text:
    Larry Glenn MEFFORD v. STATE.
    8 Div. 67.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was put to trial upon a two-count indictment charging him with grand larceny and buying, receiving, concealing or aiding in concealing stolen property. Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge, that before the finding of this indictment, Larry Glenn Mefford whose name is unknown to the Grand Jury other than as stated, feloniously took and carried away the following, to-wit: one (1) Ford tractor, of the value of, to-wit: $35,000.00; one (1) trailer, of the value of, to-wit: $6,000.00; beer, of the value of, to-wit: $10,312.40. a further description of same being unknown to the Grand Jury; being of the total and combined value of, to-wit: $51,312.40: the personal property of S & S Distributing Company, Incorporated, a corporation, against the peace and dignity of the State of Alabama.
“Count Two: The Grand Jury of said County further charge that before the finding of this indictment, Larry Glenn Mefford whose name is unknown to the Grand Jury other than as stated, did buy, receive, conceal or aid in concealing the following, to-wit: one (1) Ford tractor, of the value of, to-wit: $35,000.00; one (1) trailer, of the value of, to-wit: $6,000.00; beer, of the value of, to-wit: $10,312.40, a further description of same being unknown to the Grand Jury; being of the total and combined value of, to-wit: $51,-312.40, the personal property of S & S Distributing Company, Incorporated, a corporation knowing that the same had been stolen or having reasonable grounds for believing that the same had been stolen, and not having the intent to restore it to the owner, against the peace and dignity of the State of Alabama.”

At arraignment, in the presence of his counsel, appellant interposed a plea of not guilty. The jury found him guilty of buying, receiving or concealing stolen property. The trial court sentenced appellant to imprisonment in the penitentiary for two years. The Court placed him on probation for five years, six months of which was to be served in the Madison County Jail. The Court further ordered appellant to make restitution in the amount of $9,812.40 for the stolen property.

The State’s evidence shows that on or about September 6,1977, appellant was employed as a truck driver for S & S Distributing Company, a corporation, in Madison County, Alabama. That day, Johnny Cobb, the general manager of S & S, instructed appellant to go to the Schlitz Brewery, in Memphis, Tennessee, pick up a load of beer, and bring it back to an S & S warehouse in Madison County. The Ford truck and Freuhauf trailer rig, which appellant was to drive, Cobb testified, were valued jointly at $41,000.00. The load to be picked up in Memphis consisted of 2,160 cases of Schlitz beer, and the invoice which Cobb subsequently received from the Memphis Brewery showed the value of the load to be $10,312.40.

Cobb further testified that each driver had one key to the company truck assigned to him, while Cobb retained the other. The company policy was that each driver was to keep his truck key on his person and keep the truck locked.

On the morning of September 7, 1977, Cobb testified, appellant called him at home and asked him if “somebody else had took the tractor out.” When Cobb told appellant that no one else had taken the rig out, appellant replied that it was “missing.” Cobb testified that the tractor was recovered later that day near Florence, Alabama, and the trailer was found empty, near Moulton, Alabama, that same day.

Herbert H. Younkin testified that he was a special agent with the Bureau of Alcohol, Tobacco and Firearms, United States Treasury. On September 6, 1977, Younkin observed an S & S company rig, with red cab and silver trailer, proceeding towards. Huntsville, Alabama, on Highway 20, in Madison County. The rig parked on the side of the road and a car turned off of the west bound lane of Highway 20 on the east lane and pulled up behind the truck. In a few seconds the truck began to proceed towards Huntsville and the car followed behind it. Younkin trailed the two vehicles to the S & S warehouse where the truck idled for two or three minutes and then shut down. Younkin then heard a car door slam. In a minute or so the lights of both vehicles were turned on and they left the warehouse, proceeding through Huntsville, and turned on Highway 72 West, towards Athens, Alabama. Younkin discontinued his surveillance at that time because he had observed no federal violation committed; however, he contacted Madison County law enforcement officers.

Leon Greene testified that he was an Investigator in the Madison County Sheriff’s Department. On the afternoon of September 9, 1977, Greene interviewed appellant at the Sheriff’s Office in Huntsville, Alabama, and advised him of his Miranda rights. Appellant advised Greene that he wanted to make a statement. Greene testified that appellant then gave the following oral statement:

“A. He stated that he had been — not approached, but he had received a telephone call from an unidentified person, male person, and had agreed with this male person for the sum of $3,500.00 that he would leave his truck unlocked when he returned from bringing a load of beer from Memphis, and that he was to notify by telephone, a certain number, when his next trip was. He called that number and told the individual that his next trip would be the day after Labor Day, which would be a Tuesday, and that the sum agreed upon was $3,500.00. That he did go to Memphis on the date that he stated and returned and left his truck parked in the S & S parking lot by the warehouse and that he did not lock the truck; that he got in his car and that he drove off and went home, making one stop on the way home.”

Subsequently, appellant reduced this statement to writing. In another oral statement, appellant refused to reveal the identity of his caller because, if he gave any further information, “he would be a dead man.” Greene also testified that he found a piece of paper in appellant’s wallet bearing a telephone number, which appellant stated was unknown to him. Greene testified that he called the number and was told that the business was the “Art Gallery,” an antique shop. Merle Thompson, appellant’s father-in-law, was present at that business at the time Greene called. Other people at this place refused to give Mr. Greene any information.

Johnny Cobb was then recalled. Cobb identified a bill of lading from .the Memphis brewery for 2,160 cases of beer received by appellant on September 6, 1977. This was admitted into evidence without objection.

Herbert Younkin was then recalled and he testified that he spoke with appellant concerning his route into Huntsville. Appellant explained that he stopped outside of Huntsville to get a coke and to clean the windshield which was covered with oil and grime.

The State rested. At this time the appellant moved to exclude the State’s evidence, one ground being that a prima facie case had not been made against him. This motion was denied.

Appellant presented the testimony of three witnesses who were formerly employed by S & S as truck drivers. Each testified that he had left keys in the truck, unlocked, and had not been instructed to do otherwise.

Appellant’s wife testified that appellant was at home when she returned from league bowling at 9:15 p. m. Appellant exhibited no peculiar behavior.

Bobby Baskins testified that he saw appellant about 9:15 p. m. on September 6, 1977. Appellant did not act in an unusual manner.

Two witnesses then testified that appellant enjoyed a good general reputation in the community and that he was regarded as honest and truthful.

Appellant testified that he made his run to Memphis and picked up a load of beer on September 6, 1977, and returned that same day. The bill of lading was left in the truck at the warehouse. Appellant further testified that at that time he locked the truck, got in his own car and went home. Appellant further testified that he did leave the keys in the truck that night. He stated there was no company policy against this. Further, appellant repudiated the statements made by him to police, saying that he was repeatedly given lie detector tests and that he made up the story about the phone calls because he “wanted to go home.” Appellant also denied having said he would be a dead man if he gave information to the police.

In rebuttal, the State called Leon Greene and T. C. Bill, a probation officer, who both testified that appellant had made the statement that if he gave them the name of the person who called him he would be a dead man. This concluded the testimony in the case.

As noted above, appellant moved to exclude the State’s evidence on the ground that a prima facie case was not made against him. In brief, appellant elaborated that since he rightfully picked up the beer from the Memphis brewery in the course of employment, he did not at any point receive stolen property, citing Davidson v. State, Ala.Cr.App., 360 So.2d 728, cert. denied Ala., 360 So.2d 731. In that case defendant was allegedly renting a dwelling which she did not own and was convicted of buying and receiving stolen property. This Court, through Judge Bowen, held that the verdict was contrary to the law and evidence. We find the following language at pages 730 and 731.

