author: BOOKOUT, Judge.

text:
    Robert HUNTER, alias v. STATE.
    6 Div. 646.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.
    Roderick Beddow, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder: sentence, fifty years and one day imprisonment.

The appellant was convicted of second degree murder in 1967. This Court reversed and remanded. Hunter v. State, 48 Ala.App. 232, 263 So.2d 690 (1972). The appellant was retried, convicted again of second degree murder and again has appealed.

Mrs. Wanda Smith Tate, wife of the deceased, Gordon Smith, testified that the killing took place on March 19, 1967, around 9:30 p. m. She had just returned home from church when she was nearly forced off the road by an on-coming car which parked in front of her home as she drove into her carport. She immediately told her husband of the incident, and he drove their car down the driveway to where the other automobile was parked. Mrs. Tate was then telephoning her sister-in-law who lived across the street. She then went down the driveway on foot, heard a voice, not her husband’s, cursing loudly, then heard one shot and ran to her wounded husband.

Mrs. Tate said she observed a person at the scene whom she had never before seen and identified him as the appellant. She said he ran to his automobile, “squeaked the tires and sped off.” Her brother-in-law, Joe Beasley, and a neighbor, Hubert Sims, were at the scene when she reached her husband.

Dr. Joe W. O’Neal testified as to treating the deceased around 10:30 p. m. on the night in question. He testified that Mr. Smith died during the emergency treatment from a gunshot wound in the neck.

Joe Beasley testified that his wife was the sister of the deceased and that he was an eyewitness to the shooting. His wife received a telephone call from the wife of the deceased and went outside. He then went out also and went down the driveway to the road where two cars were sitting side by side with a pickup truck parked to the rear of one. Hubert Sims was in the truck. Mr. Smith was standing beside the truck talking to Mr. Sims.

The witness saw the appellant with a rifle in his hands approach the deceased. The witness said he told the appellant to put the gun up, and the appellant turned the gun on him saying, “You stay out of this you son of a bitch.” He then observed Hunter walk up to the deceased, curse him and jab him three or four times with the rifle. He heard the deceased ask Hunter why he had followed his wife home, whereupon the appellant said he had not followed her, that he had come for the man across the street.

The witness said Hunter then cursed Smith again saying, “I think I’ll just shoot you, you smart son of a bitch,” whereupon he raised the rifle, aimed at Smith’s neck and shot him. Hunter then turned, ran to his car and sped away.

The witness did not hear Smith curse Hunter. He only heard one shot. His brother-in-law had a pistol in his hand when Hunter shot him with the rifle, but he did not see Smith raise the pistol at any time. The witness took the pistol to his home where he and his wife emptied the chambers. There were six chambers in the .38 caliber pistol, but only five cartridges and none had been fired. He put the pistol and cartridges in a sack, and his wife put them up. He did not tell the police about the pistol, nor give it to them.

Mrs. Madge Smith Beasley, sister of the deceased, was an eyewitness and saw the appellant shoot her brother. She testified to substantially the same facts as her husband.

Hubert Sims, a neighbor of the deceased, testified for the defense that as he was starting to work on the night in question, he stopped his pickup truck behind two cars which were blocking the road. Smith, the deceased, came back to his truck with what appeared to be a gun in his hand and said the man in the other car had followed his wife home and that, “he might have to kill him, or was going to kill him, or something like that.” He did not remember the exact words Smith used.

He said the appellant then got out of his car with a .22 caliber rifle in hand and came back to where Smith was standing by the truck. There was an exchange of words, Hunter struck the deceased a couple of times with the rifle. He did not hear the deceased ever curse the appellant, nor did he see the deceased raise his pistol. He testified on cross examination that Hunter used words similar to the threat Joe Beasley testified that Hunter made to the deceased. The appellant then stepped back and shot Smith with the rifle. The witness only heard one shot fired.

The appellant, Robert Lee Hunter, testified in his own behalf. He said he was parked just above the Smith’s driveway waiting on a man who lived across the street, when the deceased pulled up in another car and accused the appellant of following his wife home. Hunter denied it and told him it was none of his business what he was doing there as it was a public street. Smith came around his car with a pistol, cursed Hunter, accusing him again of following his wife, and shot into his car.

The pickup truck then arrived, and the testimony is substantially the same as already set out, except that the appellant claims Smith raised his pistol, thereby causing the appellant to fire his rifle in self-defense.

The appellant went home, talked to his mother and a Mr. Gray and then drove to the Northport Police Station. His mother left the station in the car, at the request of the police, and returned with the rifle. Police officers searched the car at the station and were unable to find a bullet hole inside that night. The next morning, appellant’s mother showed investigating officers a bullet hole in the car. She testified that she did not fire a shot into the car to make the hole. A ballistics expert identified the slug as a .38 caliber, but due to its condition, it was impossible to determine from which gun it was fired.

I

The appellant contends the trial court erred in refusing his requested charge number 22:

“Defendant’s Requested Charge No. 22 I charge you, members of the jury, that while threats alone will not serve as a justification for homicide, if the jury believe from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.
REFUSED Joseph A. Colquitt, JUDGE”

The appellant contends that he had a legal right to put before the jury for their consideration, the legal effect of a threat against his life made by the deceased. He contends the threat was made to him at his automobile and that the deceased’s intent to carry out the threat was manifested by the deceased shooting a pistol into the appellant’s automobile.

The deceased then walked back to a pickup truck which had just arrived and and began talking to witness Sims. The appellant, instead of retreating or leaving the scene, got a rifle from the back seat of his car, got out and came back to where the deceased was talking to Sims. The evidence establishes that the appellant there began to jab or hit at the deceased with the rifle and then shot and killed him. No witness, except the appellant, saw the deceased raise his pistol or make any threatening move toward the appellant at the time of the shooting. Likewise, no other witness heard more than the one shot which killed the deceased.

To have given the requested charge in question, would have given undue emphasis to a portion of the evidence. It would have given undue weight to the appellant’s testimony, contrary to the testimony by witnesses who heard no threat made to the appellant and who saw no overt act on the part of the deceased to carry out the alleged threat.

While the charge, in another form, was given on behalf of the State in Karr v. State, 100 Ala. 4, 14 So. 851 (1893), the facts there are easily distinguishable from the instant case. The Court there held that under the evidence presented, the charge given at the request of the State was a correct legal principle, and the Court would not reverse the trial court for giving it.

In Karr, supra, the Court stated:

“The homicide which gave rise to this prosecution was perpetrated on August 28, 1892, and at the entrance of defendant’s dwelling. There is no conflict in the testimony on these points. When shot down and killed, deceased was approaching the door of defendant’s home with a gun in hand, though not raised, or put in position for shooting. There is testimony that deceased had made threats against the life of the accused, and that he was a man of violent and dangerous character . ' . . . ”

Assuming the deceased in the instant case did in fact threaten the appellant before Sims drove up, he immediately left the appellant and went to Sims’ truck when it arrived at the scene. From that point on, it was the appellant who came toward the deceased and who exhibited threatening conduct toward the deceased. The facts here differ greatly from those set forth in Karr, supra. While the State’s given charge in the Karr case may have been correct under the facts there, we believe such a charge in the instant case is not supported by the evidence, would over-emphasize the appellant’s theory of the case, and would be misleading to the jury.

Considering the appellant’s conduct, including his failure to retreat when he had the chance, we are of the opinion that proper instructions for the jury to have considered were those dealing with the law of self-defense covered in the trial court’s oral charge and in given charge number 28 requested by the appellant. Title 7, § 273, Code of Alabama 1940.

II

The second contention of the appellant is that the trial court committed error in refusing his requested charge number 11:

“Defendant’s Requested Charge No. 11 I charge you, members of the jury, that it is the duty of the State to prove every material fact charged in the indictment to a moral certainty and to satisfy the mind of the jury of the defendant’s guilt beyond all reasonable doubt, and if the State has failed to do this, and the jury can account for the defendant’s innocence upon any reasonable hypothesis, in view of all the evidence, then the jury should find the defendant not guilty.

REFUSED Joseph A. Colquitt, JUDGE.” This charge was held good in McAdory v. State, 62 Ala. 154 (1878), and portions thereof were held good in Mose v. State, 36 Ala. 211 (1860) and Joe v. State, 38 Ala. 422 (1863). However, under the peculiar circumstances of this case, we feel the court properly refused the charge. It charges inter alia, that the State must, “prove every material fact charged in the indictment . . . . ” (Emphasis supplied). The indictment charges murder in the first degree. Since, on a prior trial, the appellant had been convicted of murder in the second degree under the same indictment, he was no longer subject to conviction on the first degree charge. The trial court properly instructed the jury in this regard:

“Bu (sic) operation of law this indictment, in effect, is amended to read, ‘but without premeditation and deliberation.’ Therefore, this indictment charges the offenses of Murder in the Second Degree, Manslaughter in the First Degree, and Manslaughter in the Second Degree. There is no charge of Murder in the First Degree in this case, and you will not have a verdict form pertaining to Murder in the First Degree and you cannot render a verdict of Murder in the First Degree in any way in this case. It is just not an issue.”

Thus, the requested charge in question would be misleading to the jury in view of the correct oral charge, supra, in that it in effect charges that the jury should acquit if the State failed to prove every material fact under the first degree indictment which, absent the court’s oral instruction above, would include premeditation or deliberation. (See indictment forms 80 and 81, Title 15, § 259, Code of Alabama 1940.)

