author: BOWEN, Judge.

text:
    Lovetta MARTIN, alias Walker v. STATE.
    3 Div. 7.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Rehearing Denied May 22, 1979.
    Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for grand larceny and sentenced to five years’ imprisonment.

The defendant entered Delchamps Grocery Store on the Atlanta Highway in East Montgomery around 7:45 on the evening of March 12, 1978. She walked around the store and placed some items in her grocery cart. She went to the meat case and got two packages of bacon and fourteen hams and also placed them in her cart. The defendant then went to one of the aisles and “started putting it all in her purse” or diaper bag. She put the meat in the bag and left the other items in the cart. When confronted by the store manager and repeatedly asked what she had in the bag, the defendant said “nothing” and that she “didn’t have anything in the bag”.

The defendant “dumped” the meat back into the meat case when the store manager told her he was going to call the police. The defendant then left the store.

I

The defendant contends that the State did not prove the element of asportation in the crime of larceny. In Jones v. State, 55 Ala.App. 274, 314 So.2d 876, cert. denied, 55 Ala.App. 277, 314 So.2d 879 (1975), it was held that in a prosecution for larceny based upon a charge of shoplifting, evidence that the defendant had been observed by a store security guard taking a sweater, rolling it up and placing it under her blouse and that, after her apprehension, she also disgorged a pair of trousers and claimed that she had found them on the floor was sufficient to permit a finding of asportation even though the defendant never took the merchandise from the store premises.

In Harris v. State, 57 Ala.App. 253, 327 So.2d 748 (1976), the defendant placed some phonograph records in a paper bag and left through an unattended cash register aisle without paying. Affirming the conviction this court wrote:

“In this ease — because of the use of a check-out counter system — the completed act of asportation did not occur until the two thieves went past or evaded the place of payment, i. e., the designated cash register.1 Immediately after they passed that point they were halted with the goods in hand.” Harris, 57 Ala.App. at 253, 327 So.2d at 748.

íhe footnote in this quoted material cites Jones, supra.

Jones makes it perfectly clear that, if a shopper moves merchandise from one place to another within a store with the intention to steal it, there has been asportation and the shopper may be found guilty of larceny. However taking goods openly from one place in a store to another does not constitute asportation.

The Harris case is not authority for the proposition that, for there to be larceny from a store using a check-out counter system, the completed act of asportation cannot occur until the individual takes the goods past the place of payment. The statement in Harris which appears to support such a holding is mere obiter dictum and not necessary or essential to the court’s determination of the merits of that case. To the extent that Harris may or could be construed as supporting such a proposition it is hereby expressly overruled. The correct rule of asportation is stated in Jones, supra.

In McKinnon v. State, 342 So.2d 24, 26 (Ala.Cr.App.), cert. denied, 342 So.2d 27 (Ala.1976), this court wrote:

“By concealing the albums underneath his coat and running from the building, the defendant acquired control over the property. In our judgment, the taking and asportation was completed when he concealed the items in his coat. See: Jones v. State, 55 Ala.App. 274, 314 So.2d 876.”

This issue is due to be decided against the defendant on authority of Jones, supra.

II

After the jury had begun its deliberations, the court, at the request of the jury, read a brief portion of the testimony which related to whether the defendant’s bag was closed after the meat was placed inside. This testimony was not contradicted by any other witness. The defendant did not present any testimony in her defense. The reading of the testimony was within the sound discretion of the trial judge. Cooper v. State, 340 So.2d 91 (Ala.Cr.App.1976); Johnson v. State, 3 Ala.App. 155, 57 So. 499 (1912).

We have searched the record and found no error prejudicial to the defendant. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges Concur.


source: Caselaw Access Project

author: CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Jerry PARKER v. STATE.
    5 Div. 442.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Rehearing Denied May 22, 1979.

      John A. Tinney, Roanoke, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

The major issue presented on appeal is whether there was sufficient evidence to support appellant’s conviction of grand larceny. Appellant contends that there was no evidence connecting defendant with the crime other than that of his two accomplices. Appellee takes the position that one of the two was not necessarily an accomplice and further that, even if he were, there was corroborative evidence of defendant’s guilt.

On December 28, 1977, eighty-seven dollars in cash was taken from the cash register of a service station of Charles Lee Burks in Roanoke, Alabama.

Mr. Burks testified that Jerry Parker, Harvey James Owensby and Harvey Holli-day came to his filling station on the morning of December 28, 1977; that he (Mr. Burks) checked the oil in the automobile in which they were riding; that Jerry Parker entered the store at that time and bought a package of cigarettes. Thereafter Mr. Burks rang up the fifty-five cent sale and gave Parker forty-five cents in change. Parker, Owensby and Holliday then left in the automobile. Soon thereafter on the same morning all three returned to the station and one of them requested that Burks put some oil and gas in the automobile. According to Mr. Burks’ further testimony, he was paid for the gas and oil by one of the three men, who again rode off in the automobile. Promptly thereafter Mr. Burks was in the process of registering the sale on his cash register and while doing so noticed that an unauthorized ninety-nine-dollar sale had been registered thereon. He found the sum of eighty-seven dollars missing from his cash register. Police were promptly called, and the three men were apprehended. Both Owensby and Holliday testified for the State on the trial. Their testimony, if true, was unquestionably sufficient to show that Parker took the eighty-seven dollars from the cash register.

There is no disagreement between the parties as to the legal question of the sufficiency of evidence to corroborate testimony of accomplices. A resolution of the factual issue on the point revolves around a dispute or misunderstanding as to a principal part of the testimony of Mr. Burks. Appellant in his brief says that such testimony was as follows:

“Mr. Burks testified that the car with the three (3) individuals returned and someone requested that he put some gas and oil in the car (See Record Pages 25-27). He testified that all three (3), Parker, Owensby and Holliday got out of the car and that two (2) stayed with him while the third went somewhere. Mr. Burks could not identify Jerry Parker as being the one who did not stay with him (see Record Page 33). Mr. Burks further testified that he never saw Jerry Parker in the store other than when he sold him the Kool Cigarettes (See Record Pages 28 and 35).”

Appellant is correct in indicating that there was uncertainty upon the part of Mr. Burks as to which of the three men went out of the presence of Mr. Burks while he was servicing the automobile. He is not correct, however, if he means that there was no testimony of Mr. Burks that Parker did not leave the car and go elsewhere during that time. To the contrary, Mr. Burks testified upon cross-examination as follows:

“Q My question was, did you see — you testified earlier that you saw Jerry Parker coming out of the store the second time. Then, later on, in answer to the Judge’s question, you said, ‘No, I can’t say Jerry Parker came out.’ Now, which one is the one that you want to rely on?
“A Well, the other two — well, the second time, I am sure that the other two was out there with me all the time.
“Q Is it your testimony that Jerry Parker went back into the store that’s the second time they came back?
“A That’s my testimony, that he wasn’t out there with me the other two was, I don’t know where he was.
“Q Is it your testimony he went in the store?
“A Well, I couldn’t say whether he did or didn’t but somebody did.
“Q So, you are not telling this jury that Jerry Parker went in that store the second time they came, are you?
“A Well, there wasn’t nobody else around there.
“Q But, you are not telling them definitely that you saw Jerry Parker go into that store.
“A I did not see him go into the store.
“Q And, you are not telling the court, definitely for sure that you remember that Jerry Parker wasn’t standing out there as one of the other two, are you?
“A Yes sir. Because, the other two were short, and Jerry was tall, I remember that.
“Q But you didn’t see anybody go into the store?
“A I did not.”

The quoted testimony, in connection with the other testimony which shows almost conclusively that no one else was in the store at the time the money was taken from the cash register, constitutes substantial circumstantial evidence of appellant’s guilt. This being true, there is no necessity for a discussion of whether both of the other two men were accomplices to the crime.

Appellant also contends that the court committed reversible error in overruling defendant’s objection to a part of the closing argument of counsel for the State as shown by the following:

“What are you doing, if you come back with a verdict of not guilty, you are sentencing the citizens of this County, and we will be going through that again within a three (3) month period of time. I guarantee you, it never fails, a man will be back in Court the next term of Court, if not sooner.
“JOHN TENNEY — We object to that.
“COURT — Overruled.”

Appellant argues that the particular argument indicates “that this man was a repeat offender.” We do not think so. Although there is some ambiguity in the argument, we construe it as argument to the effect that defendant would be a repeat offender within three months if he was found not guilty. It is clear, we think, that it was not based on a criminal record of defendant, if any, but upon the attorney’s conclusion as to the propensity of criminals in general that unless punished they will continue to commit crimes. Any reasonable jury could be expected to discount fully the mathematical inaccuracy and exaggerated features of the argument. Such inaccuracy and such features were patently hyperbolic. Without approval of the hyperbole, the license given it by rhetoric forbids our condemnation of it. Reasonable people recognize it promptly as figurative language and do not accept it literally. The court could have well sustained defendant’s objection but did not commit reversible error in overruling it.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Willie Earl KENNEDY v. STATE.
    1 Div. 9.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.

      W. Clint Brown, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Paul E. Johnson, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the first degree of his wife and sentenced to imprisonment for life.

