author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    James Orlando PREYER v. STATE.
    6 Div. 474 & 6 Div. 480.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.

      Samuel Johnston, Carol Millican, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for State.
   DeCARLO, Judge.

These are two appeals by an indigent from convictions by a Jefferson County, Alabama, jury. 6 Div. 474, is a case in which appellant was found guilty of violating the Alabama Controlled Substances Act. In 6 Div. 480, a second jury in a separate trial found the appellant guilty of forgery, and sentenced him to five years imprisonment.

The facts involved in the two prosecutions arise from the same transaction, and-we have granted the appellant’s request that these two appeals be considered together.

In order to maintain an orderly sequence in the recitation of the facts involved we will begin with the prosecution for forgery. The facts presented by the State at trial are as follows:

John L. Stewart, an employee of Alabama Power Company, was a timekeeper and materialman assigned to construction site No. 36 in Jefferson County, Alabama. Among his duties was the preparation of payroll checks. During the trial he testified that, upon returning to work on December 29, 1975, he discovered various items missing from the construction office, including a check book belonging to Alabama Power Company. He identified five checks introduced in evidence which, he said, were among those taken from the office. The missing checks were numbered from about 2632 to 2904.

Mr. Stewart testified that the missing checks were blank Alabama Power Company checks, and that he had not given anyone authority to sign his name to the checks. He also stated that the checks which he identified in court were blank at the time they were taken from the construction office, and that he had not signed them.

Birmingham Police Officer James L. Ste-gall, testified that, on September 20, 1976, he and some other officers were conducting a surveillance of a residence located at 6514 6th Avenue, South, in Birmingham. Ste-gall testified that, on that date, he saw a red and white Buick Riviera in front of the residence and that he observed a person, later identified as the appellant, get into the car. The car later returned to the same address and the appellant re-entered the house only to leave a second time.

This time, Officer Stegall followed the appellant and the driver of the automobile to a grocery store, “at the 1300 block of 6th Avenue, South.” Stegall stated that he observed the defendant and the driver enter the grocery and followed them into the store. The officer positioned himself directly behind the appellant and testified that he saw the appellant hand the cashier an Alabama Power Company check, along with some identification.

The police officer stated that, at that time, he recognized the check as one of the stolen checks. According to Stegall, the check bore the name of one “Isaac Core.” After the appellant presented the check, Stegall testified that he arrested and searched him. In the appellant’s socks were four Alabama Power Company checks.

Stegall stated that these checks were shown to Mr. Thomas D. Baker of the Alabama Power Company security office, who was brought to the store by other police officers. Stegall testified that the check which appellant had presented to the cashier and those found in his socks were turned over to Sgt. Maddux of the Birmingham Police Department.

Thomas David Baker, the assistant supervisor of security for Alabama Power Company, had prepared a record pertaining to the burglary of the construction site in December of 1975. Baker testified that some 271 Alabama Power Company checks had been taken, bearing the numbers in sequence from 2633 through 2904.

Baker stated that, on September 20,1976, he had occasion to accompany some officers of the Birmingham Police Department to a residence located on 6th Avenue, South. He testified that he and Sgt. Trimm of the Birmingham Police Department observed a Buick Riviera in front of the residence, and that the appellant was a passenger in the car.

According to Baker, he and the police officers followed the car to a grocery on 6th Avenue, South. Baker stated that he observed Officers Stegall and Norris enter the store and that he also went into the store.

There the officers showed him an Alabama Power Company check, No. 2846, which he identified as one of the checks stolen from the construction site office. He also identified four other checks which he stated were among those taken during the burglary on December 29, 1975.

Detective Sgt. John Maddux testified that he instructed Officers Norris, Stegall, and Trimm to assist him in the surveillance of a residence at 6514 6th Avenue, South.

Maddux stated that, during the surveillance, he observed the appellant get into a late model Buick outside the residence, and that the occupants of the car later went to a grocery store on 6th Avenue, South. He also testified that he received some checks and other articles of identification from Officer Stegall at the grocery, which were taken during the appellant’s arrest and the search of the car in which he had been riding.

Theresa Bailey, a cashier at the grocery on September 20, 1976, identified appellant as the man who presented the Alabama Power Company check to be cashed. She stated that the appellant also showed her an identification card, and she turned this item over to Officer Stegall, along with the check.

At the conclusion of Bailey’s testimony, the State rested its case and the defense made a motion to exclude the evidence on the grounds that the State had failed to make out a prima facie case. The motion was overruled and the defense presented its evidence.

Sgt. Maddux was re-called and testified that there were two individuals in the Buick, the appellant and George Acey, the driver, and that the car was registered to Acey. Further, Maddux testified that Acey had stated “that he did not know anything about Mr. Preyer’s activities and he was merely a person who was going to give him [appellant] a ride to that scene.”

The appellant testified that, on September 20, 1976, he lived at 6514 6th Avenue, South, and that, on that date, he had gone to the grocery on 6th Avenue and 13th Street with George Acey.

He stated that, when they arrived, Acey had told him to get a check okayed. Preyer stated that, before the cashier could actually cash the check, the officer was standing directly behind him and placed him under arrest.

Preyer denied that any stolen checks had been found in his socks and stated that he “wasn’t even wearing any socks that day.” Further, in his statement to police appellant said that George Acey had given him the check and that he had received it immediately prior to his arrest.

Sgt. Donald Trimm testified that he examined the automobile in which appellant had been riding and found an envelope containing “some identification in it and some checks and other types of identification.” Trimm stated that he turned these items over to Police Sgt. Maddux, who testified that the envelope contained Alabama Power Company checks made out to Israel Core, a driver’s license, and other identification belonging to James Orlando Preyer, the appellant.

The events inside the grocery, together with the envelope containing the stolen checks recovered from the car in which appellant had been riding, were the basis for a search warrant issued the following day, directing a search of appellant’s residence.

Following the appellant’s arrest, and a search of the automobile in the parking lot, the surveillance of appellant’s residence was resumed and a search warrant was obtained the following morning based on information received from an informant as well as the items found in the search of the vehicle. The facts given in the following affidavit in support of the search warrant are substantiated in the testimony recorded in the transcript of evidence. The affidavit reads, in pertinent part, as follows:

“In December, 1975, over 200 checks were stolen in a burglary at an Alabama Power Company construction site.
“On September 20, 1976 Sgt. John M. Maddox of the Birmingham Police Department received information from an informant that James Preyer of 6514-6th Ave. S. in Birmingham, had in his possession and secreted about 6514-6th Ave. S. a large number of checks stolen from Alabama Power Company in December; 1975.
“This informant further stated that James Preyer was in the process of attempting to cash these checks and that if Preyer was followed by the police officers they would see him cashing these checks. A surveillance was begun on September 20, 1976 at 6514-6th Ave. South at 5:15 P.M. Preyer was observed leaving 6514-6th Ave. S. and entering a Buick Riviera driven by a Black Male later identified as George Acey. This vehicle was followed to Bruno’s grocery store at 12th Street and 6th Avenue South where Preyer was observed entering Bruno’s Supermarket Store # 11 and approached the Cashier where he was observed presenting a check payable to the order of Isreal Core. The Check # 2 as 2846. He was arrested and placed in custody. A search of Prey-er incident to this arrest at the scene revealed Four (4) more stolen checks in his possession and altered drivers license belonging or issued to Isreal Core.
“[A] search of the Buick vehicle parked at Bruno’s that Preyer and Acey arrived in, revealed a white envelope with Physicians Mutual Insurance Company on the outside of the envelope. Inside were three (3) stolen Alabama Power Company checks and a plastic picture holder which contained Preyer’s drivers license, Social Security card, Armed Forces DD-214, and other miscellaneous papers and pictures with Preyer’s name on them. These items of identification all listed his home address 6514-6th Ave; S.
“Based on the above information from the informant and the corroborating actions of Preyer and observations of Police Officers that led to the arrest of Preyer, I have probable cause to believe and do believe that a large number of stolen Alabama Power checks are located at 6514-6th Avenue South. . . . ”

After the search warrant was issued, Sgts. Maddux and Trimm and a representative of the Alabama Power Company (Mr. Baker) approached the house. After determining that no one was inside, they entered the house by means of a key taken from the appellant at his arrest and conducted the search.

