author: HOLMES, Judge. HOLMES, Judge.

text:
    The B. F. GOODRICH COMPANY, a corporation v. William Travis BUTLER.
    Civ. 451.
    Court of Civil Appeals of Alabama.
    May 7, 1975.
    Rehearing Denied May 28, 1975.

      Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellant.
    Edward F. Morgan, Tuscaloosa, for ap-pellee.
    John H. Morrow and Michael H. Mobbs, Birmingham, amici curiae, for United States Pipe and Foundry Company and Stockham Valves & Fittings, Inc.
    Thomas, Taliaferro, Forman, Burr & Murray, and Robert G. Tate and A. Brand Walton, Jr., Birmingham, amici curiae, for Associated Industries of Alabama.

      Burns, Shumaker & Davis, Gadsden, amici curiae, for Alabama Labor Council, AFL-CIO.
    Lanny S. Vines, Birmingham, amici curiae, for Ala. Trial Lawyers Assn.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., amici curiae, for the State of Alabama.
   HOLMES, Judge.

This is a workmen’s compensation case.

The assignments of error of appellant-employer present to this court the following:

(1) There is no evidence of permanent partial disability in that no evidence of post accident capacity to earn was introduced.

(2) Act No. 1062, Acts of Alabama 1973, Vol. Ill, p. 1750, is violative of § 45 of the Constitution of Alabama.

(3) The trial judge erred to reversal in awarding a lump sum payment without the benefit of allowing appellant an opportunity to be heard on the matter.

(4) Act No. 1062 was not duly enacted into law.

(5) Act No. 1062 is in conflict with other statutory provisions not expressly repealed by Act No. 1062.

(6) The trial court erred in its rulings on certain evidentiary matters.

I

In order to adequately dispose of the first issue raised by appellant-employer, we find it necessary to set out the facts as revealed by the record in some detail.

Appellee-employee (plaintiff below) is a fifty-five year old manual laborer who has been employed by appellant for over twenty-five years.

On May 3, 1973, appellee injured his back. Appellee testified that injury occurred during work hours at his place of employment while he was attempting to get a jammed tire off a dolly.

Following his injury, appellee went to the employer’s dispensary where he filed a report and discussed the matter with a nurse and the company safety supervisor. After receiving some treatment, he went home.

Since May 3, 1973, appellee, apparently a heretofore healthy man, has been in the hospital as a result of his injured back three times. His attempts to return to work have been unsuccessful and he testified he has been in almost constant pain since the accident.

The safety supervisor who discussed the accident with appellee in the dispensary concluded that the accident, however, was nonoccupational, apparently, on the basis of comments of appellee’s foreman that ap-pellee had complained of his back prior to the accident.

The testimony of the' several doctors who testified reveal that appellee has a 15% to 20% permanent partial disability of the body and that he is 100% disabled insofar as performing a job requiring lifting and manual labor such as he has performed for the last twenty-five years.

Based on the testimony as summarized above and that of other witnesses, the trial judge, after a hearing ore tenus, issued a decree on September 17, 1974, finding that appellee had, in fact, suffered a compensa-ble injury from the accident which arose out of and in the course of his employment. The court found that appellee had sustained a permanent partial disability of 75% to his body as a whole. The court awarded appellee compensation figured at 65% of his weekly earning (stipulated to be $272.59) and, accordingly, awarded ap-pellee seventy-two weeks of accrued compensation at $60 a week and an additional two hundred twenty-eight weeks at $60 a week.

The trial court specifically found as follows :

“The Court finds that plaintiff has no earnings at the time of the trial and has not had any earnings from his employment since January 14, 1974, and that his practical ability to obtain work which he is qualified to do has been severely limited if it is not nil.”

Pursuant to a petition filed by appellee, under authority of Tit. 26, § 279(c)(9), Code of Ala.1940, the court ordered that appellant pay the two hundred twenty-eight remaining weeks of compensation to appel-lee in a lump sum within thirty days. This petition was filed the same day the decree was entered.

As already noted, the first issue raised is to the court’s finding of 75% disability in the absence of any evidence on post accident capacity to earn.

Appellants’ contention is based on Tit. 26, § 279(c)(6), Code of Ala.1940 (Re-comp. 1958), which reads as follows:

“In all other cases of permanent partial disability not above enumerated, the compensation shall be sixty-six and two-thirds percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition subject to the same maximum weekly compensation as stated in section 289 of this title.”

In interpreting this statute this court made the following statement in B. F. Goodrich Company v. Martin, 47 Ala.App. 244, 251, 253 So.2d 37, 44:

“It is thus clear under the statute and decisions of our appellate courts hereinafter cited, that the criteria for determining permanent partial disability for purpose of compensation is not controlled by a finding of physical disability of the body as a whole. Compensation is awarded on the basis of permanent partial loss of ability to earn. Without such finding of fact there can be no award. We emphasize that physical disability may be inextricably involved but not necessarily or exclusively so. The requirements as to the finding of a decreased ability to earn resulting from a compensable non-scheduled injury are ably discussed in Goodyear Tire & Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So.2d 278, and Ala. By-Products Co. v. Landgraff, 248 Ala. 253, 27 So.2d 215. We further recommend Larson’s Workmen Compensation Law, Vol. 2, Section 57.”

See also Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279.

We note that in both of these cases relied upon by able counsel for employer, B. F. Goodrich v. Martin, supra, and Brooks v. Crimson Homes, Inc., supra, there was no finding of fact by the trial judge as to the employee’s ability to earn. Here, as seen from the above quoted decree, there is such a finding — that being that his practical ability to obtain work which he is qualified has been severely limited, if not nil.

The question then becomes, is there evidence to support such a finding by the trial court, which is, in effect, a finding of total disability. We believe there is such evidence.

The testimony of appellee’s wife reveals that appellee is now unable to do ordinary' jobs around the house since the accident. Before the accident, appellee was a full time preacher. His wife testified that he now continues to preach “fairly regular.” However, she also testified that other than preaching he now does no other work. She also made the following pertinent observation :

' “He has always been used to working . and he hasn’t been able to since then.”

Dr. Sam Davis, physician who treated appellee following his injury, testified that at his insistence appellee attempted to return to work on one or two occasions and that “each time had to stop because the pain became more severe.” Dr. Davis further testified that appellee is not able to do the type work he had done in the past, and didn’t think he could do manual labor.

Appellee testified that the pain, located at about the back of his beltline, which resulted from the injury, had never stopped hurting since the accident. He testified that he was almost constantly in pain. On his attempts to return to work, appellee testified he had been in pain and that his coworkers had done most of his work. Appellee further testified that anything he does in a strenuous way hurts him. Additionally, he indicated he now receives help from others in conducting his church services.

A doctor testifying in behalf of the appellant further testified that as to heavy manual labor the extent of appellee’s disability was 100%.

We also particularly note that appellee. was fifty-five years old at the time. He had been employed by appellant over twenty-five years and, according to his own testimony, had never lost any time from work due to back injury before his accident of May 3, 1973.

This court has held that “ . total disability within the Workmen’s Compensation Act does not mean absolute helplessness or entire physical disability, but means inability to perform the work of one’s trade or inability to obtain reasonably gainful employment.” Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370, quoting from Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315.

Thus, a finding of total disability is supported by the evidence and therefore supports award of permanent partial disability. For even though the court’s award of compensation is based upon a percent of permanent partial disability, such finding is not injurious to appellant. Misco, Inc. v. Driver, 50 Ala.App. 256, 278 So.2d 374.

Thus, we find no reversible error.

II

Able counsel for appellant forcefully argues in brief that the title to Act No. 1062 is violative of § 45 of the Constitution of Alabama in that the title to said act did not clearly express the subject of the act and, accordingly, that Tit. 26, § 279(c)(9), Code of Ala.1940, providing for the lump sum payment is unconstitutional.

Appellee contends that appellant is attempting to raise the issue of unconstitutionality for the first time on appeal and that appellate courts will not consider the constitutionality of an act not raised in the lower court, citing Gardner v. Stevens, 269 Ala. 213, 111 So.2d 904.

Before reaching the question of the constitutionality of the act in question, we first must dispose of appellee’s contention that this matter cannot be raised for the first time on appeal.

In State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56, our supreme court made the following statement:

“Where the determination by this court of questions involving matters of public concern cannot be had without the consideration and decision of the constitutional validity of enactments, this court must, in the discharge of its grave duty in that regard, take account of such questions, whether raised or argued in the lower courts or not, and decide them, provided the complaining party manifests his good faith and diligence by affording the essential data to advise the court in the premises and to relieve it of the burden of itself making a search of the journals to ascertain the true status of the subject of his complaint. . . .” (196 Ala. at 549, 72 So. at 60)

We find this determination of the constitutionality of the statute to be a vital matter of public concern, as evidenced both by the number of amicus curiae briefs filed with this court on the subject and also by the fact this is the second time in recent months we have been confronted with an attack on the constitutionality of the act. Accordingly, we feel compelled to decide this issue, even though it was not raised below.

