text:
    STATE of Florida, Appellant, v. Eligaah Ardalle JACOBS, Appellee.
    No. 75-503.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
    Rehearing Denied Nov. 5, 1975.

      Robert L. Shevin, Atty. Gen.,- Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Lester Bales, Jr., Zephyrhills, for appel-lee.
   SCHEB, Judge.

The trial court held that an affidavit was insufficient on its face to establish probable cause for issuance of a warrant for search of a dwelling. The state appeals. We reverse and remand.

Deputy Sheriff Everett Keister executed an affidavit on November 18, 1974, in application for a warrant to search a mobile home in Polk County occupied as a private dwelling. A search warrant was issued by a magistrate commanding search of the dwelling therein described. After a hearing on the appellee/defendant’s motion to suppress, the trial court ruled Deputy Keis-ter’s affidavit was insufficient on its face to establish probable cause. The court suppressed the items seized as a result of the execution of the warrant, including a pair of black work boots and 37 rounds of .380 caliber ammunition not described in the warrant.

The only question now before us is whether Deputy Keister’s affidavit was sufficient on its face to allege probable cause. The affidavit alleges a confession of one Pauline Jacobs to a Lt. Coughlin on November 17, 1974. She stated she accompanied appellee/defendant and two other males at a robbery/murder in Pasco County on March 5, 1974, and that firearms used in that crime were, on November 16, 1974, in the dwelling sought to be searched. This admission, being against penal interest, provides its own indicia of reliability. United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. Also, Pauline Jacobs allegedly stated she was present when the appellee/defendant committed the breaking and entering which Deputy Keister was investigating where firearms had been stolen from Sumner’s Services in Polk County on October 24, 1974. Finally, affiant stated he talked with one Thomas Collins, an alleged co-felon in the crime for which appel-lee/defendant is being prosecuted. Collins, who allegedly admitted his presence at the scene of the Pasco County crime to another police officer, stated to affiant that he had recently been in the dwelling sought to be searched and that it did, indeed, contain 10 or 12 firearms.

The affidavit here details sufficient underlying facts and circumstances on which to base a belief that probable cause exists and is sufficient on its face. Affidavits for search warrants are normally drafted by nonlawyers under the press of criminal investigation and are tested and interpreted by courts in a common sense and realistic fashion. Therefore, technical requirements of elaborate specificity have no proper place in this area. United States v. Ventresca, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.

Generally, the sufficiency of a search warrant is determined solely with reference to the warrant and supporting' affidavit. State v. Oldack, Fla.App. 2d 1973, 283 So.2d 73; State v. Knapp, Fla.App. 2d 1974, 294 So.2d 338. But even though sufficient on its face, the court, subsequent to issuance of a search warrant, may make a determination of the truthfulness of the factual statements contained in the warrant affidavit. In cases where the affiant subsequently contradicts material averments made to secure the warrant, or where otherwise such averments are proved erroneous, the warrant may be found to be invalid. State v. Knapp, supra; United States v. Jones, 5th Cir. 1973, 475 F.2d 723; McConnell v. State, 1972, 48 Ala.App. 523, 266 So.2d 328.

Here the trial judge apparently concluded it was necessary to go behind the statements in the warrant affidavit. Pursuant to RCrP 3.190(h) an evidentiary hearing was held with testimony taken of Deputy Keister as well as of Detective Henry Rogers and Lt. E. H. Vogt, both of the Pasco County Sheriff’s Department. But no findings or conclusions were made by the court on basis of the evidence presented. The court merely concluded the affidavit was insufficient to establish probable cause. However, where, as here, there had been an attack on the truth of the affidavit, it became incumbent on the trial judge to determine whether the af-fiant made any material misstatements in the warrant affidavit.

On remand, the trial judge should make findings: (a) as to whether any statements in the warrant affidavit were successfully contradicted or proven erroneous, and (b) as to the effect of seizure of the items not specified in the warrant; and enter judgment accordingly.

Accordingly, this cause is reversed and remanded for proceedings consistent with this opinion.

GRIMES, Acting C. J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . The material part of the affidavit, insofar as relates to the issue of probable cause, states as follows:
      . On the night of March 5, 1974 at approximately 5:00 P.M. three white males and one white female, later identified as Ar-delle Elijah Jacobs, Thomas Collins and Elijah Chavis and Pauline Jacobs, wife of Elijah Jacobs. The four people were seen in a late model Chrysler cream colored station wagon parked on a dirt road behind Chancey’s Country Store, Hiway 39 on the Hillsborough Pasco „ County Line. Shortly thereafter three white males entered Chan-cey’s Country Store and robbed one of the two white males at gun point taking from him several hundred dollars and then the three white males or one or two of the three, shot and killed both of the two white males who were in the store and filling station and then left the scene.
      Subsequently, to-wit, on or about November 17, 1974, the said Pauline Jacobs confessed to Detective Lieutenant Richard Coughlin of the Massachusetts State Police in Bourne, Massachusetts, that it was she and the said Ardelle Elijah Jacobs, Thomas Collins and Elijah Chavis who had gone in the said cream colored late model Chrsyler station wagon to the said Chancey’s Country Store and Pilling Station and that it was her three male companions aforesaid who robbed and murdered the two white males aforesaid. She further stated to the said Detective Lieutenant Richard Coughlin that she had been in the above-described house trailer or mobile home on Saturday, November 16, 1974 and at that time there was contained in said mobile home or house trailer the firearms which had been used by her male companions in the robbery and murder aforesaid and that when she left said premises said firearms were still there.
      Between 5:00 P.M. on October 24, 1974 and 7:00 A.M. on October 24, 1974 the place of business known as Sumner’s Service and Motor Parts in the settlement of Willow Oak near Mulberry, Florida was broken into and the firearms thereinabovc described as taken therefrom were taken therefrom. Subsequently, to-wit on or about November 17, 1974 the said Pauline Jacobs stated to the said Detective Lieutenant Richard Coughlin that between 5:00 P.M. on October 24, 1974 and 7:00 A.M. on October 25, 1974 she was in company with the said Ardelle Elijah Jacobs, Thomas Collins and Elijah Chavis, who did break and enter said Sumner’s Service and Motor Parts as aforesaid and take therefrom firearms and money.
      On the evening of November 17, 1974 Affiant arrested the said Thomas Collins and the said Elijah Chavis and incarcerated them in the Polk County Jail at Bartow, Florida and during the conversation between Affiant and the said Collins, the said Collins told Affiant that he had recently been in said house trailer or mobile home aforesaid belonging to the said Jacobs and had there seen some 10 or 12 firearms in said house trailer or mobile home.
      On November 18, 1974, Affiant talked over the telephone to Deputy Sheriff Lt. Vogt of the Pasco County, Florida Sheriff’s Office who informed Affiant that he had the said Collins in custody (Collins, Chavis and Jacobs having previously been turned over to the Pasco County Sheriff’s Office by Affiant) and that the said Collins had informed him that said Lt. Vogt that he, the said Collins, had been present with the said Jacobs and the said Chavis at the armed robbery and double murder aforesaid, but the said Collins denied taking part in said crimes.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Olin B. WADE, Appellant, v. Ethel Thagard WADE, Appellee.
    No. 75-124.
    District Court of Appeal of Florida, Third Distinct.
    Oct. 7, 1975.
    Shalle Stephen Fine and Steven R. Brownstein, Miami, for appellant.
    Diaz-Asper, Katzen & Chulock, South Miami, for appellee.
    Before HENDRY, HAVERFIELD, and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of Fishman v. Fishman, Fla.App.1971, 245 So.2d 258; Christianson v. Christianson, Fla.App.1973, 274 So.2d 562; Goldblatt v. Goldblatt, Fla.App.1973, 277 So.2d 34; Baker v. Baker, Fla.App.1974, 291 So.2d 33.


text:
    E. J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1292.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 5, 1975.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo Ml Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an appeal from judgments of guilt following nolo contendere pleas to second degree murder and rape. Appellant was sentenced to concurrent twenty year terms.