“This contention of the appellant has merit though we need not venture outside our own jurisdiction for supporting authority.
“ ‘A prior theft of property by some third person, is a prerequisite to receiving stolen goods, knowing them to be stolen, (citations omitted) It is essential to the crime here charged that the goods coming into the hands of the accused be stolen at the time the accused received them. Farzley v. State, 231 Ala. 60, 163 So. 394. Freeman v. State, 39 Ala.App. 451, 452, 103 So.2d 759, 760, cert. denied, 267 Ala. 626, 103 So.2d 761 (1958).
“For this reason, evidence tending to prove that the accused came into possession of the property described in the indictment solely through the burglarization of a house is insufficient to authorize a conviction of receiving stolen goods. Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940).
“In the offense of receiving stolen goods, the accused is guilty of receiving goods which had been taken and carried away by another. The offense of larceny is perfected before that of receiving stolen goods can be perpetrated. Foster v. State, 39 Ala. 229, 234 (1864).
“Thus Alabama law supports the general principle on this subject as stated in 136 A.L.R. 1087 at 1088, Annotation: May participant in larceny or theft be convicted of offenses of receiving or concealing the stolen property.
“ ‘It is an elementary principle of law that the principal in a theft, or the person who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen.’
“The evidence in this case shows beyond any doubt that if the appellant did obtain the charged sum of money from the owner, she actually received it directly from Mrs. Crawford (the owner). The appellant, if guilty, was guilty of the actual taking and carrying away. Since a thief may not receive stolen property from himself, the appellant cannot be convicted of receiving stolen property where the evidence shows that she actually stole the property.”

In the case at bar, appellant, if guilty, was guilty of the larceny of the property, as an accomplice. As a participant in the theft of the property, appellant could not receive the beer from himself. Davidson, supra.

There is authority in other jurisdictions that a defendant who aids or abets the theft of goods but takes no part in the actual caption and asportation of the goods may be guilty of buying, receiving or concealing property where the receiving takes place subsequent to and after the completion of the theft. 136 A.L.R. 1087, Section III. Nor does a statute making an accessory a principal alter this conclusion, 136 A.L.R. 1087, 1100.

An analysis of this theory is not reached in that the State’s evidence shows no possession of the stolen goods subsequent to their larceny. In order to sustain a conviction for receiving stolen property, the defendant must be shown to have had control of the property. Alabama Digest, Receiving Stolen Goods, @=»4.

Since the evidence does not support the verdict of the jury, and the judgment of the Court as a matter of law, the judgment of conviction must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.

Reversed and Rendered.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny Ray COX v. STATE.
    8 Div. 76.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Paul Frederick, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Madison County returned an indictment against the appellant, Johnny Ray Cox, charging him with the first degree murder of James Eddie Thomas, by shooting him with a pistol. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the second degree and fixed his punishment at one hundred and fifty years imprisonment in the penitentiary. The trial court entered a judgment in accordance with the verdict and appellant appeals to this Court. Appellant filed a motion for a new trial, and it was overruled by the trial court.

The appellant was at all proceedings in the trial court represented by counsel of his choice, and is represented in this Court by court appointed counsel. This appeal was submitted to this Court on briefs.

The appellant contends that the trial court erred to his prejudice on the following grounds: first, by overruling his motion to exclude state’s evidence because there was no evidence to prove that the appellant committed the crime charged; second, by overruling appellant’s motion for a new trial because the evidence was not sufficient to sustain the jury verdict finding him guilty of murder in the second degree.

State’s witness, James Franklin, testified in substance the following: that he and his girl friend, Mary Briggs, and her two children lived at 2907 Temple Lane, Apartment E, Huntsville, Alabama; that before his death Eddie Thomas, the deceased, and his girl friend, Jackie Briggs, and her child lived there in the same apartment; that a short time before Eddie was killed Jackie and her child moved out; that about 10:00 o’clock on the day Eddie was shot James Franklin and Eddie left their home and bought three pints of gin and began drinking and riding around; that about 11:00 o’clock they went down to where Jackie was living with the appellant, Johnny Cox; that Eddie was drunk and got out of his car, talked with Jackie, drew a pistol on her, and threatened to kill her; that he took the gun away from Eddie and they got in the car and went home; that on the way home he gave the gun back to Eddie; that when they got home no one else was there except Mary, his girl friend, and her children; that he drank the rest of the gin, ate some ice cream, passed out and went to sleep on the couch, and slept until Mary, his girl friend, awoke him and told him someone had come in and killed Eddie; that he got up and found Eddie lying on the kitchen floor behind the stove dead with bullet holes in him; that Eddie had a .357 magnum gun nickel-plated with a bone handle; that the last time he saw Eddie alive that day he was standing in the floor drinking beer, and had the gun under his belt.

State s witness, Mary E. Briggs, testified in substance the following: that she lived at 2303 Apartment C, Butler Terrace, Huntsville, Alabama; that she was the mother of Mary who was living with James Franklin, and of Jackie who lived part of the year 1977 with Eddie Thomas, the deceased, and part of the year with Johnny Cox, the appellant; that it was in July when Jackie left Eddie and went to live with Johnny; that at about 12:30 o’clock on the day of October 10, 1977 she went over to Eddie’s house and no one was there except her daughter, Mary, and her children; that later on James and Eddie came home; that Mary and her children went to the grocery store; that James drank a pint of gin, ate some ice cream, passed out and went to sleep on the couch; that Eddie was drinking and he had a gun in his belt and was sitting at the front door in a chair when she went out on the porch, and just as she was sitting down in the swing the appellant, Johnny Cox, came around the house and went up on the porch; that she saw the tip end of a blue or black gun in his right hand; that Johnny went right on into the house and in a short while she heard a gun shot and jumped up off the porch and ran down the street hollering, and she heard another shot, and she heard another shot; that she did not know who was doing the shooting; that she went back to the house and saw Johnny come out the front door he went in; that when Johnny came out she was on the left side of him, and did not see a gun; that Johnny did not say anything to her or the other people there, but just went right back around the house like he was going to Shannon Street; that the shooting occurred in Huntsville, Madison County, Alabama, at about three-thirty in the afternoon.

State’s witness, Sam Lanier, Jr., a Huntsville police officer, testified in substance the following: that on October 10, 1977, about 4:30 o’clock, P.M., he received a call to be on a lookout for the appellant, Johnny Ray Cox; that about 5:17 o’clock P.M. he stopped Johnny’s car, and Johnny got out with his hands up in the air, and said where the weapon was without being asked; that he looked on the front seat of Johnny’s car and saw the weapon lying there; that he arrested Johnny and kept his car under observation until Officer Cantrell arrived; that he turned Johnny’s car and the gun over to Officer Cantrell; that he transported Johnny to jail; that Johnny said he was on his way to the jail when his car was stopped.

State’s witness, Gene Cantrell, testified in substance the following: that he was an officer of the Huntsville Police Department; that on October 10, 1977, about 5:30 P.M., he arrived at the scene where Officer Lanier had appellant under arrest; that Lanier’s patrol car was parked next to appellant’s car; that he observed a weapon in appellant’s car, and kept it under observation until Officers Parker and Brewer arrived at the scene; that after the gun was photographed he observed the gun to get the model, make and caliber; that the gun was a .357 magnum and was chrome plated and shiny.

State’s witness, Bud Parker, testified in substance the following: that he was employed by the Huntsville Police Department on October 10, 1977 as a Crime Technician, and that his duties consisted of taking photographs, making diagrams, and collecting evidence at the crime scene; that he arrived at the crime scene at 4:20 P.M.; that the appellant was not at the crime scene, but there were several people present; that he found the body of the deceased lying on the floor of the kitchen on its back; that he photographed the scene, made measurements and diagrams of the scene, and photographed the wounds on the chest, neck, head area of the body, and of three slugs in the floor under the chest of the body, after it was moved, and of the stove; all these photographs and diagrams were introduced in evidence; that he recovered one slug from inside the stove and three slugs from the floor directly under the place where the chest of the body was lying before it was removed; that the three slugs recovered from the floor entered the floor straight down from where they went into the body of deceased; that he photographed the pistol in appellant’s car before it was removed; it was chrome plated, and was later turned over to the toxicologist together with the four slugs.

State’s witness, Patrick Dillaha, testified in substance the following: that he was employed by the Huntsville Police Department and was an investigator on the homicide and robbery squad; that he directed the investigation of the killing of the deceased; that he arrived at the scene of the shooting at 4:10 o’clock P.M., on October 10, 1977; that the deceased was shot six times; that when he arrived at the scene of the shooting the deceased was dead; that two guns were used in the shooting; that one was a .38, and was never found; that he searched the apartment of the deceased and found no gun; that four slugs were recovered at the scene; that the gun found in the appellant’s car belonged to the deceased.

