text:
    STATE of Florida ex rel. Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit of Florida, Petitioner, v. The Honorable N. Joseph DURANT, Jr., Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, and/or Annie Wilson, Respondents.
    No. 77-335.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.

      Richard .E. Gerstein, State Atty. and George Volsky and Alan E. Krueger, Asst. State Attys., for petitioner.
    Greene & Cooper, Goodhart & Rosner, Miami, for respondents.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal case in which a defendant sought the return of property seized from her by certain police officials as well as the authority to depose these officials. The trial court ordered the state to return the seized property and to produce the police officials for the defendant’s deposition. The state files inter alia a petition for a writ of certiorari to review these orders. The issues presented for review center around whether these orders constitute a departure from the essential requirements of law.

On November 11, 1976, police officials in Montreal, Canada, arrested the respondent, Annie Wilson, at the request of the Miami Beach Police Department and seized $17,600 in cash, a quantity of jewelry and some personal papers. On December 3, 1976, the respondent was transported to Dade County and turned over to Miami Beach police officials. On December 27, 1976, the respondent was charged in a two count information with grand larceny of cash belonging to Irma Glick and Elizabeth Schofler before the Circuit Court of the Eleventh Judicial Circuit of Florida.

On January 11, 1977, the respondent through counsel filed an unsworn motion for the return of the cash and property seized from her by the Montreal police claiming that the cash and property herein belonged to her, her husband, her children and her daughter-in-law. After a hearing, the trial court ordered all of the seized cash and property turned over to respondent.

The state filed a motion for reconsideration attaching thereto two sworn petitions signed by the two grand larceny complainants, Irma Glick and Elizabeth Schofler, claiming they were the rightful owners of some or all of the cash seized from the respondent and praying that said cash be returned to them. The trial court denied the motion without entertaining the complainants’ petitions for return of property. It is undisputed that the cash, jewelry and personal papers seized from the respondent were in the custody of the Montreal police authorities at the time the trial court ordered such property returned to the respondent.

The respondent then caused to be issued certain subpoenas duces tecum for deposition directed to the Canadian police officers in Montreal who arrested and searched her. Such officers had been listed by the state as potential witnesses in the case. These subpoenas were served on the office of the state attorney. - The state filed a motion to quash these subpoenas as improperly served along with motions for a protective order and for clarification. The trial court entered an order quashing the subpoenas but requiring the state to produce the Montreal police officers for the defendant to depose before a certain date.

On February 14, 1977, the state filed a suggestion for writ of prohibition or in the alternative a petition for writ of certiorari to review the orders of the trial court directing the return of property and the production of the Montreal police officers for deposition. We treat the proceeding as a petition for a writ of certiorari.

I

The first issue presented for review is whether a circuit court has the authority to return property seized and held by police officers outside the territorial jurisdiction of the court upon an arrest of a defendant in a criminal proceeding pending before such court. We hold that the court lacks such authority. Accordingly, we grant the petition for writ of certiorari and quash the order returning the property in question to the respondent since the order constitutes a departure from the essential requirements of law.

The true owner of property seized as evidence by the police upon arrest of a defendant in a criminal proceeding may make a sworn application to the judge having trial jurisdiction in the criminal proceeding for the return of such property providing the property is held in custodia legis by a police agency or the state attorney within the territorial jurisdiction of the court. Such an application may not be made when the property sought to be returned is not held in custodia legis within the territorial jurisdiction of the court. The procedure for making such an application is set forth at Section 812.061, Florida Statutes (1975). Such statutory procedure applies to stolen money, stolen motor vehicles or any other property being held in custodia legis of the court. Garmire v. Red Lake, 265 So.2d 2 (Fla.1972). See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Biederman v. Cheatham, 161 So.2d 538, 541 (Fla. 2d DCA 1964); 1957-58 Atty.Gen.Op. 277 (1958).

In the instant case, the circuit court had no authority to order the state to produce property in the custody of the Montreal police authorities because the property in question was not within the custodia legis of the court. We are informed, however, that during the pendency of the proceedings before this court the Montreal police authorities have delivered the money, jewelry and papers in question to the Miami Beach Police Department. Our quashal of the order in this cause shall therefore be without prejudice to the respondent to reapply to the trial court for the return of the seized property. In such event, the trial court will have to adjudicate the claims of the complaining witnesses as well as that of the respondent with reference to the seized property.

II

The second issue presented for review is whether the state may be compelled to produce foreign or out of state witnesses for the defendant to take their deposition when such witnesses are listed by the state as potential witnesses in a criminal case. We hold that the state may not be so compelled. We, accordingly, grant the petition for writ of certiorari and quash the order directing the state to produce the Montreal police officers to the defendant for deposition purposes.

The law is well settled that it is not the responsibility of the state to produce state witnesses subpoenaed by the defendant for discovery purposes. To order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from the essential requirements of law. State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974).

The trial court has inherent authority, however, to grant a continuance to a defendant when through no fault of his own he has been unable to depose witnesses listed on the state’s witness list prior to trial. Fla.R.Crim.P. 3.190(g). It therefore behooves the state to cooperate with the court and the defendant in producing, if it can, otherwise unavailable witnesses on a voluntary basis for the defendant’s discovery deposition so as to avoid the time and expense of witnesses in making numerous appearances in connection with a case and in delaying the orderly disposition of criminal litigation. Better practice would suggest that the state voluntarily produce such witnesses for the defendant to depose within a reasonable time prior to trial so that the witnesses may be deposed and the transcripts prepared for the study of defense counsel. Although the state may not be compelled to do so, its failure to cooperate with the court may result in an otherwise avoidable continuance.

The petition for writ of certiorari is granted. The order directing the state to return property to the respondent is quashed without prejudice to the respondent to reapply for such return of property in the future. The order directing the state to produce the Montreal police witnesses to the defendant for deposition is quashed. It is so ordered.

      . We originally treated these proceedings as a suggestion for writ of prohibition and issued a rule nisi. After a full hearing, however, we discharge the rule as improvidently issued. State ex rel. Shatter v. Booher, 241 So.2d 720 (Fla. 4th DCA 1970).


source: Caselaw Access Project

author: BARKDULL, Judge.

license: Public Domain

text:
    Paul C. THOMAS and Mrs. Paul C. Thomas, Appellants, v. Spencer LANE, Appellee.
    No. 77-859.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.

      Freidin, Silber & Friedman, Miami, for appellants.
    Stephen Lubow, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

Appellants seek review of an order of the trial court abating the action in the trial court, pending more substantial proof to determine jurisdiction of the trial court.

The appellants allegedly issued two checks totalling $9,000.00. These checks were negotiated to a holder for value, after the appellants had stopped payment on the first check but before the holder had been notified of the stop payment order, and payment was stopped on the second check prior to the checks being presented to the drawee bank.' As a result thereof, the ap-pellee (as the holder for value) filed the instant suit seeking compensatory and punitive damages.

At the time of filing his complaint, the appellee filed an affidavit purportedly to support substituted service of process. The appellants moved to quash process and service of process, on the ground they were not residents of Florida but were residents of Alabama and that they were not amenable to service by publication pursuant to Section 49.011, Florida Statutes (1975). They further moved to abate, on the ground of lack of jurisdiction over the person, and they moved to dismiss the complaint for failure to state a cause of action.

Thereafter, the appellee caused summons to be issued by the clerk of the court and personally served on the appellants in Alabama. The appellants’ aforementioned motions resulted in an agreed order of dismissal, preserving the appellants’ right to contest process, service of process, and jurisdiction. The appellee filed an amended complaint, containing the same allegations as the original but adding one David R. Hand as a third defendant. Hand was never served. The appellants renewed their objections to process. The motions also sought to abate the action and to dismiss for failure to state a cause of action.

After hearing on the motions, the trial court entered the order appealed, under review, abating the action pending more substantial proof on the question of jurisdiction over the person of Thomas. The appellants contend that the trial court erred in ordering one of the appellants [defendant] to personally appear to give testimony regarding the jurisdictional issue, when the appellants had contested process, service of process, and jurisdiction by appropriate motion. We agree.

In determining the propriety of substituted service, the court should either consider affidavits of the respective parties in support of their positions, or a live evidence if voluntarily produced. Viking Superior Corporation v. W. T. Grant Company, 212 So.2d 331 (Fla. 1st D.C.A. 1968); 23 FlaJur., Motions and Orders, § 4. But, it is error to require a foreign resident to journey into this jurisdiction for the purpose of giving an oral deposition in support of his motion to quash substituted service of process. The trial judge might have required him to submit to an oral deposition in his State of residency. Otherwise, unless a defendant voluntarily presents himself under a special appearance to the trial court, proofs going to the issues as made by the pleadings should be either by affidavit or those methods of discovery not requiring physical presence by the defendant in this jurisdiction.

Reversed and remanded for further proceedings not inconsistent with this opinion.