The judgment and sentence for murder is affirmed. However, the judgment for rape must be vacated because the record does not reflect a legally sufficient colloquy concerning the understanding and voluntary entry of the plea. RCrP 3.170(j). Moreover, the twenty year sentence was illegal as being beneath the statutory minimum for the life felony charge of rape. Fla.Stat. § 775.082(4) (a) (1973). The appellant must be permitted to enter a new plea to the rape charge.

BOARDMAN, Acting C. J., and GRIMES and SCHEB, JJ., concur.


author: NATHAN, Judge.

text:
    Dennis DeMAGGIO, Appellant, v. BRASSERIE RESTAURANT and Coconut Grove Hotel, Appellees.
    No. 75-503.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.

      G. E. Petrie, Jr., Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by Dennis DeMaggio, plaintiff in the trial court, from a summary final judgment in favor of the defendants, Brasserie Restaurant and Coconut Grove Hotel. The action arose from an altercation on the defendants’ premises the result of which was that DeMaggio, a patron, was physically injured by another patron.

Since the judgment appealed is an adverse summary final judgment, the appellant is entitled to have the record reviewed in the light most favorable to him, with all reasonable inferences of fact and intendments of testimony being drawn in his behalf. Holl v. Talcott, Fla.1966, 191 So.2d 40; Visingardi v. Tirone, Fla.1966, 193 So.2d 601. It is the burden of the movant for summary judgment to show conclusively the non-existence of a genuine material fact. Where the existence of such an issue appears in the record, the cause must be referred for a determination of questions of fact and credibility. Williams v. Caterpillar Tractor Co., Fla.App.1963, 149 So.2d 898; Williams v. Florida Realty and Management Co., Fla.App.1973, 272 So.2d 176. On the basis of our review of the briefs and the record on appeal, we are of the opinion that the defendants sustained the burden of proving the non-existence of genuine triable issues. Accordingly, the summary final judgment herein appealed is affirmed.

Affirmed.


author: McNULTY, Chief Judge.-

text:
    STATE of Florida, Petitioner, v. Clifford VINSON, Respondent.
    No. 74-1513.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
    Rehearing Denied Nov. 5, 1975.

      Joseph P. D’Alessandro, State’s Atty., Louis S. St. Laurent, Chief Asst. State’s Atty., and James R. Thompson, Asst. State’s Atty., Fort Myers, for petitioner.
    Robert E. Pyle, Lake Alfred, and Frank C. Alderman, III, Fort Myers, for respondent.
   McNULTY, Chief Judge.-

The state seeks common law certiorari to review the trial court’s order finding the defendant-respondent not guilty, and discharging him, after his plea of nolo contendere to a charge of unlawful delivery of a controlled substance as proscribed by Chapter 893, F.S.1973, known as The Florida Comprehensive Drug Abuse Prevention and Control Act. We grant the writ.

Defendant-respondent is a doctor licensed in Florida. As such, he is a “practitioner” within the purview of § 893.02, F.S.1973, and, pursuant to § 893.05(1), F.S. 1973, is authorized to prescribe, administer or dispense a controlled substance, but only if it is done “in good faith and in the course of his professional practice.” The information herein charges that he “unlawfully” delivered the controlled substance “by use of a written order for said drug not issued in good faith and within the course of his professional practice.” (Italics ours.) We determined in a prior appeal, one taken by the state from an order dismissing the charges herein, that such non-exempt prescribing of the drug constitutes a “delivery” as defined in § 893.02 (4), F.S.1973. Accordingly, the order dismissing the information was reversed and the cause was remanded for further proceedings.

Upon remand, Doctor Vinson withdrew his not guilty plea to the charge and entered a plea of nolo contendere. The record reflects that the plea was intelligently, understandingly, advisedly and voluntarily entered. The trial judge accepted the plea and ordered an evidentiary hearing thereon which he held the following day. Following the hearing, and in spite of considerable evidence tending to inculpate the respondent, the trial judge indicated that he was not convinced beyond and to the exclusion of every reasonable doubt of the respondent’s guilt; whereupon, over the strenuous objections of the state, he entered a finding of not guilty and discharged respondent.

To begin with, we think the trial judge clearly departed from the essential requirements of law. Obviously, too, the state is at the peril of irrevocable prejudice. Therefore, certiorari is appropriate.

First, concerning the departure from the essential requirements of law, we are of the view that the trial judge was without authority to consider as viable at all the issue of guilt or innocence. The nature of a plea of nolo contendere and the province of the court upon accepting such a plea are well settled. In United States v. Norris , for example, after the entry of a plea of nolo contendere a stipulation of facts was filed which tended strongly to exculpate the defendant. The trial judge denied the defendant’s motion in arrest of judgment which urged that upon the face of the record he was patently not guilty of the crime charged. The motion was denied and judgment of guilt and sentence were thereupon entered. The Supreme Court of the United States ultimately affirmed the judgment of guilt saying:

“In the face of an indictment good in form and substance, and of a plea thereto of nolo contendere, which, although it does not create an estoppel, has all the effect of a plea of guilty for the purposes of the case (citing cases), the stipulation was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence. . After the plea, nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record. Regarded as evidence upon the question of guilt or innocence, the stipulation came too late, for the plea of nolo con-tendere, upon that question and for that case, was as conclusive as a plea of guilty would have been. . .
“The court was no longer concerned with the question of guilt, but only with the character and extent of the punishment (citing authority). The remedy of the accused, if he thought he had not violated the law, was to withdraw, by leave of court, the plea of nolo con-tendere, enter one of not guilty, and, upon the issue thus made, submit the facts for determination in the usual and orderly way.” (Italics ours.)

Similarly, after exhaustively reviewing the authorities, this court in Peel v. State quoted from 152 A.L.R. 278:

‘It has been said that the plea, like a demurrer, admits, for the purpose of the case, all the facts which are well pleaded, and only those. In accordance with this statement, the court will, generally speaking, refuse to go behind the indictment or turn its proceedings relative to the imposition of sentence into a trial of the case, provided the plea was entered into “knowingly, voluntarily, and intelligently.” Once the plea is entered, unless retracted by leave of court, defendant’s only avenue of escape is by motion in arrest of judgment, based, of course, upon some inherent, fatal defect apparent in the record, such as that the indictment charged no offense, or that it was defective, or that it showed on its face that the offense charged was barred by the statute of limitations. These are the same objections the defendant would equally be entitled to raise after a plea of guilty. However, if such inherent defect exists, the court is authorized in proper circumstances, to strike on its own motion the plea of nolo contendere from the record and dismiss the information in order to protect the defendant against his own ignorance.’ ” (Italics ours.)

We hold, therefore, while not precluding a trial judge in his discretion from making inquiry into a factual basis for a nolo contendere plea, there being no express requirement therefor under Rule 3.170, RCrP, that if the trial judge indeed makes such inquiry or if, for one reason or another, he thinks that the underlying facts of the case do not establish the defendant’s guilt, he nevertheless has no authority to enter a judgment of not guilty. We think the proper procedure to be that he afford the accused an opportunity to withdraw such plea or, in the alternative, refuse to accept such plea, enter a plea of not guilty on behalf of the accused and put the state to the proof of its charge.

Lastly, we say that respondent’s resistance to the petition herein on double jeopardy grounds is not well founded. While ordinarily jeopardy attaches upon the entry of a plea of guilty or nolo con-tendere and its acceptance by the court, double jeopardy sanctions come to fruition only after the court properly acts thereon in a manner within its jurisdiction and authority, We have held herein that the trial court exceeded that authority when he entered the finding of not guilty and discharged respondent. Therefore, the matter is still pending. Stated otherwise, this is not a second or subsequent prosecution of the respondent on the charge herein, rather, this is still the first and same prosecution which was simply prematurely and improperly terminated by the court without jurisdiction or authority.

In view whereof, certiorari is granted, the order discharging defendant-respondent is vacated and set aside, and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES and SCHEB, JJ., concur.

