text:
    Ingeborg Amanda CHEATHAM v. Tommy Wayne CHEATHAM.
    Civ. 1026.
    Court of Civil Appeals of Alabama.
    April 6, 1977.

      Loyd H. Little, Jr., of Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellant.
    David E. Worley, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This appeal is from the modification of a child custody decree. We reverse in part.

Ingeborg and Tommy Cheatham were married in 1968 with one daughter, Candace, produced from their union. They were divorced on October 25, 1973. Under the separation agreement incorporated into the decree Mrs. Cheatham obtained custody of Candace and Chris (Mrs. Cheatham’s illegitimate son who had never been adopted by Mr. Cheatham); Mr. Cheatham was required to give notice to and obtain consent from Mrs. Cheatham to take the children away from Huntsville; and each agreed to keep the other advised of his resident address.

On January 5, 1976, Mr. Cheatham alleged Mrs. Cheatham was preparing to return to her native West Germany and obtained a temporary restraining order against her removing the children from Alabama. On January 13 the court modified its prior decrees to enjoin Mrs. Cheatham from removing the children to West Germany or any other country outside the continental United States except for temporary visits to her parents. Unlike the restraining order this decree did not enjoin her from leaving the state. Around January 18 Mrs. Cheatham moved to Rangely, Colorado. Rangely is the home of the father of Chris and other members of his family.

On February 3, 1976, Mr. Cheatham petitioned for modification. The case proceeded to trial before the judge ore tenus. During the trial Mr. Cheatham withdrew his request for custody of Chris. The court entered judgment that Mrs. Cheatham retain custody of Candace with her monthly child support increased from $50 to $100; that Mr. Cheatham pay $500 in arrears in child support payments; that Mr. Cheat-ham had no right to visit or control nor was he obligated to support Chris; and that Mrs. Cheatham was enjoined from removing Candace more than 50 miles from Huntsville because she had not shown any necessity for her move to Colorado.

Mrs. Cheatham moved for new trial or alternatively to set the judgment aside. The court overruled her motion and required her to post $2,500 bond payable to Mr. Cheatham if she did not return to Alabama within five months unless the decree were reversed. Mrs. Cheatham appeals from that portion of the judgment dealing with the injunction and the overruling of her motion for new trial.

The primary question for review is whether there was a material change of circumstances sufficient to permit modification of the custody decree. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976).

Mr. Cheatham sought to prove Mrs. Cheatham was an unfit mother. The trial court did not find Mrs. Cheatham to be an unfit mother but rather continued to repose custody of both children in her as it had almost continually since the original divorce decree. We do not find any plain error committed by the court in this regard. There is no evidence in this regard which could constitute a material change of circumstances.

We perceive no material change of circumstances in the financial condition of the parties which would justify modification.

The only other facts which could possibly be considered a material change of circumstances concern Mrs. Cheatham’s removal of the children to Colorado.

A parent entrusted with the custody of a child has the right, if not restricted by the court, to remove the child from the jurisdiction of the court granting custody. Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1965); Alexander v. Davis, 261 Ala. 654, 75 So.2d 614 (1954); Sparks v. Sparks, 249 Ala. 352, 31 So.2d 313 (1947); Wheeler v. Wheeler, 249 Ala. 119, 29 So.2d 881 (1947); Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561 (1946); Clark v. Clark, 46 Ala.App. 432, 243 So.2d 517 (1971).

Mr. Cheatham contends that the removal of his daughter to Colorado effectively denied him any visitation rights, that this was a substantial change of circumstances which would justify modification, and that it was not in the best interest of the child to move to Colorado.

We find the cases he cites distinguishable. Unlike Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), Mrs. Cheatham never made any agreed settlement which would restrict her to living within 50 miles of Huntsville. But like Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970), there has been no showing of any adverse effect on Candace in moving to Colorado.

In a proceeding to modify a child custody decree, each case rests on its own facts and circumstances with the welfare and best interest of the child always of paramount importance. We find the removal to Colorado did not constitute such changed circumstances as would justify modification.

We also find the court improperly placed the burden of proof on Mrs. Cheat-ham. In the modification order the court enjoined her because she did not show a necessity to remove the children to Colorado. The burden of proof is on the party seeking to show changed circumstances. Cox v. Cox, 48 Ala.App. 574, 266 So.2d 784 (1972); Rowe v. Rowe, supra.

We find the restriction placed on Mrs. Cheatham’s place of residence to be unreasonable. A less restrictive alternative was available. Mrs. Cheatham stated at trial and in' brief that she would not object to Mr. Cheatham having custody of Candace for two or three months each year. Our reversal of the trial court is not related to any constitutional right of Mrs. Cheat-ham tc travel unrestrictedly or to choose a home for herself and her child. A decision on that issue is not necessary in this case.

We reverse the judgment of the trial court insofar as it enjoins against removing from the Huntsville area and remand to the trial court for opportunity to revise visitation rights for Mr. Cheatham if desired.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Gary Wayne SMALL v. STATE.
    4 Div. 489.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    Randy C. Brackin, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of the offense of possession of marijuana after having been previously convicted of possession of marijuana in the State of Alabama. Appellant was represented by retained counsel and at arraignment he pleaded not guilty. The Court sentenced appellant to nine years and six months in the penitentiary. After sentence was imposed, appellant gave notice of appeal and his sentence was suspended pending appeal. His bond was fixed at $10,000.00 and he is at large awaiting the outcome of this appeal.

On the night of March 25, 1976, Norman Leslie Burch and Elijah Lee McCrae were inmates of the Houston County Jail and both were trusties. One Steve Gibson was a prisoner in the same jail at the same time. Burch testified that he and McCrae were allowed to leave the jail that night to carry their clothes to a laundromat to have them washed. That before leaving the jail Steve Gibson wrote down a telephone number on a piece of paper and asked him to call that number and a man by the name of “Joe” would answer and that “Joe” would deliver a package of marijuana to him to give to Gibson. He stated that he and McCrae left the jail between 6 and 7 o’clock p.m. and walked to the laundromat which was located near a place called Murphy’s Market. There was a telephone booth outside Murphy’s Market and Burch called the number which Gibson had given him. When the telephone answered, Burch asked for “Joe” and the voice said, “This is Joe,” and Burch told him that he was calling about a package for Steve Gibson and told him where he would be and how long he would be there. He further testified that Joe did not describe to him over the telephone who would be sent to meet him. After the telephone conversation Burch bought a six-pack of beer at the market and went to the laundromat and started washing his clothes. He stated that McCrae used the telephone to call his wife and he came to the laundromat to wash his clothes. Burch was drinking a can of beer and offered one to McCrae who took it and the beer was consumed by them before they returned to the jail.

Burch further testified that 20 to 30 minutes later appellant drove up in a red Pinto car and he and McCrae walked out to meet him and they started a conversation. In about five minutes appellant handed Burch an old Winston cigarette package with a five-dollar bill wrapped around it and it had hand-rolled cigarettes inside. He stated that appellant told them to try smoking the cigarettes as they were pretty good stuff. Burch said he put the package inside one of his socks. He further stated that appellant told them how many times he had been busted and that “Joe” had also been busted. Burch stated that McCrae never had possession of the package but witnessed the transaction. It was getting late and they got their clothes and left for the jail. He further testified that when they got back to the jail, they were not searched but were locked up for the night.

Burch further testified that four people usually occupied the cell he was put in but there was only one man in the cell and he was asleep. There was a bed between Burch’s bed and the bed where the man was asleep. He stated that he put the package between the mattress and a blanket, and that he had not disturbed any of the hand-rolled cigarettes and no one knew about them except McCrae and himself. He said he watched television for a while and then went to bed for the night.

As a trusty it was one of his duties to serve the meals to the other jail inmates, and the next morning he carried Gibson’s breakfast tray to him and he also carried the cigarette package with the five-dollar bill still wrapped around it. He removed the. bill and put it in his pocket and gave the cigarettes to Gibson. Burch further testified that he saw this same cigarette package about an hour later when Deputy Sheriff Bob Lee had him in his office for interrogation. He first denied knowing anything about how the cigarette package got in the jail, but then told the officer everything that transpired the night before. He further stated that the cigarette package was in the same condition except that he had taken the five-dollar bill from around it that morning. That it was in the same condition when he saw it in Deputy Bob Lee’s possession except some cigarettes seemed to be missing, but some were still in the pack. He stated that he had been charged with possession of marijuana for his personal use growing out of this transaction. That no promises were made to him to get him to testify, but the officer told him he would try to help him if he testified.

On cross-examination this witness explained the duties of a trusty and that he and McCrae were trusties. He stated that he had been paroled out of the Houston County Jail but that the marijuana case against him was set for trial the day after appellant’s trial. He further testified that he was not with McCrae at the time he talked to Steve Gibson and that the phone number that Gibson gave him was on the piece of paper but that Deputy Sheriff Lee had the paper. He stated that he used his own money to make the telephone call as requested by Gibson and that McCrae was standing just a few feet away from him at the time he made the phone call. He said that the defendant was not known by the name of Joe, though Gibson’s father was named Joe. He further testified that after appellant delivered to him the Winston cigarette package, that he and McCrae hitched a ride back to jail with a girl whom he did not personally know but she had her little brother in the car with her and she let them off at the jail.

He further testified on cross-examination that he had previously been convicted of burglary in the second degree and also of driving while intoxicated.