      . At the time of the entry of this order, there were three defendants. The order just required the defendant to appear; it did not identify which one.


author: PER CURIAM. SMITH, Judge,

text:
    Sherman Henry FOSTER, Appellant, v. STATE of Florida, Appellee.
    Nos. DD-403 and DD-474.
    District Court of Appeal of Florida, First District.
    July 27, 1977.
    Richard W. Erwin, III, Public Defender, Michael M. Corin and Theodore E. Mack, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

McCORD, C. J. and RAWLS, J., concur.

SMITH, J., specially concurs.

SMITH, Judge,

concurring:

Foster asserts that his speedy trial rights under Fla.R.Crim.P. 3.191 were violated by the State’s failure to retry him within 90 days after entry of a United States district court judgment granting his petition for habeas corpus and remanding him to state authorities. Subsection (g) of the rule provides in part:

“A person who is to be tried again shall be brought to trial within 90 days from . the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant . . ..”

While in my view a judgment in habeas corpus of a United States district court is “a mandate, order, or notice” of a “reviewing court which makes possible a new trial for the defendant,” within the meaning and application of the rule, the event which commences the time for new trial is not its entry but its receipt by the trial court. Verbal or other informal notice to the trial judge does not, under the rule, commence the period for retrial. Foster’s motion for discharge under the rule was therefore properly denied, but without prejudice to any claim for discharge he might have made on the principles of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See State ex rel. Gentry v. Fitzpatrick, 327 So.2d 46 (Fla. 1st DCA 1976). I concur in the judgment.


author: BOARDMAN, Chief Judge.

text:
    Richard Ray LOWER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1565.
    District Court of Appeal of Florida, Second District.
    July 27, 1977.

      Jack 0. Johnson, Public Defender, and Jeffrey A. Miller, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant, Richard Ray Lower, challenges the validity of the stop of an automobile in which he was a passenger. The stop resulted in a warrantless search and his arrest for possession of more than five grams of marijuana, a controlled substance. We hold that there was insufficient basis for a founded or reasonable suspicion which would justify the stop. It was, therefore, invalid and we reverse.

At approximately 12:52 a. m. on July 4, 1976, Deputy Dixon observed an automobile parked in the parking lot of a business area in Sarasota. All of the businesses in the area were closed; none had remained open past midnight. As Dixon drove by in his police cruiser, the automobile backed out of its parking place and pulled away, at what he testified was “a faster than average rate of speed.” Dixon followed the vehicle for a short distance and stopped it. The driver had committed no traffic infraction, and no “lookouts” had been issued for the vehicle.

Dixon walked over to the car and asked the driver, Mr. Lamb, for his driver’s license and auto registration. As he did so, Dixon noticed “a very, very slight oder [sic] of old marijuana smoke.” He asked Lamb to get out of the car and proceeded to frisk him. While frisking Lamb, he felt what he believed to be a baggie in his pocket, which he removed. The baggie contained marijuana. Deputy Dixon placed Lamb under arrest. Dixon then asked appellant, one of the passengers in the car, whether he had any marijuana. Appellant replied that he had about half a lid, whereupon he pulled a baggie of marijuana out of his pocket and handed it to the police officer. Dixon then searched and arrested appellant.

A valid investigatory stop of a vehicle must be predicated on “a founded or reasonable suspicion which requires further investigation” to determine whether its occupants have committed, are committing, or are about to commit a crime. Lewis v. State, 337 So.2d 1031, 1032 (Fla. 2d DCA 1976); Section 901.151, Florida Statutes (1975). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974). The circumstances of this case, that is, the automobile was parked in a parking lot, the businesses surrounding it were closed, and the car left the lot when Deputy Dixon drove by, were insufficient to justify a reasonable conclusion that the occupants of the car were involved in any criminal activity. Under these circumstances the stop was improper, and, therefore, the evidence seized by Dixon from appellant was the fruit of an improper exercise of police power and should have been suppressed. Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976).

Reversed and remanded to the trial court with directions to enter an order suppressing the evidence seized from appellant.

HOBSON and GRIMES, JJ., concur.


author: PER CURIAM.

text:
    John Eugene WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 77-210.
    District Court of Appeal of Florida, Second District.
    July 27, 1977.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We set aside herein an order revoking appellant’s probation.

Appellant pleaded guilty to a charge of felonious possession of cannabis and was placed on probation for five years by an order entered November 17, 1976. A special condition of the probation was that appellant enroll in the Serenity House Program, a drug rehabilitation program.

On December 3, 1976, appellant’s probation supervisor filed an affidavit of violation of probation which charged appellant with:

“Violation of Condition 1 which states that you will not change your residence without first procuring the consent of your probation supervisor, in that:
On 11/28/76, the subject did leave his residence at Serenity House as told this affiant by house manager Ernie Gert-ner.
Violation of Special Condition 9 which states that the defendant will enroll in the Serenity House Drug Rehabilitation Program, in that:
Subject voluntarily left the program on 11/28/76, as told this affiant by Ernie Gertner — house manager of Serenity House.” (Emphasis supplied.)

A warrant was issued for the arrest of appellant for the aforesaid violations of the conditions of probation, and appellant was subsequently arrested. At the revocation hearing held January 3, 1977, the sole witness against appellant was his probation supervisor whose testimony consisted merely of a reiteration of the information set forth in his affidavit as quoted above, e. g., the house manager of Serenity House, Ernie Gertner, told the witness that appellant left his residence at Serenity House and the program on November 28, 1976.

Thereupon, the trial court revoked appellant’s probation1 and sentenced him to five years imprisonment. This was error.

It is well settled that revocation of probation cannot be based solely on hearsay. Brown v. State, 338 So.2d 573 (Fla.2d DCA 1976); White v. State, 301 So.2d 464 (Fla.3d DCA 1974). Here, the only evidence to support the order of revocation of probation was the hearsay statements of the probation supervisor and, as such, is insufficient.

In view whereof, the order appealed from and the judgment and sentence entered thereon should be, and they are hereby, reversed.

HOBSON, Acting C. J., and McNULTY and SCHEB, JJ., concur.


author: OTT, Judge.

text:
    Mel J. DINSMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 77-339.
    District Court of Appeal of Florida, Second District.
    July 27, 1977.
    Allen P. Allweiss of Allweiss & Kay, St. Petersburg, for petitioner.
    James T. Russell, State’s Atty., and A. Doug Prior, Jr., Asst. State’s Atty., Clear-water, for respondent.
   OTT, Judge.

Petitioner was indicted in 1973 on two charges in two separate actions in the county court. In one case he was charged with unlawful interest in a public contract. In the second he was charged with violation of the standards of conduct for city officials. A notice to appear was sent to petitioner in the one and a summons was issued against petitioner in the second. The trial court ultimately dismissed both cases and ordered the petitioner discharged for failure to bring the petitioner to trial under the speedy trial requirements of Fla.R.Crim.P. 3.191(a)(1). The two cases were consolidated on appeal to the circuit court. That court never passed on or reviewed the sufficiency of the trial court’s ruling that the appellant had been denied a speedy trial. Instead, the circuit court reversed the trial court on the ground that the petitioner “. . . had never been arrested or taken into custody . . . ” on the two charges, and therefore, time never commenced to run on the time period for speedy trial. Petitioner has now applied to this court for the writ of certiorari. Finding as we do that the circuit court has departed from the essential requirement of law we grant petitioner’s request.

The notice to appear issued pursuant to Fla.R.Crim.P. 3.125(c) in one of the cases and the summons issued in the other are similar insofar as their effect is concerned.

The “speedy trial” provision — Rule 3.191(a)(1) — provides in relevant part:

The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged, (emphasis added)
A person charged with a crime is entitled to the benefits of this Rule whether or not such person has been held to answer at a preliminary hearing, or whether or not such person has waived such hearing, and whether such person is in custody awaiting trial or is at liberty on bail or recognizance.

The term “taken into custody” in Rule 3.191(a)(1) is used to determine at what point during the pendency of a case the protection of the sixth amendment guarantee of a speedy trial should commence. The test is one of formal restraint. This test involves a determination of when the defendant’s liberty was formally restrained by some pretrial action or procedure. In Baker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 the court stated:

. even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.

One served with a summons [or a notice to appear] to answer a criminal charge is no less an accused charged with a crime than one formally placed under arrest by warrant. In Singletary v. State, 322 So.2d 551, 555 (Fla.1975) the supreme court stated:

[A]n accused has been “taken into custody” within the meaning of Rule 3.191(a)(1) when the individual has been served with a summons to answer for a crime for which he has been accused of having committed.

See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

It is our opinion that the circuit court has departed from the essential requirements of the law in the following particulars:

(1) In reversing the action of the lower court on grounds not presented to the trial court nor raised by the parties before the circuit court on appeal.

(2) In the legal conclusion, sua sponte, that the petitioner had never been “taken into custody”.

For these reasons the petition for writ of certiorari is granted, the order of the circuit court is quashed and the cause is remanded to that court for appropriate review of the lower court’s order discharging the petitioner for failure of the state to bring the petitioner to trial pursuant to speedy trial requirements.