      . See State v. Vinson (Fla.App.2d, 1974), 298 So.2d 505.

      . See United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930); Chesebrough v. State (Fla.1971), 255 So.2d 675; Peel v. State (Fla.App.2d, 1963), 150 So.2d 281, and the numerous cases cited therein. The Florida case of State w. Febre (1945), 156 Fla. 149, 23 So.2d 270, may appear to be contra; and if so, it stands alone. It is patently distinguishable, however, in that there, though guilt to a lesser degree of the crime charged was found, there was nonetheless a determination of guilt entered; and it may well be articulated that the reduction went to the extent of punishment rather than to guilt or innocence. In any case, the comments therein are purely dicta since the court dismissed the appeal holding that jurisdiction of the appeal lay in the circuit court (the conviction being for a misdemeanor). Certio-rari, apparently, was not considered.

      . 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076.

      . Id. at 622, 60 S.Ct at 425.

      . (Fla.App.2d, 1963), 150 So.2d 281, 291.

      . See Caves v. State (Fla.App.2d, 1974). 303 So.2d 658.


text:
    Irving GREEN and Benjamin Green, Petitioners, v. NORTH AMERICAN MORTGAGE INVESTORS, a Massachusetts business trust, Respondent.
    No. 75-434.
    District Court of Appeal of Florida, Third District.
    April 2, 1975.
   PER CURIAM.

Certiorari dismissed.


author: PER CURTAM.

text:
    Jimmy Lee JEFFERY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-634.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURTAM.

Appeal quashed.


text:
    Alberto SILVA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-624.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURIAM.

Appeal quashed.


text:
    TERRELL-BROWN & COMPANY, a Florida Corporation, Appellant, v. BOULEVARD NATIONAL BANK OF MIAMI, a U. S. Banking Association, et al., Appellees.
    No. 75-1182.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURTAM.

Appeal quashed.


text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. Brainard STONE and Beulah Stone, Respondents.
    No. 75-738.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Gertrude HAZZARD and Ann Gaffan, Appellants, v. METROPOLITAN DADE COUNTY TRANSIT AUTHORITY et al., Appellees.
    No. 75-984.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    INTERCONTINENTAL GROUP, INC., a Florida Corporation, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 75-1317.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1975.
   PER CURIAM.

Appeal dismissed.

4


text:
    MAYERCHAK REALTY COMPANY, a partnership, Appellant, v. SCOTT-VIA REALTY CORP., a New York Corporation, et al., Appellees.
    No. 75-917.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Harry SIEGEL and Billie Siegel, his wife, Appellants, v. Lionet H. SANGER, Appellee.
    No. 75-707.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Bernie APPELBAUM, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-685.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
   PER CURIAM.

Certiorari denied.


text:
    The STATE of Florida, Appellant, v. Harry HARRIS, Appellee.
    No. 75-1174.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
   PER CURIAM.

Certiorari denied.


text:
    James Bernard BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1415.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
    Rehearing Denied Oct. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Vivian LIVEO, as Trustee, now known as Vivian Liveo Cerasuolo, on behalf of herself and all others similarly situated, Appellant, v. Steven J. HORVATH, as Trustee, Appellee.
    No. 74-1522.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles Chevy ZILLA, Appellant, v. STATE of Florida, Appellee.
    No. X-143.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    Rehearing Denied Oct. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Don A. ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1767.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
    Rehearing Denied Oct. 27, 1975.
   PER CURIAM.

Affirmed.


text:
    Guion T. DeLOACH, individually and as representative of a class, Appellant, v. LGS CONCORD CORPORATION, and as general partner of NorCon, Ltd., a Florida limited partnership, Appellee.
    No. 75-420.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    GENESIS OPTIMUM CORPORATION, Appellant, v. Vera M. ALLENDER, Appellee.
    No. 75-92.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
    Rehearing Denied Oct. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenneth Ray DUCKSWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 74-545.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles A. HANLON and Ruth Hanlon, his wife, Appellants, v. FOX, BURTON, GEORGE AND LOEFFLER, a professional association, and Charles D. George, individually, Appellees.
    No. 75-155.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
    Rehearing Denied Oct. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Fred OGLETREE, Appellant, v. STATE of Florida, Appellee.
    No. 74-895.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    COASTAL STATES LIFE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. James L. HOOKS, Jr., and Bonnie Hooks, his wife, Appellees.
    No. 75-1229.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    EASTLAND INVESTMENT COMPANY, Appellant, v. J. R. TRUEMAN & ASSOCIATES, INC., an Ohio Corporation, and Mark D. Feinknopf, et al., Appellees.
    No. 75-1412.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Fernando LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1037.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    The STATE of Florida ex rel. Amidi ZUBERI, Relator, v. The Honorable Gene WILLIAMS, Judge of the Circuit Court of the Eleventh Judicial Circuit In and For Dade County, Florida, Criminal Division, Respondent.
    No. 75-1348.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    A. J. HOUSE & SONS, INC., et al., Appellants, v. Louis SMITH, as Administrator of the Estate of Norman Louis Smith, Deceased, Appellee.
    Nos. 75-389, 75-390 and 75-392.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeals dismissed.


text:
    ASSOCIATED DOCTOR’S HOSPITALS, INC., Appellant, v. Donald L. SEARLE and Shirley Searle, his wife, Appellees.
    No. 75-646.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Robert F. BUSA, a/k/a Robert Frank Busa, Appellant, v. STATE of Florida, Appellee.
    No. 75-459.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Jessie Willie CALLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 74-611.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Paul M. CARLEY, Appellant, v. Florence M. FARMER a/k/a Florence Carley, Appellee.
    No. 75-186.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    CONTINENTAL INSURANCE COMPANY, a Foreign Corporation, and Gordon W. Jacobs, Appellants, v. Linda BOLING, previously known as Linda Collom, Appellee.
    No. 74-1475.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    CONTINENTAL MORTGAGE INVESTORS, Appellant, v. John C. SPENCER et al., Appellees.
    No. 75-1178.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Millard CRUM, Appellant, v. Robert J. WADE et al., Appellees.
    No. 75-129.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Virginia Ann ELFERS, Appellant, v. Edward ELFERS, Appellee.
    No. 75-835.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Q. P. FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1275.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    GASPARILLA SERVICE CORPORATION, a Florida Corporation, Appellant, v. GENERAL ELECTRIC COMPANY, a New York Corporation, Appellee.
    No. 74-1378.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    James Thomas HICKS, Appellant, v. Cheryl Ann HICKS, Appellee.
    No. 75-632.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Henry F. HILL, as Trustee in Bankruptcy for Dade Plumbing, Inc., a Florida Corporation, Appellant, v. COPLAN PIPE & SUPPLY CO., INC., a Florida Corporation, Appellee.
    No. 75-1368.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Clyde P. JIMINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 74-1382.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    JOSEF’S OF PALM BEACH, INC., Appellant, v. GUCCI SHOPS, INC., and Frank A. Dugan, individually, Appellees.
    No. 75-267.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Phronie LOCKLEAR, Appellant, v. WOOLCO, DIVISION OF WOOLWORTH CORPORATION and Travelers Insurance Company, Appellees.
    No. 75-236.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.

I


text:
    Max McCUBBIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-203.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Raymond Alwyn McMAHON, Appellant, v. STATE of Florida, Appellee.
    No. 75-615.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Dan NESMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-633.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Fulton T. PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1744.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert M. ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-82.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Fred E. ST. CLAIR, Appellant, v. Harriet M. ST. CLAIR, Appellee.
    No. 74-334.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Alex SALKAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1240.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Kay SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 75-321.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Samuel H. STRANO, and Arlyn Strano, his wife, Appellants, v. MANTOVANI REALTY, INC., a corporation, et al., Appellees.
    No. 75-661.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE ex rel. Charles GLANTZ, Relator, v. The Honorable Sidney WEAVER, as Judge of the Circuit Court, Criminal Division, in and for Dade County, Florida, Respondent.
    No. 75-1568.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Prohibition denied.


text:
    STATE of Florida ex rel. Walter J. LEONA, Relator, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1458.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
   PER CURIAM.

