author: BOOKOUT, Judge.

text:
    Herman Devan BRAXTON v. STATE.
    8 Div. 968.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      Dwight Duke, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession of heroin; sentence: twelve years imprisonment.

Early on the morning of December 2, 1976, at approximately 1:30 A.M., Officer Dennis Miller of the Scottsboro Police Department stopped a 1973 Oldsmobile with an expired out-of-county license tag. The vehicle was driven by James Hopkins. The appellant was a passenger in the automobile. A routine call to police headquarters revealed that Hopkins had several outstanding felony warrants against him in Georgia. Officer Miller asked Hopkins to wait outside the automobile and then proceeded to search the interior of the car, where the appellant was still vested. An unloaded .32 caliber pistol was discovered hidden under the center arm rest of the front seat of the car next to where the appellant was seated. After discovering the hidden weapon, Officer Miller arrested Hopkins and the appellant for “possession of a pistol.”

During a pat-down search incidental to the arrest, the officer discovered syringes, needles and some pills marked as valium which were concealed in the appellant’s outer jacket. The appellant and Hopkins were taken downtown where a routine inventory search was made to catalog appellant’s personal property. At that time packets of heroin were discovered in the appellant’s boot. The appellant was then read the Miranda warning and charged with violating the controlled substances act, which resulted in his conviction and appeal.

The only issue raised by the appellant is whether the personal property inventory search at the police station was made pursuant to a lawful arrest. Appellant contends that there existed no probable cause for his arrest for carrying a concealed weapon pursuant to Title 14, § 161, Code of Alabama 1940. He cites two Alabama cases and one Fifth Circuit case interpreting § 161 to the effect that the concealed weapon must be so connected with the person of the appellant that the locomotion of the body would carry with it the concealed weapon. Here, the weapon was in no way connected with the person of the appellant. He therefore contends that because there was no probable cause to arrest him under § 161, supra, the subsequent search which discovered the heroin was illegal.

The arresting officer made the following statements at trial indicating the basis for the charge upon which the appellant was arrested:

“A. ... At this time, I arrested both subjects with possession of a pistol. ***** *
“A. I then advised both subjects they were under arrest for, I believe the charge was carrying a pistol without a permit or carrying a concealed weapon, I believe was what the charge was . . .”

Title 14, § 175, Code of Alabama 1940, states:

“No person shall carry a pistol in any vehicle, or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license therefor as hereinafter provided.”

Section 175 applies to carrying an unlicensed pistol concealed on the person or in a vehicle, whereas § 161, supra, applies to carrying certain enumerated weapons concealed upon the person. Section 161 makes no exception for carrying a licensed pistol and thus insofar as they conflict, § 175 would prevail, it being the later statute and being a complete revision of the subject matter. Stinson v. State, 28 Ala.App. 559, 190 So. 303 (1939). Aside from the question of whether § 175 pro tanto repealed § 161, it is abundantly clear that § 161 never covered the subject of carrying an unlicensed pistol in a vehicle. Section 175, supra, is the only statute which could have been applicable to the instant situation.

It is not necessary that a police officer specify the exact title and section of the Code or act number upon which he bases an arrest. From the officer’s testimony, it was sufficiently clear that his intention was to make an arrest for carrying an unlicensed pistol contrary to the only statute applicable, § 175, supra. This court would certainly not indulge in the presumption that the police officer intended to make an arrest under a statute which never had any application to the situation and which had been preempted by a subsequent revision of the subject matter covered. To rule otherwise would be to place an unreasonable burden upon law enforcement.

The question still remains as to whether probable cause existed for the arrest. As to the validity of the arrest of the driver, James Hopkins, and subsequent search of the automobile incident thereto, we find no problem. It would be poor police work for an officer to ignore his radio dispatch that a suspect was wanted for commission of a crime. Bates v. State, 48 Ala.App. 489, 266 So.2d 155, cert. denied 289 Ala. 740, 266 So.2d 160 (1972); Crane v. State, 55 Ala.App. 619, 318 So.2d 315 (1975). Considering the fact that Hopkins’ prior misconduct involved outstanding felony warrants from Georgia, it was not unreasonable for the officer to make a limited protective search of the immediate grasping reach of the driver. Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied 291 Ala. 93, 278 So.2d 205 (1973). “. . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).

The enigma in this situation, however, lies not in the validity of the arrest and search incident to the arrest of the driver, but the presence or lack of probable cause for the arrest of the passenger. The existence of probable cause for the appellant’s arrest here is critical, for without probable cause for the arrest, the evidence discovered at the police station and used to support the instant conviction, would be inadmissible. The constitutional validity of the inventory search at the police station depends upon the validity of the appellant’s initial arrest. Whether the arrest was constitutionally valid depends upon whether, at the time the arrest was made, the officer had probable cause to make it. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). If the appeal before us was by the driver of the vehicle, there would be sufficient evidence to establish constructive possession of the pistol. Here, however, we have not the driver but a mere passenger, who had no actual possession of the pistol. His connection with the pistol can only come through constructive possession.

In determining whether there was probable cause to arrest, it is not necessary that the officer have before him evidence which would support a conviction for the offense. He must have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the suspect had committed or was committing an offense. Beck, supra. The officer’s good faith in making the arrest alone is not enough. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

“The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Henry, supra.

United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969) is very similar to the instant case. There, a conviction was upheld for interstate transportation of firearms after guns were found in the vehicle in which the appellant was a passenger. There, police saw an automobile violate a traffic ordinance, and saw one of the passengers motion with his hands as though putting something under the seat. After a search of the driver revealed money orders in a name other than that of the driver, the officers searched the car and found two revolvers under the car seat. The United States Court of Appeals relied on the suspicious movement of the passenger and the suspicious money orders as factors which tilted the balance in favor of finding that the officers had probable cause to search the automobile and arrest the passengers.

In the instant case, there was no evidence of suspicious movements by the passenger, however, this court must consider the fact that the incident occurred at the very early hour of 1:30 A.M.; that the officer knew that the driver had felony warrants outstanding against him; and that the gun was found hidden in a position very close to the appellant.

We believe that an officer confronted with such a situation would not be acting imprudently or capriciously in concluding that the passenger was quite likely to be the owner, and potential wielder of the weapon found concealed where he was sitting. The law does not require the police officers to have evidence which would conclusively establish guilt, but merely facts which would warrant a man of reasonable caution to believe that the appellant had violated the law. The test is a pragmatic one, seeking to balance the welfare of the public against the ability of law enforcement to effectively maintain law and order. However, in applying this test of reasonableness under the fourth amendment, we believe the officer in the instant case had probable cause to make the arrest, and thus the fruits of the resulting search were legal and admissible at the trial.

This is a close question, and in reaching our decision, we are not unmindful of the many cases coming from this court concerning constructive possession: Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970); Radke v. State, 52 Ala.App. 397, 293 So.2d 312, affirmed 292 Ala. 290, 293 So.2d 314 (1973); Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, Ala., 340 So.2d 1149 (1976). We simply find that under the peculiar circumstances of this case and the situation confronting the police officer at the time of the arrest, that minimal probable cause existed to validate the arrest.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Supernumerary Circuit Judge. BOOKOUT, J.,

license: Public Domain

text:
    Ernest BOYD v. STATE.
    3 Div. 736.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for ten years.

The alleged victim testified that on September 22, 1976, she was in her home at 1610 East Edgemont in the city of Montgomery, when defendant intruded through the back porch door. He choked her, saying that it was her money that he wanted, “drew a screwdriver, a little one, on me and said he would kill me.” She said for him to wait until she could get her purse; he followed her through the hall and knocked her down in the bedroom. She located her purse and gave him five dollars. He then tried to rape her. She told him to leave her alone that she would write him a check. She wrote him a check for seventy-five dollars, gave it to him, and he then went away.

The victim had known defendant. He and his father had worked for defendant at her home. She was seventy-three years of age at the time of the alleged crime.

Defendant testified out of the presence of the jury in connection with the question of the admissibility of a confession by him, but he did not take the stand on the trial as to the issue of his guilt, and no evidence was offered in his behalf.

Defendant, sixteen years of age, applied for Youthful Offender treatment, but after an investigation and hearing, his application was denied. He was thereafter arraigned and pleaded not guilty and not guilty by reason of insanity. No evidence was presented to support his plea of insanity-

Appellant challenges the action of the trial court in overruling defendant’s motion to suppress a confession by him and in admitting the confession in evidence over his objection.

There was abundant evidence that defendant was fully informed as to all of his rights, that he expressly waived his right to counsel, and that he voluntarily and understandingly confessed to the crime.