The evidence shows without conflict that the victim was killed almost instantly in the home of the married couple by shots from a pistol. There was strong evidence, direct and circumstantial, that the pistol was fired at the victim by the defendant intentionally, deliberately, maliciously and with premeditation. On the other hand, there was some evidence, consisting of testimony of defendant and corroborated by some of the circumstances, that tended to show that the pistol was discharged accidentally while defendant and his wife were scuffling over the pistol, and that tended to show that defendant was acting in self-defense. The evidence in its most favorable light to defendant presented a jury question on the issue of his guilt as raised by his plea of not guilty. Appellant makes no contention to the contrary.

Defendant also pleaded not guilty by reason of insanity. There was a definite conflict in the evidence on that issue with some witnesses, expert and lay, testifying he was insane and some that he was sane. That issue was also one for the determination of the jury, and there is no contention to the contrary.

No further discussion of the evidence would be of value, other than such as may shed some light upon legal questions presented on appeal, which we now consider.

Appellant takes the position that the trial court was in error in permitting in evidence an incriminating statement made by him about eighteen hours after the homicide. There was considerable evidence that defendant was intoxicated at the time of the homicide and at the time he was arrested and taken to jail about one hour thereafter, at which time he signed an incriminating statement. However, the statement signed by him the night of the homicide was not offered in evidence. Appellant argues that the statement signed by defendant some eighteen hours after the homicide, which was some sixteen hours after the first statement was made, was infected by the vitiating quality of the first statement.

No effort was made to show an incriminating statement or confession by defendant during the course of the presentation of the State’s case. While defendant was testifying on cross-examination, counsel for the State for the first time referred to such statement. Immediately thereafter, the court excused the jury and conducted a preliminary hearing on the question of the admissibility of such statement or statements. The court concluded and ruled that the statement made the night of defendant’s arrest was not admissible, but that the subsequent statement was admissible. Neither party seemed to contend otherwise as to either, and any issue between the parties as to the admissibility of the second statement was certainly not well delineated by either party.

Although the question is now presented for the first time as to whether the second statement was the infected fruit of a poisonous tree, we conclude that it was not. The sole basis for the rejection of the first statement was the intoxication of defendant. There was no force, express or implied, no improper inducement, no coercion of any kind, and defendant was fully advised and warned as to all of his pertinent constitutional rights. In concluding that the first statement was not admissible by reason of the state of defendant’s intoxication, the court impliedly determined that he was so intoxicated at the time that he was “unconscious of the meaning of his words.” Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977); Balentine v. State, Ala.Cr. App., 339 So.2d 1063, cert. denied Ala., 339 So.2d 1070 (1976); Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976). Such conclusion should logically dispel the notion that the relation of cause and effect existed between the making of the first statement and the making of the second.

Cagle v. State, 45 Ala.App. 3, 221 So.2d 119, cert. denied 284 Ala. 727, 221 So.2d 121 (1969), is readily distinguishable, in that in making the second statement in Cagle, defendant said, “I have already given the Chief a statement [held inadmissible for failure to warn and advise him of his rights], and I might as well give one to you, too.” 221 So.2d 120.

Appellant bases another claim of prejudicial error upon action of the trial court during the testimony of David R. McBride, Jr., a witness for the State on rebuttal of evidence presented by defendant tending to show he was insane. After the witness had identified himself as a next-door neighbor of defendant for approximately four years arid had seen him “about every day,” the following occurred:

“Q Saw him about every day. Do you have an opinion as to whether or not, based on your observing Mr. Kennedy for four and a half years, living next door to him, do you have an opinion as to whether or not he was suffering any mental disease?
“MR. LOVELESS: I object, Your Honor.
“THE COURT: Overruled. Perfectly admissible.
“Q In other words, was he suffering from any mental disease or was he — was he sane or insane, in your opinion?
“MR. LOVELESS: Object again and state for the record he’s not trying to be an expert in any way. No predicate laid for this.
“THE COURT: It’s not necessary in the State of Alabama to be an expert, which I will charge the jury. Go ahead. Overruled.
“A Well, not to me. Like I say, I just spoke to him, mostly. We had one run in one time . . (unintelligible), you know.
“MR. LOVELESS: Excuse me, I couldn’t understand what he said.
“A I said we had one run in once.
“Q Well, I asked this, the question, was he insane or was he not insane, in your opinion, your own opinion?
“A Not to me.
“Q Not to you he wasn’t.”

The quoted portion of the record lacks desirable clarity to enable us to appraise it with fairness to all concerned. As to the first question to which an objection was made, it is to be noted that it was never answered, even though an objection to it was overruled. It is also to be noted that there was no specific ground of objection. As to the second question, which seems to contain two questions in the alternative, the objection in part was that “he’s not trying to be an expert in any way. No predicate laid for this.” Such objection was apparently construed by the court as implying that a non-expert witness could not testify as to the sanity of another. We should note also that after the last ruling of the court on the matter, counsel for the State asked the witness another question substantially the same as one of the alternatives of the immediately preceding question, and there was no objection to the succeeding question. Furthermore, it was repeated. No objection was made to the repetition, and his answer was repeated.

The law is clear that a notion to the effect that only an expert witness can testify that in his opinion another is sane is erroneous. It is also clear that a lay witness should not be allowed to testify that another is sane unless it is shown that he had an adequate opportunity to observe the person and had not observed any abnormal or irrational acts on his part.

“It is- a generally recognized exception to the opinion rule that a witness, lay or expert, may give his opinion as to the sanity of another person.
“We have seen that, as a condition precedent to a lay witness opinion that another is sane, it must first be shown that the witness had an adequate opportunity to observe the person and that he has not observed any abnormal or irrational acts of such person. . . . ” Gamble, McElroy’s Alabama Evidence, § 128.01 (1977).

Irrespective of whether the witness had been sufficiently qualified to express an opinion that defendant was sane, it appears to us that, in considering the grounds of objections stated, the court was probably justified in concluding that defendant was objecting on the ground that the witness was not an expert and that the language in the objection, “No predicate laid for this,” was referable to the predicate necessary to qualify one as an expert witness.

To complete the picture as to any prejudicial error in connection with the testimony of this particular witness, we should also state that upon cross-examination of him, he disavowed an opinion as to the sanity or insanity of defendant. His testimony on cross-examination was rather lengthy, but part of it, without contradiction with any other part, was as follows:

“Q Oh, you didn’t say he was sane?
“A No, I didn’t.
“Q Do you know what it means to be sane, what the term sanity refers to?
“A I’ve never been there before.
“THE COURT: If a person is sane they are normal, like everybody else. If a person is crazy, they are different from everybody else. Okay?
“Q You consider Willie to be normal like everybody else?
“A Tell you the truth, I couldn’t say, like I say, all I did was speak to him.
“Q You couldn’t say?
“A All I did was talk to him, like I say.”

Notwithstanding the ambiguity of the witness’ testimony, for which he was not solely responsible, it is clear that it was not harmful to either party. Whether erroneously admitted or not, it was innocuous.

At the conclusion of the direct examination of defendant as a witness, he was asked, “Willie, have you ever been convicted of a felony,” to which his answer was, “No, sir.” From that question and answer State’s counsel proceeded to interrogate him as to his understanding of the meaning of the word “felony,” and defendant volunteered that he had never been convicted of a crime. His testimony on cross-examination continued as follows:

“Q You are not including every possible thing that you could have been charged with, are you?
“MR. LOVELESS: Now, I’m going to object. If he knows he can only ask about crimes — felonies involving moral turpitude and misdemeanors cannot be inquired into.
“THE COURT: He has the right to question the Defendant. Any objections, I’ll rule on them.
“MR. LOVELESS: All right, let him ask the question.
“Q Are you saying that you have never been charged with any crime? Is that what you are saying?
“MR. LOVELESS: I object to that.
“THE COURT: I sustain the objection.
“Q Do you understand what a felony is, Mr. Kennedy?
“MR. LOVELESS: If the State has a felony involving moral turpitude, let them produce it.
“THE COURT: No, no, he has a right to ask questions.
“Q Do you understand what a felony is, Mr. Kennedy?
“A No, I don’t believe I do.”

There was no further objection by defendant to questions asked on cross-examination until the following:

“Q Now, getting back to when you said you had never been convicted of any crime . . . ?
“MR. LOVELESS: He didn’t say that.
“Q Well, are you saying that?
“A Well, I been convicted of a lot of things, you know, I didn’t do, you know.
“Q What was your answer to that? I didn’t hear it.
“MR. LOVELESS: Your Honor, he heard it and it’s now prejudicial. He knows he cannot go into misdemeanors. Move for a mistrial.
“THE COURT: Denied.”

Appellant says there was error in the court’s denial of the motion for a mistrial.

In cross-examining a witness for the purpose of impeaching him by showing the commission of a crime involving moral turpitude, care should be exercised so as not to include an offense that does not involve moral turpitude. A failure to observe this principle resulted in a reversal in Johnson v. State, 15 Ala.App. 298, 73 So. 210, cert. denied, 198 Ala. 692, 73 So. 1000 (1916) and in other cases noted in Gamble, McElroy’s Alabama Evidence, 145.01(17) (1977). Whether the question asked defendant by his counsel as to any conviction of him for a felony, which could include crimes not involving moral turpitude, triggered the questions by State’s counsel that were not limited to crimes involving moral turpitude may be debatable, but every objection made by defendant to a question answered by him as a witness was sustained by the court.

