                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-EC-00899-SCT

JOHN A. (PAP) MOORE

v.

STACEY W. PARKER

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          06/09/2006
TRIAL JUDGE:                               HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED:                 CHICKASAW COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   SAMUEL L. BEGLEY
                                           GARY GOODWIN
ATTORNEYS FOR APPELLEE:                    RONALD D. MICHAEL
                                           BILLY BRONSON TABLER
NATURE OF THE CASE:                        CIVIL - ELECTION CONTEST
DISPOSITION:                               AFFIRMED IN PART; REVERSED AND
                                           RENDERED IN PART - 08/16/2007
MOTION FOR REHEARING FILED:                03/19/2007
MANDATE ISSUED:


       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    The motion to correct the record and the motion for rehearing filed by John A. (Pap)

Moore are both granted. The previous opinion is withdrawn, and this opinion is substituted

therefor.

¶2.    This is an appeal from an order of a Special Election Contest Tribunal with regard to

the May 2005 Democratic mayoral primary in Houston, Mississippi. Stacey Parker, a

mayoral candidate, filed a petition for judicial review of the primary in the Circuit Court of
Chickasaw County. The winner of the primary, John Moore, intervened as a party defendant

and filed a Motion to Dismiss and/or for Summary Judgment. The case was tried, and the

Special Tribunal ordered a special, run-off primary election. Moore appeals that decision to

this Court.

                       FACTS AND PROCEDURAL HISTORY

¶3.    On May 3, 2005, the Democratic primary was held for the City of Houston,

Mississippi. Seeking the nomination for mayor were Laverne Collins, John Fred Lancaster,

Appellant John A. (Pap) Moore and Appellee Stacey W. Parker. The official returns certified

by the City of Houston Municipal Democratic Executive Committee (Executive Committee)

reflected that the winner was Moore, receiving 921 votes, 50.03% of the votes cast, and that

Parker obtained the second-highest number of votes, receiving 552 votes, 29.98% of the

votes cast. Had Moore received one less vote, a run-off election automatically would have

taken place between Moore and Parker.

¶4.    Immediately after the executive committee certified the returns, Parker submitted to

the Houston City Clerk a handwritten note stating, “I, Stacey W. Parker, hereby contest the

mayoral election of Houston, MS. May 3, 2005,” signed by Parker and dated May 4, 2005.

Later that day the city clerk notified each of the other three mayoral candidates that Parker

1) had filed a notice of contest, 2) would have the right to examine the ballot boxes, and 3)

had scheduled an examination for 9:00 a.m. on Monday, May 9, 2005. Moore's

representative, Ike Brown, attended the inspection.

¶5.    On May 11, 2005, Parker personally served on one of the members of the executive

committee a Petition to Contest the mayoral primary. Though the committee met twice, each


                                             2
time scheduling discussion of the election contest, the committee never addressed the

petition. At the third meeting on June 7, 2005, the committee was informed by election

division attorneys from the Mississippi Attorney General's Office that the executive

committee no longer had jurisdiction to consider matters relating to the May 3 primary.

¶6.    On June 22, 2005, Parker filed a Petition for Judicial Review of Election Contest in

the Circuit Court of Chickasaw County, Mississippi. On June 28, 2005, this Court entered

an Order naming a special judge to preside over the election contest proceedings. On July 28,

2005, Moore moved to intervene as a defendant, attaching his answer, affirmative defenses,

cross-claim and motion to dismiss and/or for summary judgment. On September 6, 2005, the

circuit court entered an Order partially overruling Moore's motion to dismiss and/or for

summary judgment. After a trial in May 2006, the special judicial tribunal, made up of a

circuit court judge from another district and three members of the Houston Election

Commission, found unanimously that at least nine illegal votes were cast for Moore and

consequently, on June 9, 2006, ordered a special primary run-off.

¶7.    Moore appealed and filed with this Court an emergency motion to stay and for

expedited appeal. A panel of this Court denied Moore's motion to stay, but later, granted his

motion for an expedited appeal.

