text:
    Fred GARNER v. STATE.
    6 Div. 542.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Jesse W. Shotts, Birmingham, for appellant. O

    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Fred Garner was indicted for buying, receiving, concealing, or aiding in concealing one citizen’s band radio of the value of $160.00, the personal property of Elred I. Sims. The jury found the appellant guilty as charged and fixed the value of the stolen property at $70.00. The trial court then entered judgment, setting sentence at five years imprisonment in the penitentiary.

Elred I. Sims stated that in January, 1976, he owned a Johnson citizen’s band radio with the call letters KFZ1885 and that he had placed this citizen’s band radio in a pickup truck which he owned and allowed his son, Marshall Sims, to use.

Mr. Sims stated that he purchased the radio in question from Forbes Radio on Fourth Avenue in the City of Birmingham and that he paid $160.00 for it. He stated that the radio was a five-channel set, a Johnson Messenger 121, and that two of the buttons on the front of the radio were missing. Mr. Sims stated that he notified the Birmingham Police Department in January, 1976, of the missing C.B. radio, which he did not see again until the day of trial (April 5,1977). Mr. Sims stated that he had not given anyone permission to borrow or use this radio or to remove it from his pickup truck. He further stated that he had owned this radio for four or five years prior to the time that it became missing.

On redirect examination, Mr. Sims stated that he had seen the radio in question on one occasion at Birmingham City Hall, having gone by and examined it while it was in the possession of Police Sergeant McDonald.

Marshall Elred Sims stated that he was the son of Elred I. Sims, and, in January, 1976, had driven a pickup truck to the front of the Guin Company on Fifth Avenue South and Fifty Second Street where he parked on the street. Mr. Sims stated that a C.B. Messenger 121 radio was in the trunk at the time and he did not give anyone permission to borrow or use the radio or remove it from the truck. He further stated that, when he returned, the C.B. radio was missing and he did not see it again until he went by the Birmingham Police Headquarters.

Birmingham Police Officer Abraham Boyd stated that on September 12, 1976, he went to the Parade Service Station on Docena Road and there engaged the appellant, Fred Garner, in conversation. Mr. Boyd stated that he was dressed in civilian clothes, and that he asked Garner about purchasing some C.B. radios from him. Garner told him that he had several used C.B. radios and that they would be between $60.00 to $75.00 each. Garner then opened the trunk of the 1971 Chevrolet automobile, black over bronze in color, and he, Boyd, wrote down the tag number, Alabama 64-12703, a Walker County tag. Boyd stated that he looked at several of the C.B. radios in the trunk of Garner’s car and he purchased a Lafayette C.B. radio for $60.00 from the appellant. He stated that he saw two walkie-talkies and about nine or ten C.B. radios in the trunk at the time and that Garner kept the keys to the trunk of the Chevrolet car in his pants pocket. He stated that he asked Garner about a Johnson C.B. and Garner quoted him the price of $75.00 for it. Boyd further testified that he went back to Birmingham Police Headquarters and talked with Sergeant McDonald concerning what he had seen in Garner’s possession at the Parade Service Station. Boyd stated that he told McDonald that several of the radios had their call numbers scratched off and that he and Sergeant McDonald then went and swore out a search warrant. Boyd stated that Docena Road is located in Jefferson County, Alabama.

On cross-examination, Boyd indicated there was a sign in front of the Parade Service Station which advertised C.B.’s for sale. He stated that a friend of his, a Mr. Tucker, had ridden out there with him on September 12, 1977, when he first talked with Garner, the appellant, about the C.B. radios. Tucker had previously been to Garner’s station. Boyd also indicated that some of the C.B. radios had their call numbers glued on them with paper stickers and others were etched into the metal. He stated that a number of the C.B. radios which he saw at the station had their numbers removed. Boyd stated that he also purchased a pistol from Garner for which he paid $75.00. He testified that he noticed some Johnson C.B. radios, some Realistic radios, and some Lafayettes, at least a dozen in all, in the trunk of Garner’s Chevrolet automobile. Boyd stated that Garner also had some C.B. radios in the trunk of a Cadillac automobile and he also opened the trunk and showed him some of these C.B. radios.

Jefferson County Deputy Sheriff Michael Lynn Moore testified that, accompanied by Sheriff’s Sergeant Swatek, he went to the Parade Service Station at Route 14, Box 146, on Docena Road in Jefferson County on the afternoon of September 15, 1976. There the search warrant was served on Fred Garner, the appellant, for the 1971 Chevrolet automobile. He stated that this station was located outside the municipal boundaries of the City of Birmingham.

Birmingham Police Sergeant T. W. McDonald stated that on September 15, 1976, he was present at a Parade Service Station on Docena Road in Jefferson County when a search warrant was served on Fred Garner, the appellant, by Deputy Sheriff Michael Moore. The officers then asked Garner to open the trunk of the Chevrolet automobile, which he did, and it contained twelve C.B. radios, two walkie-talkies, and in particular one Johnson Messenger 121 C.B. radio that still had some call letters and dates. McDonald stated that the automobile was a 1971 Chevrolet, black over bronze in color, with a Walker County 1976 tag, No. 64-12703. Sergeant McDonald also identified some photographs, which were made on that same afternoon, September 15, 1976, at the Parade Station, of the entrance and vehicles parked there, and in particular the trunk of the Chevrolet automobile in question.

On cross-examination, Sergeant McDonald'stated that he noticed a house trailer just to the left of the Parade Service Station and some vehicles parked in or near the station. He stated that Fred Garner, the appellant, told him the 1971 Chevrolet belonged to him and that he lived in the house trailer nearby.

Birmingham Police Sergeant C. S. Bailey stated that on September 15, 1976, he went to the Parade Service Station, located at Route 15, Box 146, on Docena Road in Jefferson County, and was present when a search warrant was served on Fred Garner, the appellant. The trunk of a black over bronze 1971 Chevrolet was opened and he was handed the key by Mr. Garner. Bailey stated, upon being shown several photographs, that they represented the position of the Chevrolet and the station on the afternoon in question. Bailey also indicated that Garner told him the 1971 Chevrolet belonged to him and he saw several C.B. radios in the trunk, also a couple of walkie-talkies, and that these items were inventoried and taken to the Jefferson County Police property locker and there locked in it.

Appellant’s motion to exclude the state’s evidence on the grounds that it failed to make out a prima facie case was overruled.

James Simmons stated that he worked part-time during the summer of 1976 at the Parade Service Station owned by Fred Garner on Docena Road in Jefferson County, Alabama. He stated that one Sunday he was helping to take apart a damaged 1965 blue Oldsmobile and that James Clay and Richard Lewis were also helping to take the car apart. Simmons indicated that Clay was cleaning out the trunk of the car when he removed a spare tire and jack. He then saw Clay remove a C.B. radio from the trunk. He stated that all of these items were turned over to Garner. Simmons said the men took the motor out of this car and put it in a different automobile.

On cross-examination, Simmons said that Garner kept used radios at his station which he repaired for other people, but that the C.B. radio removed by Clay from the damaged Oldsmobile was a Johnson Messenger C.B. Simmons also indicated that he worked regularly at TCI and occasionally worked on weekends for Garner.

James Clay stated that he worked for Cochran Roofing Company in Birmingham and on weekends did some part-time work for Fred Garner at the Parade Service Station located on Docena Road. He stated that he remembered a Sunday afternoon in which Mr. Simmons and Mr. Lewis helped him take a wrecked blue Oldsmobile apart and remove the parts. Clay stated that he removed a Johnson Messenger C.B. radio from the trunk of this car.

Fred Garner stated that he owned a Parade Service Station located at Route 15, Box 146, on Docena Road near the Adams-ville Cutoff in Jefferson County in 1976. He stated that he sold canned food, milk, bread and cigarettes. He stated that he had a sign which advertised that he worked on C.B. radios. Garner stated that he bought several new C.B.’s from a salesman with the Hav-a-Tampa Jewel Cigar Company and that a man named “Slim” would come by and pick up C.B.’s, repair them, and bring them back to him. Slim worked at TCI. Garner indicated that in 1976 he bought a wrecked, blue, 1965 Oldsmobile from a man named Eugene Cooper and paid him about $45.00 for it. He said that one Sunday afternoon he had James Simmons, James Clay, and Richard Lewis take the car apart, that Clay removed a Johnson C.B. radio from the trunk and brought it to him. He said he thought it was a Johnson Messenger. He said that when the men left he put the radio in the trunk of the 1971 Chevrolet where he kept these radios locked. He said he was present when a black police officer came to the station and talked with him about buying a C.B. radio, then a couple of days later several Birmingham police officers came out and served a search warrant on him. Garner indicated that about six or seven officers were present, that he gave them the keys to the trunk of the Chevrolet automobile and they removed some C.B. radios from it.

On cross-examination, Garner indicated he only knew his repair man as “Slim,” that he knew how to get to “Slim’s” house, and “Slim” would come by a couple of times a week to pick the C.B.’s up, repair them, and bring them back. He said Slim lived below Adamsville and that he had his telephone number. He further stated that the Hav-a-Tampa Jewel salesman’s name was Clayton Sanders, that he had been coming by his station for about three years, and at one time he, Garner, had bought five radios from him. Garner stated that he lived next to his station in a house trailer.