Article 4, § 45, Constitution of Alabama 1901, reads as follows:

“Sec. 45. The style of the laws of this state shall be: ‘Be it enacted by the legislature of Alabama,’ which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures. Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.”

Much has been written concerning § 45; the most recent being Bagby Elevator and Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306. A detailed statement of the law need not be set out here as the reader may find this in Bagby, supra, and Knight v. West Alabama Environmental Imp. Authority, 287 Ala. 15, 246 So.2d 903. In fact, in Bagby, supra, one can find an opinion, several concurring opinions, and various dissents relating to this area of the law.

Suffice it to say that the following statement in Bagby, supra, made by Mr. Justice Jones can hardly be quarreled with:

. There are many cases on this point and the results are varied. This Court has stated that it is difficult to lay down a fixed and definite rule that will mark the line between what is and what is not violative of this Section, Lovejoy v. City of Montgomery, 180 Ala. 473, 61 So. 597 (1913), and that each case must necessarily rest upon its own bottom. Adjudicated cases serve as illustrations only, and are helpful, but are only controlling when they are closely analogous. Spurlock v. I. T. Knight & Son, 246 Ala. 33, 18 So.2d 685 (1944).” (292 Ala. at 195, 291 So.2d at 309.)

Additionally, the following statement from Opinion of the Justices, 275 Ala. 254, 154 So.2d 12, was quoted with approval by Mr. Chief Justice Heflin in Knight, supra, which is illuminating.

“ ‘(3) However, this court is committed to the principle that this requirement as to clear expression of the subject of a bill in the title is not to be exactingly enforced in such manner as to cripple legislation, or is it to be enforced with hypercritical exactness, but is to be accorded a liberal interpretation. Kendrick v. Boyd, 255 Ala. 53, 51 So.2d 694; Taylor v. Johnson, 265 Ala. 541, 93 So.2d 143.’ ” (287 Ala. at 22, 246 So.2d at 908)

In this instance we deem it necessary to set out the title to Act No. 1062 as proposed :

“To amend Section 257, subsection (d) of Section 262, Sections 263, 269, 270, 271, 272, 273, 277, 279, 280, 283, 285, 286, 289, 292, 293, 301, paragraphs (2), (4) and (5) of Section 309, Sections 312 and 324, all being of Chapter 5, Title 26, Code of Alabama 1940, as last amended, Sections' 4, 6, 7, and 12 of Act No. 180, adopted at the 1951 Regular Session of the Legislature of Alabama, as last amended, Sections 3, 5, 6, and 11 of Act No. 521, adopted at the 1967 Regular Session of the Legislature of Alabama, as last amended, and Sections 3, 5, 6, and 11 of Act No. 668, adopted at the 1971 Regular Session of the Legislature of Alabama, as last amended, and to repeal Sections 255, 256, 274, 275, 276, all being of Chapter 5, Title 26, Code of Alabama 1940, as last amended, Sections 5 and 8 of Act No. 180, adopted at the 1951 Regular Session of the Legislature of Alabama, as last amended, Sections 4 and 7 of Act No. 521, adopted at the 1967 Regular Session of the Legislature of Alabama, as last amended, and Sections 4 and 7 of Act No. 668, adopted at the 1971 Regular Session of the Legislature of Alabama, as last amended, relating to providing compulsory coverage of subject employers and employees, extending coverage to common carriers but specifying certain persons not to be employees of common carriers, allowing elective coverage of farmers, providing immunity under certain circumstances from suits to co-employees, to workmen’s compensation insurance carriers of employers and to persons or companies making certain safety inspections, extending the presumption of dependency to include husbands, increasing the maximum and minimum weekly compensation payable, extending the maximum number of weeks payable for permanent total disability and for death, increasing the amount payable for burial expense, reducing the number of days of disability required before compensation is payable for the waiting period, providing for a penalty for late payments of compensation, increasing medical benefits and extending the period during which such benefits are payable, specifying coverage of physical rehabilitation as a medical benefit, providing for a change of physician under certain circumstances, increasing the -basis of calculation whereby an employer may be discharged from the payment of future installments of compensation, providing for additional reports to be filed with the Department of Industrial Relations, authorizing the Director of Industrial Relations to require self-insured employers to post bond or securities and to prescribe other rules and regulations regarding self-insurance, providing for the applicability of and effect of Articles 1, 2 and 3 of Chapter 5, Title 26, Code of Alabama 1940, as amended, providing for penalties for the failure to secure compensation liability and for failure to file reports, permitting the parties to agree as to the intervals at which certain benefits shall be paid, and appropriating $47,000 for the fiscal year beginning October 1, 1973, and ending September 30, 1974, and $46,000 for the fiscal year beginning October 1, 1974, and ending September 30, 1975, out of the general fund of the State Treasury to the Department of Industrial Relations for carrying out the purpose of this Act, all relating to the Workmen’s Compensation Law, Articles 1, 2, 2A, 2B, 2C, and 3 of Chapter 5 of Title 26 of the Code of Alabama 1940, as last amended, pertaining to compensation of employees by employers for job-related injuries and certain illnesses and diseases.”

As the supreme court stated in Bagby, supra, in summarizing several cases, the object of § 45 is as follows:

“ . . . This Court, in dealing with the requirement that the subject be ‘clearly expressed in the title,’ has identified three objectives of Section 45:
“ ‘The object of the constitutional provision has been held to be three fold, first, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, and in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire; second, truly to inform members of the legislature who are to vote upon the bill, what the subject of it is so that they may not perform that duty, deceived or ignorant of what they are doing; and third, to prevent the practice of embracing in one bill several distinct matters, none of which, perhaps could singly obtain the assent of the legislature, and then procuring its passage by a combination ■ of the minorities in favor of each of the measures, into a majority that will adopt them all. Lindsay v. United States Savings & Loan Ass’n, 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Walker v. Griffith, 60 Ala. 361.’ State v. Hester, 260 Ala. 566, 72 So.2d 61 (1954).”

(292 Ala. at 194, 291 So.2d at 308)

To this court, the issue as presented is whether the act contained one subject which was so clearly expressed in its title as to satisfy the aforementioned objectives set out by the supreme court.

To this court, keeping in mind our Chief Justice’s remarks in Knight, supra, as quoted above, the title to the act in question, while certainly not a paragon of clarity, does meet minimum standards so as not to be violative of § 45.

It is clear that the title informs even the casual reader what code sections in general are to be amended. Furthermore, that all such amendments relate to workmen’s compensation.

To adopt appellant’s argument that the title to Act No. 1062 does not clearly express the subject matter contained in Subsection (c) (9) of § 279 of Tit. 26, i. e., the lump sum compensation, is to argue that a title must contain an index to the bill. This is not the law nor, as we perceive it, should it be.

While there can be no doubt that under our system the judiciary is a coequal branch of government, we must always be ever conscious of the conditions and pressures that are sometimes more prevalent in the legislative and executive than in the judiciary. The legislature of this state, as anyone who has been directly involved knows, does not work and labor in the quiet of an office and at its own pace as does the appellate judiciary. This is as it should be but the judiciary must not, in looking at legislative enactments, use a standard that the legislature is, in a practical and realistic sense, incapable of complying with.

As Mr. Justice Maddox states in his dissent in Bagby, supra, the judiciary must not infringe upon the prerogatives of the legislature. We should not make such a microscopic examination so as to view legislation with “hypercritical exactness.”

Ill

The third issue raised by appellant is that the trial judge erred in not giving appellant notice of appellee’s petition under Tit. 26, § 279(c)(9), Code of Ala.1940, prior to entering his final decree.

This section reads as follows:

“In case of an injured employee whether permanent, partial, or however injured, or death of an employee, and only in such cases as are presented to the court by petition the circuit judge with competent jurisdiction may decide how the compensation shall be paid to the injured employee or his estate upon a final settlement or judgment whether by . a trial or by agreement. In cases pending in payment at the time this Act becomes law [September 17, 1973] the injured employee or his estate may petition a court of competent jurisdiction and the court may order the employer to pay the amount due the employee or his estate within thirty (30) days from the date of said order if the court determines that moneys due the employee or his estate shall be paid in a lump sum. The payments shall not be commuted.” [Emphasis added]

As we read this section, there is no requirement for notice to be given the employer prior to issuing his decree. The amount of compensation due having already been decided, it is then up to the judge, upon proper petition by the employee and applying a standard of reasonableness to determine whether the employee shall refceive the money due in a lump sum.

While it would be better practice for the trial judge to give all concerned an opportunity to be heard and for the employee to inform the employer that he seeks a lump sum compensation, such practice is not mandated by the statute. There could possibly be a situation in which a trial judge abuses his discretion in allowing a lump sum compensation, but such is not the case here. We note that the proposed decree was submitted to both counsel prior to its rendition and no objection was made by either party.

IV

Appellant next contends that Act No. 1062, Acts of Alabama 1973, Vol. Ill, p. 1750, was not duly enacted into law and is therefore invalid.

