text:
    William MULLINS, Jr. v. STATE.
    6 Div. 483.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      Arthur Parker of Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted' of murder in the second degree and the jury fixed his punishment at twenty-five years in the penitentiary. He was represented by counsel of his own choice and at arraignment pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was determined to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent appellant on this appeal.

There was no motion to exclude the State’s evidence and no exceptions were reserved to the oral charge to the jury. Appellant requested the affirmative charge which was refused. A motion for a new trial was filed and the testimony of one of the principal witnesses in the trial in chief was presented in behalf of the appellant. This witness recanted some of the testimony given during the main trial. The trial judge overruled and denied the motion for a new trial, saying:

“The Court is quite impressed with the argument of counsel and I have been seriously considering the testimony of Cynthia Heard. I had read her affidavit prior to the time she testified. However, even with her present testimony, there is still sufficient evidence, though it may be circumstantial, to substantiate a verdict of the jury of murder in the second degree. The Court overrules the motion for a new trial.”

Appellant presents only one issue on this appeal. He alleges reversible error was committed when the trial court excluded evidence of intent or motive when such evidence was tended to rebut malice as an element of the offense.

On a voir dire hearing, prior to the trial, the Court determined that a common-law marriage existed between appellant and Cynthia Heard and the Court advised Cynthia that she could not be' compelled to testify against appellant. Cynthia told the Court that she wished to give testimony in the case.

Cynthia testified that she had known appellant for seven or eight years and they lived together as husband and wife for about three months but they continued to see each other over a period of time and had two children. It was not disputed that appellant was the father of both children. The children lived with appellant in his mother’s home. At the time of the homicide, made the basis of this prosecution Cynthia had not lived with appellant for approximately four years. The children were permitted to visit their mother from time to time and one of them was visiting her on March 29, 1976, the day of the killing. Cynthia was residing with her mother at this time.

On March 29, 1976, the deceased, Jimmie Lee Seawright, came to visit Cynthia. He arrived between 11:00 a. m. and 12:00 noon. Cynthia had known the deceased for about two and a half years. There was no claim that they were married but they had been “staying together” for approximately eighteen months. About thirty minutes after the deceased arrived appellant appeared at the house and knocked on the door. Cynthia’s sister, Amanda, was present at the time and she was talking to her husband on the telephone when she heard the knock on the door. Amanda went to the door and she reported to Cynthia that appellant wanted to see her. Cynthia and the deceased were in the back bedroom and she told him to stay in the back of the house while she talked to appellant. She went into the living room to talk to appellant and he asked her if the deceased was there and she told him no. Appellant told her she was lying and she told him that she didn’t want any mess in her mother’s home. Appellant replied there would be no argument in the house and that he would step outside. Before appellant walked outside he called to the deceased and told him he wanted to talk to him and to come outside.

Appellant walked out on the front porch. At that point the deceased came out of the bedroom and entered the dining room where he sat on the corner of the dining table.

From the record:

“Q. What, if anything, occurred when Jimmy Lee Seawright came out and sat on that table?
“A. Billy told him to come to finish what had started Saturday night and Jimmy told him that if they didn’t finish it Saturday night that he didn’t want to do anything about it. He asked Billy had he went, you know, got something to do something to him with and that is when Billy said he was tired of all of that talking and he just came from the front door to the dining room and he shot him.
“Q. Now when William Mullins, Jr. got to where Jimmy Lee Seawright was and he got there in the dining room what happened?
“A. He had took the pistol out of the archway in the door and then he had shot him — he put the gun to his neck and he shot him.
“Q. Where did he put the gun at?
“A. I think it was on the lefthand side of his neck, right here, (indicating).
“Q. Okay. How many times did he shoot?
“A. Once.”

Cynthia further testified that she did not see the deceased do anything when he was approached by appellant. After the deceased was shot he stated, “This is what you get for being good.” The next time she saw the deceased was at his funeral.

On cross-examination, Heard testified that appellant frequently came to her mother’s house; that appellant had their two children; and, at the time of this incident, their daughter had been staying at the house for a few days. She denied that appellant had come to the house to take the child home with him.

Cynthia further testified that she had borrowed a butcher knife from a woman named Beck a few weeks before this incident, and that she had.not returned it. She stated that when the deceased entered the dining room he did not have anything in his hands. The deceased never moved until he was shot.

Amanda Tarrant testified that she was Cynthia’s sister. She testified to the same events in substantially the same manner as her sister did. She added that appellant told Cynthia that he knew that she was lying about the deceased not being there because his car was out front. Amanda said that appellant asked the deceased if he was scared to come out. When the deceased answered that he was, appellant “ran through the door, ran past me and put the gun up to his neck and said, ‘bitch, I am about tired of your mouth.’ And he shot him.” Amanda never saw the deceased raise his hands, nor did she see a knife in the dining room that day.

Jack Parker testified that he was employed by the Jefferson County Coroner’s Office as a Deputy Coroner. Parker examined the body of a black male identified to him as Jimmy Seawright. He observed a penetrating wound on the left side of the deceased’s neck. Parker stated that he was present when a postmortem examination was conducted upon the deceased’s body. A bullet was located in the right side of the body on the ninth rib. This bullet passed through the lobes of the right lung, and in Parker’s opinion, caused the death of the deceased.

D. L. Higgins testified for the defense and said that he was a Sergeant with the Birmingham Police Department, attached to the Scientific Investigation Bureau. Higgins performed tests on a pistol, which defense counsel stipulated was “the weapon that was used in this alleged incident.” This weapon was introduced into evidence “by agreement.” Among the tests he conducted, Higgins checked the safety functioning features of the weapon. He found that the weapon could be discharged without pulling the trigger by applying a sharp blow to the hammer.

E. J. Jett testified that he was appellant’s uncle and that he owned the gun in evidence. He did not loan this weapon to appellant.

Mary Mullins testified that she was appellant’s mother, and that his children lived with her and her husband.

Rebecca Mitchell testified that Amanda Tarrant’s baby sister borrowed a butcher knife with a nine-inch blade from her in March of 1976. That knife had not been returned. Mitchell further testified that the general reputations for truth and veracity of Amanda Tarrant and Cynthia Heard were not good in the community. On cross-examination, Mitchell stated that she didn’t know what veracity was. Additionally, Mitchell went to the Heard home soon after the deceased had been shot. She did not see a knife in the dining room.

Appellant testified that he had two children; that they lived with him; and that he supported them. On the Saturday before the shooting, the deceased threatened the appellant. Appellant stated that on Sunday he got the weapon in evidence at his grandfather’s house. That day, appellant testified, he went to see Cynthia about his daughter who was visiting there for a few days. Appellant told her he would come back Monday to pick the child up. Appellant did return Monday morning. He stated that he did not know the deceased was there. Appellant told Cynthia that he was there to pick up the baby and Cynthia replied that the child was at the store with “Sunshine.” At that time, appellant stated, he saw the deceased walk into the dining room and .sit on the corner of the table. Appellant continued to talk with Cynthia about the baby.