Appellant urges that Rule 21 of the Rules of Juvenile Procedure, as based upon Article 5, Section 125, Act No. 1205, Acts of Alabama, 1975 Regular Session, forbade the admission in evidence of juvenile defendants. It provides:

“Admissibility of child’s preliminary statement—Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer, during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment, or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction.”

The confession of defendant was made on September 22, 1976. In Parker v. State, Ala.Cr.App., 351 So.2d 927 (1977), it was held that by resolution and order of the Supreme Court of Alabama dated December 1, 1975, the quoted provision of Act No. 1205 did not become effective until January 16, 1977. This is dispositive of appellant’s present contention on the particular point.

In the absence of applicable legislation, the effect of minority upon the question of the admissibility of one’s confession is stated in Clarke v. State, 67 Ala.App. 222, 225, 283 So.2d 671 (1973) as follows:

“We subscribe to the general proposition that the confession of a minor is not ipso facto inadmissible; however, infancy is certainly a relevant factor bearing upon the voluntariness, vel non, of a confession. 23 C.J.S. Criminal Law § 829; 87 A.L.R.2d 624; Burton v. State, 107 Ala. 108, 18 So. 284. The better rule appears to equate the capacity required for a valid confession with that prerequisite to criminal responsibility. We conclude from Burton, supra, that generally a person whose age and mental faculties make him amenable to criminal sanctions is sui juris in matters relating to confessions and inculpatory admissions.”

There is no contention, and there is no basis for any contention, that Code of Alabama 1940 (Recomp.1958), Tit. 13, § 377, applies, as it did in Clarke. There the confession was by a child under sixteen years of age and was made to a probation officer, which the statute prohibited from being introduced in evidence. The provision of the last cited statute is not applicable to the case under review, as defendant was not under sixteen years of age and his confession was not made to a probation officer or like official.

We disagree with appellant’s contention that the trial court erred in refusing to give some requested charges dealing with lesser included offenses of larceny, assault, and assault and battery. Appellant relies upon Weldon v. State, 50 Ala.App. 477, 280 So.2d 183 (1973) to the effect that such charges should be given if there is any reasonable theory from the evidence which would support a conviction for the named lesser included offenses, and that irrespective of “how slight the evidence may be supporting the defense offered by the appellant.” In this case, wherein the only thing speaking for defendant on the point is the presumption of innocence that attends it, if any offense was committed, it was robbery, nothing less. The court was correct in refusing the charges as to lesser included offenses. Browder v. State, 54 Ala.App. 369, 308 So.2d 729 (1974); Chambers v. State, 56 Ala.App. 172, 320 So.2d 105 (1975).

As the jury returned to the courtroom with a verdict, the following proceedings took place:

“THE COURT: If you have arrived at a verdict, pass it to the Bailiff.
“Is the verdict of the Jury, we, the Jury, find the Defendant guilty and fix his punishment at ten years?
“All right. Let the Defendant come forward.
“MR. DEAN: I will ask that the Jury be polled, please.
“THE COURT: Let the Defendant come forward.
“Do you have anything to say why the sentence of law should not now be pronounced against you?
“THE DEFENDANT: Nothing to say.
“THE COURT: The Jury finding you guilty and fixing punishment at ten years imprisonment, the Court hereby finds you guilty and sentences you to ten years imprisonment in the penitentiary. Now, there is a request that the Jury be polled. That means that the Judge will ask you individually if what you have just read is your individual verdict.
“Mr. Foreman, was that your individual verdict?
“(Whereupon, the Jury was polled and all answered in the affirmative.)
“THE COURT: Now you may take the Defendant.
“MR. DEAN: We give notice of appeal and ask that appeal bond be set, Your Honor.

Appellant takes the position that the failure of the trial judge to poll the jury prior to allocution and pronouncement of sentence was error prejudicial to defendant that requires a reversal of the judgment. The controlling law is Code of Alabama 1940 (Recomp.1958), Tit. 30, § 101:

“When a verdict is rendered in either a civil or criminal case, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be asked severally if it is their verdict; and if any answer in the negative, the jury must be sent out for further deliberation.”

In speaking to the pertinent language of the forerunner of the statute, the Supreme Court in Brown v. State, 63 Ala. 97, 103-104 (1879) stated:

“When the verdict is returned and received by the court, and the jury discharged, a memorandum of it is made, from which the record is subsequently made up. The memorandum is the record to which the statute refers; . . ”

The court emphasized in Brown that the critical time, the line of cleavage between an appropriate polling and an improper polling, is the discharge of the jury.

“. . . Polling would become a hindrance to the administration of justice and cast upon it reproach, if it could be exercised after a discharge of the jury, and after the publication of their verdict, when, without offending the order of the court, they could be approached, and tampered with. Tampering may be corrupt, or it may be by appeals to the sympathy of individual jurors, when corruption cannot be imputed. From it in any form the jury is guarded while under the court. After their dispersion, the court loses control over them, and cannot again remit them to their deliberations.”

Although the better practice, and the usual practice, seems to be that in a criminal case where the verdict is such as to require a sentence, the polling of the jury, if requested, should take place before the pronouncement of the sentence, such a sequence is not an absolute necessity and unless some injury to defendant apparently results therefrom, a failure to observe such sequence does not furnish a basis for a charge of prejudicial error. We are convinced that no injury to defendant resulted from the time or the manner in which the polling of the jury was conducted.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

TYSON, P. J., and HARRIS, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J.,

dissents on the basis of his dissenting opinion in Parker, supra.


author: BOWEN, Judge. TYSON, Presiding Judge,

text:
    Rodney M. LINER v. STATE.
    5 Div. 396.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      John Ben Jones, III, West Point, Ga., John W. Johnson, Jr., Lanett, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for rape. Punishment was fixed at ten years imprisonment.

The sufficiency of the evidence is not argued on appeal. Therefore having determined that there was ample evidence to support the verdict of the jury, we will not belabor this opinion with a statement of the facts except where necessary to a full understanding of the issues presented.

I

A two count indictment was returned against the appellant. Count one was in statutory form and charged forcible ravishment. Title 14, § 395, Code of Alabama 1940, Recompiled 1958; Title 15, § 259(89), Code. Count two charged a violation of Title 14, § 397, Code, prohibiting having carnal knowledge of any woman or girl by administering any drug. The appellant filed a demurrer to count two alleging that it charged more than one offense alternatively, contained a definition subject to dispute, and was unconstitutionally vague. The appellant was convicted under count one only. Where the defendant is indicted under a two count indictment, specific mention of count one only in the verdict is in effect an acquittal of the charge under count two. Farris v. State, 41 Ala.App. 51, 130 So.2d 54, cert. denied, 272 Ala. 278, 130 So.2d 58 (1961); Lewis v. State, Ala.Cr.App., 337 So.2d 108 (1976). Any alleged errors pertaining to a count as to which there was an acquittal will not be considered on appeal. Wilson v. State, 21 Ala.App. 431, 109 So. 179 (1926); Gresham v. State, 20 Ala.App. 187, 101 So. 909, cert. denied, 212 Ala. 190, 101 So. 910 (1924); People v. State, 28 Ala.App. 37, 178 So. 238, cert. denied, 235 Ala. 216, 178 So. 240 (1938); Beasley v. State, 28 Ala.App. 395, 185 So. 191 (1939).

II

The appellant argues that it was reversible error for the prosecutor to repeatedly attempt to elicit testimony concerning the defendant’s use and possession of drugs.

In each case where the prosecutor attempted to show that the victim had obtained drugs from the appellant on prior occasions the objection of defense counsel, if made, was sustained. In several cases the answer, if given, was excluded and the jury was instructed to disregard that evidence.

In its oral instructions to the jury the trial judge charged that:

“This is a rape case. This is not a drug case. And I know we all feel strongly about drugs. I’m sure you do, and none of you feel more strongly than I do about it. But you cannot let yourself be prejudiced one way or another in this case by the fact that drugs were involved. I instruct you not to be prejudiced against the complaining witness because of her involvement in drugs. I further instruct you not to be prejudiced against this defendant because of his involvement in drugs. This is a rape case. Now, I know you as a jury are going to do what’s right and follow those instructions and not let yourselves be" prejudiced either against the defendant or against the prosecuting witness because of all we’ve heard about drugs.”

Through its frequent instruction the trial judge made it abundantly clear that the jury was to disregard any prejudicial inference against the defendant or the victim because of use or involvement with drugs.

This court is not authorized to cast error because of the possible cumulative effect of questions propounded to witnesses to which objections were sustained. Peyton v. State, 40 Ala.App. 556, 120 So.2d 415, cert. denied, 270 Ala. 740, 120 So.2d 429, cert. denied, 364 U.S. 870, 81 S.Ct. 114, 5 L.Ed.2d 93 (1960); Chapman v. State, 43 Ala.App. 689, 199 So.2d 861 (1967).