Birmingham Police Sergeant T. W. McDonald was recalled and testified that on the afternoon of September 15,1976, he and Sergeant Bailey took twelve C.B. radios out of the trunk of the 1971 Chevrolet automobile at the Parade Service Station. He said that several of these had their call numbers removed and that the Johnson Messenger was the one radio in the trunk that had numbers on it. Sergeant McDonald also stated that he. saw two sets inside the service station, lying on the counter, that these were new and boxed, that they appeared to have come from Hav-a-Tampa Cigar Company, and that they left them there. McDonald then described each of the twelve radios which were inventoried and taken to Police Headquarters. He also stated that the appellant, Fred Garner, told him he often had people bring radios to be repaired and he would lock these in the trunk of the Chevrolet automobile.

I

Appellant’s counsel calls this Court’s attention to three instances which occurred during trial wherein the trial judge interrupted the questioning of witnesses to ask questions by the court.

The first occurred during the examination of the witness James Clay (R. pp. 59-62) when the trial judge asked, “When did you first find out you were going to testify in this case,” to which the witness replied, “It wasn’t this month, seems like it was after Christmas when I got the subpoena.” The witness also stated he had discussed the matter with Mr. Simmons concerning the C.B.’s

No objection or other motion was interposed to this line of questioning by the court.

The second instance where questioning by the court occurred is on record pages 77-78 when the trial court, following cross-examination, asked the appellant the following question, “Were the C.B.’s in the trunk of the Chevrolet to be repaired or thrown away,” to which the appellant replied, “Some of them had been repaired, maybe one or two, and Slim would pick up some in the afternoon and we would leave the others in the trunk.”

Again, no objection was interposed or other motion made to this line of questioning by the trial judge.

The third instance occurred following redirect examination of the appellant when the court (R. pp. 85-86) asked about other radios in the trunk of the Cadillac automobile, to which the appellant replied, “These radios belong to a friend of mine and I did not want these mixed up with those which had been left to be repaired.” Again, no objection or other motion challenged this line of questioning by the trial judge. The rule covering this situation is well-stated in Brandes v. State, 17 Ala.App. 390, 85 So. 824, as follows:

“. . The unquestioned province of the court—in fact, the solemn and sacred duty of a trial judge—is the development and establishment of the truth, and in this connection it is always permissible for the court, and if it appears necessary for him to do so it is his duty, to propound to witnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to the one party or the other. Beal v. State, 138 Ala. 94, 35 So. 58. In fact, it is a sacred duty of a judge, both in civil and criminal cases, to give strict attention to the evidence, and to all facts and incidents attendant upon the trial, to propound questions to witnesses if in his judgment he deems it necessary, and to supervise and control the proceedings before him, with a view that justice may not miscarry. As before stated, there is nothing in the record before us even tending to show that the trial judge transcended his authority or abused the discretion with which, under the law, he is vested.
“It is our opinion that the trial court properly exercised its prerogative in the ascertainment of certain aspects of the testimony, as set forth above, and that such did not invade the rights of the accused. Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692.”
Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218; and Smith v. State, 57 Ala. App. 151, 326 So.2d 680.

Further, the questioning by the trial judge, in our opinion, was designed to eliminate confusion in the answers given by the witnesses, so we see no error in the questions asked. Franks v. State, 45 Ala.App. 88, 224 So.2d 924; and Smith v. State, supra.

Where, as here, no objections were made or exceptions taken to the questioning or comments, nothing is presented here for review. Rice v. Hill, 278 Ala. 342, 178 So.2d 168; State v. Boyd, 271 Ala. 584, 126 So.2d 225; and Davis v. State, 54 Ala.App. 115, 305 So.2d 390.

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Fred GARNER.
    78-88.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: DeCARLO, Judge.

text:
    Calvin MOORE v. STATE.
    6 Div. 575.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Quentin Brown, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Calvin Moore was indicted by the Jefferson County Grand Jury for first degree murder being charged with the shooting ■death of Larry Thomas McCracken. At arraignment he entered a plea of not guilty and not guilty by reason of insanity.

Following arraignment, at defense counsel’s request, a mental competency hearing was held and appellant was found sane and competent to stand trial. Immediately after the competency hearing, a jury was empanelled and after hearing evidence presented at trial, found Moore guilty of second degree murder. His punishment was fixed at thirty years imprisonment. After giving prompt notice of appeal, a motion for a new trial was filed and denied. He is now before this court as an indigent with appointed counsel and free transcript.

The evidence presented to the jury at the appellant’s competency hearing showed that Moore was a twenty-five-year-old male, who, according to his mother, had not been normal since birth. She testified that, at age of nine or ten, Moore was struck on the back of the head with a baseball bat and that the injury required sutures. She said that following this injury, her son complained of frequent headaches, but their cause was never discovered.

Prior to the shooting in 1976, Moore was an in-patient at the University Hospital in Birmingham, Alabama. Moore’s moth er had informed the hospital staff that the patient was nervous, complained of headaches, and “shook a lot.” She stated that, prior to her son’s admission to the hospital, she had received complaints from her neighbors that he had been exposing himself in public.

Following his admission to the hospital, Moore was under the supervision of Dr. Teresa Young, a resident in psychiatry. Dr. Young was part of a treatment team and testified that the appellant had taken a battery of psychiatric and psychological tests. The results of these tests indicated that the appellant had an intelligent quotient of fifty-six, which placed him in a mildly retarded classification.

The appellant was also given a Bender-Gestalt test which indicated some degree of brain damage. However, no specific organic dysfunction was found by x-ray or electroencephalographic readings.

Dr. Young testified that the appellant had manifested paranoid psychotic characteristics in the form of hallucinations which involved “little green men” and a voice from the television telling the appellant that he would kill him. According to Dr. Young, the appellant was placed under heavy medication.

In October, 1976, Moore was discharged as an in-patient from the hospital. Shortly thereafter he received treatments on an out-patient basis at the Smolian Clinic in Birmingham.

The preceding paragraphs recite substantially what was presented at the appellant’s competency hearing. In our judgment, there was sufficient evidence to present the question of appellant’s sanity to the jury.

At the conclusion of the competency hearing, another jury was empanelled for the trial on the merits and the following evidence was presented to them.

The evidence tended to show that on the morning of December 3, 1976, Larry McCracken, the victim, took about seven dollars from the appellant, Moore. Moore demanded the return of his money, and when the deceased refused, Moore went home and returned with his brother’s pistol. Moore again asked McCracken to return his money and, according to Sammy Thompson, an eyewitness, McCracken replied: “I’m going to give you your money.”

Thompson stated that Moore walked up to McCracken. He further said that he did not see anything in Moore’s hands. Thompson described what had occurred in the following manner:

“Q But you saw Larry McCracken take some money out of his hat?
“A Yes, sir.
“Q What did he do with it?
“A It looked like he was rushing him, he was trying to come up on Calvin, come up to him, and when he tried to come up, Calvin just shot. I don’t know whether he had it in his hand or his pocket or whatever, but Larry McCracken was trying to walk up towards him.”

Further cross-examination of Thompson:

“A Calvin was just standing there, McCracken was coming towards him and Calvin said give me my money. And he went in his hat, just like this here, and he was going in his hat, and he throwed the money, he was still running up trying to rush the man with his hands by his side. “Q Did all of this happen just simultaneously, the rushing and throwing the money at the same time?
“A Yes, sir.
“Q Just before this rushing and everything, was Calvin still talking about I want my money back?
“A Yes, sir.
“Q In other words, I want my money back, throw, rush, bang?
“A Yes, sir.
“Q How would you describe the way Calvin appeared just before the shot was fired?
“A Scared.
“Q How would you describe the expression of Larry McCracken, if you can put a label on it?
“A I can’t put no label on that.
“Q Did Calvin make any move toward Larry McCracken whatever, with his hands, any type of gesture toward Larry McCracken before Larry McCracken actually started rushing toward him?
“A No. He was standing in one place.”

On the evening of the shooting, after the appellant had surrendered himself to the police, he was given his Miranda warnings. He said he understood them and then made a statement. The statement was recorded and admitted into evidence without objection.

In this recorded statement, Moore said that the deceased would not give him his money so he shot him. Further, Moore told the police that the deceased did not have a gun or a knife, and did not threaten him. Moore told the police that he drew the gun on McCracken when he (Moore) asked for the return of his money.

Several witnesses were called to testify to appellant’s reputation in the community. Their opinion was that Moore was retarded, insane, confused, and did not know right from wrong. Further, he was known in his neighborhood as “Wheelbarrow Moore,” a name derived from his shuffling gait, or “Mad Moore.”

Dr. Young, on further questioning, testified that, although appellant had some difficulty in doing so, he could discern between right and wrong.

I

The appellant contends that during opening statements the prosecution made comments concerning the defendant’s past criminal record and time served in prison. He argues that this amounts to reversible error when the defendant does not take the stand and when the statement is unrelated to any attempt to show motive, intent, scienter or identity. The remarks in question are quoted below:

“MR. RUSSELL:
“The question then comes down to this, whether or not this defendant, at the time of this shooting, at the time he killed Larry McCracken, was insane. I think you will probably hear medical testimony by the defense that this defendant was beaten up in the penitentiary by prison guards, I imagine back in ’73 and ’74, when the riots were going on down there at Atmore. . . ”

We have examined the opening statements by the prosecution and the defense attorney and have not found that any objection was made to this remark. In fact, at the conclusion of the defense attorney’s opening statement, he made the following comment:

“MR. BRYAN: I would move that there be no intentional references by Mr. Russell to the defendant’s prior record. He hasn’t taken the witness stand. Even though some things came out in the competency hearing, which was I think a little bit more relaxed atmosphere, I don’t know if we will get to that stage where it might properly come out in this case.”
“MR. RUSSELL: I never have done that in eight years. The only time I would is if he tries to get into the victim’s record.
“MR. BRYAN: You mentioned it in your opening remarks and I didn’t object to it at the time.
“MR. RUSSELL: That was unintentional if I did. I apologize.
“THE COURT: I can’t rule on all these objections made to something that may come up. It’s too speculative. I’ll have to wait until I get to all of these objections. I think the Court of Appeals will understand that one.”