From the record:

“Q. And what’s the first thing that you heard Seawright say on this occasion, right then and there?
“A. Well, I can’t exactly recall his exact words he said because he was in the other room but he said something about me getting out of the house or asked what I was doing there, something to that effect.
“Q. When he said something about you getting out of the house where did you move to?
“A. When he said that I turned and walked towards him slowly.
******
“Q. And when you walked over there how close did you get to him?
“A. I got about I guess four or five feet from him.
“Q. And what did you say to him and what did he say to you?
“A. I told him, I said, ‘Wait, man, I just come to get my baby, you know, and I don’t think that this is any of your business. You ain’t got nothing to do with this and I don’t even want to talk to you.’
“Q. What did Seawright say?
“A. I don’t recall what he said at that time.
“Q. What did Seawright do?
“A. Well, at that time I noticed he was sitting up on the table and Seawright reached back behind him and grabbed a butcher knife.
******
“Q. Okay, and what did he do relative to that butcher knife?
“A. Well, he grabbed the butcher knife from behind him and reached back and grabbed the butcher knife and he come up with it and he made a lunge towards me.
“Q. When he grabbed the butcher knife was he or was he not on the table?
“A. He was still sitting on the table.
******
“A. He reached back and grabbed the knife off the edge of the table and he came around with it.
“Q. Okay, what did you do at that point?
“A. At this point I stopped and I reached up under my jacket to grab my pistol.
“Q. Did you get it out?
“A. Yes, sir.
“Q. And what did you do with the pistol and what did he do with the knife?
“A. Well, after I originally grabbed my pistol I could see him still coming towards me with the knife in a round motion and I pushed him off with my hand and by that time I had got the pistol out and I raised it up. As I raised it up I reached to swing at him, to strike him, to knock him unconscious to ward off his thrusts and as I swung at him he was still coming towards me with the knife and he threw his hand up and all I know the pistol went off.
“Q. Did you intend to fire that pistol?
“A. No, sir, I did not.
“MR. PICKARD: Object.
“THE COURT: Overrule.
“Q. Did you intentionally pull the trigger of that pistol?
“A. Not to my recollection.”

Appellant denied asking if the deceased was at the house and denied calling him out; and denied putting a gun to the deceased’s throat.

On cross-examination, the State sought to impeach appellant by a prior inconsistent statement given to Sergeant Knight of the Birmingham Police Department. Out of the presence of the jury, appellant testified that he did give a statement to Knight. This statement was given in the presence of appellant’s counsel, after Miranda warnings were read to him. Appellant stated that he was not threatened, coerced, or offered any reward or hope of reward for making the statement.

When the jury returned, appellant testified as follows. From the record:

“Q. Mr. Mullins, do you recall being asked, ‘okay, now if you would, in your own words, tell me what happened when you got there.’ And you responded, ‘well, when I got there around Cynthia and them’s house I seen, you know, Jimmie Seawright’s car around there, the car that he had been driving. I think it was his father’s car.’ Did you make that statement?
“A. I don’t recall.
“Q. Do you deny making it?
“A. I don’t deny it.
“Q. You could have made it?
“A. I could have.”

Further:

“Q. (BY MR. BARBER:) Mr. Mullins, do you recall whether or not during March of 1976, that Jimmie Lee Sea-wright drove a ’64 Chevrolet?
“A. I don’t recall him having a car.
“Q. Do you -recall the statement that we had reference to right before lunch that you gave to Sergeant Knight?
“A. I would say I recall the statement that you pointed out to me.
“Q. Do you recall in that statement telling Sergeant Knight that he drove a ’64 Chevrolet?
“A. I don’t recall that.
“Q. You are not denying that you told him that, are you?
“A. I am not denying it and I am not confirming it. I don’t remember at that time what I told Sergeant Knight. I remember talking to him but at the time I don’t remember exactly what I said to him.
“Q. Let me ask you this, please, sir, if it would refresh your recollection if you read that last question and answer as it appears there? Do you recall being asked, ‘what kind of car is it?’ And you answered, ‘a ’64 Chevrolet.’?
“A. As I said I don’t remember what I said to the Sergeant. I remember talking to him but I don’t remember what I said.”

Following appellant’s testimony, the defense rested. In rebuttal, Cynthia Heard testified that the deceased drove a ’74 or ’75 Impala and that it was parked in front of her mother’s residence on the day of the fatal incident.

During the direct examination of appellant, the following occurred. From the record:

“Q. You went to his house and you got the pistol?
“A. Yes, sir.
“Q. What did you do with it?
“A. When I got the pistol I put it on my person.
“Q. Why?
“A. For my self protection.
“MR. BARBER: Object, and ask that it be excluded, Your Honor.
“THE COURT: This could not come within the purview of Starr v. Starr or Grimes v. State, I would sustain.”

As we have pointed out appellant was permitted to testify that he did not intend to fire the pistol. This can only mean that he did not intend to shoot the deceased.

Appellant contends that such evidence was in rebuttal of the presumption of malice from the use of a deadly weapon, and that such evidence if believed would have possibly reduced the degree of homicide. To exclude the appellant’s answer to this question, appellant argues, was an abuse of discretion by the trial judge. Appellant relies on Starr v. Starr, 293 Ala. 204, 301 So.2d 78.

The well recognized holding of Starr, supra, is that a witness, on direct examination, may testify as to his intention, motive, or other physically unexpressed mental state, provided that such testimony is material to the issues of the case. Thus, a defendant may testify that he did not intend to kill his victim, Grimes v. State, 56 Ala.App. 439, 322 So.2d 729; that he did not intend to injure or defraud the payee of a check which he forged, Tolbert v. State, 56 Ala.App. 269, 321 So.2d 227; Lyles v. State, Ala., 342 So.2d 416.

The materiality of the evidence offered by the holder of this uncommunicated intent is left within the discretion of the trial judge, and the admission or exclusion of such evidence shall not be reviewed upon appeal, except for an abuse of discretion. Starr, supra. In deciding whether or not the trial judge committed an abuse of discretion in the case at bar, it is necessary to determine if the defendant’s evidence of why he had a firearm on this occasion is a “transcendant” issue in the case. Owens v. State, Ala.Cr.App., 340 So.2d 860.

We do not think that it was. The ultimate question in this case for the jury to resolve was, “Did the defendant intentionally kill Jimmy Seawright?” Appellant testified that the shooting was accidental and that he did not intentionally fire the pistol which killed the deceased. Indeed, appellant testified that when he left the house, he did not know that the deceased had been shot. Whatever reason appellant had for carrying this weapon would not answer the ultimate question of whether or not the killing was intentional. If appellant carried a pistol for self-protection, it would not justify an intentional and malicious killing.

The evidence was sufficient to sustain appellant’s conviction for murder in the second degree. The State’s evidence and the testimony of appellant is always a question for the jury to determine, and a verdict rendered thereon will not be disturbed on appeal. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Young v. State, Ala.Cr.App., 346 So.2d 509.

On a motion for a new trial, appellant called Cynthia Heard to testify. She stated that she had contacted appellant’s counsel and wished to change her testimony.