Appellant contends that the Act No. 1062 as signed by the Governor was not the act as passed by the legislature. The proposed bill contained an amended § 312 to Tit. 26. Appellant contends that even though this amended section was deleted by an amendment from the floor of the Senate, the bill as signed into law by the Governor contained the amended section. Thus, appellant contends the entire Act No. 1062 is invalid because of a material variance between the enrolled bill which was signed by the Governor and the bill as actually passed by the legislature.

We have examined the bill as actually passed by the legislature and the enrolled bill actually signed by the Governor, thanks to the invaluable aid and assistance of the Honorable McDowell Lee, Secretary of the Alabama Senate and also Mrs. Jones of the Department of Archives and History.

The amendment which appellant’s contentions are based on as deleting the enrolled § 312 reads as follows:

“Deleting § 27 amending § 36 of Title 26 as it appears on page 29 and renumber the remaining sections.” [Emphasis added]

This issue was not raised in the trial court. Issues not raised below will not be considered for the first time on appeal. Penn Mutual Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346.

However, for whatever benefit it might be, we make the following observations:

Even assuming that the Governor signed an enrolled bill containing a section deleted by the legislature, which we believe to be the case, we do not find the entire Act No. 1062 invalid.

Said act contains the following section:

“Section 45. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.”

Our supreme court made the following pertinent comments concerning the interpretation of statutes containing severability clauses in Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30:

“ ‘ * * * If after the deletion of the invalid part, the remaining portions of an Act are complete within themselves, sensible, and capable of execution, the Act will stand notwithstanding its partial invalidity. Springer v. State ex rel. Williams, 229 Ala. 339, 157 So. 219.’ Wilkins v. Woolf, 281 Ala. 693, 697, 208 So.2d 74, 78. 18 Ala.Digest, Statutes, ©=>64(1).
“One of the specific provisions óf the Act is a severability clause providing that, ‘If any part of the Act is declared invalid or unconstitutional, such declaration shall not effect that part which remains.’
“This court has recently expressed the rule as to separability clauses in Allen v. Walker County, 281 Ala. 156, 162, 199 So.2d 854, 860 (1967):
“ ‘We recognize that a separability clause shall be given effect, where possible, to save legislative enactment (Alabama State Fed. of Labor v. McAdory, 246 Ala. 1, at p. 25, 18 So. 2d 810), that is if the invalid portion is not so intertwined with the remaining portions that such remaining portions are rendered meaningless by the extirpation, in which event it must be assumed that the legislature would not have passed' the enactment thus rendered meaningless. Ward v. State ex rel. Lea, 224 Ala. 242, 139 So. 416.’
“We do not think the invalid portions of the Act were so intertwined with the remaining portion so ‘that such remaining portions are rendered meaningless by the extirpation * * *.’
“We further recognize that,
“ ‘ * * * [W]here a statute is thus partly infected with invalidity * * * the severable or saving clause thereof * * * is persuasive to the judicial mind the legislature intended that should the invalid portion be stricken, the valid part should survive. State ex rel. Clarke v. Carter, 174 Ala. 266, 56 So. 974; State [ex rel. Crumpton] v. Montgomery, supra [177 Ala. 212, 59 So. 294]; Opinion of the Justices, 247 Ala. 195, 23 So.2d 505; Williams v. Standard Oil. Co. of Louisiana, 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, 60 A.L.R. 596.’ Newton v. City of Tuscaloosa, 251 Ala. 209, 218, 36 So.2d 487, 493 (1948).”
(289 Ala. at 42, 426, 427, 268 So.2d at 35, 36, 37)

Applying these principles to the act under question, we do not think that alleged invalidity of § 312 is such as to require overturning the entire act. The act contains forty-seven sections, forty-four of which amend or add to the existing legislation regarding workmen’s compensation. The fact that one section is infirmed, dealing with a subject matter not necessarily affecting the other forty-three sections, does not invalidate the other sections, when there is present a severability clause.

V

Appellant next contends that Tit. 26, § 279(c)(9), is in conflict with other statutory provisions not expressly repealed by it, to wit, Tit. 26, § 299. Section 299 provides for a lump sum payment by agreement of the parties and .that such payments be commuted. As already noted, § 279(c)(9) provides for lump sum payment without commutation ' on petition of the employee alone.

Appellant contends that these two sections should be construed together to give both a field of operation. He suggests that lump sum payments under § 279(c)(9) be allowed only in those cases where payment is already progressing in periodic installments, and that § 299 be applicable in cases not yet in the payment state. Thus, appellant interprets the phrase “pending in payment” to mean cases already in payment at the time the act became law.

We reject appellant’s argument. This court recently held in Ex parte Mar-Mil Steel and Supply Company, 54 Ala.App. 432, 309 So.2d 471, (1975), that § 279 (c) (9) does not apply to judgments already in the payment state at the time of its passage.

In construing a statute, every word in each section must be given effect, if possible, and construed with other sections in pari materia. Carroll v. Alabama Public Service Commission, 281 Ala. 559, 206 So.2d 364.

Statutes should be resolved in favor of each other when possible so as to form one harmonious plan. State v. Community Blood and Plasma Service, Inc., 48 Ala.App. 658, 267 So.2d 176.

A statute must be construed in harmony with statutes existing at the time of its enactment, so far as applicable. Gulf States Steel Co. v. Justice, 204 Ala. 577, 87 So. 211.

Each statute, if possible, should be afforded a field of operation. Williams v. City of Dadeville, 35 Ala.App. 319, 46 So.2d 427.

Applying these rules of construction to § 279(c) (9) and § 299, this court is of the opinion these statutes should be read together so as to provide for alternative methods of seeking lump sum compensation. We, accordingly, find no conflict between these statutes.

VI

The last issue before this court is the contention by appellant that the trial court erred in overruling the appellant’s motion to exclude the following answer of appellee’s wife:

“A. When I came in from work around eleven o’clock, he was on the bed and I asked him what was wrong and he said he hurt his back that day.”

Appellant contends that one of its defenses at the trial was that the injury did not occur from an accident arising out of and in the course of appellee’s employment inasmuch as appellant alleges the appellee was complaining of pain in his back prior to the injury. Thus, appellant contends the answer of appellee’s wife was offered to prove the truth of the matter asserted.

We do not find the failure by the trial judge to exclude this answer reversible error.

Our supreme court has held that testimony apparently illegal upon admission may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred. East Alabama Exp. Co. v. Dupes, 271 Ala. 504, 124 So.2d 809.

It is also true that error must be prejudicial to be reversible. Barran v. Roden, 263 Ala. 305, 82 So.2d 398.

We find no reversible error here inasmuch as there was subsequent legal evidence introduced to support appellee’s claim that he injured his back at work. Supreme Court Rule 45. Additionally, we note that in appellant’s cross-examination of this witness — appellee’s wife — the following question and answer exchange took place.

“Q. Not a thing. Did he tell you it happened at the plant ?
“A. Yes, sir, he said when I came in that night, I asked him what was wrong and he said T hurt my back today at the plant’. That is what he said.”

All argued assignments of error having been considered, it is the opinion of this court that this case is due to be and is, therefore and accordingly, affirmed.

Affirmed.

WRIGHT, P. J., and BRADLEY, J., concur.

ON REHEARING

HOLMES, Judge.

Able and distinguished counsel for appellant, in his application for rehearing, points out that this court inadvertently quoted the present Tit. 26, § 279(c),(6), Code of Ala., when, in fact, the appropriate Code section in this case is Tit. 26, § 279(c)(6), as it existed prior to the 1973 amendment. He is correct.

Tit. 26, § 279(c)(6), on page 780 of our opinion should read as follows :

“In all other cases of permanent partial disability not above enumerated, the compensation shall be sixty-six and two thirds percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition subject to the same maximum weekly compensation as stated in section 289 of this title.”

Opinion extended; application for rehearing overruled.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: PER CURIAM. MADDOX, Justice

license: Public Domain

text:
    In re the B. F. GOODRICH CO. v. William Travis BUTLER. Ex parte the B. F. Goodrich Co.
    SC 1340.
    Supreme Court of Alabama.
    Nov. 20, 1975.
    Rehearing Denied Jan. 2, 1976.
    M. T. Ormond, Tuscaloosa, for petitioner.
    Edward F. Morgan, Tuscaloosa, for respondent.
    John H. Morrow and Michael H. Mobbs, Birmingham, amicus curiae in support of petition for United States Pipe and Foundry Co. and Stockham Valves and Fittings, Inc.
    Thomas, Taliaferro, Forman, Burr & Murray and Robert G. Tate and A. Brand Walton, Jr., Birmingham, amicus curiae in support of petition for Associated Industries of Alabama.
    Burns, Shumaker & Davis and Otis J. Goodwyn, Jr., Gadsden, amicus curiae, opposed to petition for Alabama Labor Council AFL-CIO.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., amicus curiae, opposed to petition for the State.
   PER CURIAM.