The only ruling adverse to defendant in connection with the cross-examination of defendant on the subject of any prior conviction was the denial of defendant’s motion for a mistrial. In moving for a mistrial, counsel for defendant stated, inter alia, “He knows he cannot go into misdemeanors.” The statement is obviously incorrect. The felony-misdemeanor dichotomy is not the test. Moral turpitude vel non is the sole criterion. Ala.Code 1975, § 12-21-162. Moreover, we conclude there was nothing so highly prejudicial in any part of the cross-examination of defendant on the subject, which to some extent was introduced by defendant, as to justify a mistrial. The motion therefor was properly denied.

We have searched the record for error prejudicial to defendant and have found none. The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Sammie Lee TOLER v. STATE.
    1 Div. 25.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    George K. Elbrecht, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Appellant was charged by indictment with the second degree murder of one Otto Kidd “by shooting him with a rifle,” etc. The trial jury, using a verdict form given in the trial court’s oral charge, returned a guilty verdict, which reads as follows:

“VERDICT
“We, the jury, find the defendant guilty of murder in the second degree as charged in the indictment.”

Following the return of the jury’s verdict, the trial court entered judgment of conviction and imposed sentence at fifteen years imprisonment.

I

We pretermit discussion of other facts of the instant case in light of the error committed at sentencing. Section 15-18-20, Code of Alabama 1975, reads as follows:

“Offense punishable by imprisonment in penitentiary or hard labor in county jail. “When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury. (Code 1852, § 258; Code 1867, §§ 3782, 3806; Code 1876, §§ 4484, 4506; Code 1886, § 4494; Code 1896, § 5415; Code 1907, § 7623; Code 1923, § 5278; Code 1940, T. 15, § 328.)”

The specific statute relating to this issue, Section 13-1-74, Code of Alabama 1975, states:

“Punishment — Generally.
“Any person who is guilty of murder in the first degree shall, on conviction, suffer imprisonment in the penitentiary for life, unless otherwise specified by law; and any person who is guilty of murder in the second degree shall, on conviction, be imprisoned in the penitentiary for not less than 10 years, at the discretion of the jury. (Code 1852, § 112; Code 1867, § 3654; Code 1876, § 4296; Code 1886, § 3729; Code 1896, § 4858; Code 1907, § 7088; Code 1923, § 4458; Code 1940, T. 14, § 318.)”

See also, Thomas v. State, Ala.Cr.App., 365 So.2d 1013, cert. denied, 365 So.2d 1014 (1979); Ex Parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955); Smith v. State, 23 Ala.App. 72, 121 So. 692 (1929); Tanner v. State, 23 Ala.App. 116, 121 So. 693 (1929); Bates v. State, 170 Ala. 26, 54 So. 432 (1911); Washington v. State, 125 Ala. 40, 28 So. 78 (1900).

In the instant case the trial judge set punishment in contravention of the above authorities. In murder cases punishment must be set by the jury.

For the error shown, this cause is due to be and is hereby

REVERSED AND REMANDED.

All the Judges concur.


text:
    Frank Herman SMILEY v. STATE.
    3 Div. 40.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.

      Tyrone C. Means, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

One of the two issues expressly presented on appeal was first raised in the trial court by a motion for a new trial. It was alleged therein that the verdict and judgment convicting defendant of burglary and grand larceny should be set aside on the ground, inter alia, as follows:

“23. That the foreperson of the jury is an Assistant Attorney General of Alabama and therefore ineligible to serve as a juror in this cause and prevented the defendant from having a fair, just and impartial trial.”

It is argued by appellant that he was “misled” by the statement made by the particular juror that she was an' “attorney,” in response to a question by the court as to the occupation of each of the jurors from whom the jury to try this case was selected; it is further argued that defendant did not know that the juror was assistant attorney general of Alabama until some time after the trial. We cast no shadow whatever on such contention in emphasizing our function to look to the record, and only to the record, as to what occurred in the court below. Neither in the motion for a new trial nor in any other part of the record is there any claim, contention or showing of any kind, that defendant did not know prior to the selection of the jury that said juror was an assistant attorney general.

The rule to govern us is succinctly stated in Williams v. State, Ala., 342 So.2d 1328, 1329, as follows:

“We state the rule thusly: A motion challenging the composition of a grand jury, a petit jury, or qualifications of individual jurors, filed after the com-mencment of trial, must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence.” (emphasis supplied).

Whether the trial court would have granted the motion for a new trial if there had been an allegation and proof that defendant had been misled is not for us to say, but in the absence of such allegation and proof we are precluded from holding that the trial court erred in overruling the motion for a new trial.

The only other insistence of appellant is that the court erred in denying a motion for a mistrial under circumstances as follows:

“Q Now the next day, did you have an occasion to show the group of pictures to Mrs. Vinson?
“A Yes, sir, they had both said that it was Frank Herman Smiley that had burglarized their residence; and just to be positively sure, I was going to take a ‘mug shot’ lineup.
“MR. MEANS [Defendant’s attorney]: Objection, Your Honor; and I move for a mistrial.
“THE COURT: Overruled.
“MR. POOL [State’s attorney]: I ask that ‘a mug-shot’ be stricken, Judge.
“THE COURT: It’s out.
“Q (By Mr. Poole): Did you carry a group of pictures out there?
“A Yes, sir.
“Q And did Mrs. Vinson view that group of pictures?
“A Yes, sir.
“Q And was Frank Herman Smiley’s picture in that group of pictures?
“A. Yes, it was.”

The use of the expression “mug shots” or the like in referring to pictures taken of a defendant should be avoided but, in the absence of extraordinary circumstances not shown here, is not of such a highly prejudicial nature as to require a mistrial. We so held in Garner v. State, 53 Ala.App. 209, 298 So.2d 630, 631, cert. denied 292 Ala. 721, 298 So.2d 633 (1974). In Garner, the prosecuting attorney used the term. Neither the prosecuting attorney nor the prosecutor used the term mug shot in the instant case. It is found in an answer to a witness for the prosecution, and the prosecuting attorney promptly moved that the term be stricken, and the trial judge effectively excluded it by saying, “It’s out.” Its action does not constitute prejudicial error.

Defendant vigorously denied his guilt, testifying that the witnesses for the State could have easily mistaken him for another well known person in the community, and further testifying that he was not at the premises burglarized when the burglary occurred. Other witnesses corroborated his alibi claim. Witnesses for the State were positive in their identification of him. A jury question as to this guilt was presented by the evidence, and there is no contention to the contrary.

We have found no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Larry GOLSTON v. STATE.
    6 Div. 479.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.

      Charles W. Shults, Jr., Neighborhood Legal Clinic Services of Hodges & Shults, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Appellant was indicted for the robbery of one Horace William Kellum of $3900.00 “from his person and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same,” etc. (R. p. 222) The jury found appellant guilty and fixed punishment at ten years imprisonment. The trial judge set sentence in accordance with this verdict. From the denial of his motion to exclude the State’s evidence, appellant prosecutes this appeal.

Appellant allegedly participated, along with three or four other men, in the robbery of the Fairmont Foundry in Jefferson County, Alabama, on July 11, 1975. Horace William Kellum, an employee of the foundry, testified that he was present when the robbery occurred. He stated that three men, armed with pistols, entered the foundry office while a fourth waited outside the office entrance. One of the men, later identified to Mr. Kellum as Gibson, demanded the payroll money which Mr. Kel-lum turned over. Mr. Kellum stated that he did not see appellant during the robbery.

After obtaining the money, the robbers exited the office and commandeered Mrs. Virginia Vann’s automobile. Mrs. Vann and three-year-old Brant Powell were waiting in the parking lot for Brant’s mother, who had entered the foundry office to pick up her husband’s paycheck. Mrs. Vann testified that appellant came to the window on the driver’s side where she was seated, pointed a pistol at her, and demanded that she relinquish her automobile. Mrs. Vann insisted that she get Brant before the men could have her automobile. Mrs. Vann and Brant then ran into the foundry office while the robbers drove away in her automobile.

Mrs. Vann stated that she identified appellant at a lineup as being the man who ordered her to give him her automobile. Mrs. Vann also identified a photograph of appellant as being a participant in the robbery.

William Powell was present in the foundry office when the robbery occurred. At trial he testified that appellant was the fourth participant who stood outside the entrance to the office. Mr. Powell stated that his lineup identification of appellant was not positive because the setting and circumstances had made him very nervous and uneasy. At trial, however, he was certain of his identification of appellant.

During the State’s case in chief and during cross-examination of State’s witnesses, reference was made on numerous occasions to a drawing of the layout of the foundry office. Witnesses Kellum and Powell showed their relative positions during the course of the robbery by using this nonscale diagram.

The trial judge denied appellant’s motion to exclude the State’s evidence, which motion was grounded on an alleged fatal variance between the indictment and the proof.

Lou Ray Driver testified for the defense that he and four others planned the robbery of the Fairmont Foundry on July 11, 1975. Driver stated that he plead guilty and was currently serving a prison term for his role in the robbery. Driver stated that appellant did not participate in the robbery. Driver would not, however, name the individuals who did participate in the robbery because he said, if he did, he would forfeit his life. It was shown that Driver had previously served ten years in prison for murder.

Appellant Golston presented further testimony, which, if believed by the jury, would have placed him at another location at the time the robbery occurred. Following this testimony, the defense rested, the court delivered its oral charge, and the jury retired to consider its verdict.

I

Appellant alleges a fatal variance exists between the pleading and the proof in that it was not shown that Horace William Kellum either owned, possessed, or was charged with the responsibility of the payroll’s safekeeping.