From the record:

“Q. As a matter of fact what did you see occur when the defendant came into the house where you and Seawright were?
“A. I saw him pull the gun. I saw him come through the door and pull the gun. I couldn’t say I saw actual shooting of the gun because he testified he hit him beside the neck. He was standing in front of me so I can’t say whether he hit him beside the neck or did he point the gun directly at him because I can’t say I saw it.”

In reviewing a refusal of motion for a new trial, the Court of Criminal Appeals will indulge every presumption in favor of correctness of the ruling of the trial judge. Young v. State, supra. The preponderance of the evidence against the verdict is not so decided as to clearly convince this Court that it was wrong and unjust.

A thorough search of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte William MULLINS, Jr.
    77-518.
    Supreme Court of Alabama.
    June 23, 1978.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Joe A. FULLER v. STATE.
    6 Div. 700.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Rehearing Denied May 30, 1978.

      H. Neil Taylor of Taylor & Taylor, Rus-sellville, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Winston County returned an indictment against the appellant, Joe A. Fuller, charging him with obtaining personal property by false pretenses. The appellant entered a plea of not guilty. A jury found appellant guilty as charged. Appellant filed a motion for a new trial. The trial court denied appellant’s motion for a new trial, and duly sentenced him to five (5) years in the penitentiary, and he appeals to this Court.

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

Appellant contends that his conviction should be reversed because the trial court erred in allowing the jury to separate over appellant’s objection during the course of the trial; in denying his motion for a mistrial due to the statement of the District Attorney made in the presence and hearing of the jury that he had no objections to the jury separating; and in overruling his motion for a new trial.

On the first day of the trial, December 1, 1977, and after the trial had been in progress for some time we find from the record: (R. p. 123)

“THE COURT: Ladies and gentlemen, you have been in your seats more than an hour and a half. I know you get tired. At this time we will take a break. While you are out do not talk to anyone about the case, do not allow anyone to talk with you about it. Be back in your seats in 20 minutes.

(Whereupon, a break was had from 2:57 p. m. until 3:18 p. m., at which time proceedings resumed.)”

Again from the record: (R. pp. 155-157)

“MR. TAYLOR: Thank you. That’s all.

(Witness excused)

THE COURT: Ladies and gentlemen, while you are separated overnight do not allow anyone to talk to you about this case, and should you come into contact with a fellow juror don’t even discuss it with him. You are never to discuss a case among yourselves or with any other person until you finally receive the case for your deliberations after the Court has charged you as to what the law is, and only when you get into the jury room are you to discuss it even among yourselves. So with that admonition — do you have something?

(Attorneys approach bench.)

MR. ATKINSON: Judge, we have no objections to them separating.

MR. TAYLOR: At this time we move for a mistrial because of the comments of the District Attorney in the presence and hearing of the jury that he had no objections to their separating.

THE COURT: Motion denied.

MR. TAYLOR: It is highly prejudicial and calculated and meant to prejudice the jury.

THE COURT: Let me talk with counsel.

(The Judge, District Attorney, Assistant District Attorney and Defendant’s counsel leave the courtroom and return.)

THE COURT: Ladies and gentlemen, while you are separated overnight, as I have told you, you are not to discuss the case with anyone. Don’t discuss it with your family under any circumstances and, as I told you, don’t even discuss it among yourselves. If anyone should bring up the case in any way or ask you about anything that has gone on in the Court in this case tell them you cannot discuss it. Should anyone try to discuss it with you, report this to the Court immediately. Be back in your seats in the jury box tomorrow morning at 9:00. You are excused until in the morning at 9:00.

(The jury leaves the courtroom at 4:36 p. m., December 1, 1977.)

MR. TAYLOR: Let the record show that the jury was allowed to separate over the protest and objection of the Defendant and that we again renew our motion for mistrial based on the remark of the District Attorney wherein he said in the presence and hearing of the jury that he didn’t have any objections to the jury separating and that the reminder to the Court that we didn’t agree to the separation of the jury and it was made in such a low tone of voice so that only the District Attorney and the Judge could hear it at the bench.

MR. ATKINSON: On the record, the State would like to say the comments made by the Defense attorney were in the presence of the Court at the bench and the comments made by the District Attorney were at the bench before the Judge as well.

MR. TAYLOR: Let the record show that the District Attorney spoke in a loud tone of voice and it was intended for the jury to hear.

MR. ATKINSON: And to that we join issue.

(Court adjourned at 4:39 p. m., December 1, 1977, and reconvened at 9:00 a. m., December 2, 1977.)”

Again from the record: (R. p. 196)

“THE COURT: Ladies and gentlemen, it is approaching 25 after ten. We will take a morning break now. While out on your break, do not mention one word to each other about what has transpired, what the evidence has been or anything about the case. You are not to say anything to anyone, even yourselves, no matter where you are, about the case until you get it for your final verdict. At this time we will be excused for 20 minutes.

MR. TAYLOR: We object to the separation of the jury for recess.

THE COURT: Overruled.

(Recess from 10:23 a. m. until 10:43 a. m.)”

Again from the record: (R. p. 237)

“THE COURT: Ladies and gentlemen, we will take our lunch break now. While you are separated for lunch do not talk to each other about the case. Do not allow anyone to talk to you about it. The same admonition I gave you at previous times when you were separated applies now. Be back in your seats at 1:00.

MR. TAYLOR: At this time we interpose an objection to the separation of the jury.

THE COURT: Objection overruled.

(Whereupon, a lunch recess was had from 12:03 until 1:00 p. m. at which time proceedings were resumed.)”

Again from the record: (R. p. 289)

“THE COURT: Ladies and gentlemen, it is time for our afternoon break. While you are on your break, you are under the same admonition as the previous breaks. Do not talk to anyone about the case in any way. Be back in your seats in twenty minutes.

(Whereupon, a recess was had from 2:27 p. m. until 2:45 p. m., at which time proceedings were resumed.)”

Again from the record: (R. pp. 333-334)

“THE COURT: Ladies and gentlemen, it is now 4:08 or 9 or somewhere around there. I anticipate it will take probably three more hours to get the case to you which will put it around 7:00 or after and for that reason I hate to call you and have you come back on Saturday but I believe that’s probably the lesser of the two alternatives that we have, the least objectionable. So I am going to excuse you until in the morning at 9:00. Be back in your seats at that time.

Before you go, let me give you strict instructions as I have done on previous occasions when you were separated. Do not let anyone talk to you about this case in any way whatsoever. If any of your family asks you what has gone on, do not tell them. Tell them you are not at liberty to talk about the case, that you can tell them all about it after it is over. If anyone should try to talk to you about the case in any way, let the Court know immediately. So with that you are excused until in the morning at 9:00.

(Whereupon, the jury was excused and court recessed from 4:09 p. m., Friday, December 2, 1977, until 9:00 a. m., Saturday, December 3, 1977, at which time proceedings resumed.)”