                                       DISCUSSION

¶8.    As an initial matter, Parker disputes this Court’s authority to consider the issues raised

on appeal. Parker cites Mississippi Code Annotated Section 23-15-933 (Rev. 2001) for the

proposition that the election order is not subject to review by this Court since the order was

executed by the presiding judge and joined by all three of the Houston Municipal Election


                                               3
Commissioners, the four of whom comprised the special tribunal. Mississippi Code

Annotated Section 23-15-933 reads:

       The contestant or contestee, or both, may file an appeal in the Supreme Court
       within the time and under such conditions and procedures as are established
       by the Supreme Court for other appeals. If the findings of fact have been
       concurred in by all the commissioners in attendance, provided as many as three
       (3) commissioners are and have been in attendance, the facts shall not be
       subject to appellate review. But if not so many as three (3) of the
       commissioners are or have been in attendance, or if one or more
       commissioners dissent, upon review, the Supreme Court may make such
       findings as the evidence requires.


¶9.    While the statute deems final the tribunal’s findings of fact, its legal conclusions are

reviewable by this Court on appeal. Accordingly, the statute presents no bar to any issues in

this case since all issues presented are questions of law. Moreover, the issues raised for this

Court’s consideration do not require review of the findings of fact the tribunal made with

regard to the nine fraudulently voted ballots.

¶10.   All issues raised by Moore require this Court to interpret law, and thus, are reviewed

de novo. Boyd v. Tishomingo County Democratic Executive Comm., 912 So. 2d 124, 128

(Miss. 2005).

       I.       Whether the Special Tribunal Had Jurisdiction to Consider
                Parker’s Petition for Judicial Review

¶11.   Moore contends that the special tribunal lacked subject matter jurisdiction due to

Parker’s failure to meet jurisdictional prerequisites enumerated in our election contest

statutes. Moore alleges six procedural deficiencies.

       A.       Whether Parker Filed His Petition Contest with the Houston
                Democratic Executive Committee

                                                 4
       B.     Whether Parker’s Petition to Contest Provided Sufficient Grounds
              for Contesting the Election


¶12.   The two errors raised alleging violation of Mississippi Code Annotated Section 23-15-

921 are considered together. This code section provides the procedure for contesting a

primary election. The contestant must “within twenty (20) days after the primary election,

file a petition with the secretary, or any member of the county executive committee in the

county in which the election was held, setting forth the grounds upon which the primary

election is contested.” Miss. Code Ann. § 23-15-921 (Rev. 2001).

¶13.   Moore contends that Parker filed two petitions to contest, the handwritten note on

May 4, 2005, and a more formal, more specific petition on May 11, 2005. Moore asserts that

Parker did not “file [his May 4, 2005,] petition with the secretary, or any member of the

county executive committee in the county in which the election was held. . .” as required by

Mississippi Code Annotated Section 23-15-921. Indeed, Parker filed his May 4, 2005,

petition with the Houston City Clerk. However, on May 11, 2005, he personally served one

of the members of the Houston Democratic Executive Committee with his second petition.

Thus, while Parker did not file his May 4, 2005, petition with a member of the Houston

Democratic Executive Committee pursuant to Mississippi Code Section Annotated 23-15-

921, Parker filed a petition with the Houston Democratic Executive Committee.

¶14.   Further, Moore contends that the May 4, 2005, petition did not set forth sufficiently

specific allegations as required by Mississippi Code Section 23-15-921. The language of the

contest or petition or complaint before the Executive Committee must be reasonably specific




                                             5
in its charges and may not be mere general language. Harris v. Stewart, 187 Miss. 489, 507,

193 So. 339 (1940) (citing Shaw v. Burnham, 186 Miss. 647, 191 So. 484, 486 (1939)).

¶15.   Moore directs the Court to the handwritten document Parker submitted to the Houston

City Clerk on May 4, 2005, which read “I, Stacey W. Parker, hereby contest the mayoral

election of Houston, MS. May 3, 2005.” Parker responds and Moore concedes that Parker

submitted a petition on May 11, 2005, containing more specific allegations. However, the

parties further dispute the validity of the petition submitted on May 11, 2005. While Moore

accurately notes that Section 23-15-921 does not provide for submission of a second petition,

as Parker responds, the statute also does not prohibit submission of an additional petition.

Therefore, Moore’s argument concerning the specificity of the May 4, 2005, petition is

irrelevant since Parker submitted a more specific petition on May 11, 2005, the specificity

of which Moore does not challenge.