Moreover, defense counsel was responsible for bringing out a portion of the testimony concerning drugs in his cross examination of the state’s witnesses. At one point he was cautioned by the trial court that by continuing a particular line of questioning he was opening the door for the very testimony he had complained of and objected to on direct examination. Defense counsel’s response was, “We’ll let the doors be open.”

Finally, the jury did not convict the appellant of any drug related offense. This is significant and when coupled with the principles set forth above convinces this court that the appellant was not injured by the complained of testimony. Because the trial judge sustained the appellant’s objections we do not determine whether the evidence was proper and admissible under that count of the indictment charging rape by the administration of drugs.

Ill

During defense counsel’s cross examination of the prosecutrix the following occurred:

“MR. YOUNG (District Attorney): He’s kind of browbeating her, your Honor.
“MR. WALLACE, SR. (Defense Counsel): If the Court pleases, you can’t use very gentle tactics — I’d like to ask the questions in a kind way but when you’re trying to get the truth out of a bunch of people that are smoking marijuana and using “T”, you’ve got to use—
“MR. YOUNG: If the Court please—
“MR. WALLACE, SR.: —the tactics necessary—
“MR. YOUNG: —when you’re trying somebody that’s furnishing young people dope and marijuana, you’ve got to protest these tactics.”
* * * * * *
“THE COURT: Ladies and gentlemen of the jury, you ignore, put out of your minds this exchange occurring between the attorneys.”

From the record it appears that defense counsel got as good as he gave. It was “tit for tat”. Sanford v. State, 38 Ala.App. 332, 83 So.2d 254 (1955). The prosecutor’s statements were provoked by defense counsel and did not require a mistrial. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968). The statements were a reply in kind. Lane v. State, 46 Ala.App. 637, 247 So.2d 679 (1971).

IV

The appellant alleges that it was reversible error for the district attorney to state in closing argument that the prosecutrix was from a broken home. The trial court noted that the evidence revealed that the prosecu-trix lived with her father and that her mother lived elsewhere. The fact that testimony was in evidence that the prosecu-trix’s mother and father lived in separate towns distinguishes this case from Harden v. State, 26 Ala.App. 94, 155 So. 719 (1934) cited by the appellant in support of his argument.

In argument to the jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on proper inferences from the evidence and may draw conclusions from the evidence based upon his own reasoning. Borden v. State, AIa.Cr.App., 337 So.2d 1388 (1976). Liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury, whether they are truly drawn or not. Mitchell v. State, 57 Ala.App. 601, 329 So.2d 658, cert. denied, 295 Ala. 412, 329 So.2d 663 (1976).

In this instance, the statement of the district attorney was a proper and allowable inference from the evidence.

V

In closing argument the district attorney referred to the appellant as a “rattlesnake” and a “viper” who sucks the blood from the youth of our country before they can reach maturity. While this argument was highly improper Cassady v. State, 51 Ala.App. 544, 287 So.2d 254 (1973), it is not reversible error. The trial court sustained appellant’s objection to this type of argument and instructed the jury on what they were to consider. His motion for mistrial was overruled. As was noted in Cassady, supra, 51 Ala.App. 547, 287 So.2d 257:

“Had appellant thought that more corrective measures were necessary, it was incumbent upon him to move the court to exclude this remark from the jury’s consideration. In the absence of such a motion, the question is not properly presented for revision. McGrew v. State, 21 Ala.App. 266, 107 So. 328; Stephens v. State, 250 Ala. 123, 33 So.2d 245.”

We have reviewed the record for error prejudicial to the substantial rights of the appellant and have found none. Therefore the judgment of the trial court is due to be and is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

TYSON, P. J., concurs specially.

TYSON, Presiding Judge,

concurring.

I concur in the opinion prepared in this cause by Judge Bowen. I would add, however, the following thoughts.

Necessarily no fixed standard can be applied to prejudicial remarks made by counsel during the course of trial, and each case must be judged on its own merits. Smith v. State, 282 Ala. 268, 210 So.2d 826.

Such comments, which are merely ar-guendo of the prosecutor’s opinion, are generally within the limits of allowable forensic discussion. Sanders v. State, 260 Ala. 323, 70 So.2d 802.

Necessarily, a wide discretion must be allowed the trial judge in regulating such argument.

As stated by former Presiding Judge Harwood, later Mr. Justice Harwood, in Bullard v. State, 40 Ala.App. 641, at 645, 120 So.2d 580, at 584:

“Of necessity a wide discretion must be allowed the trial judge in regulating the argument of counsel. Trials are adversary in nature. Vigorous prosecution and defense is to be expected. Neither defense counsel nor the prosecutor should be too closely hampered by niceties of speech if he is to be effective, but should be permitted to say his say in his own style. This of course does not mean that unfair and prejudicial argument is to be condoned for one instant.”

See also Owens v. State, 291 Ala. 107, 278 So.2d 693; and Racine v. State, 290 Ala. 225, 275 So.2d 655.

I believe the prompt and emphatic instructions of the trial judge removed any prejudicial effect shown in the argument discussed in Parts 3, 4, and 5 of the principal opinion in this cause. Thus, no error is shown. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62.


author: DeCARLO, Judge.

text:
    Richard Wayne STEWART v. STATE.
    6 Div. 42.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    James S. Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Robbery; ten years.

This opinion which follows, except for the last twelve paragraphs, was prepared by a retired circuit judge on special assignment, but was not accepted by the majority of this court.

We have read and examined the record in the case and the facts detailed below are substantially correct and more than sufficient for the purpose of this opinion.

Appellant-defendant was convicted of robbery pursuant to an indictment therefor. He entered a plea of not guilty. The jury fixed punishment at ten years imprisonment in the penitentiary. The trial court entered judgment in accordance with this verdict and denied appellant’s motion for new trial. Hence, this appeal.

While on his way home from work in the late evening of October 18, 1974, the victim of the robbery, Irvin Reginald Darty, stopped by “Rose’s Place” for some late night refreshment. Rose’s Place was described by Darty as a “beer joint on old Highway 78, West (in Jefferson County),” and during the hour and a half he spent in this night spot, Darty consumed two beers while watching some other customers shoot pool. Darty left Rose’s Place around 1:00 A.M. (October 19), and as he was walking across the parking lot to his pickup truck, he noticed an automobile that “nearly (had) a flat (tire).” As to what then transpired, we quote D arty’s testimony from the record.

“Q Did you talk with him (appellant) out there when you stopped to help them?
“A When I got ready to leave the beer joint I looked up and they had nearly a flat on their car and I hollered back and told them that somebody had a flat, that I didn’t know who it belonged to. They asked me would I follow them to the Allstate Club to make sure, you know, that they got over there.
“MR. FOWLER: Your Honor we will object to that. I don’t know who they is.
“THE COURT: I don’t either. Who are you talking about?
“A I’m talking about this boy here (indicating defendant) and three more.
“THE COURT: Just say what he said please sir.
“Q Did he (appellant) say anything in response to that?
“A I don’t remember which one said anything.
“Q Where is the Allstate Club located?
“A On new Seventy-eight highway.” [Emphasis supplied].

Darty did not know the names of any of these individuals, but he recognized them as the persons he had just been watching shoot pool in Rose’s Place. The four individuals (three men and a girl) drove off ahead of Darty in their automobile, and Darty quickly lost sight of them. After Darty had traveled about a half mile from Rose’s Place down a “cutoff road” which led to “new highway Seventy-eight,” he spotted the automobile parked on the shoulder of the road with its hood raised. Darty pulled in behind the parked automobile to render assistance and noticed that the three males (one of whom was positively identified at trial as the appellant) were standing outside of the ear, and their female companion was seated inside. Again quoting Darty’s trial testimony:

“Q Did you have a conversation with any of them while you were in the pool hall (Rose’s Place)?
“A Yes I did, but I don’t remember it.
“Q Did you have any conversation with them when you stopped at the car?
“A I might have said a few words to them. We were all looking around the hood, you know. I got to looking around, you know, sort of suspicious, and when I turned I hit the ground.
“Q What caused you to hit the ground?
“A Somebody hit me in the back of the head.
“Q Do you know which one ?
“A No I couldn’t say for sure.
“Q After you were hit in the back of the head and you hit the ground were you hit any further?
“A Yes sir. They just kept beating me.
“Q How many of the three males there beat on you ?
“A I couldn’t say. After they hit me the first time I didn’t know much more.
“Q Were you completely out?
“A Yes sir. When I woke up everything was gone and I was laying on the highway.
“Q What kind of shoes did you have on?
“A Slippers. My boots were laying in the truck.
“Q When you woke up was there anything missing from your personal effects?
“A My watch and my shoes.
“Q What kind of watch?
“A Timex. Little old cheap watch.
“Q What was the value of it?
“A About eighteen dollars, I guess. Somewhere along there.
“Q Were you able to tell when anybody got the watch, were you aware of it?
“A I didn’t know nothing about it til I woke up.” [Emphasis supplied].