The return to the search warrant indicates that, among others, the following items were taken during the search:

“Sack of various pills, 1 bottle of pills, 17 Alabama Power Company Checks [and] Assorted Pills and Paraphernalia. . . ”

During the search, two folds of tin-foil containing a “grassy substance” were also recovered. These items were taken by Sgt. Maddux, inventoried at the police department, and were turned over to the State Toxicologist.

The items listed above are the basis of the prosecution in 6 Div. 474, involving the possession of illegal drugs contrary to the Alabama Uniform Controlled Substances Act.

Several people entered the appellant’s residence while the search was being conducted, including Ambrose Dancy and the appellant’s mother, both of whom testified at trial for the appellant. Upon entering the house, Dancy identified himself as the appellant’s brother. At trial, Dancy stated that he had visited appellant’s home almost daily and had often come to parties during the weekend. He stated that marijuana was smoked at the parties but that he had never seen any pills during his visits. He also said that the confiscated pills were not his and that he had never seen them in appellant’s residence, nor did he see anyone bring them there.

The appellant’s mother testified that she frequently visited her son at the address given in the warrant and that it was a “family home.” She stated that she often encountered friends of the appellant at the house when he was not there. On some of those occasions, George Acey had been present in her son’s absence.

During cross-examination, Mrs. Preyer stated that she did not tell the officers searching the house that her son lived in the house alone and testified that, on September 20, 1976, she resided at 6514 6th Avenue, South.

The State toxicologist testified that some of the pills found at appellant’s residence were phenobarbital but that others were not controlled substances. He identified the “grassy substance” found during the search as marijuana and some of the other items confiscated as “paraphernalia.” He estimated that there were some 0.835 grams of marijuana confiscated, as well as 447 tablets of phenobarbital.

The appellant testified in his own behalf and stated that he lived at 6514 6th Avenue, South and had lived there all of his life. He denied having any knowledge of the phenobarbital or of the marijuana found in his home.

I

The appellant contends that the evidence against him was obtained as a result of the warrantless arrest at the store, which was conducted without any showing of probable cause and that such evidence was inadmissible.

It is well established in Alabama that a police officer may arrest any person without a warrant for a public offense committed in his presence. Hutto v. State, 53 Ala.App. 685, 304 So.2d 29; Cassell v. State, 55 Ala.App. 502, 317 So.2d 348; Weeks v. State, 49 Ala.App. 618, 274 So.2d 646. It is not necessary that the police officer have before him evidence which would support a conviction, but he must have knowledge of facts and circumstances which are reasonably trustworthy and which would lead a prudent man to believe that the suspect had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Braxton v. State, Ala.Cr.App., 350 So.2d 753. Further, we are mindful of the United States Supreme Court’s observation in Brinegar v. U.S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, in which the Supreme Court reasoned:

“The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these 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.”

In the instant case, a police officer observed the defendant hand the cashier the Alabama Power Company check. At the time, the officer was standing immediately behind the defendant and was certainly in a position to identify the check as an Alabama Power Company check.

From the record, the officer testified, as follows:

“A. I observed the defendant handing the cashier a check and some identification.
“Q. Were you close enough to see the check and the identification?
“A. Not the identification, just the check.
“Q. Where were you in relation to the defendant when he handed the cashier the check and the identification?
“A. Approximately two or three inches, looking over his shoulder.”

Prior to appellant’s arrest, the officer had information from his superior, whereby he was instructed to “set up a surveillance on [appellant’s] house and to follow anyone in a Buick Riviera that came out of that house.”

The officer also acknowledged that a representative from the Alabama Power Company, Mr. Thomas Baker, was present at the time of appellant’s arrest.

Testimony from Mr. Baker indicated that, on September 20, 1976, he had a telephone conversation with the arresting officer’s superior regarding this matter, and that he had participated in the surveillance of the appellant’s residence, and was present at his arrest.

Mr. Baker also testified that he observed the appellant go into the food store and that he, too, went into the grocery and observed the police officers with the appellant. During questioning, Mr. Baker was asked:

“Q. Did you approach the two police officers and this defendant at that time?
“A. Yes, sir.
“Q. Were you shown anything by anyone at that time?
“A. Yes, sir.
“Q. What, if anything were you shown, please sir?
“A. I was shown a check an Alabama Power Company Construction check and I believe it was numbered 2846, I believe that was the one that was shown to me and I was asked to identify that check as being one that was stolen.”

Based on the foregoing, it is our judgment that the arresting officer, without question, was aware that a number of Alabama Power Company checks had been stolen at the time he observed the appellant with the check in question. It is reasonable to conclude that, after being directed to conduct the surveillance of the appellant’s residence in the company of an employee of the Alabama Power Company, the officer would have knowledge that the object of the surveillance was to locate the stolen checks. The fact that the appellant presented an Alabama Power Company check to be cashed would have led any prudent person to believe, under the foregoing circumstances, that the check was one of the checks stolen from the Alabama Power Company.

Therefore, applying the reasonableness test of Beck v. Ohio, supra, we believe that the police officer had probable cause to make the arrest in the instant case, and that the items obtained as a result of the search of appellant’s person and the car he had ridden in were admissible in evidence.

II

The appellant insists that the trial court committed reversible error in allowing the State to introduce into evidence the checks found on his person and those found in the automobile in which he had been riding.

In a prosecution for forgery, the admission into evidence of other forged checks is proper to show intent to defraud. Christison v. State, 41 Ala.App. 192, 142 So.2d 666. See also McDonald v. State, 83 Ala. 46, 3 So. 305; Hall v. State, 21 Ala.App. 476, 109 So. 847.

From the record, we find that the checks found on the appellant’s person and presented in evidence were Alabama Power Company checks made to the order of Israel Core. The three checks found in the car searched by police officers outside the store were made to the order of Israel Core and Jetson Scarbrough, Jr. The arresting officer also testified that, at the time of his arrest, the appellant stated that his name was James Orlando Preyer.

Under the foregoing circumstances, the checks found on the appellant’s person and in the ear were admissible to show appellant’s intent to defraud. Christison v. State, supra. Further, the checks had a tendency to enlighten the jury as to the culpability of the appellant and were relevant and properly admitted. Barnes v. State, 31 Ala.App. 187, 14 So.2d 242; Waters v. State, Ala.Cr.App., 357 So.2d 368.

Ill

The appellant claims that the search warrant authorizing the search of his home, during which drugs were found, was based on information gained during an illegal warrantless search of the automobile in which he had been a passenger at the store’s parking lot. He insists that the search of the automobile was in violation of his Fourth Amendment rights and that the search warrant, which was based on the fruits of the automobile search, was therefore invalid.

Searches of parked automobiles generally contemporaneous in time with the arrest and in the general vicinity of the point of arrest have been upheld as incident to the arrest involved. U. S. v. Pollard, 10th Cir., 466 F.2d 1; Carlton v. Estelle, 5th Cir., 480 F.2d 759; United States v. Frazier, 8th Cir., 545 F.2d 71.

The search of an automobile was proper and determined to be essentially contemporaneous and incident to arrest where the owner of an automobile and another were arrested on a charge of shoplifting a short distance from the automobile. People v. Cox, 269 Cal.App.2d 579, 75 Cal.Rptr. 147. Where the search of an automobile in front of an apartment was conducted some minutes after an arrest, the search was deemed proper as being generally contemporaneous with the arrest and incident thereto. People v. Green, 235 Cal.App.2d 506, 45 Cal.Rptr. 371.

Where the accused ran from the scene after his car had collided with a police car, the search of the car at the place of abandonment and after it had been towed in was held to be proper. Whitlock v. State, 124 Ga.App. 599, 185 S.E.2d 90. The search of a vehicle was held valid where a rape and kidnap suspect was arrested some ninety yards from a vehicle which police knew had been used to kidnap the victim. Moore v. State, 23 Md.App. 540, 329 A.2d 48.

The search of a parked car a few blocks from a store allegedly robbed was held proper when the search was made for the fruits of crime or evidence relating to crime and the police had valid custody at the time of the search and had made a valid arrest. Mathis v. People, 167 Colo. 504, 448 P.2d 633. The search of an unattended automobile a half mile from the scene of arrest was reasonable where the defendant was seen moving toward the car’s location, the car showed signs of recent use, and it was illegally parked. Hunter v. State, 127 Ga. App. 664, 194 S.E.2d 680.