The next witness called in behalf of the State was Elijah Lee McCrae. He testified that he went with Norman Burch to the laundromat, that Norman had asked him to go with him, that Norman made a phone call from Murphy’s Grocery Store, that he did not know who was called, that he made a phone call to his wife, and he went into the store, but McCrae could not testify as to where Burch got the bag that he was carrying. He testified that the appellant, Gary Small, came up about 30 to 45 minutes after they started washing the clothes; that he gave Norman a cigarette pack with a five-dollar bill on it, and that the appellant was driving a red Pinto. He testified that a Winston pack was handed from the defendant to Norman Burch, with a five-dollar bill wrapped around it with a piece of rubber.

He testified that they walked back to the jail after all that had happened. He testified that the next time he saw the cigarette package there were cigarettes missing from the package. He testified that he was convicted in November of 1975 of two counts of selling heroin and one count of selling marijuana, that he had a total of 15 years imprisonment, that he was not promised anything whatsoever for testifying in this case.

On cross-examination the witness testified that he had not been promised anything, but that he was still a trusty, and that he had not been charged with possession of the marijuana and had not been charged with anything. He testified that he still makes trips like the trusties did, except that he does not go to the laundromat. He testified that he drank one beer before the appellant came up. He testified that they walked back to the jail, that they did not hitchhike a ride. He stated that he was standing a foot away from Norman Burch and the appellant when the alleged transaction took place. He further testified that Norman put the cigarette package in his pocket. He testified that he did not remember the appellant making any strange or awkward movements with the package.

The next witness called on behalf of the State was Frankie Paschall, who testified that he was employed with the Houston County Jail, and that he participated in a search of Steve Gibson. He testified that as a result of the search he found a Winston cigarette pack, with eight hand-rolled cigarettes in the package.

The next witness called on behalf of the State was Robert W. Lee, Jr., who testified that he was employed with the Houston County Sheriff’s Department as Chief Jailer, that he searched Steve Gibson on the 26th day of March 1976. He testified that he found an old Winston pack in the search of Steve Gibson, that he showed it to Lieutenant Pitts, the Investigator.

Deputy Lee further testified that he talked with Lee McCrae shortly after talking with Norman Burch, that Norman Burch and Lee McCrae had no opportunity to be together. He further testified that after he showed the package to Lieutenant Pitts, he locked it up in his briefcase and later had someone going to the crime lab so he put it in an envelope, sealed it, put his initials on it before he taped it, and put the date on it. He said it was the kind of envelope that was the personal brown envelope used to put the prisoners’ belongings in. He testified that he handed it to Deputy Buzz who was going to the Enterprise Lab to take some stuff over there. He testified that he had it in his custody all of the time from the time it was found on Steve Gibson until it was turned over to Deputy Buzz.

Deputy Lee further testified that in this same envelope he placed a small white envelope which was sealed and was in connection with an unrelated case.

He testified that he gave it to Robert Buzz to take to the Crime Lab, that he did not accompany him to Enterprise, and that he did not know if anybody accompanied Deputy Buzz to Enterprise.

Mrs. Melinda Long testified that she was employed by the State of Alabama at the State Toxicology Laboratory in Enterprise, Alabama, and that her duties were to analyze drugs for the presence of prohibited substances.

Mrs. Long testified that she received a package from Deputy Sheriff Robert Buzz on March 30, 1976, and that the package was sealed, that it was a manila envelope and the date was written on it, together with the initials of Deputy Sheriff Lee. She further testified that the seal on the brown manila envelope had not been broken when it was delivered to her by Deputy Sheriff Buzz, that she opened the manila envelope without breaking the seal, that in opening the envelope she just slit the other end opposite from the seal with the date and initials of Deputy Lee on it.

Mrs. Long further testified that when she opened the brown manila envelope she found eight hand-rolled cigarettes that were in a Winston brand cigarette package. That she conducted a laboratory analysis on the cigarettes and they contained marijuana. She further testified that there was a sealed white envelope in this brown manila package at the time she received it from Deputy Sheriff Buzz, but it had to do with an unrelated case.

Defense counsel admitted Mrs. Long’s qualifications and did not cross-examine her at all.

Mrs. Julia L. Trant testified that she was Clerk of the Circuit Court of Houston County and also Clerk of the Houston County Court of Houston County. She produced a certified copy of a judgment entry showing the conviction of appellant for possession of marijuana. This certified copy of the judgment entry was introduced in evidence without objection.

At the conclusion of the State’s case, the defendant moved to exclude the State’s evidence on the ground that a prima facie case had not been shown. This motion was overruled by the Court. Appellant further moved to exclude the testimony of Mrs. Long on the ground that there was a break in the chain of evidence and this motion was likewise overruled by the Court.

David Gibson was called to testify for the defendant, and he testified that his name was David Gibson, that he was known as Joe Gibson, that he was a Civil Service employee. He testified that the defendant was his half-brother, that he was the father of Steve Gibson, that he remembered a telephone call from Norman Burch on or about March 25, 1976, and he related the conversation that he and Norman Burch had concerning Steve Gibson. He testified that Steve wanted him to send five dollars to the jail by way of him, and the witness said that he would do that, that the defendant came in and he told the defendant about running the money to Norman. He said that the defendant said that he was going to get something to eat anyway, and that he would deliver the money. He stated that he gave Gary five dollars but that he did not accompany him to the laundromat, that he did not give him an old Winston cigarette pack, that he did not furnish his son with any marijuana, and the only thing that he knew about it was what Steve had told him. He testified that he talked with his son about the incident the next Sunday, and he told the witness that the boy had offered to give him some marijuana for five dollars. David Gibson testified that Steve Gibson told him that Norman Burch was to sell him some marijuana for five dollars, that was what he needed the five dollars for.

On cross-examination Joe Gibson testified that he did not know if Steve used marijuana or not, that he had never been convicted of possession of marijuana, that he visited his son every visiting day in jail. Joe Gibson further testified that the defendant did go down to the laundromat that night to meet Norman Burch, that he had given the defendant five dollars to give to Norman Burch for Steve Gibson. Joe Gibson testified that he did not know for a fact that his half-brother uses marijuana, but he did know that he had been convicted of possession of marijuana.’

The appellant was called to testify in his own behalf. He testified that he lived in Lakewood Subdivision in Houston County, that he was a painter, and he related how he went to the laundromat with the five dollars to take to the trusty to give to Steve Gibson. He testified that he talked with them for a few minutes and he handed the five dollars to him, and in the meantime Lee McCrae had come up too. The defendant further testified that he did not give any Winston cigarette package to Norman Burch, that he did not give any hand-rolled cigarettes to Norman Burch, that the only thing that he gave to him was five dollars.

On cross-examination the appellant testified that he did not personally know Norman Burch or Lee McCrae. He stated he never had dealt in marijuana; the defendant then rested. There was no rebuttal by the State.

The only issue presented on this appeal is whether the chain of possession of the eight hand-rolled cigarettes was broken from the time the officers took them from Steve Gibson until they were delivered to Melinda Long at the laboratory in Enterprise. We hold there was no missing link in the chain of possession.

The testimony is undisputed that Deputy Sheriff Robert Lee took possession of the Winston cigarette package containing the eight cigarettes on the morning of March 26, 1975, and placed it in his locked briefcase until March 30,1975, when he placed it in a manila envelope and sealed it with tape. He put the date on the envelope and wrote “Houston County Sheriff’s Department” and “Enterprise Crime Lab” and his initials on the envelope and put tape over the top of the package. He also put inside the manila envelope a small white envelope that was already properly sealed which contained a substance relating to another case. He handed the manila envelope to Deputy Sheriff Robert Buzz who carried it to the crime laboratory in Enterprise and personally delivered it to Melinda Long. Mrs. Long testified that she received the manila envelope from Deputy Buzz and she opened the end opposite the tape and sealed end. She did not break the seal. On the inside of the manila envelope she found the eight hand-rolled cigarettes and the small white sealed envelope which contained evidence pertaining to an unrelated case. She then conducted a laboratory test on the hand-rolled cigarettes and found they contained marijuana.

We hold there was no missing link in the chain of possession under the evidence in this case. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

The testimony in this case was extremely conflicting, but this Court is without warrant to disturb the verdict of the jury where the evidence is conflicting. Hines v. State, 260 Ala. 668, 72 So.2d 296; Felton v. State, 47 Ala.App. 182, 252 So.2d 108; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Gary Wayne SMALL.
    SC 2375.
    Supreme Court of Alabama.
    April 22, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


author: BOOKOUT, Judge.

text:
    James ANDREWS v. STATE.
    4 Div. 491.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.

      Grady 0. Lanier, III, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with a deadly instrument on a peace officer engaged in active discharge of his lawful duties; sentence: twenty years.

In the early morning hours of February 7, 1976, two Opp police officers, Hyrum W. Turner and Lawrence Nelson, were called to a local drive-in restaurant to investigate a reported disturbance. They heard a shot and went to a window of the restaurant. There they saw the appellant with a gun. Turner told the appellant to drop the gun and come outside. The appellant pointed the gun in their direction, and they stepped away from the window.

Turner and Nelson then took refuge around behind the corner of the building. Turner said appellant ran out of the building and fired a shot “toward the highway.” The testimony on direct and cross-examination is cloudy as to the direction in which the shotgun was fired. Witness Turner was pointing out locations on a blackboard, not shown in the record, which makes the actual locations of the officers difficult for us to determine. In any event, Turner’s testimony places him and Nelson close together when the appellant discharged the gun:

“Q. Where was Officer Lawrence Nelson?
“A. He was standing around behind the building beside me.”

