text:
    Willie James BARNES v. STATE.
    3 Div. 830.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Richard D. Shinbaum, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment in this case charged the appellant with unlawfully and with malice aforethought having killed Johnny James Tyner “by shooting him with a pistol.” The jury returned a verdict of guilty of murder in the second degree, fixing punishment at fifteen years imprisonment. The trial court set sentence accordingly.

Officer Jay Hardy, a Montgomery City police officer, testified that, during the early morning hours of April 17, 1977, he and his partner responded to a call concerning an alleged shooting at the Harlem Inn on High Street in Montgomery. Officer Hardy stated that, upon their arrival, he found a man slumped across the front of an automobile parked in front of the Harlem Inn. Having ascertained that the man had been shot, Officer Hardy summoned the paramedical squad to the scene. Officer Hardy indicated that he searched the surrounding area for a weapon, or any other possible evidence, but found nothing of that nature.

Louise Tyner testified that she was the mother of the deceased, Johnny James Tyner. Mrs. Tyner identified State’s Exhibit One as being a photograph of the deceased, who died on April 17, 1977.

Ben Time, Jr., testified that he was at the Harlem Inn on the morning of April 17, 1977. As he was leaving the Harlem Inn, he met the appellant and the appellant’s brother, George Barnes, Betty Floyd, Betty Bauldwin, Ann Young, and one Jessie as they were entering the Harlem Inn. Mr. Time stated that he decided to stay a while longer at the Harlem Inn because he had arranged to ride to his home with someone in this group. Accordingly, Mr. Time went back into the Harlem Inn and seated himself at the table with his newly-found companions. Mr. Time recalled that the deceased, Johnny James Tyner, came over to their table and conversed with Betty Bauld-win. Sometime later, the appellant, his brother, Betty Floyd, Betty Bauldwin, and Mr. Time decided to leave the Harlem Inn (Ann Young and Jessie had left earlier). Betty Bauldwin and the appellant’s brother were the first members of the group to walk out of the Harlem Inn. They were followed by Ben Time, Betty Floyd and the appellant. As these three were making their exit, the deceased followed them, saying something to Betty Floyd as they walked. Mr. Time indicated that Betty Floyd repeatedly told the deceased not to bother her.

On the sidewalk in front of the Harlem Inn, the appellant told the deceased to “Go ahead on, man” (R. p. 25). The deceased responded by calling the appellant a “country s.o.b.” (R. p. 25). Mr. Time testified that it was at this point that the appellant turned around and saw the deceased, who had a knife in his right hand. The appellant drew his pistol, pointed it at the deceased, and warned him again. The deceased took a step forward, and the appellant fired one shot, fatally wounding Tyner. Mr. Time testified that he and Betty Floyd stood approximately four feet from the incident. At the time of the shooting, Betty Bauldwin and the appellant’s brother were almost to the parking area some distance away. Immediately after the shooting, according to Mr. Time, the appellant said, “Let’s go,” and the group left in two automobiles. Mr. Time left with Betty Bauld-win and Betty Floyd while the appellant and his brother drove away in another automobile.

On cross-examination, Mr. Time testified that he did not know what had happened to' the knife that he saw the deceased holding just prior to the shooting. He stated further that the appellant and the deceased had not conversed inside the Harlem Inn before the shooting took place. Mr. Time indicated that the appellant turned and faced the deceased for about two minutes before he fired the fatal shot.

Betty Bauldwin testified that, on the morning of April 17, 1977, she had occasion to be at the Harlem Inn in the company of Betty Floyd, Ben Time, the appellant, Willie James Barnes, appellant’s brother George Barnes, Ann Young, and her boyfriend. Ms. Bauldwin testified that, while she and her companions were seated at their table inside the Harlem Inn, the deceased, Johnny James Tyner, came over to their table and conversed with her. Ms. Bauldwin repeatedly tried to avoid the deceased’s advances by leaving the table and walking away. Finally, Ms. Bauldwin decided to leave and asked Betty Floyd to accompany her. Then Ms. Bauldwin walked out of the Harlem Inn ahead of the others in the group. Ms. Bauldwin stated that she overheard the deceased and the appellant arguing just outside the entrance to the Harlem Inn. When Ms. Bauldwin heard the shot, she turned around and saw the deceased fall. At this point, Ms. Bauld-win was approximately twenty or thirty feet away. Ms. Bauldwin stated that she was not in a position to see whether the deceased had a knife because she did not turn around until she heard the shot. During cross-examination, Ms. Bauldwin related a past experience which tended to show that the deceased had been known to carry a knife on his person.

Dr. Richard A. Roper, State Toxicologist, testified that he performed a post-mortem examination on the body of Johnny James Tyner. Dr. Roper identified State’s Exhibit Two as being a photograph which he took of the deceased at the time of his examination. Dr. Roper testified that the cause of death was sudden massive internal bleeding, resulting from a single gunshot wound to the chest. Dr. Roper recovered a bullet from the deceased’s body, which he turned over to Tom Hopin, evidence technician in the laboratory of the State Toxicologist’s Office. Dr. Roper stated that he received a sample of the deceased’s blood from the Ross Clayton Funeral Home. Analysis revealed that the blood sample contained .25 percent ethyl alcohol. Dr. Roper stated that a person with such level of alcohol in his blood is legally intoxicated and would speak with a thick tongue, stagger, etc.

On cross-examination Dr. Roper indicated that a person with .25 percent alcohol in his blood would possibly be belligerent, pugnacious, and likely to provoke difficulties.

Tom Hopin testified that he received a .25 caliber bullet from Dr. Roper. The bullet was marked as State’s Exhibit Three and identified by Mr. Hopin. State’s Exhibit Four was a .25 caliber pistol. Based upon his training and expertise in ballistics, Mr. Hopin testified that the results of his ballistic comparison of State’s Exhibits Three and Four indicated the bullet, given to him by Dr. Roper, was fired by Exhibit Four to the exclusion of all other weapons.

On cross-examination, Mr. Hopin stated that he acquired possession of State’s Exhibit Four when it was delivered to him by C. 0. Bolden of the Montgomery Police Department.

The next witness for the State, Betty Floyd, substantially corroborated the testimony of Ben Time concerning the events leading up to the shooting on the morning of April 17, 1977, in front of the Harlem Inn. Ms. Floyd stated that she saw the deceased with a knife in his hand immediately prior to the shooting. But, contrary to Mr. Time’s testimony, Ms. Floyd did not recall an argument between the deceased and the appellant prior to the shooting. Ms. Floyd stated that she was distantly related to the deceased and had been seeing the appellant socially for about a month. According to Ms. Floyd, the appellant and the deceased were about three or four feet from each other at the time of the shooting, Ms. Floyd did not see any people other than the members of her party at the scene of the shooting.

Robert J. Humphrey testified that he was at the Harlem Inn on the morning of April 17, 1977. Mr. Humphrey stated that his automobile was parked directly across the street from the Harlem Inn, facing east. When he left the Harlem Inn, Mr. Humphrey got into his automobile, drove to the service station and turned left into it so that he could turn around to drive west on High Street. As he was waiting for traffic to pass before he re-entered High Street, Mr. Humphrey witnessed the shooting from a distance of about twelve or fifteen yards. Mr. Humphrey stated that he saw the appellant walking hand in hand with a woman and the deceased following about five feet behind them. According to Mr. Humphrey, the appellant suddenly let go of the woman’s hand, reached to his side for his pistol, and turned around facing the deceased. Mr. Humphrey said the appellant then aimed and fired. Mr. Humphrey did not see a weapon in the deceased’s hand, nor did he say that the deceased advanced on the appellant prior to the shooting. Mr. Humphrey testified that, immediately after the shooting, the appellant walked to the deceased, looked down at him, and then walked away with the others in his party. Mr. Humphrey immediately reported the incident to the Montgomery Police by way of his citizens’ band radio. Later that morning, Mr. Humphrey gave a statement to the police.

Reginald James Phillips testified that he was in Mr. Humphrey’s automobile, seated on the passenger’s side, at the time of the shooting. Mr. Phillips’ account of the incident substantially corroborated that of Mr. Humphrey’s. Mr. Phillips gave a statement to the police at the scene of the incident.

Montgomery Police Detective Robert H. Hankins testified that he investigated an alleged shooting at the Harlem Inn on the morning in question. At the scene of the incident, Detective Hankins interviewed Mr. Humphrey and Mr. Phillips.

At the Baptist Hospital, Detective Han-kins received from hospital personnel the clothing of the deceased. Detective Han-kins testified that he searched the deceased’s clothing and did not find a weapon. On April 18, 1977, Detective Hankins arrested the appellant at his place of employment. At the time, Detective Hankins informed the appellant that he was under arrest for murder and informed him of his Miranda rights. Detective Hankins stated that the appellant indicated he understood his rights. The appellant then made a statement to Detective Hankins, who stated that no threats, force, coercion, inducement, or hope of reward, were made or offered to the appellant to obtain a statement from him. Detective Hankins then related to the jury the substance of the appellant’s oral statement as follows (R. p. 137):

“A, In his oral statement he said that he was in fact the person who had shot the individual in question the preceding morning. He told me that the person, he thought, had had a knife and was coming at him with a knife and that he was acting in self defense.”