In Alabama, the search of an automobile in which the defendant had been riding, incident to a lawful arrest, was legal, even though no search warrant had been issued, and the evidence found therein was admissible. Thompson v. State, 47 Ala.App. 28, 249 So.2d 644.

In addition, the search without a warrant of an automobile in which the defendant and a companion were arrested was allowed, even though it occurred at the police station after the car had been towed from the scene of arrest. The search was declared to be reasonable and inventorial in nature, and not in violation of the defendant’s rights. Jackson v. State, 55 Ala.App. 334, 315 So.2d 131.

Finally, the search of an automobile on the road and away from the scene, where the occupants were arrested for possession of a still, has been held proper, where, in the course of the search, the agent took the keys and unlocked the trunk, disclosing evidence. Devaney v. State, 55 Ala.App. 408, 316 So.2d 239.

The fundamental reason for allowing greater latitude in the search of an automobile, as opposed to a residence, an office, or a fixed piece of property, is the mobility of the car. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

In determining Fourth Amendment violations, the Supreme Court of the United States has traditionally drawn a distinction between automobiles and homes or offices. Although automobiles come within the reach of the Fourth Amendment, warrant-less examinations have been upheld in circumstances where searches of homes or offices would not have been. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000. A person has a lesser expectation of privacy in a motor vehicle due to the fact that it functions as transportation and seldom serves as one’s residence or as a depository of his personal effects. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325.

The wisdom of this view can readily be seen from the facts in the case before us. Here the police, immediately upon the arrest of the appellant, searched him and found four Alabama Power Company checks on his person. The police officers had learned from Alabama Power Company authorities that approximately 250 checks had been taken in a burglary, and presumably believed that the vehicle in which they had seen the appellant would also contain stolen checks. Under these circumstances, it was natural for the officers to turn to the vehicle in which the appellant had been seen before he was arrested in search of other stolen Alabama Power Company checks.

As this court has stated on a number of occasions, probable cause, as the term implies, deals with probabilities. It is not technical, it is the factual and practical consideration of everyday life upon which reasonable and prudent men, and not legal technicians, act. See Brinegar v. United States, supra.

As this court stated in Wright v. State, Ala.Cr.App., 343 So.2d 795:

“[Pjrobable cause exists where ‘the facts and circumstances within their [the officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. ‘The substance of all definitions [of probable cause] is a reasonable ground for belief of guilt.’ ” [Citations omitted].

The facts before the officers in the present case were not based on “bare suspicion.” See Brinegar v. United States, supra. Under the circumstances, it was certainly reasonable for the officers to conclude that more incriminating evidence would be found in the car in which appellant had ridden. A search of the vehicle was not in violation of the Fourth Amendment and was conducted under circumstances demonstrating probable cause.

Therefore, based upon the foregoing, it is our judgment that the trial court was not in error in denying the motion to suppress the evidence, and, under the circumstances surrounding the search, the evidence found in the car was admissible.

We distinguish Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 in that the accused in Preston was arrested for vagrancy and the car was impounded and taken to the police station because the officers did not wish to leave the car on a public street. It was not suggested that they did this for the accused’s convenience nor that they had any right to impound the car or keep it from the accused or anyone he sent for it. In fact, the impoundment of the accused’s vehicle by the police was totally unrelated to the vagrancy charge for which he was arrested, as was the subsequent search.

In the present case, the vehicle was not moved by the police, and, after arresting the appellant for forgery of a check, which was among some 200 checks stolen, they had reason to believe that other checks would be found in the car. It is clear that the search was related to the offense for which the appellant had been arrested, and it cannot be reasonably maintained that the search was in any fashion remote.

The facts in this case clearly demonstrate that the search occurred within minutes of the arrest. In our judgment, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 can be distinguished for the fundamental reason that, in the present ease, we are concerned with the search of an automobile, whereas in Chimel the arrest and search occurred in a residence.

In regard to the search of appellant’s residence, the affidavit in support of the search warrant demonstrates sufficient probable cause for the issuance of the search warrant. It also shows that, although the officers had information of appellant’s involvement in crime from an informant, that information was acted upon only for the purpose of corroborating the facts given to them by the informant. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

IV

It is now insisted that the State failed to establish constructive possession of the narcotics by the appellant because it failed to “produce evidence which would enable a jury to conclude beyond a reasonable doub't that the accused knew” of the presence of the narcotics in his house.

Whether the appellant knew of the presence of narcotics in his home is a question for the jury. Henderson v. State, Ala. Cr.App., 347 So.2d 540.

In the present case, Sgt. Maddux had been told that the appellant lived at 6514 6th Ave. South and, during the surveillance, saw him leave the house on two occasions.

After the appellant’s arrest in the store, an Alabama drivers license, an Alabama fishing license and two personal identification cards were found in the automobile in which he had arrived, all of which listed the address of the house searched. In addition, among the keys found on the appellant’s person, one fit the door of the house at 6514 6th Avenue, South. It was this key that the officers used when entering the house. Further, the officers were told by the appellant’s mother that her son lived alone in the house.

Although we have testimony from appellant’s mother that the house at 6514 6th Avenue, South was also her residence and that others were in and out of the house and were there in her son’s absence, testimony from Ambrose Dancy indicated that he had attended numerous parties at appellant’s residence at which marijuana was smoked. These were factors for the jury’s consideration.

Based on the foregoing, we believe that the jury was presented with sufficient evidence from which to determine the accused’s knowledge of the presence of drugs at his residence and to determine the issue of his guilt. Henderson v. State, supra; Funches v. State, 53 Ala.App. 330, 299 So.2d 771; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747.

Therefore, we hold that the rulings by the trial court denying appellant’s motion to exclude the evidence obtained during the searches in question and his subsequent motions for new trials in each prosecution were proper. Waldrup v. State, 52 Ala. App. 292, 291 So.2d 383.

We have read and examined the records and transcripts of evidence in both convictions before us and have not found any error prejudicial to this appellant. Therefore, the judgment of conviction by the Jefferson Circuit Court in each of these cases is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON, J., concur.

BOOKOUT and BOWEN, JJ., concur specially.

BOOKOUT, Judge,

concurring specially:

I concur in the result, but would not go on record as in Part III of the opinion, supra, in upholding the warrantless searches of automobiles as incident to the arrest elsewhere of the owner or a passenger. The search of the automobile in question could not be challenged by the appellant simply because he, as a passenger, had no standing to raise the Fourth Amendment. It has been often stated that the Fourth Amendment protects persons, not places. The automobile searched in the instant case belonged to Acey and not the appellant and, therefore, appellant lacked the standing to challenge the search. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Lewis v. State, Ala.Cr.App., 335 So.2d 426 (1975), cert. denied, Ala., 335 So.2d 429; Cassady v. United States, 410 F.2d 379 (5th Cir., 1969).

BOWEN, J., joins in the above.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Richard WILLIAMS, alias v. STATE.
    6 Div. 876.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.

      Darryl C. Hardin, Tuscaloosa, Attorney of record, did not file brief.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Appellant was convicted of robbery and assault with intent to murder and sentenced to 125 years imprisonment under an indictment consisting of three counts. The case was submitted to the jury on the robbery and the assault with intent to murder charges, both of which grew out of the same transaction. This was the second trial which resulted from the events surrounding the robbery of Warehouse Groceries in Tuscaloosa, Alabama, on February 16, 1977. See Williams v. State, Ala.Cr.App., 359 So.2d 1184, and Mosley v. State, Ala.Cr. App., 357 So.2d 390.

Briefly, the pertinent facts are that, on the above date, Glenda Blaich and her family went to Warehouse Groceries in Tuscaloosa, Alabama. After her husband and son entered the grocery store, she heard a noise that “sounded like firecrackers,” which called her attention to the store. She noticed two men moving about the manager’s office in the store.

About the same time, a young man, Jack Alexander, approached the store. Mrs. Blaich stopped him and informed him of what was taking place in the store. At that time, Alexander walked to Mrs. Blaich’s car and hid himself behind the door. Subsequently, the appellant and two of his companions came to the car, and the appellant placed a gun at Alexander’s head and took his wallet.

Almost immediately after the appellant and his companions turned away, Alexander heard a shot which pierced the windshield of the car. He testified that after the shot, he saw the glass from the windshield dispersed over Mrs. Blaich’s hair. Mrs. Blaich stated that, after she heard the shot, she felt the “wind” caused by the shot, pass over her back.