Also taken during the robbery was Darty’s 1972 GMC pickup, his billfold containing four dollars, his boots, and paycheck. Darty sustained severe injuries around the head and face as a result of this assault, but was able to walk about a mile to the “Allstate Club” where he was then taken to his home by a woman and small boy. Several days after the incident in question, Darty learned from the proprietor of Rose’s Place that the names of the individuals whom he watched shoot pool and whom he alleged later robbed him were, Wayne Stewart (appellant), Joe Richards, Donnie Stewart, and Patty Stewart.

Appellant presented an alibi defense and through the testimonies of himself, his sister, and his brother-in-law, he sought to establish that on the night in question he was in Bessemer at his sister's home repairing his automobile. Appellant admitted that he knew Joe Richards and Donnie Stewart. In fact, Donnie Stewart was appellant’s brother, and Joe Richards was his nephew. Appellant also stated he had been in Rose’s Place on several occasions, but he emphatically denied that he was there on the night of October 18, 1974.

I

Appellant contends that the trial court erred in overruling his motion for a new trial which challenged the sufficiency of the evidence. He asserts that the evidence presented by the State proved no more than that he was present at the scene of this roadside robbery and had the “opportunity to commit a crime.”

It is well settled that corpus delicti as well as an appellant’s guilty agency may be established by circumstantial evidence. James v. State, 22 Ala.App. 183, 113 So. 648; Butler v. State, 54 Ala.App. 468, 309 So.2d 505; Stiles v. State, Ala.Cr.App., 315 So.2d 609; Howell v. State, Ala.Cr.App., 339 So.2d 138; Chatom v. State, Ala.Cr.App., 348 So.2d 828.

Also, it is well settled where legal evidence exists, from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether such evidence exists is a question of law, but its weight and probative value is for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Overruling the appellant’s motion for a new trial was not error because a sufficiency of evidence existed upon which to submit the case to the jury. Young v. State, 283 Ala. 676, 220 So.2d 343.

In the instant case, the victim, Darty, spent approximately an hour and a half in Rose’s Place, during which time he had a conversation with the group that he saw in the parking lot. In his testimony concerning the events in the parking lot, Darty said when he “hollered back and told them that somebody had a flat,” the appellant and three more asked him to follow them to the Allstate Club, to which he agreed. During the trial, he indicated that one of the group was the defendant by saying “I’m talking about this boy here, (indicating the defendant) and three more.”

Darty testified that when they left the parking lot, the group was in front of him but he lost sight of them. He said that he was on a “cut-off road” leading to “new highway Seventy-eight” and had gone about one-half mile when he saw their car sitting on the side of the road with its hood raised. He identified the car as being a “61 or 62” Falcon which was white in color with black stripes down the back. He said he pulled up behind the car and the three males were out of the car. According to the victim, when he stopped, he said he might have said a few words to them but they were all looking around the hood. Darty testified that when he turned, somebody hit him on the head. He said he could not say for sure who it was but they continued to beat him after he had fallen to the ground.

During the trial he identified the defendant as one of the individuals present at the time he was beaten and robbed. Before concluding his testimony (in chief), Darty acknowledged that he was one-hundred percent positive that the appellant was one of the ones who robbed him. From the record:

“Q Mr. Darty, I would like to ask you this question and I would like for you to keep in mind the fact this man is charged with robbery. Are you positive that’s the man, 100 percent positive?
“A Yes, sir.
“Q Look over here at him. Are you positive that’s the man?
“A Yes, sir.”

In Jones v. State, 174 Ala. 53, 57 So. 31, the Supreme Court of Alabama stated:

“ ‘When by prearrangement, or on the spur of the moment, two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, . the active perpetrator in the commission of the offense, is a guilty participant, and, in the eye of the law, is equally guilty with the one who does the act. Such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is so proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case.’ Morris v. State, 146 Ala. 66, 41 So. 274.”

The Alabama Supreme Court further observed in Jones v. State, supra, that:

“Aid and abet ‘comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.’ Raiford’s Case, 59 Ala. 106; Tally’s Case, 102 Ala. 25 et seq., 15 So. 722.”

The evidence in this case warranted a finding of concerted action on the part of the appellant and the others going to the remote place where the robbery was committed. They were all in a position to render assistance in the commission of this crime. Legal evidence existed from which the jury could by fair inference find that the appellant participated in this robbery. Under these circumstances, this court has no right to disturb the verdict. The question whether this evidence existed was a question of law. The weight and probative value was for the jury’s consideration. Haggler v. State, supra.

We are of the opinion that the facts and circumstances produced at trial, together with the inferences to be drawn therefrom, were sufficient to warrant the jury’s verdict and to sustain the judgment of conviction.

No error appearing in the record, the judgment of the trial court is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Leroy FREEMAN v. STATE.
    6 Div. 335.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    G. William Noble for Barnett, Tingle & Noble, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at imprisonment in the penitentiary at ten years. Throughout the trial proceedings in the Circuit Court of Jefferson County he was represented by retained counsel and at arraignment he pleaded not guilty. After conviction and sentence he gave notice of appeal. New counsel was retained by appellant to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, Leroy Freeman, whose name is to the grand jury otherwise unknown, felo-niously took two one dollar bills of the lawful currency of the United States of America of the aggregate value of two dollars and forty cents in coins of the lawful currency of the United States of America of the aggregate value of forty cents, the personal property of Ella Gray, from her person and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

The evidence was extremely conflicting. The evidence introduced by the State made out a clear-cut robbery case. Appellant’s defense was an alibi. When the State rested its case, appellant made the following motion: “We make a motion to exclude the evidence and grant the defendant a directed verdict.” There were no specific grounds stated in this motion to exclude. The law is settled that a motion to exclude without stating the grounds therefor is properly overruled. Espey v. State, 270 Ala. 669, 120 So.2d 904.

The victim, Ella Gray, testified that she lived at 738 32nd Street South in Birmingham in November, 1975, and had lived at this address approximately six years. She further stated that she knew appellant and had known him in the neighborhood since she moved to the above address. She said that appellant lived with his mother, sisters and brothers in a house about a block from her house.

She further stated that on Friday, November 28, 1975, being the day after Thanksgiving, around 4:30 p. m. her boyfriend, L. C. Marino, and appellant came to her house. Marino had a pint of gin and she fixed two glasses with ice for them. The men drank the gin in the living room while she was cleaning her kitchen. She testified that while the men were in her house Marino gave her $60.00 to keep for him and she hid the money in the kitchen. She had a brown purse in the kitchen with her. It was on a chair and could be seen from the living room. After appellant and Marino consumed the pint of gin they left the house.

Shortly after the men left appellant returned to the house and kicked the screen door and snatched the hook or latch off and re-entered the house. He then slapped Ms. Gray on the side of her face hard enough to knock her to the floor and demanded that she give him the money. She said appellant had a paring knife in one hand while he was slapping her and he scratched her face with the knife. She stated that every time she tried to get up from the floor, appellant slapped her back down. He kept telling her to give him the money that Marino had given her to keep for him. She refused and appellant kept slapping her and she could not remember the number of times he slapped her. Appellant then grabbed her purse and went out the back door with it. She had two dollars and some change in her purse. The next morning she found the purse on her back porch and it was empty. After appellant left her house she went to a neighbor’s house and to the fire station where she called the police.

The police arrived and began their investigation. The following Tuesday Detective James E. Gay interviewed the victim and took photographs of her face which was still swollen. Such photograph was admitted into evidence.

L. C. Marino testified that he had known Ella Gray two or three years and had visited her on many occasions. He stated that he arrived at her house between 4:30 and 5:00 on the afternoon of November 28,1975, and had a bottle of gin with him. He stated that he had known appellant for a long time and that appellant followed him to the victim’s house because he had the gin. He said that Ella Gray was working in her kitchen when they went to her house and she fixed two glasses of ice for them; that he and appellant drank the gin. The victim did not have a drink with them.

He further testified that when he and appellant got ready to go he gave Ella Gray $60.00 in cash to keep for him. He stated he saw her put the money in her purse and he and appellant left the house. He said he went home and he did not know where appellant went. He said at a later date he got back the $60.00 that he had given Ms. Gray to keep for him.