In Mays v. State, Ala.Cr.App., 335 So.2d 246, 248 (1976), this Court stated:

“The appellant contends that the evidence showed that the money was taken from the cash registers in the front of the store and the indictment charged the appellant with the robbery of Andy McClain, hence, there is a variance between the pleading and the proof. To sustain a charge of robbery it is not necessary that the stolen property be in the actual physical contact with the person of the victim, but it is sufficient if the property is taken from his presence or personal protection. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Moreover, in an indictment for robber^, ownership of the stolen property is properly laid in the party in possession, either as owner, or bailee, or agent. See Bray v. State, 47 Ala.App. 308, 253 So.2d 531, and authorities therein cited.
“It is not necessary that title be in the person robbed. Douglass v. State, 21 Ala. App. 289, 107 So. 791. Bowman v. State, 44 Ala.App. 331, 208 So.2d 241.”

See also, Moseley v. State, Ala.Cr.App., 357 So.2d 390 (1978).

Clearly, no error is shown.

II

Appellant alleges error to reversal occurred when the nonscale diagram of the foundry office was allowed into the jury room without having been introduced as an exhibit at trial.

In Gamble v. State, 48 Ala.App. 605, 608, 266 So.2d 817, 820 (1972), this Court stated:

“ ‘Demonstrative or real evidence, or evidence by inspection, is such evidence as is addressed directly to the senses of the court or jury without the intervention of the testimony of witnesses, as where various things are exhibited in open court.’ 32 C.J.S., Evidence, p. 454, § 601; Under-hill’s Criminal Evidence, 4th Ed., pp. 148, 168, Sections 115, 125; Chamberlayne Trial Evidence, Tompkins 2nd Ed., pp. 603, 613, Sections 632, 642; Wigmore on Evidence, Vol. 1, p. 222; See. 24, Vol. 2, p. 672, See. 1151; Wigmore’s Code of Ev., p. 223, Rule 136; 20 Am.Jur., p. 600, See. 716; Jones Evidence, Vol. 3, p. 2518, See. 1376. The tenor of its proffer is immaterial. It becomes evidence—the fact it imports—when it is properly identified and exhibited before the jury in open court for their inspection. Of such import are the foregoing authorities.”

See also Gamble, McElroy’s Alabama Evidence (3d Ed. 1977), § 425.01(15), and cases therein cited.

In the instant case, the nonscale office diagram was repeatedly referred to by both parties on direct and cross-examination. Thus, both parties treated the diagram as evidence in the jury’s presence. Hence, no error is shown.

Ill

Appellant alleges a violation of his constitutional right to the use of compulsory process under the Sixth Amendment to the United States Constitution when the trial court refused to issue his requested writ of habeas corpus. After careful examination of appellant’s petition, praying that the Court produce the alleged co-defendant, William Gibson, we are of the opinion that appellant failed to comply with § 12-21-225, Code of Alabama 1975, which reads in pertinent part:

“. . . Moreover, upon the sworn petition of the defendant in a criminal prosecution showing that a convict serving sentence in the penitentiary knows facts which would be beneficial to him, the judge may, if he believes the ends of justice will be served thereby, order the issuance of such a writ to secure the appearance of the convict to testify on behalf of the defendant. . . . ”

In Magee v. State, 43 Ala.App. 218, 223, 187 So.2d 274, 279 (1966), this Court stated:

“Summarizing § 61 [§ 12-21-225], as amended, supra, we note in criminal prosecutions the defendant takes the following steps to get the personal presence of a penitentiary prisoner in his behalf:
“1) File a sworn petition with trial court; and
“2) Show therein facts known by the convict witness ‘which would be beneficial to’ the defendant.”

See also, Mayes v. State, Ala.Cr.App., 350 So.2d 339 (1977).

In the instant case, petitioner failed to show facts known by the convict witness which would be beneficial to the appellant. Thus, the conditions precedent in the statute were not satisfied. Therefore, we find no merit to appellant’s assertion.

IV

Appellant asserts that the in-court identification of appellant by witnesses Vann and Powell was tainted by improper extra-judicial identification procedures. Accordingly, appellant asserts that it was error not to instruct the jury to receive such evidence with caution.

The totality of circumstances in this case clearly does not support appellant’s contention in this regard. The testimony of Mrs. Vann and Mr. Powell under oath contains unambiguous and positive identifications of appellant as a participant in the robbery. There is no evidence to support appellant’s allegation of improper extra-judicial identification procedures. Both witnesses selected the appellant at the lineup conducted soon after the commission of the crime. Both witnesses had ample time, from close range, under good viewing conditions, to observe appellant while the robbery was in progress. Furthermore, detailed descriptions of appellant were given after the robbery.

Mr. Powell’s stated anxiety during the lineup identification procedure does not undermine his later in-court identification of appellant. See Little v. State (1978), Ala.Cr.App., 357 So.2d 379, and cases cited.

We find that no impermissible suggestiveness in the identification process was apparent in this case. The identification being reliable, there is no substantial likelihood of irreparable misidentification. Man son v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Big-gers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Lomax v. State, Ala.Cr.App., 359 So.2d 832, cert. denied, Ala., 359 So.2d 836 (1978); Dixon v. State, Ala.Cr.App., 357 So.2d 690 (1978).

Further, the record reveals that there was no request below for a charge cautioning the jury with regard to the identification testimony. Furthermore, there was no objection or motion to exclude any of the identification testimony. Hence, appellant failed to preserve properly his grounds for appeal in this regard.

After careful consideration of the entire record in this cause, we find same to be free of error. Accordingly, this case is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge. BOWEN, Judge,

text:
    Prynter HOWARD, Jr. v. STATE.
    6 Div. 795.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.

      Benjamin Daniel, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

The appellant was charged in an indictment with feloniously taking and carrying away one diamond ring, valued at $1,400.00, the personal property of Loyle C. Seymour. After a trial before a jury in Jefferson County, Bessemer Division, he was found guilty and sentenced to ten years imprisonment. Notice of appeal was given and the appellant was declared an indigent for the purposes of this appeal.

In April, 1977, Shirley Stringfellow was employed by Loyle C. Seymour Jewelers. She recalled that, on April 19, • 1977, the appellant, whom she identified in court, came into the jewelry store with another man. The appellant was the larger of the two men.

The men stated that they wanted to see “some gent’s diamond rings.” After viewing some rings, the men asked to see something larger. At that point, Stringfellow summoned the store owner, Loyle C. • Seymour. ■ Seymour spoke with the two men for a short time and the men left the store.

Stringfellow said that the men returned at a later time, but she could not remember the date. She recalled that she was at work at the time and, when she asked the men if she could help them, they responded that they were waiting for the owner, Mr. Seymour. According to Stringfellow, Seymour came out and she went to the front of the store. She stated that “the next thing that I knew, Mr. Seymour had a gun.” Subsequently, the police were called and the appellant and the man with him were taken away.

During cross-examination, Stringfellow testified that, when the appellant and the other man came into the store, she noticed some jewelry on the smaller man. She said he was wearing several diamond rings, but stated that she did not remember the appellant wearing any jewelry. According to Stringfellow, she remembered the appellant asking to see some larger rings. She said that she showed him only about two or three rings because they wanted to see something bigger than any she had at the time.

Further, the witness said she did not see the appellant and the other man come into the store on the second occasion that they were there because she was not working. However, on the third occasion when they asked to see Mr. Seymour, she was working and saw them again.

Stringfellow also stated that Margaret Snyder and some other store employees were working the day the men arrived on their third visit. She recalled that one of the rings she showed to the men was a diamond cluster, weighing approximately two carats.

Margaret Snyder ■ was employed • by Seymour Jewelers.on the iday in question and testified that around eleven o’clock that morning, the appellant, whom she identified at trial, came into the jewelry store with another man shorter than himself. She recalled that the smaller man asked if they could be shown some diamond rings. During the trial, she recalled that the two men had been in the store a week earlier.

According to Snyder, on the second time, the two men were shopping together and asked to see a large diamond cluster ring which they pointed out in the jewelry case. The witness said they looked at the ring and then returned it to her. She described the ring as a large, white gold cluster, having seven diamonds, weighing approximately two carats.

Further, Snyder stated that, when she placed the “large cluster diamond ring back in the tray, the men requested to see the entire tray.” At that time, she went to the back of the store and asked fon Mr. Seymour to show them the tray. She explained that she was not allowed to remove the tray from the jewelry case, but was allowed to remove only one diamond ring at a time.

She recalled that she continued to observe the men as they talked with the owner of the store. Snyder said that she recalled hearing the smaller of the two men say, “I have come back to get a ring . I have come back to see that ring.” At that time Seymour removed the tray from the jewelry case.

According to Snyder, she could hear the men discuss the ring with Mr. Seymour but did not see them try on any of the rings. She recalled hearing the smaller of the two say that they would return after a “little while.”

After the men had left, and some five minutes had elapsed, Snyder said she walked over to the case and realized that a ring had been changed. She said that the two-carat, white gold diamond ring was not in the tray, but that a yellow gold glass ring was in the slot. Snyder said that, on making a close examination, she called the owner and informed him that the diamond ring was missing.

During the trial, she was shown State’s Exhibit 1, which she stated was the ring left in the place of the diamond cluster ring that was taken.

Further, the witness testified that she was working on the Friday, April 22nd, when the two men returned and that she called the police immediately after she and Mr. Seymour recognized them.

Snyder added that, on the Tuesday before the men were arrested on Friday, she had informed them that the price of the ring as she recalled it was “twenty-seven hundred dollars.”