Mrs. Blaich and Mr. Alexander each made a positive identification of the appellant as the person who robbed them and fired the shot in Mrs. Blaich’s direction.

Officer Fondren of the Tuscaloosa Police Department was off duty with another officer in the vicinity of the store and, according to Fondren, he heard a shot in the direction of the grocery. When he arrived at the entrance of the grocery store parking area, he noticed a care leaving the parking lot at a high rate of speed. Fondren testified that he blocked the car’s exit, and it went into a ditch and stopped.

The appellant, who was driving the car, was arrested and, in the car, the police officers found an assortment of weapons loaded with “armor-piercing” ammunition. They also found a wallet in a paper sack, which contained an ID card belonging to Jack Alexander.

At trial, the appellant did not make a motion to exclude the State’s evidence or for a new trial. On his conviction in this prosecution, the defendant gave oral notice of appeal. This appeal is submitted on brief of appellee and on the merits.

From a close reading of the record, the issues presented for review appear as follows: (1) whether appellant’s plea of autre-fois convict, filed prior to trial, was properly struck by the trial court, and (2) whether comments by the prosecuting attorney, to the effect that appellant’s co-defendant had been convicted, which were objected to by defense counsel, were prejudicial to appellant and constituted grounds for a mistrial.

I

Christian v. State, 21 Ala.App. 324, 108 So. 86 states:

“In order to sustain a plea of former jeopardy ... it must appear with certainty that the offense for which the defendant was first tried was identical, to a common intent, with the charge in the second indictment . . . and it would appear essential that the record of the first indictment or charge should be set out in full.”

Regarding the appellant’s plea of former jeopardy we have examined the indictment in Williams v. State, Ala.Cr.App., 359 So.2d 1184, and found the following: It was a five-count indictment charging robbery, assault with intent to murder Bank Sims, assaulting a law enforcement officer with a weapon, robbery of Randall Russell and assault with intent to murder Randall Russell.

All of the offenses were separate and distinct from those under consideration in the instant appeal. Although these offenses had the same origin as those in present appeal. The facts in the ease at bar were not precisely the same.

The basis for appellant’s plea was that testimony concerning the offenses charged in this prosecution had been given in the previous trial. The trial judge, who was also the judge at the prior trial, recalled that this was true, but that the testimony was allowed in as part of the res gestae. This contention has been fully met and treated in previous opinions by this court, and the admission of such evidence for this purpose is entirely proper. See Mason and Franklin v. State, 42 Ala. 532; Gardner v. State, 17 Ala.App. 589, 87 So. 885, and authorities cited therein.

Given the above facts, we find that the trial court was correct in granting the State’s motion to dismiss appellant’s plea.

II

Defense counsel made a motion for a mistrial in response to the prosecuting attorney’s question on re-direct examination, as follows:

“Q. And did you testify in the occasion that Darrell Hardin [defense counsel] talked about in which Charles Mosley [a co-defendant] was convicted by a jury and rendered a sentence, was he not? “MR. HARDIN: Your Honor, we object to that.
“THE COURT: I’ll sustain. The jury disregard that.
“Q. And where — what did you testify that you found that gun—
“MR. HARDIN: Your Honor, we object.
“THE COURT: I’ll sustain.
“MR. HARDIN: Your Honor, I’d like to make a further motion for a motion [sic] on a mistrial based on Mr. Jaffe’s comments.” [Emphasis added.]

Immediately after defense counsel’s motion, the court questioned the jury to determine whether there was:

“[A]ny one of the twelve of you [who] feels that that comment would prevent you from rendering-a fair and impartial verdict, if so, I’d like for you to speak out now. Then, by your silence, I assume that each one of you can be bound by the law as the court charges you in the case and bound by the evidence as you determine it to be from the witnesses and exhibits presented in this case, is that correct?”

The motion for mistrial was then overruled.

From the above portion of the record, it is clear that the trial judge was careful to determine the effect of the prosecuting attorney’s comments on the jury and to insure their impartiality in spite of the remarks. In view of this careful evaluation by the court of the effect on the jury of the comments objected to, and the lack of any indication from the jury that the comments would prevent them from reaching an impartial verdict, we are compelled to uphold the ruling of the trial court. Johnson v. State, Ala.Cr.App., 335 So.2d 678; Hipp v. State, 47 Ala.App. 580, 258 So.2d 920.

Likewise, during the prosecuting attorney’s closing arguments, defense counsel objected to certain comments and references which, he stated, were outside of the testimony in the case and which were arguments “about facts in another case.” As above, several of defense counsel’s objections were sustained and the trial judge included a cautionary instruction regarding any statements made in closing arguments, in his oral charge to the jury, as follows:

“The arguments of the attorneys are not evidence, and is not to be considered by you as evidence, as well as the rulings of the Court are not evidence.”

Considering the above facts, we feel that the appellant’s right to a fair and impartial trial was adequately safeguarded' by the trial court.

Ill

Under the facts in this case as well as the elements of the offense of assault with intent to murder outlined in Lawhon v. State, 41 Ala.App. 577,141 So.2d 205, we find that the question of appellant’s guilt was properly submitted to the jury.

Testimony by Jack Alexander indicated that the appellant fired the shot at Mrs. Blaich when she raised her head to look out. Alexander stated that he saw the glass break after the shot and saw the pieces scatter over Mrs. Blaich’s head.

Mrs. Blaich testified that she heard a shot from the front of the car, and that the bullet struck the hood, went through the windshield, hit the dash and entered the corner of the back seat. According to Mrs. Blaich, she felt the bullet when “it went across my back.”

Under these facts, we believe that the question of appellant’s guilt was properly submitted to the jury on the charge of assault with intent to murder, and that the evidence was more than sufficient to support the jury’s verdict in its finding of guilt.

The robbery charge refers to the occasion during which Mr. Alexander’s wallet was taken by the appellant. We find that under the facts of this case and the elements of robbery outlined in Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716, and Jordan v. State, 51 Ala.App. 198, 283 So.2d 648, the evidence presented at trial was sufficient to present a question of appellant’s guilt to the jury and to support their finding of guilt.

At the close of testimony, the court charged the jury extensively regarding the law of the offenses charged. Upon completion of the court’s instructions, the defense announced that it had no objections and did not request any written charges. At that time, the ease was submitted to the jury on the court’s oral charge and the evidence.

On its return, the jury announced its verdict declaring the defendant guilty and the sentence of 125 years. The jury was then polled, and each member stated that this was his verdict.

We have searched the record and have found no error prejudicial to the appellant. It is therefore, our opinion that the judgment of conviction of the Tuscaloosa Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Bobby Joe HULSEY v. STATE.
    8 Div. 184.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.

      C. B. Caine, Jr., Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

By one count of an indictment defendant-appellant was charged with grand larceny and in another count with buying, receiving, concealing or aiding in concealing personal property, described in each count as “one (1) John Deere four (4) row planter, of the value of Twenty-five ($25.00) Dollars or more,” the property of “Carson Implement Company, Inc., a corporation.” A jury found him guilty as charged in the indictment, and the court sentenced him to imprisonment for five years.

About a month before his conviction, defendant had been tried on the same indictment, but the jury was unable to reach a verdict thereon, and a mistrial was declared and the case was ordered to be placed on the active trial docket.

We find it necessary to reverse the judgment by reason of the admission in evidence, over the objection of the defendant, of the testimony in the first trial of an important witness for the State. The basis for the admission is shown by a colloquy in the record among counsel for the respective parties and the court, partly as follows:

“THE COURT: Call your next witness.
“MR. LITTRELL: Judge, our next witness would be Jackie Burch. He is at the present time in Auburn in School. I spoke with him last night, but he has a Chemistry Exam today and he said that it was not possible for him to attend Court today. Of course by the time I talked with him the Jury had already been struck and put in the box. I explained that matter to him and he said that he had talked with his professor, and his professor told him that there was no way — that there were 250 people taking the exam and that there was no way that they could work around it, so he just said that it was impossible for him to be here, and I told him — so I had his testimony from the last trial, at which was finally declared a mistrial transcribed by ■ Mr. Eaves, the Court Reporter, and certified by him.
* * * * * *
“THE COURT: Well, I think Under the circumstances, since Mr. Burch is unavailable, and that he is at some distance and that the State has made a bona fide and good faith effort to get him here, that this testimony that he gave in the trial before is pertinent and proper I am going to allow the State to read his testimony into the record in this case, and Ladies and Gentlemen you will consider it as though Mr. Burch is here and is giving his testimony.
sf: * * * * * ■
“THE COURT: This evidence is perfectly permissible and legal in any court within the State of Alabama or the United States. All right, proceed.
“MR. CAINE: We except.”