Detective James E. Gay of the Birmingham Police Department testified that he had been on the police force for more than thirteen years. He interviewed Ella Gray at her residence on the morning of December 2, 1975, and took photographs of her face. In the course of his interview with the victim he learned that her assailant and robber was “one of the Freeman boys with the bad eye.”

On cross-examination Detective Gay testified that the victim “described him to me on my interview with her as being one of the Freeman boys who lives on 31st Street and the one with the bad eye.” He further stated that the first officer to investigate the incident filed a report in which he wrote the name “Fernando Freeman” as the suspect. Detective Gay made it plain, “That writing of Leroy is in my handwriting that I placed there after discovering his name.” He said he arrested Leroy Freeman at his home on December 2, at 10:45 a. m.

Ella Gray was recalled by the State and testified that from the time the incident occurred at her house on November 28, 1975, until she was interviewed by Officer Gay she had not hurt her face in any way. She identified the photograph taken by Officer Gay and stated her face was swollen then. The trial judge asked her if the man she claimed took her money wore anything over his face or head and she replied, “No, sir.” She further testified that the man who hit her and took her purse had “one bad eye.”

Appellant testified in his behalf and at the outset of his direct examination the following occurred:

“Q. First of all, you were convicted in Federal Court over here for possessing stolen mail, weren’t you?
“A. Yes, sir.
“Q. Did you enter a plea of guilty to that?
“Mr. Gomany: Object to that, Judge.
“The Court: Overruled, you can testify.
“Q. Did you admit your guilt on that charge?
“A. Yes, sir.”

Appellant went on to testify that he did not go to Ella Gray’s house with L. C. Marino and drink gin on November 28, 1975. He denied ever having gone to the house of Ella Gray. Appellant offered an alibi as to his whereabouts on the day of the alleged offense. He attempted to support his alibi by his girl friend, members of his family and friends.

Several of appellant’s witnesses contradicted each other in their alibi stories. Some testified the group was drinking gin at the appellant’s mother’s home. Others testified they were drinking wine and beer and no gin was there. Most of the alibi witnesses stated they were playing cards that afternoon, but one denied that any card playing took place. One of the alibi witnesses contradicted everyone’s testimony by saying that appellant was at Betty Pratt’s house all day long until they went to Dorothy Walker’s party. All of the other witnesses stated the group was at the home of appellant’s mother until 7:00 that night.

It is settled law that conflicts in alibi testimony presented by the accused and identification testimony of the victim in a robbery prosecution is peculiarly within the province of the jury to resolve. For a collection of the cases on this principle see Ala.Dig.Cr.Law, No. 739(2).

Appellant contends the State’s case depended on the testimony of the robbery victim alone as against several witnesses for the defense showing that he was elsewhere when the alleged robbery occurred. The answer to appellant’s contention is that in our system of criminal justice, we do not travel on the numerical number of witnesses. Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Savage v. State, 57 Ala.App. 579, 329 So.2d 638; Williams v. State, Ala.Cr.App., 335 So.2d 249; Ala.Dig.Cr.Law, No. 553.

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of conflicting evidence. .May v. State, Ala.Cr.App., 335 So.2d 242; Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.

Appellant’s counsel at the beginning of this trial announced in open court in the presence of the venire that appellant had been convicted of possessing stolen mail, a Federal charge, “and he does expect to testify in this case.”

The State objected to counsel’s statement and the objection was sustained.

As pointed out in this opinion, during the direct examination of appellant, his own counsel, over the State’s objection, elicited from him an admission that he had previously been convicted in a Federal court of mail theft. The State did not, at any time, seek to prove appellant’s prior conviction in any form, fashion, or manner, either on the issue of his credibility or to enhance the punishment meted out to him. This was a voluntary admission on appellant’s part in open court and before the trial jury. This might well have been “trial strategy” on the part of appellant’s counsel to lessen the impact of a prior conviction in the event the State sought to properly prove such prior conviction.

Had the State sought to prove a prior conviction of appellant it would have been required to follow the procedure outlined in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, and Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874, restricting the proof to a certified judgment of conviction and to further prove that appellant was represented by counsel, or that there was a constitutional waiver of counsel. For further clarification see Ciervo v. State, Ala.Cr.App., 342 So.2d 394.

There is no reversible error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    John Roy PETERSON v. STATE.
    6 Div. 403.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen. for the State.
   BOWEN, Judge.

The appellant was indicted by a Grand Jury of Jefferson County for the first degree murder of James McBride. A jury found the appellant guilty of murder in the second degree and fixed his punishment at thirty years imprisonment. Retained trial counsel was appointed to represent the appellant on this appeal.

The facts of this case need not be set out in detail. The evidence produced by the state revealed that on the evening of March 15, 1976, the appellant and the deceased were drinking at Minniefield’s shot house in Birmingham, Alabama. An argument developed between the two men when the deceased would not loan or give the appellant two dollars. Angered, the appellant left the drinking establishment only to return within a short time with three other men and again asked the deceased for the two dollars. When the deceased refused, the appellant shot him as the deceased was rising from his seat.

The appellant claimed that he shot the deceased in self-defense when the deceased advanced toward him with a knife. Although the appellant admitted that he and the deceased had been arguing, he denied asking the deceased for any money.

I

Initially the appellant argues that his motion for a new trial was due to be granted because the evidence did not justify a conviction of second degree murder. The argument presented by counsel is more properly reserved for presentation to a jury. It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness of conflicting evidence, May v. State, Ala.Cr.App., 335 So.2d 242 (1976), or to disturb the verdict of the jury where the evidence is conflicting. Parham v. State, Ala.Cr.App., 333 So.2d 912, cert. denied, Ala., 333 So.2d 915, and 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976). The weight and credence to be given the testimony of the defendant as to the issue of self-defense is a question for the jury. Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974); 11A Alabama Digest, Homicide, «=>276.

II

It is argued that the photographs of the deceased which were taken at the hospital after his death were improperly admitted into evidence because they lacked probative value because the fact that the deceased was shot was never denied, because they reflected the condition of the accused after surgery and profound swelling and because they were gruesome.

It is clear that, in a charge of homicide, the state may introduce a duly authenticated photograph of so much of the victim’s body as is necessary to show the wounds inflicted by the accused. Gamble, McElroy’s Alabama Evidence, 3rd Ed. § 207.01(2), p. 459, citing authorities.

As the photographs in question showed the portion of the victim’s body where the wound had been inflicted, they were relevant as shedding light on the character and location of the wound and corroborating the testimony of the medical doctor and the toxicologist, even though they were cumulative and there was no dispute as to the location of the wound. Earns v. State, 57 Ala.App. 390, 328 So.2d 640 (1976); Robinson v. State, Ala.Cr.App., 335 So.2d 420, cert. denied, Ala., 335 So.2d 426 (1976).

The marks resulting from the surgery to the deceased were sufficiently identified to the jury and distinguished from the wounds caused by the bullet. Where a photograph of the deceased depicts not only the wound which allegedly caused death but also depicts a surgical incision such photograph is not rendered inadmissible because of the depiction of the surgical incision where the incision is clearly identified. Hurst v. State, 277 Ala. 686, 174 So.2d 325 (1965); Maness v. State, 57 Ala.App. 431, 329 So.2d 120, cert. denied, 295 Ala. 411, 329 So.2d 126 (1976); Means v. State, 51 Ala.App. 8, 282 So.2d 356, cert. denied, 291 Ala. 792, 282 So.2d 359 (1973).

The photographs depicted the entrance and exit wounds of the bullet. In the process of entering the right thigh of the deceased and exiting the left thigh, the bullet passed through the scrotum injuring and severing a number of blood vessels causing the scrotum itself to swell to a grotesque size. The photographs were in fact gruesome. However this fact is not, without more, an appropriate ground upon which to exclude a photograph from evidence. Davis v. State, Ala.Cr.App., 333 So.2d 168 (1976); Brown v. State, Ala.Cr.App., 331 So.2d 820 (1976).

“Gruesomeness becomes objectionable in a photograph only where there is distortion of either of two kinds; first, distortion of the subject matter as where nec-roptic or other surgery causes exposure of non-probative views, e. g. ‘massive mutilation’, McKee v. State, 33 Ala.App. 171, 31 So.2d 656; or, second, focal or prismatic distortion where the position of the camera vis-a-vis the scene or object to be shown gives an incongruous result, e. g., a magnification of a wound to eight times "its true size, Wesley v. State, 32 Ala.App. 383, 26 So.2d 413.” Metcalf v. State, 40 Ala.App. 25, 33, 108 So.2d 435, 443 (1958).