After the jury returned its verdict finding the appellant guilty as charged the following occurred: From the record: (R. p. 353)

“THE COURT: Ladies and gentlemen, this trial lasted one full day and two parts of the day and, of course, you were separated overnight for two nights and you were allowed to separate for recesses and during the morning and afternoon and during lunch, and I would like to ask each of you at this time whether or not you were influenced in any way by anyone or if you talked about the case with anyone or to anyone during the time you were separated. And this is done for the purpose of, not to question your integrity as a juror, but to get it in the record whether or not you were influenced in any way or from any outside pressure applied on you while separated.
(Each juror answered ‘No.’)
(JURY EXCUSED AT 1:09 p. m.)”

The case was continued for sentencing until December 12, 1977. On December 7, 1977 appellant filed a motion for a new trial. Ground 15 of the motion was that the trial court permitted the jury, over appellant’s objection, to separate during the trial. Ground 16 of the motion was that a new trial should be granted because the District Attorney remarked in a voice clearly audible to the jury: “I do not object to the jury separating.”

On December 12, 1977 appellant’s motion for a new trial was denied by the trial court. The state offered no evidence on the hearing for the new trial. Nothing appears in the record before us that the appellant or his counsel consented to the separation of the jury during the trial.

We hold that the trial judge was in error in allowing the jury to separate during the trial of this case over the objection of, and without the consent of appellant and his counsel. We hold that the trial court was in error in overruling appellant’s motion for a mistrial and motion for a new trial because of the comments of the District Attorney in the presence and hearing of the jury that he had no objections to their separating.

We hold that the remarks of the trial judge to the jury at the conclusion of the trial and after the jury’s verdict are not sufficient to discharge the burden of the state to show clearly that no injury resulted from the separation of the jury during the trial. Code of Alabama 1975, Sec. 12-16-9; Nelson v. State, 253 Ala. 246, 43 So.2d 892; Pitts v. State, 53 Ala.App. 373, 300 So.2d 416; Demmon v. State, 46 Ala.App. 652, 248 So.2d 147.

We have not considered other matters complained of in appellant’s brief, as they are not likely to occur in a retrial of this cause.

For the errors pointed out the judgment of the trial court should be reversed and the cause remanded for a new trial.

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

The judgment below is hereby reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-585.
    Supreme Court of Alabama.
    June 30, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Charles CLIFTON v. STATE.
    7 Div. 587.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.

      Donald R. Hamlin, Pell City, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty., Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction of burglary and grand larceny with a sentence of four years’ imprisonment. The appellant attempts to present three questions to this court: (1) Whether the testimony of a deputy sheriff should have been excluded because it was insufficient to corroborate the testimony of an accomplice, (2) whether the state’s evidence was sufficient to corroborate the testimony of an accomplice and (3) whether the trial judge properly charged the jury.

During the daylight hours of June 6, 1977, the trailer home of Mr. and Mrs. Randall Williams was burglarized. A television set and a digital clock radio were taken. Elvis Parrish testified that the appellant and Tommy Teat committed the burglary. According to his testimony, he had been drinking with Teat during that afternoon. Teat introduced him to the appellant. The appellant drove Parrish’s automobile to the trailer because Parrish had become “a little wasted” and too intoxicated to drive. Parrish stated*that the appellant and Teat broke into the trailer and took a radio and television set. Parrish testified that he did not go inside the trailer and had no prior knowledge of the burglary. Parrish drove away “in a hurry” from the scene of the crime and told the appellant and Teat to remove the stolen goods from his automobile. He drove for about two blocks after which he stopped and got in the back seat. The appellant then resumed driving.

Two witnesses who lived in the area corroborated Parrish’s testimony to the extent that they saw a man place a television set in an automobile similar to the one Parrish described. Neither witness could identify the appellant as one of the three men they saw at the trailer. Although they attempted to follow these men, they were unsuccessful in getting a tag number because the automobile was going too fast.

Deputy Sheriff Floyd Brown testified that he stopped the appellant, Teat, and Parrish approximately five hours after the burglary in a vehicle similar to the one described by the two witnesses and Parrish as the one used in the burglary.

I

Deputy Brown’s testimony was properly admitted. Though it would not, in and of itself, sufficiently corroborate the testimony of an accomplice, it could, when coupled with other facts and circumstances, constitute a link in a chain which would legally and adequately incriminate the accused. It is a general rule that on the trial of a criminal prosecution it is permissible to show the whereabouts of the defendant, both prior and subsequent to the commission of the offense, to the time of arrest. Cooley v. State, 7 Ala.App. 163, 62 So. 292 (1913).

II

The appellant contends that, since Parrish was an accomplice, his testimony must be corroborated by other evidence tending to connect the defendant with the commission of the offense.

If the testimony of Parrish is believed, he had no prior knowledge of the burglary and was not a willing participant in disposing of the stolen items. From the facts before us we cannot say that he was an accomplice as a matter of law. Thus the issue of his complicity was a matter for determination by the jury and not the trial court. Where there is doubt whether a witness is in fact an accomplice and the testimony is susceptible to different inferences on that point, the question is for the jury. Perry v. State, Ala.Cr.App., 340 So.2d 895, cert. denied, Ala., 340 So.2d 896 (1976); Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973); Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Skumro v. State, 234 Ala. 4, 170 So. 776 (1936).

Before the prohibition contained in Title 15, Section 307, Code of Alabama 1940 (now 12-21-222, Code of Alabama 1975), requiring corroboration of the testimony of an accomplice, may be invoked in favor of a defendant, it must clearly appear that the witness giving the incriminating testimony is an accomplice. Ross v. State, 74 Ala. 532 (1883); Lowery v. State, 38 Ala.App. 505, 88 So.2d 854 (1956).

The burden of proving that a witness is an accomplice is upon the defendant who alleges it for the purpose of invoking the rule requiring corroboration. Fairbanks v. State, 46 Ala.App. 236, 239 So.2d 908 (1970); Snowden v. State, 27 Ala.App. 14, 165 So. 410 (1936).

Under the facts of this case the question of whether Parrish was an accomplice was for the jury.

Ill

At trial, defense counsel announced “satisfied” with the oral instructions of the trial judge. There were no exceptions to the court’s charge and no written requested instructions. Under these circumstances, objection to the oral charge of the trial court was waived. 6A Alabama Digest, Criminal Law, &wkey;847. This matter cannot be raised for the first time on appeal. 7 Alabama Digest, Criminal Law, &wkey;1038.1(1). Nothing is presented for review. 7 Alabama Digest, Criminal Law, &wkey;1056.1(1).

We have examined the record and found no error adverse to the substantial rights of the appellant. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. David N. HIRSCH, Respondent.
    Nos. 51577, 50149.
    Supreme Court of Florida.
    March 30, 1978.
    Rehearing Denied June 20, 1978.
    See also, Fla., 342 So.2d 970.
    Stanley B. Powell, Bar Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    David N. Hirsch, in pro per.
   PER CURIAM.