State’s witness, Brent Wheeler, of the State of Alabama Department of Toxicology and Criminal Investigation, after stating his qualifications, testified in substance, as follows: that he examined the .357 caliber magnum pistol found in appellant’s car and the four slugs found in the body of the deceased and the four slugs found at the scene of the shooting of the deceased; that due to the condition of the eight slugs he examined he could not say that any of them were fired from the gun found in the appellant’s car; that in his opinion two different types of weapons were used in the firing of the slugs; that of the four slugs removed from the body of the deceased one was fired by a different type of gun than the other three, and of the four recovered at the scene of the shooting one was fired by a different type of gun than the other three.

State’s witness, John Kilbourn, of the Alabama Department of Toxicology and Criminal Investigation, after stating his qualifications, testified in substance, as follows: that on October 11,1977 he examined the body of the deceased; that there were six gunshot wounds on the body; that in one wound the slug went from front to back, left to right, passing through the heart, and was recovered in the body; that in another wound the slug penetrated the body front to back, right to left, and in an upward direction, and went through the body; that in another wound the slug penetrated the body in a right to left, front to back, and upward direction through the body, and was reflected back into the exit wound and recovered there; that another wound was a glaze type gunshot wound located on the left abdomen area, the slug went from front to back and upward; that another wound was located on the right side of the neck two and a half inches to the right of an anterior mid-line of the neck with the slug ranging from right to left, front to back, and upward, and was recovered from the body; that another wound was on the left portion of the head and was located two and three-fourths inches above the left ear canal and one and a half inches behind the left ear canal, the slug ranged from left to right, back to front and slightly upward, and was recovered from the body, this wound was a contact wound which means that the barrel of the gun was held in direct contact with the scalp; that in his opinion the cause of the death of the deceased was either hemorrhage associated with the gunshot wound to the chest or cerebral trauma associáted with the gunshot wound to the head or a combination of the two.

The state rested its case and the appellant moved to exclude the state’s evidence on the ground that there was no evidence linking the appellant personally with the crime that has been committed. Appellant’s motion was denied by the court.

The appellant’s witness, Peggy King, testified in substance, as follows: that on October 10, 1977 she lived about five doors from Johnny Cox, the appellant; that Eddie Thomas, the deceased, with another man, came to the home of Johnny at about 10 or 11:00 o’clock, A.M.; that she saw Eddie having an argument with Jackie; that he was holding a, shiny gun on her and was telling her that if she breathed too hard, he was going to blow her head off; that Jackie got away from Eddie and went in the house; that Eddie beat on the door and Jackie would not come out and Eddie said that he would be back and left.

The appellant’s witness, Barbara Lang-ford, testified in substance the following: that she lived next door to the appellant, Johnny Cox; that she knew Eddie Thomas, the deceased, in his lifetime and that she knows James Franklin; that about 12:30 on October 10, 1977 she saw Eddie and James come to the home of Johnny; that Jackie Briggs was on the back porch talking to Eddie; that Eddie had a silver gun in his hand slinging it around; that when she saw the gun, she went right back in the door of her house and stayed inside; that Jackie and her son lived there with Johnny Cox.

Appellant’s witness, Ezell Smith, testified in substance the following: that he knew Johnny Cox, the appellant, in October of 1977; that he lived next door to him; that on October 10, 1977, about 8:30 that morning, he saw Eddie Thomas, the deceased, and a man riding around in his community drinking; that about 11:30 or 12:00 o’clock he was up the street when he saw Eddie go into Ezell Smith’s apartment; that he went to see what Eddie wanted; that deceased asked him where the mother of Johnny Cox lived, and he told Eddie that she lived next door, and Eddie went over there; that he went in his apartment for a few minutes, and then started to come out of his door when he saw Jackie standing on her porch, and Eddie was waving a big “ole shiny pistol” at Jackie, and Eddie was using profane language; that he heard Eddie tell Jackie he would blow her brains out; that he just closed the door and went back inside his apartment and stayed there.

Appellant’s witness, Billy Lee Rice, testified in substance, as follows: that Johnny Cox, the appellant, was at Billy Lee Rice’s home from eight-thirty until about three o’clock on the day of October 10, 1977, and that he and Johnny spent the time working on Johnny’s car, and they did not have anything to drink during the time.

Appellant’s witness, Mary Batts, testified in substance, as follows: that she is a sister of Johnny Cox, the appellant; that on October 10, 1977 she and her two children, her mother whose name is Betty Hund, Jackie and Johnny Cox all lived at 108-D Madison Court; that Johnny had been living there since the last of August; that around noon Eddie Thomas, the deceased, came to the back door of the apartment and asked to see Jackie; that Jackie went out on the porch and talked with Eddie; that Eddie held a big shiny like gun on Jackie, and told her he would blow her brains out if she breathed, and that if he could not have her, nobody else could; that about 3:30 Johnny came home and went in the house; that in a short time Johnny left in his car, and after about thirty minutes returned home; that Jackie had a three year old child by Johnny; that during the year 1977 before August Jackie lived with Eddie.

Appellant’s witness, Jackie Briggs, testified in substance, as follows: that on October 10, 1977 she was the common law wife of the appellant, Johnny Ray Cox; that about eight-thirty on the morning the deceased, Eddie Thomas, was shot Johnny left home and went to Bill Rice’s house; that she, and Mary Batts, and Mary’s two kids were at home; that she had lived with Eddie from 1976 until in September, 1977; that when she stopped living with Eddie, she started living with Johnny; that on October 10, 1977 Eddie came to her home and asked Mary to tell her to come out he wanted to talk to her; that she went out, and he wanted her to come back to him, and he told her that if he couldn’t have her, nobody else could; that she asked him why he came over to Johnny’s house because Johnny didn’t come to his house and bother him because he did not have any business over there; that Eddie said that he came to kill us both; that he pulled out a big shiny gun and put it up to her head and told her if she breathed right, he would blow her damn head off; that James Franklin then got out of the car, came over and hit Eddie on the hand that he had the gun in, and she went in the house and closed the door; that Eddie kicked on the door, and as he was leaving he said he would be back; that about three-thirty Johnny came home; that Johnny asked her what had happened and she told him, and he said he was going and talk to Eddie to reason why “he don’t have to be coming back over here and upsetting the family”; that Johnny got in his car and left and was gone for about thirty minutes, and when he came back home, he had blood on his shirt, and then in about five minutes he left again in his car and she did not see him again that day.

The appellant, Johnny Ray Cox, testified in substance the following: that he has known the deceased, Eddie Thomas, since 1966; that the deceased and Johnny had built time at Atmore Prison together; that he got out of jail on August 21, 1977; that on August 22,1977, when Jackie was living with Eddie in Huntsville, he had a friendly visit with them; that in the latter part of August Jackie started living with Johnny; that on October 10, 1977 at about 3:30 he came to his home from Bill Rice's; that his mother, and later on Jackie, told him what had happened; that Jackie told him that Eddie was looking for him and her and would kill them if he ever caught them together, and that he would be back if Johnny didn’t come over and talk to him; that he then went over to Eddie’s house; that Eddie was in the living room, and was drunk; that there was a man in the room lying on the couch; that he told Eddie that he did not want him to come over to his home disturbing his mother, wife and kids any more; that Eddie told him that if he could not have Jackie, that Johnny could not have her as long as he lived; that he told Eddie that, well, maybe he could talk to him some other time; that Eddie said there “ain’t going to be na’re other time”; that as he started to leave he turned his back to Eddie, and Eddie came out from under his jacket with his gun; that he was afraid to run because he might get shot in the back so he turned and grabbed the wrist of the hand that Eddie had his gun in; that they got in a scuffle that ended up on the floor in the kitchen; that he was unable to take the gun away from Eddie; that during the scuffle while they were in the bedroom the gun went off two times, they continued scuffling and got in the kitchen and Eddie was on top of Johnny; that Johnny still had hold of Eddie’s wrist of the hand with the gun in it with Eddie’s finger on the trigger because through the pressure on the gun it went off again and Eddie rolled over; that blood was all over Johnny, and he thought he was shot; that Johnny panicked, and he picked the pistol up from he floor and came out of the house with it and went back home where Jackie was; that he told Jackie that he and Eddie had a few words and a shooting took place and that he thought he had killed Eddie through a mistake and that he was going to the City Hall and turn himself in; that when the officer stopped him, he got out of his car with his hands up and told the officer that the gun was on the front seat of the car; that the officer handcuffed him and put him in the back seat of the officer’s car; that he had no gun when he went over to Eddie’s and that he did not fire another pistol when he was in Eddie’s apartment.