In the absence of an objection by counsel, a motion to exclude, a ruling on the objection, or a refusal of the trial judge to rule thereon, improper argument or remarks by counsel are not subject for review by this court. Brown v. State, 50 Ala.App. 471, 280 So.2d 177; Veith v. State, 48 Ala.App. 688, 267 So.2d 480; Hutcherson v. State, 40 Ala.App. 417, 114 So.2d 572.

However, an exception to this rule exists where the comment is so prejudicial that its effect is ineradicable. Anderson v. State, 209 Ala. 36, 95 So. 171; Christian v. State, Ala., 351 So.2d 623; Gunnels v. Jimmerson, Ala., 331 So.2d 247. But, in view of the materiality of the appellant’s mental condition, we do not believe that the comment falls within this exception. See Lyons v. State, 53 Ala.App. 111, 298 So.2d 42.

It is our judgment that, without a timely objection, this court has nothing to consider.

II

Next, the appellant insists that the trial court erred in sustaining objections by the prosecutor to defense counsel’s questions which sought to enhance the victim’s reputation for violence and show the history of his past crimes. He maintains there was sufficient evidence to show that the accused was acting in self-defense and therefore the deceased’s reputation for violence was admissible.

In a prosecution for homicide the general rule is that the defendant may show the victim’s bad general reputation for violence as tending to show the defendant’s apprehension of peril where there had been evidence tending to show self-defense. McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756; Cole v. State, Ala.Cr.App., 337 So.2d 40; Body v. State, 57 Ala.App. 593, 339 So.2d 650; Mitchell v. State, 53 Ala.App. 58, 297 So.2d 383.

The cases cited by appellant in support of his contention state that, where the evidence tends to show that the defendant acted in self-defense, the defendant may show that the deceased habitually carried a weapon. However, for such evidence to be admissible, there must be other evidence that the defendant knew of the deceased’s habit. Wielen v. State, 47 Ala.App. 108, 251 So.2d 240; Frazier v. State, 48 Ala.App. 210, 263 So.2d 511; Glover v. State, 200 Ala. 384, 76 So. 300.

In the present case the appellant attempted to establish through Sammy Thompson and D. L. Weber, a sheriff’s employee, that the deceased had been convicted of a federal offense of possessing a sawed off shotgun, and that he was on work release at the time he was killed.

No attempt was made to establish that the appellant knew the deceased carried a weapon. In fact, appellant told police the deceased had no weapon and made no threats to him. Further, the fact that the deceased was once convicted of possession of a weapon does not show habit or that he was a “pistol toter.”

Based on the foregoing, it is our judgment that no reversible error is shown in the action of the trial court in sustaining the prosecutor’s objection.

Ill

Finally, the appellant asserts that the evidence was not sufficient to sustain the appellant’s conviction for murder in the second degree.

In the present ease appellant had made a motion to exclude the State’s evidence and moved for a directed verdict on the ground that the shooting was in self-defense. After these motions were denied the appellant contended, as a basis for a motion for a new trial, that the verdict was contrary to the law and against the preponderance of the evidence.

Self-defense, like alibi evidence and all other conflicting evidence, is a question for the jury to determine. Graham v. State, Ala.Cr.App., 339 So.2d 110. To excuse one charged with murder on the grounds of self-defense, the accused must neither provoke nor encourage the difficulty, and must at the time have been, or appeared to have been, so menaced as to create a reasonable apprehension of loss of life or grievous bodily harm. There must be no reasonable mode of escape from the menace. McDonald v. State, Ala.Cr.App., 340 So.2d 80.

The evidence in the present case showed that Moore confronted the victim with a gun and demanded the money that the victim had taken from him. Further, the appellant stated to the police that he shot the deceased because he did not return his money and that he had not been threatened by the deceased. Without question, under these facts the jury could determine that the killing was not done in self-defense

The testimony presented in this case falls short of the legal test of insanity. See Parsons v. State, 81 Ala. 577, 2 So. 854; Barbour v. State, 262 Ala. 297, 78 So.2d 328. Where sufficient mental capacity exists to entertain the requisite criminal intent, neither abnormality nor sub-normality will preclude liability for the commission of a crime. Parker v. State, Ala.Cr.App., 351 So.2d 927; Lee v. State, 265 Ala. 623, 93 So.2d 757.

Moore’s retardation is not compelling evidence of insanity. Dr. Young stated that it would be her opinion that the appellant was able to “comprehend his surroundings,” and to judge the difference from right and wrong.

The defense of insanity must be proved to a reasonable satisfaction of the jury and the burden is on the appellant to do so. Breen v. State, 53 Ala.App. 588, 302 So.2d 562.

Where evidence is presented that supports and contradicts a plea of not guilty and not guilty by reason of insanity, a jury question is presented. Rickard v. State, 283 Ala. 534, 219 So.2d 363.

Under the facts of this case, sufficient evidence was presented to the jury on whether or not the appellant was insane. In view of the jury’s guilty verdict, that question was not resolved in appellant’s favor.

In our judgment, the trial judge properly overruled the motion to exclude, the motion for a directed verdict, and the motion for a new trial.

After reviewing the record, we have found no error and therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Calvin MOORE.
    78-82.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: BOWEN, Judge.

text:
    Daisy CHAMBERS, alias Daisy Washington v. STATE.
    6 Div. 849.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

Daisy Chambers was indicted and convicted for child abuse. Sentence was set at three years’ imprisonment.

Two questions are presented on this appeal: (1) The constitutionality of Alabama’s new child abuse law, Section 26-15-1 through Section 26-15-4, Code of Alabama 1975, and (2) the sufficiency of the indictment to charge an offense under that act.

I

Section 26-15-3, Code of Alabama 1975, of the present Alabama Child Abuse Act states:

“A responsible person, as defined in section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years.”

The appellant contends that this provision is too vague and indefinite to be enforceable as a penal statute. Seizing upon the language of this court in State v. Ballard, 341 So.2d 957, 962 (Ala.Cr.App.), cert. denied, 341 So.2d 962 (Ala.1977), he maintains the statute renders the defendant helpless in forming and presenting her defense. He argues that the words “torture” and “willfully abuse” are vague and indefinite and destroy the constitutional validity of the statute.

In Jordan v. DeGeorge, 341 U.S. 223, 230-231, 71 S.Ct. 703, 707-708, 95 L.Ed. 886 (1951), the United States Supreme Court succinctly stated the general principles involved when a statute is constitutionally challenged for vagueness.

“The essential purpose of the ‘void for vagueness’ doctrine is to warn individuals of the criminal consequences of their conduct. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, decided April 23, 1951; Screws v. United States, 1945, 325 U.S. 91, 103-104, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495. This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. Lanzetta v. State of New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516.”
******
“We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzback, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Impossible standards of specificity are not required. United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.”

Recent decisions have upheld these doctrines. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); McKinney v. Parsons, 513 F.2d 264 (5th Cir.), cert. denied, 423 U.S. 960, 96 S.Ct. 376, 46 L.Ed.2d 289 (1975); Piggly-Wiggly of Jacksonville, Inc. v. City of Jacksonville, 336 So.2d 1078 (Ala.1976); Bolin v. State, 266 Ala. 256, 96 So.2d 582 (1957); Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977); Ballard, supra; Blocker v. State, 40 Ala.App. 658, 120 So.2d 924 (1960). Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. U. S. v. Powell, supra; United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).

Applying these principles to the statute and facts before us, we uphold the constitutionality of Alabama’s new Child Abuse Act.

In State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475 (1976), the Supreme Court of Wisconsin held that its child abuse statute was not unconstitutional in its use of the term “cruel maltreatment”. The court specifically held that the terms utilized in the statute were sufficiently definite in meaning, in accordance with their common usage and understanding, to meet constitutional standards. Likewise, in State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968), the Supreme Court of Kansas held that “words like ‘beat’, ‘abuse’, ‘torture’, ‘cruelty’, and ‘traumatic’ ” provide “reasonable definite standards which one reading the (child abuse) statute can understand and contemplate”. Fahy, 440 P.2d 569-570.

Other child abuse laws containing similar terms have withstood the “test for vagueness”. State v. Samter, 4 Or.App. 349, 479 P.2d 237 (1971), “cruelly mistreats and maltreats”; Hunter v. State, 360 N.E.2d 588 (Ind.App.1977), “habitually tormenting, vexing or afflicting”, “inflicting unnecessarily severe corporal punishment”; “unnecessarily suffering or pain, either mental or physical”, “unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child”; Bowers v. State, 38 Md.App. 21, 379 A.2d 748 (1978), “cruel or inhuman treatment”; Jordan v. State, 334 So.2d 589 (Fla.1976), “unlawfully or willfully torturing, caging, or mutilating”, “the cruel, wanton, or malicious tormenting or punishing”, “the intentional or knowing infliction of great bodily harm, permanent disability, or permanent disfigurement”; Campbell v. State, 240 So.2d 298 (Fla.1970), “unnecessarily and excessively chastises”; Faust v. State, 354 So.2d 866 (Fla.1978), “willfully tortures”, “maliciously punishes”, “willfully and unlawfully cages”. In each of these cases the court found the particular statute not unconstitutionally vague since a person of ordinary intelligence can ascertain what conduct is prohibited by the act.