Referees of The Florida Bar, in each of these consolidated cases, have found that David N. Hirsch, a member of The Florida Bar, has engaged in professional misconduct. The Bar’s Complaints charged (1) that Hirsch failed to diligently prosecute a client’s lawsuit although repeatedly requested by the client to do so, and that he made misrepresentations assuring the client that suit had been filed and service of process placed in the hands of the sheriff when no action had in fact been taken (Case No. 51,577); and (2) that he violated this court’s order of suspension from the practice of law (dated February 17, 1977 — Florida Bar v. David N. Hirsch, 342 So.2d 970 (1977)) by engaging in the practice of law during the period of suspension (Case No. 50,149).

At final hearing Hirsch admitted the allegations of the complaint, but defended Case No. 51,577 by stating that he failed to file the client’s suit because he thought the cause of action was legally insufficient, and because this episode occurred during a time when he was under severe emotional stress.

The referee found Hirsch had violated D.R. 1-102(A)(4)(5), and D.R. 6-101(A)(3), of the Code of Professional Responsibility, as charged. The Florida Bar, by its Petition for Review under Florida Bar Integration Rule 11.09(3) of Article XI of the Integration Rules, recommended that Hirsch be suspended from the practice of law in the State of Florida for six months with proof of rehabilitation submitted in a regular reinstatement proceeding required prior to reinstatement and payment of all costs of these proceedings.

In Case No. 50,149 (practicing law while suspended) Hirsch denied that he failed to advise the client of his suspension; denied that he promised to represent the client, and denied that his conduct constituted contempt of this court. He admitted contact with the client and the actual receipt of funds from the client, but stated that at the time he was working under the supervision of another member of The Florida Bar.

After full hearing the referee made the following pertinent findings:

1. The Respondent DAVID N. HIRSCH is a member of The Florida Bar and was subject to the jurisdiction and rules of this court at all times pertinent herein. He was suspended from the practice of law on February 17, 1977 for a period of three months, Case No. 50,149, [Fla.] 342 So.2d 970.
2. On or before April 1, 1977, during the period of said suspension, the Respondent DAVID N. HIRSCH undertook to represent the client, Elizabeth G. Howard. Pursuant to said representation, the Respondent received fees from said client; he drafted pleadings on behalf of said client; and he conducted two or more client interviews. Said interviews took place at the Respondent’s office.
3. The client was not informed by the Respondent of his suspension from the practice of law.
4. The Respondent’s conduct aforesaid violates this court’s order of suspension and the Integration Rule of this court, Rule 11.10(3). Although it was argued that such conduct might be authorized by Rule 11.10(7), the evidence presented did not show compliance with the requirements of that rule.
5.I find that the Respondent’s conduct aforesaid was without legal justification or excuse.
CONCLUSION: Therefore, I find that the allegations of The Florida Bar’s Petition have been established by the evidence and that the Respondent’s conduct is in violation of this court’s order of February 17, 1977.

It is our responsibility to review the determination of guilt made by the Referees upon the facts of record, and if the charges be true, to impose an appropriate penalty for violation of the Code of Professional Responsibility. Fact finding responsibility in disciplinary proceedings is imposed on the Referee. His findings should be upheld unless clearly erroneous or without support in the evidence. The Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968). We have carefully reviewed the evidence and find that the reports of both Referees are supported by competent and substantial evidence which clearly and convincingly show that Hirsch has violated the Code of Professional Conduct in the respects charged. We approve the Findings of Fact and Conclusions filed by the Referees.

We are convinced that no lesser penalty than disbarment will impress upon Hirsch his professional responsibility as a lawyer.

Accordingly, David N. Hirsch is disbarred from the practice of law in the State of Florida, effective immediately, and shall pay the costs of these proceedings in the sum of $397.10.

It is so ordered.

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

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the finding of misconduct cited in the majority opinion. In view of respondent’s long and honorable record in the practice of law prior to the activities mentioned in proceedings before this Court, I would limit the discipline to an extension of his present suspension.

ADKINS, J., concurs.


author: HATCHETT, Justice.

text:
    George Robert HOUSTON, Petitioner, v. James R. CALDWELL et al., Respondents.
    No. 51794.
    Supreme Court of Florida.
    May 25, 1978.
    Colson & Hicks, P. A., and Susan Goldman, Miami, for petitioner.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for respondents.

      Robert Orseck, of Podhurst, Orseck & Parks, Miami, for The Academy of Florida Trial Lawyers.
    R. J. Beckham, of Beckham, McAliley & Proenza, Jacksonville, for United Transp. Union.
    DuBose Ausley and William M. Smith, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for the Florida R. R. Ass’n, amici curiae.
   HATCHETT, Justice.

Where one of the parties to a lawsuit is a resident of Florida, does a trial court have the discretion to dismiss the action by applying the doctrine of forum non conveniens? The Fourth District Court of Appeal, in its decision reported at 347 So.2d 1041 (Fla. 4th DCA 1977), answered this question in the affirmative. That holding gives us jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution (1968), because it conflicts with a long line of Florida cases which restrict the application of the doctrine of forum non conveniens to cases in which both parties to an action are nonresidents and in which the cause of action arose outside of Florida. We are in agreement with these prior decisions, and answer the question in the negative. .

Petitioner, Houston, a resident of North Carolina, and respondent, Caldwell, a resident of Palm Beach County, Florida, were involved in an automobile collision in North Carolina resulting in injuries to petitioner. Petitioner filed suit in Palm Beach County seeking damages for the injuries arising out of the North Carolina accident. Respondent filed a Motion to Dismiss and/or Abate on the ground that the action should have been brought in North Carolina since that state is the place where the cause of action arose and where the witnesses to the accident reside. Respondent further alleged that the trial of this suit in Palm Beach County would result in undue hardship and injustice to him. The trial court ordered the action dismissed without prejudice to petitioner’s right to refile this suit in a more convenient forum. The district court held that the doctrine of forum non conven-iens may be applied even though one of the parties is a resident of Florida. The district court reasoned that the doctrine of forum non conveniens is based upon equitable considerations and that the trial court should evaluate all the various factors involved in a case to determine the appropriateness of applying the doctrine. The district court stated that the threshold requirements for the applicability of the doctrine should be; (1) the cause of action arose outside of the jurisdiction of the forum state, and (2) that the defendant is amenable to process in the forum in which the cause of action arose. Since, however, the respondents and the trial court failed to establish in the record that the respondent Caldwell was in fact amenable to process in North Carolina, the case was remanded to the trial court with directions to make appropriate findings of fact on that issue.

Adams v. Seaboard Coastline Railroad Co., 224 So.2d 797 (Fla. 1st DCA 1969), analyses the various Florida decisions applying the doctrine of forum non conven-iens and clearly sets forth the applicable rule of law:

[T]he recognized law of this state [is] that if a transitory action is filed in a court of Florida between nonresident parties seeking to litigate a cause of action accruing in a foreign jurisdiction, the trial court is accorded a sound discretion in determining whether it should retain jurisdiction of the action, or dismiss it without prejudice to the right of the plaintiff to reinst-itute the action in a more appropriate and convenient forum. In the exercise of such discretion, the trial court may consider whether the filing of the action constitutes forum shopping on the part of plaintiff; whether it constitutes undue harassment of the defendant by requiring him to litigate the action in a forum remote from where it accrued or where the defendant resides or maintains a place of business; and, whether the convenience of the parties and witnesses, in the interest of justice, requires the action to be litigated in a different forum. In the ultimate, however, it is seen that the application of the doctrine of forum non conveniens is restricted to the limited category of cases in which both parties to the action are nonresidents, and the cause of action sued upon arose in a jurisdiction outside of Florida. It is only after these two factors emerge and coalesce and that the trial court is authorized to proceed to a determination of whether the criteria necessary to bring into play the doctrine of forum non conveniens have been met. 224 So.2d at 800-801.