On cross-examination the appellant testified in substance the following: that he and the deceased had never had any cross words or trouble before October 10, 1977; that on July 30, 1968 he was convicted for an assault with intent to murder; that in 1973 he was convicted of manslaughter in the first degree; that in December, 1975 he was charged with five cases of assault with intent to rob, and he agreed to plead guilty to two and three were dismissed; that the gun found in his car would only hold six cartridges.

The state and the appellant stipulated that if defendant’s witness, Bill Rice, was recalled to the stand, he would testify that within h week or a week and a half before the alleged event involved in this case he saw the deceased, Eddie Thomas, with a gun at a club in Huntsville and at the time the deceased said he was planning to kill the defendant. The stipulation was given to the jury by the court and the defense rested.

The state recalled James (Bud) Parker who testified in substance; that he took the clothing from the body of the deceased and turned it over to Mr. Brent Wheeler; that he saw Johnny Ray Cox on October 10,1977 and he did not have on a torn T-shirt and blood all over him; that there was one little spot of blood on his T-shirt in the chest area.

The state recalled Officer Wheeler who testified in substance the following: that there was not a jacket turned over to him and identified as being taken from the body of the deceased; that only a T-shirt and regular shirt were turned over to him.

State’s evidence was sufficient to present to the jury the question as to whether or not the appellant committed the crime charged, and the trial court did not err in overruling his motion to exclude state’s evidence, and his motion for a new trial on the ground that the evidence did not support the jury verdict.

Where the evidence raises a question of fact for the jury, and such evidence, if believed, is sufficient to sustain the verdict, the overruling of a motion for a new trial is not error. McHellen v. State, Ala.Cr.App., 351 So.2d 689; Young v. State, 283 Ala. 676, 220 So.2d 843; Fields v. State, Ala.Cr.App., 333 So.2d 861.

No other rulings of the trial court are argued in appellant’s brief.

As provided by Alabama Code, 1975, Title 12-22-240, we have searched the record for any errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Donald STEELE v. STATE.
    8 Div. 116.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Dave L. Beuoy, Russellville, for appellant.
    William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for assault with intent to murder Ralph Palmer and convicted by a jury as charged. The court fixed punishment at five years imprisonment. He appeals from a judgment of guilt.

It appears from the evidence that the alleged assault occurred at the home of Holley Whitlock, in Phil Campbell, Alabama, where the victim, together with his wife, Christine, and their three year old son, had gone to collect an insurance premium on a policy of insurance which the victim had previously sold to Mr. Whitlock. Mr. Palmer was an insurance agent. The visit was about 8 o’clock at night, April 23.

Mr. Whitlock was at home and with him was a Mr. McMicken and another whom Mr. Palmer did not know. After sitting around a while, the defendant with a “Flanigan boy” came in and brought some whiskey. Defendant testified that he had drunk some of the whiskey, but asserted he was not “plum drunk.” The victim testified he did not drink any whiskey, neither did his wife.

There was a conflict of testimony as to who was the aggressor in the fight between Palmer and Steele and as to which one was the first to hurl insulting epithets at the other that preceded the fight. The victim got cut and profuse bleeding therefrom followed. Suffice it is that whiskey was present and consumed and probably provoked the physical encounter between defendant and his victim.

The jury resolved the conflict of evidence in favor of the State and against the defendant. A further delineation of the res gestae details would burden the opinion and would add nothing of importance to this opinion.

We now advert to appellant’s assertion of prejudicial error on the part of the trial court.

I

Did the trial court abuse its discretion in not permitting the defense to fully and completely examine the jurors as to their qualifications, interest or bias that would affect the trial of the case.

Appellant contends that the trial court did not permit his counsel to question the jurors as to their individual feelings toward the use of alcoholic beverages. We quote from the record.

“MR. MADDOX: Let me ask you this question, Ladies and Gentlemen, those that answered this question. Are there any of your [sic] that believe that nobody should consume alcoholic beverages?
“MR. JOLLY: Your Honor, I object to that.
“MR. MADDOX: In other words, do you believe in abstention of alcoholic beverages for anyone?
“MR. JOLLY: I object to that Your Honor.
“THE COURT: Let me ask the question. If any of you believe that by drinking and being involved, I don’t know what all the situation is, because I don’t know the facts, but involved in anything, would that tend to make you believe that they were guilty just because somebody had a drink and then were involved in something?
“NO ONE ANSWERED.
“THE COURT: All right, I’ll sustain now except for that.”

We have examined the record and conclude that the trial court was exceptionally liberal in permitting defendant’s counsel to examine or question the jurors in an attempt to ascertain their qualifications, interest or bias. Such examination and the extent thereof is addressed to the trial court’s sound discretion. Patterson v. State, Ala.Cr.App., 344 So.2d 543(1), cert. denied, Ex Parte Patterson, Ala., 344 So.2d 547. We find no abuse of discretion in the ruling of the court. There was no error in the court’s ruling.

II

A second and last contention is that the trial court abused its discretion in permitting the State’s rebuttal witness to testify as to the defendant’s reputation in the community in which he lived, “when the court would not permit evidence of the defendant’s place of residence.”

We note that defendant testified on direct that he lived on Route Three, Phil Campbell, Alabama, about two miles east of Spruce Pine, and lived with his grandmother, Lucy McMicken, whose house was on a paved road. The court sustained objection as to the distance of the gravel road from a paved road. The court also sustained the State’s objection to a question as to exactly where in the community the defendant lived. “Is it near a County road?”

The rebuttal witness was Johnny Snider, a State Investigator.

This witness testified that he knew the community in which the defendant lived. On voir dire, by defendant, this witness testified that defendant lived or resided in Spruce Pine, in the community of Phil Campbell.

We hold the community in which defendant lived was adequately identified by the defendant and the rebuttal witness and constituted a sufficient predicate. The court did not commit error in overruling defendant’s objection due to insufficient predicate for the adduction of evidence as to defendant’s bad reputation. Craven v. State, 22 Ala.App. 39, 42, 111 So. 767 (4, 5, 6).

We find no reversible error in the record. Because of such absence, the judgment is due to be affirmed. It is so ordered.

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

AFFIRMED.

All the Judges concur.


author: ENGLAND, Justice.

text:
    Charles William GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 51725.
    Supreme Court of Florida.
    May 26, 1978.
    Rehearing Denied Nov. 30, 1978.
    William H. Maness, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., Tallahassee, for appellee.
   ENGLAND, Justice.

Charles Grant was tried by a jury and convicted of battering another person in violation of Section 784.03(l)(a), Florida Statutes (1975). His challenge to the constitutionality of the statute, as violating due process of law on the grounds of over-breadth and vagueness, brings his conviction and sentence here for review.

We find no merit in Grant’s arguments concerning the validity of the battery statute, and we find no infirmity in his trial. The evidence was more than adequate to support the jury’s verdict. Grant’s conviction and sentence are affirmed.

It is so ordered.

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

      . “A person commits battery if he [a]ctually and intentionally touches or strikes another person against the will of the other

      . Art. V, § 3(b)(1), Fla.Const.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Jesus N. ABREAU, Respondent.
    No. 52064.
    Supreme Court of Florida.
    May 26, 1978.
    Rehearing Denied Nov. 28, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Arthur Joel Berger, Asst. Atty. Gen., Miami, for petitioner.
    Geoffrey C. Fleck of Kogen & Kogan, Miami, for respondent.
   PER CURIAM.