From the State’s proof, we believe the jury could have found beyond a reasonable doubt that the appellant fired a shotgun in the general direction of both officers. Thus, the evidence established a pri-ma facie case against the appellant of assaulting the peace officers with a deadly weapon during the performance of their lawful duty.

The appellant contends his conviction should be reversed due to the trial court’s alleged error in denying the appellant’s motion to quash the indictment.

Omitting the formal parts, the indictment reads as follows:

“THE GRAND JURY OF SAID COUNTY CHARGES, THAT BEFORE THE FINDING OF THIS INDICTMENT, JAMES ANDREWS, WHOSE NAME IS UNKNOWN TO THE GRAND JURY OTHER THAN AS STATED, DID INTENTIONALLY AND UNLAWFULLY COMMIT AN ASSAULT WITH A DEADLY INSTRUMENT, TO-WIT: A SHOTGUN, UPON A PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFICER OF THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE, WHILE SAID OFFICER WAS ENGAGED IN THE ACTIVE DISCHARGE OF HIS LAWFUL DUTY OR DUTIES.”

The above indictment does not state the name of the peace officer who was intentionally or unlawfully assaulted. From the evidence presented at trial, the jury could have concluded that the appellant’s one shot was an assault against either or both Turner and Nelson. The trial court charged the jury that in order to find the appellant guilty, they must believe beyond a reasonable doubt that he assaulted Turner.

I

The State contends that a demurrer, not a motion to quash, is the normal procedure to raise defects going to the validity of the indictment. We agree. McKinney v. State, 50 Ala.App. 271, 278 So.2d 719, cert. denied 291 Ala. 789, 278 So.2d 724 (1973). However, due process dictates that a defect associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him cannot be waived by failure to timely demur. Hornsby v. State, 94 Ala. 55, 10 So. 522 (1891); Flippo v. State, 49 Ala.App. 138, 269 So.2d 155 (1972); Jeter v. State (1976), Ala.Cr.App., 339 So.2d 91; Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973); Pendleton v. State, 57 Ala.App. 452, 329 So.2d 140 (1976), remanded on other grounds 295 Ala. 325, 329 So.2d 142, 144.

An indictment to be sufficient must meet inter alia the following two criteria as set forth in Russel v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) and in Gayden v. State, 38 Ala.App. 39, 80 So.2d 495, affirmed 262 Ala. 468, 80 So.2d 501 (1954-55):

(a) The indictment must contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet; and

(b) In case other proceedings are taken against the defendant, the record must show with accuracy to what extent he may plead a former acquittal or conviction.

Criteria (b), as to future prosecutions, is satisfied as the entire record of the trial proceedings here could be relied upon by the appellant. Clay v. United States, 326 F.2d 196 (10th Cir. 1963). But, from reading the indictment, one could not determine if it charges an assault against some officer which had previously been adjudicated. (This would necessarily have to include an assault on any peace officer of the state or any political subdivision of the state committed any time within the statute of limitations.) The defendant has no right to discovery, such as a bill of particulars or post-indictment preliminary hearing. The indictment is all the notice he gets of what he is called upon to defend against. See: Chief Justice Heflin’s dissent in Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973).

Criteria (a) was not satisfied in the instant indictment, therefore, the appellant’s conviction must be reversed and remanded. Lashley v. State, 28 Ala.App. 86, 180 So. 720, cert. denied 236 Ala. 28, 180 So. 724 (1938). The appellant could not know from the indictment the name of the peace officer he was charged with assaulting. There is nothing contained in the record which would indicate that the appellant knew any of the officers at whom he allegedly fired until the State put on its case at trial. Indeed from the record, it could be argued that the appellant did not know who he was charged with assaulting until the trial court gave its oral charge to the jury at the end of the trial. It cannot be seriously contended that the indictment sufficiently apprised the appellant of what he must be prepared to defend against.

The State seems to argue that the phrase, “peace officer or other law enforcement officer of this state or any political subdivision of this state,” was sufficient to apprise the appellant of whom he allegedly assaulted. This argument is analogous to saying that one would be sufficiently apprised by an indictment for common law assault if the person assaulted was merely designated by their occupation, such as an elementary school teacher. We believe the analogy points out the weakness of the State’s position.

When injury to the person of another is the offense charged, a material and essential averment of the indictment is the identity of the person injured. Lashley, supra; People v. Reilly, 257 Ill. 538, 101 N.E. 54 (1913). Historically this requirement was especially stringent. 41 Am.Jur.2d, Indictments, § 129; 29 A.L.R. 1120; Illinois v. Gormach, 302 Ill. 332, 134 N.E. 756 (1922).

Naming the victim of an assault, if known, has been essential to a valid indictment at common law since at least 1597:

“(iv) The name of the victim of the crime, if known, must be inserted. If not known he must be described as ‘quídam ignotus.’Long’s Case (1597) Cro.Eliza., p. 490; Holdsworth, A History of English Law, Vol. III, p. 617.

II

The State contends that Title 15, § 232, Code of Alabama 1940 (Recompiled 1958) allows a description of the offense in the indictment in the terms of the statute enacting it where the state creates a new offense. Clark v. State, 19 Ala. 552 (1851). We agree. However, it is equally true that the above does not apply when the statute does not prescribe with definiteness the constituents of the offense. Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946). In Haynes v. State, 53 Ala.App. 441, 301 So.2d 204, rev’d. 293 Ala. 221, 301 So.2d 208 (1974), the case of United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819 (1877) was quoted as follows:

“ ‘Where the offense is purely statutory, having no relating to the common law, it is, “as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.” 1 Bishop, Crim. Proc., sect. 611, and authorities therein cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offense. An indictment not so framed is defective, although it may follow the language of the statute.’ ”

The State cites Adkins v. State, supra, for the following:

. . [I]t is not necessary to name the vendee of the drugs in the indictment, when the identity of the purchaser is not an element of a crime, the gravamen of which is the unlawful sale.
“. . . [I]t is not necessary for an indictment for selling narcotics, including the ‘controlled substances’ listed in the statute, to contain the name of the vendee.”

Adkins is admittedly analogous to the present case, however, it must be distinguished. Adkins dealt with the unlawful sale of narcotics and controlled substances where the victim of the crime is society in general. In the present case, not only society in general, but the individual police officer in particular is a victim of the assault. As we read Adkins, it applies only to cases involving an unlawful sale of controlled substances. Expanding Adkins to apply to crimes against the person such as assaults would be a judicial modification of the common law.

Title 1, § 3, Code of Alabama 1940 declares:

“The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature.”

In Weaver v. Hollis, 247 Ala. 57, 22 So.2d 525 (1945) the Alabama Supreme Court stated in clear and certain language:

. . The common law is the base upon which all of the laws of this State have been constructed, and when our courts are called upon to construe a statute, — when they are called upon to ascertain and declare the legal effect and meaning of a legislative enactment,— they must read the statute in the light of the common law. Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A., N.S., 607. ‘The presumption is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication, and that it does not intend to overthrow fundamental principles, infringe rights, or depart from a general system of law without expressing its intention with irresistible clearness.’ Duncan v. Rudulph, 245 Ala. 175, 16 So.2d 313, 314.”

While our legislature has modified the common law in many areas of criminal procedure, it has never expressly or impliedly done away with the requirement that indictments must name the victim of an assault, if known. To the contrary, support for this common law requirement is found in all code forms relating to crimes against the person.

Title 15, § 259, Code of Alabama 1940, which contains our forms of indictments, includes Forms 12, 13, 14, 15, 16, 17 and 18, all dealing with assaults. In every instance where the form is prescribed, it requires the name of the victim. The same is true of other forms pertaining to crimes against a person such as: carnal knowledge, kidnapping, manslaughter, mayhem, murder, rape, robbery, seduction, and most analogous to this case, Form 93, resisting an officer in executing process. There, the officer must be named.

We have not been cited an assault case, nor do we know of an assault case where the person assaulted was not named in the indictment. To the contrary, the State up until the present case, appears to have always named the person assaulted, even when following the wording of the statute for the offense of assaulting a peace officer. McKinney, supra; Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973); Bryant v. State, 49 Ala.App. 359, 272 So.2d 286 (1972). We know of no reason why the victim of the assault was not named in the instant indictment.

We are very mindful of the dangers confronting law enforcement officers, and we are aware of the necessity to protect them from serious assaults. But, because the prosecution failed to name the victim of the assault in this one instance, we are called on to modify over three hundred years of common law precedent. Such a decision by this Court would, of course, save the State the expense of reindicting the appellant and conducting a new trial. It would, however, also establish a new precedent based upon expediency rather than law.

This is not a case of an indictment containing a mere typographical error, a misspelled word, an “undotted i” or an “uncrossed t.” We find here an indictment which failed to inform the accused of a matter essential to the construction of a meaningful defense, which is a deprivation of his right to demand the nature and cause of the accusation against him as guaranteed in Article 1, § 6, Constitution of Alabama 1901.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

Appellee, on rehearing, calls our attention to our prior holding in Hill and Pitchford v. State, Ala.App., 339 So.2d 601, cert. denied Ala., 339 So.2d 610 (1976). There, the two appellants had overcome, shot and wounded a railroad policeman who had arrested them. The indictment did not name the victim. The similarity with the instant case ends there.