The district court in the present case stated that the nonresidency of the parties should not be an essential prerequisite to the application of the doctrine of forum non conveniens, but rather, it should be merely another factor considered when evaluating the appropriateness of a motion to dismiss in favor of a more convenient forum. The district court reasoned that the rule of law set forth in Adams restricted the flexibility of this doctrine and made the considerations of justice, fairness, and convenience subservient to the single factor of the residency of the parties. The Fourth District noted that the New York courts have developed an approach more sensible than that established by prior cases in this state. In Silver v. Great American Insurance Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972), the New York Court of Appeals relaxed its previous strict requirement prohibiting the doctrine of forum non conven-iens from being invoked if one of the parties was a resident of that state. The New York court held that the residency factor is only one of many factors considered in determining whether or not New York is an inconvenient forum.

While we recognize that the approach presented by the district court in this case (following the New York courts) may be a reasonable policy, we decline to adopt it for several reasons. The dismissal of a suit is a drastic remedy which should be ordered only under the most compelling of circumstances. Under Florida law, the plaintiff’s choice of venue is usually favored if the election is one which has been properly exercised under the applicable statutes. Although an action filed in one Florida county may be transferred to another county for the convenience of parties, or of witnesses, or in the interest of justice, the courts of this state are without similar authority to transfer a suit to a forum in another state. Although under the district court’s position it is essential for a trial court to make a finding that the defendant is amenable to process in the more convenient forum prior to entering a motion to dismiss, such a determination by the trial court does not have a binding effect on the courts of the more convenient forum. In addition, the question of amenability of the defendant to process in another state may often times be quite complicated, and its resolution may involve great expenditure of judicial labor. In comparison, the rule of law as set forth in Adams, although less flexible, is just, is serving well, and is easier to apply. If venue has been properly established because one of the parties is a resident of this state, then the suit may not be dismissed because another state may be more appropriate. We believe the certainty of resolution of the dispute outweighs the possible benefits achieved by dismissal in favor of a more convenient forum. This state has a fundamental interest in resolving controversies involving its citizens. In light of this disposition, we need not treat constitutional issues urged by the parties.

Accordingly, we hold that the doctrine of forum non conveniens is inapplicable to any suit properly filed in this state where either party is a resident of Florida. The decision of the Fourth District Court of Appeal is quashed and remanded for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

      . Killingsworth v. Montgomery Ward & Co., 327 So.2d 50 (Fla. 2nd DCA 1976); Ganem v. Issa, 225 So.2d 564 (Fla. 3d DCA 1969); Adams v. Seaboard Coast Line Railroad Co., 224 So.2d 797 (Fla. 1st DCA 1969); Atlantic Coast Line Railroad Co. v. Ganey, 125 So.2d 576 (Fla. 3d DCA 1960).

      . Respondent’s insurance carrier, Aetna Insurance Company, is also a party to this action.

      . As noted in Greyhound Corp. v. Rosart, 124 So.2d 708 (Fla. 3d DCA 1960):
      In Florida, the election of venue is with the plaintiff and although it may be more convenient to the defendant and possibly to the plaintiff that the action be prosecuted in another county or circuit, nevertheless, if the election is one which the plaintiff has properly exercised under the statute, then the election still remains his and not one which can be dictated by the defendant. Doonan v. Poole, Fla.App. 1959, 114 So.2d 504. See Santa Rosa County v. Trobuck, 77 Fla. 86, 80 So. 748; Enfinger v. Baxley, Fla.1957, 96 So.2d 538; Peterson v. Kirk, Fla.App.1958, 103 So.2d 656. To hold otherwise would be to nullify the venue statute which gives the plaintiff the right to file his action in a particular place under certain specified conditions, (footnotes omitted) 124 So.2d at 712.

      . The amicus curiae brief filed by United Transportation Union argues that Article 1, Section 21, Fla.Const. (1968) which states “the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay,” precludes the application of the doctrine to dismiss any litigation involving a citizen of Florida.


author: PER CURIAM.

text:
    MORGAN DRIVE AWAY OF FLORIDA, INC., Petitioner, v. Paula F. HAWKINS et al., Respondents.
    No. 52984.
    Supreme Court of Florida.
    July 20, 1978.
    Gregory A. Presnell of Akerman, Senter-fitt & Eidson, Orlando, for petitioner.
    Prentice P. Pruitt, Legal Director, and M. Robert Christ, Staff Counsel, Fla. Public Service Com’n, Tallahassee, for respondents.
    Felix A. Johnston, Jr., of Woods, Johnston & Erwin, Tallahassee, for Interstate Mobilehome Towing, Anchor Mobile Home Movers, Inc. and Mobilehome Towing Service, Inc., intervening petitioners.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for A. W. Tanner and Maude T. Tanner, intervening respondents.
   PER CURIAM.

A. W. and Maude T. Tanner applied with the Public Service Commission for certificates of public convenience and necessity for transporting mobile homes in certain Florida counties, including Alachua. Morgan Drive Away of Florida, Inc. and other certificate holders serving the area intervened in the proceedings to protest issuance of the application. After hearing the parties the Commission ordered that a certificate be issued to the Tanners.

Intervenors brought a petition for certio-rari here. After oral argument and consideration of the briefs we have found no departure from the essential requirements of law in the Commission’s action. The order is affirmed.

It is so ordered.

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


author: BOYD, Judge,

text:
    Gregory VIGIL, Petitioner, v. STATE of Florida, Respondent.
    No. 51719.
    Supreme Court of Florida.
    May 31, 1978.
    Margaret Good, Asst. Public Defender, Tallahassee, of counsel, for petitioner.
    Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, of counsel, for respondent.
    Gregory Vigil, pro se.
   Writ of Certiorari to the District Court of Appeal, First District.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

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

BOYD, J., concurs in part and dissents in part with an opinion, with which ADKINS and HATCHETT, JJ., concur.

BOYD, Judge,

concurring in part and dissenting in part.

The decision of the district court conflicts with Washington v. State, 55 Fla. 194, 46 So. 417 (1908). The verdict should be given the effect that conforms to the jury’s intent. The jury returned a clear verdict that petitioner was guilty of robbery without a weapon, a felony of the second degree, punishable by a term of imprisonment not to exceed fifteen years. On the record before this Court, petitioner could not be sentenced as a principal to robbery with a deadly weapon because there is no judgment that such a robbery occurred.