The Supreme Court of Alabama has held a similar charge to be bad in cases where the indictment includes offenses of differing degree. Stoball v. State, 116 Ala. 454, 23 So. 162 (1897); Young v. State, 149 Ala. 16, 43 So. 100 (1907); Coats v. State, 253 Ala. 290, 45 So.2d 35 (1950).

We are of the opinion that the trial court’s oral charge properly instructed the jury regarding the burden of proof and reasonable doubt. Title 7, § 273, Code of Alabama 1940.

Ill

The final proposition of law in the appellant’s brief claims error on the part of the trial court for refusing requested charge number 16:

“Defendant’s Requested Charge No. 16 I charge you, members of the jury, that the defendant cannot be convicted of murder in the second degree unless he inflicted an act of violence upon the deceased which produced his death, and at the time he inflicted such act of violence he had the intention to kill the deceased.
REFUSED Joseph A. Colquitt, JUDGE”

The trial court charged the jury, on record page 296, in part as follows:

“ . . .In order to convict a person of Murder in the Second Degree, you must be satisfied from the evidence beyond a reasonable doubt and to a moral certainty that that person killed another and he did so willfully and maliciously . . . . ” (Emphasis supplied)

The trial court went on to give a detailed definition of “willful” and “malice.” Title 7, § 273, supra, does not require that a correct statement of the law be given in a requested charge if it is substantially and fairly covered in either the trial court’s oral charge or in requested charges given. We are of the opinion that the above emphasized portion of the court’s oral charge fairly and substantially covers the matter contained in refused charge number 16.

The trial court, by using the term “willfully or maliciously” could have phrased the proposition no better by using the words

“intentionally or with malice” since both phrases have the identical meaning. “Willful” and “intentional” are synonymous. See: Webster’s Third New International Dictionary; Black’s Law Dictionary (4th ed. 1951); and, Words and Phrases, Volume 22, “Intentional,” and Volume 45, “Willful,” and innumerable cases cited therein.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re Robert HUNTER v. STATE of Alabama. Ex parte Robert Hunter.
    SC 1397.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Rehearing Denied Jan. 9, 1976.

      Roderick Beddow, Jr., and James M. Fullan, Jr., Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., Joseph G. L. Marston III, and Aubrey Ford, Jr., Asst. Attys. Gen., for the State, opposed.
   BLOODWORTH, Justice.

This petition for writ of certiorari seeking review and reversal of a Court of Criminal Appeals’ decision was granted and submitted after oral argument. The ’ decision below affirmed petitioner’s second degree murder conviction.

The basis for review is averred to be a “conflict” between that decision and this Court’s decision in Karr v. State, 100 Ala. 4, 14 So. 851 (1893), inter alia. We agree and reverse and remand.

Petitioner was first convicted in 1967 of murder in the second degree. The cause was reversed and remanded by the Court of Criminal Appeals, Hunter v. State, 48 Ala.App. 232, 263 So.2d 690 (1972). Petitioner was again tried, resulting again in a conviction of second degree murder and again appealed, resulting in an affirmance by the Court of Criminal Appeals. The facts, as contained in the opinion of that court, are as follows:

“Mrs. Wanda Smith Tate, wife of the deceased, Gordon Smith, testified that the killing took place on March 19, 1967, around 9:30 p. m. She had just returned home from church when she was nearly forced off the road by an on-coming car which parked in front of her home as she drove into her carport. She immediately told her husband of the incident, and he drove their car down the driveway to where the other automobile was parked. Mrs. Tate was then telephoning her sister-in-law who lived across the street. She then went down the driveway on foot, heard a voice, not her husband’s, cursing loudly, then heard one shot and ran to her wounded husband. -

Mrs. Tate said she observed a person at the scene whom she had never before seen and identified him as the appellant. She said he ran to his automobile, ‘squeaked the tires and sped off.’ Her brother-in-law, Joe Beasley, and a neighbor, Hubert Sims, were at the scene when she reached her husband.

“Dr. Joe W. O’Neal testified as to treating the deceased around 10:30 p. m. on the night in question. He testified that Mr. Smith died during the emergency treatment from a gunshot wound in the neck.

“Joe Beasley testified that his wife was the sister of the deceased and that he was an eyewitness to the shooting. His wife received a telephone call from the wife of the deceased and went outside. He then went out also and went down the driveway to the road where two cars were sitting side by side with a pickup truck parked to the rear of one. Hubert Sims was in the truck. Mr. Smith was standing beside the truck talking to Mr. Sims.

“The witness saw the appellant with a rifle in his hands approach the deceased. The witness said he told the appellant to put the gun up, and the appellant turned the gun on him saying, ‘You stay out of this you son of a bitch.’ He then observed Hunter walk up to the deceased, curse him and jab him three or four times with the rifle. He heard the deceased ask Hunter why he had followed his wife home, whereupon the appellant said he had not followed her, that he had come for the man across the street.

“The witness said Hunter then cursed Smith again saying, T think I’ll just shoot you you smart son of a bitch,’ whereupon he raised the rifle, aimed at Smith’s neck and shot him. Hunter then turned, ran to his car and sped away.

“The witness did not hear Smith curse Hunter. He only heard one shot. His brother-in-law had a pistol in his hand when Hunter shot him with the rifle, but he did not see Smith raise the pistol at any time. The witness took the pistol to his home where he and his wife emptied the chambers. There were six chambers in the .38 caliber pistol, but only five cartridges and none had been fired. He put the pistol and cartridges in a sack, and his wife put them up. He did not tell the police about the pistol, nor give it to them.

“Mrs. Madge Smith Beasley, sister of the deceased, was an eyewitness and saw the appellant shoot her brother. She testified to substantially the same facts as her husband.

“Hubert Sims, a neighbor of the deceased, testified for the defense that as he was starting to work on the night in question, he stopped his pickup truck behind two cars which were blocking the road. Smith, the deceased, came back to his truck with what appeared to be a gun in his hand and said the man in the other car had followed his wife home and that, ‘he might have to kill him, or was going to kill him, or something like that.’ He did not remember the exact words Smith used.

“He said the appellant then got out of his car with a .22 caliber rifle in hand and came back to where Smith was standing by the truck. There was an exchange of words, Hunter struck the deceased a couple of times with the rifle. He did not hear the deceased ever curse the appellant, nor did he see the deceased raise his pistol. He testified on cross examination that Hunter used words similar to the threat Joe Beasley testified that Hunter made to the deceased. The appellant then stepped back and shot Smith with the rifle. The witness only heard one shot fired.

“The appellant, Robert Lee Hunter, testified in his own behalf. He said he was parked just above the Smith’s driveway waiting on a man who lived across the street, when the deceased pulled up in another car and accused the appellant of following his wife home. Hunter denied it and told him it was none of his business what he was doing there as it was a public street. Smith came around his car with a pistol, cursed Hunter, accusing him again Of following his wife, and shot into his car.

“The pickup truck then arrived, and the testimony is substantially the same as already set out, except that the appellant claims Smith raised his pistol, thereby causing the appellant to fire his rifle in self-defense.

“The appellant went home, talked to his mother and a Mr. Gray and then drove to the Northport Police Station. His mother left the station in the car, at the request of the police, and returned with the rifle. Police officers searched the car at the station and were unable to find a bullet hole inside that night. The next morning, appellant’s mother showed investigating officers a bullet hole in the car. She testified that she did not fire a shot into the car to make the hole. A ballistics expert identified the slug as a .38 caliber, but due to its condition, it was impossible to determine from which gun it was fired.”

The opinion states that a threat was made to petitioner-defendant at his automobile and the record reflects that the following transpired, viz:

“He told me, he said, ‘You-son-of-a-bitch you,’ said ‘you’ve been following my wife and I’m going to kill you for it.’ And he just pulled his pistol up there and shot into my car.”
******
“A. When I was getting out I heard the man that shot into my car tell the man in the truck that he — he made this statement: He said, ‘That son-of-a-bitch has been following my wife.’, and said, ‘I’m going to kill him for it.’
“Q. And what, if anything, occurred then?
“A. Well, I walked back there. I wanted to find out what he shot into my car for.”
******
“Q. Yes, sir, and then what happened?
“A. I looked back at Mr. Smith and he had the pistol in his right hand and he was raising it.
“Q. Yes, sir. Then what happened?
“A. And I hit him on the hand one time which he had the pistol in and he —with his left hand he shoved the end of the rifle barrel back.
“Q. What happened then? If anything.
“A. He kept raising his pistol so I stepped back.
“Q. Yes, sir. Then what, if anything happened ?
“A. And I shot him.”

We may look at the record for a complete understanding of the questions treated when there is no dispute thereon. Life Insurance Co. v. Miller, 292 Ala. 525, 296 So.2d 900 (1974); Vol. 4 Alabama Digest, Certiorari, @=>57.

Petitioner contends that, under these fácts, the trial court erred to a reversal in refusing the following charge:

“Defendant’s Requested Charge No. 22, I charge you, members of the jury, that while threats alone will not serve as a justification for homicide, if the jury believe from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.
“REFUSED Joseph A. Colquitt,
JUDGE”

In affirming the conviction, the Court of Criminal Appeals concluded that the refusal to give Charge 22 was not error because: (1) it gave “undue emphasis” to that portion of the evidence regarding threats; (2) it was “not supported by the evidence;” (3) it was “misleading;” (4) it was “covered” by the court’s oral charge and given Charge 28; and (5) this case is factually “distinguishable” from Karr v. State, supra, in which a similar charge was held to have been properly given on behalf of the state.