In Hill and Pitchford, no demurrer, motion to quash, or other challenge to the indictment was ever filed. No question concerning naming the victim was ever presented in the trial court. Our ruling there was simply stated:

“This point was not raised by demurrer to the indictment and is presented for the first time on appeal.”

Any statements in that opinion are dicta which go beyond the fact that no ruling of the trial court was before this Court for review.

Where a shot is fired in the general direction of two officers, standing side by side, and the accused is never apprised of which one he is charged with assaulting until the trial judge charges the jury, a legal problem is presented which is quite dissimilar to that in Hill and Pitchford, supra. While the appellant in the instant case did not file the pleading (demurrer) normally and technically used to point out deficiencies of substance in an indictment, he did file a motion to quash the indictment at his earliest opportunity. Again, this is dissimilar to Hill and Pitchford where the appellants did nothing to bring the omission to the attention of the trial court. As previously discussed in I above, the motion to quash would reach a defect in an indictment that would amount to denial of due process or violation of Article I, § 6 of the Constitution of Alabama 1901. We are of the opinion that under the peculiar facts of this case, an indictment charging that appellant assaulted, “a peace officer or other law enforcement officer of this state or any political subdivision of this state,” describes so large a class as to apprise the appellant of nothing.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


author: BLOODWORTH, Justice. ALMON, Judge

text:
    In re James ANDREWS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2372.
    Supreme Court of Alabama.
    April 8, 1977.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, petitioner.
    No brief for respondent.
   BLOODWORTH, Justice.

In denying this writ we state the following with respect to the Court of Criminal Appeals’ decision.

We agree that a demurrer is the proper procedure normally to raise defects in an indictment.

We further agree that the defect in the indictment here, i. e., failure to name the officer assaulted, does not make the indictment void but voidable merely and that it was properly raised here by motion to quash filed before trial but after arraignment. Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965); Ex parte State (In re: Williams v. State) [1977], Ala., 342 So.2d 1328.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, JONES and EMBRY, JJ., concur.

MADDOX, ALMON, SHORES and BEATTY, JJ., dissent.

ALMON, Judge

(dissenting):

Andrews was indicted for assaulting a police officer. The police officer was not named in the indictment. After a plea in bar of not guilty, Andrews, pleading specially (by oral motion to quash), attempted to raise the defect in question.

Defects which render an indictment voidable merely and not void have generally been considered to be waived unless properly raised by demurrer. The cases of Thomas v. State and Ex parte State (In re: Williams v. State), supra, cited in the majority opinion, deal with jury venire composition; i. e., systematic exclusion of jurors because of race and age. The underlying considerations for the timeliness of objections to jury composition are different from objections to defects apparent on the face of the indictment. Defects apparent on the face of the indictment are easily noticeable before pleading to the merits is required; whereas, improper jury composition may not be discovered until after arraignment and sometimes involves constitutional questions. Thomas v. State, supra. Therefore, I do not consider the above cases controlling in this instance.

If this indictment is void for due process reasons, as I read the opinion of the Court of Criminal Appeals to hold, then a conflict exists with Adkins v. State, 291 Ala. 695, 287 So.2d 451.

Adkins holds that an indictment charging the sale of marihuana need not allege the vendee even when challenged by demurrer. The Court of Criminal Appeals holds that the assaulted police officer must be named or the indictment is void for due process reasons.

Suppose John Doe is indicted for selling drugs and the indictment does not allege the person to whom the drugs were sold. And suppose further that John Doe had recently made several drug sales at different times to different persons or that he has made no drug sales at all. Is John Doe given sufficient due process notice of what specific conduct forms the basis of the charge against him?

Suppose on the other hand, Richard Roe is indicted for assaulting a police officer and the indictment does not allege the name of the police officer assaulted. And suppose further that Richard Roe has recently assaulted several different police officers at different times or that he has assaulted no one. Which specific conduct or incident should Richard Roe prepare to defend against?

What is the difference between the two examples within the limited context of due process (notice of the charge so that one may prepare a defense)?

I would grant the writ and resolve what I consider to be a conflict in the law.

MADDOX, SHORES and BEATTY, JJ., concur.


text:
    Jerry Lynn MULLINS v. STATE.
    3 Div. 562.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      Prank L. Thiemonge, III, for Piel, Lynn & Thiemonge, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years in the penitentiary. At his arraignment, attended by counsel, he pleaded not guilty. After sentence was imposed, he gave notice of appeal. He is in this Court with a free transcript and is represented on this appeal by trial counsel.

At the conclusion of the State’s case appellant made a motion to exclude the State’s evidence on the ground that the State failed to prove a prima facie case of robbery against appellant. This motion was overruled and denied.

The evidence is in hopeless conflict. The evidence presented by the State made out a clear-cut case of robbery, and only a jury could resolve the conflicting evidence and arrive at a verdict as to the guilt vel non of appellant. Appellant presented a strong alibi and his alibi was supported by several witnesses.

Mr. Daniel R. Hawk testified that he owned and operated the Hawk Brokerage Company and lived at 3394 Cloverdale Road in Montgomery, Alabama, and had a cabin on the Alabama River on Highway 143 across the Tyler Goodwyn Bridge where he often spent some time relaxing. He stated that he worked late on the night of September 24, 1975, leaving his office some time after 11:00 p. m. He went to the Diplomat Inn between 11:30 and 12:00 o’clock to watch the floor show and during the show he drank two bourbons and water. He left the Diplomat at about 2:00 a. m. and drove across the street to the Krystal where he ordered six cheeseburgers and two half-pints of chocolate milk. While he was eating, two men and two women came in and sat near him. He stated that he had never seen these men and women before but he later learned that one of the men was appellant and the other man was named James Payton Judge.

The robbery victim further testified that the man named Judge told him that he looked tired and sleepy and offered to drive him home. He told Judge he was not going home but was going to spend the night at his cabin and that he did not need anyone to drive him. Judge kept insisting that they drive him to the place he was going and Mr. Hawk finally consented, and the three men left the Krystal with Judge driving. Mr. Hawk was in the middle on the front seat between the two men. The two women followed them in another car. That about a quarter of a mile before they reached the Tyler Goodwyn Bridge, both men started beating Mr. Hawk and going through his pockets and they removed his wallet containing $35.00, his identification and other valuable papers. They stopped the car at a place across the river formerly known as Joe’s Place or Wander Inn which had been closed for some time. The two men pulled Mr. Hawk out of his automobile and told him they were going to throw him in the Alabama River, saying, “This is your last day.” The bandits took two automobile tires, a Polaroid camera, brief case, a diamond ring, a wedding band, a tool box and a watch. The total value of the property taken in the robbery exceeded $1,000.00. They then pulled Mr. Hawk to an old barbecue pit which was constructed out of brick and slammed his head against the brick pit and threw him down an embankment toward the river. They told him not to move for five minutes.

Mr. Hawk further testified that he heard the other car leave in the direction of Mill-brook, and he ran to a place known as Harbor Light Inn and used the telephone to call the Montgomery Police Department. Two police officers responded to the call and began investigating the robbery. They got a description of the men from Mr. Hawk. He described appellant as being about six feet tall and he weighed approximately 185 pounds. That he was dressed in a yellow shirt and green pants. He stated that the other bandit was about six feet tall and weighed about 240 pounds. That he was wearing a light blue shirt with little checks in it and had on blue pants.

On November 29, 1975, Mr. Hawk was shown a number of photographs of suspects and identified appellant in one of the photographs. Twenty minutes later he viewed a lineup of five men who were dressed alike and immediately identified the number three man in the lineup as appellant. Mr. Hawk also made an in-court identification of appellant as one of the men who beat and robbed him in the early morning hours of September 25, 1975.

Mrs. Gidget Pierce testified that she worked at the Krystal on Norman Bridge Road and that she knew Mr. Hawk as he often ate there. She stated that Mr. Hawk came in the Krystal some time after 2:00 a. m. on September 25, 1975, and placed his usual order of six cheeseburgers and two chocolate milks. She identified appellant as being in the Krystal at the same time with another man and two women. Later she was shown a photograph of five men in a lineup and she immediately picked out the number three man as appellant. She, too, made an in-court identification of appellant as being one of the men who came into the Krystal with another man and two women. Her description of the wearing apparel of the two men was almost identical to the description given by Mr. Hawk.

Detective H. C. Norton testified that he showed Mrs. Pierce a five-man photograph and she identified appellant as the number three man in the photograph.

Officer Ron Holt testified that he conducted a lineup of five men dressed alike and being of similar height and weight. That Mr. Hawk viewed the lineup and immediately identified the number three man as appellant.

Appellant offered three witnesses in support of his claimed alibi. They all testified that they knew appellant and were with him on the night of September 24,1975, and the early morning hours of September 25, at the Autauga Lounge on Highway 4 in or near Prattville. That appellant was shooting pool that night and morning at a time when it would have been impossible for him to have been involved in a robbery of Mr. Hawk. Onp of the alibi witnesses, Billy Brown, stated that he remembered the occasion because he lost $147.00 to appellant shooting pool. The other two alibi witnesses, Barbara Black and Geneva Tatum, stated that appellant was in the Autauga Lounge playing pool in the wee hours of the morning of September 25,1975. .Both testified they did not know about appellant’s trial for robbery in April, 1976, until they were notified to be in Court a few days before the trial. Both further stated they had not discussed their testimony with anyone until the day of the trial.