The writ to the Court of Civil Appeals, 56 Ala.App. 635, 324 So.2d 776 is quashed as improvidently granted. By so doing we are not to be understood as expressing any opinion on the constitutionality of Act No. 1062 as that question was not properly presented to the trial court.

Writ quashed as improvidently granted.

MERRILL, ALMON and SHORES, JJ., concur.

MADDOX and JONES, JJ., concur specially.

MADDOX, Justice

(concurring specially.)

I would affirm the judgment of the Court of Civil Appeals. While the Court of Civil Appeals did make certain “observations” that Act No. 1062 was not unconstitutional because the bill which passed the Legislature was not exactly like- the one signed by the Governor, the actual holding of that court was that the constitutional question had not been properly presented. The Court of Civil Appeals did discuss the constitutional question, nevertheless, and I believe that court made a correct “observation” — that Act No. 1062 was not void in its entirety because of the variance. Justice Clopton, in Stein v. Leeper, 78 Ala. 517 (1885), set out the rule to follow in such matters:

“On what principles shall it be determined, whether the change in the bill, as approved, materially varies in substance and legal effect of the bill as passed by the General Assembly? A safe and practical rule is the one on which the courts adjudge a statute unconstitutional in toto or in part. Speaking of statutes containing some unconstitutional provisions, Judge Cooley says: ‘A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of a law, may contain other and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void, because they are associated in the same act, but not connected with, or dependent on, others which are unconstitutional.’ The learned author thus states the test: ‘If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.’ And the same rule is applied to a statute, some parts of which may not have been passed in accordance with the constitutional forms, where he says: ‘So, the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case, the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity.’ ”

By quashing the writ rather than affirming the Court of Civil Appeals, the majority has failed to give final review of a new statute which will affect the rights of many employers and employees alike. That is why I would affirm the' case rather than quash the writ.

JONES, J., concurs.


author: WRIGHT, Presiding Judge.

text:
    Billie H. LONG v. Patricia Duff LONG.
    Civ. 637.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.

      Whitesell & Gordon, Montgomery, for appellant.
    George H. B. Mathews, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the provisions of a divorce decree awarding alimony and division of property.

A divorce was granted the husband upon his cross-complaint on the ground of incompatibility. The wife was awarded title to the home and all household furnishings, a 1974 automobile, $700.00 cash, $1,500.00 attorney fees, alimony for two years at $750.00 per month and thereafter alimony of $500.00 per month until death or remarriage. The husband was awarded a savings account containing some $5,000.00, savings bonds of the value of some $4,000.-00 and a 1966 model automobile. Husband appeals from the decree, primarily complaining of error in the award of the monthly alimony.

The evidence discloses certain pertinent facts. The parties were married for over 20 years. Two daughters were born who are now adult college students of the ages of 19 and 20 years. The husband is a retired military master sergeant, currently drawing, after insurance premium deductions and taxes, a monthly net of $386.46. He is employed by the State of Alabama as Warden of Mt. Meigs Medical and Diagnostic Center. His gross salary is $15,039.00 annually. His monthly net salary is $914.33. Salary plus retirement totals a net monthly income of $1,294.00.

The parties purchased a home in 1971 with a $7,500.00 down payment. The evidence does not disclose a present market value of the home. It may be reasonably inferred that over four years of payments plus inflation have substantially increased the equity therein. The wife has not been employed during the marriage and has no job skill. In 1966, the wife was found to have a disease known as systemic lupus er-ythematosis. This disease causes the body to have an immunological reaction to its own tissue. It may affect the organs of the body in various ways. It affects the central nervous system. The primary danger to mortality is in involvement of the kidneys. Regular evaluation at intervals of six months to a year is required to check any effect on the kidneys. Mrs. Long has had no kidney involvement at this time. She has had some skin involvement from the disease. She is stated to be highly nervous and tends to be neurotic in behavior. Psychiatric consultation has been advised. It is expected that Mrs. Long will need to see a physician often, primarily to relieve her mind as to symptomatic problems which may arise. Her physician places no restriction on any activity which she feels like undertaking. Mrs. Long takes some seven drugs. Some daily and others as needed. They include vitamins, anti-histamines, aspirin and a large volume of a tranquilizer.

Mrs. Long has had a hysterectomy and several breast excisions for benign cysts and is clearly unwell. However, though not openly stated in the deposition of the physician, it is clearly to be inferred therefrom that the physical and mental well-being of Mrs. Long would improve if she became more active and less dependent upon drugs and medical reassurance.

After careful consideration of the evidence and the decree of the trial court, we conclude that the court exceeded its discretion when it awarded to the wife all of the real and personal property of the husband, other than savings, and more than 60% of his net income for a period of two years and nearly 40% of his income thereafter. The savings awarded the husband are considerably lessened by the award in the decree of $700.00 lump sum alimony, a $1,500.00 attorney fee and costs of court. We recognize the loss by the wife of free medical care and drugs previously available to her as the wife of a retired military man. However, we also recognize that Mrs. Long may diminish her expenses and secure cash reserve by disposing of the home given to her and which will be unneeded with the adulthood of her children. Neither husband nor the wife is any longer obligated to provide support for the children. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348.

Though we have numerous times stated that an award of alimony is a matter within the discretion of the trial court and the amount is dependent upon the facts of the particular case, Turner v. Turner, 46 Ala.App. 350, 242 So.2d 397; Hutton v. Hutton, supra, we have also said the award must not be unreasonable nor arbitrary. Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437.

We are neither cited nor are we aware of any precedent for awarding as alimony more than 60% of a husband’s net income. Such an award, in the absence of showing extreme need, such as total infirmity of the wife, and/or infamous treatment by the husband, would tend to remove incentive of the husband to work and earn.

We therefore reverse the award of periodic alimony and direct the trial court to enter an award of $500.00 per month. The other provisions of the decree are affirmed.

Appellee’s motion for attorneys fees on appeal is granted in the sum of $300.00.

Affirmed in part, reversed in part with direction.

RRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    V. C. EVANS v. Joseph J. NEWSOME and Donald R. Allison.
    Civ. 609.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.

      Tweedy, Jackson & Beech, Jasper, for appellant.
    Elliott, O’Rear & Robinson, Jasper, for appellees.
   HOLMES, Judge.

This appeal is taken from a jury verdict and judgment thereon rendered in the Circuit Court of Winston County, Alabama.

The action was one for the destruction of the plaintiffs’ ungathered corn crop and for the breach of a lease preventing plaintiffs from growing a corn crop the following growing season. The jury found in favor of plaintiff-appellees Joseph New-some and Donald Allison, and against defendant-appellant V. C. Evans. Plaintiffs’ damages were assessed at $1,500.

The issues on this appeal are whether the trial court erred to reversal in the admission of certain evidence concerning corn grown by plaintiffs on a tract of land different from the one concerned here.

The facts as revealed by the record are as follows:

In March of 1972, plaintiff-appellees Newsome and Allison leased 43 acres of land for two years from one Paul Wilson. Plaintiffs proceeded to plant and grow a corn crop on this land. Paul Wilson sold the land to his father, D. E. Wilson, in December of 1972. D. E. Wilson granted defendant an option to purchase the land in May of 1973, and defendant in fact purchased the land later the same month. During that month defendant or his agents destroyed and plowed under plaintiffs’ un-gathered corn crop on 34 acres of the land in question. This lawsuit ensued.

Able counsel for defendant by his assignments of error contends that the trial court erred to reversal by its admission of evidence regarding corn grown by plaintiffs on a tract of land other than the one which is the subject of the instant lawsuit. The corn was grown on this separate 20 acre tract during the 1973-74 growing season and the evidence concerning it was introduced as tending to show the crop which plaintiffs were prevented from producing on the instant 43 acre tract. Put another way, the evidence concerning the 20 acre plot was introduced. for comparative purposes. Defendant argues that the evidence is overly speculative.

We initially note that there was sufficient competent evidence concerning the value of the destroyed corn alone to sustain the jury’s verdict. Plaintiff Allison testified as to the number of bushels of corn per acre remaining ungathered and as to the fair market value of corn per bushel on that date. He then computed the fair market value of the 34 acres of ungathered corn as approximately $5,600. The evidence shows that Allison was in the dairy and farming business, that he had approximately nine acres of corn gathered from the tract in question before it was plowed under, and that he was subsequently engaged in further farming operations. Under these circumstances, we are of the opinion that Allison was qualified to testify as to the amount of ungathered corn and its fair market value. International Agri. Corporation v. Abercrombie, 184 Ala. 244, 63 So. 549; Mills v. Funchess, 266 Ala. 569, 97 So.2d 910; 31 Am.Jur.2d, Expert and Opinion Evidence, §§ 133, 158. The weight of his testimony was for the jury to ascertain. See 9 Ala.Dig., Evidence, ^570 and cases cited thereunder.