Detective Hankins then identified State’s Exhibit Four as being the weapon that he found in the appellant’s automobile on the morning he was arrested. The weapon was later given to the State Toxicologist by Officer Bolden.

Detective Ricky Mobley testified that he accompanied Detective Hankins during his investigation of the shooting in question and that he was present at the time of the appellant’s arrest. Subsequent to the appellant’s oral statement to Detective Han-kins, Detective Mobley advised the appellant of his Miranda rights at the police station prior to taking a written statement. Detective Mobley identified and read to the jury State’s Exhibits Six and Seven, which were respectively the standard Miranda rights forms used by the Montgomery Police Department and the appellant’s signed written statement.

After the trial judge admitted all the State’s exhibits, the State rested its case. The defense then moved to exclude the State’s evidence, which motion was denied by the trial judge.

The first defense witness was William B. Grant, who was sales manager at the appellant’s place of employment. Mr. Grant testified that he had known the appellant for four or five years and attested to the appellant s good character. On cross-examination, Mr. Grant stated that his testimony on direct examination would have been different had he known that the appellant had been arrested for aggravated assault in 1975.

The final witness for the defense was the appellant. In his account of the incident, he admitted shooting the deceased, who advanced on him with a knife. The appellant explained that he told the police he thought the deceased had a knife because the police told him that there was no knife found. The appellant stated that he faced the deceased for two or three minutes before he shot.

I

The appellant argues that the trial judge erred in allowing the State to impeach its own witnesses on two occasions over objection of defense counsel. The pertinent portion of the record appears as follows (Redirect examination of Betty Floyd, R. p. 89):

“Q. And you didn’t talk to the police or give the police a statement until two days later?
“A. That is right.
“Q. You didn’t tell them — you didn’t wait around and tell them the story — at least what you testified here immediately after—
“MR. SHINBAUM: We are going to object to this. This is his witness. He cannot impeach his own witness.
“THE COURT: Sustain the objection.”

It is well settled in the law of this jurisdiction that a party may not impeach his own witness. Flournoy v. State, 270 Ala. 448, 120 So.2d 124 (1960), on remand, 40 Ala.App. 629, 120 So.2d 121 (1960); Abernathy v. State, 42 Ala.App. 149, 155 So.2d 586 (1962); and cases therein cited.

Accordingly, the trial court properly sustained defense counsel’s timely objection in the excerpt above quoted. It appears, therefore, that there was no adverse ruling of which to complain on appeal. Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972); Boyett v. State, 18 Ala.App. 363, 92 So. 515 (1921).

The appellant argues that the State was improperly allowed to impeach its own witness on another occasion during redirect examination of Betty Bauldwin. The pertinent portion of the record appears as follows (R. p. 113-114):

“Q. While you were in the club there, this man who was bothering you all night and you didn’t want to talk to him, did you ever dance with him?
“A. I think I danced with him one time.
“Q. How many times did you dance with him?
“A. One time.
“Q. Ms. Bauldwin, do you think you can testify accurately — it was your testimony this morning that Sunday night after the shooting you gave the police a statement. Is that correct?
“A. Yes, sir.
“Q. Do you think you can testify accurately to everything you told the police or would you' need some document to refresh your present recollection?
“A. I can testify to what I told them that same night.
“Q. Okay. Then, again, based on your statement that you can testify accurately to what you told the police, do you recall now how many times you danced with—
“MR. SHINBAUM: Your Honor, I would like to make an objection at this time. This is his witness, if he is trying to impeach this witness, I would like to have him make a showing outside the presence of the jury so we can voice an entire objection to this line of questioning of this witness.
“THE COURT: Overruled.”

In McMillian v. State, 268 Ala. 363, 106 So.2d 244 (1958), the Supreme Court of Alabama stated, quoting from White v. State, 87 Ala. 24, 5 So. 829:

“ ‘A party may ask his witness, for the purpose of refreshing his memory or of showing that he has been put at a disadvantage by unexpected evidence, whether, at a certain time and place, he has not made certain statements inconsistent with his testimony on the stand, even though the admission of such inconsistent statements will injuriously affect the witness’ credibility with the jury. Campbell v. State, 23 Ala. [44] 77; Hemingway v. Garth, 51 Ala. 530; [Roscoe’s] Crim.Ev. 103; 1 Green, Ev. § 444. While this cannot be done, when the purpose and only effect of such evidence is to impeach the witness (Gandy v. State, 81 Ala. 68, 1 So. 35); yet, the mere fact that the party expects the witness to admit the contradictory statements is not sufficient to show that the purpose and sole effect of the examination is to impeach the witness or to justify the exclusion of the testimo-3lC ^ it)»

Clearly, the prosecutor’s purpose in the instant case was to refresh the present recollection of the witness whose response was inconsistent with a prior signed statement. We find no error in the trial judge’s ruling and, therefore, no merit in the appellant’s contention.

II

The appellant next contends that the trial judge should have granted his motion to exclude the State’s evidence on the ground that the evidence established the defense of self-defense.

In Griffin v. State, 49 Ala.App. 502, 273 So.2d 478, cert. denied, 290 Ala. 366, 273 So.2d 481 (1973), this Court stated:

“Briefly, the elements of self defense are (1) that the defendant must be free from fault in bringing on the fatal difficulty; and (2) that there must be a present impending peril to life or danger of great bodily harm, either real or so apparent as to impress on the mind of a reasonable person a reasonable belief of an existing necessity to take life, and the defendant must so believe; and (3) that a man as required by law must, though he may be free from fault and though he may be in danger, either real or apparent, of losing his own life or receiving serious bodily harm, flee or retreat if by retreating he could prevent the taking of life and not increase his own danger.
“. . . It is elementary that one need not retreat from his or her own home. . Griffin, supra, at 504, 273 So.2d at 480.

In the instant case, the evidence was in conflict as to whether the deceased, in fact, had a knife. The existence of this fact was material to the second element above stated. The determination of this issue presented a question for the jury. Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977). Furthermore, it is clear from the evidence that the jury could have found that the appellant could have retreated safely.

Where the evidence is sufficient to present a question for the jury, there is no error in the trial court’s denial of a motion to exclude the State’s evidence. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

Ill

The appellant asserts that the trial court erred in allowing Dr. Roper, the State Toxicologist, to give his opinion as to the type of behavior a person with a certain percent of alcohol in his blood would demonstrate. As grounds for this contention, the appellant argues that a proper predicate was not laid in the trial court in that it was not shown who drew the blood sample, or when it was taken, or the conditions under which it was taken. The objection in question comes following Dr. Roper’s testimony as to the cause of death (R. pp. 63, 64):

“Q. Now, based on your examination of the deceased, do you have a professional opinion as to the cause of death of Mr. Tyner, please?
“A. Yes, sir, I do.
“Q. What is the cause of death, in your opinion?
“A. Based on my examination of the body and internal organs of the body it was my opinion that death resulted from an acute internal hemorrhage, or sudden massive bleeding within the body subsequent to a single gunshot wound in which a major artery and several organs were penetrated.
“Q. Did you or anyone in your presence take a blood sample from the body of Mr. Tyner, please?
“A. I received a blood sample from Ross Clayton Funeral Home.
“Q. Did you or anyone in your presence or under your direction or supervision perform an analysis of that blood specimen to determine whether or not there was any ethyl alcohol contained in the blood sample taken from Mr. Tyner?
“MR. WALDEN: We object to him testifying what was found there. There is not the proper connection, there is not the—
“THE COURT: Overruled.
“Q. Did you, sir?
“A. Yes, sir.
“Q. And what was the result of that examination or analysis?
“A. Analyses of the blood specimen revealed ethyl alcohol to be present in the blood at a level of .25 percent.
“Q. Now, Dr. Roper, are you familiar with the law in Alabama as to when one is presumed to be under the influence of alcohol, or intoxicated?
“A. Yes, sir.
“Q. And what — based on your familiarity with that law, what is that percentage or level, please?
“A. This level is .1 percent.
“Q. Therefore, the ethyl alcohol in the bloodstream or blood of Mr. Tyner far exceeded the legal level when one is presumed to be intoxicated; is that correct, Dr. Roper?
“A. Yes, sir, that is correct.”

In examining the objection, above quoted, and also the one appearing on Record page sixty-four, we find that nowhere did counsel assert in the trial court, or call to the trial court’s attention that a proper predicate had not been laid for Dr. Roper’s testimony as to the blood alcohol content in the deceased’s blood.

The objections were; (1) there was no proper connection, and (2) there was no “connection shown to this case as far as that activity.” Here, Dr. Roper’s qualifications had been waived and were moreover established by his testimony, and, secondly, he personally performed the autopsy on the deceased’s body. Clearly, therefore, there had been established a proper connection between Dr. Roper and the deceased insofar as this case is concerned.