At the outset of this discussion, it may be well to state our well-established rule that the only proper purpose for which “threats” by a deceased may be offered, after some testimony has been presented to prove self-defense [Jones v. State, 181 Ala. 63, 61 So. 434 (1913); McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, rev’d on other grounds, 292 Ala. 378, 294 So.2d 766 (1974)], is to show whether the killing was justified because the accused was in apparent and immediate danger to life or grievous bodily harm. Turner v. State, 160 Ala. 40, 49 So. 828 (1909); Beasley v. State, 181 Ala. 28, 61 So. 259 (1913).

As to the conclusion that the refused charge gave “undue emphasis” [“prominence”, Vol. 11A Alabama Digest Homicide, <®=5300(6)], we cannot agree. The charge clearly states a proposition of law in the form of a requested charge, twice held to have been a correct statement of the law and to have been properly given for the state in Karr v. State, 100 Ala. 4, 14 So. 851 (1893); 106 Ala. 1, 17 So. 328 (1894). True, the Karr case, on its facts, is different from the case at bar, but both Karr and the present case involved the question of “prior threats” and their relevance with respect to a plea of self-defense. It would appear that the Court of Criminal Appeals has fallen into the error of attempting to “weigh” the evidence — in stating that other witnesses saw no overt act and heard no threat. The question is not what is their, or our, view of the evidence, but simply whether such evidence was presented. It was.

Nor can we agree with the Court of Criminal Appeals that the charge was not supported by the evidence, i.e., “abstract.”

The facts in the instant case are somewhat similar to the facts in the hundred-year-old case of Gilliam v. State, 50 Ala. 145 (1874). There, the armed deceased went to the house of the defendant and began a conversation and searched, as if for something stolen, in the presence of defendant’s family. Whereupon, he left but called defendant to come out and defendant armed himself and went out, when, being asked by defendant as to why he treated his family so, deceased replied, “Damn you, go to shooting,” at this time handling his pistol. Defendant then slew him. The Court held certain instructions dealing with self-defense ought to have been given, reversing the judgment of conviction.

In the instant case, whether defendant acted prudently in taking his rifle and going up to deceased at the pickup is not decisive of his plea of self-defense. The jury might have found, if they believed his testimony, under proper instructions from the court, that his conduct was free from design to harm deceased, and was only for the purpose of asking why deceased shot at him. To sum up on this point, in language paraphrased from Gilliam, supra, viz:

“The refusal of the charges may have impressed the jury with the belief that the defendant in going out [from his car] armed, forfeited any excuse for the killing, which the threatening attitude of the deceased would otherwise have given him.”

The charge was clearly supported by the evidence.

The charge was not misleading, having been held proper to give in Karr both times it was before this Court.

The Court of Criminal Appeals wrote that the court’s oral charge and given Charge 28 “covered” this Charge 22. Neither does. There is no mention of “threats” in either charge.

Although this case may not be factually the same as Karr, we think that, under the facts of this case, the Karr charge should have been given. The defendant was entitled to have the jury charged on this aspect of his defense since a correct request in writing was made to the trial judge and was not “covered” by the oral charge or other given charges.

The judgment of the Court of Criminal Appeals is reversed.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, JONES and SHORES, JJ., concur.

ALMON and EMBRY, JJ., recused themselves.


text:
    Robert HUNTER, alias v. STATE.
    6 Div. 646.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
   AFTER REMAND FROM SUPREME COURT OF ALABAMA:

Reversed and remanded, without opinion, on mandate of Supreme Court of Alabama, 295 Ala. 180, 325 So.2d 921.


author: CATES, Presiding Judge.

text:
    Robert Fleming WILKINS v. STATE.
    1 Div. 561.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      Thomas M. Haas, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Wilkins, convicted of voluntary manslaughter appeals from a judgment based on a jury verdict which also fixed punishment at four years imprisonment.

Wilkins shot John Roush with a pistol. The wound was fatal. The place was in a private club which had, past the bar, a pool table. Roush was annoying two pool-sharks. Wilkins, who was a quondam, ad hoc or part time bouncer, remonstrated with Roush and in the course of the ensuing confrontation shot him once. The shot caused his death.

Self defense was raised. One defense witness saw a large knife-like “industrial tool” lying beside the deceased.

The trial judge charged on the law of self defense. No exception was taken to his oral instruction. Hence, it became, along with the given written charges, the law of the case. Code 1940, T. 7, § 273. See the footnote to concurring opinion of Rehnquist, J., in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.

An omission from (or gap in) the oral charge and the given written charges is reviewable on appeal only in the light of and from the text of the written charges submitted to the judge and refused by him. § 273, supra. We do not ex mero motu review instructions to the jury. Smith v. State, 53 Ala.App. 657, 303 So.2d 157(5).

Wilkins submitted the following charge (No. 7) which reads:

“The court charges the Jury, that where the defendant introduces evidence of self defense to justify the killing of deceased, the burden is upon the State to prove beyond a reasonable doubt that the killing was not in self defense, and unless the State has done so in this case, you must find the defendant not guilty.”

This instruction is too broad as to the burden on the State. When the defendant produces proof from which it is inferable that an admitted slaying arose from the necessity of self preservation (ordinarily in peril of life or limb and without means of escape), the State may counter with proof (which to persuade must convince beyond a reasonable doubt) that the killer created the necessity.

Ordinarily, the State’s burden to thwart self defense is expressed as a negative, e. g., “showing that he was not free from fault in bringing on the difficulty * . * *.” See Charge 10 in Smith v. State, 183 Ala. 10, 62 So. 864; for a succinct approved charge see James v. State, 167 Ala. 14 (hn. 4), 52 So. 840. Proving a negative is not novel. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.

There was no error in refusing Charge 7, supra. This point is the only claim of error in appellant’s brief.

We have examined the whole record under Code 1940, T. 15, § 389 and conclude the judgment below is to be

Affirmed.

All the Judges concur.

      . Code 1940, T. 14, §§ 320 and 322.

      . See Tarrant v. City of Birmingham, 39 Ala.App. 55, 93 So.2d 925; Gulas v. City of Birmingham, 39 Ala.App. 86, 94 So.2d 767 and Hare v. City of Birmingham, 39 Ala. App. 89, 94 So.2d 769.


author: McCAIN, Justice. PER CURIAM.

text:
    James Thomas LOWE, Petitioner, v. Edward STACK, Sheriff of Broward County, Florida, Respondent.
    No. 46015.
    Supreme Court of Florida.
    Dec. 18, 1974.
    On Rehearing July 30, 1975.
    Stanley L. Seligman, Hollywood, for petitioner.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondent.
   McCAIN, Justice.

Petitioner, via application for habeas corpus, to which the writ was issued and a return was requested and received, is attempting to break the apparent insurmountable cordillera of the charge against him for first degree murder and his conviction as charged.

His attack’s cordon, without Corinthian aspects, is a clamorous censure asserting departure from essential law and seeks a diastole approach to what he asserts to be the true concept of legal construction of our law. In effect, he opposes any systole application.

With diatonic rhythm, he has set forth his reasons for illegal detainer, and, therefore, let us direct our attention to not only a problem worthy of discussion but also to arriving at an answer with a non-disastrous result.

Oral argument is dispensed with and we have jurisdiction pursuant to Art. V, § 3(b)(6), Florida Constitution.

The provocative issue before us arose when petitioner was informed against (not indicted) on November 20, 1972, for an alleged first degree murder committed on November 13, 1972.

Ergo, the basic issue arises as to whether petitioner’s trial should have been pursuant to indictment as opposed To only an “information”.

It appears that the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the interrelation of State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974), and the subsequent determination in Lee v. State, 294 So.2d 305 (Fla.1974), are apparently still unclear.

At the time of the rendition of the decision in Furman, neither Chapter 72-72 nor Chapter 72-724, Laws of Florida were in effect. The statute in effect was Chapter 70-339, Laws of Florida, better known as Section 921.141, Florida Statutes (1971). This section is the procedural provision styled “Recommendation of Mercy”. It was this statute, designating the procedure to be used for the determination of the imposition of the death penalty, that was before the Supreme Court of the United States and determined to be unconstitutional in Furman and not Chapter 72-72 nor Chapter 72-724, Laws of Florida.

Almost coincidentally with the determination of Furman, the Florida Legislature passed Chapter 72-72. Ultimately, the procedure used for the determination of the imposition of the death penalty, as set out in Chapter 70-339, Laws of Florida, was held unconstitutional in Furman on July 24, 1972, and shortly thereafter, on October 1, 1972, the new procedure enumerated in Chapter 72-72, became effective.

It is clear that the procedure set out in Chapter 72-72 is significantly different than that previously found in Chapter 70-339 but strikingly similar to the language and procedure found in the later act, Chapter 72-724. The obvious intent of the Legislature in passing Chapter 72-72 was to cure the very defect the Supreme Court of the United States was to later find in Chapter 70-339. Chapter 72-72 was curative and the later act, Chapter 72-724, merely extended the procedure initially enumerated in Chapter 72-72.

There is an additional change to the language of Section 921.141, F.S., propounded by the 1974 Legislature as a result of the decision in Lee. See S.B. 974, appearing as Chapter 74-379, Laws of Florida. Each subsequent refinement does not invalidate a previous enactment unless it is expressly stated in the law and it is not so stated in any of these acts.