Appellant testified in his own behalf and his testimony was the same as the other alibi witnesses. He denied that he had anything to do with the robbery.

On cross-examination he admitted that in 1971 he was convicted of burglary of an automobile and received a thirteen-month sentence in the penitentiary. He further admitted that he was again convicted of burglary of an automobile and received a three-year sentence in the penitentiary.

An accused is not entitled to counsel at a preindictment lineup. Houston v. State, 49 Ala.App. 403, 272 So.2d 610; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

Conflict in alibi testimony and identification testimony in a robbery conviction was peculiarly within the province of the jury to resolve. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Lindsey v. State, Ala.Cr.App., 331 So.2d 797.

In Willcutt v. State, 284 Ala. 547, 226 So.2d 328, the Supreme Court held:

“The scintilla rule does not apply in criminal cases. There must be substantial evidence tending to prove all the elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it. Jarrell v. State, 251 Ala. 50, 36 So.2d 336. The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Byrd v. State, 213 Ala. 333, 104 So. 830.
“We cannot say in the instant case that there was not enough evidence to allow the jury to draw the inference that the defendant was the person who committed this robbery. The defendant presented a strong case in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witness. Yet the State’s witness made a positive identification of defendant as the person who robbed and burned him. The State presented substantial evidence and the jury had before it an adequate basis for drawing inferences and conclusions against the defendant. It is for the jury, not the trial court or this court, to find the facts and to determine guilt or innocence. The State presented sufficient evidence upon which the jury could base its verdict.”

Where the evidence raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence, refusal to give the affirmative charge and overruling a motion for a new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

It was in the trial court’s discretion to have the testimony of certain witnesses read to the jury after their retirement and upon their request. Broglan v. State, 23 Ala.App. 219, 123 So. 109; Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233.

After the jury has reported its inability to agree on a verdict it is incumbent on the trial judge to exercise extreme care in reopening the case for the introduction of further testimony or in permitting any evidence to be restated or reread to the jurors, so that, undue emphasis will not be placed on portions of the testimony. The Court permitted the Court Reporter to read the testimony of Gidget Pierce. It was the testimony of this witness that the jury was interested in having read back to them. Since there was some conflict in the testimony of Mrs. Pierce and the statement she gave to Officer Norton the Court considered it to be fair and proper for Norton’s testimony to also be read to the jury by the Court Reporter. It is, therefore, clear that in following this procedure the trial court exercised the sound discretion vested in him and avoided any undue emphasis being placed on any portion of the testimony.

There was no error in allowing the State witnesses to identify appellant from photographs exhibited to them by the investigating officers. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court said:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199, and with decisions of other courts on the question of identification by photograph.”

We have carefully searched the record and find no reversible error. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Jerry Lynn MULLINS.
    SC 2411.
    Supreme Court of Alabama.
    April 22, 1977.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: DeCARLO, Judge.

text:
    Stephen H. PATTERSON v. STATE.
    3 Div. 494.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Driving while intoxicated, fine two-hundred dollars.

The grand jury of Montgomery County, Alabama indicted appellant for driving under the influence of intoxicating liquors or narcotics. After a jury trial on February 3, 1976, a verdict of guilty was returned and a fine of two-hundred dollars was assessed against Patterson. A notice of appeal was given and a motion for a new trial was filed. On August 12, 1976, after five continuances, it was denied without a hearing.

The State’s evidence showed that W. D. Blackwell, a State Trooper for ten years, saw Patterson on September 16, 1975. Appellant was in the vicinity of a night club known as “The Spread” in Montgomery, Alabama. Blackwell testified that he observed appellant drive his vehicle slowly off the parking lot of the club. As the appellant started on what is known as Twain Curve in Montgomery, he proceeded on the wrong side of the road and “started moving and weaving” until he got onto the right side of the road. At that point, appellant’s vehicle hit the gravel part of the shoulder and continued for about one-quarter of a mile until it ran through a stop-sign. Blackwell stated that he then turned on his blue light and appellant’s vehicle stopped. After he approached the car and asked the appellant to get out, the appellant seemed to weave a little bit or slightly stumble on leaving the car. The officer recalled that appellant was unsteady on his feet and had the odor of intoxicants on his breath. At the time no one was in the vehicle with appellant, and after informing the appellant he was charged with driving while intoxicated Blackwell took him to the Montgomery County Jail.

Blackwell stated that he read Patterson his rights at the jail concerning refusing or taking the approved chemical test of breath for determining blood-alcohol content. After being advised of these rights, the appellant consented to take the examination and Blackwell administered a photoelectric in-toximeter test. [Hereinafter P.E.I.]. The officer stated that between the time of arrest and giving of the test, Patterson did not consume any alcohol or use any mouth wash. He could not recall whether appellant smoked a cigarette but added that as a rule he did not “let” anyone smoke in his patrol car. Blackwell stated that the test was administered about 8:20 P. M., some twenty minutes after the appellant’s arrest.

The officer testified that his training on the P.E.I device consisted of five days of actual classroom exercise and involved the administering of the test some twenty-five times. He added that he had administered the test thirty or forty additional times. Blackwell explained that the procedure used to conduct the test appears on a blank orange card which is kept with the P.E.I. machine. He said that the procedures were set up by the Department of Health and that he followed those procedures in testing the appellant. Further, Blackwell stated that he completed a P.E.I. operating record. He identified a duplicate of four sheets making up the record and it was admitted into evidence without objection. The P.E.I. test reading as to the alcohol content of appellant’s blood was 0.16 percent.

Robert B. Finley was employed by the Alabama Department of Public Health and was a service technical director for the chemical test intoxication program. Finley stated that he had been employed in this capacity for approximately six years and listed his qualifications, training and background. He stated that the State Department of Public Health approved the use of the P.E.I. device. Further, he identified a certified copy of the Department of Public Health’s records showing their adoption of this method for testing highway intoxication and their approved written procedures governing its use. Finley also identified a certified copy of a memorandum signed by the Director of Public Safety, designating the use of a P.E.I. for all chemical breath tests in determining the blood-alcohol level of individuals suspected of driving while under the influence of alcohol. This document and the certified copy of the Department of Public Health’s approved methods for chemical tests were admitted into evidence without objection. During his testimony, Finley outlined the procedure adopted for administering the P.E.I. tests. He explained that when a person has a blood-alcohol level of 0.10 percent, he is influenced by intoxicants to the degree where he can not safely operate a motor vehicle.

R. C. Massey was employed by the Department of Public Safety in the “implied Consent Unit.” He testified that on September 9 and October 2, 1975, he checked the P.E.I. machine at the Montgomery County Jail and found it to be accurate.

At the end of Massey’s testimony, the State rested and the appellant moved to exclude the State’s evidence. The motion was overruled and the appellant took the stand in his own behalf.

Patterson recalled that on September 16, 1975, he went to “The Spread” about 6:30 P. M. He left about an hour later and had consumed only three “beers.” Appellant denied driving on the wrong side of the road or running off of it. Further, he denied being intoxicated and running through the stop-sign. Patterson said the officer was “telling us a story.”

I

Prior to qualifying the jury, the defense handed to the trial judge a document styled “State of Alabama v. Stephen A. Patterson” and headed “Jury Qualifications.” That document contained seven questions to be asked the entire venire. The fifth question was: “Have each member of the jury stand and state if they would convict for driving while intoxicated if the defendant had only one drink.” The court refused to qualify the jury with this question and the appellant contends this was error. Counsel argues that either party has the right to examine jurors as to their qualifications, interest or bias. Although counsel admits the right to examine jurors is exercised in the sound discretion of the court, he insists that the inquiry should be liberal and extend to all matters touching upon the prospective juror’s qualifications, interest or bias.

While it is true that the qualifying examination of jurors should be liberal and extend to all matters touching qualifications, interest or bias, the right must be exercised within the sound discretion of the court. Dyer v. State, 241 Ala. 679, 4 So.2d 311; Aaron v. State, 273 Ala. 337, 139 So.2d 309.

Under the present circumstances an abuse of discretion was not shown.

II

Appellant asserts that the court erred in admitting the results of the breath test made with the P.E.I. device. He insisted that the Alabama State Board of Health had not approved a procedure to be followed in administering the P.E.I. test.

The Alabama Chemical Test for Intoxication Act (T. 36, §§ 154-158, Code of Alabama 1940, Recompiled 1958), provides that tests showing blood-alcohol content by chemical analysis of a person’s breath shall be admissible as evidence. Further, our statute creates a legal presumption that if the breath analysis test shows the blood-alcohol content of the person driving a vehicle to be 0.10 percent by weight of alcohol or more, he shall be presumed to be under the influence of alcohol. The statute also states that in order for the chemical analysis of the breath to be considered valid, it shall have been performed according to the methods approved by the State Board of Health.

In Patton v. City of Decatur, Ala., 337 So.2d 321, the Supreme Court held that it was an absolute necessity that profer be made of a duly certified and authenticated copy of the methods or regulations duly adopted or approved by the State Board of Health governing the administering of the P.E.I. test.

In the present case, a duly certified and authenticated copy of the rules and regulations adopted and approved by the State Board of Health governing the administering of the P.E.I. test was admitted without objection. Additionally, it was shown that the arresting officer who performed the test, had completed the requisite course of study laid down by the Board of Health for administering the test. The officer stated that he had followed the methods outlined on the operating card, and during the trial, identified the card indicating the procedures followed in the appellant’s test. Further, he testified that the blood-alcohol content reading was 0.16 percent. Under these circumstances, the test was performed according to the methods approved by the State Board of Health and its results were properly admitted.