Habeas Corpus dismissed.


text:
    ATICO MORTGAGE CORPORATION, Appellant, v. CITRUS GARDENS APARTMENTS et al., Appellees.
    No. 75-354.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
   PER CURIAM.

Affirmed.


author: SHORES, Justice. MERRILL, Justice

text:
    Cecil D. JACKSON v. The CITY OF FLORENCE, a Municipal Corporation, et al.
    SC 934.
    Supreme Court of Alabama.
    July 10, 1975.
    Rehearing Denied Oct. 2, 1975.
    C. A. Poellnitz, Florence, for appellant.
    Arnold Teks, Florence, for appellees.
    Drayton N. Hamilton, Montgomery, for Alabama League of Municipalities, amicus curiae.
   SHORES, Justice.

This is an appeal from a judgment of nonsuit occasioned by the trial court’s sustaining the defendant city’s demurrer and motion to dismiss the plaintiff’s complaint. The trial court specified the grounds upon which the demurrer was sustained, saying:

“. . . The court is of the opinion that the demurrer is due to be sustained under the doctrine of municipal immunity from liability for injuries inflicted by an agent of the municipality acting in a governmental capacity which is well established by the opinions of the Supreme Court of Alabama . . .”

The complaint claimed damages against the City of Florence and a police officer for personal injuries sustained by the plaintiff as a proximate result of the negligence and wantonness of the police officer acting in the line of duty. It was alleged that the police officer, while engaged as a police officer of the City of Florence, negligently assaulted (Count I) and willfully or wantonly assaulted (Count II) the plaintiff, an unarmed, seventy-five-year-old, 130-pound man by the use of excessive force, resulting in the plaintiff’s loss of his right eye. In his claim, filed pursuant to Title 37, §§ 476 and 504, Code, the plaintiff asserted:

“On August 1, 1972, I was arrested at The Shanty Restaurant on South Court Street in Florence, Alabama, by Florence City Police Officers, Grady Smith and Lee Short, at approximately 6:55, p. m. | The named officers took me to the police S station at the City Hall in Florence, Ala-1 bama, where I was escorted into a small i room by the two named officers. Then and there City police officer, Grady > Smith, struck me in the face on or near my right eye, rendering me momentarily unconscious, and inflicting serious injuries to my right eye and face. I was neither permitted to seek medical attention by said officers for said injuries nor was any attempt made by said officers to get medical attention for me. Immediately following the said, assault on me, I was taken by these officers upstairs in the said City Hall and put in a jail cell and kept there until the following morning, viz., August 2, 1972.
“While in the jail cell and during the night of August 1, 1972, and the morning of August 2, 1972, I repeatedly requested to be taken to a doctor to get medical attention for my eye. Notwithstanding my repeated requests, I was not taken to a doctor until around 7:30 on the morning of August 2, 1972, at which time I was driven by City police officers to the Eliza Coffee Memorial Hospital in Florence, Alabama, and carried to the emergency room. Dr. Shaler Roberts of the Florence Clinic was called in to examine my eye and found that it was damages to such an extent that the eye had to be immediately removed.”

Appellant acknowledges, as indeed he must, that this is a “head-on” request for a re-examination and reconsideration of the broad question of whether Alabama municipal corporations should continue to enjoy immunity from liability for the wrongful acts of their agents acting within the line and scope of their employment. More specifically, he seeks a re-evaluation of this court’s construction of Title 37, § 502, Code. He further admits that, for him to prevail, this court must overrule a long line of cases including, but not limited to, Chaffin v. City of Montgomery, 273 Ala. 492, 142 So.2d 267 (1962); McSheridan v. City of Talladega, 243 Ala. 162, 8 So.2d 831 (1942); and McCarter v. City of Florence, 216 Ala. 72, 112 So. 335 (1927).

It is generally agreed that the doctrine of sovereign immunity developed in this country from the English doctrine, which grew out of the concept that the “King can do no wrong.” That this occurred in America, given the historical background which led to the Revolutionary War, is “one of the mysteries of legal evolution.” Borchard, Government Responsibility in Tort, 34 Yale L.J. 1, 4 (1924). The concept of municipal immunity from tort claims had its beginning in the English case of Russell v. Men of Devon, 100 Eng.Rep. 359 (1788), which, it has been noted, was 12 years after the Declaration of Independence. Massachusetts is said to be the first state in the United States to adopt the doctrine by judicial decision in Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812).

Alabama first considered the question of tort liability of municipalities in 1854, in Smoot v. The Mayor, etc. of Wetumpka, 24 Ala. 112. Four years later, it declared cities immune to suit for torts committed by agents in the exercise of a governmental function. Dargan v. Mayor, etc. of Mobile, 31 Ala. 469, 70 Am.Dec. 505 (1858). There followed a long line of cases holding that municipalities were liable for torts committed in the exercise of their corporate or proprietary capacity, but were immune from suit for the commission of torts in their governmental capacity.

During this same period, this court made a distinction in connection with streets. In Smoot v. The Mayor, etc. of Wetumpka, supra, in holding that the cities were liable for negligent injuries arising out of defects in the streets, the court fixed liability on the theory that there was a breach of an affirmative duty on the part of the city to keep the streets in good repair. The street cases did not rest on the distinction between governmental or proprietary functions, as did other torts. Albrittin v. May- or & Aldermen of Huntsville, 60 Ala. 486, 31 Am.Rep. 46 (1877); City of Selma v. Perkins, 68 Ala. 145 (1880); City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422 (1882); Bradford v. Mayor & City Council of Anniston, 92 Ala. 349, 8 So. 683 (1890); Mayor & Aldermen of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243 (1890); Mayor & Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424 (1895); Lord v. City of Mobile, 113 Ala. 360, 21 So. 366 (1896); City Council of Montgomery v. Reese, 146 Ala. 410, 40 So. 760 (1906); and City of Anniston v. Ivey, 151 Ala. 392, 44 So. 48 (1907).

The doctrine of governmental immunity in this country has been universally condemned in an unending number of published statements by legal scholars and jurists. It is frequently stated that the doctrine cannot be defended on any logical basis. By the turn of the century, it was being criticized as unjust and irrational from many sources; but, there is no doubt that the doctrine was, by that time, firmly established in Alabama law by decisions of this court, as it was in a majority, if not all, of the other states of the Union.

Against this background, the Alabama Legislature acted in 1907, by enacting legislation which is now carried as Title 37, §§ 502-504, which provide:

§ 502. No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employe[e] of the municipality engaged in work therefor; and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council, and whenever the city or town shall be made liable to an action for damages, by reason of the unauthorized or wrongful acts, or the negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.
§ 503. The injured party, if he sues the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as defendant or defendants of the suit, and no judgment shall be rendered against the city or town, unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant or when judgment is rendered in his favor on some personal defense, and if an action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provisions in the preceding section, the plaintiff shall be nonsuited, unless he amends by making such party or corporation a defendant if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately, irrespective of this provision. When a judgment shall be obtained against a municipality and the other party liable as aforesaid, execution shall issue against the other defendant or defendants in the ordinary form, and shall not be demandable of the city or town unless the other defendants are insolvent, and the same cannot be made out of their property, and the city or town shall pay only so much of the said judgment as cannot be collected out of the other defendants. If the injured party shall, before bringing suit, demand of the mayor of such municipality the name of such other person or persons or corporation as may be liable jointly with the said municipality to such injured party, and if such mayor failed to furnish within ten days from the making of such demand, the name of such person or persons or corporation, so jointly liable, the said injured party shall not be required to join such other person as a party defendant with said municipality in any suit brought to recover damages for such injuries.
“§ 504. No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the unju-ry was received, and the day and time, and the place where the accident occurred, and the damages claimed.”