As such, it is not essential to our disposition of this. cause that we consider defendant’s assignments of error. Rule 45, ARCP. However, we feel that the evidence the introduction of which was assigned as error was competent to be received. Plaintiffs were attempting to demonstrate the corn crop which they would have produced had they remained in pos-, session of the 43 acre tract. To that end, plaintiff Allison showed their actual production and the fair market value thereof on the 20 acre tract.

Allison’s qualifications have already been discussed. He testified that the 20 acre tract was located one-half mile away from the tract in question and that both tracts were similar as regards terrain and soil type.

In order to be relevant, evidence must tend to establish the fact sought to be proved. McCormick On Evidence, § 185. Considering the meaningful similarity between the two tracts and Allison’s farming experience, his testimony tended to establish plaintiff’s proposition and was thus admissible. The case of International Agri. Corporation v. Abercrombie, supra, is authority in point.

There being no error in the record, this case is due to be affirmed.

Affirmed.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BOOKOUT, Judge.

text:
    Walt WHITFIELD v. STATE.
    4 Div. 203.
    Court of Criminal Appeals of Alabama.
    March 4, 1975.
    Rehearing Denied March 18, 1975.

      Joseph P. Hughes, Geneva, for appellant.
    William J. Baxley, Atty. Gen'., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The appellant was indicted on a charge of robbery November 1, 1971, by the Grand Jury of Geneva County. His trial began on October 2, 1972, and ended on October 3, 1972, upon a finding of guilty by the Jury, which fixed his punishment at twenty-one years in the penitentiary. On that date, after sentencing, the appellant gave notice of appeal, and sentence was suspended pending such appeal. On October 27, 1972, the appellant waived suspension of sentence and elected to begin serving the sentence imposed immediately.

Beginning November 30, 1972, and extending through February 26, 1974, the court reporter filed fifteen motions to extend time for filing of the transcript of the evidence with the Circuit Clerk. Such motions were granted and orders issued by the Circuit Judge extending time for filing the transcript through February 26, 1974.

The transcript of the evidence included in the record on appeal was not the original transcript, but a carbon copy thereof and the certificate of the court reporter dated March IS, 1974, was not signed. Upon request of this Court, the Circuit Clerk furnished a certified copy of the signed certificate of the court reporter for inclusion in the record in this appeal.

The evidence in the case established the appellant to have been sixteen years of age at the time the robbery charged was committed. An amended motion to quash the indictment dated November 8, 1971, likewise apprised the court of the fact that the appellant was sixteen years of age. Act No. 335, Acts of Alabama, 3d Spec.Sess., 1971, became effective February 10, 1972, and is known as the Youthful Offender Act (Title 15, § 266(1) et seq., Code of Alabama 1940, as amended). The trial of the appellant thus took place in October, 1972, after the effective date of the Act in February of that year.

I

This Court in Flippo v. State, 49 Ala.App. 138, 269 So.2d 155, held the Youthful Offender Act to be constitutional. In that case, the defendant was indicted thirty-six days before Act No. 33S became effective, and he entered a guilty plea some thirteen days after the effective date of that Act.

Failure of the trial court to apprise the defendant of the Youthful Offender Act in that case was brought to the trial court’s attention in a motion for a new trial. The similarity between the Flippo appeal and the instant appeal ends at this point. The appellant, Whitfield, filed a motion for a new trial on November 10, 1972, however, the motion is not set out in the record and the only reference thereto in the record is as follows:

“10:30 A.M. MORNING SESSION NOVEMBER 10, 1972
“THE COURT: Let the record show that this was the time and the place set for the hearing of the defendant’s motion for a new trial and the Defendant’s attorney having appeared announced that she wished to adduce no testimony and would submit on the motion itself, whereupon she handed the Court a list of citations to be considered by the Court.”

Pursuant to Flippo, supra, there is no doubt that the appellant in the instant case, being sixteen years of age at the time of the commission of the crime charged and seventeen years of age on the date of his trial, would be subject to the provisions of the Youthful Offender Act. The question remaining for a decision by this Court is whether the trial court’s failure to apprise the appellant of his right to be tried as a youthful offender may be considered for the first time on appeal. The case of Armstrong v. State, 49 Ala.App. 720, 275 So.2d 698, held that a defendant was not entitled to raise for the first time on appeal the failure of the trial court to afford him treatment as a youthful offender pursuant to Act No. 335, supra.

Harris, J., speaking for this Court in the Armstrong case stated:

“An examination of the records in these cases reflect that Act No. 335, Third Special Session, approved February 10, 1972, now known as the “Youthful Offender Act”, was never called to the attention of the trial court. No motion of any kind was made by Armstrong and Fowler to the trial court prior to entry of judgment. Nor was there motions for a new trial within the time allowed by law, or even thereafter.”

Armstrong was decided December 5, 1972, and rehearing was denied January 23, 1973. However, on December 13, 1973, the Supreme Court of Alabama rendered a significant opinion in the case of Morgan v. State, 291 Ala. 764, 287 So.2d 914.

The Supreme Court of Alabama, speaking through Justice Faulkner in that case, held the Youthful Offender Act not to have retroactive effect where the defendant was tried prior to the effective date of Act No. 335, supra. Most significantly, however, the Court went on to state:

“The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subject to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Refe'rral in such event is not discretionary, hut mandatory, on the part of the trial judge. After the investigation, if the youth consents to examination by the court and trial without a jury, and the court so decides, no further action is taken on the indictment or information unless ordered by the court. After investigation and examination, it is within the discretion of the trial judge whether the youth shall be tried as a youthful offender. The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.’’ (emphasis supplied)

II

The Alabama Court of Criminal Appeals was established and its jurisdiction fixed by Act No. 987, Acts of Alabama 1969. Section 10 of that Act states in part:

“The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals, . . . ”

Regardless of this Court’s ruling in Armstrong, supra, the Supreme Court in Morgan places the burden on the trial judge to call the benefits of the Youthful Offender Act to the attention of an eligible defendant. That Court has analogized that burden and duty of a trial judge to the duty of a trial judge to explain a defendant’s constitutional rights before accepting his guilty plea. Such being the case, this Court is now under an affirmative duty in searching the record for error to determine whether the trial judge performed the mandatory duty of apprising the defendant of his rights under the Youthful Offender Act.

On February 18, 1975, this Court remanded with directions the case of Wilson v. State, 56 Ala.App. -, 326 So.2d 314. Leroy Wilson was jointly indicted with the appellant, Walt Whitfield, and was sentenced to thirty years in prison. Wilson was nineteen years of age at the time of his trial. In the opinion of this Court in the Wilson case, Cates, P. J., held:

“On authority of Morgan, supra, this case is remanded to the trial court to make known to the Appellant his right to petition for trial as a youthful offender. Should he manifest a desire to be so tried, the petition is to be referred to a probation officer for investigation. Tarver v. State (1975), 56 Ala.App. 36, 318 So.2d 775.”
“After a speedy, full recorded hearing on the petition, a transcript of the proceedings, together with the trial court’s determination, is to be forwarded to this court for review. Edwards v. State, (1974), 55 Ala.App. 544, 317 So.2d 511.”

The Court hereby fully applies the above quoted instructions to this appeal, and this case is therefore

Remanded with directions.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Walt WHITFIELD v. STATE of Alabama. Ex parte STATE of Alabama Ex rel. ATTORNEY GENERAL.
    SC 1201.
    Supreme Court of Alabama.
    May 22, 1975.
    William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State, petitioner.
    None for respondent.
   MADDOX, Justice.

The Court has denied certiorari in the companion case of Ex parte State (In re: Wilson v. State), 295 Ala. -, 326 So.2d 315. Wilson was jointly indicted with Whitfield, see Ala.Cr.App., 56 Ala.App. 653, 324 So.2d 793. On authority of Ex parte State (In re: Wilson v. State) and Ex parte State (In re: Edwards v. State), 294 Ala. 358, 317 So.2d 512 (Ms.) decided May 22, 1975, the writ of certiorari was improvidently granted. After remand, appeal was dismissed, Ala.Cr.App., 56 Ala.App. 656, 324 So.2d 797.

Writ quashed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, JONES, SHORES and EMBRY, JJ., concur.

FAULKNER, J., dissents.

ALMON, J., not sitting.


text:
    Walt WHITFIELD v. STATE.
    4 Div. 203.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Joseph P. Hughes, Geneva, for appellant.
    William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The appellant was indicted on a charge of robbery November 1, 1971, by the grand jury of Geneva County. He was found guilty on October 3, 1972, the jury fixing punishment at twenty-one years in the penitentiary. The appellant gave notice of appeal, and sentence was suspended pending such appeal. However, on October 27, 1972, the appellant waived suspension of sentence and elected to begin serving the sentence immediately.

This Court on March 4, 1975, remanded this case with directions that the appellant be apprised of his right to be tried under the Youthful Offender Act of Alabama. On October 23, 1975, this case was resubmitted after the return to remand and is now before this Court on the merits.