As to the next contentions, neither Donaldson v. Sack, 265 So.2d 499 (Fla.1972), nor State v. Dixon, 283 So.2d 1 (Fla.1973) have any effect upon the decision in Man-ucy nor are they applicable to the situation presented herein.

It is true that Donaldson, was decided after the enactment of Chapter 72-72 but before the effective date of that act, and it further should be noted that Chapter 72-72 was the first act to expressly deal with bifurcated trials on the issue of penalty. Donalds'on, by its very language, does not deal with bifurcated trials and therefore does not treat Chapter 72-72.

"Bifurcated Trial
“Fla.Stat. § 921.141(2) (a), as amended by § 1, Ch. 72-72, effective 10-1-72, applies to criminal offenses which may be punished by death and requires separate trials on the issues of innocent v. guilt and life v. death. Such matter of bifurcated trials is not of concern and of course is not applicable at this point.’’ (265 So.2d 499, 504, Emphasis supplied.)

The Manucy case dealt with just this issue and determined that Donaldson was not controlling, stating:

“. . . In Donaldson v. Sack, decided in the aforementioned interim period on July 17, 1972 (prior to the denial of rehearing in Furman), this Court did not speculate as to the necessity of an indictment for capital offenses after the effective date of the new death statute.” (293 So.2d 345, 348.)

Manucy, in speaking of the new death statute was specifically referring to Chapter 72-72.

Finally, as to the significance of Dixon on the issue under review, it is clearly in-application in that Dixon was decided after the effective date of Chapter 72-724. When Chapter 72-724 became effective, it supplanted Chapter 72-72 and there was no reason in Dixon to rule upon the validity of the earlier enactment.

The Manucy decision is therefore correct in its statements of law. The capital offense as defined by the possibility that the death penalty could be imposed was reestablished on the effective date of Chapter 72-72. As contended, Chapter 72-72 is a procedural statute, however, it was the procedure for the imposition of the death penalty that was held unconstitutional in Furman which directed its conclusion to that of the prior act, Chapter 70-339. It is strange to note that Chapter 72-724 is also a procedural statute, and, in fact, uses most of the language and procedure found in Chapter 72-72.

Therefore, capital offenses were reinstituted on October 1, 1972, the effective date of Chapter 72-72. The interpretation of Manucy made by the Petitioner is correct and the Petitioner should have been indicted. Art. I, § 15(a), Florida Constitution.

Therefore, the trial of the Petitioner under the “information” was void and in error. Accordingly, we reverse the same and remand the cause to the trial court for further proceedings consistent herewith.

ROBERTS, Acting C. J., and ERVIN, BOYD and DEKLE, JJ., concur.

ON REHEARING

PER CURIAM.

On rehearing granted and further consideration, we adhere to the original opinion.

It is so ordered.

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

ROBERTS, J., dissents.


author: SUNDBERG, Justice.

text:
    Marvin Robert O’DONNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 46138.
    Supreme Court of Florida.
    July 23, 1975.
    Rehearing Denied Oct. 30, 1975.
    Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, and Arthur L. Rothenberg, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   SUNDBERG, Justice.

This is a direct appeal from the Circuit Court of Dade County which explicitly held Sections 805.02 and 775.082, Florida Statutes, taken in pari materia, constitutional as applied to the defendant. Section 775.082(4) (a), Florida Statutes, provides for punishment by a term of imprisonment in the state prison for life or for a term of years not less than 30.

Appellant, Marvin Robert O’Donnell, and Codefendant, Sidney Pullman, were charged by information with kidnapping and robbery. The trial court expressly construed Fla.Stat. §§ 805.02 and 775.082 constitutional as applied to the defendant. The court then sentenced defendant to 30 years imprisonment, the minimum required by said statutes and appeal was taken therefrom.

The salient facts are as follows:

On February 5, 1974, Charles J. Cour-shon was kidnapped as he left his office at 407 Lincoln Road, Miami Beach, Florida. As he prepared to enter his car two men approached — the appellant and codefend-ant. After Pullman threatened Courshon with a revolver, all three men entered the car. Pullman blindfolded Courshon and stated that he was being taken to an apartment at which time he would receive further instructions.

Thereafter, Pullman instructed Courshon to phone his brother and relate the terms of the negotiated ransom. Courshon was then taken into a bathroom where he was given an air mattress, some pillows and a fan. Pullman and the appellant kept an alternate watch throughout the night.

The morning following the abduction, Courshon observed Pullman leaving the apartment. Assuming that only appellant remained on watch, Courshon made preparations' for escape. During the course of the escape from the bathroom a bottle was broken creating a resounding clap. Emboldened by the absence of any response from appellant who was asleep in the adjoining room, Courshon made his way through the room and escaped.

The appellant was asleep throughout the escape and was found still sleeping when Courshon returned to the apartment with the police. Appellant was then arrested for kidnapping.

On cross-examination during trial it was adduced that Pullman was the moving force throughout the kidnap and that appellant’s participation was limited.

At sentencing, defense counsel argued that the relative, passive culpability of the defendant did not warrant imposition of the mandatory minimum sentence of 30 years as required by statute, particularly in view of the fact that Codefendant Pullman, upon conviction in a separate trial, was given the identical sentence.

The trial court recognized the harshness of a 30-year sentence as applied to the defendant; however, the court refused to give probation to one convicted of kidnap regardless of the limited participation and culpability.

The single issue for our determination is whether the trial court erred in holding Fla.Stat. §§ 805.02 and 775.082, taken in pari materia, constitutional as applied to the appellant.

Appellant submits that the minimum mandatory sentence required by the statutes constitutes a cruel and unusual punishment and is violative of due process and equal protection as guaranteed by the United States and Florida Constitutions. The essence of his appeal is that the statute providing a minimum mandatory sentence is constitutionally defective as to him in that it proscribes the trial judge in “individualizing sentences” to make the punishment fit the criminal. Appellant concedes that mere is little or no authority in Florida for declaring a sentence violative of the ban against cruel and unusual punishment where it is within the limits fixed'by the applicable statute. He cites Nowling v. State, 151 Fla. 584, 10 So.2d 130 (1942), but then concedes that such case was overruled the following year in Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943).

In Brown v. State, supra, this Court held that a sentence imposed within the statutory limits is not invalid as “cruel and unusual punishment,” stating at page 461:

“. . . The law appears • to be well settled, as stated in 15 American Jurisprudence 174, Sec. 526, as follows: ‘As a general rule, in cases where the objection is to the particular sentence, and not to the statute under which it has been imposed, a sentence which is within the limit fixed by statute is not cruel and unusual and is therefore valid, no matter how harsh and severe it may appear to he in a particular case, because the constitutional prohibition has reference to the statute fixing the punishment, and not to the punishment assessed by the jury or court within the limits fixed by statute. If the statute is not in violation of the Constitution, then any punishment assessed by a court or fury within the limits fixed thereby cannot be adjudged excessive, for the reason that the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of the Constitution.’ ” (Emphasis supplied)

The Second District Court of Appeal in Chavigny v. State, 112 So.2d 910 (1959), in explaining Brown, supra, stated at page 915:

“. . . The Florida Supreme Court points out that where the objection is to the particular sentence and not to the statute under which it was imposed, a sentence is not cruel nor unusual if such sentence is in conformity to the limit fixed by the statute and is therefore valid, notwithstanding its apparent harshness'or severity. The rationale of this rule is that the constitutional prohibition, F.S.A.Const. Declaration of Rights, § 8, refers to the statute fixing the punishment and not to the punishment set by the court within the limits enunciated in such statute; that if the statute does not violate the Constitution, then any punishment set in conformity to it cannot be adjudged excessive for the reason that it is not within judicial but legislative power, controlled only by the constitutional provisions, to declare what punishment may be assessed against those convicted of crime.”

In Chavigny, supra, the Second District Court of Appeal, upon the authority of Brown, supra, upheld consecutive life sentences imposed for second degree murder convictions.

With respect to this point, see also Walker v. State, 44 So.2d 814 (Fla.1950); Alspaugh v. State, 133 So.2d 587 (2d DCA Fla.1961); and Shellman v. State, 222 So.2d 789 (2d DCA Fla.1969).

We believe that the foregoing cases also are dispositive of the contention that the sentence violated appellant’s right to due process of law as guaranteed by the Constitution of the United States and of the State of Florida in that they disclose that it is within the province of the Legislature to set criminal penalties. Due to the nature of the crime and the very probable deterrent effect of the statutes here under consideration, we do not deem a minimum mandatory sentence of 30 years to be excessive in terms of the constitutional prohibitions.

In response to appellant’s remaining argument to the effect that the imposition of the sentence pursuant to the statutes constituted a denial of his right to equal protection, we cite McKee v. State, 203 So.2d 321 at 323 (Fla.1967), wherein we declared: “[I]f the law deals alike with all of a certain class the equal protection concept is not violated.” There is no suggestion made by appellant that the classification, per se, is arbitrary or unjust, but merely that as applied to him injustice occurs. We cannot accept appellant’s argument on this point in that in this context it would lead to unequal sentences for the same offense.

Essentially, appellant’s appeal is for mercy rather than for justice due to his asserted limited participation in the crime. This appeal can more appropriately be made to the parole authorities. Chavigny, supra; Stanford v. State, 110 So.2d 1 (Fla.1959).