In the Alabama statute, the use of the words “willful abuse” and “torture” in defining what constitutes child abuse are not so vague and indefinite as to render the statute void for vagueness. Each term has a commonly understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport. The new Alabama Child Abuse Act, Section 26-15-1 through Section 26-15-4, Code of Alabama 1975, defines the crime of child abuse with appropriate certainty and definiteness and conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices. This new Child Abuse Act was enacted in response to the constitutional infirmities of its predecessor. Ballard, supra. The new act passes constitutional muster.

II

The indictment, omitting its formal portions, charges that

“Daisy Chambers, Alias Daisy Washington, whose name is otherwise unknown to the Grand Jury, did while a responsible person, to-wit: The natural mother of Karen Chambers, having permanent or temporary care or custody or responsibility for the supervision of said Karen Chambers, tortue (sic), willfully abuse, cruelly beat or otherwise willfully maltreat Karen Chambers, a child under the age of eighteen (18) years, by beating said child with a belt and hand, .

It is argued that this indictment is insufficient to inform the appellant of the crime with which she was charged. Seizing on the language of this Court in State v. Ballard, 341 So.2d 957 (Ala.Cr.App.1976), cert. denied, 341 So.2d 962 (Ala.1977), it is argued that the accused did not receive sufficient information to enable her to reasonably understand, not only the nature of the offense, but the particular act or acts touching which she must be prepared to present her defense.

The indictment must contain the elements of the offense intended to be charged and sufficiently appraise the defendant of what he must be prepared to meet. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Andrews v. State, 344 So.2d 533 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (Ala.1977); Section 15-8-25, Code of Alabama 1975. Reading the indictment as a whole, the accused should receive sufficient information to enable him to reasonably understand not only the nature of the offense but the particular act or acts touching which he must be prepared with his proof. Donahey v. City of Montgomery, 43 Ala.App. 20, 178 So.2d 832, cert. denied, 278 Ala. 708, 178 So.2d 837 (1965). The indictment must state the facts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding, “neither a Solomon nor a simpleton”, to know what is intended. Section 15-8-25, Code of Alabama 1975; Manson v. State, 349 So.2d 67 (Ala.Cr.App.), cert. denied, 349 So.2d 86 (Ala.1977). Here the accusation against Chambers is clear and definite. Under the indictment she is charged with torturing, willfully abusing, cruelly beating, or otherwise willfully maltreating her daughter by “beating said child with a belt and hand”. This indictment states sufficient facts, in ordinary and concise language, to enable the appellant to understand both the nature of the crime charged and the particular acts against which she must prepare her defense.

A defendant who was called upon to answer an indictment which tracked the language of our old child abuse statute (Title 14, Section 41(1), Code of Alabama 1940, Recompiled 1958),

“could be put in an impossible position in preparing to defend himself against charges of ‘unjustifiable pain’ or ‘ordinary and reasonable punishment’. These are subjective terms and there are no standards whereby one can determine what constitutes the crime. He might appear in court to adequately defend himself against charges that he ‘hit, beat, struck, cut, stabbed, burned or scalded’ a child. On the other hand, he might be met with evidence adduced by the State that he chained his child to a bed in a dark room without food or water. No one would contend for a moment that such an act would not be ‘unjustifiable pain’ or would constitute ‘ordinary and reasonable punishment’, yet the defendant would be helpless in preparing his defense to such evidence. Such language is vague, indefinite and overbroad and cannot pass constitutional muster.” Ballard, 341 So.2d at 962.

The present indictment and statute are not subject to the same objection. The present indictment was specific in its averments (1) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury, (2) to enable the defendant to prepare for his defense, (3) to allow the judgment to protect the defendant and foreclose the possibility of being twice put in jeopardy for the same offense, and (4) to enable the trial court after conviction to pronounce judgment on the record. Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977).

We have searched the record for error prejudicial to the appellant and found none. The Child Abuse Act is constitutional and the indictment in this case sufficiently charged the crime of child abuse. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Daisy CHAMBERS.
    78-91.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Diane BELL, alias v. STATE.
    7 Div. 604.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

The Grand Jury of Etowah County, Alabama returned the following indictment against appellant in September of 1977:

“The Grand Jury of said County charges that before the finding of this Indictment Diane Bell, alias Dianne Bell, alias Diane Dale, whose name to the Grand Jury is otherwise unknown than as stated, feloni-ously took and carried away one (1) pink slip, of the value of $10.00, the personal property of Ricky Hagedorn, contrary to law and against the peace and dignity of the State of Alabama.”

Appellant was subsequently arraigned in the presence of counsel, at which time she entered a plea of not guilty. Upon a trial by jury, appellant was found guilty, the jury assessing a fine of four hundred dollars. The trial court adjudged appellant guilty, imposing the fine as set by the jury and adding twelve months imprisonment in the county jail. Nine months of this jail time was suspended.

After sentence was imposed appellant gave notice of appeal. Having been found indigent, appellant was provided a free transcript and trial counsel was appointed to represent her on appeal.

This case arose from an incident at Hage-dorn’s, a clothing store, in the Gadsden Mall in Etowah County. On February 4, 1977, Richard Hagedorn, the manager of the store, saw two women, one of whom he identified as the appellant, “fooling around” with some merchandise at a rack of lingerie. When the two women left the store, Hagedorn saw that two of the clothes hangers on the rack were empty.

Hagedorn and a salesperson named Valerie Mims followed the women out into the mall parking lot where Hagedorn flagged down a policeman. Two to three yards from the spot where appellant was apprehended, Hagedorn saw several items of clothing on the ground, among them a pink slip marked with a “Hagedorn’s” tag. Although the tags of items purchased in the store are torn in half at the time of purchase, Hagedorn testified, the tag on the slip was intact. As the manager of the store, Hagedorn was familiar with the value of the slip, testifying that it cost $10.00.

Valerie Mims testified that she was employed at Hagedorn’s on the day in question. That afternoon Ms. Mims observed three women come into the store, two of them carrying large handbags. One of the two carrying a handbag was identified by Ms. Mims as the defendant. While watching the women standing behind a rack of lingerie, Ms. Mims saw a pair of hands remove a pink gown from the rack and place it into a handbag. Ms. Mims further testified that she and Hagedorn followed the women out into the mall parking lot. The rest of the witness’s testimony corresponds with that of Hagedorn. However, Ms. Mims did see appellant throw the gown out in the parking lot.

Lieutenant Morris Alexander testified that he recovered the pink slip and other items in the mall parking lot near appellant. He turned the slip over to Sergeant David Gartman.

Sergeant David Gartman testified that he recovered a pink slip from Lieutenant Alexander in the mall parking lot, subsequently returning the slip to Hagedorn’s. Gartman further testified that appellant was one of two females that had been taken into custody by Officer Alexander at the scene.

Appellant denied any involvement in the theft of the slip.

Appellant first contends that the trial court erred to reversal by allowing testimony by witnesses that they observed a Hage-dorn’s tag on the slip found in the parking lot. It was shown by the testimony that, when a sale is made, the price tag is torn in half. The tag on the slip was not torn, showing that the slip had not been sold in the store. Although the slip was recovered and returned to the store, it was not produced at trial. Appellant argues that the testimony concerning the merchandise tag violated the best evidence rule.

We do not agree. The best evidence rule applies when the party wishes to prove the terms of a writing. In that situation, the original is deemed to be the “best evidence” of its terms. Gamble, McElroy’s Alabama Evidence, 3rd Ed., Section 212.01. However, it is well established that the rule does include chattels. Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. denied, 291 Ala. 777, 278 So.2d 200.

It would appear that chattels which bear an inscription might fall within the best evidence rule; but the Alabama cases have not so held. Benjamin v. State, 12 Ala.App. 148, 67 So. 792, held that the rule does not apply to: directions on a parcel; words written on a valise; and labels attached to jugs and decanters, indicating their contents. Similarly, a no trespassing sign was not required to be produced in order to prove its inscription in Harper v. State, 109 Ala. 28, 19 So. 857.

The State was not required to introduce the merchandise tag into evidence in order to prove that it was from Hagedorn’s. The trial court committed no error.

Next appellant contends that the trial court erred in denying his motion to require the State to produce the stolen item at trial. Apparently Hagedorn’s disposed of the slip by sale or otherwise after its return by the police. Appellant asserts in brief that the State “must identify stolen property, found in the possession of the accused with that for the theft of which accused is indicted, and this must be done by most direct and positive testimony of which the case is susceptible.” Haun v. State, 44 Ala.App. 675, 219 So.2d 906.

Appellant’s assertion of law is correct to an extent; but Haun, supra, does not require the actual production of the item which is alleged to have been stolen. It is well established that the loss of property through felonious taking may be proved by facts and circumstances as well as by direct and positive evidence and the evidence is sufficient to sustain an accused’s conviction for larceny if it affords the inference that larceny has been committed. Gross v. State, 56 Ala.App. 387, 321 So.2d 727, cert. denied, 295 Ala. 403, 321 So.2d 729, [Numerous other cases on this point may be found in Alabama Digest, Larceny, ©=>68(1)].