Moreover, during the cross-examination of Dr. Roper by counsel, it was established that a person with a .25 percent blood alcohol level would “walk at a staggering gait; his speech would be slurred; and his coordination would be impaired,” but that a person in this condition would still be capable of drawing a knife, cursing, and capable of attacking another person.

In this state of the record, we cannot ascribe reversible error to this questioning. In fact, if anything, such examination was beneficial to the appellant because it established the basis for the deceased’s alleged aggressiveness.

As stated in Kennedy v. State, 291 Ala. 62, 277 So.2d 878:

“It is well established that under Rule 45 an appellant must not only show error but must also demonstrate that such error was probably injurious. State v. Hodge, 280 Ala. 422, 194 So.2d 827; Kabase v. State, 244 Ala. 182, 12 So.2d 766

IV

The appellant’s final contention is that the trial judge erred in refusing to give several of appellant’s requested written charges. The appellant asserts that these charges were correct statements of the law and not substantially covered by the trial court’s oral charge.

We have carefully reviewed the learned trial judge’s oral charge to the jury. In his charge, the trial judge was meticulous in his explanation of the applicable law. We note specifically that the oral charge on the defense of self-defense was completely satisfactory. After reviewing each of the appellant’s written requested charges, we find that they were either affirmative in nature or not properly predicated on the evidence in this case, or were fully and substantially covered in the trial court’s oral charge. Section 12-16-13, Code of Alabama 1975. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied, 292 Ala. 743, 290 So.2d 213 (1973).

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Judge.

license: Public Domain

text:
    Ex parte Willie James BARNES.
    77-702.
    Supreme Court of Alabama.
    August 18, 1978.
   EMBRY, Judge.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Calvin COLE v. STATE.
    4 Div. 620.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    George E. Trawick, Ariton, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment charges grand larceny of a pocketbook containing a billfold and a pistol of the aggregate value of $75.00, the personal property of Geraldine Holley. The jury returned a verdict of guilty as charged, fixing punishment at five years imprisonment, and the trial judge set sentence accordingly.

The State’s evidence commenced with the testimony of Geraldine Holley, who stated that on or about November 2,1976, she was employed by the Chancey-Herring Paper Company in Headland, Alabama. On that date, Ms. Holley drove to her employer’s place of business to receive her monthly paycheck. When Ms. Holley arrived at her employer’s place of business, she parked in the parking area facing another automobile owned by Mr. West Herring, who was seated in his automobile reading a newspaper. Ms. Holley stated that Mr. Herring informed her that he, too, was waiting to receive his paycheck from Mr. Larry Chan-cey, whose truck was parked between Mr. Herring’s and Ms. Holley’s automobiles. Ms. Holley indicated that she walked to Mr. Herring’s automobile and conversed with him for a few minutes while they both waited. During this brief conversation, a white delivery van pulled into the parking area and parked next to Ms. Holley’s automobile on the passenger side. The driver of the van, according to Ms. Holley, looked like the appellant. The driver carried some things into the building and came back outside shortly thereafter. Ms. Holley indicated that the driver of the van walked to the front of his van, checked under the hood, then went around , to the passenger side of the van (which was adjacent to the passenger side of Ms. Holley’s automobile) and finally walked back around to the van’s driver’s side. The van pulled out of the parking lot and headed down the highway in the direction of Headland. A short time thereafter, Mr. Chancey brought Mr. Herring and Ms. Holley their paychecks, whereupon Ms. Holley indicated that she had to leave. When Ms. Holley got into her automobile, she noticed that her passenger side door was ajar and that her purse was missing. Ms. Holley stated that she informed Mr. Herring of the theft, who informed Mr. Chancey, whereupon the police were notified. Ms. Holley testified that, from the time she parked in the parking area until the time she discovered her purse was missing, no one other than the appellant had been in the immediate vicinity of her automobile.

Mr. West Herring’s testimony substantially corroborated that of Ms. Holley concerning the events on November 2, 1976. In clarifying, Mr. Herring stated that, from their vantage point in his automobile, he and Ms. Holley could not see all of her automobile. Mr. Herring identified the appellant as the driver of the van that parked beside Ms. Holley’s automobile.

The State next called Mr. Neal Forrester, a police officer for the City of Headland. Officer Forrester testified that, on November 2, 1976, he was dispatched to investigate a reported larceny at Chancey-Herring Paper Company. Officer Forrester testified that Ms. Holley reported to him a stolen purse containing a pistol. This information, together with a description of the vehicle and driver, was communicated by police radio to area police stations. Officer Forrester’s investigative report showed that the appellant was taken into custody by Sergeant Jimmy Williams in Ozark.

Sergeant Jimmy Williams testified that, on November 2, 1976, he was employed by the Ozark Police Department. On that date, he received a report on the police radio concerning a stolen purse containing a pistol, together with a description of the suspect and the vehicle he was driving. The description of the vehicle led Sergeant Williams to the Southern Star Newspaper in Ozark where a van matching the reported description was parked. Sergeant Williams ascertained from personnel in the Southern Star Office that Calvin Cole, an employee, had just returned from Headland in the subject vehicle. Sergeant Williams testified that he could not find the appellant on the premises. Cruising through town, Sergeant Williams observed the appellant driving his personal automobile, whereupon he stopped the appellant and took him into custody. Sergeant Williams stated that he called for another officer to assist him by driving the appellant’s automobile to the police station. A search of the appellant’s automobile revealed a pistol which was marked as State’s Exhibit One. Sergeant Williams stated that he did not question the appellant, nor did the appellant sign a waiver of rights.

The sole defense witness was the appellant. The appellant testified that he went to Chancey-Herring Paper Company in Headland to make a delivery. The appellant stated that the testimony of Ms. Holley and Mr. Herring, as to the arrangement of their cars in relation to the van he was driving, was accurate. The appellant explained that, after he exited from the paper company’s building, he walked to his van and checked the oil in accordance with his employer’s instructions. After raising the hood, he walked around to the passenger side of the van to get a rag from the van. It was at this time he saw a pistol in a holster lying on the ground between the van and Ms. Holley’s automobile. He picked it up, took it back to Ozark with him and there transferred it to his personal car. The appellant stated that he took nothing other than the pistol and holster, which appeared to him to have been abandoned.

The State recalled Ms. Holley, who testified that, in addition to the pistol and holster, the police recovered a small Timex watch, which she identified as belonging to her daughter. Ms. Holley stated that the watch had been in her purse.

I

This Court, per Harris, P. J., denied appellant’s motion to correct or modify the record, made pursuant to Rule 10(f), Alabama Rules of Appellant Procedure (1977). Accordingly, we do not address ourselves to matters raised in the appellant’s brief which are not contained in the record on appeal. Lucy v. State, Ala.Cr.App., 340 So.2d 840. Similarly, we can dispose of the appellant’s contention that the trial court should have ordered a continuance sua sponte in light of the fact that appellant’s counsel was appointed on the same day as the trial of the case. In examining this record, we note that no motion for a continuance was interposed, nor was there any ruling of the trial court invoked on this matter. Thus, this question is not properly presented for review. Williams v. State, 51 Ala.App. 694, 288 So.2d 753 (1974). Cf., Kearley v. State, 52 Ala.App. 405, 293 So.2d 322 (1974).

II

The appellant contends that the trial court erred in appointing counsel to represent the appellant, absent a request by the appellant for appointed counsel or waiver of the right to represent himself. The Sixth Amendment to the United States Constitution provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.”

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires that an indigent accused be afforded the right to have counsel appointed to represent him at trial. On November 14, 1977, the appellant in the instant case made known to the court that he was financially unable to employ counsel to represent him at trial, whereupon the trial court appointed counsel to represent the appellant. Such action by the trial court was entirely appropriate. Donahay v. State, 287 Ala. 716, 255 So.2d 599 (1971); Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973).

In Farretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that the Sixth Amendment “grants to the accused personally the right to make his defense.” Farretta v. California, supra, at 819, 95 S.Ct. at 2533. However, it is manifest that an accused cannot assert his constitutional right to proceed pro se unless and until he has first executed a competent, voluntary, and intelligent waiver of his constitutional right to appointed counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973). In the instant case, the appellant never waived his constitutional right to appointed counsel, nor did he indicate that he wished to proceed pro se. Hence, we find no merit in the appellant’s contention that the trial court denied the appellant his right to proceed pro se.

Ill

The appellant contends that his substantive rights were prejudiced when the prosecutor attempted to show the appellant’s silence after arrest as evidence of substantive guilt. The pertinent portion of the record reads as follows (R. p. 31):

“Q. Did he make any statements to you on that occasion?
“A. No, sir. I didn’t question him at that time.
“Q. Did he make a statement later on?
“A. He said that he had found—
“MR. WARD: We object.
“THE COURT: Yes, sustain the objection.”

In Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977), the Court stated:

“Where there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error. . . . ” Chapman v. United States, supra, at 1250.

