ully i n k illing h is m other. The record reveals that John has suf f ered f rom h allucinations and delusions f o r m ore than two decades. He has been diagnosed as a paranoid s chizophrenic. John’s thoughts are disorganized and very dif f icult
to understand, and h e of

ten speaks in “word salad,” which m eans that he uses words that are unrelated and disconnected. H owever, the record is silent as to John’s m ental state at the t im e of the killing. ¶23. In this m a tter o f f

irst im pression, this Court concludes that Mississippi should f ollow the m ajority of s tates and holds that the Slay er Statute requires a f inding of w illful conduct
to preclude a p erson f

rom inheriting f

rom h is o r her v ictim

. Because an insane person lacks

1 2the requisite ability willf ully t o kill another person, the Slay er S t a t u t e i s not applicable in cases where the killer is determ i ned to be insane at the tim e of the killing. [ T]he words used by Mr. Justice Nelson, w h e n C h i ef Justice o f New York, said that “ self

-destruction by a f

ellow being b eref

t of reason c an with no m ore propriety be ascribed to the act of his own hand than to the deadly instrum ent that m ay have been used b y him f or the purpose,” and “was no m ore his act, in the s ense of the l aw, than if he had been im pelled by irresistible phy sical f orce.” Great S. Life I

n s. Co. v. Cam

pbell , 148 Miss. 1 7 3 , 114 So. 2 62, 263-64 (1927) (quoting Manhattan Life Ins. Co. v. Broughton , 109 U.S. 121, 132, 3 S. Ct. 99, 105, 27 L. Ed. 878 (1883)). ¶24. W h ile this result i s grounded in legal precedent, i t m ay prove to be unsettling to som e. However, it is n o t the duty of this C ourt to determ ine public policy

. If the law as it now exists is in need of

change, that task is f

or the Legislature. CONCLUSION ¶25. Based upon this Court’s holding that the Slay er Statute requires a f inding of wil l

f u l conduct in order to preclude a p erson f rom inheriting f

rom his or her victim , this judgm ent is reversed and the case is rem anded f or a hearing to determ ine John’s m ental status at the tim e o f the m

urder and whether he wilf ully caused Joan’s death. The Slay er S tatute will be applicable only i f it is proven that, at the tim e o f the m urder, John’s actions were willf ul. The chancellor is instructed that “ all evidence which will throw any light on the issue of whether or not this killing was willf ul is com petent and adm i ssible.” Henry , 50 So. 2d at 923. ¶26. REVERSED AND REMANDED.

1 3WALLER, C .J., DICKINSON, P.J., LAMAR, KITCHENS, CHA N D LER,

PIERCE, KING AND COLEMAN, JJ., CONCUR

.

1 4