The sentence accordingly is upheld.

Affirmed.

ADKINS, C. J., ROBERTS, BOYD, OVERTON and ENGLAND, JJ., and MOORE, Circuit Judge, concur.


text:
    Eugene Luther HAZEN, Petitioner, v. STATE of Florida, Respondent.
    No. 45260.
    Supreme Court of Florida.
    May 16, 1974.
    On Rehearing Oct. 16, 1975.
    ADKINS, C. J., and ROBERTS, ERVIN, BOYD and DEKLE, JJ., concur.
   ON REHEARING GRANTED

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

ROBERTS, OVERTON and ENGLAND, JJ., and RUDD, Circuit Judge, concur.

ADKINS, C. J., BOYD, J., and HARDING, Circuit Judge, dissent.


author: PER CURIAM.

text:
    In the Matter of THE FLORIDA BAR, Petitioner. In re AMENDMENTS TO ARTICLE XVI OF the INTEGRATION RULE OF THE FLORIDA BAR.
    No. 46924.
    Supreme Court of Florida.
    July 9, 1975.
    As Corrected on Denial of Rehearing Sept. 15, 1975.
    J. Rex Farrior, Jr., Tampa, President; Richard C. McFarlain, William B. Wiley, Tallahassee, and Leonard Rivkind, Miami Beach, of The Florida Bar, for Petitioner.
   PER CURIAM.

The Florida Bar has petitioned the Court to amend Article XVI of the Integration Rule of The Florida Bar, concerning the unauthorized practice of law. Having heard oral argument in this matter and upon examination of the Rule as amended, the petition is granted, and Article XVI of the Integration Rule as previously adopted is hereby amended by striking that Article and by inserting in lieu thereof new Article XVI of the Integration Rule, reading as follows, viz:

ARTICLE XVI UNAUTHORIZED PRACTICE OF LAW

/. JURISDICTION

Pursuant to the provisions of Article V, Section 15 of the Florida Constitution, this Court has inherent jurisdiction to prohibit the unauthorized practice of law.

II. INVESTIGATION

A. The Florida Bar, as an official arm of this Court, is charged with the duty of investigating matters pertaining to the unauthorized practice of law. The Board of Governors of The Florida Bar shall establish not less than one (1) Unauthorized Practice of Law Committee in each judicial circuit. The Board of Governors of The Florida Bar shall establish a Standing Committee on Unauthorized Practice of Law of The Florida Bar, which shall supervise and be responsible for each of the circuit committees. The circuit committees shall receive complaints and conduct investigations of reported unauthorized practice of law.

1. Each circuit committee shall be appointed by the Board of Governors and shall consist of not less than three members of The Florida Bar.

2. The terms of the members of circuit committees shall begin on the first day of July and shall end on the next succeeding thirtieth day of June or until such time as their successors are appointed and qualified. The expiration of the term of any member shall not disqualify such member from concluding any investigations pending before him.

3. There shall be a chairman designated by the Board of Governors and a vice chairman and secretary designated by the chairman of each circuit committee.

4. Any member may be removed from his office by the Board of Governors.

5. A majority of a circuit committee, but not less than three members, shall constitute a quorum. All matters requiring a vote of a circuit committee shall be decided by an affirmative vote of a majority of a quorum of the committee.

B. It shall be the duty of each circuit committee to investigate, with dispatch, all reports of unauthorized practice of law, and to make prompt written report of its investigation and findings to the Standing Committee on" Unauthorized Practice of Law. It shall be the duty of the Standing Committee to receive and evaluate circuit committee reports and make its findings and recommendations to the Board of Governors. The Board of Governors shall act upon said reports, findings and recommendations and determine whether or not litigation should be instituted against any alleged offender. The Board of Governors may approve civil injunctive proceedings, indirect criminal contempt proceedings or a combination of both pursuant to the provisions of this article.

1.Upon receiving a written application of the president of The Florida Bar, or the chairman of the Standing Committee on Unauthorized Practice of Law, alleging facts indicating that a person, firm or corporation is or may be unlawfully practicing law and that the issuance of a subpoena is necessary for the investigation of such unauthorized practice, the clerk of the Supreme Court of Florida shall issue subpoenas in the name of the Chief Justice for the attendance of any person and production of books and records before investigating circuit committee designated in such application at the time and place within its circuit designated by the investigating circuit committee. Such subpoenas shall be returnable to the circuit court of the residence or place of business of- the person subpoenaed. A like subpoena shall issue upon application by any person, firm or corporation under investigation.

2. Failure to comply with any subpoena shall constitute a contempt of the Supreme Court of Florida, and may be punished by it or by the circuit court of the circuit to which the subpoena is returnable or where the contemner may be found. The circuit courts to which the subpoenas are returnable shall have power to enter such protective orders as may be necessary for the enforcement of said subpoenas.

3. Each circuit committee conducting investigations is empowered to take and have transcribed the testimony and evidence of witnesses who may be sworn by any person authorized by law to administer oaths.

III. LITIGATION

A. Civil Injunction Proceeding

1. Complaints shall be by written petition filed in this Court by The Florida Bar and in its name.

2. Each such petition shall be processed in this Court in accordance with the following procedure:

a. The petition shall not be framed in technical language, but shall with reasonable clarity set forth the alleged facts constituting the unauthorized practice of law. A prayer for relief may be included in the petition, but shall not be required.

b. This Court, upon consideration oí any petition so filed, may issue its order to show cause directed to the respondent commanding said respondent to show cause if any there be, why the respondent should not be enjoined from the alleged unauthorized practice of law, and further requiring the respondent to file with the Court within twenty days after service of the petition and show cause order on him, a written answer admitting or denying the matter set forth in the petition. The legal sufficiency of the petition may, at the option of the respondent, be raised by motion to dismiss filed prior to or at the time of the filing of the answer. The filing of a motion to dismiss prior to the filing of an answer shall postpone the time for the filing of an answer until ten days after disposition of said motion. The order and petition shall be served upon the respondent in the manner provided for service of process by Rule 1.070(b), Florida Rules of Civil Procedure. Service of all other pleadings shall be governed by the provisions of Rule 1.080, Florida Rules of Civil Procedure.

c. Any party may request oral argument upon any question of law raised by the initial pleadings. The Court may, in its discretion, set the matter for oral argument upon the next convenient motion day, or at such time as it deems appropriate.

d. If no response or defense is filed within the time permitted, the allegations of the petition shall be taken as true for purposes of that action. The Court will then, upon its motion or upon motion of any party, decide the case upon its merits, granting such relief and issuing such order as might be appropriate; or it may refer the petition for further proceedings according to this Article.

e. If a response or defense filed by a respondent raises no issue or issues of material fact, any party, upon motion, may request a judgment on the pleadings and the Court may rule thereon as a matter of law.

f. The Court, upon its motion or upon motion of any party, shall refer questions of fact to a referee for determination. The referee shall be a circuit judge of the State of Florida.

3. Proceedings before the referee shall be in accordance with the following:

a. The proceeding before the referee shall be held in the county where the respondent resides or where the alleged offense was committed, whichever shall be designated by the Court.

b. Upon assignment of a cause for trial, the Board of Governors shall appoint bar counsel to prosecute the same before the referee.

c. Witness subpoenas shall run in the name of this Court and shall be issued by the referee upon request of a party. Failure or refusal to comply with any subpoena shall be a contempt of this Court and may be punished by this Court or by any circuit court where the action is pending or where the contemner may be found, as if said refusal were a contempt of that court.

d. The Florida Rules of Civil Procedure, including those provisions pertaining to discovery, not inconsistent with this Article, shall apply in proceedings before the referee. The powers and jurisdiction generally reposed in “the court” under said Rules may in this action be exercised by the referee. The Florida Bar may in every case amend its petition one time as of right, within 60 days after the filing of the order of reference to a referee.

e. Review of interlocutory rulings of the referee may be had by petition to this Court filed within thirty days after entry of the ruling complained of. A supporting brief and a transcript containing conformed copies of pertinent portions of the record in the form of an appendix shall be filed with the Court by a party seeking such review. Any opposing party may file his responsive brief and appendix containing any additional portions of the record deemed pertinent to the issues raised within ten days thereafter. The petitioner may file a reply brief within five days of the date of service of the opposing party’s responsive brief. Any party may request oral argument at the time his brief is filed or due. Interlocutory review .hereunder shall not stay the cause before the referee unless the referee or this Court on its motion or upon motion of any party, shall so order.

4. The referee shall report in writing to the Court his findings of fact, conclusions of law and recommendations for final disposition of the cause. The original record shall be filed with his report. A copy of the referee’s report shall be served upon all parties by the referee at the time the same is filed in this Court.

5. Objections to the report of the referee may be filed in this Court by any party aggrieved, within thirty days after the filing of said report. If the objector desires, he may file a brief in support of his objections at the time his objections are filed. Any other party may file a responsive brief within twenty days after service of objector’s brief. The objector may file a reply brief within ten days of service of the opposing party’s responsive brief. Oral argument will be allowed at the Court’s discretion and will be governed by the provisions of Florida Appellate Rules, Rule 3.10.

6. Upon the expiration of the time to file objections to the referee’s report, the Court shall review the report of the referee, together with any briefs or objections filed in support of or opposition to such report. After review, the Court, shall determine as a matter of law whether the respondent has engaged in the unauthorized practice of law and whether his activities should be enjoined by appropriate order.