Here the evidence was more than sufficient to sustain appellant’s conviction for petit larceny.

Appellant also argues that there was no sufficient proof of value, since Ricky Hage-dorn did not work in the ladies’ department and based his opinion on the price charged by the store. Here there was no error for two reasons.

First, Hagedorn testified that he was familiar with the value of the merchandise in the store and that the slip was valued at $10.00. This testimony met the requirements for proof of value. Gamble, McElroy’s Evidence, 3rd Ed., Section 128.11.

Secondly, the value of the property, which is alleged to have been stolen, is not an element of the corpus delicti of larceny “in the strictest sense.” Rather, the value of the property is the factor to be decided for the determination of whether the larceny was grand or petit. Vandegrift v. State, 151 Ala. 105, 43 So. 852; Cain v. State, 56 Ala.App. 505, 323 So.2d 390, cert. denied, 295 Ala. 395, 323 So.2d 391. Furthermore, the fact that Hagedorn said that his opinion as to value was based on the price listed on the store’s tag made a jury question as to the weight of his evidence. Cain, supra.

Appellant also argues that a fatal variance existed between the description of the item stolen as alleged in the indictment and the proof of the item as described at trial. As it was pointed out in the facts, above, the indictment alleged the item stolen as a slip. At trial one witness, Valerie Mims, described the item taken as a nightgown. However, all other State witnesses described the item as a slip, including Hagedorn, the manager of the store.

Generally, it is well established that, in a prosecution for larceny, the proof must correspond with the description of the identical thing alleged in the indictment to have been taken. Hammac v. State, 44 Ala.App. 459, 212 So.2d 849. No variance exists here. The fact that the State’s witnesses described the item taken somewhat differently presented a question for the jury. See Higginbotham v. State, Ala.Cr.App., 346 So.2d 525, where a witness described a motor as being 7V2 horsepower, when the indictment alleged a 7 horsepower motor.

Related to this issue is appellant’s contention that another fatal variance existed, in that the indictment alleged ownership in Ricky Hagedorn while the proof established that he was only the manager. This does not constitute a fatal variance. The evidence established that Hagedorn, as manager of the store, was in lawful possession of the item at the time it was taken. This proof satisfied the required allegation of ownership in the indictment. Gandy v. State, 35 Ala.App. 299, 46 So.2d 247.

Appellant also argues that the indictment is defective in that it charges “petit” larceny but alleges that the property was “feloniously” taken. Apparently appellant’s argument is that the indictment should have alleged that the property was “petitly” taken. Such an argument is specious at best.

We find in Black’s Law Dictionary, 4th Ed., the following definition of “felonious.” It is a technical word of law which means that an act was done with the intent to commit a crime. Specifically, in the law of larceny, “felonious is synonymous with fraudulent; . . . and means done ‘ani-mo furandi,’ that is with intent to steal.” Alabama case law reflects the same reasoning. Farzley v. State, 231 Ala. 60, 163 So. 394, at 396.

A careful search of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Diane BELL.
    78-100.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Lewis Charles SNIPES v. STATE.
    1 Div. 945.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      Chris N. Galanos, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: ten years imprisonment.

Around dusk on December 20, 1977, the appellant entered the D & E Grocery and asked the cashier, Ms. Terri Davis, for the location of disposable diapers. Ms. Davis directed him to the rear of the store. The appellant returned to the counter with a box of diapers and asked if the store had any others. He was redirected to the rear of the store, and Walter Reeves, a plain clothes guard, followed to assist him. Ms. Davis testified she next heard shots fired in rapid succession from the rear of the store. Ms. Davis looked up and saw Reeves and the appellant struggling with a gun. Reeves called for Ms. Davis to hit the appellant with Reeves’ blackjack, which she did. At that time, appellant pushed Ms. Davis, kicked her, and fell on her. He then disengaged himself from the affray and fled.

Mr. Reeves testified to substantially the same facts as Ms. Davis, but added that the appellant told him “this is a hold-up” and shot him several times with a handgun during the ensuing struggle. Reeves added that the appellant then placed the gun against him and said “I am going to kill you.” The appellant pulled the trigger, but the gun failed to fire because all the bullets had been spent.

Both Ms. Davis and Mr. Reeves were able to identify the appellant’s picture from a photographic array presented to them separately by Sergeant T. C. James of the Prichard Police Department.

The appellant presented an alibi defense consisting of testimony of his first cousin, Ernest Cowin. Cowin stated he had been playing cards with appellant at a location some distance away from the D & E Grocery until shortly before dusk the day the robbery occurred.

I

Appellant argues that the trial court committed reversible error in refusing to give his Requested Charge 15 to the effect that the legal presumption of innocence was to be regarded as a matter of evidence.

The correct principle of law embodied in the above charge was well stated in Davis v. State, 284 Ala. 135, 222 So.2d 719 (1963) as follows:

“Our decisions are to the effect that the presumption of innocence in favor of an accused is evidence which attends the accused until other evidence is presented (usually by the state) sufficient in the judgment of the trier of fact to overcome this primary presumption.”

The failure to give such a charge is error provided the subject was not substantially and fairly covered in the court’s oral charge or in a charge given at the appellant’s request. Section 12-16-13, Code of Ala.1975; Bryant v. State, Ala.Cr.App., 348 So.2d 1136 (1977).

The proper principle was adequately covered in appellant’s Charge 14 which was given by the trial court:

“The court charges the jury that the defendant is never called upon to produce any evidence as to his innocence in that he is presumed to be innocent and that presumption is evidence that follows him through the trial.”

II

Appellant argues that the trial court erred in giving the State’s Requested Written Charge 2 which was as follows:

“I charge you, members of the jury, that both intent and malice can be inferable from the same act of using a deadly weapon, unless the circumstances refute either such intent or malice (i. e., self-defense).”

Appellant argues that the subjective intent of the accused is a fact to be determined by the jury from the evidence. This charge, he asserts, invaded the province of the jury by directing them to find the necessary intent existed as a matter of law. He cites for this proposition Hall v. State, 49 Ala.App. 381, 272 So.2d 590 (1973) which states:

“We, therefore, are of the opinion that the trial court was in error in charging the jury that the law presumes a person intends to do that which he does where the subjective intent of the defendant determines whether a crime has been committed at all and, if so, the character of the crime.”

Hail relies upon Oliver v. State, 17 Ala. 587 (1850), however, which narrows this proposition by pointing out that there are cases where the law itself will draw the inference of one fact from the existence of another. An assault with a deadly weapon, as here, is just such a case.

The intent in the instant crime may be presumed from the act of using a deadly weapon unless circumstances negate this presumption. Hall, supra; Shiflett v. State, 262 Ala. 337, 78 So.2d 805 (1955). Thus, the use of a deadly weapon raised the legal presumption of malicious intent referred to in Hall. Where one assaults another by the use of a deadly weapon, the law will infer from that fact that he designed to accomplish the probable and natural results of his act, in the absence of proof to the contrary. Hall, supra.

“. . . True if there was any evidence from which it might be inferred that the shooting was accidental, then the question of intent or will would necessarily be a question for the jury, and the court could not instruct them that the will to do the act did or did not exist, but when there is no question about the fact whether the shooting was accidental or designedly done, from the very nature of the weapon the law will imply that it was voluntary, — that the party intended what was the probable or natural consequences of his act. . . . ” Oliver, supra.

Here there was no proof presented whatsoever that the shooting was in self-defense or accidental. The victim said the appellant shot him during the course of an attempted robbery. The defense claimed that the appellant was in another part of town at the time of the shooting. Hence the charge was a correct statement of the law, and the trial judge was not in error in giving it to the jury. This is not to say, however, that a trial judge would be in error for refusing to give such a charge framed in the same language and form of the instant charge.

Ill

Appellant contends that the trial court erred in denying a pretrial evidentiary hearing in support of his motion to suppress an out-of-court photographic array. That motion was made at appellant’s own request by way of incorporating into this trial all motions filed in a previous trial which was tried before the same judge only six days earlier. The trial court ordered that the lengthy pretrial evidentiary hearing on the motion from the first trial be incorporated in this record and overruled appellant’s request for a second hearing on the motion.

The motion itself is identical to that in the other trial, having been merely incorporated into the record from the first trial. Appellant’s counsel made no contention that a second hearing would produce any new or altered evidence from that heard in the original hearing.

The trial judge is vested with great discretion in the conduct of a trial, and, unless clear abuse of this discretion is apparent, the appellate courts will not interfere to set aside the lower court’s action. Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973). The trial court exercises this discretion in light of the circumstances of the particular case, and, in the absence of gross abuse, its actions are not reviewable by this court. McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950). In the instant case, we find no abuse of that discretion. The trial judge heard the original motion and evidence thereon. At trial, appellant merely asked that his original motion from the first trial be incorporated into this record. He then made no assertion in support of his request for an evidentiary hearing that any new evidence existed at the time of the second trial which would alter the court’s earlier ruling. The trial judge was in the best position to decide this question. We hold that his order incorporating the first hearing into the instant record was within the boundaries of sound discretion and fully protected and preserved appellant’s rights in the matter and preserved appellant’s evidence on the motion to suppress for appellate review.