As noted in an excellent analysis of the case law, both before and after the enactment of § 502 et seq., Copeland and Screws, “Governmental Responsibility for Tort in Alabama,” 13 Alabama Law Review 296, 322:

“No mention is made [in the statute] of liability being restricted to corporate functions of the municipality. The first subdivision in plain language declares the city to be liable for ‘injury or wrong done or suffered through the neglect, carelessness or unskillfulness’ of an agent engaged in work for the municipality and while acting within the line and scope of his employment. On its face, it would appear that the legislature had brought the municipalities down to a par with other bodies corporate. No exceptions are stated in the first subdivision which could curtail governmental responsibility for tort to ministerial functions. Nor was the statute passed against a background of constitutional prohibition of suits against the municipalities. The immunity existing before the 1907 enactment was wholly judicial in its creation and maintenance. . . .”

Most of the cases, delineating between which functions were governmental and which were ministerial, corporate, or proprietary, applied a benefit test, i. e., “. . . whether the act performed is for the common good of all or whether it is for the special benefit or profit of the corporate entity.” City of Bay Minette v. Quinley, 263 Ala. 188, 190, 82 So.2d 192, 194 (1955). Shortly after the legislature acted, the Court of Appeals had occasion to consider what the impact of the legislation was to be. In City of Bessemer v. Whaley, 8 Ala.App. 523, 531, 62 So. 473, 475 (1913), speaking through Judge Thomas, that court said:

“. . . The character of ‘work’ to which the statute has reference is work of the servants or officers of a municipality while engaged in the performance of manual labor or in discharging ministerial duties therefor in the execution of its private or corporate acts, or in carrying out some public improvements or works entered upon by it, as contradis-tinguished from service performed by its officers in discharging the governmental duties of the corporation. . . .”

From that point forward, this court has accepted the interpretation placed on the statute, and has continued to distinguish between governmental functions and corporate or proprietary functions, which has had the effect of making the legislative'enactment ineffective in so far as changing the law as it had been judicially declared in this state since 1854. The only change effected by the statute was to eliminate the reference to municipal charters as the source of a city’s duty to maintain the streets in safe repair. It is an anomaly that, since the act itself made no distinction between governmental and corporate functions but imposed liability in “street” cases, this court was put in the awkward position, after the enactment of the statute, of having to declare, to remain consistent with its prior holdings, that the duty to repair streets was “intrinsically ministerial,” since they have peculiar and local uses, saying; in City of Bessemer v. Whaley, 187 Ala. 525, 527, 65 So. 542 (1914) .

“. . . These implications appear to rest upon the theory that the duty to keep in repair is a corporate rather than a public duty, which is discharged by a governmental agency of the state. The doctrine is apparently anomalous, but it may be explained by reference to the considerations that streets in cities and towns have peculiar and local uses distinct from the'highways of the state, and the duty of the municipal authorities in respect to keeping them in repair is intrinsically ministerial. . . .”

It is apparent, therefore, that the only force given to the enactment passed by the 1907 Legislature, in so far as changing the law of municipal immunity, was simply to perpetuate the law as it existed before the enactment.

Since that time, the litigant suing a municipality in tort must attempt to show that the function being performed which resulted in his injury was a corporate or ministerial one. Needless to say, this has resulted in some curious categories. Garbage collecting has been held governmental, City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771 (1923); but sewer disposal is corporate, Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419 (1957). Repair and maintenance of streets is proprietary or corporate, City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841 (1929); but operating a street sweeper to keep the streets clean is governmental, Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320 (1931).

In its present state, the only clue to whether a particular function is governmental or corporate must be found in cases expressly declaring that particular function to fall within one or the other category. The incongruities which have resulted from this effort has itself been the subject of frequent comment, both in Alabama and elsewhere. Copeland and Screws, Governmental Responsibility for Tort in Alabama, supra; Rhyne, Municipal Law, p. 732; Green, Freedom of Litigation (III) : Municipal Liability for Torts, 38 Ill.L.Rev. 355; Phillips, “Active Wrongdoing” and the Sovereign Immunity Principle in Municipal Tort Liability, 38 Ore.L.Rev. 122; Davis, Tort Liability of Governmental Units, 40 Minn.L.Rev. 751.

This judicial sleight of hand could have been avoided entirely by giving to the 1907 legislative enactment its clear meaning. Yet, as case after case has come to this court urging it to correct this judicially created barrier to the courthouses of this state, the answer always given in denying that relief is that the relief sought, if to be obtained, must come from the legislature. In making that statement, this court has not recognized that in Alabama, it was this court which closed the courthouse doors in litigation of this kind as early as 1858; and when the legislature opened them in 1970, we closed then again and, in so doing, thwarted the will of the legislature.

The defendant city, in the instant case, argues just that again, i. e., that relief, if any, must come from the legislature, and we do not blame it. There is abundant authority to support the argument. We have supplied it. Yet, we have also said that the question of immunity “is judicial and not legislative in nature” in a case where the legislature sought to declare a function to be governmental. Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14 (1929).

No one believes in the validity of the rule of stare decisis and the necessity for stability in the law more than we do. We are equally, if not more so, adamant in our belief in the profound wisdom in the doctrine of separation of powers. Such is critical, in our opinion, to the survival of our system of government. Under that doctrine, no branch of the government may substitute its judgment for any other. Each branch has inherent powers denied the others. The legislature had the power in 1907 to abolish municipal immunity for tort, there being no constitutional barrier to its action. This court should have bowed to that legislative prerogative rather than take the course it did, which was to treat the thoughtful legislation as no more than a restatement of the law as it then existed by judicial decision.

The rule of governmental immunity for cities, bottomed, as it is, on the English concept that the “King can do no wrong,” is the antithesis of the very concepts upon which our government was founded. In fact, recent events have demonstrated dramatically that the “king can do wrong” in America; and when he does, he must pay the penalty for such wrongdoing.

As alluded to earlier, by the turn of the century this judicially created rule of immunity was under severe attack. In fact, England had, by that time, overruled the decision on which the American cases are founded, and municipal immunity for tort is not recognized by the law of England at this time. See Annotation 160 A.L.R. 7.

We, like everyone else, do not have the benefit of any legislative debate on what is now Title 37, § 502 et seq., Code. But, it seems to us that it is not unreasonable to suspect that the legislature was reacting to the ever-accelerating call for the abolition of what was by that time recognized as an unjust rule of law.

As strongly as we believe in the stability of the law, we also recognize that there is merit, if not honor, in admitting prior mistakes and correcting them. The city here argues that the failure of the legislature to act in this area constitutes its approval of the construction placed on its enactments by this court. It is equally arguable, as noted by Justice Currie, concurring specially in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 626 (1962), that “. . . they [the legislature] deferred to the supposed wisdom of the court, or else determined that the court should correct its own mistakes,” or as Judge Moremen of the Court of Appeals of Kentucky responded to the same argument in Haney v. City of Lexington, (Ky.), 386 S.W.2d 738, 741 (1964):

“. . . It seems to us that an equally reasonable assumption is that the legislature might expect the courts themselves to correct an unjust rule which was judicially created. ...”

The Supreme Court of New Jersey met the same argument in McAndrew v. Mularchuk, 33 N.J. 172, 193, 162 A.2d 820, 832 (1960), and said:

“. . . But the limitation on the normal operation of respondeat superior was originally placed there by the Judiciary. Surely it cannot be urged successfully that an outmoded, inequitable, and artificial curtailment of a general rule of action created by the judicial branch of the government cannot or should not be removed by its creator. . . .”

And again, by the Supreme Court of Washington, in Pierce v. Yakima Valley Memorial Hospital Ass’n, 43 Wash.2d 162, 178, 260 P.2d 765, 774 (1953):

“. . . We closed our courtroom doors without legislative help, and we can likewise open them. . . .”