The state urges to this court that the petitioner has waived his right to a speedy trial which petitioner denies. That point is not properly before this court and there is no record presented here raising such an issue.

HOBSON, Acting C. J., and McNULTY, J., concur.


author: RAWLS, Acting Chief Judge.

text:
    Gennett Gordon FELDMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. X-534 and Z-89.
    District Court of Appeal of Florida, First District.
    July 29, 1977.
    R. J. Beckham and Thomas W. McAliley, Beckham & McAliley, and Mallory H. Horton, Horton, Perse & Ginsberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti L. Englander and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Did the trial court err in adjudging appellant Feldman to be in contempt of court?

While conducting an investigation of certain activities of State Insurance Commissioner Thomas O’Malley in the Spring of 1974, Feldman was subpoenaed to appear before the Leon County Grand Jury. In June, 1974, after being granted immunity, Feldman testified before the grand jury about transactions and relationships over a period in excess of four years immediately preceding the date of his appearance. Subsequently in August of 1974, Feldman met with “the state” in the offices of his attorneys and, during a two-day period, reviewed a multitude of legal matters and files and answered all questions put to him by the state. Pursuant to subpoena, Feld-man again testified before the Leon County Grand Jury in October of 1974, and subsequent to this appearance furnished the state with additional records and documents. The grand jury indicted O’Malley in October, 1974, primarily upon material that dealt with the Feldman-O’Malley rela- . tionship. After indicting O’Malley, the grand jury subpoenaed Feldman for a third appearance before that body on February 26, 1975, specifically advising him that the state would not limit the questions to areas not covered in the two prior grand jury proceedings but, to the contrary, advised Feldman that it wished to reaffirm and resecure the same testimony given by Feld-man in his prior grand jury appearance in June 1974. Upon the advice of counsel that he would be subject to prosecution under Section 837.021, Florida Statutes, Feldman refused to testify. The trial court denied Feldman’s motion to quash and granted the state’s motion to compel Feldman to testify. Upon advising the trial court that he would not testify, Feldman was adjudged guilty of contempt and sentenced to jail for six months; hence this appeal.

With commendable candor, the state concedes that the decisions in Salem v. State, 305 So.2d 23 (Fla. 3rd DCA 1974), and Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975), support a reversal. However, the state argues that these decisions are erroneous and that the better view is that espoused by the two dissenting opinions. We adhere to the views expressed by this court in Saunders and by our sister court in Salem.

A proper role of our grand juries is conducting an inquiry into alleged violations of the law. Grand juries were not established for the purpose of “whipsawing” a citizen into ultimately giving contradictory statements upon which the state could institute criminal charges against such citizen. The aphorism that one cannot take the Fifth Amendment on the ground that if he testifies he will perjure himself applies only to the excuse for not testifying initially. United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971). However, the state and federal constitutional right against self-incrimination does not preserve an “absolute right of silence” to a witness in subsequent appearances before a duly constituted body. The witness must reveal a valid fear of being subjected to self-incrimination prior to being excused from testifying. As disclosed by this record, there is no doubt that such a valid fear existed on Feldman’s part. Unquestionably, there existed a substantial risk of prosecution growing out of prior testimony. See Brown v. State, 334 So.2d 597 (Fla.1976).

The judgment of conviction is reversed with directions that Feldman be discharged.

SMITH and ERVIN, JJ., concur.

      . Feldman was the “purchaser” of a portion of O’Malley’s law practice.

      . The state limited its inquires to matters not covered in his June, 1974, testimony.

      . Feldman’s counsel argues that the title of this statute, Perjury by Contradictory Statement, is a misnomer, since it has little to do with common law “legal” perjury which requires a witness to willfully make a false statement; that on the contrary, this statute authorizes prosecution where a witness makes two “truthful” but contradictory statements.

      . Feldman stated to the court:
      “. . . [Sjince this proceeding started earlier this morning, when we appeared before Mr. Willis subject to his subpoena, and through the arguments here, sir, there is no doubt in my mind that there is an effort to find me to be reciting testimony or statemens [sic] which I cannot recite at this time because they may be in conflict with prior testimony and that should I do so, sir, they will prosecute me for making these conflicting statements.
      “I am prepared to swear to this Court, sir, that in June, when I gave the original testimony it was the truth. I am prepared now to swear that as of June that testimony that I gave was the truth. I am prepared to go before the Grand Jury and give truthful testimony of all matters that I know outside the scope of what the State has already interrogated me on.
      “I feel as though if the same questions were asked to me today as they were in June, some of my statements may conflict with those given in June and,. for that reason, I immediately subject myself to prosecution. I am not prepared to tell the State, the Grand Jury or Your Honor anything that is not the truth. I recognize that if I lie to anybody I am subjecting myself to perjury and there is no excuse for that.

      “I am in a dilemna [sic], in the horns of a dilemna [sic]. As I just told the Court, I have never willfully — I have always told the truth, never said a word that was not the truth, and I recognize that if I do lie I am subject to perjury. If the Grand Jury and the State is willing to say, ‘Let us interrogate you about all of those matters’, relieve me of the potential conflict, ‘How do you remember those situations as of this date?’ Sir, I am prepared to go in' and testify all night but they are asking me now to confirm statements made in June of 1974, as of February of 1975 and, sir, I cannot do it in all good conscience because there are some matters which have come to my attention which will create some conflicting testimony.”


author: MILLS, Judge. BOYER, J.,

text:
    STATE of Florida, Appellant, v. Erroll BROOKS, Appellee.
    No. CC-347.
    District Court of Appeal of Florida, First District.
    July 29, 1977.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, Michael M. Corin, Margaret Good, Asst. Public Defenders, for appellee.
   MILLS, Judge.

The State filed an information charging Brooks with intentionally receiving, retaining, disposing of or aiding in the concealment of described stolen personal property contrary to Section 812.031(1), Florida Statutes (1975). Brooks moved to dismiss the information on the ground that he stole the property, therefore, he could not be convicted of receiving the same property he stole. The trial court granted the motion and dismissed the information. The State appeals contending that under the allegations of the information Brooks could be convicted of retaining the property he stole.

The factual allegations in Brooks’ motion to dismiss were not disputed. He stole a car and the personal property in it in Arizona. He drove the car to St. Augustine where he abandoned it. Upon abandoning the car, he removed the personal property and took it to Duval County where he was arrested and charged with the crime alleged in the information.

Section 812.031 was enacted by Sec. 41, Ch. 74-383, Laws of Florida (1974), which was a rewording and renumbering of Section 811.16, Florida Statutes (1973). The word “retains” was added to Section 812.-031(1) and the State contends this addition changes the prior law of Florida. We do not agree.

Since 1910 the law of Florida has been that a lone thief cannot be convicted of receiving the same property he stole. Adams v. State, 60 Fla. 1, 53 So. 451 (1910). This Court recently adhered to this principle in McWhirter v. State, 325 So.2d 463 (Fla. 1st DCA 1976). If a thief- cannot be convicted of receiving property stolen by him, he cannot be convicted of retaining property stolen by him. By adding the word “retains” in Section 812.031(1), it was the intent of the legislature to cover the situation where a person acquires possession of property not knowing it was stolen, subsequently learns it is stolen, but retains the property. We do not have such a situation here.

The order appealed is affirmed.

RAWLS, Acting C. J., concurs.

BOYER, J., dissents.

BOYER, J.,

dissenting.

I respectfully dissent. As stated in the foregoing opinion, Brooks admitted that he stole the car and the personal property in it and that when he abandoned the car he removed the personal property from it and retained that property, taking it with him to Duval County where he was arrested. Brooks not only stole the property he retained it knowing it to be stolen. Retention is not the same as receiving. Obviously, in order to steal property one must in some manner take it into possession which is tantamount to receipt: All part of the same transaction. However, stealing does not necessarily involve retention. I do not view McWhirter v. State, cited in the majority opinion, as controlling. Larceny (stealing) is a crime. (F.S. 812.021) F.S. 812.031 makes it a crime to receive, retain, dispose of or conceal stolen property. The word “retains” was only recently added to the statute. I would hold that one who steals property is guilty of the commission of a crime and that if he thereafter retains same he is guilty of a second crime. Sub judice, the record clearly reveals that Brooks stole the property in Arizona but he retained it, contrary to the provisions of F.S. 812.031, in Florida. I am of the view that he is subject to prosecution in Florida. I would reverse.


text:
    Harold L. PEIRSON and Dorothy Peirson, Appellants, v. COLLIER COUNTY ROOFING CORPORATION, a corporation, Appellee.
    Nos. 76-1956, 76-1957 and 76-1972.
    District Court of Appeal of Florida, Second District.
    July 29, 1977.