Ill

It is contended that the court erred when it sustained the State’s objection to the following question addressed to Officer Blackwell:

“Q And the reason that y’all were doing this is because a State Trooper got into a lot of trouble at The Spread, isn’t that correct?”

Counsel maintains this improperly limited his cross-examination by not allowing him to show the bias of State Troopers towards the club and its patrons.

Further, the record shows the following occurred during the appellant’s re-direct examination:

“Q Were you there the night that the State Trooper got in trouble at The Spread?
“MR. BELL: I’m going to object to that.
“THE COURT: Overrule your objection.
“Q Were you there?
“A No, sir.”

The range of cross-examination rests largely in the discretion of the trial court and unless it clearly appears that the defendant was prejudiced by its curtailment, the court’s rulings will not be disturbed. Benefield v. State, 44 Ala.App. 339, 208 So.2d 449; Wright v. State, 49 Ala.App. 539, 274 So.2d 95.

We find no abuse of discretion under the facts shown.

No reversible error appears in the record.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Stephen H. PATTERSON.
    SC 2489.
    Supreme Court of Alabama.
    April 22, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Benjamin Franklin BAKER v. STATE.
    6 Div. 339.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.

      J. Richard Hynds, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of robbery. In accordance with the verdict of the jury, the trial court entered judgment and sentenced the appellant to ten years in the penitentiary. Appellant’s court appointed trial counsel was appointed to represent him on appeal.

The appellant asserts two major assignments of error on this appeal: insufficiency of the evidence and the impropriety of the state’s cross examination of the appellant with regard to his prior criminal record.

On March 19, 1976, Isaac Yelder was returning to his home in Bessemer, Alabama, after visiting some sick members of his congregation who were in the hospital. He was flagged down by the appellant who wanted a ride. Mr. Yelder accommodated the appellant and drove him where he wanted to go.

When Mr. Yelder stopped his automobile, the appellant picked up Mr. Yelder’s .45 caliber automatic pistol, which had been lying in the middle of the front seat. The appellant refused to return the pistol and a struggle developed. Yelder was pulled from the automobile and his pant’s pocket was torn by the appellant. Yelder managed to get the pistol away from the appellant, cried out for help and the appellant fled. Yelder testified that when he got in his car that morning he had his billfold but when the appellant ran off, his billfold was gone. Yelder did not actually see the appellant with his billfold but “knew” he took it because there “wasn’t nobody else but me and him”.

The police were summoned to the scene and Mr. Yelder described his assailant to them.

Three or four weeks following the robbery Mr. Yelder observed the appellant at a bus stop. He hailed a policeman and separately they both followed the bus the appellant rode to his place of employment. The appellant entered a coffee shop to get some breakfast and Mr. Yelder summoned several policemen inside the coffee shop. These law enforcement officers brought the appellant outside and arrested him.

The appellant testified in his own behalf that he did not get a ride with Mr. Yelder and did not rob him. Several witnesses were called by the appellant to contradict and impeach Mr. Yelder’s description of the appellant.

I

After the state had presented its case and rested, the appellant filed a motion to exclude the evidence based on the failure of the state to present a prima facie case. A motion for a new trial also raises this same issue. On appeal, counsel for the appellant argues the insufficiency of the evidence. Therefore, it is incumbent upon this court to determine whether the evidence is sufficient to sustain a conviction for robbery.

The three essential elements of the crime of robbery are (1) felonious intent, (2) force, or putting in fear as the means of effecting the intent, and (3) by that means the taking and carrying away of the personal property of another from his person or in his presence, with all three elements occurring in point of time. Moore v. State, 57 Ala.App. 668, 331 So.2d 422 (1976); Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716 (1975).

The appellant maintains that there was no evidence of (1) a taking and carrying away of the personal property of the victim and (2) that the victim was placed in fear and the property was taken against his will.

In substance and considering the victim’s testimony as a whole, Mr. Yelder testified that he had his billfold when the appellant got in the car and when the appellant left the billfold was gone. Mr. Yelder did not see the appellant with his billfold at any time but testified that the appellant, “hit my pocket and got part of my pocket and pocketbook and tore my pants down”.

The actual taking and asportation of some of the victim’s personal property is an essential element of robbery. In other words, there must first be a larceny — a felonious taking. The loss of property to felonious taking may be proved by facts and circumstances as well as by direct and positive evidence. Gross v. State, 56 Ala.App. 387, 321 So.2d 727 (1975); Jones v. State, 51 Ala.App. 570, 287 So.2d 886 (1974). Indeed, the offense of robbery may be proved by circumstantial evidence as well as direct evidence. Moore v. State, 48 Ala.App. 719, 267 So.2d 509 (1972); Gautney v. State, 36 Ala.App. 90, 53 So.2d 595, cert. denied, 256 Ala. 73, 53 So.2d 599 (1951).

Here the circumstances of a taking are strong and certainly sufficient to submit the question to the jury. The mere fact that the victim did not realize his wallet was stolen until after the appellant left is not a controlling issue in this case. In Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), the Alabama Supreme Court held that the fact that the robbery victim was dead at the time of taking her property would not militate against the crime of robbery if the intervening time between the murder and the time of taking the property formed a continuous chain of events.

We hold that the commission of robbery was sufficiently established by testimony that the victim had his wallet in his back pocket immediately prior to the time of the scuffle, that the appellant hit and tore this pocket, and that following the struggle, the victim’s wallet was missing.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690 (1972); Gross, supra.

Under the argument of the appellant, the state offered no evidence that the victim was put in fear. In robbery, the force or intimidation employed is the gist of the offense. The manner of taking is in the alternative; if force or violence is used, fear is not an essential ingredient. Conversely, if fear is used, there need be no violence. Johnson v. State, 57 Ala.App. 238, 327 So.2d 733 (1976). Here force was used to effect the taking of the billfold. The billfold was taken during a scuffle and a pant’s pocket was torn. That was sufficient force to supply one of the necessary ingredients for the crime of robbery.

II

On direct examination the appellant testified that he had served some time in Tennessee on a conviction of petty larceny in 1970. The appellant was then asked by his attorney:

“Q. Okay. Since that time you haven’t been in any trouble at all, have you?
“A. Assaulting a police officer.
“Q. You did?
“A. Yeah.
“Q. When was that?
“A. That was also the case in ’70.
“Q. Oh, that was around the same time?
“A. Yes.”

On cross examination, the Deputy District Attorney questioned the appellant.

“Q. You testified you hadn’t been in any trouble except for that petty larceny conviction in Memphis, Tennessee, isn’t that correct?
“A. Right.
“Q. Isn’t it a matter of fact in 1970 that you were arrested in Memphis, Tennessee for AWOL from the Navy?
“A. Right.
“Q. Also in 1970 in Memphis, Tennessee you were arrested for suspicion of burglary, isn’t that correct?
“MR. HYNDS: I object to this line of questioning.
“THE COURT: You asked him if he had ever been in any trouble.
“Q. Also in 1970 in Memphis, Tennessee, you were arrested on a surrender on bond on that suspicion of burglary that you had been arrested on prior to that, isn’t that correct?
“MR. HYNDS: We have already said that — given testimony that he was in trouble in 1970.
“THE COURT: You asked him had he been in any other trouble other than the conviction for petty larceny and he said, no. I’m going to allow him to go into that.
“Q. And also in 1970 you were arrested on November 7th, 1970, you were also arrested and charged at that time with attempt to commit a felony, isn’t that correct?
“A. Yes, that’s right.
“Q. And on October the 13th of 1970 in Memphis, Tennessee, you were arrested on a capias writ of arrest and at that time you used the name of Bert Smith, isn’t that correct?
“A. No, that’s not.
“Q. And January 25th of 1971 in Memphis, Tennessee you were arrested for drunk and resisting arrest, isn’t that true?
“A. I was arrested for drunk and resisting arrest.
“Q. In 1974, on June 29th, 1974, you were arrested again in Memphis, Tennessee and charged with larceny, were you not?
“A. I was picked up then on larceny and robbery, right.
“MR. RUSSELL: That’s all the questions I have.”

The appellant contends that it was error to permit the prosecutor to impeach the appellant by showing prior arrests and convictions of municipal misdemeanors.

Under the authority of McClendon v. State, 54 Ala.App. 327, 307 So.2d 723 (1975) and Davis v. State, Ala.Cr.App., 331 So.2d 807 (1976), we hold that the prosecutor’s questions on cross examination relating to the appellant’s arrests for crimes were permissible. Ezzell v. State, 13 Ala.App. 156, 68 So. 578 (1915).

Generally it is true that the accused, or any witness, may not be impeached by showing a mere arrest or charge of a crime, Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973); Dean v. Johnston, 281 Ala. 602, 206 So.2d 610 (1968); Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967); Rogers v. State, 54 Ala.App. 13, 304 So.2d 255 (1974); Warren v. State, 52 Ala.App. 35, 288 So.2d 817 (1973); or by showing a violation of a municipal ordinance, Huggins v. State, 271 Ala. 428, 123 So.2d 911 (1960); Mayton v. State, 52 Ala.App. 626, 296 So.2d 249 (1974); Rainey v. State, 48 Ala.App. 530, 266 So.2d 335, cert. denied, 289 Ala. 750, 266 So.2d 340 (1972); or an arrest or conviction for AWOL, Cox v. State, 50 Ala.App. 339, 279 So.2d 143 (1970). However here these arrests were properly within the scope of cross examination, this being a matter covered by defense counsel on direct examination. By attempting to show on direct examination all the “trouble” the appellant had been in, the defense attorney opened the door and paved the way for the state to do likewise on cross examination.