7. Nothing set forth in this Rule shall be construed to prohibit or limit the right of the Court, upon proper application, to issue a preliminary or temporary injunction, or at any stage of the proceedings, to enter any such order as to the Court may seem proper when public harm or the possibility thereof is made apparent to the Court, in order that such harm may be summarily prevented or speedily enjoined.

B. Indirect Criminal Contempt Proceeding

1. An indirect criminal contempt proceeding for unauthorized practice of law, shall be prosecuted in the following manner :

a. Upon receiving a sworn petition of the president of The Florida Bar, or the chairman of the Standing Committee on Unauthorized Practice of Law, alleging facts indicating that a person, firm or corporation is or may be unlawfully practicing law, and containing a prayer for a contempt citation, the Court may issue an order directed to the respondent, stating the essential allegations charged and requiring respondent to appear before a referee appointed by the Court to show cause why respondent should not be held in contempt of this Court for unauthorized practice of law. The referee shall be a circuit judge of the State of Florida. The order shall specify the time and place of the hearing, and a reasonable time shall be allowed for preparation of the defense after service of the order on the respondent.

b. Any respondent, who is determined to be insolvent by the referee, shall be entitled to the appointment of counsel. In proceedings for the determination of insolvency, there shall be a presumption of solvency, and the respondent shall have the burden of rebutting the presumption by competent proof. The following facts shall be prima facie evidence of solvency:

(1) If the respondent has been released on bail in the amount of fifteen hundred dollars or more;

(2) If the respondent has no dependents and his gross income exceeds seventy-five dollars per week; the income limit shall be increased by ten dollars per week for each of the first two dependents of the defendant and by five dollars per week for each dependent beyond the first two;

(3) If the defendant owns cash in excess of $300.

c. The court shall also consider the following additional circumstances in determining insolvency:

(1) The probable expense and burden of defending the case;

(2) The ownership of, or equity in, any tangible or intangible personal property or real property or the expectancy of an interest in any such property by the respondent ; and

(3) The amount of debts owed by the respondent or debts that might be incurred by the respondent because of illness or other misfortunes within his family.

d. Venue for the hearing before the referee shall be in the county where the respondent resides or where the alleged offense was committed, whichever shall be designated by the Court.

e. The respondent, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer such order by way of explanation or defense. All motions and the answer shall be in writing. A respondent’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.

f. The Court or referee may issue an order of arrest of the respondent if the Court or referee has reason to believe the respondent will not appear in response to the order to show cause. The respondent shall be admitted to bail in the manner provided by law in cirminal cases.

g. The respondent shall be arraigned at the time of the hearing before the referee, or prior thereto upon his request. A hearing to determine the guilt or innocence of the respondent shall follow a plea of not guilty. The respondent is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and confront witnesses against him. The respondent may testify in his own defense.

No respondent may be compelled to testify. A presumption of innocence shall be accorded the respondent, and The Florida Bar, which shall act as prosecuting authority, must prove guilt of the respondent beyond a reasonable doubt.

h. The referee shall hear all issues of law and fact and all evidence and testimony presented shall be transcribed.

i. At the conclusion of the hearing, the referee shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the respondent has been found and adjudicated guilty.

j. Prior to the pronouncement of a recommended sentence upon a judgment of guilty, the referee shall inform the respondent of the accusation and judgment against him and afford him the opportunity to present evidence of mitigating circumstances. The recommended sentence shall be pronounced in open court and in the presence of the respondent.

k. The judgment and recommended sentence, upon a finding of “guilty,” together with the entire record of proceedings shall then be forwarded to this Court for approval, modification or rejection based upon the law. The respondent may file objections, together with a supporting brief, to the referee’s judgment and recommended sentence within thirty days of the date of filing with the Court of the referee’s judgment, recommended sentence, and record of proceedings. The Florida Bar may file a responsive brief within ten days after service of respondent’s brief. The respondent may file a reply brief within five days after service of The Florida Bar’s responsive brief.

2. The punishment for an indirect criminal contempt under this Article shall be by fine, not to exceed $2,500, imprisonment of up to five months, or both.

3. Nothing set forth herein shall be construed to prohibit or limit the right of

the Court to issue a permanent injunction in lieu of or in addition to any punishment imposed for an indirect criminal contempt.

It is so ordered.

ADKINS, C. J., ROBERTS, BOYD, OVERTON, ENGLAND and DREW (Retired), JJ., and MASON, Circuit Judge, concur.


author: PER CURIAM. ADKINS, Chief Justice PER CURIAM

text:
    SOUTHEAST TITLE AND INSURANCE CO., Petitioner, v. Cindy CALDWELL et al., Respondents.
    No. 43929.
    Supreme Court of Florida.
    April 16, 1975.
    On Rehearing Oct. 1, 1975.
    Adkins, C. J., concurred in part and dissented in part with opinion.
    Adkins, C. J., concurred in part and dissented in part on second rehearing.
    Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee and Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto, Dean & Hallowes, W. Palm Beach, for petitioner.
    Jos. D. Farish, Jr. and F. Kendall Slink-man, III, of Farish & Farish, W. Palm Beach, for respondents.
   PER CURIAM.

The petition and cross petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further careful consideration of the matter, the briefs and record, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution (1973). Accordingly, the writ must be and is hereby discharged.

It is so ordered.

BOYD, DEKLE, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., concurs in part and dissents in part with opinion.

ADKINS, Chief Justice

(concurring in part; dissenting in part) :

I concur in the discharge of the writ of certiorari issued upon the petition of Southeast Title and Insurance Co., but I dissent to that part of the decision discharging the writ of certiorari issued upon the cross-petition of plaintiff Caldwell.

The question involved is whether the trial court abused its discretion in denying cross-petitioner’s motion to amend her complaint just before the close of the presentation of her case to add a prayer for punitive damages.

Rule 1.190(a), R.C.P., entitled Amendments, sets the general tone of the rules when it states that leave to amend shall be given freely when justice so requires. Rule 1.190(b), R.C.P., provides, inter alia, that

“ . . . when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they have been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues.”

Granting leave to amend rests in the sound discretion of the trial court, but doubts should be resolved in favor of allowing amendment until it appears that there has been an abuse of the privilege. Fouts v. Margules, 98 So.2d 394 (Fla.App.3d, 1957). This is true even though the trial judge is of the opinion that the proferred amendments will not result in the statement of a cause of action. Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla.App.4th, 1967).

While it is a general rule that cases should be tried upon the issues raised by the pleadings, amendments can be made under the rules at any time, so long as they do not prejudice the opposing party. Hart Properties, Inc. v. Slack, 145 So.2d 285 (Fla.App.3d, 1962). A litigant therefore has no right to rely upon the pleadings to the extent of believing that certain known facts will not be presented. It is only when new facts are developed under a new theory of the case that surprise can be pleaded. Hart Properties, Inc. v. Slack, supra. In Transworld Marine Corp. v. Threlkeld, 201 So.2d 614 (Fla.App.3d 1967), for example, defendants moved to amend the pleadings to conform to the evidence, pursuant to Rule 1.15(b), R.C.P., [now Rule 1.190(b)]. The motion was made after a jury verdict was rendered in favor of plaintiffs, and sought to amend the answer to include the affirmative defense of statute of frauds. The court held that even if the defense fails to appear from the pleadings, if evidence of such is admitted at trial, then the issue created will be deemed to have been raised and the pleadings may be made to conform thereto pursuant to Rule 1.15(b), R.C.P.

There is no doubt, therefore, that pleadings may be amended before, during or even after the trial. Atlantic Coastline Railroad Co. v. Edenfield, 45 So.2d 204 (Fla.1950). Rule 1.190(e), R.C.P. The test is whether the amendment takes the opposing party by surprise. Atlantic Coastline Railroad Co. v. Edenfield, supra, at 205. Rule 1.190(b), R.C.P.

In Garrett v. Oak Hill Club, 118 So.2d 633 (Fla.1960), for example, Mr. Justice Terrell said that amendments

“[M]ay be made to conform to the evidence as late as or after judgment or decree. This is particularly true if essential to justice or if the presentation of the merits will be more effectively expedited. It is part of what we call liberality of amendments.” (p. 635)

There is also authority for the proposition that under the new pleading rules amendment may be allowed even if it changed the legal theory upon which the action was initially based. Strickland v. St. Petersburg Auto Auction, Inc., 243 So.2d 603 (Fla.App.4th, 1971). See also Raggs v. Gouse, 156 So.2d 882 (Fla.App.2d, 1963), where plaintiff, a passenger in defendant’s car, sued defendant for personal injury, alleging simple negligence. At the close of all the evidence, and just as the trial judge was about to enter a directed verdict for defendant, since plaintiff was subject to provisions of the Florida guest statute, plaintiff was allowed to amend his complaint to plead gross negligence. This was found to be proper under Rule 1.15(b), R. C.P. No new testimony needed to be taken and the Court’s offer of a continuance was waived by the defendant.

The case sub judiee was an excess judgment suit brought by cross-petitioner Caldwell against Southeast Title and Insurance Company alleging bad faith in failure to settle a law suit between the insured Caldwell and a third party. It is too well settled to require citation that the insuror must act in good faith toward the assured in its effort to negotiate a settlement. Obviously the very nature of the excess judgment suit which is grounded on bad faith gives rise to a possible recovery of punitive damages.