On remand the appellant made application to be treated as a youthful offender. A report on Walt Whitfield by William Chesser, Probation Officer, was received into evidence. The report showed that the appellant had no previous record, did not have a bitter attitude, and has been a model prisoner since his commitment to prison. He had been attending school and has been given several “passes” and allowed to visit with his parents for a period of several days.

After a full hearing on Youthful Offender treatment, the following appears in the return to remand:

“THE COURT: All right. The defendant is hereby treated as a Youthful Offender.
“MR. HUGHES: All right, sir.
“THE COURT: Now, to the charge of being a Youthful Offender, how do you plead ?
“WALT WHITFIELD: Guilty.
“THE COURT. Do you have anything to say why sentence of the Court should not be imposed upon you as a Youthful Offender?
“WALT WHITFIELD: No, sir.
“THE COURT: I sentence you to imprisonment in the penitentiary of this State as a Youthful Offender for a term of two and a half years, I give you credit for the time you have already served and I order your release forthwith.
“WALT WHITFIELD: Thank you, sir.
“THE COURT: All right. Good luck to you.”

Therefore this case is moot and the appeal is dismissed.

Appeal dismissed.

All the Judges concur.


text:
    Norris Lee FLOYD v. STATE.
    4 Div. 382.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    T. R. Ward, Abbeville, for appellant.
    William J. Baxley, Atty. Gen., and Jane Le Croy Robbins, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent at nisi prius with the same appointed counsel here and below, was convicted of rape by a jury and punishment was fixed at 50 years imprisonment.

It appears that the alleged rape occurred in the nighttime, at a truck-stop in Henry County. The victim and another female were employed there to dispense gas and oil and to serve food to customers.

The defendant and two other blacks stopped and obtained sandwiches, left, and then later came back and sought to purchase sandwiches again.

The alleged rape occurred on the second visit when, after asking for food service again, each of the customers brandished a pistol and by means of threats and force, each had sexual intercourse with the females. The evidence shows that appellant had sexual intimacy with the victim who is named in the indictment. Evidence was not admitted as to what happened after all five left the premises. The victim of the rape committed by defendant wound up in the hospital. As to what happened to the other woman, the record is silent. We omit unsavory details. The case of another of the three rapists is O’Neal v. State, 4th Div. 383, affirmed, October 21, 1975.

While in the hospital the victim was shown 18 photographs of different suspects. She identified defendant from one of the photographs. These photographs were in' court and shown counsel for defendant. Counsel cross-examined the victim with reference to them.

Also it is clear that the victim, during both times that defendant and the other two came to the truck-stop, had ample opportunity to view the defendant; hence, she was able to identify the photographs and also make an in-court identification.

It is true that the photograph of defendant showed a number that indicated he was under arrest for some offense when the picture was taken. As we view the evidence other photographs in the group also had numbers.

Appellant contends that the number on the defendant’s photograph “was so unper-missibly suggestive so as to give rise to a very substantial likelihood of irreparable misidenti f ication.”

We cannot agree with this contention. As we noted above, other photographs among the 18 shown the witness, also bore numbers. Notwithstanding these multiple numbers, the witness was able to identify the defendant.

The observations of Justice Powell, concurred in by a majority of the Supreme Court of the United States, in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, have pertinent significances and applicability hereto. We quote:

“Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is,, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misi-dentificatibn.’ Simmons v. United States, 390 U.S. [377], at 884, 88 S.Ct. [967], at 971, [19 L.Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidenti fication which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402]. . . . (Bracketed matter added.)
“We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentifi-cation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. . . . ” 409 U.S. 188 at 198-200, 93 S.Ct. 375 at 381, 34 L.Ed.2d 401 at 410-411.

We think that the victim’s likelihood of misidentification under the total circumstances was minimal, and the identifying evidence thereof was free of error. Wilson v. State, Court of Criminal Appeals, 1975, 56 Ala.App. —, 326 So.2d 316.

The judgment of guilt is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: BOLIN, Justice. CALOGERO, Justice PER CURIAM:

text:
    STATE of Louisiana v. Roy and Ray CALLOWAY.
    No. 56739.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion Jan. 5, 1976.
    Rehearing Denied Jan. 16, 1976.
    On Rehearing Jan. 19, 1976.

      John J. Dolan, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

Defendants were jointly charged by bill of information with armed robbery, in violation of La.R.S. 14:64. It was alleged Roy and Ray Calloway entered Hattie’s Dress Shop together where Roy cashed a check. The owner testified that soon after both men left, a man with a hood covering his face entered her store. The hooded man ordered the owner to get on the floor while he forced a female employee to give him the money in the cash register and the money bag. The bag was in a drawer where the owner had placed the payroll check she allegedly cashed for Roy Callo-way. Both women identified Ray Callo-way as the man who robbed the store.

Defendants were later stopped at a roadblock and a search of their car revealed a pistol and some money. Moreover, a check stub of the same kind as that cashed at Hattie’s Dress Shop shortly before the robbery was found on the person of Roy Cal-loway.

After trial, both defendants were convicted of armed robbery and sentenced to sixty years’ imprisonment. Defendants appeal and we affirm.

BILLS OF EXCEPTIONS RESERVED BY ROY CALLOWAY:

BILLS OF EXCEPTIONS NOS. 1 through 4.

These bills were reserved during the redirect examination of the store owner. The State sought to introduce various articles of clothing worn by defendants when they were apprehended. The objection is chiefly that they were beyond the scope of the opening statement, in violation of La.C.Cr.P. art. 769. This argument lacks merit as the prosecutor said during the opening statement he would introduce “ * * * [t]he clothes worn by the defendants on the date of the robbery.”

Finding the items of clothing were properly identified and there being no procedural defect 'in the manner the items were offered into evidence, these bills are not well founded.

BILLS OF EXCEPTIONS NOS. S and 6.

These bills were reserved by defendant Roy Calloway to the manner in which the State was permitted to impeach its own witness. The witness, who had gone to school with defendants, had given a statement to police after the robbery indicating he had seen Roy and Ray Callo-way together at a fruit stand near the scene at about the time of the robbery. When testifying, however, the witness said he had only seen Roy Calloway at the fruit stand. When the State tried to impeach the witness by use of the prior inconsistent statement, defendant objected.

Outside the presence of the jury, the State proved it had no prior indication the witness would testify contrary to this prior statement. The testimony of the witness would have been damaging to the State in that it would have placed Roy Calloway alone near the scene of the crime close to the time of the robbery and thus it meets the standard of “surprise.” A proper foundation was laid and the impeachment was limited to reading the prior inconsistent statement and allowing the witness to explain the discrepancy between it and his trial testimony. La.R.S. 15:487 and 488.

These bills are without merit.

BILL OF EXCEPTIONS NO. 7.

The basis of this bill was alleged hearsay testimony of a State’s witness. We find the testimony was not hearsay. Moreover, defendant Roy Calloway admits in brief that no prejudicial error resulted from the answer.

BILL OF EXCEPTIONS NO. 8.

This bill is levelled at the State asking one of its witnesses if she remembered on what date the robbery in question occurred. No basis for this objection is made and in brief counsel admits no prejudicial error.

BILLS OF EXCEPTIONS NOS. 9 and 10.

These bills were reserved when two of the State’s witnesses were shown pictures of the black Cadillac in which defendants were riding when arrested, and asked whether the car was the same one identified by them prior to trial as being parked in front of Hattie’s about the time of the robbery. The objection to the use of the photograph is that it was impermis-sibly suggestive in that no other pictures of autos were shown.

The photographs were admissible to confirm the prior out-of-court identification of the car by the witnesses. Both witnesses testified the auto in the photograph resembled the one which they saw near Hattie’s Dress Shop and which they had previously identified. No prejudice resulted from this procedure.

These bills have no merit.

BILL OF EXCEPTIONS NO. 11.

The State called a detective who testified about various pieces of evidence recovered in connection with the arrest of the defendants. Certain articles of clothing worn by defendants when they were arrested were marked and introduced in evidence. Investigators apparently also discovered a blue shirt, a hat, and a white glove along the road where defendants allegedly traveled before being apprehended. The owner of the shop testified Ray Callo-way was wearing a medium blue shirt when he first entered the shop with Roy Calloway, and that the robber who entered a short while later was wearing a lighter blue shirt. This indicated that, according to the State’s theory of the case, Ray Cal-loway changed shirts or put one shirt on over another.

Four officers testified that a dark blue slipover shirt had been found on the road with the glove and hat, but that none of these objects could be found for introduction at trial. The officers indicated the items had not been marked and carefully guarded because they were not thought to be relevant to the case at the time they were discovered.

Defendant Roy Calloway objected to the introduction of the testimony of the detective. The basis of the objection was that the items of clothing should have been introduced as the best evidence, rather than testimony of officers who saw them. See La.R.S. 15:436.

Four police officers testified to the existence of the articles of clothing and said the evidence had been lost; thus, the State could no longer produce the evidence. Absent any allegation of bad faith or suppression of evidence, the best evidence rule does not exclude the testimony.