Here, there is nothing in the record that would suggest to the jury that the defendant' refused to give a statement because he was guilty. In fact, the testimony in the record indicates that the appellant did give a statement when he was asked to do so.

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Calvin COLE.
    77-698.
    Supreme Court of Alabama.
    August 25, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Clois J. WILKINSON, alias v. STATE.
    6 Div. 681.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.

      Ralph C. Burroughs, Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is án appeal from a conviction of murder in the first degree and a sentence to imprisonment for life.

There is no disagreement between the parties on appeal as to the facts. Appellant’s short statement of the facts is adopted by appellee. We deem it sufficient basis for our summary of the facts material to the issues on appeal.

Witnesses for the State, Mr. and Mrs. Roger Whatley, stepson and daughter-in-law of appellant, testified that they were in the Wilkinson Trading Post in Bucksville, Tuscaloosa County, Alabama, on the afternoon of January 26, 1977, when they heard a loud noise that they presumed to be a Coca Cola bottle exploding. Shortly thereafter, they saw Mrs. Wilkinson, the alleged victim of the homicide, at the door separating the store from the living quarters, and saw appellant, the alleged victim’s husband, step to the door and shoot Mrs. Wilkinson. They said that when Roger Whatley first came to the trading post that day, he went straight to the back of the store into the living quarters. Roger testified that Mrs. Wilkinson told him he should not be there.

According to the testimony of appellant, Roger Whatley came to the trading post on the afternoon of January 26, 1977, and came back to the living quarters where appellant was seated and started complaining about appellant’s not working and about his drinking. Appellant then asked Roger to leave and Roger said that he “would get a gun and see who would leave the premises.” Mrs. Wilkinson also asked Roger to leave, stating that “he didn’t have any business there and knew better than to be back there arguing.” Mrs. Wilkinson then followed Roger into the store part of the premises. Appellant heard Roger threatening to kill him and shortly thereafter he heard his wife yell, “No, Roger,” and then heard a shot , come through the closed door into the living quarters. At that point, appellant fired back with a pistol he had in the living quarters, following which the door came partially open and he saw an outline of a person at the door. Appellant fired several shots and then immediately left because he feared that Roger had a loaded gun outside the door. According to testimony of witnesses for the State and appellant, appellant left the scene after the shooting in a green 1968 Buick LaSabre. He had a wreck in the LaSabre near the Green Pond-Woodstock area where some construction was being done on the road. He then hitchhiked back to the trading post where police had arrived and was there arrested.

The evidence shows conclusively that two bullets from the pistol fired, by defendant penetrated vital regions of Mrs. Wilkinson’s body and that one penetrated her heart and caused her death.

The major issue on appeal is as to the action of the trial court with reference to questions asked defendant on cross-examination as to what he had told prior to taking the stand as a witness. State’s counsel had already conducted a lengthy cross-examination of defendant, in which defendant’s testimony on direct examination had been substantially covered, when the following occurred:

“Q You told all the investigators this, of course, didn’t you?
“MR. BURROUGHS: We object to that, Your Honor.
“MR. SOGOL: We object to that.
“THE COURT: Overruled.
“MR. BURROUGHS: Except.
“MR. SOGOL: We object, Your Honor.
“THE COURT: That he told the investigators that? What is wrong with that?
“MR. BURROUGHS: He would have to show us — he would have to lay a predicate, the miranda warning and everything.
“MR. SMITH: I’m not trying to introduce any statements. I’m asking if he told them, that is all.
“THE COURT: Overruled.
“MR. BURROUGHS: We except, Your Honor.
“THE COURT: Go ahead.
“Q Did you?
“MR. BURROUGHS: Your Honor—
“THE COURT: I have ruled. I don’t want to hear anymore. You can state your grounds, but I overrule.the objection.
“MR. BURROUGHS: I understood in this court the defendant had a right to remain silent.
“THE COURT: Certainly, he has. I don’t dispute that.
“MR. BURROUGHS: Unless they lay a proper predicate as to when and what time or if he was ever asked or whether he told them anything or not.
“THE COURT: Well, maybe later on, but not at this point.
“MR. BURROUGHS: We except, Your Honor.
“THE COURT: All right, go ahead.
“THE WITNESS: Am I directed to answer?
“THE COURT: Yes, answer the question.
“Q Have you ever told this story before?
“A No, sir.
“Q This is the first time you have ever told that story, isn’t it?
“A Mr. Burroughs came over and interviewed me at the jail.

Appellant relies largely upon the recent case of Houston v. State, Ala.Cr.App., 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 825 (Ala.Cr.App.1977), in which it was held that the post-arrest silence of an accused could not be used to support an inference that his testimony on the trial is a later fabrication. In an exemplary opinion by Judge Bowen in Houston, it is stated:

“It is the opinion of this court that Doyle, supra, and the considerable body of case law both prior to and in the wake of Miranda give the force and effect of law to the Miranda dictum. Thus we hold that the use of post-arrest, post-Miranda warning silence of the accused as evidence of his guilt is a violation of the Due Process Clauses of both the Fourteenth Amendment to the Constitution of the United States and Section Six of the Alabama Constitution of 1901. An accused has the constitutional right to remain silent following arrest and where the accused remains silent, his silence can be attributed to reliance on this right. That silence may not be used to support an inference that his trial testimony is a later fabrication. People v. McClure, 42 Ill.App.3d 952, 1 Ill.Dec. 617, 356 N.E.2d 899 (1976); United States v. Moore, 484 F.2d 1284 (4th Cir. 1973). Counsel for the prosecution must scrupulously avoid all reference to or use of an accused’s assertion of his right to remain silent. United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1976).”

Appellee expressly recognizes the soundness of the proposition clearly set forth in Houston but replies to appellant’s argument for a reversal chiefly upon the following grounds:

“. . . It is the State’s contention that the questions asked by the prosecutor were not prejudicial to the defendant
“It is the State’s contention that if the facts of the case at hand are applied to the test as outlined above [contained in a quotation from Chapman v. U. S., 547 F.2d 1240 (5th Cir. 1977)] it must be said that the error complained of was harmless .
“. . . It is also equally apparent that the defendant’s ‘exculpatory story is transparently frivolous.’ Thus in light of the overwhelming evidence against the defendant at trial it must be said that the error complained of was harmless.”

We have some doubt whether the proposition so strongly advanced on appeal was sufficiently raised on the trial as to furnish a basis for reversible error, but as no such contention is made on appeal, we think that in the light of the overriding importance of the constitutional principle involved we should resolve that doubt in favor of the one whose constitutional right has been allegedly violated.

“An error involving an infringement of a defendant’s constitutional right can be held harmless only if the court is able to declare beyond a reasonable doubt that the error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Houston v. State, supra, p. 828.

Not only do we feel that it cannot be declared beyond a reasonable doubt that the quoted cross-examination of defendant, with the approval of the court, was harmless, but we cannot say that we are reasonably satisfied that it was harmless. It seems to us that it was highly prejudicial for defendant to have been subjected to an open disclosure to the jury that he had theretofore relied upon his constitutional right to remain silent. Irrespective of the purpose of the State in evoking that disclosure, the only value to the State of the disclosure was in its supporting “an inference that his [defendant’s] trial testimony is a later fabrication.” Just as it was of value to the State it was correspondingly a detriment to defendant.

We appreciate the occasion for harmless error on the subject when “the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming” as noted in Chapman v. United States, supra, relied upon by appellee, but we do not agree with appellee that either of the essentials of harmlessness (conjunctive not disjunctive) as found in Chapman v. United States, supra, that the “exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming” is shown by the evidence in the case on review. That there was strong evidence for the State, we have no doubt, but we cannot say that the testimony of defendant was frivolous; nor can we say that the evidence of guilt of murder in the first degree, of which he was found guilty, was overwhelming. We can well discern that a jury very likely would have found defendant guilty of murder in the second degree or even perhaps manslaughter in the first degree had it not been brought emphatically to their attention that he had never “told this story before” during a period of approximately ten months since his wife was killed.

It was reversible error for the trial court to permit, over the objection of defendant, testimony to the effect that what defendant said in his own behalf had never been said by him before.

In its oral charge to the jury on the subject of self-defense, the court said:

“Further, the law says that no one is excused from taking a human life, if he could have retired or retreated from the combat with safety to his own person. If there was an avenue of retreat available to the defendant and he knew of that avenue of retreat, or if he had knowledge of an avenue of retreat and he could have used it — Now, let me point this out to you, ladies and gentlemen, the defendant says he was in his own home at the time of this occurrence and that therefore he was under no legal obligation to retreat, if the other elements were present. That is correct. You don’t have to retreat from your own home, but the other elements must be present; that is, freedom from fault, and there must be an actual or apparent danger. So the three elements of self-defense, I will repeat it, the defendant must be solely free from fault in provoking the difficulty. The defendant’s belief, and there must be reasonable ground for the belief, that he was in imminent or immediate danger of his life, or great bodily harm, and the defendant must retreat if he could do so with safety to his person, but not necessary where the defendant is in his own home. That is the exception to the rule of self defense, but it goes back to this, it is going to be up to you ladies and gentlemen of the jury to decide from the evidence whether or not the defendant should be found not guilty by reason of said defense.”