I would affirm the judgment, but only as to the verdict finding petitioner guilty of the second degree felony. This cause should be remanded for modification of the judgment and sentence.

ADKINS and HATCHETT, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Warren S. KAFER, Respondent.
    No. 53167.
    Supreme Court of Florida.
    May 31, 1978.

      John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
    Thomas V. Infantino of Felder & Ber-man, Winter Park, for respondent.
   PER CURIAM.

Warren S. Kafer, a member of The Florida Bar, is petitioning for resignation from the Bar pending disciplinary proceedings pursuant to Rule 11.08(5), Article XI, Integration Rule of The Florida Bar. In his petition he lists seven grievance matters pending with the Ninth Judicial Circuit Grievance Committee. He admits guilt of serious violations of the Code of Professional Responsibility in these matters. He estimates that his account for clients’ monies held in trust is deficient in the sum of approximately $40,000, but he represents that he intends to repay in full all money owed to his clients from personal assets and future earnings within six months of the petition. He has waived confidentiality with respect to his petition and the grievances listed in it, and he represents that he has ceased the practice of law. Finally he asks this Court for leave to resign without right to readmission.

The Board of Governors asks that the petition be approved. We hereby approve it. Petitioner will not be allowed to petition for readmission to the Bar at any time. The Florida Bar Re: Leon H. Brush, Supreme Court Case No. 51,479, 358 So.2d 1355, Opinion filed April 27, 1978.

The petition is approved.

It is so ordered.

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

      We reject as unauthorized Kafer’s late-filed petition to resign with right to apply for reinstatement and to defer payments past six months.


text:
    THE FLORIDA BAR, Petitioner, v. Frank CLARK, III, Respondent.
    No. 53642.
    Supreme Court of Florida.
    May 31, 1978.
    See also, Fla., 323 So.2d 579.
    James P. Hollaway, Asst. Staff Counsel, Tallahassee, for petitioner.
    Frank Clark, III, in pro. per., for respondent.
   PER CURIAM.

Respondent, a suspended member of The Florida Bar, seeks reinstatement to the active practice of law pursuant to the Florida Bar Integration Rule, Article XI, Rule 11.11. A hearing was held before a Bar referee, who made findings of fact and submitted a report and recommendation. The referee found that respondent has demonstrated by a preponderance of the evidence that he meets the requirements for reinstatement and has shown his fitness to resume the practice of law. These findings are amply supported by the testimony in the record and are hereby approved and adopted. But the referee, nevertheless, recommended against reinstatement since respondent, having been convicted of a felony in federal court, has not had his civil rights restored. The referee expressed the opinion that it would be an anomalous situation to have an attorney entitled to practice before judges for whom he is not qualified to vote and juries upon which he is not qualified to sit.

Respondent filed a statement in opposition to the referee’s report. He points out that no decision of this Court has held that a suspended attorney who has been convicted of a felony must receive a pardon or restoration of civil rights before being reinstated.

The Board of Governors of The Florida Bar has made its recommendation. It urges that we deny the petition, arguing that restoration of civil rights should be a prerequisite to the resumption of the practice of law regardless of whether the disciplined attorney was disbarred or suspended.

It is true that a pardon or restoration of civil rights after a felony conviction has only been held specifically required in cases of first-time applicants and attorneys that have been disbarred. Perhaps the absence of a rule of decision holding such to be necessary for reinstatement of a suspended attorney is due to the fact that disbarment is the more customary form of discipline for a lawyer convicted of a felony. We now hold that restoration of civil rights following a felony conviction is a necessary prerequisite to obtaining the privilege of practicing law, whether one be a suspended attorney, a disbarred attorney, or a first-time applicant for admission to the Bar.

We therefore deny respondent’s request for reinstatement. We do so without prejudice to his right to petition again when his civil rights have been restored, notwithstanding the provision of Rule 11.11(11). Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $14.50.

It is so ordered.

OVERTON, C. J., and BOYD, HATCH-ETT and ALDERMAN, JJ., concur.

ENGLAND, J., dissents.

      Respondent was suspended November 19, 1975. The Florida Bar v. Clark, 323 So.2d 579 (Fla.1975).


author: SUNDBERG, Justice.

text:
    John Wesley HENRY, Petitioner, v. STATE of Florida, Respondent.
    No. 52705.
    Supreme Court of Florida.
    June 1, 1978.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, and Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for respondent.
   SUNDBERG, Justice.

On January 13, 1976, petitioner was indicted for first degree murder resulting from the death of two girls. The jury found petitioner guilty as charged and the court sentenced him to serve concurrent life terms.

At the conclusion of the trial, the jury was instructed on first degree murder, attempted murder in the first degree, murder in the second degree, attempted murder in the second degree, murder in the third degree, attempted murder in the third degree, manslaughter, justifiable homicide, and excusable homicide. After the jury retired to deliberate, they sent the judge a note that read as follows:

It will not be necessary to hear Mr. World’s testimony. We do have a problem understanding the difference in murder in the first degree and murder in the second degree. In other words, can this be clarified?

After a conference with counsel, the judge in open court reinstructed the jury on first and second degree murder. Petitioner objected to the limited reinstruction, contending that the court should have reinstructed the jury on all of the degrees of unlawful homicide and upon justifiable and excusable homicide. Petitioner’s objection was overruled. Thereafter, the jury returned its verdict finding petitioner guilty of murder in the first degree.

On appeal, the District Court of Appeal, Fourth District, affirmed the judgment and sentence appealed from, and on rehearing certified to this Court the following question as being one of great public interest:

WHETHER A TRIAL COURT MUST REINSTRUCT .THE JURY UPON ALL DEGREES OF HOMICIDE AND/OR UPON JUSTIFIABLE AND EXCUSABLE HOMICIDE UPON TIMELY REQUEST THEREFOR WHERE THE COURT REINSTRUCTS UPON FIRST AND SECOND DEGREE MURDER AFTER A REQUEST BY THE JURY TO CLARIFY THE “DIFFERENCE IN MURDER IN THE FIRST DEGREE AND MURDER IN THE SECOND DEGREE”?

We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, to entertain the certified question, and in accordance therewith, we answer it in the negative.