       C.       Whether Parker Engaged in an Unlawful Inspection of the Ballot Boxes
                Prior to Filing His Petition to Contest

¶16.   Moore alleges that Parker failed to meet the notice requirement of Mississippi Code

Annotated Section 23-15-911 (Rev. 2001) which requires three days’ notice to each

candidate before a contestant can examine the ballot boxes after the primary.1 Parker replies



       1
           Mississippi Code Annotated Section 23-15-911 reads in pertinent part:

       At any time within twelve (12) days after the canvass and examination of the
       box and its contents by the election commission or executive committee, as the
       case may be, any candidate or his representative authorized in writing by him
       shall have the right of full examination of said box and its contents upon three
       (3) days' notice of his application therefor served upon the opposing candidate
       or candidates, or upon any member of their family over the age of eighteen

                                              6
that he complied by provision of his handwritten petition on May 4, 2005, to the city clerk,

who in turn notified each of the candidates of Parker’s right to examine the boxes. The notice

was signed by each of the four candidates on May 4, 2005, five days before Parker inspected

the ballot boxes on May 9, 2005. Thus, this argument is without merit.

       D.       Whether the Two Attorneys Who Signed Parker’s Petition for
                Judicial Review Were Incapable of Independent Investigation
                Solely Due to Their Employment at the Same Firm


¶17.   Mississippi Code Annotated Section 23-15-927 (Rev. 2001), requires that two

attorneys who have made an independent investigation certify the petition for judicial

review.2 Moore asserts that Parker’s petition was certified by two attorneys who were

incapable of “independent” investigation even though they were employees of the same firm.

The question is to what and/or whom must the attorneys be independent – each other or the

contest? Moore asserts that the attorneys must be independent from each other. However, to

be “independent” an attorney only need be disassociated from the contest, not from the other

certifying attorney.




       (18) years . . . .
       2
           Mississippi Code Annotated Section 23-15-927 reads in pertinent part:

       such petition for a judicial review shall not be filed unless it bear the certificate
       of two (2) practicing attorneys that they and each of them have fully made an
       independent investigation into the matters of fact and of law upon which the
       protest and petition are based and that after such investigation they verily
       believe that the said protest and petition should be sustained and that the relief
       therein prayed should be granted. . . .

                                                7
¶18.   The attorneys may not be associated with the contestant, as this Court has stated “that

the certificate should be signed by unbiased lawyers; and that ‘such a purpose eliminates

attorneys who represent a contestant at the time their investigation of the matter is made, or

at the time his petition for judicial review is filed.’” Pearson v. Jordan, 186 Miss. 789, 192

So. 39, 40 (1939) (quoting Pittman v. Forbes, 186 Miss. 783, 191 So. 490 (1939)). Further,

the attorneys may not be associated with the contest. “The right of a contestee to an office

to some extent is tainted by the proceeding; and it is important that this independent

investigation should be made by disinterested attorneys, having no connection with the case.”

Id. Further, this Court has stated that “the only facts which would disqualify a certifying

attorney are: Employment of the attorney, past, present, contingent or prospective, by or for

the contestant as his attorney in respect to the matter involved in the contest, or such facts as

would disqualify a judge.” Upton v. McKenzie, 761 So. 2d 167, 171 (Miss. 2000) (citing

Harris, 187 Miss. at 504-05, 193 So. at 343).

¶19.   On numerous occasions, this Court has illustrated the meaning and purpose of the

independent investigation requirement as detachment of the attorneys from the contest, not

from each other. Compare Esco v. Scott, 735 So. 2d 1002 (Miss. 1999) (an attorney who is

“of counsel” of the firm representing the contestant is not independent) and McDaniel v.

Beane, 515 So. 2d 949 (Miss. 1987) (a member of the law firm representing the contestant

is not independent) with Upton v. McKenzie, 761 So. 2d at 171 (certifying attorney is

independent where he does not represent the contestant with respect to the election contest,

is not associated with contestant’s counsel in any way, and is not precluded by Canon 3C of

the Code of Judicial Conduct); Harris, 187 Miss. at 504, 193 So. at 343 (an attorney who is

                                               8
a close friend of the contestant’s attorney with whom he sometimes associates as counsel on

cases and whose offices happen to be on the same floor of the building in which both work

is independent). As indicated numerous times by this Court, whether each of the two

certifying attorneys may perform an “independent” investigation is not determined by the

nature of their relationship with each other but their association with the contest. We reject

Moore’s argument that attorneys employed by the same firm are incapable of performing

independent investigations.