Neither kind of distortion is present in this case. The pictures were not due to be excluded because they depicted the sexual organs of the deceased. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962). For these reasons the pictures were properly admitted.

Ill

The appellant complains that the trial court erred in not allowing individual questioning of the jurors at the time when the jurors were being qualified. The appellant contends that this individual questioning was necessitated by a newspaper article which appeared on the very morning the jury was to be qualified. The article was entitled “ ‘Good time’ law riles law enforcers” and expressed the “simple, unbelieving outrage” of law enforcement over the new “good time” law which would allow prisoners to earn time off for good behavior at the rate of two days for each day served and when coupled with the existing law which was not repealed, would allow prisoners to be eligible for parole consideration after serving one-third of their sentences. The appellant contends that any juror that read the article would be prejudiced into giving a harsher sentence.

After the trial court denied defense counsel’s motion to question the jurors individually, counsel did not attempt to question the venire on the newspaper article stating that “asking these questions in front of the whole venire cannot help but raise doubts in those people who have read the article”.

Examination of jurors takes place “under the direction of the court”. Title 30, § 52, Code of Alabama 1940, Recompiled 1958. The accused has no absolute right to personally interrogate each prospective jur- or. Bales v. State, 63 Ala. 30 (1879); Lundy v. State, 91 Ala. 100, 9 So. 189 (1890); Burns v. State, 226 Ala. 117, 145 So. 436 (1932); Annotation: Right of Counsel in Criminal Cases Personally to Conduct the Voir Dire Examination of Prospective Jurors. 73 A.L.R.2d 1187, § 7 at 1203. This is within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent an abuse of that discretion. Clark v. State, 294 Ala. 493, 318 So.2d 822 (1975); Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973).

The preferred procedure to follow is to allow counsel to ask his questions of the group of prospective jurors as a whole and then allow counsel to ask other questions of a particular juror, if requested, if any juror should give an answer which would call for more information. Massey v. State, 49 Ala.App. 345, 272 So.2d 271, cert. denied, 289 Ala. 747, 272 So.2d 278 (1972).

From the record it does not even appear that defense counsel asked the jurors whether they had read that particular edition of the morning newspaper. If counsel had done so and received an affirmative answer from any juror he could have then requested to be allowed to individually examine that juror out of the presence of the others. This issue was raised on the motion for new trial and no evidence, either by testimony or affidavit, was presented showing that any juror even read the alleged prejudicial article.

Even if a prospective juror had read the article it would not constitute a challenge for cause. The article itself made no mention of the appellant nor the crime with which he was charged. The actual punishment imposed by the jury (thirty years for second degree murder) was well within the range of their discretion and does not appear to be unusually harsh.

Because defense counsel was permitted to examine the jury venire as a whole and in view of the fact that it had not even been shown that any prospective juror read the edition of the newspaper containing the alleged inflammatory article, we conclude that the trial judge did not abuse his discretion in refusing the appellant’s request to examine each juror individually. McPherson v. State, 271 Ala. 533, 125 So.2d 709 (1961); Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1962).

Mindful of our duty under Title 15, § 389, Code of Alabama 1940, Recompiled 1958, we have examined the record for any reversible error, whether called to our attention or not. We find no reversible error and the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: BOYD, Justice,

text:
    Lester Lamon PAYTON, Petitioner, v. STATE of Florida, Respondent.
    No. 50298.
    Supreme Court of Florida.
    Oct. 5, 1977.
    Ben W. Thompson, Jr., Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, for respondent.
   This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari, jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Florida Appellate Rule 4.5c(6), and it appearing to the Court that it is without jurisdiction, it is ordered that the Petition for Writ of Certiorari be and the same is hereby denied.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and KARL, JJ., concur.

BOYD, J., dissents with opinion.

HATCHETT, J., dissents and concurs with BOYD, J.

BOYD, Justice,

dissenting.

I respectfully dissent to the majority decision to deny Payton’s petition for a writ of certiorari. I believe the decision of the District Court of Appeal, First District, reported at 336 So.2d 672, affirming the conviction of petitioner conflicts with Chaffin v. State, 204 So.2d 22 (Fla. 1st DCA 1967); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960); O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976) and Hollis v. State, 27 Fla. 387, 9 So. 67 (1891). Those cases hold that appellate courts should reverse convictions for rape whenever the evidence is obviously insufficient to support conviction.

HATCHETT, J., concurs.


author: BOYD, Judge.

text:
    FLORIDA TELEPHONE CORPORATION, Petitioner, v. William T. MAYO et al., Respondents.
    No. 49860.
    Supreme Court of Florida.
    Oct. 6, 1977.

      David B. Erwin and Felix A. Johnston, Jr. of Woods, Johnston & Erwin, Tallahassee, Claude M. Warren of Warren, Snider & Warren, Indianapolis, Ind., J. Thomas Gurney, Jr. of Gurney, Gurney & Handley, Orlando, and W. W. Hill, Jr., Kansas City, Mo., for petitioner.
    William L. Weeks, Prentice P. Pruitt, Donald R. Alexander and Harry D. Boswell, Tallahassee, for the Florida Public Service Commission, respondents.
    Earl B. Hadlow of Mahoney, Hadlow & Adams, Jacksonville, and Walter H. Alford, Miami, for Southern Bell Telephone and Telegraph Co., intervenor.
   BOYD, Judge.

We have before us a petition to review by writ of certiorari Order No. 7285, a final order of the Public Service Commission. The issue presented by the petition concerns the treatment of deferred federal income taxes in the calculation of intrastate toll settlements between Florida Telephone Corporation and Southern Bell Telephone and Telegraph Company for the years 1970 to 1973.

Southern Bell and the nineteen independent telephone companies in Florida, including Florida Telephone, cooperate to provide long distance telephone (toll) service for the State. Cooperation is necessary because calls that originate in one company’s territory frequently terminate in another’s. As the major participant in the toll service, Southern Bell acts as a clearinghouse for settling between itself and the independents the revenues generated by the service. The revenues are reported to Bell where they are entered into a pool. From the pool Bell makes the settlements by one of two methods. By the first, the Nationwide Averages Settlement Method, Bell returns to the independent an average revenue per call. By the second, the Cost Study Method, the independent, through studies at its expense, makes a determination of its cost (plant, expenses, taxes, etc.), in providing toll service. A method for settling relative to cost is then negotiated between Bell and the independent.

At first the Nationwide Averages toll settlement method was used by Bell and Florida Telephone, but in 1970 the two companies changed to the cost-study method. Their formula for reaching a cost study settlement, the source of this dispute, is contained in a traffic agreement which has retroactive effect to July 1, 1970. Under the agreement Bell reimburses Florida Telephone for its cost, including taxes, and returns to Florida Telephone, as its share of the profits, an amount determined by applying a rate to the company’s investment base devoted to toll service. The traffic agreement provides:

“METHOD OF SETTLEMENT — The amount the Independent Company is to receive for its participation in the handling of toll telephone communications will be determined on the basis of a study of the Independent Company’s book costs and expenses which are applicable to such traffic, (emphasis ours)
“The components of the interstate [and intrastate] investment base will include appropriate amounts in Accounts 100.1, 100.2, 100.3, and 122, less reserves in Accounts 171, 172 and 176.” (emphasis ours) Supplement No. 6 to Traffic Agreement effective July 1,1970, Exhibit P-11, PSC Docket No. 72196-TP, Record on Appeal, p. 721.

Florida Telephone felt the foregoing provisions were unfair, yet it entered the agreement, presumably because it needed some settlement, inadequate though it might be.

The reason Florida Telephone found the first of the provisions unfair is this: Florida Telephone has taken “accelerated depreciation” deductions for depreciation of its as-seis in computing its annual federal income tax since 1954. Until 1968 its method of accounting for federal income taxes was “normalization” by which its taxes reported were as if “straight-line depreciation” deductions were taken. In “normalization” accounting the actual taxes paid are shown in one account and the taxes deferred are booked in a separate account. In 1968 Florida Telephone was granted permission by the Public Service Commission to change to the “flow-through” method of accounting for its federal income taxes. In “flow-through” accounting only the actual taxes paid are shown on the accounting books and the deferred taxes flow through to the bottom line on the balance sheet where earnings are listed. Thus, in contrast to the “normalization” procedure, under “flow-through” a smaller amount of taxes are booked as expenses. Although deferred taxes were not booked under its method of accounting, Florida Telephone demanded that Bell reimburse them. Bell refused because under the traffic agreement reimbursements were to be limited to “book costs and expenses.”

Florida Telephone found the second provision of the contract unfair because it excludes from its settlements base the deferred taxes accumulated from 1954 to 1967 while it excludes from Bell’s base only deferred taxes from 1970 forward, since it was not until 1970 that Bell elected to take accelerated depreciation.