IV

Appellant asserts the trial court erred in admitting a photographic array shown out of court to witnesses by police for identification of the assailant. He alleges the photographs were neither authenticated nor verified at trial.

Appellant’s counsel first challenged the photographs in the pretrial motion alleging that the photographs were suggestive. The trial court correctly denied the motion. When the photographs were first introduced at trial, defense counsel objected on the grounds of lack of proper predicate for their introduction. The trial court allowed them in subject to the prosecution connecting up the photographs by the testimony of a subsequent witness, Officer James. Officer James testified that the fifteen photographs introduced were indeed the photographs he had exhibited to Ms. Davis and Mr. Reeves eight days after the crime. He stated that both Reeves and Davis separately identified a picture of appellant as the assailant.

Officer James testified that he selected the fifteen photographs based upon a physical description of the suspect from a police dispatch. He testified that the photographs were in the same envelope at trial as when shown to the witnesses for identification. He stated that after the pictures were shown to the witnesses, he placed them in the envelope in a case folder in a file at police headquarters. He testified further that it was improbable that other officers would have taken from or added to the pictures in the folder and that the folder had not been checked out to any officer.

Additionally, Mr. Reeves stated he was “pretty sure” those were the same fifteen pictures shown to him by Officer James, but he was certain he had identified the appellant’s photograph shown him at trial from that group of photographs. Further, Ms. Davis positively identified fourteen of the photographs as the same ones shown her by Officer James, including that of the appellant. As to the fifteenth picture, she stated she “couldn’t say for sure.”

The purpose for establishing a chain of custody is to show “reasonable probability” that evidence has not been tampered with. Bell v. State, Ala.Cr.App., 339 So.2d 96 (1977). Thus, the State needed only to show a reasonable probability that the photographs introduced at trial were those they purported to be. We believe the State sufficiently met that burden. The photographs were properly admitted in evidence as tending to shed light on, strengthen, and illustrate other testimony in the case. Chunn v. State, Ala.Cr.App., 339 So.2d 1100 (1976). The issue of the identification of appellant as the criminal carries with it the issue of whether there was a likelihood of misidentification from viewing suggestive photographs. The trial court ruled upon that issue in denying the motion to suppress. The jury had every right to view the photographic array, however, in determining the weight or credibility to be given to the identification witnesses’ testimony in light of the appellant’s alibi defense.

We have reviewed the grounds for reversal relied upon by appellant in light of the record and the briefs and find no prejudicial error to the substantial rights of appellant which would mandate a retrial of this cause.

AFFIRMED.

All the Judges concur.


text:
    David Dennis GRIFFIN v. STATE.
    6 Div. 812.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      Sheldon L. Watkins, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

A jury convicted appellant-defendant of robbery for which he was indicted: the Court adjudged him guilty and fixed punishment at 15 years imprisonment. Appellant was an indigent and took an in forma pauperis appeal.

Appellant’s first contention is that there is insufficient evidence to justify the conviction. We have read the entire record and consider this contention to have no merit.

It appears that the victim of the robbery operated a store for the sale of automobile parts.

The victim and his wife were present in the store when two persons, one of whom was identified as defendant, entered the building at the front door which had a sounding apparatus on it when the door was opened. One of the defendants had a sawed off gun which he presented and demanded money that the victim gave him forthwith. They ordered the victim to go to the back of the store, where his wife was and made them both lie down on the floor. The two robbers then made their escape.

Mr. Ware, the victim, could not identify defendant in the line-up, but later seeing him at a preliminary, testified that he was one of the two who entered the front door and aided in the robbery.

Mrs. Ware, who said she was standing about 20 feet to the rear of the counter, upon which the cash register was sitting, to which point both alleged robbers came, positively identified the defendant after viewing him for a very short while.

Defendant took the stand and testified that he was at the house of a friend the afternoon at 5 o’clock when the robbery occurred and denied any participation. Mrs. Manning, the matron of the house, testified that she was at home all the afternoon and that defendant was also there playing cards with her son.

However, an officer testified that Mrs. Manning related her whereabouts to him and that she told him she was at another place and was not at home when the robbery occurred at 5 o’clock p. m. The evidence as to the alibi was conflicting. The jury resolved the issue against defendant. We will not disturb the jury verdict.

A second contention of error is addressed to a question to Sergeant Wade, a police officer, by the District Attorney and his answer both as follows:

“Q Do you know when David Griffin was arrested?
“A He was arrested on the 31st of December for buying and receiving and concealing stolen property.”

The defendant objected and the court sustained the objection. We quote as follows:

“MR. WATKINS: I’m going to object to this, Judge, unless that arrest has something to do with this case.
“THE COURT: Sustained.”

Appellant, in his motion for a new trial, asserts that the court erred in not excluding the voluntary answer from the jury.

It appears that appellant did not, following this sustention, move for an exclusion of the voluntary answer. In the absence of such motion and an adverse ruling thereon, there is nothing for this Court to review. Willingham v. State, 261 Ala. 454, 74 So.2d 241(5).

A final contention of error is that the identification of defendant at the preliminary was so suggestive that it violated defendant’s right to due process and resulted in reversible error.

It appears in the record that the victim failed to identify defendant in a line-up, but did identify him at the preliminary hearing — as he entered the building. This testimony was adduced on cross-examination.

During the progress of this cross-examination, supra, defendant moved for a mistrial. This motion was overruled. There was no motion to exclude.

We hold that defendant was not entitled to a mistrial. We pretermit saying what ruling the trial court should have made to an objection or a motion to exclude the testimony of the victim with respect to the defendant’s identity. Suffice it is that a motion for a mistrial was not the proper way of eliminating the evidence from the consideration of the jury. The evidence was not ineradicable from the minds of the jury.

It is to be noted that ground six of the motion for a new trial is predicated on a statement “that the court erred by not excluding or suppressing the testimony of the victim . . with regard to the positive identification of the defendant at the preliminary hearing.”

But as we have already observed, supra, there was no motion to exclude or suppress such testimony (adduced on cross-examination) but only a motion for a mistrial.

Sufficient evidence of defendant’s guilt was adduced to justify a denial of defendant’s motion to exclude all the evidence.

We find no error to reverse. The judgment of guilt is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: HATCHETT, Justice,

text:
    THE FLORIDA BAR, Petitioner, v. Steven K. PEAKE, d/b/a Divorce Services of America, d/b/a Divorce Services of Florida, Louis P. Graner, d/b/a Aaron Answering Service, Western Union International, Inc., d/b/a Able One Answering Service, and Van Royce Vibber, et al., Respondents.
    No. 50848.
    Supreme Court of Florida.
    June 22, 1978.
    As Modified Dec. 14, 1978.
    R. Layton Mank, Chairman, Standing Unauthorized Practice of Law Committee, Miami, John A. Weiss, H. Glenn Boggs, Asst. Staff Counsels, The Florida Bar, Tallahassee, for petitioner.
    Sherwin P. Simmons, Tampa, Marvin E. Barkin, Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for respondent, WUI/TAS, Inc., named in the Petition as Western Union International, Inc.
   ORDER

On January 3,1977, The Florida Bar filed a petition with this Court charging that the respondents were engaging in the unauthorized practice of law, and seeking an injunction to prevent the continuation of such practice. The Bar specifically alleges that Steven K. Peake of Santa Monica, California, doing business as Divorce Services of Florida and Divorce Services of America, has through newspaper advertising solicited inquiries from Florida residents on dissolution of marriage procedures, and has furnished in return for a fee of $85.00 a “divorce kit,” including all legal papers required to be filed in order to obtain an uncontested dissolution in Florida, together with instructions for filing. Acting upon the complaint of an individual who had purchased these services, the Bar asserts that respondents have engaged in the unauthorized practice of law “[b]y soliciting her legal work, by inquiring about various legal matters and by giving [her] legal advice thereto . . .,” in violation of our decisions in The Florida Bar v. Stupica, 300 So.2d 683 (Fla.1974), and in The Florida Bar v. American Legal and Business Forms, Inc., 274 So.2d 225 (Fla.1973).

We issued a Rule to Show Cause, commanding the respondents to answer why they should not be held in contempt. Respondent Western Union International, Inc., d/b/a Able One Answering Service, answered the Rule to Show Cause by alleging it had only allowed Divorce Services of Florida to use its address as a mail drop and license location, that it was unaware that its tenant was engaging in the unauthorized practice of law, and that it has affirmatively terminated its business arrangements with that tenant.

In its reply, the Bar stipulated as to these facts and agreed to the dismissal of this respondent. Accordingly, this proceeding and the Rule to Show Cause heretofore issued are dismissed as to respondent Western Union International, Inc., d/b/a Able One Answering Service.

After initial difficulties effecting service of process on the other respondents, substituted service of an amended Rule to Show Cause was effected as to them on August 3, 1977, by 'service upon the Secretary of State in compliance with Section 48.161, Florida Statutes (1975), thus giving us personal jurisdiction over respondents under Florida’s long-arm statute, Section 48.181, Florida Statutes (1975). No response has been filed by those respondents, and there appears to be, no reason why we should withhold further action. It is our judgment that, pursuant to the power vested in this Court under Article V, Section 15 of the Florida Constitution, respondents are hereby enjoined from further engaging in the unauthorized practice of law in the State of Florida, either individually or by means of any artifice.

It is so ordered.