       E.     Whether Parker Filed Forthwith His Petition for Judicial Review

¶20.   As a predicate to a petition for judicial review the contestant must first present his

grievance to the county, or in this case, municipal executive committee. Harris, 187 Miss.

at 507, 193 So. at 343. Subsequently, if a contestant seeks judicial review, Mississippi Code

Annotated Section 23-15-927 instructs:

       [w]hen and after any contest has been filed with the county executive
       committee, or complaint with the State Executive Committee, and the said
       executive committee having jurisdiction shall fail to promptly meet or having
       met shall fail or unreasonably delay to fully act upon the contest or complaint,
       or shall fail to give with reasonable promptness the full relief required by the
       facts and the law, the contestant shall have the right forthwith to file in the
       circuit court of the county wherein the irregularities are charged to have
       occurred . . . .


Parker filed his petition for judicial review on June 22, 2005. Moore asserts that the petition

was not filed “forthwith” since June 22 was forty-nine days after the primary. Parker replies

that “forthwith” is not defined by a particular amount of time, but is determined by the

specific facts and circumstances surrounding each case.



                                              9
¶21.   As Parker notes, this Court recently held in Cook v. Brown, 909 So. 2d 1075, 1079

(Miss. 2005),

       [t]here has never been an exact number of days determined as a minimum to
       meet the “forthwith” requirement. Instead, this Court has upheld the well-
       established and long-standing principle. . . ‘that the term “forthwith” connotes
       no specific fixed time limit. Rather, its meaning depends upon consideration
       of the surrounding facts and circumstances and varies with each particular
       case.’ Smith v. Deere, 195 Miss. 502, 507, 16 So. 2d 33, 35 (1943); Turner v.
       Henry, 187 Miss. 689, 695-96, 193 So. 631, 632 (1940); Harris v. Stewart,]
       187 Miss. [489] at 502-04, 193 So. [339] at 342 [(1940)].


(quoting Pearson, 541 So. 2d at 450). Moore directs the Court to measure the time from the

date of the primary election. However, the reference point for the running of time is the date

of the final action or decision by the party executive committee. See, e.g., Cook, 909 So. 2d

at 1079 (“In this instance, Cook's filing of the petition 39 days after the Quitman County

Democratic Executive Committee conducted the hearing on September 4, 2003 was not

"forthwith" as required by the statute”) (emphasis added).

¶22.   In Pearson, this Court deemed “forthwith” a petition filed thirteen days, nine working

days, after the committee decision. 541 So. 2d at 450. The committee never reached a

decision in this case. Parker filed his petition for judicial review on June 22, 2005, fifteen

days, eleven working days, after the last committee meeting on June 7, 2005, in which the

contest was scheduled to be addressed. Filing within eleven working days is not a significant

departure from the nine working days this Court found to be “forthwith” in Pearson. But see

Turner, 193 So. at 695 (holding that the filing of a petition twenty-six days after the final

executive committee action “was stretching ‘forthwith’ too far”). In this case, the “forthwith”

requirement is satisfied. We find this assignment of error to be without merit.

                                              10
       F.     Whether the Special Tribunal in its Review Exceeded the Scope of
              Matters Alleged in Parker’s Petition to Contest


¶23.   Moore asserts that the tribunal based its ruling for a special election entirely on

matters not raised by Parker in his election contest petition, and thus the tribunal exceeded

its scope of review. The special tribunal is limited in its review and examination to matters

presented by the original contest petition brought before the executive committee. Waters

v. Gnemi, 907 So. 2d 307, 325 (Miss. 2005); Darnell v. Myres, 202 Miss. 767, 773, 32 So.

2d 684, 685 (1947) (citing Harris, 187 Miss. at 507). The tribunal may, however, consider

germane matters which happened during or since the hearing before the executive committee

and matters merely explanatory or incidental to the matters originally raised. Id.