Ill

Additionally and finally, the appellant submits that the failure to grant his motion to exclude the identification testimony of the victim was error. This motion and subsequent allegation of error are based on the grounds that the victim’s identification testimony was contradictory, incomplete, inconsistent and vague.

We are not faced with the situation of a pretrial identification followed by an in-court identification. The victim made a positive and unequivocal in-court identification of the appellant. Therefore, whether the appellant was guilty of robbery was a jury question. Vaughn v. State, 57 Ala.App. 134, 326 So.2d 662 (1976). Testimony of the victim of the alleged robbery which was offered to establish the identity of the defendant as the alleged robber presented a jury question on that issue. Lambert v. State, 55 Ala.App. 669, 318 So.2d 364 (1975). Any discrepancies in the victim’s testimony went to its credibility rather than its admissibility.

Having reviewed the entire record as required by law, it is the opinion of this court that this case is due to be and is hereby

AFFIRMED.

All Judges concur.


author: PER CURIAM. BOYD, Justice, BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Charles E. THOMSON, Respondent.
    No. 46438.
    Supreme Court of Florida.
    Feb. 27, 1976.
    Rehearing Denied March 31, 1977.
    Wilson J. Foster, Jr., Asst. Staff Counsel, Tallahassee, for complainant.
    Joe M. Mitchell, Jr., Melbourne, for respondent.
    Charles E. Thomson, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar, Report of the Referee and petition for review filed by respondent.

The Florida Bar filed a complaint against respondent in August, 1974, charging that he was employed by Joy S. Barnes in April, 1972, to represent her son on several criminal charges in Brevard and Indian River Counties, that as security for the fees of respondent, Mrs. Barnes gave numerous items of personal property to Gene Bacon who acted as an agent for respondent, that respondent Thomson failed to notify Mrs. Barnes of the receipt of her property and did not maintain records as to the value and whereabouts of the property in their possession, that respondent, without notice to Mrs. Barnes, wrongfully disposed of the personal property and retained the proceeds, that upon request for the return of the property, respondent neither returned the property nor provided her with an accounting, and that by reason of the foregoing, respondent has violated Rules 11.-02(3)(a) and 11.02(4), Article XI, Integration Rule and Disciplinary Rules 1-102(A)(4) and 9-102(B), Code of Professional Responsibility-

Hearings were held and after considering all of the pleadings, exhibits, and evidence, the Referee found that the respondent Thomson on or about April, 1972, was a member of The Florida Bar engaged in the practice of law in Melbourne, Florida; that one Joy S. Barnes sought the services of an attorney for her son, Mark S. Barnes, and was referred to respondent Thomson; that respondent Thomson was employed by Mrs. Barnes as the attorney for Mrs. Barnes’ son; that another attorney and the respondent Thomson had a very loose arrangement with respect to the practice of their profession; that the other attorney permitted respondent Thomson to use his office, stationery with his name thereon, and his secretary; that the other attorney further permitted respondent Thomson to use an agent of his, one Gene Bacon; that at all times relevant to this matter, the respondent Thomson was an associate of the other attorney; that the other attorney prepared a proposed schedule of fees for respondent Thomson’s representation of Mrs. Barnes’ son; that the other attorney and respondent Thomson acquired possession of certain personal property of Mrs. Barnes, which personal property was entrusted to them as security for the fees owed by Mrs. Barnes to the respondent Thomson for the representation of Mrs. Barnes’ son; that the respondent Thomson knew that said personal property of Mrs. Barnes was to be held as security for his fee; that the respondent Thomson sold portions of the personal property of Mrs. Barnes which had come into their possession as security for the fee owed to respondent Thomson; that the respondent Thomson directly received the proceeds from the sale of said personal property; that the sale of said personal property occurred without the knowledge or consent of Mrs. Barnes and no accounting was ever made by respondent Thomson to Mrs. Barnes with respect to the sale of said personal property.

The Referee recommends that the respondent Thomson be found guilty of a violation of Article XI, Rule 11.02(3)(a), Rule 11.-02(4), of the Integration Rule, and of Disciplinary Rule 1-102(A)(4) and 9-102(B) of the Code of Professional Responsibility. As regards disciplinary measures to be applied, the Referee explained:

“I have experienced considerable difficulty in recommending a disciplinary measure appropriate in this ease in view of the court’s decision in The Florida Bar v. Thomson (the same respondent) [Fla.], 271 So.2d 758, in which the court stated that the penalty assessed should not be made for the purpose of punishment but to protect the public interest and to give fair treatment to the accused attorney. I believe that the public interest could only be protected by disbarment of the respondent, however I do not find that the evidence is sufficiently clear and convincing to warrant a finding that the respondent acted with a corrupt motive that would warrant disbarment. The respondent’s callous disregard for the property of another specifically entrusted to him for a specific purpose is sufficiently grave and detrimental to the public interest that a two year suspension from the practice of law is recommended, and thereafter until such time as he demonstrates that his conduct would warrant the removal of the suspension.”

Upon examination of the total record in this cause, we approve the findings and recommendations of the Referee. The recommendation to suspend the respondent for two years is the proper punishment, particularly when the respondent’s prior disciplinary offense is considered. Accordingly, the respondent is suspended from the practice of law in Florida for two years from the effective date of this order and until such time as he demonstrates proof of rehabilitation.

Execution is hereby directed to issue against respondent for costs in the amount of $594.18.

It is so ordered.

OVERTON, ENGLAND, HATCHETT and DREW (Retired), JJ., concur.

ADKINS, C. J., and ROBERTS, J., agree to conviction but penalty is excessive.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I fully agree that the conduct of the petitioner in this matter was improper, but to evaluate the nature of his actions fairly it is necessary to consider the loosely constituted contract between petitioner and his client’s mother relating to the personal property pledged by her as security for the fee owed to petitioner for services rendered to her son. The record shows that the mother, who owned the personal property, left it with petitioner with the understanding that it would be security for payment of his fee. Unfortunately she was subsequently unable to make the fee payment. Apparently, under these conditions petitioner considered it proper to sell a sufficient portion of the personal property to compensate himself for the fee owed to him. To have accomplished this properly, he should have notified the owner and executed an agreement of sale with her, or in the absence of same, procured an appropriate court order. It is my opinion that, even at this late date, the court should require petitioner to share the expense of attempting to have an objective determination of the value of all property disposed of, file an accounting of same with the Referee and compensate the owner to whatever extent she may have been damaged by his informal disposition of her property after deducting a just fee for himself, or reach some other satisfactory economic settlement with the owner of the property. This Court should withhold its final judgment until such action is concluded.

PER CURIAM.

The petition for rehearing is denied.

Respondent may, however, apply immediately for reinstatement to The Florida Bar. We direct the Bar to process expeditiously respondent’s application and file its recommendations with this Court prior to April 29, 1977.

It is so ordered.

OVERTON, C. J., and ENGLAND, HATCHETT and DREW (RETIRED), JJ., concur.

BOYD, J., dissents with an opinion, with which ADKINS, J., concurs.

ROBERTS (RETIRED), J., dissents.

BOYD, Justice,

dissenting.

I respectfully dissent to the majority opinion. On rehearing the respondent appeared before this Court and stated that he could, and would, secure and return to the owner all of the personal property pledged to him except some guns and golf clubs. Although I recognize the loose and informal manner in which the personal property was received and sold by respondent, it is obvious to me that, in selling same to compensate himself for legal services, he was acting in good faith with no ulterior motives.

I would order his immediate reinstatement as an active member of The Florida Bar upon proof of his returning all of the personal property, except the guns and golf clubs, and upon payment of all costs.

ADKINS, J., concurs.


author: BOYD, Justice. ENGLAND, Justice PER CURIAM. SUNDBERG, Justice

text:
    STATE ex rel. Richard McVAY et al., Appellants, v. Jack SANDSTROM et al., Appellees.
    No. 47772.
    Supreme Court of Florida.
    April 21, 1976.
    On Rehearing Nov. 12, 1976.
    Louis M. Jepeway, Jr. of Jepeway, Gassen & Jepeway, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., Raymond L. Markey, Asst. Atty. Gen. and Richard E. Gerstein, State Atty., and Charles I. Poole, Asst. State Atty., for appellees.
   BOYD, Justice.

We have granted oral argument in a direct appeal from denial of a petition for habeas corpus by the Circuit Court, Eleventh Judicial Circuit, in and for Dade County, in which the only issue is the constitutionality of Section 800.02, Florida Statutes. That issue has been decided in favor of constitutionality by this Court twice before in Bell v. State, 289 So.2d 388 (Fla.1973) and Thomas v. State, 326 So.2d 413 (Fla.1975).

The issues being the same and having been decided twice by this Court, oral argument is unnecessary. The decision of the trial court is affirmed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice

(concurring).

A majority of this Court upheld the constitutionality of Section 800.02, Florida Statutes (1975), in Thomas v. State, 326 So.2d 413 (Fla.1975). I dissented in that case on the ground which appellants now assert, namely that the statute is unconstitutional.