We earnestly believe that the responsibility for correcting what is universally condemned as a bad rule of law rests with this court. The rule of municipal immunity cannot be rationally defended. We agree with the statement made in Barker v. City of Santa Fe, 47 N.M. 85, 88, 136 P.2d 480, 482 (1943):

“ . . . 1 . . . It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, “the King can do no wrong”, should exempt . . . [municipalities] from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.’ ”

In abolishing the doctrine of municipal immunity, Alabama joins a growing number of states in abolishing governmental immunity as to various governmental units: Stone v. Arizona Highway Com., 93 Ariz. 384, 381 P.2d 107 (1963); Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Hargrove v. Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193 (1957); Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959), cert. den. 362 U.S. 968, 80 S.Ct. 955, 4 L. Ed.2d 900; Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Haney v. Lexington, supra; Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190 (1965); Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); Brown v. Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963); B. W. King, Inc. v. West New York, 49 N.J. 318, 230 A.2d 133 (1967); Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970); Holytz v. Milwaukee, supra.

We observe, however, in none of the states mentioned above, so far as our research has revealed, was the court acting, as we are, to let the will of the legislature, so long ignored, prevail.

In departing from our earlier holdings in this area, a departure which we believe is required to let the legislative will operate, and also by justice, we recognize that the decision would work hardship on municipalities in this state which have relied on the earlier cases.

Many states have considered this problem and have applied the new rule in various ways. When Kentucky abolished the rule of governmental immunity, it dealt with the problem of the new rule’s applicability and said:

“Three courses are open to us under such a situation as is presented here: (1) We can merely announce the new rule without applying it and suggest that it should be applied to cases brought to us in the future. (2) We can give relief to the appellant in the instant case, but deny it to any others whose injuries occurred before the date of the opinion; or (3) We can apply the rule in the instant case and permit all others who have been injured, not barred by the statute of limitations, to take advantage of the new rule. In the first instance the announcement of the new rule would be merely obiter dictum, which is frowned upon by some authorities. The second alternative gives the appellant a reward for his industry in again suggesting to the Court that it has been wrong. The third category, of course, permits retrospective relief. We see no particular reason why this third application of the rule is harmful. It is difficult to believe a city or any of its agents ever committed a tort deliberately and in reliance upon the doctrine of governmental immunity. We declare the law applicable not only to this case, but to all cases which may have arisen within the proper time of limitation.” Haney v. Lexington, supra, 386 S.W.2d at 742.

The reasoning of the Kentucky Court has strong appeal. However, it is noted in that opinion, Haney v. City of Lexington, supra, that in a prior opinion “ . this Court gave warning that it was dissatisfied with the rule of municipal immunity.” (386 S.W.2d at 742) No opinion by this court has issued such a warning. For that reason, and for another to be expressed momentarily, we believe that the second alternative constitutes a reasonable compromise. Therefore, this holding is applicable to the appellant in the instant case, and to all others suffering injury after the date hereof. There is ample authority for this treatment. Frequently referred to as a quasi-prospective abrogation, it is said to protect not only the governmental agencies in their probable reliance on the immunity, but also recognizes the efforts of the plaintiff in initiating the action. Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968); Molitor v. Kaneland Community Unit Dist., supra; Becker v. Beaudoin, supra. There is no constitutional prohibition against such treatment. Great Northern Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).

In deciding, as we do, that municipal immunity for tort is abolished in this state after the date of this opinion, we recognize the authority of the legislature to enter the entire field, and further recognize its superior position to provide with proper legislation any limitations or protections it deems necessary in addition to those already provided in Title 37, §§ 503 and 504, and in Title 37, § 476, Code.

The judgment appealed from is reversed.

Reversed and remanded.

FAULKNER, JONES, ALMON and EMBRY, JJ., concur.

BLOODWORTH, J., concurs in the result.

HEFLIN, C. J., and MERRILL and MADDOX, JJ., dissent.

MERRILL, Justice

(dissenting).

I would affirm the judgment of the circuit court and, therefore, I dissent.

The statement the “King can do no wrong” appears three times in the majority opinion, and a casual reader of that opinion might get the idea that that concept is the basis of American and Alabama decisions upholding the doctrine of governmental immunity. That obviously is not the case.

Most of the words in our revered Declaration of Independence, 200 years old in 1976, catalogue wrongs of the King, and those wrongs were the reasons for the support of our long war for independence from England and the rule and wrongs of the King. Then our own government, first under the Articles of Confederation and later the Constitution of the United States made certain that this new country would have no king.

Our doctrine of governmental immunity, both state and national, grew out of the common sense approach that the people' had created a democracy under a republican form of government; that the govern-J ment was the people, and the people’s gov-i ernment should not be weakened by allows ing the people to sue themselves when the government committed a tortious act while engaged in a governmental function. In McQuillin, Municipal Corporations, Vol. 18, 3rd Ed. Rev., Section 53.24, pp. 167 et seq., a recognized and oft-quoted authority, states:

■ “In the absence of statute, it has always been the law that no private action for tort will lie against the state, since negligence cannot be imputed to the sovereign. So, in the various localities or local areas where the state agencies merely perform governmental functions of the state and acquire no individual corporate existence, they stand as the state, and, therefore, to hold them responsible for negligence would be the same as holding the sovereign power answerable for its action. It is assumed that no provate legal duty rests upon a city to perform governmental functions, and, moreover, ‘their character precludes the idea of the common law rule of responsibility, for there is no standard of reasonable care by which the acts of the government may be tested. The state, through its representatives, namely, the municipal corporation, acts in its sovereign capacity, and does not submit its actions to the judgment of the courts.’ 'The reason is that it is inconsistent with the nature of their powers that they should be compelled to respond to individuals in damages for the manner of their exercise. They are conferred for public purposes, to be exercised in their prescribed limits, at discretion, for the public good; and there can be no appeal from the judgment of the proper municipal authorities to the judgment of courts and juries.’
“The doctrine exempting a municipal corporation from private action for torts resulting from the performance of its governmental functions, steadily adhered to by the most recent judicial decisions, as above indicated, is based on the familiar reason that the undertaking is not to promote the private interests of the municipality as a corporate entity, but rather, for the- public benefit, and in the performance of such obligation the municipality is a mere public agent, either of the state or of the local community. The reason, as often expressed, it one of public policy, to protect public funds and public property. ‘Taxes are raised for certain specific governmental purposes; and, if they could be diverted to the payment of the damage claims, the more important work of government, which every municipality must perform regardless of its other relations, would be seriously impaired if not totally destroyed. The reason for the exemption is sound and unobjectionable.’ ”

In Alabama, the people have tried the doctrine both ways insofar as the State government is concerned. The Constitution of 1819, our first, provided: “The general assembly, shall direct, by law, in what manner, and in what courts, suits may be brought against the State.” Statutes were passed in accordance with this provision. Clay’s Dig. 339, §§ 143-146. In the Constitutions of 1865 and 1868, the people said “That suits may be brought against the State, in such manner, and in such courts, as may be by law provided.” In Ex parte State, 52 Ala. 231 (1875), this court held that since the statutés authorizing suits against the state had been repealed, no such suits could be brought. But in the Constitution of 1875 and our present Constitution of 1901 (§ 14), the people had changed their minds and said, “That the State of Alabama shall never be made a defendant in any court of law or equity.” No king or kingly concept had anything to do with those provisions of our Constitution.

Earlier in 1857 in the case of Dargan v. Mobile, 31 Ala. 469, where the City of Mobile was sued for a tortious act of a policeman, this court held that the city was “ex-ercuting a governmental power vested in it for the public benefit” and said:

“Because the corporation is, as to the passage of the ordinances and the appointment of the officer described in the pleadings, a government, exercising political power, it is irresponsible for the official misconduct alleged, upon the same principle which generally protects governments and public officers from liability for the misfeasances and mal-feasances of persons necessarily employed under them in the public service. —Story on Agency, §§ 319, 319 a, 319 b, 320, 321; Dunlap’s Paley’s Agency, 376. Municipal corporations, quoad hoc, stand upon the same foundation with public officers, counties, townships, and other quasi corporations, charged with some public duty, or invested with some portion of the authority of the government, where the employment of officers is necessary and lawful.”