      Michael S. Olin and Robert Orseck of Podhurst, Orseck & Parks, Miami, and Wagner, Cunningham, Vaughan, May & Genders, Tampa, for appellants.
    John L. Laskey and E. Glenn Tucker of Treadwell, Emerson & Elkins, Naples, for appellee.
   PER CURIAM.

Plaintiffs/appellants, Harold L. Peirson and Dorothy Peirson, appeal from the entry of summary judgments rendered in favor of defendant/appellee, Collier County Roofing Corporation, in an action filed by appellants for personal injuries sustained by appellant, Harold Peirson, while in the employ of a subcontractor, as a result of the alleged negligence of an employee of another subcontractor. We reverse.

In making a motion for summary judgment the movant bears the burden of proving the absence of the existence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). Here, the record contains nothing to resolve the issue of whether the general contractor and the owner of the premises were the same legal entity. See Jones v. Florida Power Corp., 72 So.2d 285 (Fla. 1954).

REVERSED and REMANDED for further proceedings consistent herewith.

BOARDMAN, C. J., and GRIMES and OTT, JJ., concur.


author: PER CURIAM. HOBSON, Acting C. J.,

text:
    Robert L. HAAG, Appellant, v. Larry Richard PHILLIPS and Travelers Insurance Co., Appellees.
    No. 76-2040.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1977.
    George 0. Kluttz, Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    Gerald W. Pierce, Henderson,' Franklin, Starnes & Holt, Fort Myers, for appellees.
   PER CURIAM.

Affirmed on authority of Travelers Insurance Company v. Pac, 337 So.2d 397 (Fla.2d DCA 1976).

McNULTY and SCHEB, JJ., concur.

HOBSON, Acting C. J., concurring specially.

HOBSON, Acting C. J.,

concurring specially.

I dissented without opinion in Travelers v. Pac. The law as announced in Pac, supra, being the controlling law of this court, I therefore concur herein.


author: PER CURIAM. MAGER, Judge,

text:
    Jack DAVID, Appellant, v. STATE of Florida, Appellee.
    No. 75-2229.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied Aug. 9, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

Affirmed.

ALDERMAN, C. J., and LETTS, J., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge,

dissenting:

I would grant appellant’s petition for rehearing on the basis of a matter which, although not presented in the instant petition for rehearing, was properly before this court in the appellate presentation. It is a matter, most respectfully, which is of such fundamental proportion as to mandate this court to consider it as if raised in the instant petition to the same extent that this court could have considered any fundamental error in the main appeal. Ogilvie v. State, 181 So.2d 710 (Fla.2d DCA 1966).

The appellant contended that during closing argument to the jury the prosecutor made certain remarks constituting a direct comment on appellant’s failure to testify. The following reflects what actually transpired below:

“MR. SILBER [Prosecutor]: . . . Now, counsel stated in his argument about this business failure and why can’t you conclude that that was a business failure.
Well, ladies and gentlemen, there was no evidence of business failure. That’s very important. You see, you can’t go outside the evidence. There is no evidence of this business failure. If there was any business failure, you would have heard evidence, you would have heard from the accountants of the defendant’s business, his bookmaker, his records, bankruptcy proceedings. Where is that evidence? That’s why his business failure makes no sense in this case. If he had a business failure, why didn’t he say anything about the Jozefyks, about the Groves and about the Foxes?
MR. MABIE [Defense Counsel]: Your Honor, I move for a mistrial with regard to the comments on the defendant’s failure to testify.
* * * * * *
THE COURT: It is clear to the Court that the reference to ‘he’ would indicate the defendant, would it not? You can talk about the business which was in fact by the State’s earlier proof that it was the defendant doing business as Spacemaker.
MR. SILBER: I was able to comment on what he said to Miss Gran, that’s in evidence. I can comment what he didn’t say to the Jozefyks, not whether he took the stand. I didn’t say why didn’t he take the stand now. What I said was why didn’t he say anything to the Jozefyks when he entered into this contract? Counsel brought up the fact about business failure. Counsel opened the door.
THE COURT: Let me rule on his motion. The Court is of the opinion that there was no direct evidence to the defendant. So I will deny the motion. Mr. Mabie will have a chance to rebut this in his final argument. His motion is denied. If I’m wrong, it will be up on appeal. Bring in the Jury.
[Whereupon, at this time the Jury returned to the courtroom and took their respective seats in the jury box.]
MR. SILBER: As I stated before, ladies and gentlemen, there is no evidence of any business failure. You can’t go outside the evidence and His Honor will tell you that. (Emphasis added.)

It appears to me that this court’s recent decision in Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973), requires a reversal. Childers dealt with a far more nebulous reference to the defendant’s silence. This court, however, observed that if the prose-cutorial comment:

“is fairly susceptible of being interpreted by the jury as a statement to the effect that ‘an innocent man would attempt to explain the circumstances but the defendant offered no such explanation. . . ’ ”

then the comment thus interpreted or construed violated the prohibition of the rule. What could be a clearer reference to the defendant’s silence than the prosecutor’s comment: “Why didn’t he [referring to the defendant] say anything about . . . .” There is no need to resort to possible interpretations or constructions of the prosecuto-rial comment when there is such a direct reference to the defendant’s silence.

This is not to suggest any intentional activities or conduct on the part of the prosecuting attorney; intentions and motives are immaterial to the existence or not of fundamental error — most respectfully it exists here.

The petition for rehearing should be granted, the main opinion in this cause should be vacated and the final judgment reversed and remanded for a new trial.


author: ROGERS, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. Leonard VIDRINE et al., Defendants-Appellants.
    No. 6055.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    White & Pitre by Marion Overton White, Opelousas, for defendants-appellants.
    Octave Pavy, Opelousas, for plaintiff-ap-pellee.
    Allen, Gooch & Bourgeois, Ltd. by Arthur I. Robison, Lafayette, Pavy & Boudreaux by A. V. Pavy, Opelousas, for defendant-ap-pellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This suit was filed by State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm), the collision insurer of Alvin Dupre’s truck, which was damaged to the extent of $969.65 by a horse owned by Leonard Vidrine, a resident of Chicago, Illinois.

The accident took place about 3.6 miles north of Opelousas on U. S. Highway No. 167 when the horse came onto the highway and was hit by a truck driven by Curtis Williams, and then knocked and thrown into the other lane of traffic, and against the vehicle of Alvin Dupre.

State Farm paid the damages to Alvin Dupre and then became subrogated to his rights against the party or parties responsible for the damages.

Plaintiff filed suit on December 10, 1975, against Cyrus Carmon, Magnolia Stevens, Curtis Williams and Arrow Food Distributors, Inc., and Leonard Vidrine, the owner of the horse.

The matter went to trial before Judge Isom J. Guillory, Jr., who found defendant, Leonard Vidrine, liable for the damages.

The issue here is whether or not the long arm statute can be applied for service of process on defendant, Leonard Vidrine, and if so, was it followed by plaintiff. Plaintiff effected service on defendant Vidrine through use of the long arm statute, LSA-R.S. 13:3201.

On February 6, 1976, Leonard Vidrine filed a declinatory exception raising the objection of lack of jurisdiction over the person as provided by LSA-C.C.P. art. 925. On February 20, 1976, the trial of the exceptions was heard. On February 23, 1976, the trial judge rendered Reasons for Judgment, overruling the declinatory exception and the defendant, Leonard Vidrine, was ordered to file responsive pleadings within ten days, which he failed to do.

On September 21, 1976, an affidavit of service as required by LSA-R.S. 13:3204, was filed by plaintiff in the record showing that all the requirements for service under the long arm statute, LSA-R.S. 13:3201, were complied with, and on October 25, 1976, a preliminary default was entered against Leonard Vidrine.

The trial was held on December 1, 1976. Judgment in the amount of $969.65 was rendered against Leonard Vidrine only, as the other defendants were dismissed in the suit.

Leonard Vidrine now appeals.

Defendant Vidrine contends that the trial court had no jurisdiction over his person, citing LSA-C.C.P. Art. 6 , and further under LSA-C.C.P. Art. 7, he did not make a general appearance which subjected him to the jurisdiction of the court.

We quote defendant Vidrine from his appellate brief:

“According to the Provisions of Article Six (6), jurisdiction must have been based upon service of process upon the appellant since he had not appointed an agent, either in fact or by operation of law, for service of process upon him in this State. Sub-Section Two (2) of Article Six (6) is not applicable nor was it sought to be made applicable since no attorney was appointed for service of process. SubSection Three (3) of Article Six (6) is also not applicable since the appellant did not expressly or impliedly waive his objection to the lack of the Court jurisdiction.”

In reviewing Article 6, we focus our attention on sub-section (1), that part that states: “This jurisdiction must be based upon: (1) The service of process on the defendant . . . .”

The record shows by affidavit of plaintiff’s attorney, that defendant Vidrine was served with the citation issued by the Clerk of Court for St. Landry Parish, together with certified copies of the original and amended petitions. The affidavit further shows that this was done by certified mail and addressed to defendant Vidrine at 1180 East 63rd Street, Chicago, Illinois. The receipt for the certified letter and the return receipt of the mailing were attached to the affidavit, although the signature of the recipient of the mailing was that of one 0. Robinson.