In order to recover punitive damages, however, more than simple bad faith must be shown. The existence of fraud, malice, gross negligence, oppression or like circumstances of aggravation are generally required. See 9A Fla.Jur., Damages, § 126, at 371. Where malice can be imputed from the defendant’s entire want of care or attention to duty, or from his great indifference to the person, property or rights of the plaintiff, punitive damages are allowable; this rule is consistent with the theory that punitive damages are allowed as a deterrent to the commission of similar offenses by others. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957). Thus, while punitive damages need not be specially plead, the elements thereof must be stated in the complaint to the extent necessary to advise defendant that he will have to meet a demand of that kind at the trial.

Malice which permits recovery for punitive damages does not necessarily mean anger or malevolent or vindictive feelings toward the plaintiff, and a wrongful act without reasonable excuse is malicious within the legal meaning of the term. Richards Co. v. Harrison, 262 So.2d 258 (Fla.App.1st, 1972). Moreover, punitive damages need not flow from an intentional course of conduct or intent to inflict damages, but may also be allowed in such cases where there is the entire want of care which would raise the presumption of a conscious indifference to the consequences of one’s actions or inaction. Richards Co. v. Harrison, supra, at 262. Thus, for example, where the defendant’s crew chief failed to make arrangements with the police department to permit plaintiff’s salesmen to canvass the city, knowing that a municipal ordinance required all solicitors to carry a permit, which failure resulted in the arrest and fining of the plaintiff, the Court properly submitted the issue of punitive damages to the jury. Richards Co. v. Harrison, supra, at 262. If there is any evidence tending to show that punitive damages could be properly inflicted, even if the Court be of the opinion that the preponderance of the evidence is the other way, the Court should leave the question to the jury. Doral Country Club, Inc. v. Lindgren Plumbing Co., 175 So.2d 570, 571 (Fla.App.3d, 1965).

The evidence in the case sub judice strongly supports a finding of bad faith on the part of the insurance company. There are also additional factors which could support a finding of bad faith and perhaps even malice, or at least conscious indifference to the rights of others. The events which occurred after the original trial in which the jury awarded a verdict of $205,000 for the injured party, Patricia Benson, against cross-petitioner, Cindy Caldwell, are especially revealing. The record indicates that the Caldwell’s attorney offered to settle the case within the limits of the policy, originally believed to be $25,000. This offer was, of course, refused before trial, the petitioner, Southeast Title, submitting an offer of $5,000. After the verdict, however, defendant was naturally faced with paying the judgment to the extent of its coverage, i. e., $25,000. However, it was learned that the actual limits were $50,000, not the $25,000 believed by Caldwell and her attorney. Defendant knew of this on the morning prior to trial.

Instead of informing the insured that the actual limits were $50,000, the defendant’s agent directed its attorney, against the attorney’s advice, to pay only the $25,000. A check for $25,000 was then sent to Caldwell’s attorney, the check containing a release form on the back stating the acceptance of this check is a full release.

Regarding these actions by the defendant, one of the witnesses called by the cross-petitioner Caldwell, testified that

“I think at this point they reached beyond any line that could reasonably be drawn in inviting further action and exposing their client or their insured to all kinds of problems. I would have to say I am shocked by this performance.
“Question: Sir, would you say it was even greater than bad faith? Answer: Yes, I hesitate not at all. As we sometimes think of negligence as being carelessness, act of bad judgment, omission, or failure that anyone might perform, that falls, in my opinion, into an area of deliberate behavior which either comes close or crosses the line of criminal behavior, in my opinion.” Record on Appeal at p. 483.

With this in mind, then the question is whether the issue of malice, etc., was tried by the express or implied consent of the parties such as would allow an amendment at the close of the plaintiff’s case.

At the close of the plaintiff Caldwell’s case, counsel moved to amend to add the prayer for punitive damages. Evidence as to the same was already in the record. All that remained was to introduce evidence of defendant’s financial ability. Was there unfair surprise to defendant in the petitioner’s attempt to amend to such extent that defendant would have been prejudiced by the amendment? Evidence of malice was already allowed in the record without objection. The defendant had already been requested to produce a net worth statement putting defendant on notice to be ready to testify as to its net worth; for what possible purpose other than for punitive damages?

Granted, plaintiff had time prior to the motion to amend that counsel could have amended the complaint. But the fact remains that the only issue in the case was bad faith on the part of the defendant. The punitive damage issue did not raise any new or unrelated question for either party to prepare for. Nor did it appear that the amendment would change or introduce new issues or materially vary the grounds for relief or delay the suit necessarily by requiring a continuance under circumstances which would be unduly prejudicial to the opposing party. Brown v. Montgomery Ward & Co., 252 So.2d 817 (Fla.App.1st, 1971).

The proof of malice required for recovery of punitive damages is but one step forward in the proof of bad faith. The defendant would almost be required to prepare for such issues in the defense of the excess judgment suit. In fact, this is precisely how the evidence of malice came into the record, as part of the plaintiff’s effort to establish bad faith to the degree required to get past a directed verdict. Moreover, even when the evidence came in without objection, apparently the defendant made no attempt to refute it. Additionally, cases are numerous where the opposing party was granted a continuance to avoid any possible prejudice in situations like these.

Judicial discretion has been defined as

“ . . .A discretion exercised within the limits of the applicable principles of law and equity, and the exercise of which, if clearly arbitrary, unreasonable, or unjust, when tested in light of such principles, amounting to an abuse of such discretion, may be set aside on appeal.” Carolina Portland Cement v. Baumgartner, 99 Fla. 987, 128 So. 241, 247 (1930).

Moreover,

“Although the appellant is not required to show that the trial court acted willfully, the cases reflect that the trial court’s action must plainly appear to have been in effect the imposition of an injustice or that the ruling was erroneous and may well have affected a decision of the jury. . . . ” 2 Fla.Jur., Appeals, § 328, Note 13, at 696.

This case is different from Wooten v. Wooten, 213 So.2d 292 (Fla.App.3d, 1968), and Triax, Inc., v. City of Treasure Island, 208 So.2d 669 (Fla.App.2d, 1968), where the denials of motions to amend to conform to the evidence were found not to have been abuses of discretion. In Wooten, the Court denied husband’s motion to amend his complaint to include adultery when he did not make the motion until the conclusion of his case, but knew of the allegedly adulterous behavior prior to filing his complaint and had introduced evidence of it in support of his allegation of extreme mental cruelty.

In Triax, the denial of the motion was proper where there was nothing in the record from which it could be inferred that a quantum meruit issue had been tried by express or implied consent of the parties. The motion was made seven days after the trial judge had entered judgment for defendant in an action for breach of an oral contract.

Contrarily, in the case sub judice, the issues involved in the punitive damage question are so closley related to those in the excess judgment question as to require little or no extra preparation. The defense of adultery in Wooten certainly required a wholly different preparation than did mental cruelty. Moreover, a motion to amend seven days after judgment and on an issue not raised in the record as in Triax, is quite different from a motion made before the close of plaintiff’s case and where there is support in the record.

I would quash that portion of the deci-' sion of the District Court of Appeal which affirmed the trial court’s denial of plaintiff’s motion to amend and remand the cause for further proceedings.

ON REHEARING GRANTED

PER CURIAM

This cause was previously submitted to the Court on petition for writ of certiorari and cross-petition for writ of certiorai. These petitions ware denied after rehearing was granted, with Adkins, C. J., concurring in part and dissenting in part.

We granted a second rehearing in this cause.

Petitioner and cross-petitioners have sought to establish conflict certiorari from a per curiam without opinion decision of the Fourth District Court of Appeal. We have determined that there is no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution, and we adhere to the original order of this Court in this cause denying petition for writ of certiorari and cross-petition for writ of certiorari.

Our review of the record, however, compels us to suggest that the Insurance Commissioner review this cause pertaining to the actions of Southeast Title and Insurance Company in representing its insured.

The writ is hereby discharged.

It is so ordered.

OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, C. J., concurs in part and dissents in part in accordance with his opinion filed herein on April 16, 1975.


author: ENGLAND, Justice. ENGLAND, Justice.

text:
    STATE of Florida ex rel. Aaron A. SEBERS, Relator, v. Hon. Joseph P. McNULTY, as Chief Judge, et al., Respondents.
    No. 47215.
    Supreme Court of Florida.
    June 11, 1975.
    Rehearing Denied Sept. 17, 1975.
    Philip J. Padovano, Ruiz & Padovano, St. Petersburg, for relator.
    Robert L. Shevin, Atty. Gen., and Robert Landry and George R. Georgieff, Asst. Attys. Gen., for respondents.
   ENGLAND, Justice.

Relator has filed a suggestion for a writ of prohibition seeking to prevent further prosecution of an appeal pending before the Second District Court of Appeal on the grounds that (i) the appeal was untimely filed and (ii) the order granting mistrial was not appealable.

On December 5, 1974, Relator was tried in the Pinellas County Circuit Court for the offense of robbery, and found guilty by the jury. During the trial his attorney moved for mistrial, but the trial judge reserved ruling on the motion. Five days after the trial, the trial judge conducted a hearing on Relator’s motion, after which he set aside the trial and jury verdict. Although the motion was denominated a motion for mistrial, correctly labeled at the time it was made during the course of trial, it was in legal effect when ruled upon a motion for new trial. As such, the order was appealable.