So it can be seen that the common-law rule of governmental immunity was in effect before any provisions were placed in the Constitution.

In 1907, the Legislature passed a new municipal corporations act, a part of which is Tit. 37, §§ 502-504, quoted in the majority opinion. It was the duty and power of the judiciary of this state to interpret those sections. They were interpreted by both this court and the then Court of Appeals as not abrogating the rule of governmental immunity when a municipality was engaged in a governmental function for the benefit of the people. But this court has recognized the power of the Legislature to diminish that immunity in §§ 502-504. In 1954, this court, in discussing a dedicated street said in Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552:

“ * * * It requires some distinct act by the city to constitute an acceptance, such as a formal resolution or by acts and conduct of the city authorities recognizing it as a dedicated street. After the city has accepted its dedication there are certain duties and responsibilities imposed by statute upon the city. They result from what is now Title 37 beginning with section 502. Prior to that enactment the upkeep of the streets was a governmental function and not a legal duty, except as otherwise provided by some special law. Albrittin v. Mayor & Alderman of City of Huntsville, 60 Ala. 486. Thereafter it has been a legal duty, imposing responsibility upon the city for negligence in performing it. The power and authority to control streets was made the exclusive prerogative of the city, which created a corresponding and coextensive duty and therefor a civil liability for the consequences of a default therein.” (Citations omitted.)

In City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692, this court, in replying to the same argument which was made and presented in the instant case, said:

“We have consistently adhered to the principle that legislative action is required to make a municipal corporation responsible for personal injuries or death caused by the negligence of its servants, agents or employees while engaged in governmental functions and we think it unsound to extend the nuisance exception to cover such injuries, thereby requiring the City to defend every personal injury negligence further confused by attempts to force a coverage of the individual case.
“Although, as we have observed, some courts engage in chipping away bit by bit at the doctrine of governmental immunity from one point of view or another where distinctions, defensible or indefensible, are seen, the general doctrine is so firmly embedded in our jurisprudence that we entertain the view that correction, if needed, must come from the legislature. Only the legislature can provide the regulations and limitations necessary to protect the public interest and provide the fiscal basis for payment of such claims.”

It is my opinion that the holding in this case will be a heavy blow to law enforcement in Alabama. In practically every arrest or even detention for investigation, there is a physical touching of the suspect by the officer, either in frisking the person or handcuffing him, or both. An allegation and evidence that the officer used more force than was reasonably necessary would make a jury question in every suit against the officer and the municipality that employed him. Not only would the courts soon become clogged with such cases, but many of them would be filed merely as a permissible form of blackmail to force the city to settle for a dismissal or a lighter sentence or to force the officer to change his testimony in many such cases. Many arrests are made in unfriendly surroundings and the officer could easily be outsworn as to what happened. It is not to be expected that too many deputy sheriffs or policemen would physically block entrance to private or public buildings when faced with a large group of demonstrators, rioters or hoodlums when he knew that any act on his part, other than talking, would result in a suit against him and his employer.

Then, there is a tremendous economic impact on the municipalities. This policy decision changes the rule drastically and it will come upon municipalities in Alabama without warning because for over 100 years the appellate courts of this state have applied the doctrine of governmental immunity when the agent or employee was engaged in a governmental function. There will be consideration of closing “public squares, parks, playgrounds and recreational facilities (all governmental functions, Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632), reducing other public services and hunting funds to pay additional and higher insurance premiums. It seems to me that some warning could have been given by this court that such a drastic change in the law was imminent. I also fear that the position of the majority probably means the future closing of many city and county Hill-Burton hospitals that are presently barely able to stay open.

This dissent is already too long. I close with some words of Justice Thomas E. Brennan of the Supreme Court of Michigan. These words express my sentiments. The background for the writing follows. In 1961, the Supreme Court of Michigan, in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, by a S to 4 vote (one of the majority only concurred in the result), affirmed a decision which did away with governmental immunity from ordinary torts in Michigan and approved the holding in subsequent cases. On July 1, 1965, the Legislature of Michigan reimposed the doctrine by statute. In Smith v. Ginther, 379 Mich. 208 150 N.W.2d 798 (1967), the plaintiff was injured in a collision with a car driven by a volunteer fireman while responding to a fire alarm. The accident occurred after the decision in Williams but before the Legislature reinstated governmental immunity. The trial court ruled that the legislative enactment did not control. The vote was 4 to 3 and Brennan, J., dissented. In his dissent, he said in part:

“ * * * When judges get into the area of deciding policy they get 'into trouble. Those who sought unsuccessfully and later -successfully to abolish governmental immunity have thought it the wiser policy. The legislature has since vindicated the minority who felt otherwise. If the common-law rule holding the various levels of government immune from civil liability by reason of the tortious acts of their agents when engaged in governmental functions was indeed an ancient wrong crying out for redress, we must marvel that it has been re-perpetrated by a modern legislature. The truth is that the rule is not a wrong, ancient or recent. It is simply a rule of reason ordained for the common good. In the last analysis, the preservation of civil government is thought to be a greater good, even for the unfortunate plaintiff than compensation of his injuries from the public coffers. In a government whose power to borrow money is constitutionally circumscribed, it is thought to be a prudent policy to deny to civil juries the unfettered power to increase the public indebtedness.
“This is no outmoded theory that ‘the King can do no wrong.’ It is merely a recognition that in a government of the people, by the people, and for the people, the wrongs inflicted by government upon the people are wrongs they inflict upon themselves. Defendant Ginther was a volunteer fireman on his way to a fire in his own car. Plaintiff can sue Mr. Ginther. Plaintiff can collect from Mr. Ginther, if he was at fault. The people of Croswell didn’t injure this plaintiff. Mr. Ginther did. The City merely maintained a volunteer fire department for the protection of the lives and property of persons in its area, including the plaintiff.
“When fire rages, when the dam breaks, when the enemy attacks, the people, through their government must act. They must act vigorously and boldly or they perish. It is not for judges, serene in their robes and far removed by time and space from the common peril, to brand them negligent in their travail and suffer their fortunes and their labors to be further taxed to pay compensatory damages to those who chanced to be injured in the community’s efforts to overcome the disaster rather than in the disaster itself.”

I would affirm the judgment of the trial court because this being a matter of important state policy, I remain of the opinion that it is a legislative rather than a judicial matter.

MADDOX, J., concurs.


author: SIMMONS, ’ Supernumerary Circuit Judge.

text:
    Leonard Frank THOMPSON, alias v. STATE.
    1 Div. 577.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    W. Mark Anderson, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, Asst. Atty. Gen., for the State.
   SIMMONS, ’ Supernumerary Circuit Judge.

Appellant-defendant, an indigent at nisi prius and here, was indicted for murder in the first degree and convicted therefor. The jury’s verdict fixed punishment at life imprisonment.

Appellant’s counsel (appointed) on this appeal asserts the testimony of the State’s second witness, Katie May Franklin, should not have been adduced for that she was the common law wife of the defendant. Appellant cites the statutory inhibition which precludes such evidence unless the witness elects to testify after being informed of her rights not to do so. Title 15, § 311, reads:

“The husband and wife may testify for or against each other in criminal cases, but shall not be compelled so to do.”

It appears from the record that the witness gave her name as Katie May Franklin; that she proceeded to testify at length on direct and cross examination and not once did she indicate or claim to be the wife, past or present, of defendant.

Toward the very end of her appearance on the stand as a witness, on redirect, in response to a question as to her relationship with defendant did she make the statement, “He used to be my common law husband.”

For aught appearing, the witness did not know what facts or marital relationship were necessary to constitute a common law marriage.

The defendant, thereafter, did not offer any objection to the short concluding testimony of the witness on redirect. This testimony was in part redundant. Defendant concluded with a short recross examination.

The court was not informed until the answer, supra, that the witness ever claimed to have been defendant’s wife under the law.