However, plaintiff State Farm appeared to have fulfilled all of the requirements of LSA-R.S. 13:3201.

More specifically, sub-section (c) of LSA-R.S. 13:3201 provides that the court may exercise personal jurisdiction over a nonresident where the cause of action arose from the nonresident’s causing injury or damage by an offense or quasi offense committed through an act of omission in this state. The defendant herein fits into the category as defined in sub-section (c) above.

LSA-R.S. 13:3204 also says that the necessary papers for service shall be sent to the defendant and that this “. . . service of process, so made has the same legal face and validity as personal service on the defendant in this state.”

Understanding these two statutes and considering that 0. Robinson signed for addressee, Leonard Vidrine, of the citation and petitions, is the receipt by 0. Robinson equivalent to service of process as personal service on defendant Vidrine as contemplated by LSA-R.S. 13:3201 and LSA-R.S. 13:3204?

Plaintiff propounded interrogatories to Cyrus Carmon as to Vidrine’s address. We are satisfied that Cyrus Carmon knew Vid-rine well and the address he gave to plaintiff’s attorney was reliable and accurate.

The envelope containing the citation and petitions was received on January 16, 1976, as shown by the return receipt. A motion for extension of time was filed by defendant Vidrine’s attorney on January 21, 1976, stating: “That counsel has just been consulted and retained. . . .”

We, then, can only conclude that defendant Vidrine did in fact receive the citation and petitions made by certified mail, and service of process, as required by Article 6 of the Louisiana Code of Civil Procedure and by LSA-R.S. 13:3201, and that LSA-R.S. 13:3204, had been consummated.

For the reasons assigned, we affirm the judgment of the trial court granting judgment in favor of State Farm Mutual Insurance Company, and against defendant, Leonard Vidrine. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

      . Art. 6, Jurisdiction over the person.
      Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
      (1) The service of process on the defendant, or on his agent for the service of process;
      (2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or
      (3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.

      . Art. 7. Same; implied waiver of objections by general appearance.
      Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
      (1) Entry or removal of the name of an attorney as counsel of record;
      (2) Extension of time within which to plead;
      (3) Security for costs;
      (4) Dissolution of an attachment issued on the ground of the non-residence of the defendant; or
      (5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.
      This article does not apply to an incompetent defendant who attempts to appear personally, or to an absent or incompetent defendant who appears through the attorney at law appointed by the court to represent him.
      When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therein when required by law, does not constitute a general appearance.

      . 3201. Personal jurisdiction over nonresidents.
      A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      (a) transacting any business in this state;
      (b) contracting to supply services or things in this state;
      (c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
      (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
      (e)having an interest in, using, or possessing a real right or immovable property in this state. Added Acts 1964, No. 47, ¶ 3.

      . 3204. Service of Process.
      A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the lhw of the place where the service is made to‘serve the process of any of its courts of general jurisdiction.
      Service of process so made has the same legal force and validity as personal service on the defendant in this state. Added Acts 1964, No. 47, ¶ 3.


author: SAMUEL, Judge.

text:
    Chaffie BROWN v. DELTA AIRLINES INC. and Argonaut-Southwest Ins. Co.
    No. 8895.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    Daniel E. Becnel, Jr., Reserve, in pro. per.
    Douglas, Nabonne and Wilkerson, New Orleans, George V. Perez, Jr., Slidell, for Chaffie Brown.
   ON MOTION TO DISMISS

Before SAMUEL, BOUTALL and SCHOTT, JJ.

SAMUEL, Judge.

This matter is before us solely on an appellee motion to dismiss the appeal on the ground the record was lodged in this court months after the return day set in the order of appeal, which return day was not extended. While it appears the motion would have to be denied because of an absence of any showing or contention the delay was imputable to the appellant and because the failure of the clerk to timely prepare and lodge the record on appeal “shall” not prejudice the appeal, we find we do not reach the question of whether the motion should be denied or maintained.

Mover seeks to have the appeal dismissed because of an “irregularity, error, or defect” as those words are used in LSA-C. C.P. Art. 2161. That article provides such a motion “must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later” (emphasis ours).

In this case the record was lodged in this court on July 1, 1977 and the motion to dismiss was filed on July 13, 1977, more than three days, exclusive of holidays, after the date on which the record was lodged. Thus, the motion cannot be considered.

The motion to dismiss the appeal is not considered.

NOT CONSIDERED.

      . LSA-C.C.P. Articles 2127 and 2161.

      . See Matter of Adoption of McArthur, La. App., 326 So.2d 570; Ammon v. Brown, La. App., 273 So.2d 588; Thibodeaux v. Aetna Casualty & Surety Company, La.App., 213 So.2d 189; Plauche v. Derouen, La.App., 193 So.2d 918.


text:
    Harold Dale WHEELER v. STATE of Mississippi.
    No. 49547.
    Supreme Court of Mississippi.
    July 27, 1977.
    Bullard, Campbell & Gee, Robert W. Gee, Vicksburg, for appellant.
    A. P. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., SUGG and LEE, JJ., and WILLIAM R. LAMB, Commissioner.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

AFFIRMED.

PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.

GILLESPIE, C. J., took no part.


text:
    Paul LITTLE v. STATE of Mississippi.
    No. 49679.
    Supreme Court of Mississippi.
    July 27, 1977.
    Roger Dean Harris, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and BROOM, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

AFFIRMED.

INZER, P. J., and SMITH, ROBERTSON, WALKER and LEE, JJ., concur.

GILLESPIE, C. J., took no part.


text:
    J. D. MYERS v. STATE of Mississippi.
    No. 49814.
    Supreme Court of Mississippi.
    July 27, 1977.
    Morris & Coats, Patricia A. Coats, Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., SMITH and LEE, JJ., and JAMES D. HESTER, Commissioner.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

AFFIRMED.

GILLESPIE, C. J., took no part.


text:
    Mazie Lee BUTLER et al. v. Leslie TERRELL, Jr. and Leslie Terrell, Sr.
    No. 49516.
    Supreme Court of Mississippi.
    July 27, 1977.
    Richard E. Stratton, III, Brookhaven, for appellants.
    Hobbs, Hobbs & Peeples, Ralph L. Pee-ples, Brookhaven, for appellees.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

AFFIRMED.

GILLESPIE, C. J., took no part.


text:
    Carol Russell WARE and Mrs. W. N. Chambers v. James Richard WARD.
    No. 49523.
    Supreme Court of Mississippi.
    July 27, 1977.
    James G. McIntyre, Jackson, for appellant.
    Thomas L. Zebert, Pearl, for appellees.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

AFFIRMED.


text:
    Jessie H. SUMMERS v. Thelma Jean Young SUMMERS (Walton).
    No. 49529.
    Supreme Court of Mississippi.
    July 27, 1977.
    H. L. B. Foote, Jackson, for appellant.
    Pittman & Nobles, James W. Nobles, Jr., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

AFFIRMED.


text:
    James Henry COULSON et ux. v. BOARD OF SUPERVISORS OF JACKSON COUNTY, Mississippi, et al.
    No. 49503.
    Supreme Court of Mississippi.
    July 27, 1977.
    Mills & Perkins, Robert T. Mills, Moss Point, for appellant.
    Megehee, Brown & Williams, Raymond L. Brown, Pascagoula, for appellee.
   Appeal from Special Eminent Domain Court, Jackson County, O. L. McLeod, Judge.

Before PATTERSON, P. J., and SMITH and LEE, JJ.

AFFIRMED.


author: WALKER, Justice,

text:
    Alonzo GREEN, Jr. and Tyrone Green v. STATE of Mississippi.
    No. 49681.
    Supreme Court of Mississippi.
    July 27, 1977.
    Wells & Blalock, Tim D. Blalock, Natchez, for appellants.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Alonzo Green, Jr. and Tyrone Green were indicted for burglary and larceny. Before trial, they filed a motion in the Circuit Court of Adams County, Mississippi, to suppress evidence resulting from the allegedly unlawful search of their automobile. After an evidentiary hearing, their motion was overruled. At trial, the jury found both defendants guilty, and each was sentenced to a term of four years in the state penitentiary. We have concluded that the trial court properly overruled the motion to suppress the evidence, and the convictions and sentences are therefore affirmed.

The question presented is whether the circumstances known to the officers justified an investigatory stop, as authorized by Singletary v. State, 318 So.2d 873 (Miss.1975). There, Justice Gillespie, speaking for the Court, said:

Police activity in preventing crime, detecting violations, making identifications, and in apprehending criminals may be divided into three types of action: (1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause. (318 So.2d at 876).

If the police were justified in stopping the car, then they had the right to seize the safe, since it was noticed in plain view. See, e. g., Howell v. State, 300 So.2d 774, 775-76 (Miss.1974).