The eleventh bill is without merit.

BILL OF EXCEPTIONS NO. 12.

At the close of the State’s case, it submitted to the jury all the exhibits which had been admitted into evidence. Six photographs which had been presented to the victim and her employee after the robbery were inadvertently included and were seen by at least one of the jurors. The photos used as a display included a picture of Roy Calloway and of others from whom the two witnesses were asked to choose in order to identify their assailants. When counsel realized the photos had been included with other evidence properly introduced, he moved for a mistrial. The trial court refused to grant a mistrial, but admonished the jury that the photographs were not evidence and they should be entirely disregarded. Whatever possible prejudice could have resulted from the viewing of these photographs by the members of the jury was cured by the trial court’s admonition. State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971). La.C.Cr.P. art. 775.

This bill has no merit.

BILL OF EXCEPTIONS NO. 13.

This bill was reserved when the trial judge refused a motion for a directed verdict. If there is some evidence supporting the conviction this Court will not disturb the trial court’s refusal to grant a directed verdict. State v. Douglas, 278 So.2d 485 (La.1973). Here, there is ample evidence of defendants’ guilt.

This bill has no merit.

BILL OF EXCEPTIONS NO. 14.

During trial, defendant Ray Callo-way elected to take the stand in his own defense. He sought to establish an alibi by testifying he and Roy Calloway had been together looking for a job on the day of the robbery. Counsel for Roy Calloway objected and requested the judge charge the jury the testimony could not be used as evidence against his client. In support of his objection, counsel cited La.R.S. 15:474, which provides:

“When several persons are on trial at the same time, under the same indictment, each may be a witness on his own behalf or on behalf of his codefendants.”

Apparently, counsel contended this provision prohibits an accused from testifying against his co-defendant. La.R.S. 15:474 merely permits a defendant to testify on his own behalf or on behalf of his code-fendant. There is no prohibition against a person charged with a crime taking the stand in his own defense and testifying against his co-defendant.

This bill has no merit.

BILL OF EXCEPTIONS NO. 15.

This bill is apparently levelled at the trial judge’s charge to the jury on the type of intent required by the robbery statute.

On considering this bill it should be noted the trial was held before the legislative act in 1974 eliminating the use of bills of exceptions. Thus, to properly reserve objections during trial, defendants must have complied with the former law requiring reservation and perfection of bills of exceptions. At that time the pertinent provisions of the La.Code of Criminal Procedure were:

“Art. 841.
An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling.

This requirement shall not apply to:

(1) A ground for arrest of judgment under Article 859, or the court’s ruling on a motion in arrest of judgment; or
(2) The court’s ruling on a motion for a new trial based on the ground of bills of exceptions reserved during the trial.”
“Art. 843.
When a bill of exceptions is reserved, the clerk or the court stenographer shall immediately take down the objection, the ruling, and the facts upon which the objection is based. The matters, so taken down, shall be preserved among the records of the trial, shall constitute the bill of exceptions, and shall be a basis for a formal bill of exceptions.”

Cases interpreting these articles and their source provisions hold the defendant must state the specific grounds upon which an objection is based at the time it is made as well as in the formal bill of exceptions. This is required to enable the trial court to rule intelligently or to correct an error at the time of the objection and to facilitate this Court’s review of the objection on appeal State v. Thornton, 284 So.2d 753 (La.1973); State v. Watson, 247 La. 102, 170 So.2d 107 (1964); State v. Keife, 165 La. 47, 115 So. 363 (1927).

More specifically, several cases have held that an objection by the defendant to a jury charge or to the trial court’s refusal to give a requested charge is ineffective unless the basis for the objection is stated by the defendant. See, e. g., State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Melerine, 236 La. 929, 109 So.2d 471 (1959); State v. Pearson, 224 La. 393, 69 So.2d 512 (1953).

The record in the instant case does not reveal any specification by the defense as to what was erroneous about the charge given by the court. During the course of the judge’s explanation to the jury of the elements of the crime of armed robbery, defense counsel interrupted and was given permission to approach the bench. The court reporter then noted in the record that a conference was held at the bench and that what transpired at that time was off the record. Then, the judge resumed his discussion of the elements of the crime charged and particularly of the element of intent required.

The formal bill of exceptions also fails to state specifically counsel’s objection to the charge or why the instruction was incorrect.

On the date of this trial the burden was on the accused to prepare his bills of exceptions in such a way that the appellate court could rule on them with reasonable certainty. State v. Todd, 173 La. 23, 136 So. 76 (1931); State v. Watson, 247 La. 102, 170 So.2d 107 (1964). Because the record fails to show upon what basis the objection was made, it cannot be presumed that the judge was informed of the grounds for the objection. This Court could only guess at what error counsel found in the trial court’s lengthy discourse on criminal intent.

This bill not being properly reserved and perfected, we cannot consider it.

BILL OF EXCEPTIONS NO. 16.

This bill was reserved to the trial court’s denial of defendant Roy Calloway’s motion for a new trial. The grounds are generally that no evidence was presented linking Roy Calloway to the crime.

This bill lacks merit.

BILL OF EXCEPTIONS NO. 17.

This bill relates to the trial court’s denial of the motion in arrest of judgment. The sole grounds for the motion were that Roy Calloway was not afforded counsel within 144 hours of his arrest, as required by La.C.Cr.P. art. 230.1. This is not grounds for an arrest of judgment.' La.C. Cr.P. art. 859.

This bill lacks merit.

BILL OF EXCEPTIONS NO. 18.

Before sentencing Roy Calloway the judge reviewed his record of prior convictions as justification for imposing a prison sentence of sixty years. Counsel objected to the judge’s mention of those convictions.

This bill has no merit. The convictions were not mentioned before the jury and these observations by the court did not constitute error.

BILL OF EXCEPTIONS NO. 19.

This bill was reserved when defense counsel objected to the trial court’s requiring him to move for an appeal before it set a return date. This bill has apparently been abandoned as counsel admits in brief that it has no merit. In any event, we find it is not well founded.

BILLS OF EXCEPTIONS RESERVED BY RAY CALLOWAY:

BILL OF EXCEPTIONS NO. 1.

This bill was reserved when the trial court refused, after holding a hearing, to suppress the identification of defendant Ray Calloway by the victims of the robbery. The objection was chiefly based upon the line-up procedure, at which time Ray was identified. The line-up was held in New Orleans because it was difficult to find persons of the same skin color and size as the defendant.

Ray testified he was refused the right to have counsel present at the line-up, which was held on January 31, 1973. The bill of information was filed against defendants on. February 2, 1973. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) held there is no right to have counsel present at a pre-indictment line-up because this procedure is not considered to be a critical stage of the proceedings.

We find the line-up procedure was proper. This bill is without merit.

BILL OF EXCEPTIONS NO. 2.

Bill of Exceptions No. 2 was not properly perfected or briefed and is therefore considered abandoned. State v. Richmond, 284 So.2d 317 (La.1973).

BILL OF EXCEPTIONS NO. 3.

During voir dire examination, defense counsel asked one of the prospective jurors whether he felt the requirement that a man be proven guilty beyond a reasonable doubt was “fair to society.” The trial court sustained the objection by the district attorney to the question since fairness is too vague a concept about which to question prospective jurors.

Defense counsel concedes in brief before this Court that this bill has no merit and was not prejudicial. We find no merit in this bill.

BILL OF EXCEPTIONS NO. 4.

See disposition of Bills of Exceptions Nos. 1 through 4 as to Roy Calloway.

BILLS OF EXCEPTIONS 5 and 6.

See Bills of Exceptions Nos. 5 and 6 as to Roy Calloway.

BILL OF EXCEPTIONS NO. 7.

See Bill of Exceptions No. 8 as to Roy Calloway.

BILLS OF EXCEPTIONS NOS. 8 and 9.

See Bills of Exceptions Nos. 9 and 10 as to Roy Calloway.

BILL OF EXCEPTIONS NO. 10.

See Bill of Exceptions No. 11 as to Roy Calloway.

BILL OF EXCEPTIONS NO. 11.

This bill was reserved when the trial court overruled the defense objection to the State’s eliciting from one of the arresting officers that he had received a report on the radio that the two suspects were believed to be in a black Cadillac.

The radio communication was admitted not to prove the truth of the assertion (i. e., that the suspects were in a black Cadillac), but to explain, the sequence of events leading to the arrest of the defendants from the viewpoint of the arresting officers.' The testimony was therefore not hearsay. See State v. Bluain, 315 So.2d 749 (La.1975).

This bill has no merit.

BILL OF EXCEPTIONS NO. 12.

See Bill of Exceptions No. 12 as to Roy Calloway.

BILL OF EXCEPTIONS NO. 13.

See Bill of Exceptions No. 13 as to Roy Calloway.

BILLS OF EXCEPTIONS NOS. 14 and 15.