The defendant did not invoke any action or ruling of the court, nor did he make any motion to exclude the witness’ testimony for that she had not been given an opportunity to assert her immunity from testifying.

We also note that this witness, in her answer, used the past tense, “used to be my common law husband.” No contention was made that she was then defendant’s wife.

Under the circumstances, this belated statement as to her erstwhile marital relationship with defendant, in-action of defendant to obtain a ruling of the court, and the other circumstances,, supra, we are unwilling to fasten error on the trial court.

Defendant’s appellate counsel asserts no other contention of error. As we view the record, the "trial was free of error and the judgment is due to be affirmed. It is so ordered.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Clyde MCDONALD v. STATE.
    1 Div. 580.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.

      Reynolds T. Alonzo, Jr., Mobile, Clyde McDonald, Pro se, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Murder; life.

On September 25, 1969, the Grand Jury of Mobile County returned an indictment charging appellant with unlawfully killing Hudson Jones by shooting him with a pistol.

According to the minutes of the court, the case was tried on January 30, 1975, and a guilty verdict was returned the same day.

After notice of appeal, appellant was appointed counsel and granted a free transcript.

On April 16, and May 16, 1975, appellant filed pro se petitions to amend his appeal. We have treated these petitions as pro se briefs and have considered them in addition to the brief filed by appointed counsel.

In the petitions appellant stated that in 1969, he was sentenced to 15 years on his guilty plea. A petition for error coram nobis was later granted, and in 1975 he was tried and convicted. It is this conviction that is now before us on appeal.

Appellant contends he received a greater sentence after trial than he received on his guilty plea. He insists this was error and “pure vindictiveness.”

This question was considered by the U. S. Supreme Court in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L. Ed.2d 714. There the court upheld a higher sentence imposed by a jury that had not been informed of the defendant’s prior sentence. Speaking for the court, Justice Powell noted:

“The potential for such abuse of the sentencing process by the jury is, we think, de minimis in a properly controlled retrial. The first prerequisite for the imposition of a retaliatory penalty is knowledge of the prior sentence. It has been conceded in this case that the jury was not informed of the prior sentence. We have no reason to suspect that this is not customary in a properly tried jury case. It is more likely that the jury will be aware that there was a prior trial, but it does not follow from this that the jury will know whether that trial was on the same charge, or whether it resulted in a conviction or mistrial.”

The transcript of Clyde McDonald’s trial does not reflect that the jury was given any indication of the prior sentencing.

Based on the foregoing facts there is no basis for holding the second sentence was vindictively imposed.

The only evidence presented at trial on January 30, 1975, was on behalf of the State.

Booker Williams testified that around 6:00 P.M., on May 17, 1969, he and Hudson Jones were approaching the corner of Garrison Avenue. They were walking north on the left side and Jones was next to the street. A car drove up behind them and someone hollered, “Hudson.” Williams thought it was John Boykin’s voice. As Williams turned he saw a gun in the driver’s window. He could not see who was holding it or who was driving the car. Upon seeing the pistol, Williams started to run and thought he heard three shots. He ran to his home a block away, and looked back up the street where a crowd had gathered. He then returned to the corner and saw Hudson Jones lying face-down. Jones had a hole in the back of his head and there was a small amount of bleeding from the wound. No other wounds were visible on the body.

Although he could not identify everyone fn the car, Williams recognized John Boy-kin and Leotis Spencer as two of the three occupants. It was Boykin’s car and he appeared to be driving, with Leotis Spencer in the rear. He did not recognize the third person.

After the shooting Williams stated he saw Hudson Jones’ body in the funeral home.

Leotis Spencer testified that on the day of the shooting he was in the Glass Bar and John Boykin, who was his brother-in-law at the time, invited him to ride. It was around 6:00 P.M. when they drove away from the bar with the witness in the back seat. John Boykin was driving and appellant was seated next to him in the front seat. As the car approached Garrison Avenue, Spencer had dozed off and was awakened when the car brakes were applied. He opened his eyes and saw appellant holding a pistol, leaning across John Boykin.

The witness looked out the window and saw Hudson Jones and Booker Williams. He then heard someone in the front seat call out “Hudson” and saw appellant fire.

Williams and Jones started running and one or two more shots were fired. As the car sped away and turned the corner, appellant turned to Spencer and said, “Don’t say anything about that.” Spencer asked, “Did you shoot?” and appellant replied, “No. Let’s don’t do anything about it.” Subsequently, Spencer got out of the car and walked home. After telling his mother what had happened, he called the police.

John Boykin’s sister, Edna Coleman, testified she saw appellant and her brother around 5:30 P.M. on the evening in question. At this time, appellant showed her a blue steel .38 pistol with pearl handles. Later, around 6:00 P.M. she saw the two at the Glass Bar. They were in her brother’s car and Leotis Spencer was with them.

Upon conclusion of the State’s case the defense rested and made a motion to exclude the evidence. The motion alleged the State failed to make a prima facie case when it did not prove the corpus delicti. Counsel argues the State did not prove a death had occurred and what criminal agency produced it.

The court’s action in overruling the motion is the only question presented for review.

The State is required to prove the corpus delicti and this proof consists of two elements: (1) The death of the victim named in the indictment; (2) That death was caused by the criminal agency of another. Shelton v. State, 217 Ala. 465, 117 So. 8.

In McDowell v. State, 238 Ala. 101, 189 So. 183, the Alabama Supreme Court stated:

“The corpus delicti is a fact, proof of which may be made by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury.”

See also Gurley v. State, 36 Ala.App. 606, 61 So.2d 137.

No direct testimony was presented that Hudson Jones was dead. However, there were circumstances in evidence from which this fact could legally be inferred, and these were shown in, this testimony by Booker Williams.

“Q. Now, from the time that you started running, from the time that you ran home, and came back, what was the total amount of time ? In your best judgment? Do you understand my question ?
“A. Positive.
“Q. Go ahead and answer.
“A. Well, it wasn’t too long. I would say about, it wasn’t quite five minutes.
“Q. Five minutes? When you came back, what did you see ?
“A. I seen him laying on the sidewalk.
“Q. Who?
“A. Hudson Jones.
“Q. Hudson Jones? What did you see on his body, if anything?
“A. On the body?
“Q. (Affirmative)
“A. He had a hole in his head.
“Q. Where was the hole ?
“A. In the back, (indicating)
“Q. Would the record show that the witness is pointing to the right rear portion of the head, indicating where the shot was. Did you look at the body and see any other wounds, if any?
“A. No. He was lying face down. I couldn’t see what was back.
“Q. Did you see any other wound on his body?
“A. No.”
“Q. Now, when you came back, and saw this body, that was Hudson Jones’s, is that right?
“A. Right.
“Q. You saw this hole in his head ?
“A. Right.
“Q. Right here?
“A. Right.
“Q. Did you see blood coming out of it?
“A. Just a little, not too much.
“Q. He was laying there? He was just laying there, is that right?
“A. Yeah.
“Q. Did you see at that time when you came back, did you see this defendant anywhere around the body?
“A. No.”
RE-DIRECT EXAMINATION
“BY MR. PIERSON:
“Q. Booker, after the shooting, when you saw Hudson there, did you see Hudson after that?
“A. Yeah.
“Q. Where did you see his body ?
“MR. ALONZO: Judge, I think that is repetitious, something the defense went into on cross-examination.
“THE COURT: Overruled.
“Q. Go ahead, answer.
“A. Yes, I seen it.
“Q. Where did you see?
“A. On the sidewalk.
“Q. I am not talking about that point.
“A. Oh, the funeral home.
“Q. Are you positive that it was Hudson Jones in this funeral home?
“A. Positive.
“Q. You saw his body ?
“A. Right.”

In our judgment this evidence was sufficient to infer that Hudson Jones was dead, and with the other evidence, presented a prima facie case warranting its submission to the jury.

The trial court’s ruling was proper.

No error appears in the record.

Affirmed.

All the Judges concur except CATES, P. J., not sitting.