The justification for the practice of investigatory stops was first articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In that case, a police officer detained two men whom he had observed walking up and down the same block several times. The two men had stopped to stare into the same store window a total of twenty-four times. Id. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907. The Court found that these circumstances sufficiently indicated the possibility of an impending robbery, so that the investigatory detention was justified. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), a police officer had been informed by a person known to him that an individual seated in a parked car nearby was carrying narcotics and had a gun in his belt. The officer walked to the parked car to investigate, and found the revolver in the occupant’s waist band. The Court found his actions reasonable under the circumstances. Thus, in Adams the officer had a reasonable suspicion that a crime had taken place, while in Terry the officer had a reasonable suspicion that a crime was about to take place.

Similar circumstances have been persuasive in the cases decided by this Court. In Singletary, supra, the persons detained had been under observation because the manager of the motel in which they were staying informed the police that they had a gun and a great deal of money in their room. The police thus had a reasonable suspicion that the occupants might have been involved with a bank robbery which had occurred the day before. Id. at 874-75. In Chapman v. State, 284 So.2d 525 (Miss. 1973), the defendant was stopped for speeding, and was detained because she and her companions fit the description of the persons who had recently robbed a grocery store. In Griffin v. State, 339 So.2d 550 (Miss.1976), the proprietor of a store had observed the defendant and his companions wandering through her store without making a purchase. Later, she saw them on the street, taking clothes out from under their coats and putting them in a brown paper bag. We held that the police properly detained and questioned the suspects.

Neither this Court nor the Supreme Court of the United States has ever been able to articulate a concrete rule to determine what circumstances might justify an investigatory stop. Given all the situations which policemen must face every day, we doubt that any such universal rule might be stated. Therefore, we have approached the question on a case-by-case basis.

Under the facts and circumstances of this case, we are convinced that the arresting officers had reasonable grounds for stopping the car to question its occupants.

The incident occurred at 3:30 a. m. on March 14, 1976. Officers Boyette and Mitchell of the Natchez Police Department were patrolling the business section of Natchez when they received an official communication by radio from police headquarters that one Alonzo Green and a companion were seen “running” in the vicinity of Pearl and Main Streets and that Alonzo had a pair of gloves in his hand. Alonzo was known to the officers to have been in some trouble and involved with the courts. While going to the area of Pearl and Main, Officer Boyette saw an automobile make a circle down Orleans Street and come back up Pearl Street behind him. The car did not pass Officer Boyette’s vehicle, but pulled over to the curb and stopped. Officer Boyette stopped his police car at the corner of Pearl and Main and got out to check and see if a drug store located there had been burglarized. While out of his car, Officer Boyette observed the same automobile coming from the south on Pearl, and, as it passed he made a mental note of the license tag number and that it had a CB antenna on the back. The officers then proceeded in their vehicle around the block coming back to the intersection of Pearl and Main and turned north on Pearl Street. At this time they again saw the same automobile come out of a parking lot in the middle of the block between Main and Franklin Streets. One man was seated in the front driving and a second man was in the backseat holding something. The officer stopped the car and upon looking inside saw a “safe” on the backseat. The occupants of the car were taken into custody for investigation. Further investigation disclosed that the safe contained $978 and had been taken from the offices of the Service Finance Company in the business block that encompassed Pearl, Main and Franklin Streets. One occupant of the car turned out to be Alonzo Green, although the officer did not recognize him at the time.

Considering the lateness of the hour, the erratic behavior of the defendants’ automobile, and the radio report that Alonzo, whom the arresting officers knew had been in some trouble with the court before, was in the area, their action in stopping the car was reasonable. This same conclusion has been reached in cases with similar facts from other jurisdictions. For example in Fields v. Swenson, 459 F.2d 1064 (8th Cir. 1972), the court stated:

We conclude that under the principles formulated in the above cited cases, such circumstances as give rise to a right in the police to briefly detain or “seize” a person for investigation on less than probable cause are present in this case.
A police officer familiar with the area observes an unfamiliar car in a parking lot late in the evening. The business district is “closed up” for the night. The car is parked near the rear entrance of a hardware store. The officers view three men coming from the direction of the store’s rear entrance and “carrying something.” All this, coupled with the officer’s knowledge that the owner of the vehicle is a suspect in prior burglaries, satisfies us that the officers, though without probable cause to make an arrest, were justified in their intrusion on Fields’ Fourth Amendment rights. Nor was the scope of their intrusion unreasonable. It would be inconceivable to require the police to track and follow a car until verification that a crime had been committed is received. (459 F.2d at 1067).

See also United States v. Walling, 486 F.2d 229 (9th Cir. 1973), where the arresting officers were held to have had reasonable grounds for making an investigatory stop of an automobile, despite the fact that they had no knowledge of any crime having been committed, where the incident took place on a lonely country road late at night and where the officers knew that the area had been used in the past for various criminal activities. Cf. United States v. Hernandez 486 F.2d 614 (7th Cir. 1973).

There can be little argument that once the stop was made and the officers looked into the vehicle and saw a safe on its backseat they were justified in detaining the occupants of the automobile for the purpose of further investigation. See Fields v. Swenson, supra.

The judgment and sentence of the lower court is therefore affirmed.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.

GILLESPIE, C. J., took no part.


text:
    Charles Richard FONDREN v. Barbara BATTON.
    No. 50028.
    Supreme Court of Mississippi.
    July 27, 1977.
    John T. Haltom, Indianola, for appellant.
    Clark, Davis & Belk, Howard Q. Davis, Jr., Indianola, for appellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

Appellee filed her bill of complaint for divorce against appellant in which she prayed for a divorce and restoration of her maiden name and for general relief. Personal process was had on appellant, who, having no objection to appellee obtaining a divorce and changing her name, did not answer the bill of complaint. The cause came on for hearing and the chancellor granted the divorce and change of name as requested, and additionally provided that appellant was to pay appellee the sum of $100 per month alimony, suit money (but fixed no definite sum), and directed appellant to take immediate steps to remove appellee’s name from the title to a certain automobile.

The sole question presented is whether the chancery court had authority under a prayer for general relief, but in the absence of a specific prayer for alimony, suit money, etc., to make an award in the decree of divorce for these items. That question must be answered in the negative.

In the case of Wansley v. Schmidt, 186 So.2d 462 (Miss.1966), Justice Smith, speaking for the Court, said:

[T]he chancery court has the inherent power, and it is its duty, where the issue is before the court by proper pleadings, supported by competent evidence, in proceedings in which it has jurisdiction of the parties and subject matter, to make such orders and decrees from time to time as will protect and promote the best interests of minor children. (Emphasis added). (186 So.2d at 465).

In that ease, the chancellor had increased a child support award without any pleading requesting it. All parties were before the court on a petition for change of custody due to an alleged change of circumstances. This Court concluded:

Although the allowance as fixed by the chancellor does not appear excessive, . due process required that appellant have fair notice from an appropriate pleading that an increase in the amount of the support award was being sought and was under consideration, so that he might have reasonable opportunity to offer evidence touching both the needs of the children and his ability to pay. (186 So.2d at 465).

In Fortenberry v. Fortenberry, 338 So.2d 806 (Miss.1976), this Court said:

It is true that the chancery court is authorized under Mississippi Code Annotated section 93-5-23 (1972) to make such order as is deemed equitable and just with respect to the support of minor children of a marriage. However, this may only be done after a full and complete hearing, after due notice of the purpose of the hearing, at which the parties have an opportunity to call witnesses in their behalf and be heard by themselves or counsel.
Praiseworthy as the chancellor’s actions were in attempting to provide for the support of these minor children, to do so without any pleading praying for same arbitrarily deprived appellant of due process. (Emphasis added). (338 So.2d at 807).

In the case sub judice, appellee, in her bill of complaint, did not mention alimony or suit money or request that her name be removed from the title of the automobile and did not amend her bill of complaint to include these items. Appellant had no objection to appellee obtaining a divorce and changing her name, and if she intended to seek more than that, due process required that appellant have fair notice from an appropriate pleading that these things were desired or were being sought so that he might answer and offer evidence touching these matters.

Therefore, appellant’s petition to modify the decree and delete therefrom the objectionable items not prayed for by appellee in her original bill of complaint should have been granted.

The decree of the Chancery Court of Sunflower County, Mississippi, is therefore reversed and the portion ordering that appellant pay suit money, $100 a month alimony, and application for removal of appellee’s name from the certificate of title to the 1974 Chevelle Malibu is hereby deleted.

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: PATTERSON, Presiding Justice, SUGG, Justice, ROBERTSON, Justice,

text:
    George William HAYES v. STATE of Mississippi.
    No. 49761.
    Supreme Court of Mississippi.
    July 27, 1977.
    Rehearing Denied Aug. 31, 1977.

      Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Presiding Justice,

for the Court.

George William Hayes was convicted of possession of a controlled substance by the Circuit Court of the First Judicial District of Hinds County and sentenced to three years in the Hinds County Jail with one year suspended.