By petition for a writ of certiorari, we are asked to review a decision of the Third District Court of Appeal, reported at 347 So.2d 819, which conflicts with DeLaine v. State, 262 So.2d 655 (Fla.1972). We have jurisdiction, and we dispense with oral argument and with briefs on the merits. The decision below was grounded on the District Court’s belief that this Court in Lomax v. State, 345 So.2d 719 (Fla.1977), “receded from DeLaine and its progeny.” We did not, and for that reason must quash the decision below.

For the purpose of clarification, we note that Lomax involved a trial court's failure to give a requested instruction on a lesser-included offense that was only one step removed from the offense charged, while in DeLaine, as in the present case, the trial judge gave instructions on the next immediate lesser-included offense but refused to instruct the jury on an offense two steps removed. The significance of that distinction is more than merely a matter of number or degree, since in the latter situation, unlike the former, the jury is given a fair opportunity to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime. For example, if a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed) and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless. If, however, the jury only receives instructions on “A” and “C” and returns a conviction on “A”, the error cannot be harmless because it is impossible to determine whether the jury, if given the opportunity, would have “pardoned” the defendant to the extent of convicting him on “B” (although it may have been unwilling to make the two-step leap downward to “C”).

Thus, to the extent that the broad language employed in Lomax intimates that the harmless error doctrine cannot be invoked whenever there has been a failure to instruct on any lesser-included offense, it is disapproved. Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine continues to have vitality, and reviewing courts may properly find such error to be harmless.

The writ of certiorari is hereby issued, and the decision of the Third District Court of Appeal is quashed.

It is so ordered.

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

      . Fla.App.R. 3.10(e).

      . 347 So.2d at 821.


author: HATCHETT, Justice. OVERTON, Chief Justice,

text:
    CASSAT AVENUE MOBILE HOMES, INC., et al., Petitioners, v. August L. BOBENHAUSEN, Respondent.
    No. 51736.
    Supreme Court of Florida.
    June 8, 1978.
    Rehearing Denied Nov. 28, 1978.
    Donald W. Matthews of Hernandez, Matthews & Watson, Jacksonville, for petitioners.
    David C. Goodman, Jacksonville, for respondent.
   HATCHETT, Justice.

In this case, a district court of appeal reversed an order of remittitur, entered by the trial court, on the ground that there was competent substantial evidence to support the jury’s verdict. That decision directly conflicts with Cloud v. Fallis, 110 So.2d 669 (Fla.1959), wherein this court (1) rejected the “competent substantial evidence” rule; (2) held that a motion for new trial is directed to the sound discretion of the trial judge; and (3) held that a ruling on such a motion will not be disturbed in the absence of a clear showing of abuse of discretion. Jurisdiction vests pursuant to Article V, Section 3(b)(3), Florida Constitution. We discharge the writ.

In an action for slander, the jury found in favor of respondent and entered a verdict in the amount of $80,000 with $30,000 allocated as compensatory damages and $50,000 as punitive damages. Petitioners, Cassat Avenue Mobile Homes, moved for a new trial, on the grounds that the verdict was excessive and could only be founded on the uncontrolled passion of the jury. The trial judge entered an order of remittitur (in lieu of an order granting new trial) in the amount of $40,000. On appeal, the First District Court reversed, finding that there was competent substantial evidence to support the original verdict.

We agree with petitioners that the First District Court of Appeal applied the wrong standard of review in arriving at its decision. In Cloud v. Fallis, supra, the “substantial evidence” rule was specifically rejected and replaced by the “broad discretion” rule. See also, Laskey v. Smith, 239 So.2d 13 (Fla.1970), and Hodge v. Jacksonville Terminal Co., 234 So.2d 645 (Fla.1970). Both rules were recently discussed in this court’s decision in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), (opinion filed April 4, 1978), wherein we held that a trial judge has broad discretion to determine whether or not a verdict is (1) against the manifest weight of the evidence or (2) was influenced by considerations outside the record. We also held that before an alternative order granting a new trial may be entered “either the record must affirmatively show the impropriety of the verdict or there must be an independent determination that the jury was influenced by considerations outside the record” so that effective review is possible.

The order of remittitur entered in this case states only that the verdict was excessive, and it is therefore deficient. The district court was correct in reversing the trial court’s order even though reversal was founded on an erroneous standard of review. Accordingly, the writ of certiorari is discharged.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and ALDERMAN, JJ., concur.

OVERTON, C. J., concurs specially with an opinion.

ADKINS, J., concurs in result only.

OVERTON, Chief Justice,

specially concurring.

I concur in the result. The test for overturning or remitting an excessive verdict was expressly stated in our recent decision in Bould v. Touchette, 349 So.2d 1181 (Fla. 1977), wherein we stated:

In tort cases damages are to be measured by the jury’s discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. [Citations omitted.] [Emphasis supplied.] Id. at 1184-85.

The record fails to reflect that the trial judge properly applied this test.

I cannot concur with the reference in the majority opinion to Wackenhut v. Canty, 359 So.2d 430 (Fla., opinion filed April 4, 1978), for the reasons expressed in my dissent therein.

        Bobenhausen v. Cassat Avenue Mobile Homes, Inc., et al., 344 So.2d 279 (Fla. 1st DCA 1977).


author: SUNDBERG, Justice. BOYD, Justice, HATCHETT, Justice,

text:
    Hawthorne Konrad MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 50350.
    Supreme Court of Florida.
    July 27, 1978.
    Rehearing Denied Nov. 28, 1978.

      Paul Shimek, Jr., of Shimek & Sutherland, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SUNDBERG, Justice.

This cause comes to us by appeal from the decision of the District Court of Appeal, First District, in Matthews v. State, reported at 336 So.2d 643, because the district court initially and directly passed on the validity of Section 836.05 Florida Statutes (1973), thereby vesting jurisdiction in this Court under Article V, Section 3(b)(1), Florida Constitution. It is unusual that the case would reach this Court in this posture. Ordinarily, the initial ruling upon the constitutionality of the statute would take place in the trial court in which event direct review in this Court would follow. Article V, Section 3(b)(1), Florida Constitution. If a ruling on the validity of the statute was not made in the trial court, it is difficult to understand how it was preserved for review in the District Court of Appeal. Nonetheless, the assignments of error filed by the appellant in the court below clearly raise the constitutional issue:

Florida Statute § 836.05, the section under which the Defendant has been convicted, is unconstitutional as applied to your Defendant based upon the facts in this cause and is in contravention as applied in this cause to Defendant’s rights under the First Amendment, Fifth Amendment, and Fourteenth Amendment to the Constitution of the United States of America. The conviction is an unconstitutional application of the extortion statute, i. e., § 836.05.

Appellee State does not cross-appeal in this Court asserting that the matter was not preserved at the trial court level. Consequently, when the district court affirmed appellant’s conviction in the face of this constitutional challenge, it inherently ruled on the validity of the statute. Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Air Authority, 111 So.2d 439 (Fla.1959). The fact that appellant does not challenge the facial validity of the statute but instead contests the constitutionality of the statute as applied to his conduct does not preclude review by this Court. Snedeker v. Vernmar, Ltd., 151 So.2d 439 (Fla.1963).

The facts of the case sub judice are as follows: On December 20, 1974, a young black man was shot and killed by a deputy sheriff in Escambia County. The shooting became the subject matter of a grand jury investigation which resulted in a finding that the deputy fired in self-defense. Appellant and other members of the black community staged several demonstrations in protest. Among other things, the demonstrators demanded the removal of the deputy from office. At one of these demonstrations, appellant led the crowd in the following chant:

Two, four, six, eight, who shall we assassinate? Doug Raines, Doug Raines, Sheriff Untreiner, Askew, and the whole bunch of you pigs.

Appellant was arrested and charged with extortion, a violation of Section 836.05, Florida Statutes (1973), in that he verbally and maliciously threatened injury to Sheriff Untreiner in order to compel the dismissal of Deputy Raines. Appellant was found guilty by a jury and sentenced to five years in prison. On appeal, the District Court of Appeal, First District, affirmed the judgment and the sentence, interpreting the decision of the Supreme Court in Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), to suggest such result. We affirm.