Loyle C. Seymour was the owner of Seymour Jewelers in Bessemer, Alabama. He identified the appellant during the trial as one of the two men who had come into his jewelry store on three different occasions. Seymour recalled that on the first occasion, which was a few days before April 19, 1977, Shirley Stringfellow, one of his employees, came to the office and said that two men wanted to see some big diamonds. According to Seymour, he then showed the appellant and a smaller man a two-carat cluster diamond ring. Seymour stated that the men told him that they were expecting an income tax refund and would be back in a few days.

On April 19th, which was the second occasion, the two men returned and he again showed the appellant and the other man the diamond cluster ring which he had shown them on the previous occasion. But, at that time, the tray containing the rings was taken from the showcase and placed on top of the showcase counter.

Seymour said that the appellant and the smaller man each tried on several different rings. He said they also exchanged the rings between themselves and tried on the rings that the other had previously tried on.

Seymour stated that he did not recall whether the two men were wearing any rings on the second occasion they came into his store. However, he stated that he did recall that one of them had a billfold containing some large bills. Seymour testified that, on the second occasion, the men did not buy anything and that the appellant left before the smaller man.

According to Seymour, they had been gone only a few minutes when Margaret Snyder informed him that the rings had been “switched.” Seymour said he then examined the tray where the two-carat cluster ring was supposed to be and found a “fake ring.” During the trial he identified State’s Exhibit 1, as the “one that was stuck in the place of the diamond ring.” Seymour said that the “fake ring” was worth approximately eight or ten dollars, and the diamond cluster ring was worth $1,450.

Further, Seymour stated that, on Friday, April 22, 1977, when the men returned to the store for the third time, he and Snyder recognized them and, after the police were called, the men were arrested and taken away. He added that, on April 19th, when they discovered the ring missing, the police were called and a report was made.

Seymour testified that usually he and his daughter ordered the rings for the jewelry store but that other employees could order from the wholesale house. Further, he stated, in reference to State’s Exhibit 2, which was the ring left in place of the diamond cluster ring, “we don’t carry a cheap ring as large as this big ring. We never have had.”

Detective Sgt. B. E. Shew, of the Bessemer Police Department, stated that he was working April 22, 1977, and went to Seymour Jewelers where he saw the appellant and his brother, Claude Howard. Detective Shew said that, shortly after he arrived at the store, Officers Thedford and Willis came to the scene and the appellant and his brother were taken to the police department.

Norma York was employed by Goodwin Jewelry Company in Bessemer, Alabama, which was located “about a block” from Seymour Jewelers. She testified that, on April 19, 1977, the appellant came into Goodwin Jewelry with another, smaller man. She stated that they requested to see a ring that was in the display window of the store. After she retrieved the ring from the window, she placed it in a box and handed it to the man who was with the appellant. She stated that, at that time, the other man asked the appellant to look at it with him and they walked toward the front door of the store, which was near the counter where she was standing. She said the smaller man made the request so he could see the ring in the sunlight. She recalled that, at that time, both men had their backs to her and that the ring they were holding was a “nine-diamond, one carat cluster, gent’s ring.”

York stated that she removed the ring from the box herself and gave it to the two men so that they could look at it. She said the ring was returned to her and the men left the store without purchasing anything.

According to York, later on the same date, she discovered the ring in the box was not the ring that she had shown to the appellant and the smaller man.

During cross-examination, she identified a ring, State’s Exhibit 3, as “just glass” and stated that State’s Exhibit 4 was, in fact, the diamond ring.

She stated that the smaller man was the one she had handed the ring to and said that the appellant had handed it back to her. It was also the smaller man who had taken the ring to the door and the appellant had just stood and looked at it.

She testified that it was approximately two days later when they discovered the ring in the box was not the diamond ring, which was worth approximately $995.

Further, York stated that, on Friday afternoon, after the incident, Detective Sgt. Shew came to the jewelry store and showed her a group of some eight pictures, but she was unable to identify anyone in the group. However, during the trial, she stated that she recognized the appellant as one of the men who came into the store.

H. L. Johnson was the manager of Goodwin Jewelry in Bessemer, Alabama. During the trial, he identified State’s Exhibit 4 as the ring he found in a ring box that had been placed in the show window of the store. He said that the ring was worth “around ten dollars” but that was not the proper ring for that box. He said that the ring that was originally in the box was worth approximately nine-hundred dollars and had been purchased from the “Everway Company.”

Johnson testified that when the fake ring was discovered he immediately went to the police department and made a report and, at that time, identified State’s Exhibit 3 as the diamond ring which had been taken from the box.

Bessemer Police Officer Tommy Thedford testified that, on April 22, 1977, he responded to a call from Seymour Jewelers, where he saw the appellant, Prynter Howard. He stated that the appellant was transported to jail and that he observed a ring in the appellant’s personal belongings, which he identified as State’s Exhibit 3. During cross-examination, Thedford said that he recognized the ring because of “the rough gold finish inside of the ring.”

At the end of Thedford’s testimony, the appellant moved to exclude the State’s evidence, and the motion was overruled. Appellant then made a motion for a mistrial on the grounds that “the testimony offered by these two witnesses [H. L. Johnson and Norma York] is evidence of another offense. And, that it cannot be put into evidence on the theory to show identity through plan, mode, scheme and design since identity is not the question.”

The motion for a mistrial was also overruled, and the ease was concluded without appellant presenting any evidence.

Only one assertion of error is made on this appeal by the appellant. He contends that the admission of evidence tending to show the commission of another distinct and independent offense from that charged, in order to prove identity, was reversible error when identity was not placed in issue.

It is well recognized that there are many exceptions to the general rule regarding the inadmissibility of evidence as to the guilt of the accused of other and distinct offenses unconnected with the one charged. Hodge v. State, 199 Ala. 318, 74 So. 373; Fuller v. State, 269 Ala. 312, 113 So.2d 153; Mason v. State, 259 Ala. 438, 66 So.2d 557; McElroy, Alabama Evidence, § 69.01(1), 1977 ed.

In the present case, the evidence offered concerning the separate and distinct theft at Goodwin Jewelry was not shown to have been offered under the identity exception. No question of identity existed as to the perpetrated larceny at Seymour Jewelers. It was almost immediately after the appellant and his brother left that the sales clerk discovered that the rings had been “switched.” The appellant and his brother were seen by the owner of Seymour’s jewelry store and his personnel on three different occasions, and, from aught that appears, this was during daylight hours each time.

The appellant has cited, in support of this contention, Boggs v. State, 268 Ala. 358, 106 So.2d 263, Johnson v. State, 242 Ala. 278, 5 So.2d 632, and Williams v. State, Ala.Cr.App., 350 So.2d 708. Each of these cases cited by the appellant is distinguishable from the case at bar on the facts alone.

In Boggs v. State, supra, no evidence was shown to indicate whether the theft of the .25 automatic pistol occurred at, or near, the time of the murder for which Boggs was being tried. It also appears that the theft of the gun occurred in Anniston, Alabama, while the murder charged to Boggs occurred in Selma, Alabama.

The testimony presented in the case at bar concerned a theft which occurred on the same and at approximately the same time. The method of operation was the same, the theft was committed in the same fashion and by the same two individuals. In each situation, the appellant and his companion were recognized and positively identified in court.

In Johnson v. State, supra, the accused had offered testimony of an alibi which indicated that he was at home at the time of the alleged rape. The testimony in question there concerned other attacks on women which occurred after the rape for which Johnson was charged. Without question, the testimony in Johnson was offered on the issue of the accused’s identity. However, in the case at bar, no testimony was presented by the appellant which would correspondingly place his identity in issue.

The appellant also relies on Williams v. State, supra, and maintains that it “is in point with the case at hand.” The factual situation in Williams indicated that he had robbed the same store twice, and an eyewitness to the robbery testified “emphatically” that her identification was based solely on Williams’ presence in the store at the time he robbed her on the first occasion.

The Supreme Court of Alabama, in reversing the case, stated that such evidence was not admissible to show identity, because identity was not placed in issue by merely entering a plea of not guilty without presenting any evidence of an alibi, or other defense, or testimony from any witnesses.

The court also stated that the fact that the victim had made a positive identification and said that she did not have to rely on the subsequent encounter to make her positive identification only served to strengthen the position that the evidence was not introduced for the purposes of showing identity.

In the case under review there were positive identifications made by the manager of Seymour Jewelers and his sales personnel. There was a statement by the sales clerk at Goodwin Jewelry who acknowledged that she “truly recognized” the appellant.

The appellant did not present any evidence of an alibi or offer the testimony of any witnesses that would have placed his identity in question. It is our judgment that the question of identity was not presented and that the testimony concerning the theft at Goodwin Jewelry was properly admitted.

In Summers v. State, Ala.Cr.App., 348 So.2d 1126, this court stated that evidence of a robbery, which was committed by the same party on the same date as the robbery for which he was being tried, was admissible. The court went on to say that it was properly admitted “as of the res gestae and constituted one continuous criminal occurrence or adventure.”

The Alabama Supreme Court, in Jackson v. State, 229 Ala. 48, 155 So. 581, stated:

“Everything constituting the one continuous transaction is admissible as of the res gestae. No matter how many distinct crimes may be involved, all the details of the one continuous criminal occurrence or adventure may be considered by the jury in passing upon the culpability, the wickedness, and depravity of the crime for which the party is being tried.”