At the conclusion of the oral charge, the trial judge directed the jury to go to the jury room and wait “while I talk with the lawyers” and not commence deliberations until the exhibits were brought to them. Meanwhile, the following occurred:

“THE COURT: All right, I will hear your exceptions.
“MR. SOGOL: Your Honor, the defense would initially object to Your Honor’s charge in the area of self defense in that it is the defense contention that the evidence in this case is uncontradicted that the defendant was in his own home and that therefore there is as a matter of law, no right to retreat, and we submit no duty, excuse me, no duty to retreat, and we submit, Your Honor, that should not have been included in Your Honor’s charge under the elements of self-defense and that it is not an element of self-defense in this case.
“THE COURT: I thought I made that clear.
“MR. BREELAND: Your Honor, the evidence is not clear that he was in his own home.
“THE COURT: Well, I said let the jury decide it. Go ahead, I will overrule.”

Although there are some indications in the evidence that defendant and his wife were preparing to separate and perhaps at the time of the fatal occurrence were to some extent living separate and apart, the evidence is without dispute that at that time defendant and his wife were both occupying and living at the premises where the shots were fired by defendant. In such a state of the record, the court’s charge runs afoul of what we held in Usrey v. State, 54 Ala.App. 448, 309 So.2d 485 (1975), that the court’s charge that the doctrine of retreat did not apply to one who slays another at his own home but that it was for the jury to determine the right of accused to be “where he was and what right he had to be where he was at any particular time” constituted reversible error. There may be some basis for argument that the quoted part of the court’s oral charge in the case before us did not in fact submit a factual question for the jury to decide as to defendant’s duty to retreat, but as the trial court so construed it by the statement, “Well, I said let the jury decide it,” and it is reasonably subject to such an interpretation, we construe it accordingly.

We do not hold that it is necessarily prejudicially erroneous; in a homicide case in which the evidence shows conclusively that defendant is under no duty to retreat, for the court to mention the ordinary rule that requires a retreat but also declare that defendant owed no such duty. It could well be that a charge accordingly would be harmless, perhaps more than fair to defendant under some circumstances. In accordance with Usrey, supra, however, it was prejudicial error for the court to charge that it would “let the jury decide” whether defendant came within the exception to the usual requirement of retreat, when the evidence is, as it was in Usrey, “unequivocally clear that the appellant was in his own home” at the time of the alleged homicide.

For the reasons indicated, the judgment of the trial court should be reversed and the cause remanded.

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.

REVERSED AND REMANDED.

All the Judges concur.

      . Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir. 1977).


author: ALMON, Justice.

text:
    Ex Parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-704.
    Supreme Court of Alabama.
    Aug. 18, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: SUNDBERG, Justice. BOYD, Justice,

text:
    STATE of Florida, Appellant, v. George JOYCE, Appellee. STATE of Florida, Appellant, v. Alvin Leige HUTCHESON, Appellee.
    Nos. 51753, 52147.
    Supreme Court of Florida.
    July 27, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, and T. Edward Austin, State’s Atty., and Jay Howell, Asst. State’s Atty., Jacksonville, for appellant.
    Louis R. Bowen, Jr., Public Defender, and James P. Curry, Asst. Public Defender, Orlando, for George Joyce.
    Louis O. Frost, Jr., Public Defender, Jacksonville, and William A. Rathbone, Asst. Public Defender, Ponte Yedra Beach, for Alvin Leige Hutcheson, appellee.
   SUNDBERG, Justice.

This cause consists of consolidated appeals from orders of the County Courts for Orange and Duval Counties, which initially and directly passed upon the constitutionality of Section 827.04(2), Florida Statutes (1975). Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Simple criminal child abuse, as proscribed by Section 827.04(2), may be corn-mitted in two ways: (i) by depriving a child of necessary food, clothing, shelter or medical treatment, willfully or by culpable negligence; and (ii) by permitting, knowingly or by culpable negligence, the child’s mental or physical health to be materially endangered.

Appellees George Joyce and Alvin Leige Hutcheson, in separate proceedings in the County Courts for Orange and Duval Counties, respectively, were charged by information with the first degree misdemeanor offense of simple child abuse. Hutcheson was charged with having committed both forms of proscribed child abuse while Joyce was charged only with permitting a material endangerment of a child’s mental or physical health. Each appellee moved to dismiss the information against him on the grounds that the charging statute was vague, indefinite and overbroad. The county judges granted the motions and ordered the infor-mations dismissed, from which orders the State has appealed to this tribunal.

Appellees contend that the county courts’ invalidation of Section 827.04(2), Florida Statutes (1975), is consistent with our decision in State v. Winters, 346 So.2d 991 (Fla.1977). There, Section 827.05, Florida Statutes (1975), which criminalized “negligent treatment of children,” was declared unconstitutionally vague, indefinite and overbroad. Our decision in Winters, however, does not support the determination of the county courts that Section 827.04(2), the child abuse statute, is unconstitutional. The basis for our holding there was that the negligent treatment statute made criminal acts of simple negligence — conduct which was neither willful nor culpably negligent. Section 827.04(2), in contrast, requires willfulness (scienter) or culpable negligence. The Winters Court was careful to distinguish Section 827.04(2) on this basis. As we recently concluded in upholding Section 784.05, Florida Statutes (1975), the culpable negligence statute, the term “culpable negligence” does not suffer from the constitutional infirmity of vagueness. See State v. Greene, 348 So.2d 3 (Fla.1977). Further, the United States Supreme Court has often upheld a statute claimed to be unconstitutionally vague because scienter was an element of the offense. See United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). The requirement of willfulness (scienter) or culpable negligence in Section 827.04(2), therefore, avoids the infirmity found in Winters with respect to Section 827.05 — that unintentional acts or conduct which is not the product of culpable negligence might be proscribed by the statute.

We recognize that our decision in Winters also faulted the negligent treatment statute on the grounds that the term “necessary” failed to provide a guideline for determining what, less than total deprivation, constituted a deprivation great enough to fall within its proscription. This language, however, was dicta and did not form the basis for our holding. Were this not the case, we would have been compelled to address our prior decision in Campbell v. State, 240 So.2d 298 (Fla.1970). There, we upheld the predecessor to the present Section 827.04, which prohibited “unnecessarily or excessively” chastising or mutilating a child or ward, against an attack of unconstitutional vagueness. In elucidating the rationale of our decision in Campbell, we stated:

The particular words complained of, “unnecessarily or excessively” are not vague when considered in the context of the entire Statute and with a view to effectuating the purpose of the act. The fact that specific acts of chastisement are not enumerated, an impossible task at best, does not render the statutory standard void for vagueness. Criminal laws are not “vague” simply because the conduct prohibited is described in general language.
* * * * * #
Men of common understanding can comprehend the meaning of the words “unnecessarily or excessively chastise” when read in conjunction with the entire act. The conduct described by the Statute can be determined with reasonable certainty notwithstanding the various methods of disciplining children.

240 So.2d at 299, 300 (footnote omitted).

Following the same reasoning, we conclude that the provision in the present statute, which prohibits the willful or culpably negligent deprivation of “necessary food, clothing, shelter or medical treatment,” is not constitutionally defective. We expressly recede from the aforementioned dicta in Winters to the extent that it may be construed as being inconsistent with our determination herein.

Similarly, we uphold the prohibition in Section 827.04(2) against, knowingly or by culpable negligence, permitting the physical or mental health of a child to be “materially endangered.” Webster’s New 20th Century Dictionary (2d Ed. 1957) defines both terms. “Materially” is defined as “to an important degree” and “endanger” is defined as “to expose to danger.” It is clear from this phrase that the statute contemplates conduct which, in a significant way, permits the physical or mental health of a child to be exposed to danger. This language is sufficient to inform men of common understanding of the. acts which the statute seeks to prosecute.

For the reasons expressed, therefore, we reverse the orders of the County Courts for Orange and Duval Counties finding Section 827.04(2), Florida Statutes (1975), to be unconstitutionally vague, and each cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

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

BOYD, J., concurs specially with an opinion.

BOYD, Justice,

concurring specially.

In State v. Winters, 346 So.2d 991 (Fla. 1977), the “negligent treatment of children” statute, Section 827.05, Florida Statutes, was under attack for vagueness. The Court struck the statute because criminal penalties could be inflicted on someone for an act of simple negligence. But, the Court said more. It stated, at 993,

Depending upon the standard adopted, any given shelter, whether in the suburbs or the ghetto, could be found to fall short of “necessary shelter.” Similarly, each person must ask just how much and what quality of food, clothing, shelter and medical treatment he must provide to avoid jeopardy. Nothing in the statute gives us the answer. There are no guidelines.

It appeared to me that in striking the statute the Court faulted its wording of both the “necessary shelter” and the “simple negligence” elements. I dissented on both counts. I am happy to see the Court, today, recede from language in Winters which, at the very least, intimates that in matters of child abuse a standard of what is “necessary” for a child’s welfare is too vague to apprise the public of unlawful conduct. I concur in all aspects of the majority opinion.