Although Florida Telephone did not contest that Southern Bell was not following the contract in the settlements procedure it felt the traffic agreement was inequitable and so it petitioned the Public Service Commission for relief. The hearing examiner, after careful consideration that is shown by the detailed analysis of the problem in his findings of fact and recommendations, recommended a pre-tax method of settlement. Under such a method all income taxes, current and deferred, would be ignored thereby avoiding any inequity caused by their consideration. The examiner could not recommend, however, that the deferred reserves be included in the settlements base because money from those reserves is available for capitalization in “plant,” another factor included within the base. The examiner therefore reasoned that to include the reserves in the base would falsely increase costs to the extent they were used for capitalization.

In its final order, Order No. 7285, the Public Service Commission followed the recommendation that the reserves be excluded from the settlements base but could not accept recommendation for a pre-tax approach to cost-study settlement and, instead, ordered that Bell be permitted to continue its practice of reimbursing for “booked” taxes only. Florida Telephone petitions us to review the Order. Bell has been granted leave to intervene in the proceedings before this Court.

Our review of petitions for certio-rari from final orders of the Public Service Commission is limited to correcting departures from the essential requirements of law and determining whether the order is supported by substantial and competent evidence. Tamiami Trail Tours, Inc. v. Bevis, 299 So.2d 22 (Fla.1974). The Commission’s denial of Florida Telephone’s request that the deferred reserves be included in the settlement’s base does not constitute such a departure for the reason given in the examiner’s findings and because the Commission, as it stated in its Order, has consistently not allowed regulated industries to gain earnings on deferred taxes because of its policy that the taxes should be held for the ratepayers’ benefit.

As to the dispute over the reimbursements of deferred taxes, all the parties agree that those taxes are not included within “book” costs when flow-through accounting is used. Since the disparity between the reimbursement received and what it would have received had it accounted for itida Tes taxes by normalization is undoubtedly substantial, Florida Telephone argues that this Court should remedy the inequity by ordering one of the following forms of relief: that both companies follow the same accounting procedure; that Florida Telephone be allowed to normalize for purposes of the traffic agreement; or that the pre-tax approach recommended by the examiner be adopted. Sitting as the Commission and given the authority to do so, we might have ordered one of the proposed forms of relief. But our scope of review of Public Service Commission orders is narrow and Florida Telephone has not fit this case within it. Cf. Smith Terminal Warehouse Co. v. Bevis, 312 So.2d 721 (Fla.1975). Although the Commission has the power to regulate telephone service contracts between telephone companies and their patrons, Section 364.19, Florida Statutes, and may require that there be filed with it contracts between telephone companies relating in any way to telephone service or use of telephone lines, Section 364.07, Florida Statutes, the Commission has no statutory authority to regulate the contractual division of long distance toll revenues between telephone companies. And Florida Telephone has not shown that the Commission’s refusal to interfere with the revenue division departs in a nonstatutory way from the essential requirements of law. The inequity that Florida Telephone sees in the traffic agreement may be open to judicial remedy if there is a contractual deficiency in the traffic agreement, but it is beyond the Commission’s power to cure.

There being no departure from the essential requirements of law in Order No. 7285, the petition for certiorari is hereby denied.

It is so ordered.

ADKINS, Acting C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. § 350.641, Florida Statutes.

      . In Florida, Southern Bell is approximately twice as large as the independents combined. Transcript of Record in PSC Docket No. 72196-TP. Record on appeal, p. 44.

      .Including those between independents and in- < terstate, as well as intrastate.

      . Later a new formula for division of revenues, not at issue here, was agreed upon by Florida Telephone and Southern Bell.

      . Accelerated depreciation results in lower taxes in the early years of an asset’s life because the depreciation that would take place in the later years is allowed to be deducted early. Ultimately depreciation deductions and tax liability are the same under either accelerated depreciation or straight line depreciation. The advantage of accelerated depreciation is that the timing of tax payments is deferred because of the greater early deduction.

      .The taxes are held in a reserve which at the end of 1967 totalled 3.3 million dollars.


author: PER CURIAM.

text:
    Earl BLANCHETT, Appellant, v. STATE of Florida, Appellee.
    No. 51912.
    Supreme Court of Florida.
    Oct. 6, 1977.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, and James A. Cornelius, Asst. Public Defenders, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Johnson v. State, 314 So.2d 573 (Fla.1975).

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


author: McCORD, Chief Judge. RAWLS, J.,

text:
    Michael EVANCO, Appellant, v. STATE of Florida, Appellee.
    No. EE-465.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Appellant was convicted of two counts of an information charging possession of cocaine and two counts of delivery of cocaine. He appeals the judgments and sentences. The sole question raised is whether or not the trial court erred in denying appellant’s motion to compel discovery.

Responding to appellant’s demand for discovery, appellee submitted its answer in which it listed as a witness J. M. Hoover, a police officer, and gave his address as “Gainesville Police Department.” Appellant took the discovery deposition of Hoover, and at the deposition hearing, the following questions were asked by appellant’s attorney to which Officer Hoover gave the following answers:

“Q. State your name and address, please.
A. My name is James Michael Hoover, I reside at Alachua County.
Q. What is your residence address?
A. I don’t feel that that is necessary. ******
Q. I want to look into his background, see his family, talk to his neighbors, find out what kind of a guy he is, so I am asking you again, what is your residence address?
A. I refuse to answer that question.
Q. Why?
A. For protection of myself and my family, I feel it is not pertinent to the trial or the hand at issue.
Q. Are you married?
A. I don’t feel that is anyone’s business but mine.
Q. Do you have children?
A. I don’t feel that has anything to do with anything.”

Appellant subsequently filed a motion to compel discovery requesting that the court order Hoover to answer the three questions —(1) What is your residence address? (2) Are you married? (3) Do you have any children? The court, after hearing argument of counsel for both parties, entered an order denying the motion. There is no indication that testimony was taken on the motion.

Appellant’s counsel validly contends that one of his responsibilities is to investigate not only the facts of the case but the reputation and background of the state’s witnesses so that upon cross-examination, or in the defendant’s case in chief, the credibility of such witnesses can be determined by the jury; that he needs to determine the reputation of the witness in the community, whether he is law abiding, and his day-today conduct with his family and neighbors; that in order to properly carry out this function, it is necessary to know the home address of a witness so his investigator can properly make such a background investigation.

Fla.R.Cr.P. 3.220(d) provides that at any time after the filing of the indictment or information the defendant may take the deposition upon oral examination of any person who may have information relevant to the offense charged. It further provides that except as otherwise provided therein, the procedure for taking such deposition, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure. Fla.R. Civ.P. 1.280(b) provides that unless otherwise limited by order of the court, the parties may obtain discovery regarding any matter, not privileged that is relevant to the subject matter of the pending action. It further states that,

“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

The information sought by the above three questions which Officer Hoover refused to answer appear reasonably calculated to lead to the discovery of admissible evidence. The officer’s refusal to answer them hinders appellant in the investigation of the case and preparation of his defense. Answers to them should have been required unless privileged.

We have been cited no case on point on this question nor has our research uncovered such a case. We do consider, however, that the answer is provided by the somewhat analogous recent opinion of the Supreme Court in State v. Hassberger, and State v. Grimes, 350 So.2d 1, opinion filed May 26, 1977. That case involved a confidential informant rather than a police officer. There the respondents were observed delivering cannabis to the confidential informant. After charges were filed, defense counsel moved for disclosure of the informant’s identity, and the motion was granted. On the state’s ex parte motion for a protective order and without notice to the co-defendants, the court held an in-camera hearing at which the state presented evidence of danger to the safety of the informant should his real identity be disclosed. At the conclusion of the hearing, the court entered a protective order relieving the state from the requirement that it furnish the defense with the true name and address of the informant but requiring that the informant be present at trial and available for depositions. The state called the witness at trial, and the defense cross-examined him to the extent possible without knowing his real name or address. Both were convicted and on their appeals, the District Court of Appeal, Fourth District, reversed the convictions because of denial of right to cross-examination by failure of the trial court to require disclosure of the informant-witness’ true name and address. The Supreme Court accepted jurisdiction of the Grimes decision through the following certified question:

“Can the identity (actual name and address) of a confidential informant be kept secret when the trial court finds (by means of an in-camera proceeding on the subject), that the informant’s personal safety is at stake — when that informant appears as a witness in the criminal proceeding?”

The state sought conflict certiorari as to the Hassberger decision, but the Supreme Court found no conflict between that decision and other decisions of Florida appellate courts and therefore discharged the petition in Hassberger.