See also, Lowe v. State, 134 Ala. 154, 32 So. 273; Parsons v. State, 251 Ala. 467, 38 So.2d 209; Moseley v. State, Ala.Cr.App., 357 So.2d 390.

In the case under consideration, the testimony showed that the larceny at Seymour Jewelers, of which,the appellant was charged, was committed on the same day, April 19, 1977, as the offense at Goodwin Jewelry. The offense occurred at Seymour’s about 11:30 A.M., and, from aught that appears, the offense at Goodwin’s occurred around the same time.

The respective stores were also located on the same street, with only one block separating them.

Considering these facts, we hold that the evidence involving the theft which occurred at Goodwin Jewelry, which was committed by the same party on the same day, was properly admitted as “constituting one continuous occurrence or adventure.”

In addition, included in the exceptions to this rule of evidence outlined in Mason v. State, supra, is that of showing the accused’s intent or motive. McElroy, Alabama Evidence, § 70.01(19)(E) at 163, 3rd ed., 1977, indicates that testimony regarding the larceny at Goodwin Jewelry, which occurred a block away from Seymour' Jewelers, committed in the same manner by the same two men, and which occurred on the same date, would be proper to show intent.

Finally, the fact that the appellant, at his arrest, had in his possession a ring which was the property of Goodwin Jewelry was also properly admitted into evidence to show felonious intent.

The issue of the sufficiency of the evidence to support the verdict was properly raised by appellant’s motion to exclude the State’s evidence.

Larceny, as defined in Higgs v. State, 113 Ala. 36, 21 So. 353, “is the felonious taking and carrying away of the personal property of another with the fraudulent intent to convert it to the use of the taker or deprive the owner thereof. . . . ”

To justify a conviction of larceny these elements must be proved and can be shown by circumstantial evidence as well as by direct and positive evidence. Poole v. State, 28 Ala.App. 37, 178 So. 238; Melson v. State, 38 Ala.App. 514, 88 So.2d 851; Jones v. State, 51 Ala.App. 570, 287 So.2d 886; Woods v. State, 57 Ala.App. 1, 325 So.2d 517.

Therefore, it is our opinion that even though the evidence presented was circumstantial it was sufficient for the jury to find the appellant guilty of larceny.

As required by law, we have examined the entire record in this appeal and have found no error prejudicial to appellant. Therefore, the judgment of conviction by the Jefferson Circuit Court is due to be affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON, J., concur.

BOOKOUT and BOWEN, JJ., concur in result.

BOWEN, Judge,

concurring in result:

I concur in the result reached by the majority for the reason that I do not think that both larcenies can or should be considered as “one continuous occurrence or adventure”. Evidence of the larceny at the Goodwin Jewelry was properly admitted under the exception to the general rule admitting proof of other crimes to show the modus operandi employed in the commission of the charged larceny. C. Gamble, McElroy’s Alabama Evidence, Section 70.-01(19)(b) (3rd ed. 1977).


author: ALDERMAN, Justice. OVERTON, Justice,

text:
    Clifford HALLMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 51633.
    Supreme Court of Florida.
    March 15, 1979.
    Rehearing Denied June 21, 1979.

      Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for petitioner.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for respondent.
   ALDERMAN, Justice.

Clifford Hallman, by petition for writ of certiorari, seeks review of the decision of the district court in Hallman v. State, 343 So.2d 912 (Fla.2d DCA 1977). We originally granted' certiorari because of an apparent conflict between that decision and Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969), but we have now determined that no direct conflict exists and that cer-tiorari is not the appropriate remedy. However, pursuant to article V, section 2(a), Florida Constitution, which provides that no cause shall be dismissed because an improper remedy is sought, we treat Hall-man’s petition as a request for permission to apply to the trial court for writ of error coram nobis addressed to his conviction of first degree murder and his sentence of death. Having considered his request, we find that it is legally insufficient.

Hallman was indicted for the first degree murder of Eleanor Groves, it being alleged that Hallman, with premeditated design, caused Groves’ death by inflicting fatal cuts on her throat and neck. Hallman was tried, convicted, and then sentenced to death. On December 11, 1974, this Court affirmed the conviction and sentence. Hallman v. State, 305 So.2d 180 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

Approximately two years later, Hallman filed a three-part motion with the sentencing circuit judge. The motion alleged that in 1975 the administrator of the estate of Eleanor Groves filed suit against Tampa General Hospital contending that Mrs. Groves died as a result of the negligence of the hospital; that the hospital had settled the lawsuit in favor of Mrs. Groves’ estate; that Hallman’s wrongful acts were not the cause of death of Mrs. Groves; and that if in a new trial the jury found that the hospital’s negligence was an intervening cause of death, the jury could find him not guilty of homicide. Hallman requested the following relief: that the trial judge reduce the sentence of death; or that the trial court set aside the sentence of death and grant a new trial on the grounds of newly discovered material evidence; or that the trial court issue a writ of error coram nobis. The trial court denied all three requests.

Hallman appealed to the district court which held that it was without jurisdiction to review the trial court’s refusal to reduce the sentence because that portion of the order was nonappealable. It also held that Hallman’s motion under Florida Rule of Criminal Procedure 3.850, to set aside the judgment and grant a new trial, was improper because newly discovered evidence cannot be a basis for relief under that rule. It further held that Florida Rule of Criminal Procedure 3.600(a)(3) could not support the grant of a new trial because Hallman’s motion was untimely under that rule. Finally, it held that a writ of error coram nobis can be issued only by “the appellate court which had previously entertained an appeal from the final judgment in the case and affirmed it by its mandate,” in this case the Supreme Court of Florida. See Hallman v. State, 343 So.2d 912, 913 (Fla.2d DCA 1977).

We approve the decision of the Second District in all respects and agree that it correctly found that the trial court was without jurisdiction to entertain Hall-man’s petition for writ of error coram nobis because permission to seek such relief must first be obtained from this Court.

The writ of error coram nobis was available at common law in both civil and criminal cases. This Court long ago recognized that coram nobis was applicable to both civil and criminal cases in this state. As we explained in Lamb v. State, 91 Fla. 396, 107 So. 535 (1926):

Common-law writs of procedure that have not been abrogated or superseded by the Constitution or by statutory regulations are available in this state, but the use of such judicial writs may be regulated by statute or by rules of court duly promulgated under statutory authority. ... 107 So. at p. 537.

Although writs of error coram nobis have now been abolished in civil cases by rule 1.540(b), Rules of Civil Procedure, this remedy remains viable in criminal cases because it has not been expressly abrogated or superseded. Our recent decision in Ohio Casualty Co. v. Parrish, 350 So.2d 466 (Fla.1977), where the issue was whether rule 1.540, Rules of Civil Procedure, allows the trial court to entertain a timely motion to modify a civil judgment without first obtaining permission of the appellate court, is not applicable in this case where coram nobis is sought in a criminal case.

The requirements of a writ of error coram nobis have been set out in numerous cases from this Court. A petition for this writ- addressed to the appellate court must disclose fully the alleged facts relied on; mere conclusory statements are insufficient. The appellate court must be afforded a full opportunity to evaluate the alleged facts for itself and to determine whether they establish prima facie grounds. Lamb v. State, supra; Washington v. State, 92 Fla. 740, 110 So. 259 (1926); Urga v. State, 157 Fla. 794, 26 So.2d 786 (1946). Furthermore, the petition should assert the evidence upon which the alleged facts can be proved and the source of such evidence. Russ v. State, 95 So.2d 594 (Fla.1957). The function of a writ of error coram nobis is to correct errors of fact, not errors of law. Leavitt v. State, 116 Fla. 738, 156 So. 904 (1934). The facts upon which the petition is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944).

In considering a petition for writ of error eoram nobis, the appellate court has the responsibility to determine the legal effect of the facts alleged upon the previously entered judgment. When the appellate court finds that the facts are sufficient in legal effect, the next step is for the trial court to determine the truth of the allegations in an appropriate evidentiary hearing. Chambers v. State, 117 Fla. 642, 158 So. 153 (1934).

The general rule repeatedly employed by this Court to establish the sufficiency of an application for writ of error coram nobis is that the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment. Williams v. Yelvington, 103 Fla. 145, 137 So. 156 (1931); House v. State, 130 Fla. 400, 177 So. 705 (1937); Baker v. State, 150 Fla. 446, 7 So.2d 792 (1942); Cayson v. State, 139 So.2d 719 (Fla.1st DCA), appeal dismissed, 146 So.2d 749 (Fla.1962). In Russ v. State, this Court expressly stated: “The showing must be such that if the matters shown had been before the trial court when judgment was entered, the court would have been precluded from entering the judgment.” 95 So.2d at 597 (emphasis added). This traditional “conclusiveness test” in error coram nobis proceedings is predicated on the need for finality in judicial proceedings. This is a sound principle, for litigants and courts alike must be able to determine with certainty a time when a dispute has come to an end.

Turning now to the specific allegations in the present case, we find that Hallman failed to meet the prerequisites which would warrant granting the writ of error eoram nobis. He alleged the ultimate conclusion of negligence on the part of the hospital without disclosing fully the specific facts upon which he relies for this conclusion. In addition, the alleged medical malpractice of the hospital could have been known to Hallman or his counsel at the time of trial through use of due diligence. The fact that the hospital, subsequent to Hallman’s trial settled a wrongful death claim made by Mrs. Groves’ estate is irrelevant. This negotiated settlement in no way establishes that the hospital caused her death. If the hospital is guilty of medical malpractice, this fact could have been established by medical records and the medical witnesses that were available, and could have been discovered through use of due diligence at the time of Hallman’s trial.