In Hysler v. State, 85 Fla. 153, 95 So. 573 (1923), this Court established the principle that it is proper for a judge to limit the repetition of the charges to those specially requested as any additional instruction might needlessly protract the proceedings. We echoed this principle in Hedges v. State, 172 So.2d 824 (Fla.1965), but added the caveat that the repeated charges should be complete on the subject involved. Id. at 826. This view is shared by numerous courts from diverse jurisdictions. United States v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970); United States v. Salter, 346 F.2d 509 (6th Cir. 1965); Whiting v. United States, 321 F.2d 72 (1st Cir. 1963), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Apel v. United States, 247 F.2d 277 (8th Cir. 1957); Allen v. United States, 186 F.2d 439 (9th Cir. 1951); People v. Schader, 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d 841 (1969); Jones v. State, 234 Ga. 108, 214 S.E.2d 544 (1975); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Creamer v. State, 229 Ga. 704, 194 S.E.2d 73 (1972); Waldrop v. State, 221 Ga. 319, 144 S.E.2d 372 (1965); Carrigan v. State, 206 Ga. 707, 58 S.E.2d 407 (1950); Hatcher v. State, 18 Ga. 460 (1855); East v. State, 339 So.2d 1104 (Ala.Cr.App.1976); Bennett v. State, 108 Ga.App. 881, 134 S.E.2d 847 (1964); Kimberly v. State, 4 Ga.App. 852, 62 S.E. 571 (1908); State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971); State v. Murray, 216 N.C. 681, 6 S.E.2d 513 (1940); State v. Hamilton, 23 N.C.App. 311, 208 S.E.2d 883 (1974); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). Furthermore, it is generally recognized that the feasibility and scope of any reinstruction of the jury is a matter residing within the discretion of the trial judge. See Committee Note, Rule 3.410, Florida Rules of Criminal Procedure; United States v. Salter, supra; Whiting v. United States, supra; Allen v. United States, supra; Jones v. State, supra; Shouse v. State, supra; Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975); Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); State v. Frandsen, 176 Wash. 558, 30 P.2d 371 (1934); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Section 5.3(b), see commentary. The question before this Court then is whether the trial judge abused his discretion and gave an incomplete instruction on the subject involved in reinstructing only upon first and second degree murder where the jury asked him to clarify the difference between the two offenses.

After the jury specifically asked the trial court to clarify the “difference” between first and second degree murder, the judge responded to counsel on the record as follows:

I see they did not ask any questions concerning the other degrees of homicide, I feel it would be unnecessary and in fact possibly be confusing to reinstruct the Jury on the other degrees of homicide. T-268
Gentlemen, the Jury has asked to be reinstructed. In my opinion, on murder in the first degree and murder in the second degree, if either one of these standard charges made any reference whatsoever to the other degrees, I would then. T-269
But, I feel without being asked to do so by the Jury, it would be unnecessarily confusing to them, and apparently they have no problem whatsoever with the remaining charge. T-269-270.

We can find no abuse of discretion in limiting reinstruction to a direct response to the jury’s specific request. Indeed, to do otherwise might not only create confusion in the minds of the jurors but might give the appearance of placing the trial judge in the role of an interested advocate rather than an impartial arbiter. See East v. State, supra. We also note that requiring the court to repeat all of its original instructions whenever the jury requests additional instructions upon a particular point would be both exhausting and time-consuming to the court, the jury, 'and the parties. The result might be a jury which is deterred from requesting and a court which is restrained from giving, supplemental instructions to help clarify a particular issue. People v. Sehader, supra.

Petitioner contends that the restricted reinstruction of the jury below was error because instructions on homicide must be considered as a whole. Inasmuch as each degree of homicide is defined as an “unlawful” killing, it is petitioner’s position that to fully explain an “unlawful” killing, the court must also construe “lawful” killings. In reliance upon this proposition, petitioner cites Hedges v. State, supra. In Hedges, the petitioner was indicted for first degree murder of her paramour and was subsequently convicted of manslaughter. Initially, the trial judge instructed the jury on all degrees of unlawful homicide in addition to instructing on justifiable and excusable homicide. After the jury deliberated some six hours and recessed for the night, a spokesman for the jury requested the following from the court:

We would like for you to go over the different degrees that were stated the other day. There is some confusion as to the different charges there.
172 So.2d at 825.

The judge then repeated his charge on the degrees of unlawful homicide but denied the request of petitioner’s attorney to include his charge on justifiable and excusable homicide. Counsel for petitioner had suggested that the statute which defines manslaughter specifically excluded justifiable and excusable homicide, thereby making any definition of manslaughter without reference to the other two types of homicide incomplete. Following the affirmance of the ruling of the trial judge by the District Court of Appeal, Second District, this Court invoked its conflict certiorari jurisdiction and quashed the decision under review. After quoting the language of Section 782.-07, Florida Statutes (1975), the manslaughter statute, the Hedges Court noted that the specific crime of manslaughter is in the nature of a residuary offense.

If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions.
172 So.2d at 826 (emphasis supplied).

Thus, the specific holding in Hedges was that where a jury specifically requests rein-struction on the “different degrees” of the charges levied, and, accordingly, the court reinstructs on manslaughter and the other degrees of unlawful homicide, the court is then compelled to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter. See Brown v. State, 294 So.2d 347 (Fla. 4th DCA 1974) (Poulton, Associate Judge, dissenting). The jury in Hedges was given an incomplete instruction with regard to manslaughter. In the instant case, the jury was not rein-structed on manslaughter but was recharged exclusively on first and second degree murder. When the initial jury instruction on manslaughter was given, so were the charges on justifiable and. excusable homicide. Consequently, petitioner’s reliance upon Hedges v. State, supra, is misplaced.

Petitioner’s argument that the jury’s understanding of any “unlawful killing” must necessarily depend on its comprehension of “lawful killings” is persuasive. It is obvious that before the defendant can be convicted of any unlawful killing, the jury must conclude that the homicide was not lawful. However, in the case sub judice, it is apparent that the jury had already made that determination by requesting merely a clarification of the “difference” between first and second degree murder. Had they not determined whether the homicide was lawful or unlawful, they would have solicited reinstructions on justifiable and excusable homicide or the other degrees of unlawful homicide, or both. We can contemplate numerous situations where the jury’s request does not suggest necessarily that they have already determined whether a homicide has been lawful or unlawful. In those situations, the defendant is entitled to reinstructions on lawful homicide. However, the precise question certified to this Court does not require us to speculate as to those situations presently and we decline to do so. We" hold that on the facts of this case, the trial judge did not abuse his discretion in limiting reinstruction to an unambiguous response to the jury’s request.

Accordingly, the certified question is answered in the negative and the decision of the District Court of Appeal, Fourth District, is approved.

It is so ordered.

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

      . 350 So.2d 512 (Fla. 4th DCA 1977)

      . In Stills v. State, 272 So.2d 174 (Fla. 1st DCA 1973), the District Court of Appeal, First District, was presented with a situation closely analogous to the case sub judice. The court relied on Hedges v. State, supra, in reversing the trial judge because he did not reinstruct the jury on justifiable and excusable homicide. Basing its decision on Stills v. State, supra, the District Court of Appeal, Fourth District, in Brown v. State, supra, also held that where the court reinstructed the jury as to first and second degree murder, it was reversible error not to comply with defendant’s request to instruct on justifiable homicide, excusable homicide, third degree murder, and manslaughter. To the extent that these cases directly and indirectly misconstrued the rationale of Hedges, they are hereby overruled.

      . This is so particularly in view of the fact that while supplemental instructions must be considered as a whole and must be viewed in the light of other instructions already given, they cannot reasonably be considered as other language in the basic charge, since the jury will rely more heavily on such instructions than on any single portion of the original charge. United States v. Carter, 491 F.2d 625 (5th Cir. 1974); United States v. Abbadessa, 470 F.2d 1333 (10th Cir. 1972); United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971); Brown v. Baldwin, 356 F.Supp. 831 (D.C.Mo.1973).