      . As distinguished from aggravated child abuse, which is proscribed by § 827.03, Fla. Stat. (1975).

      . § 827.04(2), Fla.Stat. (1975), provides:
      “Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, permits the physical or mental health of the child to be materially endangered, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

      . 346 So.2d at 993, n. 1.

      . § 827.04, Fla.Stat. (1969).


author: SUNDBERG, Justice.

text:
    Edmond J. FARRELL, III, Petitioner, v. AMICA MUTUAL INSURANCE COMPANY and American Mutual Liability Company and Industrial Relations Commission, Respondents.
    No. 51825.
    Supreme Court of Florida.
    July 27, 1978.

      Julian L. Miller of Miller & Anderson, St. Petersburg, for petitioner.
    No appearance, for respondents.
   SUNDBERG, Justice.

We are here presented with the question whether the Industrial Relations Commission has the authority to vacate an otherwise final order of the Commission entered some five months before, where the motion for relief from the original order is made approximately four months from the date the order became final. We hold that the Commission has no such authority. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 440.27, Florida Statutes (1975).

The cause arrives at this Court via a rather tortuous and extraordinary route. Hearing on petitioner’s claim for compensation was held before the Judge of Industrial Claims on April 2, 1976. On April 20, 1976, the Judge of Industrial Claims directed a letter to counsel for the employer/carrier requesting that counsel submit a proposed draft for the Judge’s consideration wherein he would recite certain findings and deny compensability on the claim. The only response to the letter of direction from the Judge of Industrial Claims appearing in the record is a letter from the attorney for the employer/carrier dated July 30, 1976, wherein that counsel advised that he had not been able to draft a proposed order due to the press of other business. After five months without any other response and in preparation for drafting the necessary order without the aid of counsel, the Judge of Industrial Claims reviewed, in detail, the materials which composed the record of the cause. Upon that review the Judge concluded that the claim was compensable and, accordingly, entered an order on November 18, 1976, awarding benefits to the claimant.

The record reflects that counsel for the employer/carrier under date of December 7, 1976, mailed to the Industrial Relations Commission in Tallahassee, Florida, an original and two copies of an Application for Review. The Application for Review was not received by the Industrial Relations Commission in Tallahassee, Florida, until December 10, 1976, a date beyond the time period prescribed by Section 440.25(4)(a), Florida Statutes (1975). Consequently, by order entered December 15,1976, the Application for Review was dismissed by the Industrial Relations Commission. It should be noted that a carbon copy of the transmittal letter to the Industrial Relations Commission dated December 7, 1976, together with a copy of the Application for Review, was directed to the office of the Judge of Industrial Claims. On a date pri- or to May 11, 1977, counsel for the employer/carrier ascertained that, in fact, the copy of the Application for Review directed to the office of the Judge of Industrial Claims had been received by that office on December 8, 1976, which constituted a timely and appropriate filing under Section 440.-25(4)(a), Florida Statutes (1975). Thereupon counsel for the employer/carrier filed with the Industrial Relations Commission on May 13, 1977, a motion for relief from the Commission’s order of December 15, 1976, alleging the timely filing of Application for Review with the office of the Judge of Industrial Claims and asserting that the error, inadvertence and oversight had not been discovered until immediately prior to the filing of the motion for relief. After its search of the record which confirmed the timely filing with the office of the Judge of Industrial Claims, the Industrial Relations Commission on May 25, 1977, entered its order vacating the order of December 15, 1976.

Petitioner has timely filed a petition for certiorari in this Court to review the action taken by the Industrial Relations Commission in its order of May 25, 1977. We have had the benefit of neither a brief nor oral argument from counsel for the employer/carrier. However, counsel for the claimant/petitioner has both briefed and orally argued the cause in this Court.

The Industrial Relations Commission derives its very existence and authority from the legislature. Sections 440.25 and 440.45, Florida Statutes (1975). The Industrial Relations Commission is an administrative body possessing quasi-judicial power but it is not a court. Article V, Section 1, Florida Constitution. However, the Commission possesses certain procedural authority pursuant to Rules of Practice and Procedure adopted by this Court. See In re Florida Workmen’s Compensation Rules of Procedure, 343 So.2d 1273 (Fla.1977).

We have carefully scrutinized Chapter 440, Florida Statutes (1975), as well as Workmen’s Compensation Rules of Procedure, and find no authority in the Commission by statute or rule to vacate an order rendered by it which has become final. An order of the Commission becomes final upon expiration of thirty days from its rendition unless an interested party files a petition for writ of certiorari in this Court in accordance with Section 440.27, Florida Statutes (1975). Section 440.25(4)(e), Florida Statutes (1975); Florida Rules of Appellate Procedure 9.110(b).

It is suggested that the Industrial Relations Commission is vested with inherent authority to correct a final order which was based on error of fact or was procured through fraud or the like just as a constitutional court prior to Florida Rules of Civil Procedure 1.540 could do through issuance of a writ of error coram nobis. The function of a writ of error coram nobis was to bring the attention of the court to a specific fact or facts then existing but not shown by the record and not known by the court or by the party or counsel at the trial, and being of such a vital nature that if known to the court in time would have prevented the rendition and entry of the judgment assailed. Lamb v. State, 90 Fla. 844, 107 So. 530 (1926). The writ of error coram nobis is a remedy known to the common law and was viable in the courts of this State by virtue of Section 2.01, Florida Statutes (1975), which provides:

The common and statute laws of England which are of a general and not a local nature . . . [with an exception not material herein], down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state.

While the writ at common law was usually issued by the court of Kings Bench which is comparable in jurisdiction to our circuit court, it has been held that the authority also reposed in other courts of record established from time to time by our Constitution. See Leavitt v. State, 116 Fla. 738, 156 So. 904 (1934). This is so because such courts are vested impliedly by the Constitution with such common law powers of procedure as are applicable to their jurisdiction as courts of record. And herein lies the difference between a court established by our Constitution and an administrative tribunal. The former enjoys common law powers of procedure because it is a court whereas the latter has no inherent authority as a tribunal of the common law. The Industrial Relations Commission in accordance with Article V, Section 1, Florida Constitution, exists and operates under a grant of quasi-judicial power from the legislature supplemented only by the rules of practice and procedure applicable to it adopted by this Court. No common law authority inheres in the Industrial Relations Commission.

Closely akin to the theory of a writ of error coram nobis is the contention that Florida Rule of Civil Procedure 1.540 supplies authority for the Industrial Relations Commission to vacate an order made final by operation of Chapter 440, Florida Statutes (1975). Although some of the provisions of the Florida Rules of Civil Procedure have been “borrowed” by the Workmen’s Compensation Rules of Procedure (see, for example, Rules 2(a) and 9, W.C.R. P.), there has been no incorporation of the provisions, practice or procedure of Florida Rule of Civil Procedure 1.540 into the Workmen’s Compensation Rules of procedure. In the absence of any expressed incorporation of a rule of civil procedure no implied application of such rule can be sanctioned. By their very terms the Florida Rules of Civil Procedure provided that “[tjhese rules apply to all suits of a civil nature and all special statutory proceedings in the circuit courts and civil courts of record and other trial courts except those to which the probate and guardianship rules or the summary claims procedure rules apply but the form, content, procedure and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceedings unless these rules specifically provide to the contrary.” Fla.R.Civ.P. 1.010 (emphasis supplied).

There being no express, implied or inherent authority to support the action taken by the Industrial Relations Commission, the petition for writ of certiorari is granted and the order of the Industrial Relations Commission here under review is quashed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and ALDERMAN, JJ., concur.

OVERTON and HATCHETT, JJ., dissent.


author: ALDERMAN, Justice.

text:
    STATE of Florida, Petitioner, v. Louis NOVA, Respondent.
    No. 51921.
    Supreme Court of Florida.
    July 27, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Ira N. Loewy, Asst. Atty. Gen., Miami, for petitioner.
    Bernard S. Yedlin, Miami, for respondent.
   ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court in Nova v. State, 346 So.2d 1214 (Fla. 3d DCA 1977), which directly conflicts with Gerrard v. State, 345 So.2d 849 (Fla. 3d DCA 1977); State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975), cert. dismissed 312 So.2d 761 (Fla.1975); and Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974), aff’d 329 So.2d 270 (Fla.1976), which hold that, on a motion to suppress, the trial judge’s conclusions of fact come to the reviewing court clothed with a presumption of correctness, and in testing the accuracy of these conclusions, the appellate court must interpret the evidence and all reasonable deductions and inferences which may be drawn therefrom in the light most favorable to the trial judge’s conclusions.

We have jurisdiction pursuant to Article V, Section 3(B)(3), Florida Constitution.