OVERTON, C. J„ and ADKINS, BOYD, ENGLAND, SUNDBERG and ALDERMAN, JJ., concur.

HATCHETT, J., concurs specially with an opinion.

HATCHETT, Justice,

specially concurring.

This case is controlled by our recent decision in Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978). In that case, we expressly modified the rules governing the sale by nonlawyers of legal forms, along with general directions on how to fill out such forms and other general legal information. The Brumbaugh rule stresses several important principles: (1) members of the public should not be denied access to necessary legal information if they choose to represent themselves in court proceedings; (2) a non-lawyer does not engage in the unauthorized practice of law by selling printed material purporting to explain legal practice and procedure to the public in general, or standardized legal forms, including general directions on how to fill out such forms; (3) personal legal assistance by non-lawyers on an individual’s specific legal problems is prohibited; (4) secretarial service involving the typing of necessary legal information in standardized forms does not constitute the unauthorized practice of law as long as it is performed under the express supervision of a customer. Such secretarial service should have no discretion whatsoever in advising the customer as to the specific information necessary to complete the forms, or in correcting errors and omissions made by the customer in the filling out of such forms. The customer should not rely upon the secretarial service for assistance in filling out such forms except to the extent of the skill involved in the typing itself. Further, this court, in Brumbaugh, imposed the additional requirement that directions given by the customer to the secretary must be in writing, in order that this court could more easily enforce these rules.

According to the uncontradicted facts set forth in The Florida Bar’s petition, it is clear that Divorce Services of Florida, through its agents, engaged in the unauthorized practice of law. Respondents’ divorce service improperly gave customers the impression that it would provide all the specific legal documents necessary to obtain an uncontested divorce for the customer, and that the customer needed only to file these documents with the court and pay the filing fees. Respondents solicited specific personal information from the customer and, on its own, filled out its standardized forms with the necessary specific information. In spite of respondents’ attempts to limit customer reliance upon its advice by telling its customers that they were not attorneys and engaged only in typing legal forms for the general public, it is clear that the business improperly allowed the customer to rely upon the divorce service for personal legal assistance.

Therefore, an injunction should be granted prohibiting respondents and their business from providing legal services in excess of what we held permissible in Brumbaugh.


author: PER CURIAM.

text:
    Ruth Starke MAULTSBY, Appellant, v. STATE of Florida, Appellee.
    No. 52841.
    Supreme Court of Florida.
    June 30, 1978.
    Rehearing Denied Dec. 8, 1978.
    Robert E. Pyle, Lake Alfred, for appellant.
    Robert L. Shevin, Atty. Gen., Charles Corees, Jr. and Martha J. Cook, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Soverino v. State, 356 So.2d 269 (Fla.1978).

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: ADKINS, Justice.

text:
    TROPICAL SHIPPING & CONSTRUCTION COMPANY, LTD., a Bahamas Corporation authorized to do business in Florida, Appellant, v. Reubin O’D. ASKEW et al., Appellees. BIRDSALL, INC., a Florida Corporation, Appellant, v. Reubin O’D. ASKEW et al., Appellees.
    No. 49823.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied Dec. 8, 1978.

      Philip T. Weinstein of Cunningham & Weinstein, Miami, and Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., Tallahassee, and William B. Corbett, Jr., Tallahassee, for appellees.
   ADKINS, Justice.

We have before us a case in which a judge from the Second Judicial Circuit passed directly upon the constitutionality of Section 212.08, Florida Statutes (1973) which provides a partial exemption from Florida’s sales and use taxes for vehicles and vessels engaged in interstate or foreign commerce. We have jurisdiction pursuant to Article 5, Section 3(b)(1), Florida Constitution.

Tropical Shipping & Construction Co. [hereinafter referred to as Tropical] is engaged in foreign commerce between Florida and the Bahamas. The company mainly transports goods which are loaded in trailers and containers. The only distinction between a trailer and a container is that a trailer has wheels permanently affixed to it, whereas a container has wheels affixed to it temporarily. Goods are loaded into these trailers or containers which are then hauled over Florida’s highways. Upon reaching port, the trailers and containers are loaded upon Tropical’s ships and transported to the Bahamas and other islands in the Caribbean. This intermodal method of shipping has been characterized as “fishy-back.” Upon delivery, the goods are unloaded and the trailers and containers are re-used by Tropical in other delivery transactions.

Birdsall, Inc., is a Florida corporation which hauls Tropical’s trailers and containers before and after they are shipped overseas. Birdsall is licensed by the Florida Public Service Commission to transport goods moving in foreign commerce.

Both Tropical and Birdsall bought trailers and containers in the period from January 1970 through December 1972. In September of 1973, both companies filed complaints in circuit court, seeking a declaratory judgment on their right to pro-rate their sales and use taxes for these purchases under the formula provided in Section 212.08(9), Florida Statutes (1973). This section provides:

(9) PARTIAL EXEMPTIONS, VEHICLES ENGAGED IN INTERSTATE OR FOREIGN COMMERCE. — Vehicles which are licensed as common carriers by the Interstate Commerce Commission or by the Civil Aeronautics Board and parts thereof used to transport persons or property in interstate or foreign commerce are subject to tax imposed in this chapter only to the extent provided herein. The basis of the tax shall be the ratio of intrastate mileage to interstate or foreign mileage traveled by the carrier during the previous fiscal year of the carrier, such ratio to be determined at the close of the carrier’s fiscal year. This ratio shall be applied each month to the total purchases of such vehicles and parts thereof which are used in Florida to establish that portion of the total used and consumed in intrastate movement and subject to tax under this chapter. Vehicles which are licensed as common carriers by the Interstate Commerce Commission or the Civil Aeronautics Board and parts thereof used to transport persons or property in interstate and foreign commerce are hereby determined to be susceptible to a distinct and separate classification for taxation under the provisions of this chapter.

The trial judge held that containers were not subject to the partial tax exemption “for the reason that they are not vehicles but rather constitute cargo.” Though the trial judge held that the statute applied to trailers which were therefore subject to the pro-ration formula, appellants object to the manner in which the formula was applied.

This last point needs further clarification. The purpose of the partial tax exemption is to prevent the state from exceeding its powers to tax interstate and foreign commerce. The pro-ration formula was designed so that Florida would only tax that portion of commerce activity that occurred within the state. Unfortunately the exact language of the statute establishing a “ratio of intrastate mileage to interstate or foreign mileage” does not do this. The Department of Revenue, however, has applied the statute by constructing a ratio in which the numerator is the miles traveled in Florida and the denominator is the total miles traveled by the vehicle. This is the correct application and allows Florida to tax the percentage of interstate and foreign commerce activity which occurs within Florida’s boundaries.

In this case the lower court held that the only mileage to be considered is the distance traveled by the trailers while on the highways. Appellants object to this application. They claim that the miles the trailers traveled while riding “fishy-back” should be included in the denominator of total miles traveled. In sum, Tropical and Birdsall are challenging the lower court’s interpretation of the statute as applied to containers and the court’s application of the proration formula as applied to trailers.

In interpreting this statute we are faced with two competing policies. First, we are obligated to narrowly construe tax exemption statutes. See Volusia County v. Daytona Beach Racing and Recreational Facilities District, 341 So.2d 498 (Fla.1976). On the other hand, we must construe the statute in accordance with the provisions of the United States Constitution. Section 212.21(3), Florida Statutes (1973); L. B. Smith Aircraft Corp. v. Green, 94 So.2d 832 (Fla.1957). That is, we may not construe the statute so narrowly as to deny businesses engaged in interstate or foreign commerce their right to be free from undue state interference.

First we note that Florida has the right to tax interstate or foreign commerce to impose “a fair share of the cost of the local government.” Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265 (1947). The United States Supreme Court has upheld the usage of a pro-ration formula to fairly apportion the cost of doing business in the state. Braniff Airways v. Nebraska State Board of Equalization and Assessment, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967 (1954). Thus Florida’s pro-ration of its sales and use tax is a valid method for insuring that business engaged in interstate and foreign commerce pay their fair share.

Now we must decide whether the tax on the sale and use of containers should be pro-rated. We see little difference between a container and a trailer. In this case, both serve essentially the same function. Though a container may rationally be called a vehicle, we need not go that far. The partial tax exemption applies to parts of vehicles as well as vehicles. Section 212.-08(9), Florida Statutes (1973). We hold that when a container is attached to wheels it becomes part of a vehicle. Thus for purposes of this statute, containers and trailers will be treated the same.

The second problem is the application of the pro-ration formula to the facts of this case. As mentioned earlier, the tax should be based on the percentage of intrastate mileage to total mileage. The question is whether the seagoing mileage should be included in the ratio. At this point, it is convenient to refer to Section 212.08(8), Florida Statutes (1973) which provides:

(8) PARTIAL EXEMPTIONS, VESSELS ENGAGED IN INTERSTATE OR FOREIGN COMMERCE. — All vessels which are licensed as common carriers by the Interstate Commerce Commission and parts thereof used to transport persons or property in interstate or foreign commerce shall be subject to the taxes imposed in this chapter only to the extent provided herein. The basis of the tax shall be the ratio of intrastate mileage to interstate or foreign mileage traveled by the carrier during the previous fiscal year. The ratio would be determined at the close of the carrier’s fiscal year. This ratio shall be applied to the total purchases of such vessels and parts thereof each month to establish that portion of the total used and consumed in intrastate movement and subject to the tax at the applicable rate. Vessels which are licensed as common carriers by the Interstate Commerce Commission and parts thereof used to transport persons or property in interstate and foreign commerce are hereby determined to be susceptible to a distinct and separate classification for taxation under the provisions of this chapter.