In Watts v. United States, supra, the United States Supreme Court had the opportunity to construe the federal statute proscribing threats of bodily harm to the President. Defendant, while participating in a political debate at a small public gathering which followed a demonstration held at the Washington Monument, expressed an intention to resist induction into the armed forces and allegedly stated that, “if they ever make me carry a rifle the first person I want in my sights is L.B.J.” On the basis of those facts, defendant was convicted in a jury trial of knowingly and willfully threatening the life of the President. After the United States Court of Appeals for the District of Columbia Circuit affirmed the conviction, the Supreme Court granted cer-tiorari and reversed. The Court stated that a “true threat” must be distinguished from conduct protected by the First Amendment.

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise. (Citations omitted)
Id. at 708, 89 S.Ct. at 1401.

In the instant case, the District Court of Appeal, First District, speaking through Judge Smith, carefully analyzed the evidence presented by the record and concluded that the appellant’s conduct constituted a real and substantial criminal “threat” as opposed to “political hyperbole.” While conceding that Watts requires the context of the chant and the mood and reaction of the crowd to be taken into account in coloring the words spoken, the district court looked not only to the exculpatory circumstances surrounding the event urged by appellant but also considered evidence in the record “of graver significance.” This evidence included testimony that on the night appellant’s offense was allegedly committed, (i) the mood of the crowd (which theretofore had been good-natured) became “more hostile, frightening;” (ii) the demonstrators possessed sticks and clubs which they held “in one hand and slapped in the palm of the other under the noses of deputies on the scene;” (iii) the crowd passed a steak knife from one demonstrator to another, and at the same time, exhibited umbrellas with pointed tips and a golf club shaft with the head removed; (iv) the appellant at the end of the “assassination” chant stated directly to Sergeant Edison “that goes for you too;” and (v) the demonstrators spat upon two police officers. The district court concluded that the totality of the evidence “could properly have convinced the jury that Matthews consciously embraced fear of bodily injury as an instrument of enforcing otherwise lawful demands.” Such a result is not proscribed by Watts, supra, and is consistent with State v. McInnes, 153 So.2d 854 (Fla. 1st DCA 1963), which concluded that in order for a demand and threat to be actionable under our extortion statute, it must be calculated to coerce the victim’s acquiescence “in order to prevent the threat from being carried out.”

If there is competent evidence in the record before the District Court of Appeal, First District, to support its conclusion, and if that court does not misapply the correct rule of law, its decision must be affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla. 1976). In the case sub judice, there exists evidence in the record to support the conclusion of the District Court of Appeal, First District, that the statute was not unconstitutionally applied to appellant. Furthermore, it is apparent that the District Court neither failed to consider nor misapplied the Waits decision. Under such circumstances it transcends the scope of our review to substitute our judgment for that of the jury, the trial judge and the District Court of Appeal, First District, and to determine upon our view of the same evidence in the record that the statute was unconstitutional as applied to appellant.

Accordingly, the decision of the District Court of Appeal, First District, is affirmed.

It is so ordered.

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

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents with an opinion.

BOYD, Justice,

dissenting.

In Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), in order to consider compelling First Amendment claims the United States Supreme Court reviewed the evidence in a conviction for knowingly making a threat to do bodily harm to the President. It reversed the conviction because it punished speech protected by the First Amendment. Watts made a threat to shoot the President at a time of great national tension over the Viet Nam War. The threat was made to a group at a public rally on grounds of the Washington Monument, not far from the White House. A President had been assassinated in the recent past. If Watts’ statement is protected speech then I cannot see how the “2-4-6-8” chant at a public gathering to protest what the demonstrator’s felt was government wrongdoing is anything other than protected speech. Regardless of personal views of the anti-social content of the expression for which Reverend Matthews is being punished, I am bound to follow the precedent set by the United States Supreme Court. I am constrained to dissent.

HATCHETT, Justice,

dissenting.

Was the “assassination” cheer voiced by Reverend Matthews and other demonstrators directed to inciting, threatening, or producing imminent violence against Sheriff Untreiner, Deputy Doug Raines, Governor Askew, and others? Were these cheers likely to incite or produce such lawless action? The majority opinion of this court and the opinion of the district court failed to address these two critical questions. Clearly, the evidence in the record is insufficient to support affirmative conclusions on these two issues. By upholding Reverend Matthews’ conviction of extortion, and by failing to narrowly construe Florida’s extortion statute, the majority violates the two-pronged test set forth by the United States Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 447-448, 89 S.Ct. 1827, 1829-1830, 23 L.Ed.2d 430 (1969), (unanimous per cu-riam opinion), which held that;

. the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action ... A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Until this court places such a limiting construction upon our extortion statute, especially as applied to political statements on public issues, the statute will remain overly broad and invalid on its face.

On December 20, 1974, a young black man was shot and killed by Deputy Sheriff Douglas Raines in Escambia County. A local grand jury investigation determined the homicide was justified. Members of the local black community were outraged over this tragedy, and they began to conduct nightly meetings in two local churches. After these meetings, marches were made to various downtown locations or to the county jail. “Human relations meetings” between public officials and local black leaders failed to produce any agreement since the sheriff was adamant in his refusal to fire the deputy who had committed the homicide, and the black community was equally steadfast in its determination to have this deputy removed from the sheriff’s force. Commencing January 24, demonstrations were held nightly at the county jail, culminating in the arrest of Reverend Matthews and one other leader on February 24. The trial transcript contains extensive testimony concerning the various events surrounding this conflict since the trial court admitted, over objections, all testimony relating to general “agitation” on the grounds that it was part of a general pattern to intimidate the sheriff into conceding to the protestors’ demands. Sergeant Jim Edson, the S.W.A.T. commander, in charge of crowd control during these protests, testified that the demonstrators made demands for the removal of Deputy Raines, for the removal of Sheriff Untreiner, for more black deputies, and for more black staff at the county jail. Members of the protest group carried cards bearing slogans such as “Do away with Douglas Raines,” and “Douglas Raines is a murderer.” Each day the number of demonstrators at the nightly protest meetings outside the county jail increased. On February 19, approximately 140 to 150 demonstrators were present; by the 21st, the crowd had increased to 160 or 175 persons; on the night before the arrest, more than 200 demonstrators were present at the police station. Sergeant Edson testified that by February 19, he noticed a change in the crowd from the initial days of the protests:

The crowds seems to increase, the tempo increased, the vocal tones got louder and louder, the demands became more so to where they included more persons than Doug Raines and Sheriff Untreiner at that time.

Sergeant Edson further testified that on February 19, he heard a new cheer, which was ultimately used by the police as a basis for the arrest and conviction of Reverend Matthews for extortion:

Two, four, six, eight, who shall we assassinate, Doug Raines, Sheriff Untreiner, Askew, and the whole bunch of you pigs.

At the end of the cheer, the demonstrators pointed their fingers at all the law enforcement officers present. The officers heard this cheer repeated on the 20th, the 21st, the 23rd, and the 24th of February. On the 20th of February, Sergeant Edson advised the sheriff of this “assassination” cheer and instructed other officers to do legal research and consult with the state attorney because the sergeant believed there must be “some law covering this type of vocal threat to do somebody bodily harm.” On February 21, the police made tape recordings of approximately 40 minutes of cheering, speeches, singing, and praying by the demonstrators at the county jail — including the “assassination” cheer. The officers testified that the crowd made this cheer “in unison . . . just like singing a song, a choir.” This cheer was only one of several cheers repeated each evening by the demonstrators. Others chanted by the crowd included: “We’re gonna stop, stop the racist cops” and “Ain’t gonna let nobody turn me round, turn me round, turn me round, ain’t gonna let nobody turn me round. Gonna keep on walking, keep on walking, walking on the freedom way.”