To the contention of appellant that the above action constitutes reversible error, appellee responds by referring to the evidence admitted as “the deposition of a non-party witness” and cites Dunahoo v. Brooks, 272 Ala. 87, 128 So.2d 485 (1961); State v. Long, Ala., 344 So.2d 754 (1977); Ala. Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); and Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837 (1950).

The first three cases cited by appellee were civil cases. In the first of the cases cited, the deposition of an adverse party was involved. In each of the next two cases cited, in admitting the pre-trial deposition of a witness who was over one hundred miles from the place of trial, the court was relying upon Ala.Rules of Civil Procedure 32(a)(3)(B), which expressly permits the reception in evidence of the deposition if the witness is at a greater distance than one hundred miles from the place of trial, unless the absence of the witness was procured by the party offering the deposition. Nothing further needs to be said as to the inappositeness of the first three authorities cited by appellee, other than to comment that appellee would be, and the trial court in its ruling would have been, clearly correct if the cases being tried had been a civil case and the testimony offered had been a pre-trial deposition.

Wyatt v. State, supra, does not support appellee’s position. It indicates, if it does not hold, that the basis for admitting the former testimony of the witness in this case was insufficient. At 46 So.2d 843, it is stated:

“The testimony of a witness at a former trial is admissible in a second trial when at the time the witness is dead, under disability, is permanently absent from the state, or becomes unavailable by reason of claim of privilege at the second trial. Mims v. Sturdevant, 36 Ala. 636; Jeffries v. Castleman, 75 Ala. 262; McCoy v. State, 221 Ala. 466, 129 So. 21.

There are a few bases for admitting the testimony of a witness at a former trial other than those stated above in Wyatt, but none of them expressly or impliedly includes the reason given in this case for the non-production of the witness. A comprehensive consideration of the matter and a collection of the pertinent authorities are found in Gamble, McElroy’s Alabama Evidence, § 245.07(8)(1977).

Although the above conclusion is sufficient to require a reversal, we should also note that a serious question was presented on the trial as to whether there was a fatal variance between the evidence as to the property stolen and the description of the property in the indictment. There is ample evidence to show that parts of a “John Deere four (4) row planter” were stolen. The reference in the indictment and in the evidence was to a modern planting machine equipped to plant seed of various kinds four rows at a time, powered by a tractor to which the machine may be hitched. The planting machine had not been assembled as an operating unit. A part of the testimony of the only witness who described the property stolen was as follows:

“Q. In what form was this planter?
“A. It was broken down.
“Q. Was it in boxes or what?
“A. Yes, sir, part of it was in boxes and part of it was just open.
“Q. All right, now, — all right. Now, as far as what was taken from the parts that make up a four row planter, would you restate those, please, and just list them all?
“A. Well, about the only way I can list them is, it was three rows of a four row planter.
“Q. All right. Now, underneath those hoppers is sort of a gearing mechanism that puts out the seed; is that correct?
“A. That is true.
“Q. That is really the gearing and the—
“A. That makes up the unit. All of those drive gears and so forth.
“Q. All right. Now, what you are saying, I believe, and you can correct me if I am wrong, what was taken was the gearing mechanism; is that correct?
“A. Well, not just the gearing mechanism; what was taken, like back in these pictures, the bar across the front, which is a three point hitch bar, and what was taken was three units which you could clamp right to this bar on this particular type of planter that was taken.
“Q. Uh — huh.
“A. And you can make, there along with another unit, would make a four row planter.
“Q. Yes, sir.
“A. And the hoppers were not taken. They had big fiberglass hoppers, and they were not taken.
“Q. Uh — uh.
“A. But everything else from the bar, other than the hoppers, were taken.”

We seriously doubt that the evidence as to what was taken was in substantial conformity with the description thereof in the indictment, which, if true, would have entitled the defendant to a favorable ruling on his motion to exclude the evidence at the conclusion of the State’s evidence. Hammac v. State, 44 Ala.App. 459, 212 So.2d 849 (1968); Milam v. State, 29 Ala.App. 494,198 So. 860, cert. denied 240 Ala. 314, 198 So. 863. We think it better not to attempt to say conclusively at this time whether there was a fatal variance, for the reason that the testimony on the subject is not as clear as it could and should be, and in the expectation that, if the case proceeds to another trial on the indictment as it now reads, the evidence on the question will be much clearer than now.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: ALDERMAN, Justice.

text:
    Ann M. CESARY, Appellant, v. The SECOND NATIONAL BANK OF NORTH MIAMI, Appellee.
    No. 53497.
    Supreme Court of Florida.
    Feb. 1, 1979.
    Rehearing Denied May 14, 1979.
    Shalle Stephen Fine, Steven R. Brown-stein, Miami, and Milton Feller, Miami Beach, Fine & Brownstein, Miami, and Marion E. Sibley of Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellant. '

      Sheldon Rosenberg of Ress, Gomez, Rosenberg, Berke & Howland, North Miami, and Jerry B. Crockett and Joseph P. Klock, Jr., of Steel, Hector & Davis, Miami, for appellee.
    Jim Smith, Atty. Gen., and Susan E. Mole, Asst. Atty. Gen., Tallahassee, for State of Fla., amicus curiae.
    Donald T. Senterfitt and J. Thomas Card-well of Akerman, Senterfitt & Eidson, Orlando, for Florida Bankers Ass’n, amicus curiae.
    Kenneth C. Howell of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for The Florida Consumer Finance Ass’n, amicus curiae.
   ALDERMAN, Justice.

This cause is before us for consideration of the following questions certified to us by the United States Court of Appeals for the Fifth Circuit pursuant to rule 4.61, Florida Appellate Rulés:

1. Does Section 656.17(1), which sets the allowable interest rate for Morris Plan banks and industrial savings banks, violate Article III, Section 11(a)(9), Florida Constitution?
2. Do the special provisions of existing statutory law referred to in Section 687.031, which creates statutory exceptions to the general law of Florida governing interest and usury, violate Article III, Section 11(a)(9), as being special laws fixing interest rates on private contracts?

We answer both questions negatively and hold that neither section 656.17(1) nor section 687.031, Florida Statutes (1975), violates article III, Section 11(a)(9), Florida Constitution.

Ann Cesary brought a suit against The Second National Bank of North Miami in her own behalf and on behalf of those individuals who have borrowed less than $500,-000 from the Bank who have paid interest thereon within a period of two years last past the date of filing this action where interest has been charged in excess of ten percent per annum. Cesary borrowed $8,800.44 from the Bank, evidenced by a promissory note dated March 29, 1972, which on its face provides for an interest rate of eleven percent per annum. Under the provisions of 12 U.S.C. § 85 (1945), the Bank was entitled to receive interest at the maximum rate allowed by Florida law. Cesary contended that under the Florida usury statute, the note was usurious on its face. The Bank defended the action on the basis of section 687.031, Florida Statutes, which allows the charging of interest in excess of ten percent for loans arising under one or more statutory exceptions outlined elsewhere in the Florida Statutes. The Bank argued that its loan fits into the exception provided in section 656.17(1) for industrial savings banks and Morris Plan banks, and that since the exception permits a 14.3 annual percentage rate, the eleven percent rate charged Cesary was not usurious. Cesary did not contest that the loans fall into the exception created'by sections 656.17(1) and 687.031. Rather, she contended that these two statutory provisions are special laws prohibited by article III, section 11(a)(9), Florida Constitution, which provides:

(a) There shall be no special law or general law of local application pertaining to:
(9) creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts .

Holding these two statutes constitutional, the United States District Court for the Southern District of Florida entered summary judgment for the Bank. That court said:

The statutory exceptions to the Florida interest and usury law noted in Florida Statute § 687.031 are not special laws in the prohibited constitutional sense in that they have uniform operation throughout the State of Florida. A special law is one designed to operate on particular persons or things or one that operates upon classified persons or things, when classification is not permissible or the classification adopted is illegal. A general law is one relating to subjects or persons based upon proper distinctions and differences that adhere in or are peculiar or appropriate to such subject or persons. Laws based upon proper classifications may be general laws even though limited to a part of the people. Wide discretion is granted to the legislature in resorting to classification. The burden of showing that the classification provided for does not rest upon any reasonable basis, but is essentially arbitrary, is the burden of the party attacking the classification in the statute. Anderson v. Board of Public Instruction, [102 Fla. 695,] 136 So. 334, State ex rel. Landis v. Harris, [120 Fla. 555,] 163 So. 237. Uniformity of operation of a statute as required by the Florida Constitution does not require universality of operation, Lykes Bros. v. Bigby, 155 Fla. 580, [21 So.2d 37,] but rather reasonable classification as to subject matter. Cates v. Heffernan, [154 Fla. 422,] 18 So.2d 11.
This Court is not able on the basis of its judicial knowledge to determine that the grounds justifying the particular classifications and distinctions created by the Florida legislature for the exceptions to the general law governing interest and usury are unreasonable, and there is no substantial basis for holding Florida Statute 687.031 and the exceptions noted therein unconstitutional.

No. 75-654 (S.D.Fla. Order Determining Constitutionality, Oct. 22, 1975).

Cesary appealed to the United States Circuit Court, Fifth Circuit, which in turn has certified to us the questions regarding the constitutionality of these statutes.

Cesary argues that the exceptions to the Florida usury statute are special laws in violation of article III, section 11(a)(9), because they benefit special groups, the lenders who operate under the exception, and that, therefore, the loan obtained by her from the Bank was usurious. She states that the purpose of the usury law is to protect the borrower from unconscionable lenders and the validity of the classification created by the challenged statutes should be tested in light of this purpose. Analyzing the amount of interest which may be charged by various lenders including small loan companies, credit unions, industrial savings, and savings associations under the general statutory scheme, she submits that the amount of interest permitted to be charged for the same amount of loan depends upon who the lender is and not upon the character of the borrower, the amount of loan, or security pledged. She contends that this statutory scheme has as its purpose the benefit of certain lenders and not the protection of the borrower and that these exceptions are simply special laws. She asserts that the legislature can classify by the type of borrower, type of loan, or amount of loan but cannot constitutionally classify according to the type of lender.

In response, The Second National Bank argues that these statutory exceptions are not special laws in the prohibited constitutional sense since they operate uniformly throughout the State of Florida. It contends that this state has for years permitted banks and other regulated lenders to charge interest on smaller loans at rates greater than ten percent per annum. Relying on the following definition of special law: “A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special,” it contends that the laws in question are general laws. Reciting that this Court has long recognized the authority of the legislature to create different classifications of lenders, rates, and limits in regulating usury, it states that the legislature has reasonably classified regulated lenders and that Cesary has failed to carry her burden of proof to show otherwise. It maintains that different types of credit transactions involve different types of risks and different costs, that small loans involve greater risk and cost than commercial loans to an established business, that revolving charge accounts of credit card plans involve more risk than a loan of $20,000 to a bank’s regular customer. It submits that the subject legislation is a valid and constitutional balancing of the need for reasonable, convenient credit, the need to protect the borrower, costs of credit arrangements, the risk of nonpayment, the nature of the lender’s business, and the extent of existing government regulation.

We concur with the rationale of the trial court and agree with Second National Bank that the classifications created by the legislature through enactment of sections 687.031 and 656.17(1) are reasonable and that these laws are general laws which operate uniformly throughout the state upon these classifications.

Although there is no definition of general or special law in the constitution, this Court in Bloxham v. Florida Central & Peninsular Railroad, 35 Fla. 625, 732 33, 17 So. 902, 924-25 (1895), explained what is meant by special law as used in the context of article III, section 11, as follows:

“A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition.” It might be that the railroad of the complainant is the only property affected by the act. Such a state of affairs would not make it a special law. Speaking upon a similar contention, this court has also quoted with approval, in the case of Ex parte Wells, supra, from the supreme court of New Jersey, the following language: “A law so framed [i. e. general in its terms] is not a special or local law, but a general law, without regard to the consideration that within the state there happens to be but one individual of the class, or one place where it produces effects.” It has also been said, as applied to statutes, that the word “general,” as distinguished from “special,” means all of a class, instead of part of a class. 23 Am. & Eng.Enc.Law, p. 148, and authorities cited. In the case of McAunich v. Railroad Co., 20 Iowa 338, it is said, speaking of statutes of this character: “These laws are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the law. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation.”

The uniformity of operation throughout the state required by this constitutional provision does not mean universality of operation over the state. Reasonable classification as to subject matter is permitted. Cates v. Heffernan, 154 Fla. 422, 18 So.2d 11 (1944). Justice Terrell in Cantwell v. St. Petersburg Port Authority, 155 Fla. 651, 653, 21 So.2d 139, 140 (1945), explained:

A law does not have to be universal in application to be a general law. Laws relating to the location of the capital of the state, the state university, the state prison farm, the hospital for the insane and other state institutions are local in character but general in application and are regarded as general laws. The act under consideration is easily within this class.

“Classification” is the grouping of things because they agree with one another in certain particulars and differ from other things in those same particulars. Anderson v. Board of Public Instruction, 102 Fla. 695, 136 So. 334 (1931). This Court has ofttimes recognized the wide discretion of the legislature in formulating classifications when establishing regulations for the public welfare but has also acknowledged that statutory classifications must be reasonable and must be based upon some difference bearing a reasonable and just relationship to the subject matter regulated. Carter v. Norman, 38 So.2d 30 (Fla.1948); State ex rel. White v. Foley, 132 Fla. 595, 182 So. 195 (1938). A statute which relates to subjects, persons, or things as a class, based upon proper differences which are inherent in or peculiar to the class is, a general law. State ex rel. Gray v. Stoutamire, 131 Fla. 698, 179 So. 730 (1938).

The determination of the maximum amount of interest which may be charged for the use of money loaned' is within the police power of the state, and the details of the legislation and exceptions to be made rest within discretion of the state legislature. Griffith v. Connecticut, 218 U.S. 563, 31 S.Ct. 132, 54 L.Ed. 1151 (1910). When dealing with usury questions and classifications established by the legislature relating thereto, the legislature has a great deal of discretion, and its classifications will not be disturbed unless clearly unconstitutional. Edwards v. State, 62 Fla. 40, 56 So. 401 (1911). The legislature enacted the usury laws to remedy an existing evil, and it has the authority to classify regulatory enactments with reference to degrees of evil. Beasley v. Cahoon, 109 Fla. 106, 147 So. 288 (1933).

A party who challenges the classification of a statute has the burden of proving that the classification therein does not rest upon any reasonable basis and is therefore arbitrary. Anderson v. Board of Public Instruction, supra. Cesary failed to show that the grounds justifying the particular classifications created by the legislature for exceptions to the general law governing interest and usury are unreasonable.

The classifications of lenders created by sections 687.031 and 656.17(1) have a basis in real differences of conditions affecting the subject matter regulated. In establishing these classifications, the legislature considered the need for convenient, reasonable credit for as broad a group of borrowers as possible; the need to protect necessitous borrowers from overreaching “loanshark” type lenders; the costs of different credit arrangements, including substantial bookkeeping and computer costs involved in smaller loans; the risk of nonpayment; the nature of the lender’s business and the degree of existing government regulation of that business; and the nature and needs of the borrower. For each classification of lender, the legislature has established a particularized regulatory procedure relating not only to the allowable interest rates but also to the type of security which may be taken, the length of terms over which repayment can be made, the charges and costs which may be assessed, and the penalties to be imposed if any of the regulatory provisions are violated.

Accordingly, we answer the certified questions in the negative. Neither section 656.17(1) nor section 687.031 violates article III, section 11(a)(9), Florida Constitution.