In the present case, the defendant, Louis Nova, was tried, convicted and sentenced to life imprisonment for the first degree murder of his girl friend, Belinda Revel. The defendant filed a pre-trial motion to suppress the testimony of Juanita Bentley concerning a threat he made against Belinda Revel during a telephone conversation he had with Revel prior to her death, which conversation was overheard by Bentley on an extension telephone. The motion to suppress was denied by the trial court.

The defendant raised two issues on appeal: whether the trial court erred in denying his motion to suppress Bentley’s testimony concerning the telephone conversation and whether the evidence was sufficient to support his conviction for first degree murder. The District Court reversed as to the first point but did not reach the second. After determining that Juanita Bentley’s testimony did not fall within the exclusion of Section 934.02(4)(a), Florida Statutes (1975), the District Court held that Bentley’s testimony should have been suppressed. It expressly found:

While Juanita Bentley was Belinda Revel’s supervisor, we are convinced that her “eavesdropping” was not done in her capacity as supervisor but was instead satisfying her curiosity. As Miss Bentley, herself, stated, “I just wanted to know who it was that was calling her.” Miss Bentley also testified that she found it “funny” that an older man, appellant, age 53, was continuously calling a younger woman, the deceased, age 22.

In this case, the District Court, on a factual issue, substituted its judgment for that of the trial court and, thereby, created conflict with the above cited decisions.

On the merits of the appeal, we conclude that the decision of the District Court is wrong and should be reversed. Section 934.06 provides:

Prohibition of use as evidence of intercepted wire or oral communications.— Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

The word “intercept” is defined in Section 934.02(3):

“Intercept” means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device; . . .

The term “electronic, mechanical, or other device” is defined in Section 934.02(4)(a) as any device or apparatus which can be used to intercept a wire or oral communication other than:

Any telephone or telegraph instrument, eqúipment or facility or any component thereof furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business, or being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; . . .

The determinative issue is whether the exclusion provided by Section 934.02(4)(a) is applicable. After a lengthy evidentiary hearing, the trial court concluded that Bentley was acting in her capacity as Revel’s supervisor when, with Revel’s consent, she listened in on the telephone conversation between Revel and the defendant. The defendant’s telephone call was made to Revel at her place of employment and was received by her on a company telephone. A previous telephone call to Revel from the defendant that same morning had left her visibly upset. The trial judge found that it was reasonable for Bentley, as Revel’s supervisor, to listen on the phone in order to find out why Revel was so upset. He concluded that Bentley’s use of the telephone in this instance was for the benefit of her employer and was in the ordinary course of business, and he found that the exclusion provided by Section 934.02(4)(a) was applicable. From review of the record, we conclude that the holding of the trial court is supported by competent substantial evidence. When the District Court found that Bentley’s “eavesdropping” was not done in her capacity as supervisor but was, instead, satisfying her curiosity, it substituted its judgment for that of the trial court, and in so doing, it erred.

On the second issue, after review of the record, we conclude that the evidence is sufficient.

Accordingly, the decision of the District Court is quashed and this cause is remanded with directions to reinstate the judgment of the trial court.

It is so ordered.

ENGLAND, C. J., and BOYD, OYER-TON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.


author: ENGLAND, Chief Justice.

text:
    FLORIDA STATE BOARD OF DENTISTRY, Appellant, v. Robert J. H. MICK, D.D.S., Appellee.
    No. 52087.
    Supreme Court of Florida.
    July 27, 1978.
    Robert L. Shevin, Atty. Gen., and Thomas M. Beason, Asst. Atty. Gen., Tallahassee, for appellant.
    Lester W. Jennings, Miami, for appellee.
   ENGLAND, Chief Justice.

The Florida State Board of Dentistry has asked us to review a decision of the First District Court of Appeal which declared invalid the residence and domicile requirements for dentists set forth in Section 466.-17(2), Florida Statutes (1975). Inasmuch as the district court initially and directly passed on the constitutionality of the statute, we have jurisdiction to review its decision. We affirm.

Section 466.17(2) provides that any dentist who does not maintain residence and domicile in Florida is to be issued upon application a “conditional renewal certificate” and may not practice dentistry in the state until his certificate is renewed on an annual basis subject to an evaluation by the Board as to his continued skill and competency. The issue presented for our consideration is whether the statute violates the Equal Protection Clauses of the United States and Florida Constitutions.

The First District determined that the residency and domicile requirement of the statute burdened the right to travel interstate, for purposes insufficient to satisfy a compelling state interest. Relying on our decision in Hall v. King, 266 So.2d 33 (Fla.1972), the court applied the strict standard of review required in an equal protection analysis of a statutory scheme which involves a fundamental right. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). In Hall we applied the “compelling state interest” test to hold unconstitutional a statute providing for revocation of a real estate broker’s license if the registrant became a non-resident of Florida.

With regard to the standard for evaluating this statute’s “continuing residency” requirement, as opposed to a “dura-tional residency” requirement which affects the exercise of a “fundamental” right (such as voting), we note that the United States Supreme Court has in recent years applied a less strict “reasonable classification” test to the federal guarantee of equal protection. First, in Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), and then in McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976), the Court limited its earlier decisions of Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), on which we had relied in Hall. These decisions collectively stand for the application of a compelling state interest analysis only when a durational residency requirement is involved, a situation not present in this case. In view of these clear pronouncements regarding the relationship between the right to travel interstate and the various types of residency requirements, we recede from our decision in Hall to the extent it conflicts with more recent federal standards for judicial review.

' The proper standard by which to assess the statute’s validity in this case is whether the statutory classification rests on a difference which bears a just and reasonable relationship to a legitimate state interest.

Our analysis of the statutory scheme for dentist licensure indicates that Section 466.17(2), Florida Statutes (1975), creates an arbitrary and unreasonable classification between previously licensed Florida dentists who continuously reside in Florida and those who do not. A dentist licensed to practice in Florida is subject to extensive practice requirements set out in Chapter 466, Florida Statutes (1975), and his license is subject to revocation or suspension for various forms of unprofessional conduct. The Board can with equal facility investigate the competency of any dentist charged with unprofessional conduct, whether a resident dentist chooses to practice only two months a year and travel on vacation for the remainder of the year, or whether a nonresident dentist, such as Dr. Mick, maintains office facilities in Florida and chooses to divide his time with an out-of-state dental practice. In either case, the continuing investigatory jurisdiction of the Board and the requirement of annual license renewal provide ample opportunity for the Board to assure the dentist’s quality and fitness to practice dentistry in this state. Under these circumstances, the annual “conditional” certificate for non-resident dentists, and the accompanying fee, are no more than a discriminatory license fee imposed on some members of a profession to which all admitted members have already been deemed qualified. This additional burden denies non-resident Florida dentists equal protection of the laws.

For the reasons expressed, the decision of the First District Court of Appeal is affirmed.

BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs in result only.

      . Mick v. Florida State Bd. of Dentistry, 347 So.2d 138 (Fla. 1st DCA 1977).

      . Art. V, § 3(b)(1), Fla.Const.

      . In its entirety, Section 466.17(2) reads:
      Any dentist who does not currently maintain residence and domicile in this state, shall be issued a conditional renewal certificate upon application for a payment of the $35 fee as provided in subsection (1), and cannot practice in this state until he has obtained a current annual renewal certificate. No annual renewal certificate shall be issued to the holder of a conditional renewal certificate if for good cause, the board determines that the applicant has not maintained the degree of professional skill and knowledge required when he was first licensed in this state, has become physically or mentally incompetent, or has been guilty of immoral conduct. The board may, in its discretion, require said person to demonstrate to the board that he has maintained such professional skills and knowledge and has not been guilty of conduct which would warrant suspension or revocation of a license under this law.
      The last phrase in Section 466.17(1) references this provision and should be considered inoperative. In due course it should be expunged from the statutes, along with Section 466.17(2).

      . U.S.Const. amend. XIV; Art. I, § 2, Fla.Const.

      . In McCarthy, the Court said (424 U.S. at 646, 96 S.Ct. at 1155):

        “[Shapiro v. Thompson, Dunn v. Blumstein and Memorial Hospital v. Maricopa County ] [e]ach . . . involved a statutory requirement of residence in the State for at least one year before becoming eligible either to vote, as in Dunn, or to receive welfare benefits, as in Shapiro and Memorial Hospital. .

      We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration. Thus in Shapiro ... we stated: ‘The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites.’ And in Memorial Hospital, . . quoting Dunn, the Court explained that Shapiro and Dunn did not question ‘the validity of appropriately defined and uniformly applied bona fide residence requirements.’ ”

      . See Florida Real Estate Comm’n v. McGregor, 336 So.2d 1156, 1159 (Fla.1976).

      . See, among others, § 466.24, Fla.Stat. (1975).

      . The Board tests competency and invokes disciplinary measures only on the basis of complaints, rather than periodic inspections of dental offices. There are no periodic tests as to the continuing qualification and fitness of dentists to practice their profession.

      . Dr. Mick’s status as a non-resident, factually determined by a hearing officer and approved by the Board, is not before us on review.