The majority opinion agrees with the state’s theory that appellant, by leading the “assassination” cheers, unlawfully communicated a threat in order to compel the sheriff to do an act against his will, i. e., dismiss Deputy Raines. The state emphasized that during the course of these demonstrations, the officers observed weapons among the crowd. The S.W.A.T. team commander testified to the presence of these weapons, stating:

On the 19th and a couple days prior to that ... we viewed clubs approximately 22 to 24 inches long on the front row immediately facing us and slapping them in their hands. We viewed a steak knife coming out of a ladies purse and being passed to a black male. We saw two or three with sticks in the back of the crowd, one with a cut-off golf club . We seen umbrellas that were pointed at the spiral.

The officers, however, made no arrests of the demonstrators for possession of weapons. Sergeant Edson stated that his orders were to try not to provoke the situation, but to keep the demonstrations peaceful and try to keep an entrance open to the jail. No firearms were present. This absence of any firearms among the demonstrators is significant. Further, the officers in charge of crowd control were themselves armed only with aluminum batons. Although the “assassination” cheer had been repeated each evening starting on the 19th of February, no action was taken by the sheriff until February 24. Sheriff Untreiner testified to his reasons for authorizing the arrests:

On Sunday night, February the 23rd, they marched again, arid this was one of the biggest, and the next morning, Monday, Sergeant Edson came to me, and he said that they had repeated the chants, threatening me and the governor and Raines, that they had blocked our cruiser cars so that they couldn’t get in or out on business. And I said, “well, it’s time to go see the state attorney, Curtis Golden.”

The sheriff was asked, while a witness at trial, about the alleged extortion threats, and whether he, in his 22 years experience as an FBI agent, had ever in his investigation of cases had a person make a threat against somebody else in that fashion. The sheriff answered, “No, sir. It was a strange way to make one.”

The district court and the majority opinion of this court conclude that there was sufficient evidence for the jury to find that Matthews “consciously embraced fear of bodily injury as an instrument of enforcing otherwise lawful demands.” (emphasis added) This result, the court stated, is consistent with the previous construction of the extortion statute in State v. McInnes, 153 So.2d 854 (Fla. 1st DCA 1963), which determined that in order for a demand and threat to be actionable under our extortion statute, it must be calculated to coerce the victim’s acquiescence “in order to prevent the threat from being carried out.”

Contrary to the determination by the majority, this construction of our extortion statute is inconsistent with Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), as explained by subsequent Supreme Court decisions, such as Brandenburg, which outlined the extent to which a state may outlaw the advocacy of violence. In Brandenburg, the defendant, a leader of a Ku Klux Klan group, was convicted under an Ohio syndicalism statute for advocating the duty, necessity, propriety of crime, sabotage, violence, or other unlawful methods of terrorism as a means of accomplishing industrial or political reforms. In that ease, the KKK held a meeting during which the members carried firearms, burned a cross, and made various derogatory statements against Blacks and Jews. In addition, the convicted leader gave a speech in which he stated that the members were going to march on Washington and other cities:

If our President; Congress, our Supreme Court continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken. Brandenburg, 395 U.S. at 446, 89 S.Ct. at 1829.

The United States Supreme Court, in that case, held the Ohio statute to be unconstitutionally broad because it was not narrowly construed to proscribe only that advocacy of violence directed to inciting or producing imminent lawless action, and likely to incite or produce such action. This is the test to be applied in this case. The subsequent decision in Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973), further explains what the Court meant by “advocacy is directed to inciting or producing imminent lawless action.” In that case, police officers were moving to clear a street filled with demonstrators. The demonstrators in their path moved to the curbs on either side, and Hess shouted at the police officers, “We’ll take the fucking street again.” He was arrested for disorderly conduct. The U.S. Supreme Court stated that Indiana’s disorderly conduct statute was applied in that case to punish only spoken words. Contrary to the Indiana Supreme Court’s determination that this statement “. was intended to incite further lawless action on the part of the crowd in the vicinity . and was likely to produce such action,” the U.S. Supreme Court stated that, at worst, it amounted to nothing more than advocacy of possible illegal action at some indefinite time. Hess, 414 U.S. at 108, 94 S.Ct. 326. Citing Brandenburg, the Court held that since the words were not intended nor were likely to produce imminent disorder, the words could not be punished by the state on the grounds that they had a “tendency to lead to violence.” Hess, 414 U.S. at 109, 94 S.Ct. 326. The decision in Watts should be read in conjunction with these and other cases which delineate what forms of speech may be punished as criminal. The U.S. Supreme Court in Watts did not require proof of a specific intent to carry out the threats made. However, proof of a “true threat” is necessary. This constitutionally-limited definition of the term “threat” was set forth to insure that only unequivocal, unconditional, immediate, and specific threats are punishable. In other words, the First Amendment does not protect verbal threats which convey a gravity of purpose and imminent prospect of execution. See, United States v. Kelner, 534 F.2d 1020 (2nd Cir. 1976).

In this case, the information charging Matthews did not restrict the application of the extortion statute in the manner consistent with Brandenburg and Watts. In addition, the trial court failed to instruct the jury according to these principles. The district court also failed to apply the proper legal tests to the facts of this case. Clearly, under the facts presented at trial, the “assassination” cheer was not a “true threat” since it was not directed to inciting, threatening, or producing imminent lawless action, nor was it likely to incite or produce such action. The state should have been required to prove that the sheriff reasonably feared imminent violence against his life if he did not concede to the protestors’ demands. The alleged “threat” was not unequivocal, unconditional, immediate, and specific, nor was it made in a manner and context which conveyed a gravity of purpose and imminent prospect of execution. Reverend Matthews did not urge the crowd to take up weapons and kill local police officers. Taking the facts in the worst light, the demonstrators were vocally expressing, by means of this cheer, their belief that Sheriff Untreiner and others deserved to be assassinated, in revenge for the killing of a local black citizen by a deputy sheriff. This is insufficient to make their spoken words actionable. Although fears existed in the community because of racial tensions, it is clear that the police officers did not believe that the cheers were threats of imminent violence. No arrests were made until five days after the “assassination” cheers began. Rather, the record implies that the police merely used these spoken words in order to arrest the leaders of the demonstration on charges more serious than the misdemeanor of disorderly conduct. Although the demonstrators were militant in their determination to achieve their demands, it is unreasonable to suggest that the “assassination” cheers were serious threats or incitements to kill the sheriff, his deputy, and the governor. Viewed in a realistic sense, the cheer was the type of “political hyperbole” discussed in Watts. The record reflects the greatest fear on the part of the sheriff was the growing size of each night’s demonstration, and the greater effectiveness that such demonstrations were having on the operations of the sheriff’s office and the community. Such civil disobedience might have been sufficient to have subjected the demonstrators to other criminal charges for disorderly conduct or trespassing. The serious extortion charges against appellant, however, punish the spoken ' words of the demonstrators, rather than their possibly disruptive conduct.

General threats to assassinate or incarcerate public officials, unless certain political changes are made, may be a distasteful, counterproductive, and unwise manner of voicing political demands. Such words, however, are not actionable unless they are directed towards inciting or threatening imminent lawless action, and, in addition, are stated in a manner and circumstance which raise reasonable fears as to the likelihood of their execution. There is insufficient evidence in the record to support any conclusion that the cheers of the demonstrators went beyond speech protected by the First Amendment.

Political disputes often involve exaggerated statements of intent, such as those involved in Watts and in the present case. Our country has traditionally committed itself to the principle that debate on public issues should be uninhibited, robust, and wideopen, in that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See, New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. Watts, 394 U.S. at 708, 89 S.Ct. 1399. However, “the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate, or sooner or later they will be denied to the ideas we cherish.” The protections of the First Amendment encompass all of our citizens, whether black militants or Ku Klux Klan members. Only by allowing our citizens to voice their political opposition to the fullest extent possible can we encourage the use of the open political forum and inhibit the growing tendency of clandestine violent attacks as a means of political change. Since the construction placed upon our extortion statute allows the prosecution of protected speech, as evidenced by the record in this case, I must respectfully dissent.

      . As pointed out in the opinion of the district court there was conflicting evidence as to whether the precise word “assassinate” was used by the demonstrators, but the jury’s verdict binds a reviewing court to the “assassination” version of the chant urged by the State.