Defendant Ray Calloway elected to take the witness stand in his own behalf. During cross-examination, the prosecutor questioned him as to his prior convictions. The judge ruled that the evidence as to prior convictions could only be considered by the jury for purposes of impeachment and not as substantive evidence. Defense counsel objected to the introduction of evidence of prior convictions even for the limited purpose of impeachment.

Under La.R.S. 15 :495 and the prevailing jurisprudence (see, e. g., State v. Odom, 273 So.2d 261 (La.1973)), evidence may be introduced to impeach a defendant who takes the witness stand in his own behalf.

After defendant had admitted committing one theft, the prosecutor asked him if he had been sent to the penitentiary for that crime. Defense counsel objected and requested a mistrial. The trial court refused the motion for a mistrial, but admonished the jury to disregard the fact that defendant had been sent to the penitentiary. Defense counsel then reserved Bill of Exceptions No. 15.

La.C.Cr.P. art. 770 mandates a mistrial when the district attorney refers even indirectly to another crime committed by the defendant as to which evidence is not admissible. This provision is not applicable here because the reference was to the sentence for a crime, evidence about which was admissible. The only possible error was that the sentence was irrelevant for the purpose of attacking the witness’ credibility. Any possible prejudice flowing from this question was cured by the judge’s admonition. La.C.Cr.P. art. 771.

This bill lacks merit.

BILL OF EXCEPTIONS NO. 16.

Counsel for Ray Calloway objected to the trial court’s allowance of recross-examination of his client by the State after his own redirect. No new matters were brought out on the recross-examination and defense counsel was permitted to examine defendant again after the recross.

The trial judge is vested with the discretion to govern examination of witnesses in court. La.R.S. 15 :275. There is no basis to conclude that under the circumstances of this case the judge abused this discretion.

This bill has no merit.

BILL OF EXCEPTIONS NO. 17.

See Bill of Exceptions No. 15 as to Roy Calloway.

BILL OF EXCEPTIONS NO. 18

This bill complains of the failure of the trial court to grant a motion for a new trial on the grounds that the evidence was insufficient to convict; that counsel had not been appointed when defendant was first arrested as required by La.C.Cr.P. art. 230.1; that women were excluded from the jury; and that defendant was absent during material parts of the proceedings.

There is “some evidence” upon which to convict defendant. Failure to have appointed counsel within 144 hours of arrest is not grounds for new trial. The trial occurred before the case of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and the decision there was not retroactive. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). The minute entries indicate Ray Calloway was present at all' critical stages of the trial.

This bill has no merit.

BILL OF EXCEPTIONS NO. 19.

This bill objects to the court’s refusal to grant a motion in arrest of judgment. The stated basis for the motion is that the tribunal trying the case did not conform to the requirements of La.Const. Art.-VII, § 41.

This bill has no merit.

BILL OF EXCEPTIONS NO. 20.

See Bill of Exceptions No. 18 as to Roy Calloway.

BILL OF EXCEPTIONS NO. 21.

See Bill of Exceptions No. 19 as to Roy Calloway.

The convictions and sentences of defendants are affirmed.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

The majority refuses to consider defendants’ bills of exceptions which are directed at the trial judge’s giving an incomplete or improper jury charge relative to the requisite intent involved in this armed robbery offense. (See Defendant Ray Calloway’s Bill of Exception No. 17 and Defendant Roy Calloway’s Bill of Exception No. 15.) They do so for the stated reason that the record is silent as to defense reasons why the given charge was erroneous, and that the formal bills of exceptions also fail to state specifically why the charge was incorrect. Thus they contend that the bill was not properly reserved and perfected.

Certainly it is the general rule that the defendant must state the specific grounds upon which an objection is based at the time the objection is made in order to properly reserve his exception for appeal. The basis for this rule is that if the trial judge knows at the time of the error that the defendant objects and also knows the grounds for that objection, then the judge has the opportunity to correct the error. If there is error in the judge’s charge to the jury, then the judge may change, explain, or correct his charge. State v. Chaney, 273 So.2d 259 (La.1973); State v. Fink, 255 La. 385, 231 So.2d 360 (1970). In this case, however, it is clear from the record that the trial judge had such an opportunity, but chose to continue his instructions on intent without changing their substance.

The circumstances surrounding the assignment of this error arose during the judge’s charge to the jury on the issue of intent. Presumably not wanting to interrupt the judge while he was speaking, and therefore chance prejudicing his client before the jury, the defense attorney rose and asked to make an “observation.” Both attorneys were called to the bench for an off-the-record conference with the judge. According to the trial transcript, after the conference the judge resumed his charge to the jury without thereafter a noted objection by the defense attorney.

A reading of the record in this case makes it clear that the defense attorney made his objection, gave reasons therefor, was overruled by the judge, and reserved his bill during the conference at the bench. The minutes of the trial made by the Clerk of Court reflect the following statement:

“Whereupon, after hearing the closing arguments by and between counsel, the Court’s charge was read to the Jury.
During the Court’s charge counsel for the accused, Ray Calloway, reserved Bill of Exceptions No. 17 and counsel for the accused Roy Calloway, reserved Bill of Exceptions No. 15 to certain rulings made by the Court, during said charge, over said counsel’s objections.”

Moreover, the trial judge himself signed formal bills of exceptions (No. 17 for Ray Calloway and No. 15 for Roy Calloway) which state that defendants’ attorney made a proper motion, was overruled, objected, and reserved a bill. Furthermore, the state in brief specifically states that defenuants made the obj ection and were overruled.

In sum, then, everyone present at the conference, the trial 'judge and the two attorneys, agree that defense attorney properly objected and reserved his bills. And the official minutes of the trial court so state. This Court’s insistence that the transcript itself reveal the magic words, in the face of this overwhelming proof that counsel complied with the required procedure of preserving trial error for appellate review strains- the standards of due process. I feel that the Court should have examined the merit of defendants’ bills.

The basis of counsel’s objection to the judge’s charge to the jury was that he did not charge the jury that it had to find that defendants had specific intent to commit the crime charged in order to find them guilty of armed robbery. Instead, the judge merely stated that the jury had to find that each had general intent (mens rea ) in order to convict. He said: “In order to find the intent referred to in this case, it is merely necessary for you to determine from the facts and circumstances shown whether the act of the defendant was intentional or unintentional.” However, our criminal code specifically says that commission of an armed robbery necessarily includes commission of a theft. In order to be found guilty of theft one must have been found to have had specific intent: “An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.” R.S. 14:67.

Failure of the judge to instruct the jury as requested that in order to convict it was necessary to find, among other things, specific intent to deprive the victim permanently of whatever was the subject of the taking constituted reversible error, in my humble view.

I therefore dissent.

ON MOTION FOR REHEARING

PER CURIAM:

From an examination of the entire record, we have concluded that during the “bench conference” defense counsel objected to the trial judge’s instructions to the jury as to intent. (Tr. 517-518). Our examination of the instructions to the time of the objection discloses that the trial judge correctly informed the jury of the essential specific intent: that the taking must have been with the intent to permanently deprive the victim of the thing taken.

The motion for rehearing is denied.

      . Ray Calloway’s Bill No. 17 (assigned as this number in his formal Bills of Exception and argued as this number before this Court) is the error in the judge’s charge on the question of intent. Roy Calloway’s Bill No. 15 (assigned as this number in his formal Bills of Exception and argued as this number before this Court) is the same error in the judge’s charge on the question of intent. No other assignment was made by either defendant in relation to the judge’s charge.

      . This Court has recently examined a similar situation and found that counsel did state the proper ground for his objection, although the objection was made during an off-the-record conference and was not properly noted in the trial transcript. See State v. Lucien and Marino, La.App., 323 So.2d 784, decided December 8, 1975.


author: SUMMERS, J., DIXON, J.,

text:
    SOUTHERN NATURAL GAS COMPANY v. GULF OIL CORPORATION et al.
    No. 57250.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Southern Natural Gas Co., applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia, 320 So.2d 917.

Writ denied. The judgment of the Court of Appeal is correct.

SUMMERS, J.,

dissents from the refusal of writs and subscribes to the dissenting opinion of Hood, J.., in the Court of Appeal. See 320 So.2d 917 at 920.

DIXON, J.,

concurs in the denial. Substantial justice was done in the Court of Appeal.

CALOGERO, J., takes no part.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Evelyn Smith JAMES et al.
    No. 57264.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Evelyn Smith James and Louis Joseph James applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge, 321 So.2d 888.

Writ refused. The issues are essentially factual. On the facts found by the court of appeal, there is no error of law.

SUMMERS, TATE and DIXON, JJ., dissent. The strong showing of arbitrary appellate re-evaluation of facts justifies further review.


text:
    STATE of Louisiana v. Bernice LEWIS.
    No. 57384.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Bernice Lewis applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied.

No showing that trial judge fixed the time for the filing of this application. Moreover, adequate remedy by appeal in the event of conviction.

SUMMERS, J., concurs in the denial. In my view there is no showing that this application is timely filed and this application should be denied for that reason alone.