For reasons not explained in the record, the trial judge signed a second order granting the motion for mistrial on January 15, 1975, dating it December 10, 1974. The state filed a notice of appeal on January 31, 1975. Relator moved to dismiss the appeal as untimely, contending that the time for appeal ran from December 10, 1974. The district court denied the motion and now has the appeal pending before it. All acts necessary to constitute “rendition” of the order having occurred on December 10, 1974, the time for commencing appeal expired before the state commenced its appeal on January 31, 1975.

Relator’s request for a writ is granted. Respondents are prohibited from proceeding with the appeal in this case.

ADKINS, C. J., OVERTON and DREW (Retired), JJ., and HARDING, Circuit Judge, concur.

ENGLAND, Justice.

On Rehearing

On petition for rehearing, the state attempts by allegation and affidavit to demonstrate that its appeal was timely because the trial court’s original order was not, as indicated in footnote 3 of our opinion, “filed” on December 10, 1974. The state’s contention must be rejected. This attempt to supplement and correct the record on appeal on the major point at issue in this case comes too late. The state had ample time to produce this evidence before the case was argued to this Court.

In any event, the allegations and affidavit presented by the state do not address, let alone explain, the irreconcilable inconsistency between the late-filed affidavit and the photostatic copy of the trial court’s December 10 order which is contained in the original record on appeal. The latter bears the signature of the trial judge and the “filed” stamp of the circuit court clerk, duly initialed by a deputy clerk and dated December 10.

The original order of the Court is supported by the record on appeal, and the petition for rehearing is denied.

ADKINS, C. J., OVERTON and DREW (Retired), JJ., and HARDING, Circuit Judge, concur.

      . A motion for mistrial can only be made during a trial, while a motion for new trial can only be made after a trial. Characterization when made is not as important as the legal effect at the time of ruling. Both of these motions, however, test the extent of error in the course of a proceeding. A & P Bakery Supply and Equipment Co. v. H. Hexter & Son, Inc., 149 So.2d 883 (3d Dist.Ct.App.Fla.1963),

      . Section 924.07(2), Fla.Stat.

      . Fla.App. Rule 1.3. Although the trial court’s order was not “recorded” until January 16, 1975, it was “filed” at the time of signing on December 10, 1974. The latter date, not the former, controls because an order granting a new trial is not required to be recorded under the Rule.

      . See Fla.App. Rule 3.6(j).


text:
    Conrad Lewis THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1355.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Haiflich v. State, Fla. App.2d 1973, 285 So.2d 57.

HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur.


author: McNULTY, Chief Judge.

text:
    John SHANNON, Appellant, v. GREAT SOUTHERN EQUIPMENT COMPANY, Appellee.
    No. 75-101.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 17, 1976.

      Roger D. Haagenson and Alvin Capp, Fort Lauderdale, for appellant.
    Robert L. King, Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant John Shannon, as garnishee, brings this interlocutory appeal from a denial of his motion to set aside a judgment in garnishment. We find merit to his contention and reverse.

Appellee Great Southern Equipment Company filed an original complaint against one Shelfer, allegedly a creditor of appellant Shannon. Great Southern’s claim against Shelfer was an in personam claim based on an equipment purchase contract and on a certain account for work and labor performed. At the same time Great Southern moved for pre-judgment garnishment against Shannon, pursuant to § 77.031 et seq., F.S.1973, seeking to attach Shannon’s aforementioned debt to Shelfer. Personal service against Shelfer was unsuccessful so Great Southern perfected constructive process against him pursuant to § 49.011, F.S.1973. Personal service of the writ of garnishment, however, was perfected as against Shannon. Neither Shelfer nor Shannon responded, as a consequence of which defaults were entered against each of them. A final judgment subsequently issued “against the property of the defendant, MILTON B. SHELFER, in the hands of the garnishee, JOHN SHANNON, to the extent of [the amount of the claim], together with costs , for which let execution issue.” The final judgment then expressly provided that Great Southern also have and recover a judgment personally against Shannon in the aforementioned amounts. Shannon contends this judgment is void and we agree.

At the outset, Shannon contends that the Florida pre-judgment garnishment statute is unconstitutional. We need not now answer this question, however, because even assuming its validity the judgment against Shannon is void.

First of all, § 77.081, F.S.1973, provides that:

“No final judgment against [the] garnishee shall be entered before the entry of, or in excess of, the final judgment against the original defendant with interest and costs.”

This necessarily implies, of course, that the judgment against the original defendant be a valid one. Here it was not for the reasons following.

As noted, the original action against Shelfer sounded in personam. If such an action is to be prosecuted against one on whom personal service cannot be effected it must be brought “quasi in rem" and directed against property (which may include a debt owed) belonging to the defendant found in this state. As to this, we recently held in Griffin v. Zinn that whether or not such quasi in rem proceeding is also preceded by collateral process such as attachment or, as here, garnishment, it is essential that the complaint expressly provide that the action is directed against the property per se, not the defendant, and that the property so proceeded against be specifically described. That was not done here, and the omission is a fatal due process defect.

We conclude, therefore, that no valid judgment can be or was entered against Shelfer, the original defendant, so no valid judgment in garnishment against Shannon can be predicated thereon.

In view whereof, the order denying the motion to set aside the judgment in garnishment should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON, J., and STOKES, ROBERT G., Associate Judge, concur.

      . See Bunton v. First National Bank of Tampa, 394 F.Supp. 793 (M.D.Fla.1975).

      . See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877).

      . (Fla.App.2d, 1975), 318 So.2d 151.


text:
    BALI, INC., et al., Appellants, v. SHERWOOD’S COMMERCIAL BROKERS OF DAYTONA BEACH, INC., et al., Appellees.
    No. X-255.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
    Rehearing Denied Feb. 16, 1976.
    William M. Barr of Raymond, Wilson, Karl, Conway & Barr, and S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellants.
    Robert Ginsberg of Ginsberg & Ginsberg, Daytona Beach, for appellees.
   PER CURIAM.

This is an appeal from final judgment in a suit for real estate commission tried before the court without a jury. We have examined the record in this cause which involves much conflicting testimony and have also considered the briefs of counsel for the respective parties. The able trial judge who heard the testimony was in a better position to resolve the conflicts and judge the credibility of the witnesses than is this court. Great weight should be given to the correctness of the comprehensive final judgment entered by him. First America Develop. Corp. v. County of Volusia, Fla.App.(1st), 298 So. 2d 191 (1974); Peacock v. Carver, Fla.App.(1st), 315 So.2d 214 (1975). The judgment is supported by competent substantial evidence and we find that the trial judge did not err in his application of the law to the facts as he found them.

Affirmed.

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

SMITH, J., dissents, without opinion.


text:
    Johnny Roscoe SUMMERS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-258.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Richard W. Ervin III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: SMITH, Judge.

text:
    Sharon HAMMOND, Appellant, v. STATE of Florida, Appellee.
    No. Y-371.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.
    Richard W. Ervin, III, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Appellant earnestly insists that her conviction for sale of heroin was marred by the trial court’s refusal before trial to order disclosed the identity of the confidential informant who, according to the State, named and pointed out appellant in the Pick-Up Bar when the witness Moss, a police trainee, inquired from whom he might buy heroin.

The confidential informant was the only known witness to the transaction in the bar besides Moss. Moss’ identification testimony was riddled with doubt and contradictions. It was corroborated, however, by another officer who testified to having seen appellant at the bar on the afternoon of the alleged offense. Appellant and her alibi witnesses testified that she was in her apartment all afternoon.

We have carefully considered appellant’s argument under the standards of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and Spataro v. State, 179 So.2d 873 (Fla.App.2d, 1965). It is a close question, and one which the trial court may well have been asked to reconsider at trial in light of the testimony adduced by the State. But in view of the facts that the confidential informant was not referred to in the evidence and did not directly participate in the transaction, and that there was testimony other than Moss’ placing appellant at the bar and contradicting her alibi, we conclude that no error was committed. In the circumstances of this case, the critical issue was whether appellant was in the Pick-Up Bar on the afternoon in question, and on that issue the confidential informant had no unique knowledge that was 'unavailable to other witnesses within and without the bar.

We have considered the appellant’s other points and find them likewise unavailing.

Affirmed.

BOYER, C. J., and MILLS, J., concur.


author: PER CURIAM. MAGER, Judge

text:
    William Aaron HEATON, Appellant, v. STATE of Florida, Appellee.
    No. 75-481.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
    Edward M. Kay of Varón, Stahl & Kay, Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

OWEN and DOWNEY, JJ., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

It appears to me from a reading of the recent decisions in Jarriel v. State, Fla.App. 4th 1975, 317 So.2d 141, and M.D.B. v. State, Fla.App. 4th 1975, 311 So.2d 399, that the defendant’s confession was not “free from the influence of either hope or fear”; in particular, the interrogating officer’s suggestion, however slight, that the defendant’s truthful statements would help defendant’s wife who was then in custody, constituted a form of subtle coercion found by the courts to be impermissible thereby rendering defendant’s confession involuntary and requiring its suppression. In my opinion the court erred in admitting these statements into evidence and accordingly the judgment of conviction and sentence should be reversed and the cause remanded for a new trial.


text:
    Oscar Lee McHOME, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-288.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Michael Alan MILES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-230.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    V. Hulslander, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-. pellee.
   PER CURIAM.

Dismissed for lack of jurisdiction.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.