      . § 836.05, Fla.Stat. (1973), states:
      “Threats; extortion. — Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his will, shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

      . 18 U.S.C. § 871(a) (1964).

      . The Supreme Court, in Brandenburg, expressly overruled Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), which had permitted prosecution for the verbal advocacy of terrorism as a method of political reform, without requiring proof of imminent danger of violence. The “clear and present danger” rule, as applied in Whitney and similar decisions, was discarded in favor of the more restrictive version of the test set forth in Brandenburg. The serious questions concerning the application of the “clear and present danger” test which were articulated in the concurring opinion of Justices Brandéis and Holmes apparently formed the basis for the more restrictive criteria announced over 40 years later in Brandenburg :

      This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection. . . Whitney, 274 U.S. at 374, 47 S.Ct. 641.
      Fear of serious injury cannot álone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. . . . But even advocacy of [law] violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. Whitney, 274 U.S. at 376, 47 S.Ct. 641, 648.

      . The Affidavit of Complaint stated:
      “ . . . On the night of February 21st, 1975, Hawthorne Konrad Matthews did, on the steps of the county jail, lead a chant which included the words, ‘Two-Four-Six-Eight, who we gonna assassinate, Untriener (sic), Raines, and the whole damn bunch,’ this unless Deputy Douglas Raines was fired or suspended from the sheriff’s office.”

      . There is only one mention in the record of a firearm being possessed by a member of the protest group. One deputy observed a man standing guard outside of a local church, where a protest meeting was being held, with a shotgun in his arms.

      . The manner in which the alleged threats were publicly announced and the political nature of the demands sought by the demonstrators emphasize the misapplication of the extortion statute by the majority opinion.

      . Mclnnes involved a threat communicated in secret to the victim, demanding payment of money in order to prevent the threat from being executed.

      . The Court in Brandenburg further noted that statutes affecting the right of assembly, like those touching on freedom of speech, must observe this distinction between mere advocacy and incitement to imminent lawless action.

      . See our recent decisions in Spears v. State, 337 So.2d 977 (Fla. 1976) (public use of obscene language); State v. Saunders, 339 So.2d 641 (Fla. 1976) (breach of peace); State v. Simpson, 347 So.2d 414 (Fla. 1977); McCall v. State, 354 So.2d 869 (Fla. 1978) (insulting a teacher at school); Brown v. State, 358 So.2d 16 (Fla. 1978), Case no. 50,559, (open profanity) in which we construed or held unconstitutional state statutes in a manner consistent with the requirements of the First Amendment. As noted in New York Times Co. v. Sullivan, 376 U.S. at 269, 84 S.Ct. 710, 11 L.Ed.2d 686, regardless of the “label,” no state action is immune from those constitutional limitations. In Spears, supra, 337 So.2d at 980, we noted that special rules apply in cases where a statute makes speech punishable as a crime. The government may regulate in this area only with narrow specificity, and such statutes can withstand constitutional attack only if they are not susceptible of application to protected expression. In the above cited cases, we recognized that those statutes must be construed to apply only to that constitutionally unprotected class of words — fighting words, — which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The terms “fighting words” and “true threat” are founded upon similar requirements, i. e., proof that there is a reasonable likelihood of imminent harm.

      .The opinion in Kelner, supra, 534 F.2d at 1027, concluded that the:
      . . requirement of proof of a “true threat” . works ultimately to much the same purpose and effect as would a requirement of proof of specific intent to execute the threat because both requirements focus on threats which are so unambiguous and have such immediacy that they convincingly express an intention of being carried out.
      The facts in Keiner present a good example, in contrast to the present case, of a threat which does not constitute protected political expression. There, a leader of the Jewish Defense League, dressed in military uniform and armed with a gun, stated in serious, unequivocal, and unconditional language that his group was planning to assassinate Palestinian leader Yas-ser Arafat, who was visiting this country. Kei-ner stated that:
      We have people who have been trained and who are out now and who intend to make sure Arafat and his lieutenants do not leave this country alive . . . Everything is planned in detail . . . United States v. Keiner, 534 F.2d at 1021.

      . The charging information stated:
      BILLIE JOE BROOKS, SR., AND HAWTHORNE KONRAD MATTHEWS on/or about the 21st day of February, in the Year of Our Lord, One Thousand, Nine Hundred and seventy-five at and in Escambia County, Florida did verbally and maliciously threaten injury to the persons of Sheriff Royal E. Untreiner, Deputy Sheriff Doug Raines and numerous other Deputy Sheriffs, with intent thereby to compel the persons so threatened to do an act against their will, to-wit: to compel the suspension or resignation of Deputy Sheriff Doug Raines against the will of Sheriff Royal E. Untreiner and against the will of Deputy Sheriff Doug Raines, contrary to section 836.05, Florida Statutes.

      . The fact that appellant did not object to the trial court’s instructions is immaterial, see Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). This court has accepted jurisdiction to révíew this case to determine whether the extortion statute is unconstitutionally broad because it encompasses within its proscription speech protected by the First and Fourteenth Amendments. It appears from the majority opinion that this court has improperly restricted its review of this case to the question of whether there is competent evidence in the record to support the conclusions of the district court, and whether that court applied the correct rule of law. To the contrary, our appellate review of this case should determine whether the facts presented in the record could constitutionally support a conviction, in addition to the separate question as to the constitutional validity of the statute. The United States Supreme Court has stated that, in cases involving alleged First Amendment violations, it would make an independent examination of the whole record, to assure itself that the judgment does not constitute a forbidden intrusion on the field of free expression. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697. In New York Times Co. v. Sullivan, 376 U.S. 285, 84 S.Ct. 710, 11 L.Ed.2d 686, the Court reiterated this principle of review stating that it was not limited merely to an elaboration of constitutional principles but also to a review of the evidence to make certain that those principles have been constitutionally applied. Pursuant to our direct appellate review of this case, we should assume no lesser duty.

      . It is significant that the district court reversed the conviction of co-defendant Brooks, in spite of its conclusion that there was enough evidence to support the jury’s determination that Brooks had also participated in the same “assassination” cheer. If the cheer had conveyed an unambiguous threat of imminent harm to Sheriff Untreiner and Deputy Raines, then all those voicing such a “true threat” could be punished. Brooks’ secondary leadership role and his efforts to keep the demonstration peaceful would be irrelevant as a defense to prosecution for his voicing a true criminal threat. See, Matthews v. State, 336 So.2d 643, 646 (Fla. 1st DCA 1976).

      . Quoted from the dissenting opinion from Justice Hugo Black, in Communist Party v. S.A.C.B., 367 U.S. 1, 137, 81 S.Ct. 1357, 1431, 6 L.Ed.2d 625 (1961), cited with approval in Healy v. James, 408 U.S. 169, 188, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972).


author: BOYD, Justice.

text:
    Clarence T. FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 50672.
    Supreme Court of Florida.
    July 27, 1978.
    Rehearing Denied Nov. 28, 1978.
    Larry M. Roth of the Law Offices of Rutberg & Roth, Casselberry, Sp. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   BOYD, Justice.

Clarence T. Flowers is appealing directly to this Court his conviction in the Seminole County Court. The conviction was for falsely reporting the commission of a crime in violation of Section 817.49, Florida Statutes. During proceedings in the trial court he challenged the statute’s constitutional validity. The trial judge upheld it. We have jurisdiction of the appeal. Article V, Section 3(b)(1), Florida Constitution.

Appellant offers two constitutional arguments for reversal. First, he contends the statute is vague. Second, he contends that his Fifth Amendment rights were violated because he was not given Miranda warnings soon enough when he reported falsely the commission of a crime. Both arguments are meritless.

The judgment and sentence of the court below are affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, HATCHETT and ALDERMAN, JJ., concur.

SUNDBERG, J., concurs in result only.

       817.49 False reports of commission of crimes; penalty. — Whoever willfully imparts, conveys or causes to be imparted or conveyed to any law enforcement officer false information or reports concerning the alleged commission of any crime under the laws of this state, knowing such information or report to be false, in that no such crime had actually been committed, shall upon conviction thereof be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.