More importantly, even if the hospital’s alleged medical malpractice could not have been known at the time of Hallman’s trial, the writ of error coram nobis would not lie because the fact of the hospital’s negligence would not have precluded Hall-man’s conviction. As this Court explained in Johnson v. State, 64 Fla. 321, 323, 59 So. 894, 895 (1912):

A defendant cannot escape the penalties for an act which in point of fact produces death, which death might possibly have been averted by some possible mode of treatment. The true doctrine is that, where the wound is in itself dangerous to life, mere erroneous treatment of it or of the wounded man suffering from it will afford the defendant no protection against the charge of unlawful homicide.

And as the district court stated in Tunsil v. State, 338 So.2d 874, 875 (Fla.3d DCA 1976):

Appellant seeks a reversal of his conviction for manslaughter on the grounds that the victim’s death could have been avoided through affirmative medical treatment. Appellant argues that the lack of affirmative medical treatment constituted an intervening cause relieving him of any criminal responsibility for the victim’s death.
In support of his argument, appellant attempts to distinguish those Florida cases holding that affirmative medical treatment will not break the chain of causation between a perpetrator’s act and his criminal responsibility for the victim’s death. See, e. g., Adams v. State, 310 So.2d 782 (Fla.2d DCA 1975), and the cases cited therein.
We are of the opinion that appellant’s distinction between affirmative medical treatment and lack of affirmative medical treatment is without merit, and that, based on the facts appearing in the record on appeal, the case of Johnson v. State, 64 Fla. 321, 59 So. 894 (1912), is controlling. The record shows that appellant’s actions were the proximate cause of the victim’s initial injury, i. e., brain damage, and we find no intervening cause relieving appellant of the criminal responsibility for the victim’s death. .

So, even if the hospital’s negligence had contributed to the victim’s death, this fact would not entitle Hallman to a new trial on his conviction.

Likewise, he would not be entitled to a rehearing on his sentence because, aside from the fact that the medical evidence was in existence and could have been known to Hallman or his counsel at the time of trial through use of due diligence, even if evidence of the hospital’s alleged malpractice had been presented during the trial, the trial court would not have been precluded from entering the death sentence.

Hallman’s request for permission to file a petition for writ of error coram nobis is denied.

It is so ordered.

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

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

OVERTON, Justice,

concurring in part, dissenting in part.

I agree with the majority opinion in its holding that a hospital’s negligence cannot be grounds for reversal of a defendant’s conviction of first-degree murder merely because the death of the victim might possibly have been averted by some other mode of treatment. See Johnson v. State, 64 Fla. 321, 59 So. 894 (1912).

I strongly dissent, however, from that portion of the majority opinion which holds that subsequently discovered facts, if true, relating to alleged medical malpractice of Tampa General Hospital in its treatment of the victim cannot now be considered as a factor in determining the appropriateness of the death sentence in this cause.

This holding by the majority in effect says that we no longer have any responsibility to assure justice and fairness in the application of the death penalty in this case and uses the need for finality in our decisions as a basis for that determination.

In the instant case, Hallman was indicted in 1973, tried, convicted, and sentenced to death. This author, together with Justices Adkins, Roberts, Dekle, and McCain, affirmed the conviction and approved the imposition of the death penalty in this cause in December of 1974. Hallman v. State, 305 So.2d 180 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). Justices Boyd and Ervin dissented. In the following year, 1975, the estate of the victim filed suit asserting malpractice by the hospital. The hospital settled the malpractice suit with the estate, and Hall-man commenced this proceeding. As a justice who must make the final determination as to whether the death penalty should be imposed, I would hope I would always have the opportunity to review that determination whenever new relevant evidence is discovered.

My dissent is from the holding of the majority that even if the hospital was negligent, that factor should not now be considered as to whether Hallman should live or die. That holding is totally wrong. It is a factor which, if known, would have been a proper item for consideration by the jury in the sentencing phase, by the trial judge when he imposed sentence, and by this Court when we reviewed the case. I realize that this alleged malpractice, if true, is not controlling in itself, but it is a material and relevant factor which should be considered in determining the appropriateness of the death sentence.

As one of the two justices remaining on this Court who approved the imposition of the death penalty in this case, I believe that the occurrence of any malpractice in treating the victim and the extent of that malpractice are relevant facts which should be considered in the sentencing phase of this proceeding. I totally disagree with the conclusion reached by the majority that the fact that the hospital settled a wrongful death claim made by the victim’s estate is irrelevant. In my view, that fact is a sufficient basis to inquire further to determine if the allegations of malpractice are true. If the malpractice allegations are true, that circumstance would be a significant but not controlling factor in determining the appropriateness of the death sentence in this cause.

It is also important to recognize that if the settlement of the malpractice suit had been discovered subsequent to trial but in sufficient time to permit filing of a motion for new trial under Florida Rule of Criminal Procedure 3.600(a)(3), the “probability test” of a motion for a new trial would have been applied in this case rather than the “conclusiveness test” of a petition for a writ of error coram nobis.

A death case should be an exception to the “conclusiveness test.” In my view, the rigid application of the “conclusiveness test” is not proper in cases where the death penalty has been imposed. As Mr. Justice Stevens reasoned in writing for the plurality in Gardner v. Florida, 430 U.S. 349, 351, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the death penalty is different from any other means of punishment, both in its severity and in its finality. I also believe our failure to consider these allegations on the merits in the sentencing phase will result in a weakening of our death penalty statute and could lead to a reversal of this cause under the principles expounded by the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The majority in Lockett stated that: “The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases.” 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990.

In conclusion, the majority’s mistake in this case is not allowing the issue of the alleged malpractice to be considered on its merits in regard to the appropriateness of the death penalty in this cause.

I would find the petition for writ of error coram nobis to be prima facie sufficient insofar as it pertains to a new sentencing proceeding and direct the trial court to determine the truthfulness of the allegations, and, if the allegations are true, a new sentencing proceeding should commence.

BOYD and HATCHETT, JJ., concur.

      . Florida Rule of Criminal Procedure 3.800(b), governing reduction of sentences, has been amended since the date of trial court’s order. As amended, rule 3.800(b) does not apply to cases in which the death penalty is imposed.

      . We note that the federal courts have also continued to recognize the viability of the writ of error coram nobis in criminal cases although rule 60(b) of the Federal Rules of Civil Procedure expressly abolished the writ of error cor-am nobis in civil cases. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1953); United States v. Norman, 391 F.2d 212 (6th Cir. 1968), cert. den., 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163; Grene v. United States, 448 F.2d 720 (5th Cir. 1971).

      . The rule states:
      (a) The court shall grant a new trial if any of the following grounds is established:

      (3) That new and material evidence, that if introduced at the trial would probably have changed the verdict or finding of the court, and that the defendant could not with reasonable diligence have discovered and produced upon the trial, has been discovered.


author: PER CURIAM.

text:
    LEATHERBY INSURANCE COMPANY and Julio Gonzalez, Petitioners, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA and Olin’s Miami Rent A Car, Respondents.
    No. 52706.
    Supreme Court of Florida.
    May 17, 1979.
    Steven W. Halvorson and William D. Slicker, of Lyle, Skipper, Wood & Anderson, St. Petersburg, for petitioners.
    Peter H. Dubbeld, of Brown, Watson, Goldstein & Douglass, St. Petersburg, for respondents.
   PER CURIAM.

By Petition for Writ of Certiorari we are requested to review a decision of the District Court of Appeal, Second District, reported at 350 So.2d 353, which directly conflicts with the decision in Diversified Services, Inc. v. Jackson, 330 So.2d 830 (Fla. 3d DCA 1976). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

We have concluded that the decision of the district court is correct and we adopt the opinion of Judge Grimes as the decision of this Court.

To the extent that the decision of the District Court of Appeal, Third District, in Diversified Services, Inc. v. Jackson, is in conflict herewith, it is disapproved.

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


text:
    Wilbur Kenyard THOMAS, Petitioner, v. DIVISION OF VOCATIONAL REHABILITATION, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., et al., Respondents.
    No. 53252.
    Supreme Court of Florida.
    May 17, 1979.
    Edward A. White, Jacksonville, for petitioner.
    Luke G. Galant, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for respondents.
   PER CURIAM.

The petition for writ of certiorari is denied. See Tintera v. Armour & Co., 362 So.2d 1344 (Fla.1978); Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961).

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


author: MILLS, Judge. PER CURIAM.

text:
    AMERICAN RESTAURANT SUPPLY COMPANY, a Florida Corporation, Appellant, v. Lawrence B. WILSON, Appellee.
    No. II-473.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Rehearing Denied March 23, 1979.
    Robert B. Kane, Terrence T. Dariotis, Tallahassee, for appellant.
    Jim L. Dye of Dye & Thrasher, Frank A. Graham, Jr., Daniel O. Palmer, Tallahassee, for appellee.
   MILLS, Judge.

This appeal presents the question whether the description of collateral in a security agreement entered into by American Restaurant Supply Company (American), the secured party, and Robert Markland and Wilmark, Inc. (Wilmark), the debtor, is sufficient to enable the security interest to be enforced against Wilmark or third parties.