On June 13,1976, a police officer of Jackson received information from a confidential informant that marijuana could be found at 1020 Riverview Street, the residence of Gus Hodges and another “white male.” Acting on this information, the officer obtained a search warrant from a city judge which was promptly served. After searching the house, Gus Hodges and the appellant, George William Hayes, were placed under arrest and approximately eight pounds of marijuana was confiscated. At the ensuing trial, as part of the state’s case in chief, the district attorney introduced the “affidavit for search warrant,” including an “underlying facts and circumstances sheet,” the “search warrant” and an inventory of the things taken pursuant to the warrant. Specific objection was made to the underlying facts and circumstances sheet as being hearsay and therefore inadmissible. The objection was overruled and that document with others was marked state’s exhibit to the direct testimony of Officer Jerry Barrett.

At the conclusion of the trial, and out of the presence of the jury, the district attorney moved “that the inventory sheet and the underlying facts and circumstances sheet offered into evidence on behalf of the state not be allowed to go into the jury room with the jury as it might possibly be prejudicial error.” The court sustained this motion and the documents were not permitted into the jury room.

The introduction of the hearsay evidence, the underlying facts and circumstances, in the affidavit was gross error which served no procedural or justifiable purpose because the hearing on the motion to suppress had been concluded. To the contrary, its likely effect, whether' intended or not, was to prejudice the jury by violating the appellant’s constitutional right of being confronted by the witnesses testifying against him. Moreover, the holding of Sisk v. State, 290 So.2d 608 (Miss.1974), was ignored, requiring reversal because it is in point in a similar incident. See also Holt v. State, 348 So.2d 434 (Miss, decided this date).

We have examined the other assignments of error and conclude they are without merit.

REVERSED AND REMANDED.

GILLESPIE, C. J., INZER, P. J., and SMITH, WALKER and BROOM, JJ., concur,

SUGG, J., specially concurs.

ROBERTSON and LEE, JJ., dissent.

SUGG, Justice,

specially concurring:

In view of this Court’s holding in Holt v. State, 348 So.2d 434 decided this date, I concur. However, I am still of the opinion that the error in Holt, as here, was harmless beyond a reasonable doubt.

ROBERTSON, Justice,

dissenting:

I respectfully dissent. The majority opinion states:

“At the conclusion of the trial, and out of the presence of the jury, the district attorney moved ‘that the inventory sheet and the underlying facts and circumstances sheet offered into evidence on behalf of the state not be allowed to go into the jury room with the jury as it might possibly be prejudicial error.’ The court sustained this motion and the documents were not permitted into the jury room.”

In the case at bar the trial judge did all that he could possibly do. He sustained the motion, and the inventory sheet and the underlying facts and circumstances sheet were not permitted into the jury room. I can’t see how the jury could be prejudiced by something that they did not see. I think that the conviction and sentence should have been affirmed.

LEE, J., joins in this dissent.


author: GILLESPIE, Chief Justice, SUGG, Justice,

text:
    Darrell Dean HOLT v. STATE of Mississippi.
    No. 49602.
    Supreme Court of Mississippi.
    July 27, 1977.
    Thomas R. Trout, New Albany, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court:

This is an appeal by Darrell Dean Holt from a conviction in the Circuit Court of Washington County of the crime of armed robbery and a sentence of fifteen years.

Thé Kentucky Fried Chicken establishment located on Alexander Street in Green-ville, Mississippi, was robbed by two black males in the late afternoon. One of the robbers had an unusual hair style in that it was parted in the middle and was very puffy. He wore a beard and a mustache. This individual was dressed in black or dark blue pants, a white T-shirt, and a dark jacket. The other was wearing a maroon jacket and maroon pants. No customers were in the store, the two cooks were in the rear, and Lois Boyd, the cashier, was in the front of the establishment. One of the robbers got a Pepsi-Cola out of the box and paid for it with a dollar bill, and when Lois Boyd opened the cash register to make change, the robber pointed a chrome-plated gun at her and said, “This is a hold-up.” The robbers took between $60 and $70 in cash from the register and fled down Cately Street. A witness who observed the robbers entering the Kentucky Fried Chicken establishment also saw them flee, one of them holding his pocket and the other carrying a Pepsi-Cola or Coca-Cola bottle. They ran north on Cately Street toward O’Hea Street. A short distance from the street a third black male who had been waiting in the area joined them. Mrs. Camel, who lived at 237 Cately Street, heard someone running and looked out the window, and saw a young black male wearing a maroon colored two-piece suit enter the back door of Jo Jo Simpson’s residence. The Simpson house is located at 623 O’Hea Street, and the rear door where the man entered was about ten feet from Mrs. Camel’s house.

The robbery occurred at approximately 4:30 P.M., and the police were immediately notified. Lt. Vick of the Greenville Police Department was a short distance from the Kentucky Fried Chicken establishment when he got the radio message of the robbery. He undertook to make an immediate investigation by talking to the people working in the victimized establishment and then proceeded up Cately Street, where he talked to two people, including Mrs. Camel. Lt. Vick then verified that the house where the maroon-clad man had entered was the house of Jo Jo Simpson, and when he was talking to Mrs. Camel he saw a dollar bill lying on the back steps where entrance was made into the rear door of 623 O’Hea Street. Lt. Vick kept in radio contact with Chief Skinner and involved Chief Skinner as the investigation progressed while other officers were proceeding to obtain a search warrant on the information furnished by Lt. Vick.

A search warrant was obtained for a three-room house numbered 623 O’Hea Street and when the officers went to this residence with a search warrant they found the defendant hiding in a closet and a person named Henry Parker sitting on the bed in the middle room. Underneath the bed was a pair of maroon pants and a maroon jacket was hanging in the bathroom. A chrome pistol was found above the closet where defendant Holt was hiding and his hair was “messed up” but the remains of the center part were visible. The police recovered $65 in currency from a bag hidden behind the bathtub. A black jacket and a Pepsi-Cola bottle were also found.

WAS THE SEARCH LAWFUL?

It is appropriate to state at the outset of the discussion that counsel for defendant conceded in oral argument that the police had probable cause in fact to justify searching the residence in question, but contend that the affidavit is insufficient under the test laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The Court is of the opinion that Lt. Vick had sufficient information that the robbers had entered 623 O’Hea Street, which was only about 175 feet from the Kentucky Fried Chicken establishment. The employees of the victimized establishment told Lt. Vick how the robbers were dressed and the direction which they ran up Cately Street after the robbery. Mrs. Crumbly gave additional information and Mrs. Camel, whose house was only about ten feet from the back door of 623 O’Hea Street, heard the commotion of people running, looked out and saw a black male enter the rear of the O’Hea Street address. Lt. Vick also had been told that one of the robbers was holding his pocket and another was carrying a Pepsi-Cola bottle. This was only fifteen or twenty-five minutes after the robbery and at that time and at the time the search was made Lt. Vick knew that a felony had been committed, and had probable cause to believe that the perpetrators of this crime as well as evidence of the crime were in the residence at 623 O’Hea Street. Under Mississippi Code Annotated section 99-3-7 (1972), the officers had a right to enter the residence to arrest the robbers and make an appropriate search of the residence. Cf. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

The underlying circumstances prepared by the officers only fifteen to twenty-five minutes after the robbery occurred are in the following words:

This date two black males went into the Kentucky Fried Chicken and robbed an employee, using a small caliber pistol. Taken was about $250.00. These two persons ran back north toward O’Hea Street, according to witnesses. Investigating officers located a Davanna Camel, 237 Cately, who stated about this time she heard someone running, looked out, and saw a negro male, wearing maroon pants and jacket, enter the back door of 623 Ohea Street. This fit the description of one of the robbers. Lt. D. Vick checked around this area and saw a one dollar bill in the back yard. The person living in this house Joe Earl Simpson, has a criminal background with this department, and it is believed he might be involved. Based on the above information it is believed whoever robbed the above location ran into this house.

We are also of the opinion that the affidavit for the search warrant under these circumstances was sufficient. The affidavit was made by Officer Cochran who joined Lt. Vick in the investigation a few minutes after the robbery. We are not dealing with probable cause based upon information furnished by an anonymous tip or a police informant. Eyewitnesses furnished the basis of the information. Under the emergency surrounding the circumstances of securing the search warrant, the officers apparently did not get the names of the people who worked in the victimized establishment, nor did they state in the affidavit the witnesses who told the officers of the persons running north on O'Hea Street that fitted the description of the robbers. This could only have been information furnished by eyewitnesses. Thus they were identifiable if not identified. This was a reasonable inference that the magistrate could draw from the affidavit. Also the details given in the affidavit are self-verifying and, of course, Mrs. Camel was identified in the affidavit as having seen the maroon-clad individual enter 623 O’Hea Street.