No circumstances are alleged here which call for a reconsideration of the Court’s majority view in Thomas. Compare 326 So.2d at 418, fn. 9. Under the jurisprudential doctrine called “stare decisis”, stability of the law is more important to society than a repetition of minority views by individual jurists. The issue of law having been settled by a majority of this Court, I concur in the judgment of the Court applying that precedent.

ON REHEARING GRANTED

PER CURIAM.

A rehearing having been granted in this cause and the case having been further considered upon the record, briefs and argument, it is ordered that the opinion of the Court filed April 21, 1976, be and is hereby reaffirmed and adhered to on rehearing.

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

SUNDBERG, J., dissents with an opinion, with which HATCHETT, J., concurs.

SUNDBERG, Justice

(dissenting).

On the premise that neither case cited in the majority opinion deals with over-breadth, I respectfully dissent.

HATCHETT, J., concurs.


author: ENGLAND, Justice.

text:
    John M. KEITH, Petitioner, v. CITY OF ALTAMONTE SPRINGS et al., Respondents.
    No. 49836.
    Supreme Court of Florida.
    March 17, 1977.
    Rehearing Denied May 4, 1977.

      David M. Hammond, of Meyers, Mooney & Adler, Orlando, for petitioner.
    T.. M. Burke, of Pitts, Eubanks, Ross & Rumberger, Orlando, for respondents.
   ENGLAND, Justice.

By petition for the writ of certiorari we have before us for review an order of the Industrial Relations Commission dismissing a claim for rehabilitation benefits made by John M. Keith. The claim was made pursuant to Section 440.15(2)(b), Florida States (1975), which in relevant part provides that

“Temporary total disability shall include such period as the employee may be receiving training or education under a rehabilitation program pursuant to subsections 440.49(1), (2) or (3), not to exceed 40 weeks.”

The Commission dismissed the claim, reversing an order of the judge of industrial claims which had granted rehabilitation benefits, on the ground that the judge lacked jurisdiction to award benefits without the participation of the Department of Commerce’s division of labor. We affirm the Commission’s order of dismissal.

Section 440.15(2)(a) provides that 60% of average weekly wages shall be paid during a period of temporary total disability. Section 440.15(2)(b) indicates that the period during which temporary total disability benefits may be paid shall include, so far as is relevant here, the period during which an employee is receiving training or education under a prescribed rehabilitation program. A prerequisite to the receipt of temporary total disability benefits during the rehabilitation program under this scheme is the requirement that the training or education program be one which meets the requirements of Section 440.49(1).

The Legislature has there provided that in certain cases (when a “disability probably will be permanent”) the division of labor shall assist employees in obtaining appropriate training, education and employment. It also provides that the division is authorized to expend monies from a trust fund which is established in Section 440.50, Florida Statutes (1975), for the purpose of providing assistance to employees in need of rehabilitation. The fund referred to is the Workmen’s Compensation Administration Trust Fund, which was established in part to provide for the payment of all expenses relating to the vocational rehabilitation of injured employees provided in Section 440.-49.

In 1975 the Florida Legislature added four sentences to subsection 440.49(1). These sentences give rise to the controversy before us. They read:

“Such expenditures shall only be made in accordance with rules promulgated by the division establishing standards for eligibility and types, duration, and cost of training and educational programs to be made available. All hearings arising under this subsection shall be conducted by judges of industrial claims pursuant to § 440.25. However, no judge of industrial claims shall assume jurisdiction to approve or disapprove rehabilitation under this provision until the division has been given reasonable time to evaluate the injured worker and advise all parties as to the rehabilitation program it may propose if said rehabilitation program is to be funded out of the fund established by § 440.50. The division shall be a party to all hearings involving any claims made against the fund established by § 440.50.”

As we read the language added to Section 440.49(1) by the 1975 Legislature, it accomplishes several things. First, it creates rule-making authority and requires that the division’s rules must be followed in granting training and education benefits. Second, it requires that all hearings under subsection 440.49(1) be conducted pursuant to Section 440.25, Florida Statutes (1975), which in general sets the procedure with respect to all claims for compensation. Third, it prohibits judges of industrial claims from assuming jurisdiction over rehabilitation programs until the division has had an opportunity to evaluate the injured worker and advise all parties as to any rehabilitation program which it would propose be funded out of the Workmen’s Compensation Administration Trust Fund. Fourth, it directs that the division shall be a party to all hearings which involve claims against the fund. It is this last provision which is troublesome.

Petitioner Keith argues that since the division is not an indispensable party when no “claim” is made against the fund, the term must mean a claim for the payment of vocational rehabilitation benefits as provided in Section 440.15(2)(b). He argues that the term could not include the necessary payment of expenses connected with the investigative aspects of the division’s responsibilities, which had been paid from the fund even before the 1975 amendment, since an expenditure for that purpose is required in every case where rehabilitation is claimed as a temporary total disability benefit and the disability will probably be permanent. The City of Altamonte Springs argues to the contrary, saying that there is always a “claim” made against the fund by reason of the administration of the rehabilitation program, so that the Commission was correct in holding that the division is a necessary party in every proceeding for that reason.

We have no legislative history to guide us as to the intention of the Legislature with respect to the amendment made in 1975. We are forced to harmonize the language as best we can, taking into account the inter-workings of the Department of Commerce.

' There is an obvious necessity for insisting that the division be made a party when rehabilitation benefits are to be paid from the trust fund as a part of a temporary total disability award. There is no apparent reason, however, for the division to be made a party to hearings which do not involve that type of charge against the fund. The recommendation of the division as to a plan (if any) is a prerequisite to the assumption of jurisdiction by the judges of industrial claims, in any event. If there is controversy between the claimant and carrier regarding a recommended plan which does not require fund expenditures for rehabilitation, or as to the fact that no plan for rehabilitation has been recommended, investigative or other personnel from the division can be called to testify in the claims proceeding just as any other witness. There is absolutely no reason that the division need be made a party in those situations. The Legislature can determine otherwise, of course, but it does not seem to us that they have done so in the 1975 amendment.

Accordingly, we are led to conclude that the last sentence added by the 1975 Legislature means only that the division “shall be a party” in hearings which involve claims for the payment of temporary total disability monies from the Workmen’s Compensation Administration Trust Fund in aid of rehabilitation. As to this issue the Commission erred.

Nonetheless, the Commission’s order in this case states that the division was not given a reasonable time to evaluate Keith and advise as to a rehabilitation program. Since this investigative activity is a prerequisite to the jurisdiction of the judge of industrial claims, and since the Commission’s notation of this procedural defect is not challenged here, we must conclude with the Commission that the judge assumed jurisdiction over Keith’s claim prematurely. Since he lacked jurisdiction, the Commission was correct in concluding that the claim must be dismissed rather than remanded.

Petition for Writ of Certiorari is granted and the Commission’s order is affirmed.

OVERTON, C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

      . The provisions of Sections 440.49(2) and (3) have no relevance to this proceeding.

      . This trust fund is to be distinguished from the Special Disability Trust Fund which is created under § 440.49(4)(h)(l), Fla.Stat. (1975).

      . Ch. 75-209, § 24, Laws of Florida:

      . This portion of the added language is inartfully drawn but we construe the sentence which restricts the jurisdiction of judges of industrial claims to read as if the last portion said:
      “. . . and advise all parties as to the rehabilitation program [if any] it may propose [if said rehabilitation program is to] be funded out of the fund established by § 440.-50.”
      Under this construction the division need not propose any rehabilitation program, but it must advise all parties as to any program it would propose which requires the expenditure of fund resources.

      .The Division of Labor, the Industrial Relations Commission and the judges of industrial claims are all sub-agencies of the Department of Commerce.


author: OVERTON, Chief Justice.

text:
    Marta Ellen LINDBLOOM, Petitioner, v. CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION et al., Respondents.
    No. 49594.
    Supreme Court of Florida.
    March 18, 1977.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, for petitioner.
    Linda M. Rigot, of Kates, Ress, Gomez & Rosenberg, North Miami, for respondents.
   OVERTON, Chief Justice.

The petitioner presents the following point for review:

“The Judge of Industrial Claims erred in applying the going and coming rule when the uncontroverted evidence shows the transportation, to and from work, was a consideration incidental to the contract of employment, and that the employer provided free transportation to the claimant.”

However, the Judge of Industrial Claims made the following findings of fact:

“I find that the employee, MARTA LINDBLOM, worked as a teller for the employer, CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION, of Miami Beach, Florida. She was involved in an automobile collision on or about December 18,1974, at or near the intersection of Southwest 117th Avenue and Southwest 112th Street. She was at the time in the process of returning to her home, engaging in a car pool, and on the specific occasion, having driven Diana Liebgold to her destination. I find that the employee owned and operated her own motor vehicle at the time of the accident; that she received no compensation directly or indirectly from her employer for participating in a car pool; that the employer did not form or control the car pool; that the arrangements for this specific trip were made between MARTA LINDBLOM and Diana Liebgold individually, without participation by the employer; that the fees charged by MARTA LINDBLOM for using her car and gasoline in the car pool were set by the claimant, collected by the claimant and not guaranteed or paid by the employer; and that route of travel by the car pool was selected by the claimant and not the employer.”

The Commission’s affirmance is in accordance with the essential requirements of law. Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965).

Certiorari denied.

ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.