While police officer Hoover was not a confidential informant, any claim he may have of privilege to not reveal his home address, his marital status, and the number of his children on deposition should rest upon the same rules the Supreme Court has established in Hassberger and Grimes for revealing vel non such information by confidential informers or other state witnesses on cross-examination. The Supreme Court said:

“Where the state produces the informer at trial, and attempts to prevent the witness from giving certain testimony on cross examination, the sixth amendment right of an accused to confront the witnesses against him, made obligatory on the states by the fourteenth amendment, places severe restrictions on the privilege of non-disclosure.”

Then quoting from Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), the Supreme Court said:

“[Wjhen the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross examination itself.”

The Supreme Court further quoted from Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), as follows:

“It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test. . The question, ‘Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment. . .”

Then the Supreme Court stated:

“In a concurring opinion in Smith v. Illinois, supra, Justice White, with whom Justice Marshall joined, noted that in Alford, the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the proper bounds of cross-examination. He opines:
T would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. . . 390 U.S. at 133-34, 88 S.Ct. at 751.
A significant number of federal and state courts, citing this language in Smith, have concluded that the defendant’s right to background information on the witness is not absolute. They hold that Smith and Alford notwithstanding, where there has been some real threat to the personal safety of the witness because of his willingness to testify in that proceeding, the present address of the witness may be withheld from the defendant, as long as the cross-examination is otherwise vigorous, full and effective.”

The Supreme Court further said:

“In United States v. Palermo, 410 F.2d 468 (7th Cir. 1969), the court adopted a procedure which has been widely accepted in dealing with this problem. First, an actual, not implied, threat to the witness or to his family must be shown. Second, the government must disclose to the judge in camera the information sought to be withheld from the accused. The judge must then determine whether the facts must be disclosed, in order not to deny effective cross-examination to the defendant. His decision is reviewable on appeal. Finally, the accused must be allowed to show any special need for the information requested.
We approve of the ‘personal safety’ exception to the otherwise ordinary duty of the State to allow the defendant full access to its witnesses on cross-examination, and of the procedure outlined in Palermo, supra. We stress, however, that this exception is an exceedingly narrow one, and that all doubts must be resolved in favor of the accused’s sixth and fourteenth amendment right to confront the witnesses against him.” (Emphasis supplied)

The “personal safety” exception and the limitations thereon as approved by the Supreme Court in Hassberger and Grimes for cross-examination of state witnesses should apply as well to examination of state witnesses by the defendant on deposition. We hold that it does.

It appears from the record in the case sub judice that no evidence was received at the hearing before the trial court on the defendant’s motion to compel discovery and there is nothing in the record to show whether or not there has been an actual threat to Officer Hoover or his family. In view of this circumstance, we relinquish jurisdiction to the trial court for a period of 30 days from the date hereof with directions that a hearing be held to determine whether or not such a threat or threats have been made and also whether or not appellant was prejudiced by the officer’s failure to answer the questions. The trial judge shall enter an order stating his findings of fact thereon. The reporting and transcribing of such hearing shall be at the expense of the state (Alachua County) and upon completion thereof, within such 30-day period, the state shall file the transcript with the Clerk of this Court together with a certified copy of the order of the trial judge. We will thereafter give further consideration to the question raised by this appeal.

SMITH, J., concurs.

RAWLS, J.,

dissents.

RAWLS, Judge (concurring in part; dissenting in part).

I concur with the majority opinion except for disposition of the cause.

The burden of proving any “personal safety” exception to the constitutional right of cross-examination by defendant was first shouldered by the state upon Officer Hoover unilaterally declining background questions when his deposition was taken. This burden continued during pre-trial proceedings and during trial. The state failed to carry its burden.

I would reverse and remand for a new trial.


author: PER CURIAM. BOYER, Judge.

text:
    Paul MULRYAN, Petitioner, v. JUDGE, DIVISION “C” CIRCUIT COURT OF OKALOOSA COUNTY, Florida, Respondent.
    No. HH-57.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1977.
    Rehearing Denied Oct. 21, 1977.
    David A. Pascoe, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., and Erwin Fleet, Circuit Court Judge, for respondent.
   PER CURIAM.

Petitioner filed a Petition for Writ of Prohibition. A prima facie case having been alleged, we issued Rule Nisi. Respondent has filed his response and oral argument has been heard. The facts are not in dispute.

Mulryan was arrested and charged with possession of stolen property on January 18, 1977. An information was filed on February 15, 1977, charging him with the offenses of possession of stolen property and aggravated battery. The charges were severed and Mulryan was acquitted on the aggravated battery charge. Trial on the charge of possession of stolen property was set for July 8, 1977. Three days prior to trial, viz: On July 5,1977, the State filed an amended information (without motion or order of court) charging Mulryan in Count I with burglary and in Count II with grand larceny. The amended information was filed 168 days after Mulryan had been taken into custody and 12 days before expiration of the “speedy trial period” which would have expired on July 17, 1977. Defense counsel moved for a continuance chargeable to the State on the basis that the new charges contained entirely different elements which required different proof, urging that additional depositions would have to be taken in order to prepare for a defense on the new charges. The trial judge granted the motion for continuance but ordered that the continuance tolled the speedy trial period. The defense did not request a continuance for any particular period of time and apparently there was no effort on the part of the trial court to reschedule the trial prior to July 17, 1977, the date of the expiration of the speedy trial period, as aforesaid.

After the expiration of 180 days following Mulryan's arrest, the Petition for Writ of Prohibition was filed in this Court.

There is no question but that the amendment to the information changing the offense charged from possession of stolen property to burglary and grand larceny was a material change. Indeed, the record reveals that the trial court observed “We have changed the name of the ball game here. You have gone from baseball to football based upon the charges you’ve got.”

This subject, in varying contexts, has received extensive treatment by the appellate courts. Somewhat analogous is Allen v. State, 275 So.2d 238 (Fla.1973), wherein the defendant was arrested on June 1, 1971, but was not indicted by the Grand Jury until November 3, 1971, 166 days after his arrest. Trial date was set for December 2, 1971, which was beyond the expiration of 180 days from the date of the defendant’s arrest. In discharging Allen, the Supreme Court of Florida held that the defendant was not responsible for the delay.

In State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla.1st DCA 1975), this Court held that where the State failed for 142 days to return either an indictment or information, the defendant was presented with a Hobson’s choice, viz: to either seek a continuance in order to adequately prepare for trial or to go to trial without preparation within the 180 day speedy trial period. We concluded that a defendant could not be forced to make such a choice at his peril and our Writ of Prohibition was made absolute.

We also held in Bryant v. Blount, 261 So.2d 847 (Fla.1st DCA 1972), that the State is prohibited from extending the times designated in the rule within which a person accused of a crime must be tried by the mere expedient of preferring new or different charges based upon the same conduct.

Our Rule Nisi is hereby made absolute. Petitioner, Paul Mulryan, shall be forthwith discharged from prosecution or incarceration under or on account of the amended information hereinabove mentioned.

IT IS SO ORDERED.

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

ON PETITION FOR REHEARING

BOYER, Judge.

By petition for rehearing the respondent urges that we have overlooked or failed to consider, or are in conflict with, Sumbry v. State, 310 So.2d 445 (Fla. 2nd DCA 1975). We have accordingly again carefully considered the holding of that case and conclude that our decision here does not directly collide therewith. We are yet of the view that our decision in this case is controlled by a literal reading of Fla.R.Crim.P. 3.171 as construed by the prior opinions of this court and the Supreme Court of Florida cited in our foregoing opinion. The petition for rehearing is therefore denied.

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    H. T. MANGURIAN, Jr., Appellant, v. David REID et al., Appellees.
    No. 77-751.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1977.
    Rehearing Denied Oct. 19, 1977.

      Gerry L. Dondanville, of Spear, Deuschle & Curran, P. A., Fort Lauderdale, for appellant.
    L. M. “Luke” Taylor, North Palm Beach, for appellee-David Reid.
    H. Michael Easley, of Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee-Allen C. Clark.
   PER CURIAM.

AFFIRMED.

ALDERMAN, C. J., and DAUKSCH, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

While the appellant-taxpayer’s action challenging the 1975 appraised valuation of his property by the appellee-property appraiser was pending, the appellant sought leave to amend so as to also challenge the 1976 appraisal. Leave to amend was denied. At the time the action was not even at issue. I can see no reason why the same parties should not be able to litigate the 1975 and 1976 valuation in the same lawsuit when the initial action is not even at issue and no prejudice would accrue to the appel-lee. With the case in the posture it was in a second lawsuit would probably have been consolidated with the first anyway. I would reverse the trial court’s order denying leave to amend.