In Cundiff v. United States, 501 F.2d 188 (8th Cir. 1974), it is stated:

Defendant contends here that these facts, disclosed in the affidavit for search warrant executed by Detective Hatfield, failed to meet the requirements set out in Spinelli. More particularly he protests the “failure” to set forth underlying information so that the magistrate could determine the credibility of the “hearsay” information given by the informers. Defendant fails to note the important distinction between an informant who divulges evidence of a crime obtained from sources unknown to the affiant or magistrate and an individual who is an “eyewitness” and only relates matters gathered from his own observation. As we stated in McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969):
The essence of “reliability” may be found in an informant’s statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an “eyewitness” to an actual crime perpetrated demonstrates sufficient reliability of the person.

501 F.2d at 189-190.

And in United States v. Bell, 457 F.2d 1231 (5th Cir. 1972), it was said:

The rationale behind requiring a showing of credibility and reliability is to prevent searches based upon an unknown informant’s tip that may not reflect anything more than idle rumor or irresponsible conjecture. Thus, without the establishment of the probability of reliability, a “neutral and detached magistrate” could not adequately assess the probative value of the tip in exercising his judgment as to the existence of probable cause. Many informants are intimately involved with the persons informed upon and with the illegal conduct at hand, and this circumstance could also affect their credibility. None of these considerations is present in the eyewitness situation such as was present here. Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A “neutral and detached magistrate” could adequately assess the probative value of an eyewitness’s information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon firsthand knowledge. Thus we conclude that Aguilar and Spinelli requirements are limited to the informant situation only. 457 F.2d at 1238-1239.

This case presents an example of the difficulty police have in putting in affidavit form information they have. The Supreme Court of the United States has never departed from the statement made by Mr. Justice Goldberg in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), as follows:

These decisions reflect the . recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. 380 U.S. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 689.

Chief Justice Burger affirmed the foregoing quotation from Ventresca in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Citing the earlier case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Court in Harris stated:

Both recount personal and recent observations by an unidentified informant of criminal activity, factors showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held insufficient in Spinelli, supra, in which the affidavit failed to explain how the informant came by his information. 403 U.S. at 579, 91 S.Ct. at 2079-2080, 29 L.Ed.2d at 731.

We are of the opinion that a magistrate should consider, and no doubt did consider, in issuing the search warrant involved in the present case that witnesses to a robbery and witnesses who see robbers fleeing are not likely to fabricate the facts.

The affidavit in this case is about as definite as one could expect the average policeman to make under the circumstances under which police officers work, especially in the wake of a violent crime. There is nothing in this record to indicate that the police officers were callous or indifferent to the Fourth Amendment rights of the defendant. We hold that the affidavit was sufficient.

WAS THE CONFESSION ADMISSIBLE?

The record shows without dispute that the Miranda warning was given the defendant prior to his confession. The defendant was a young man about nineteen years of age, a high school graduate, and at the time of the incident involved in this case, had finished nearly one year of college. The basis for defendant’s argument that the confession was not shown to be voluntary is the testimony of the defendant at the suppression hearing that Officer Sweeden told defendant that things would be easier on him if he told the truth. It is contended that under Robinson v. State, 247 Miss. 609, 157 So.2d 49 (1963), and Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959), the confession was not shown to be voluntary because, he contends, that at no point during the motion to suppress was Officer Sweeden asked if he made the statement.

The State has the burden of proving the voluntariness of the confession. In the present case, Officers Sweeden and Jennings testified that no promises or threats were made and they denied in detail that the officers made any threats or promises of reward, immunity from prosecution, or promise of preferred treatment in order to get the confession. After the officers testified, the defendant took the stand and stated that Officer Sweeden told him: “Things will be easier for you if you will tell me the truth, and it will be easier for me, too, you know.” Neither Sweeden nor Jennings were recalled by the prosecution to either affirm or deny that the statement was made. We reiterate the procedure laid down by this Court in Agee v. State, 185 So.2d 671 (Miss.1966), wherein the Court held:

1. The preliminary hearing on the question of the admissibility of a confession must be in the absence of the jury and should be conducted before the trial on the merits begins.

2. The State has the burden of proving the voluntariness of a confession. This burden is met by testimony of an officer that the confession was voluntarily made without any. threats, coercion, or offer of reward. Such testimony makes out a prima facie case for the State on the question of voluntariness.

3.When, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was made, or give an adequate reason for the absence of any such witness.

The foregoing rules have been stated in numerous cases.

We strongly emphasize that in every case where the defendant takes the stand after the State has made a prima facie case of voluntariness and testifies to any fact which, if true, would tend to show that the confession was not voluntary, the State should offer all the officers who were present when the accused was questioned or give an adequate reason for the absence of any such witness.

However, in the instant case, we hold, as we did in Tate v. State, 317 So.2d 23 (Miss. 1975), that the testimony of the officers who testified before the defendant was sufficient denial of the defendant’s claim that Officer Sweeden offered an inducement if he confessed.

DID THE ADMISSION INTO EVIDENCE OF THE AFFIDAVIT FOR THE SEARCH WARRANT INCLUDING THE UNDERLYING FACTS AND CIRCUMSTANCES CONSTITUTE REVERSIBLE ERROR?

When putting on the State’s case-in-chief, Officer Cochran was asked to identify the search warrant and the affidavit for the search warrant including the statement of the underlying facts and circumstances supporting the affidavit, the State then offered these documents into evidence. The defendant objected to these documents “going to the jury” on the ground that they contained hearsay information and deprived the defendant of his constitutional right to confront the witnesses. The objection was overruled and the document went into evidence as Exhibit 2 for the State.

The admission into evidence of the affidavit for the search warrant, including the statement of the underlying facts, was reversible error under the recent case of Sisk v. State, 290 So.2d 608 (Miss.1974). The admission of the underlying facts and circumstances was particularly objectionable because it stated that the person living in the house, “Joe Earl Simpson, has a criminal background with this department, and it is believed he might be involved.” Thus, the objectionable evidence linked the defendant to a known criminal, indicating guilt by association. These same documents were introduced into evidence on the motion to suppress which was heard preliminary to trial on the merits. After the trial judge overruled the motion to suppress and had received in evidence on the suppression hearing the affidavit for the search warrant and other documents, there was no need to introduce these documents on the hearing of the case in chief. It is the judge’s responsibility to determine the admissibility of the fruits of the search — not the jury. The instructions given by the trial judge directed the jury that “the evidence which you are to consider consists of the testimony of the witness and the exhibits offered and received.”

Because of the admission into evidence of the affidavit for the search warrant for consideration by the jury, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH and BROOM, JJ., concur.

SUGG, ROBERTSON, WALKER and LEE, JJ., dissent.

SUGG, Justice,

dissenting:

The majority reverses this case solely because the affidavit, including the underlying facts' and circumstances, were introduced in evidence for consideration by the jury. I dissent for several reasons.

First, there is considerable doubt whether the statement of underlying facts and circumstances attached to the search warrant was submitted to the jury. On the trial of the case when the document was offered there was an off-the-record discussion at the bench at the request of defense counsel out of the hearing of the jury. The court reporter was called to the bench and objection to the introduction of the affidavit and search warrant was made outside the hearing of the jury. This leads me to the conclusion that the trial judge was familiar with Sisk v. State, 290 So.2d 608 (Miss.1974) in which we stated:

Of course, when the fruits of a search are objected to, the state must establish the validity of the search out of the presence of the jury. The affidavit and search warrant, if the search were made by authority of a search warrant, must be produced and made a part of the record, but the documents are not for the consideration of the jury. (Emphasis Supplied). (290 So.2d at 610).

I assume the trial judge followed the mandate of Sisk that the documents are not to be considered by the jury and withheld them from the jury.

Second, I dissent because the objection to the underlying facts and circumstances was made on the ground that it contained hearsay information and deprived the defendant of his right of confrontation with witnesses against him under the United States and the Mississippi Constitutions was not well taken. All of the persons named in the underlying facts and circumstances were offered as witnesses by the state and were cross examined by the defendant. Therefore, the defendant was not denied right to confront witnesses against him.

Third, I am of the opinion that, even if the statement of underlying facts and circumstances was shown to the jury, it was harmless error under Miss.Sup.Court Rule 11. The State in its brief, said, “Of the mountain of evidence against the appellant, the search warrant and affidavit constituted less than a pebble.” This is a true statement because the evidence for the State established the commission of the crime, the flight path the robbers took, the gun used was recovered from the very closet in which the defendant was hiding at the time of his arrest, the stolen money was discovered in the house, the defendant matched the description of one of the robbers, the defendant confessed to the crime and did not deny that he committed the crime at the trial. Miss.Sup.Court Rule 11 provides that no judgment shall be reversed for the improper admission of evidence unless it shall affirmatively appear from the whole record that such judgment has resulted in a miscarriage of justice. It affirmatively appears from the record that defendant is guilty, he offered no defense, a fair jury could return no verdict other than guilty; therefore, defendant’s conviction should be affirmed.

ROBERTSON and LEE, JJ., join this dissent.

WALKER, J., joins this dissent in part.