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

      . Section 656.17(1) provides:
      LOANS; SECURITY REQUIRED, INTEREST AND CHARGES. — The right to lend money upon the security of comakers, personal chattels, or other property and to take, receive, reserve, and charge for such loans or discounts made or upon any notes, bills of exchange, or other evidences of debt, a discount not to exceed 8 percent per annum upon the total amount of the loan from the date thereof until the maturity of the final installment, notwithstanding that the principal amount of such loan is required to be repaid in installments, plus an additional charge not to exceed 2 percent of the principal amount of any loan, which additional charge shall be for investigating the character of the individual applying for the loan, the security submitted and all other costs in connection with the making of such loans, all which charges and discounts may be collected at the time the loan is made. No other charge of any kind or nature whatsoever, by whatsoever purpose or name designated, shall be made; provided, however, that when a loan is of such character as to necessitate the filing or recording of a legal instrument, an additional charge may be made for such filing or recording, providing such charge is actually paid to the proper public officials; also borrower may be required to pay abstract costs, reasonable attorney’s fees, documentary stamp taxes, other taxes, premiums on insurance, and other similar charges, if the bank deems the same necessary for the protection and security of said loan.

      . Section 687.031 provides:
      Construction, ss. 687.02 and 687.03. — Sections 687.02 and 687.03 shall not be construed to repeal, modify or limit any or either of the special provisions of existing statutory law creating exceptions to the general law governing interest and usury and specifying the interest rates and charges which may be made pursuant to such exceptions, including but not limited to those exceptions which relate to banks, Morris Plan banks, discount consumer financing, small loan companies and domestic building and loan associations.

      . Article X, section 12(g), Florida Constitution, merely provides: “ 'Special law’ means a special or local law.”


text:
    E. J. CATOGAS and Miriam Catogas, Appellants, v. SOUTHERN FEDERAL SAVINGS AND LOAN ASSOCIATION OF BROWARD COUNTY, Appellee.
    No. 53831.
    Supreme Court of Florida.
    Feb. 1, 1979.
    Rehearing Denied May 14, 1979.

      Leonard D. Pertnoy of Pertnoy & Green-berg, and Bruce S. Rogow of Pearson & Josefsberg, Miami, for appellants.
    Robert L. Wunker of Grimditch, Bentz, Witte & Wunker, Pompano Beach, and John A. Thabes of Saunders, Curtis, Gines-tra & Gore, Fort Lauderdale, for appellee.
    Jim Smith, Atty. Gen., and Randy Schwartz, Asst. Atty. Gen., Tallahassee, for the State of Florida, amicus curiae.
   ALDERMAN, Justice.

We have for review by direct appeal the partial final summary judgment of the circuit court for Broward County, holding that section 665.395, Florida Statutes (1975), is constitutional and that Southern Federal Savings and Loan Association of Broward County is exempt from usury by virtue of sections 665.395 and 665.511, Florida Statutes (1975). We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

By this appeal we are asked to decide whether Southern Federal comes within the exemption of section 665.395 and to decide the constitutional validity of this section against challenges that it violates the equal protection clause of both the Florida and federal constitutions and that it constitutes a special law prohibited by article III, section 11(a)(9), Florida Constitution. Two subsidiary issues posed by the Catogases are whether the trial court erred in entering summary judgment and whether the trial court erred in refusing to continue the case for more than one day. We hold that section 665.395 is constitutional, that Southern Federal is entitled to this statute’s exemption, that partial summary judgment was properly awarded in favor of Southern Federal, and that the trial court did not err in refusing to continue the case for more than one day.

On October 22, 1975, the Catogases executed a promissory note to Southern Federal Savings and Loan Association for the principal sum of $380,000, to be repaid over a period of twenty-four years with interest of ten percent per annum. At closing the bank deducted $20,701.42 as costs from the principal sum loaned. These costs included $15,689 identified as “points” and $1,157.86 identified as prepaid interest. The loan funds, which were used to construct an apartment building, were drawn periodieally with the final draw being made on September 22, 1976. Although the loan was closed on October 22, 1975, the loan agreement provided that interest would accrue from December 21, 1975. The first payment of combined principal and interest was due on March 15, 1976. The construction loan agreement provided for a ten percent holdback by Southern Federal which was not to be disbursed until it had been determined that the project was one hundred percent complete, until releases and waivers from all possible lienors had been executed on approved forms, until the contractor’s affidavit and owner’s affidavit had been executed, and until the certificate of occupancy had been issued by the proper governmental authority. By deed dated February 15, 1976, the Catogases conveyed all their right, title, and interest in the subject property.

The Catogases filed a complaint against Southern Federal, alleging that it intentionally, willfully, and knowingly charged them interest which exceeded the ten percent per annum lawful interest rate and which amounted to usury in violation of section 687.03, Florida Statutes (1975). They alleged that the charging of $15,689 as points in addition to the ten percent interest rate charged on the loan made the loan usurious and that charging interest at the rate of ten percent on the face amount of the loan from the closing date of the loan, although the proceeds of the loan were paid out based on draws at irregular intervals commencing on November 7, 1975, resulted in an effective interest rate of more than ten percent. In an amended complaint, they further alleged that section 665.395, if it is applied to exempt Southern Federal from liability for usury under section 687.03, is unconstitutional. As damages, the Cato-gases requested forfeiture of the entire interest charged and payment of double the amount of interest paid. They also requested statutory attorney’s fees and court costs.

Southern Federal alleged as an affirmative defense that, by virtue of sections 665.-395 and 665.511, any interest charged by Southern Federal was not usurious. Southern Federal moved for summary final judgment on January 30, 1978.

On February 21, 1978, the Catogases requested a continuance on the hearing for summary judgment until they completed discovery. The trial court on March 2,1978, granted a one-day continuance and scheduled the hearing for March 3. Partial summary judgment was thereafter entered in favor of Southern Federal as to counts one and two of the complaint. The trial court expressly held that section 665.395, Florida Statutes (1975), was valid and constitutional and that Southern Federal is exempt from usury by virtue of sections 665.395 and 665.-511.

The Catogases contend that this statute exempts only building and loan associations and that since Southern Federal is a savings and loan association, it is not encompassed within this statute.

Southern Federal responds that the Cato-gases are ignoring section 665.511, which it says makes the usury exemption applicable to savings and loan associations. It also contends that to hold this exemption inapplicable to it would violate the equal protection and supremacy clauses of the Constitution of the United States.

In determining whether the legislature, in retaining the statutory exemption for building and loan associations in section 665.395 (formerly section 665.161) and in promulgating section 665.511 giving federal savings and loan associations the same exemptions as “associations organized under the laws of this state,” meant to include federal savings and loan associations within section 665.395, we must consider the entire statute as a whole and give effect to all of its provisions which are related. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977); Wilensky v. Fields, 267 So.2d 1 (Fla.1972). Considering these sections in the context of chapter 665, we conclude that the legislature intended that the usury exemption apply to both state and federal savings and loan associations. Further support of this conclusion is found in the legislative history of these statutory provisions.

In 1969, the legislature enacted the Savings Association Act, which repealed former chapter 665, entitled “Incorporation and Operation of Domestic Building and Loan Associations.” Chapter 69-39, Laws of Florida. Carried over from this former chapter 665 was the usury exemption relating to building and loan associations. Contained in former chapter 665 was a provision relating to conversion of building and loan associations into federal savings and loan associations which provided:

At the time such conversion becomes effective, the association shall cease to be supervised by this state and immediately all of the property of the association of every nature whatsoever shall become vested in said association under its new name and style, as a federal savings and loan association by operation of law, without any conveyance or transfer whatsoever, and without any further action, and said federal savings and loan association shall have, hold and enjoy such property in its own right as fully and to the same extent as was possessed, held and enjoyed by it as a state association and such federal savings and loan association at the time the conversion becomes effective, shall become and continue to be responsible for all of the obligations of the state association to the same extent as though no conversion had taken place, it being expressly declared that such federal savings and loan association shall be merely a continuation of the state association under the new name, charter and jurisdiction. Federal savings and loan associations and stockholders therein shall be entitled to the same exemptions from taxation or otherwise that are now provided by law or which may hereafter be provided by law for Florida building and loan associations and all laws now existing, providing any such exemptions are hereby made applicable to federal savings and loan associations and stockholders therein.

(Emphasis supplied) (formerly codified at section 665.40, Florida Statutes (1967)). This provision in effect provided that federal savings and loan associations would be entitled to the same exemptions provided by law as were permitted building and loan associations.

At the same time, former section 665.01 provided that associations incorporated under the laws providing for incorporation of building, loan fund, and savings associations would be known as building-and loan associations under chapter 665. It also provided that associations incorporated under any law for the purpose of accumulating funds for the use and benefit of its members and of assisting them to accumulate money and to invest their funds and savings by cash or periodic payments on its stock or otherwise to be loaned among its members would be known as building and loan associations under chapter 665. This section, therefore, effectually defined building and loan associations to include domestic and foreign savings and loan associations. Savings associations under this section were known as building and loan associations.