¶24.   Parker complained of illegal and fraudulent votes, namely, legally insufficient

affidavits, illegal affidavit voting, the counting of votes of deceased individuals, and

insufficiencies in the contents of and documentation concerning ballot boxes. Parker further

noted specific procedural deficiencies on certain absentee ballot envelopes, concerning items

such as signatures and uncompleted blanks.

¶25.   The special tribunal stated “[w]e find by clear and convincing evidence that there were

at least nine illegal or fraudulent ballots cast by Ms. Gardner for Mayor Moore.” The tribunal

found that David Douglas was assisted in voting in person and by absentee ballot by Martha

Gardner. The tribunal also concluded that Gardner illegally delivered, voted, and returned

an absentee ballot in Ottie Mae Criddle’s name. The tribunal further found that Gardner

fraudulently voted ballots on behalf of Michael Sanders, Jason Wright, Lora Weeks Carter,

Travis Dye, Alice Faye Carter, Troy Brasfield and Glendora Kendall. Based on its findings

                                             11
of illegally and/or fraudulently voted absentee ballots, in accord with Parker’s petition, which

specifically alleged illegal affidavit voting, the special tribunal found enough illegal votes

cast for Moore to change the outcome of the primary and warrant a run-off.

¶26.   Thus, we find the tribunal based its order on grounds within the scope of the contest

petition, and Moore’s assertion otherwise is without merit.

       II.    Whether the Order of the Special Tribunal Erroneously Relied on
              Inadmissible Hearsay Testimony of One of Parker’s Witnesses to
              Conclude That Nine Absentee Ballots Were in Fact Cast for Moore
              as the Basis for Calling a New Election


¶27.   Moore asserts that, since the nine ballots found to be voted for Moore were never

challenged at the polling place, there was no way to know directly how these votes were

marked, unless some additional evidence was adduced. Moore asserts that “[t]he special

tribunal exclusively relied upon irrelevant hearsay contained in uncorroborated testimony of

David Douglas” to determine that the allegedly illegal votes were cast for Moore.


¶28.   This Court consistently has stated that failure to object to hearsay constitutes a waiver

of the issue on appeal. Rubenstein v. State, 941 So. 2d 735, 764 (Miss. 2006). Moore did not

make a single objection when Douglas testified before the tribunal. Thus, this issue

concerning admissibility of Douglas’s testimony is waived.

       III.   Whether the Circuit Court Erroneously Denied Moore’s Motion
              for Summary Judgment by Relying Upon Affidavits That Do Not
              Relate to Any Allegations That Were Set Forth in Parker’s Election
              Contest Petition




                                              12
¶29.   Moore asserts that the affidavits of Estelle Sullivan and Ottie Mae Criddle and the

letter/affidavit of Tammy Chamblee on which the tribunal relied in denying summary

judgment were not related to the allegations set forth in Parker’s contest petition.3

¶30.   This Court reviews de novo a trial court’s ruling on a summary judgment motion.

Williams v. Bennett, 921 So. 2d 1269, 1271 (Miss. 2006). The evidence must be considered

in the light most favorable to the non-moving party. Brown v. Credit Ctr., Inc., 444 So. 2d

358, 362 (Miss. 1983). “[T]he pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, [must] show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Miss. R. Civ. P. 56(c).

¶31.   Parker raised allegations of illegal affidavit voting, and each of the three affidavits

which Moore asserts are unrelated describe facts indicative of fraudulent voting by Gardner.

Tammy Chamblee relates from a conversation with her mother, Jean Eaves, how Gardner

came to Eaves’s home with an unsolicited ballot, sat beside Eaves as she voted it and carried

Eaves’s ballot with her when she left. The affidavits of Estelle Sullivan and Ottie Mae

Criddle each claim that Gardner brought a ballot to her, marked the ballot, and she never saw



       3
         The trial court made no mention in its order denying summary judgment of either the
affidavits Moore questions nor the substantive issues raised in Parker’s petition. The court
only ruled on procedural deficiencies raised by Moore, the same deficiencies addressed on
appeal by this Court. The trial court held in abeyance ruling on the contention that “there
[was] no evidence to demonstrate irregularities or fraud in the conduct of the election” until
the submission of briefs by each side. The only order addressing summary judgment which
was included in the record was that of September 6, 2005. On September 26, 2005, a three-
justice panel of this Court denied Moore’s Petition for Interlocutory Appeal from the denial
of summary judgment on September 6, 2005.