This statute applies the same pro-ration formula to vessels and their parts as Section 212.08(9), Florida Statutes (1973) applies to vehicles and their parts. Read in pari materia these two statutes indicate a clear legislative intent to grant the partial tax exemption to all accessories used for transporting goods in interstate or foreign commerce, whether that transportation occurs over land or over water. The containers and trailers in this case were bought by the appellants for the sole purpose of helping them to transport goods in foreign commerce.

Clearly Tropical would pay only a partial use and sales tax on a container that was permanently affixed to the ship. We do not read the statute as requiring, nor do the Department of Revenue’s rules indicate, that “parts of vessels” must be permanently attached. Accord, Klosters Rederi v. Department of Revenue, 348 So.2d 656 (Fla.3d DCA 1977). It is much more practical for the container to be unattached. It allows for easier loading and unloading and reduces the chances of theft and pilferage.

We cannot conclude, as the trial judge did, that containers and trailers are cargo, while traveling “fishy-back.” Cargo refers to goods that are delivered to another person. The trailers and containers here are not delivered to anyone. They are owned, operated, and kept by Tropical and Birdsall. As such they share all the characteristics of other equipment used by common carriers in transporting goods in foreign commerce.

We believe trailers and containers are parts of vehicles for purposes of Section 212.08(9), Florida Statutes (1973) when traveling on highways and parts of vessels for purposes of Section 212.08(8), Florida Statutes (1973) when traveling “fishy-back.” Under this view Tropical and Bird-sail should only pay a percentage of the sales and use tax which represents the number of miles traveled by the containers and trailers in Florida over the total miles traveled including the miles traveled “fishy-back.” We therefore reverse and remand the cases to the trial judge with instructions to enter a new order in accordance with this opinion.

BOYD, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG, J., dissent.


author: HATCHETT, Justice.

text:
    TAMARAC UTILITIES, INC., Petitioner, v. Paula F. HAWKINS, William T. Mayo and William H. Bevis, as members of and constituting the Florida Public Service Commission, Respondents.
    No. 52488.
    Supreme Court of Florida.
    Sept. 14, 1978.
    Rehearing Denied Dec. 12, 1978.
    Sam Spector and Cynthia S. Tunnicliff of Spector & Tunnicliff, Tallahassee, and Howard C. Osterman, Margate, for petitioner.
    Raymond E. Vesterby and Leon F. Olm-stead, Tallahassee, for respondents.
    Daniel H. Jones of Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, and William M. Gemmill, Tamarac, for Tamarac Presidents Council and The City of Tama-rac, Florida, intervenors.
    Joseph A. Fitzsimmons, Fort Lauderdale, for Lester B. Shelton and Opal A. Shelton, intervenors.
   HATCHETT, Justice.

Tamarac Utility Company applied with the Public Service Commission for a rate increase for the operation of its water and sewer treatment services. An interim rate increase was granted to the utility pending disposition on the merits of the rate increase application. Public Service Commission auditors encountered numerous problems with regards to the lack of primary data supporting the amount of contributions in aid of construction (CIAC). The Commission issued an order allowing the utility to provide clarification, in the form of a schedule, certified by a Certified Public Accountant, setting forth by year and contributor, all contributions in aid of construction received by the company in any form and from any source. Finally, the Commission issued an order dismissing the application and ordering a refund of monies collected under the interim rate increase previously approved. Tamarac Utility filed a Petition for Writ of Certiorari with this court. After oral argument and consideration of the briefs, we conclude that there has been no departure from the essential requirements of law in. the Commission’s dismissal of the application for a rate increase.

In its final- order, the Public Service Commission noted that petitioner’s application and its supporting exhibits were seriously deficient with regards to proof of contributions in aid of construction which had been received by the utility company. In addition, the Commission concluded that more CIAC existed than was shown in the company’s audit. Such CIAC receipts are essential to a proper determination of a utility’s rate base. The Administrative Rules and Regulations of the Public Service Commission, Rule 25-10.176, require that each application by a water and sewer utility company for a rate adjustment must provide an accounting schedule showing total contributions in aid of construction. Rule 25-10.177 requires that:

In each instance, the utility must be able to support any schedule submitted, as well as any adjustments or allocations relied on by the utility. The work sheets, etc., supporting the schedules and data submitted must be organized in a systematic and rational manner so as to enable Commission personnel to verify the schedules in an expedient manner and minimum amount of time. The supporting work sheets, etc., shall list all reference sources necessary to enable Commission personnel to track to original source of entry into the financial and accounting system and, in addition, verify amounts to the appropriate schedules.

The utility in this case did not comply with these regulations and provide the original source records in a readily accessible manner in support of its amount of CIAC receipts. Further, the utility audit did not attempt to establish the CIAC amount through independent original source records. Instead, the utility chose to rely upon an audit which was based upon a CIAC schedule prepared by the utility company. The Commission recognized that any errors made by the utility company when it made its original entries in this schedule also would be present in the recent audit.

In Deltona Corp. v. Mayo, 342 So.2d 510 (Fla. 1977), we held that the Public Service Commission improperly denied a utility’s application for a rate increase, in spite of its finding that the utility’s accounts were both accurate and in conformity with prescribed regulatory accounting procedures. The Commission in that case denied the application based upon argument by the public counsel, but which was unsupported by any evidence, that additional CIAC amounts existed which had not been reported by the utility in its account books. There, this court stated that the Public Service Commission cannot reject a CIAC amount proven by competent and substantial evidence offered by the utility, nor can the Commission assume there exists some additional indefinite amount of contributions in aid of construction which is not supported by competent substantial evidence. We hold, conversely, that any utility applying for a rate increase must support its CIAC valuation by competent substantial evidence in establishing its rate base.

Accordingly, the order of the Public Service Commission in dismissing the utility’s application for a rate increase is affirmed.

It is so ordered.

BOYD, Acting C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

      . On September 9, 1975, the Commission issued Order # 6891 which required that . . the utility shall . . . file a schedule, certified by a Certified Public Accountant, setting forth by year and contributor all contributions in-aid-of-construction received by the company, including but not limited to payments received under developer contracts, lines and/or plant facilities received by the utility as a donation from any source. The report will also include a statement as to the amount of lines and/or plant facilities transferred to the utility by the respective parent companies other than as a contribution which was written off by the respective parent companies as development costs for Federal income tax purposes.”

      . We have jurisdiction pursuant to Article V, Section 3(b)(3), Fla.Const. (1968).

      . Petitioner raises several issues here: (1) whether the Commission order, denying petitioner’s rate increase on the stated grounds that petitioner failed to provide complete and accurate information as to CIAC, is based upon competent and substantial evidence; (2) whether the Commission departed from the essential requirements of law by failing and refusing to make a rate determination as required by law, and which unconstitutionally deprives petitioner of its property without due process or just compensation; (3) whether the Commission was bound by the hearing examiner’s finding of fact pursuant to Sec. 120.57(1)(b)(9), Fla.Stat. (1977).

      . The Commission’s final order dismissing the rate adjustment application, Order # 7788, dated April 27, 1977, noted numerous deficiencies in the utility audit: (1) the Commission concluded that the audit was merely a “verification” of a utility prepared schedule; (2) any independent audit would of necessity have to begin with original source documents to determine if the utility schedules included all of the connections, and whether each connection was charged the correct amount according to the tariff; (3) the utility audit was based upon a small sample of available developer agreements; (4) the utility audit made an assumption concerning the size of connection charges, which the Commission found to be not supported by the facts, since certain known increases in these charges were not reflected in the audit. These and other deficiencies aggravated the basic problem of the utility audit’s reliance upon CIAC amounts which were imputed figures, rather than amounts based upon original source data.

      . CIAC amounts basically constitute a deduction from a utility’s rate base, so that the greater the CIAC the smaller the rate base. See, Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla. 1972).

      . Public Service Commission Rule 25-10.-176(2)(a) 2.e.

      . An additional portion of Rule 25-10.177 states: “Utilities may request a waiver of specific parts of the above rule from the Commission by submitting a written statement setting forth the reason, in detail, why the waiver should be granted.
      Petitioner did not assert in this court that it was entitled to such a waiver of the Commission regulations because of the unavailability of primary data for 1968 and 1969.

      . In Deltona, supra, this court also criticized the apparent use by the Commission of the utility’s fraudulent land sales practices as a matter relevant to its determination of the utility’s request for rate adjustment.
      In this case, we do not believe that the Commission was penalizing the utility for failing to preserve its records in accordance with Rule 25-10.26(2). Rather, the dismissal of the application was predicated upon the utility’s failure to meet its burden of proof, because of its reliance upon an incomplete audit unsupported by competent, substantial evidence. The brief of intervenor, City of Tamarac, suggests that an accurate reconstruction of the CIAC account would require a review and audit of each house and lot sale, and each developer’s agreement. Such a reconstruction of the CIAC accounts might help explain the large disparity between the cost of the physical plant in comparison to the amount of invested capital.

      . This conclusion is similar to the one reached by the First District Court of Appeal in Jacksonville Suburban Utilities Corp. v. Utility Regulatory Board, 305 So.2d 808 (Fla. 1st DCA 1975).