Former section 665.02, which related to the organization of “domestic” associations, provided that the corporate name adopted by the association could end in “building and loan association” or “savings and loan association.” This section expressly stated:

Organization requirements for “domestic” association. — Any number of persons, not less than nine, nor more than twenty-one, three-fourths of whom shall be residents of this state, may associate themselves together for the purpose of organizing a domestic building and loan association, and for that purpose they shall make, sign and acknowledge, before some person authorized by the laws of this state to take acknowledgments of deeds, articles of incorporation which shall state:
(1) The corporate name adopted by said association which shall not be the same as, nor similar to the name of any other association incorporated in this state, may be any name desired ending with “building and loan association" or “savings and loan association," but shall not contain any of the words “bank,” “banking,” or “trust.” Unless organized under the provisions of the law relating to building and loan associations, no corporation hereafter organized shall be entitled to use, as a part of its title or name; the word “savings”; the word “association” or “society” in any combination with either of the words “building” or “loan”; the word “company” or “association” or “society” in any combination with both of the words “building” and “loan”; provided, however, that the foregoing restrictions shall not prohibit the use of the word “savings” by a corporation organized under the laws relating to banks and banking.

(Emphasis supplied.) Cf. Greater Miami Financial Corp. v. Dickinson, 214 So.2d 874 (Fla.1968). This gives further support for the proposition that the legislature intended to exempt savings and loan associations from usury under former section 665.161 since savings and loan associations were included within the definition of building and loan associations as such term was utilized in former chapter 665. Former section 665.161 contained the identical language as section 665.395, Florida Statutes (1975), exempting building and loan associations from usury. Therefore, as appears from a reading of former section 665.161 in the context of the entire chapter, we conclude that it was contemplated under the former law that a savings and loan association would be exempted under former section 665.161.

In Financial Federal Savings & Loan Association v. Burleigh House, Inc., 305 So.2d 59 (Fla. 3d DCA 1974), the District Court of Appeal, Third District, stated that former section 665.40 gave federal savings and loan associations the same exemption from taxation as provided by law for domestic associations, but not from usury. We denied certiorari in that case on the basis that Financial Federal had failed to demonstrate conflict with any prior decisions. Financial Federal Savings & Loan Association v. Burleigh House, Inc., 336 So.2d 1145 (Fla.1976). We said that the district court’s holding relative to section 665.40 was a matter of statutory construction and was a case of first impression, and we, therefore, refused to reach the merits of that case. Justice England, however, disagreed with the majority’s conclusion that the Court lacked jurisdiction and expressed his'views on the merits. Tracing the history of the statute dealing with building and loan associations and' interpreting several sections of former chapter 665, he concluded that, pursuant to former section 665.161, Financial Federal Savings & Loan Association was exempt from Florida’s usury laws. Justices Over-ton and Sundberg concurred with Justice England’s dissent. Since this Court lacked jurisdiction to rule on the merits of that case, the decision of the district court was not disturbed. In the present case we do have jurisdiction, and we conclude that former section 665.40 did entitle federal savings and loan associations to the same usury exemption as was permitted for building and loan associations. We reach this conclusion in view of the clear language of that statute which provided the same exemptions for federal savings and loan associations from taxation or otherwise that were provided by law for building and loan associations. To the extent that the district court’s decision in Financial Federal is inconsistent with the present decision, it is disapproved.

Although the legislature repealed the Building and Loan Association Act and created the Savings Association Act in 1969, it did not eliminate the exemption permitted building and loan associations and savings and loan associations. Section 665.395. The language of the present statute, reading all of the related provisions of chapter 665 together, evidences the legislative intent to retain savings and loan associations within the usury exemption. Section 665.-021, Florida Statutes (1975), defines association as a savings association or savings and loan association. Section 665.051, which deals with the corporate name of an association under this chapter, provides that one authorized to do business under this chapter may use the name “savings association,” “savings and loan association,” “building and loan association,” or “building association.” Expressly, section 665.051(2) provides:

(2) EXCLUSIVENESS OF NAME.— No person, firm, company, association, fiduciary, partnership, or corporation, either domestic or foreign, unless he or it is lawfully authorized to do business in this state under the provisions of this chapter and actually is engaged in carrying on a savings association business shall do business under any name or title which contains the terms “savings association,” “savings and loan association,” “building and loan association,” “building association,” or any combination employing either or both of the words “building” or “loan” with one or more of the words “saving,” “savings,” “thrift,” or words of similar import, or any combination employing one or more of the words “saving,” “savings,” “thrift,” or words of similar import with one or more of the words “association,” “institution,” “society,” “company,” “fund,” “corporation,” or words of similar import .

We conclude that the legislature intended that the usury exemption in section 665.395 apply to savings and loan associations and, pursuant to section 665.511, apply to Southern Federal.

Additionally, we find that section 665.511 says that federal savings and loan associations will have the same exemptions as are provided by the laws of this state “for associations organized under the laws of this state.” Building and loan associations fall within the definition of section 665.-021(1). We also note that former section 665.01 provided that a savings association incorporated under the law would be known as a building and loan association within the context of chapter 665.

The Catogases next challenge the validity of section 665.395 on the basis that it creates an arbitrary and unreasonable classification and that it, therefore, violates the equal protection clauses of the Florida and federal constitutions and constitutes a prohibited special law in violation of article III, section 11(a)(9), Florida Constitution, which provides:

SECTION 11. Prohibited special laws.—
(a) There shall be no special law or general law of local application pertaining to:
(9) creation, enforcement, extension or impairment of liens based on private contracts, or fixing ©f interest rates on private contracts.

In response, Southern Federal contends that section 665.395, which includes federal savings and loan associations within its exemption, does not create an arbitrary and unreasonable classification.

We agree with Southern Federal and hold that section 665.395 violates neither the equal protection clause nor article III, section 11(a)(9). As this Court emphasized in Cesary v. Second National Bank of North Miami, No. 53,497, 369 So.2d 917 (Fla.1979), the legislature, when dealing with usury questions and the classifications to be established, has great discretion, and its classifications will not be disturbed unless plainly unconstitutional. As we said in Cesary:

The legislature enacted the usury laws to remedy an existing evil, and it has the authority to classify regulatory enactments with reference to degrees of evil.

Slip op. at 8. The Catogases have failed to prove that this classification did not rest upon any reasonable basis and is, therefore, arbitrary. The classification of lenders exempted by section 665.395 from the usury law has a basis in real differences of conditions affecting the subject matter regulated. In Cesary, we likewise held that the classifications of lenders created by sections 687.031 and 656.17(1), Florida Statutes, were not unreasonable and arbitrary. Since we find the classification reasonable and since section 665.395 operates uniformly throughout the state upon this classification, we conclude that this statute is a general law. Cf. Cesary.

Furthermore, we hold that the trial court properly determined that no material issues of fact remained for determination and correctly entered partial summary judgment for Southern Federal, finding it to be exempt from usury. Finally, we determine that the trial court did not err in refusing to continue the case for more than one day.

Accordingly, we affirm the judgment of the trial court and hold that, pursuant to sections 665.395 and 665.511, Florida Statutes, Southern Federal is exempt from usury and that section 665.395 is constitutional.

It is so ordered.

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

      . Section 665.395 provides:
      Collection of fines, interest or premiums on loans made by building and loan associations. —No fines, interest or premiums paid on loans made by any building and loan association shall be deemed usurious, and the same may be collected as debts of like amount are now collected by law in this state, and according to the terms and stipulations of the agreement between the association and the borrower.

      . Section 665.511 provides:
      Federal savings associations. — Federal savings associations or federal savings and loan associations, incorporated pursuant to the laws of the United States, as now or hereafter amended, are not foreign corporations or foreign associations. Unless federal laws or regulations provide otherwise, federal associations and the members thereof shall possess all of the rights, powers, privileges, benefits, immunities and exemptions that are now provided or that hereafter may be provided by the laws of this state for associations organized under the laws of this state and for the members thereof. This provision is additional and supplemental to any provision which, by specific reference, is applicable to federal associations and the members thereof. [Emphasis supplied.]