                                             13
the ballot again. As for the question of whether the affidavits are related to the allegations

Parker raises, the affidavits clearly concern the occurrence of illegal affidavit voting in the

primary. Therefore, this issue is without merit.

       IV.    Whether the Special Tribunal Erroneously Ordered a Run-off of
              the Democratic Executive Committee When it Should Have in Fact
              Ordered a Special Election, to Be Called by the Governor and
              Conducted by the Municipal Election Commission under Miss.
              Code Ann. § 23-15-927 (Rev. 2001)

¶32.   The tribunal ordered a special primary run-off election between Moore and Parker.

With regard to the decision of a special judicial tribunal, Mississippi Code Annotated Section

23-15-937 (Rev. 2001) reads in pertinent part:

       [I]f the said judgment be in favor of the contestant, the election of the
       contestee shall thereby be vacated and the Governor, or the Lieutenant
       Governor in case the Governor be a party to the contest, shall call a special
       election for the office or offices involved, if the contestee has already entered
       upon the term he shall vacate the office upon the qualification of the person
       elected at said special election, and may be removed by quo warranto if he fail
       so to do.

¶33.   This Court has previously found in a similar situation that Mississippi Code Annotated

Section 23-15-937 (Rev. 2001) controlled and required a special election. In Smith v.

Hollins, 905 So. 2d 1267 (Miss. 2005), Smith and Hollins were the only two candidates in

the Democratic primary and in the entire county race for supervisor. Id. at 1269. Smith won

the primary with 510 votes to Hollins’s 499 votes. Id. at 1270. The special tribunal cast out

votes it found to be illegal and counted only the legal votes, resulting in Hollins being

declared the winner with 519 votes to Smith’s 516 votes. Id. This Court held that Mississippi

Code Annotated Section 23-15-937 (Rev. 2001) governs special elections for contested


                                              14
primary elections. Smith, 905 So. 2d at 1277. Pursuant to the statute, if the contestant

prevails in an election contest and the contestee has already taken office, the appropriate

remedy is that the Governor call a special election for the office. Id. The Court was reluctant

to apply the statute for the reason Parker mentions, which is that only the primary winner’s

name would have been on the general election ballot. Id. Despite its reluctance, the Court

applied the statute, declaring Smith the winner of the primary election and ordering a special

election to be called for by the Governor. Id. at 1278.

¶34.   This case is distinguishable from Smith only in that Smith was the clear winner of the

primary after the number of legal votes was determined by the tribunal and Smith was found

to have the majority. The result of the tribunal findings in this case is that neither primary

candidate has a majority and thus, that a special primary run-off election is necessary. This

distinction does not prevent the application of Mississippi Code Annotated Section 23-15-

937 (Rev. 2001), and accordingly, the office of mayor of the City of Houston shall be vacated

and a special election shall be called by the Governor. The special tribunal erred in ordering

a special primary run-off election to be held when it is statutorily mandated that the Governor

call such election.

                                       CONCLUSION

¶35.   Having found no jurisdictional, evidentiary or other errors in the tribunal’s findings

of fact, this Court affirms the tribunal’s judgment that nine illegal votes were cast for Moore.

The tribunal erred, however, in ordering a special primary run-off election when a special

election shall be called by the Governor pursuant to Mississippi Code Annotated Section 23-



                                              15
15-937 (Rev. 2001). We reverse the tribunal’s judgment to the extent that it ordered a special

primary run-off election, and we render judgment here that the Governor shall call a special

primary run-off election for the office of Mayor of the City of Houston in accordance with

Section 23-15-937 (Rev. 2001) and other applicable law governing municipal special

elections.

¶36.   The Clerk of this Court is directed to mail a certified copy of this opinion to the

Governor, the Attorney General, the Secretary of State, the City of Houston Election

Commission and the City of Houston Clerk.

¶37.   AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

    WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. EASLEY AND LAMAR, JJ., NOT PARTICIPATING.




                                             16