A security interest cannot be enforced against the debtor or third parties unless the collateral is in the possession of the secured party or the security agreement contains a description of the collateral. Section 679.203(1), Florida Statutes; Section 9-203(1), U.C.C. The description of collateral is sufficient whether or not it is specific if it reasonably identifies what is described . . . Section 679.-110, Florida Statutes; Section 9-110, U.C.C. The Comment to Section 9-110 of the Uniform Commercial Code states that the test of sufficiency of a description “. . .is that the description do the job assigned to it — that it make possible the identification of the thing described.”

Although Section 679.110, Florida Statutes, (Section 9-110, U.C.C.), sets forth the test for sufficiency of the description of collateral in both the security agreement and the financing statement, a description of collateral sufficient for a financing statement might not be sufficient in a security agreement. This is because the financing statement and the security agreement serve different purposes.

The purpose of the financing statement is merely to provide notice of a possible security interest in the collateral in question. Official Comment, Section 9-402, Uniform Commercial Code. Section 679.-402, Florida Statutes, (Section 9-402, U.C. C.), requires that the financing statement contain a description indicating the types of collateral in which the secured party may have a security interest. The description of collateral in a financing statement is sufficient if it reasonably informs third parties that an item in the possession of the debtor may be subject to a prior security interest, thus putting the parties on notice that further inquiry may be necessary. Associates Capital Corp. v. Bank of Huntsville, 274 So.2d 80 (Ala.Civ.App.1973); Owen v. McKesson & Robbins Drug Co., 349 F.Supp. 1327 (N.D.Fla.1972).

The security agreement is the contract between the parties; it specifies what the security interest is. Because of its different function, greater particularity in the description of collateral is required in the security agreement than in the financing statement. See Beard, The Description of Collateral in Security Agreements and Financing Statements, 28 Mercer L.Rev. 611 (1977); Note, Commercial Transactions: The Adequacy of the Description of Collateral in Uniform Commercial Code Financing Statements and Security Agreements, 27 Okl.L.Rev. 469 (1974); 39 Mo.L.Rev. 75 (1974). A description of collateral in a security agreement is sufficient if the description makes possible the identification of the items in which a security interest is claimed.

The Comment to the Uniform Commercial Code, Section 9-208 (Section 679.-208, Florida Statutes), clearly indicates that the description of collateral in a security agreement is required to be more precise than in the financing statement. Section 9-208 permits the debtor to submit a list of collateral to the secured party who must approve or correct the list in writing within two weeks. The Comment to this Section states:

“2. The financing statement required to be filed under this Article (see Section 9-402) may disclose only that a secured party may have a security interest in specified types of collateral owned by the debtor. Unless a copy of the security agreement itself is filed as the financing statement third parties are told neither the amount of the obligation secured nor which particular assets are covered. Since subsequent creditors and purchasers may legitimately need more detailed information, it is necessary to provide a procedure under which the secured party will be required to make disclosure.” (Emphasis supplied)

Thus, a security agreement should describe the collateral with details sufficient for third parties to be able to reasonably identify the particular assets covered.

The security agreement under consideration describes the collateral as: “Food service equipment and supplies delivered to San Marco Inn at St. Marks, Florida.” Many courts have held that a description of collateral is sufficient when the agreement covers all of a certain type or types of assets. See, Barnett Bank of Pensacola v. Fletcher, 290 So.2d 533 (Fla. 1st DCA 1974) (all accounts); U. S. v. First National Bank in Ogallala, Nebraska, 470 F.2d 944 (8th Cir. 1973) (all farm and other equipment); In Re Little Brick Shirthouse, 347 F.Supp. 827 (N.D.Ill.1972) (all inventory); National Cash Register Co. v. Firestone & Co., 346 Mass. 255, 191 N.E.2d 471 (1963) (all contents of luncheonette); James Talcott, Inc v. Franklin National Bank of Minneapolis, 292 Minn. 277, 194 N.W.2d 775 (1972) (all goods). However, the agreement before us does not cover all of the food service equipment and supplies located at San Marco Inn or owned by the debtor. The agreement attempts to cover some food service equipment and supplies, but the description does not do its assigned job of making possible the identification of the equipment and supplies in which American claims a security interest.

We agree with the trial court that “. . . the description of the property pledged as security in the security instrument was not legally sufficient” to enable the security interest to be enforced. Therefore, the judgment of the trial court is

AFFIRMED.

McCORD, C. J., and ERVIN, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s Motion for Rehearing suggests that we overlooked testimony that an inventory labeled Schedule “A” was at one time attached to the security agreement. Although this was not mentioned in our opinion, it was not overlooked. An examination of the security agreement reveals that it does not in any way refer to or make an inventory or schedule a part of the agreement. The trial court was correct in ruling that the description of the property pledged as security in the security instrument was not legally sufficient. Rehearing denied.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


text:
    James Isom DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1760.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1979.
    Norman O’Rourke of Varón & Stahl, P. A., Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by the defendant in a violation of probation matter. Defendant’s probation was violated on the basis of an affidavit charging several substantive offenses. We find no error in regard to the violations found in this respect. Defendant also challenges a finding that he was in violation of his probation for having failed to pay the cost of supervision. In accordance with Depson v. State, 363 So.2d 43 (Fla. 1st DCA 1978), and Murrell v. State, 364 So.2d 96 (Fla. 4th DCA 1978), the finding re cost of supervision is stricken because there was no evidence or finding that the defendant had the ability to pay. The provision re cost of supervision is therefore stricken and the judgment below is affirmed in all other respects.

ANSTEAD and BERANEK, JJ., and DAKAN, STEPHEN LEE, Associate Judge, concur.


author: LETTS, Judge.

text:
    SUN FIRST NATIONAL BANK OF DELRAY BEACH, Petitioner, v. GREEN CRANE & CONCRETE SERVICES, INC., et al., Respondents.
    No. 78-2668.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Rehearing Denied June 22, 1979.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for petitioner.
    James McCartney Wearn, West Palm Beach, for respondents — Green Crane Service, Inc. et al.
    Anthony E. Pucillo of Jones, Paine & Foster, P. A., West Palm Bea:ch, for respondents — Teschke, Pierce, Barr, Koch, Le-Gette, Mikell and Roborn.
   LETTS, Judge.

By Petition for Writ of Prohibition or Common Law Certiorari we have for review an order of the trial court reinstating this cause after the plaintiffs had filed a Notice of Voluntary Dismissal pursuant to Fla.R. Civ.P. 1.420(a)(l)(i). We grant the petition for certiorari and quash the order of reinstatement.

The several plaintiff-appellees filed a multicount complaint against a bank and various individuals. All of them were represented by one lawyer who filed a Notice of Voluntary Dismissal on May 15, 1977. On July 6, 1977, the trial court entered an order taxing costs and on August 8, 1977, the plaintiffs moved to set aside the Notice of Voluntary Dismissal which the trial court, in a well considered order, granted.

Petitioner contends the trial court exceeded its jurisdiction in so doing, relying upon Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978), and Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1971). Indeed those cases clearly hold that a plaintiff’s voluntary dismissal divests the trial court of jurisdiction to entertain a later request for reinstatement. Respondents submit that the situation here is distinguishable because the dismissal was not consented to by the litigants themselves and thus the act of their lawyer in filing the Notice of Dismissal was a nullity. However, the language in Vasta is overpowering in its holding that dismissal under Fla.R.Civ.P. 1.420 divests the trial court of jurisdiction with no authority remaining upon which to base reinstatement.

Accordingly, the trial court’s order reinstating this cause constituted an act in excess of its jurisdiction and a departure from the essential requirements of the law mandating that the petition be granted and the order be quashed.

Petition for Writ of Certiorari granted and order quashed.

DOWNEY, C. J., and ANSTEAD, J., concur.


text:
    James MacGregor GOW, Jr., Appellant, v. COUNTY OF DADE, Appellee.
    No. 78-1685.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 22, 1979.
    James MacGregor Gow, Jr., in pro per.
    Stuart L. Simon, County Atty., and Amy N. Dean, Asst. County Atty., for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Summary judgment .was properly granted where the appellant admitted that he did not file for certiorari review in the court below of his dismissal from employment with the county within the 30 day period required. Appellate review was solely authorized in this instance by petition for writ of certiorari. See Code of Metropolitan Dade County, Florida Section 2-47 (1978). Appellant’s failure to file his petition within the time period prescribed deprived the circuit court of jurisdiction to review his order of dismissal. Overstreet v. Davis, 219 So.2d 34 (Fla.1969); Lazenby v. Seaboard Life Ins. Co., 224 So.2d 288 (Fla.1969); State of Florida, Department of Highway Safety and Motor Vehicles v. Joannou, 353 So.2d 164 (Fla.3d DCA 1977), cert. dismissed, 355 So.2d 515 (Fla.1978); State Department of Highway Safety v. Adams, 338 So.2d 542 (Fla.1st DCA 1976); Flinchblaugh v. Burton, 312 So.2d 827 (Fla.4th DCA 1975), cert. dismissed, 317 So.2d 769 (Fla.1975).

That count in the complaint demanding compensatory damages for wages withheld during appellant’s period of suspension was properly barred by the statute of limitations. See Section 95.11(4)(c), Florida Statutes (1977).

We have carefully considered the appellant’s remaining points on appeal and find them to be without merit.

Affirmed.

      . Fla.R.App.P. 9.100(c); Fla.App.R. 4.5(c), 1962 Revision. The 1962 revision of the appellate rules, which was in effect at the time appellant was entitled to seek certiorari review, governs this appeal.