      . § 466.17(1), Fla.Stat. (1975).


author: ALDERMAN, Justice. BOYD, Justice,

text:
    Michael SCHULTZ, Appellant, v. STATE of Florida, Appellee. Raymond D. RAMSAY, Appellant, v. STATE of Florida, Appellee.
    Nos. 52361, 52362.
    Supreme Court of Florida.
    July 27, 1978.

      A. Clifton Black, Orlando, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Justice.

This cause is before us on direct appeal to review the judgments of the County Court of Orange County upholding the constitutionality of Section 849.231, Florida Statutes (1975), which makes the manufacture, sale, purchase or possession of gambling devices unlawful. We have jurisdiction pursuant to Article V, Section-3(b)(3), Florida Constitution.

Two issues are presented: first, whether Section 849.231 is unconstitutionally vague and indefinite or overbroad; and second, whether the trial court erred in not allowing the defendants to present evidence to show that certain equipment, alleged by the State to be unlawful gambling paraphernalia, was not “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments,” and by instructing the jury that the items specifically named in Section 849.231 are illegal regardless of whether they are “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments.”

The defendants were charged by information with possession of gambling paraphernalia contrary to Section 849.231. Upon entering pleas of not guilty, they each filed motions to dismiss, alleging that Section 849.231 is unconstitutionally vague and overly broad. The trial court denied their motions, and the defendant Schultz was then tried and convicted. Thereafter, defendant Ramsay, reserving his right to appeal, withdrew his plea of not guilty and pled nolo contendere.

The defendants were associated with Vision Enterprises, Inc., a convention and amusement service company which specialized in theme entertainment for local hotels and corporate association conventions and meetings. At two of the theme shows, entitled “Monte Carlo Night” and “Great Gatsby Night,” party-goers engaged in simulated gambling with play money.

On the evening of May 18, 1977, Vision put on a “Monte Carlo Night” for Union Carbide Corporation and its employees at the Hyatt House Hotel in Osceola County. Orange County sheriff’s officers followed a truck from Vision Enterprises’ place of business in Orlando to the Hyatt House, where they watched the truck being loaded with the alleged gambling devices. The officers then followed the truck back into Orange County, where it was stopped and the equipment seized.

The relevant portion of Section 849.231 provides:

849.231 Gambling devices; manufacture, sale, purchase or possession unlawful.—
(1) . . . [I]t shall be unlawful for any person to manufacture, sell, transport, offer for sale, purchase, own, or have in his possession any roulette wheel or table, faro layout, crap table or layout, chemin de fer table or layout, chuck-a-luck wheel, bird cage such as used for gambling, bolita balls, chips with house markings, or any other device, implement, apparatus, or paraphernalia ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments, excepting ordinary dice and playing cards.

The trial court construed this statute to mean that the items specifically identified in the statute were unlawful per se and instructed the jury that the phrase “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments” modifies only the terms “or any other device, implement, apparatus or paraphernalia.” We do not agree with the trial court’s construction, but rather, we find that this phrase also modifies the items expressly enumerated in the statute. With this construction, we hold that Section 849.231 is neither unconstitutionally vague or overbroad.

Indisputably, it is within the police power of the State to enact legislation to suppress gambling. Pasternack v. Bennett, 138 Fla. 663, 190 So. 56 (1939); Eccles v. Stone, 134 Fla. 113, 183 So. 628 (1938).

It is equally well established that, when reasonably possible, a statute should be construed in such a manner as to avoid conflict with the Constitution. Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976); State v. Dinsmore, 308 So.2d 32 (Fla.1975). A statute is unconstitutionally vague when men of common understanding and intelligence must necessarily guess at its meaning. Zachary v. State, 269 So.2d 669 (Fla.1972); Aztec Motel, Inc. v. Faircloth, 251 So.2d 849 (Fla.1971). A statute is overbroad when legal, constitutionally protected activities are criminalized as well as illegal, unprotected activities, or when the Legislature sets a net large enough to catch all possible offenders and leaves it to the courts to step inside and determine who is being lawfully detained and who should be set free. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); State v. Wershow, 343 So.2d 605 (Fla.1977).

The construction given Section 849.231 by the trial court renders this section unconstitutionally overbroad. As so construed, the statute would proscribe possession of children’s toys which resembled or could be identified by name as any of the items specified in the statute. Possession of stage props purporting to be a roulette wheel or a crap table but not designed for gambling nor commonly or ordinarily used for gambling would be a punishable offense. Compare Foster v. State, 286 So.2d 549 (Fla.1973), where we held that one cannot be convicted of possession of a burglary tool when that tool is nothing more than a simple screw driver, unless the screw driver is actually used in a burglary. In Foster, we said:

To rule otherwise, would be to hold that the state has the police power to criminalize possession of a simple household tool, i. e., a screwdriver. It does not. It would be an unconstitutional act — in excess of the State’s police power — to criminalize the simple possession of a screwdriver, just as much as it would be to criminalize the possession of such items as ladies’ hat pins, automobile tire iron kits, et cetera, without first requiring that they first be used as burglary tools. An examination of the burglary tools statute reveals the potential for any number of common household tools to be “illegal” unless the statute is construed, in an appropriate case, such as this, to require that for such a tool to be “illegal”, it must be used as a burglary tool — thus becoming a facet of the burglary, breaking and entering transaction, etc.

Since, when reasonably possible and consistent with legislative intent, we must give preference to a construction which will give effect to the statute over another construction which would defeat it, we hold that the items expressly identified in Section 849.231 as “any roulette wheel or table, faro layout, crap table or layout, chemin de fer table or layout, chuck-a-luck wheel, bird cage such as used for gambling, bolita balls, chips with house markings” are modified by the phrase “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments.”

Defendants contend that the equipment used at “Monte Carlo Night” and “Great Gatsby Night” was not ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments but, to the contrary, was specifically designed to be different from professional gambling equipment. They assert, and we agree, that whether the equipment was ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments is relevant to the determination of whether the items in question were gambling devices under Section 849.231. We conclude- that the trial court erred in not allowing the defendants to present evidence as to whether the equipment was ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments, and we also conclude that the trial court erred in instructing the jury that it need not consider whether the equipment was ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments.

Accordingly, we hold that Section 849.-231, Florida Statutes (1975), as construed, is neither unconstitutionally vague and indefinite nor overbroad, reverse the judgments of the trial court and remand for new trial consistent with our construction of Section 849.231.

It is so ordered.

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

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

Article X, Section 7 of the 1968 revision of the Florida Constitution prohibits lotteries, except for those permitted by law at the effective date of the 1968 Constitution.

Since the Legislature may not constitutionally enact a statute which would permit lottery gambling, and since the equipment under consideration here was obviously used for that purpose, I am unable to understand how the construction placed upon the statute by the majority could rest upon sound constitutional grounds.

The majority opinion indicates that an exception is somehow ingrained into the statute to permit the use of gambling equipment for charitable or social events if the equipment differs from that normally used in professional gambling houses. The statute proscribes the manufacture, sale, transport, offering for sale, purchase, ownership or possession of specified gambling equipment “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments.” Whenever a congregation of people assemble and gamble for an evening with gambling equipment the house used for that purpose is a gambling house. Evidence in the record indicates that play money won by the participants was exchanged for prizes, gifts, or used at an auction.

If the people of Florida consider that such gambling should be permitted by law, the Constitution and statutes should be revised to conform to the public will.

        Lotteries. — Lotteries, other than the types of pari-mutuel pools authorized by law as of the effective date of this constitution, are hereby prohibited in this state.


author: PER CURIAM. HATCHETT, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Bruce J. DANIELS, Respondent.
    No. 53476.
    Supreme Court of Florida.
    July 27, 1978.
    Mark M. Bradfield, Bar Counsel, West Palm Beach, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On February 24, 1978, The Florida Bar filed its Petition alleging:

“1. On May 2, 1977, counsel for The Florida Bar filed a complaint charging respondent with violating Disciplinary Rules 1 — 102(A)(5), 7-102(A)(7) and 7-102(B)(1) of the Code of Professional Responsibility of The Florida Bar.
“2. On January 9, 1978, respondent executed a conditional guilty plea in which he admitted violating Disciplinary Rules 1 — 102(A)(5), 7-102(A)(7) and 7-102(B)(1) in that he was retained to prepare deeds for property purchased pursuant to a contract for deed, and relying on records which he knew to be inaccurate and incomplete, respondent prepared erroneous deeds for the grantee. When the errors were brought to respondent’s attention, he failed to take any meaningful action to remedy the improper conveyances. Respondent further violated Disciplinary Rule 1 — 102(A)(5), 7-102(A)(7) and 7-102(B)(l) in that he issued instruments entitled ‘Certificate of Insured Title’ for issuance by his client when respondent knew that no insurance or escrow funds existed pursuant to the certificates, and that the instruments were valueless.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Bruce J. Daniels, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $348.50 are hereby taxed against the Respondent.

It is so ordered.

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

HATCHETT, J., dissents with an opinion.

HATCHETT, Justice,

dissenting.

I would disapprove the conditional guilty plea.