author: BOOKOUT, Judge. TYSON, Judge, DeCARLO, Judge,

text:
    STATE v. Ferdinand D. BRADFORD, Jr.
    6 Div. 724.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.

      William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.
    Arthur Parker, Ira H. Kline, Birmingham, for appellee.
   BOOKOUT, Judge.

Ferdinand D. Bradford, Jr., a licensed physician, was indicted by the Jefferson County Grand Jury for violation of Act No. 1407, § 505, Acts of Alabama 1971, approved September 16, 1971 (now § 20-2-74, Code of Ala.1975). The indictment, omitting the formal parts, is as follows:

“FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, a physician licensed to practice under the laws of the State of Alabama, did on to-wit: June 21, 1977, unlawfully violate section 258(58) of Title 22 known as the Alabama Uniform Controlled Substances Act, in that he to-wit: issued a prescription for Robitussin AC, a controlled substance, and Tenuate dos-pan, a controlled substance, to Tyrone Anderson going by the name of Tyrone Holmes and that such prescription was not issued in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for Robitussin AC and Tenuate Dos-pan was in fact subsequently filled by a pharmacist,
“2nd: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for tenuate dospan, a controlled substance, to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Mary Glisson not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for tenuate dospan was in fact subsequently filled by a pharmacist,
“3rd: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for Ionamin, a controlled substance to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Janice Ward not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for ionamin, was in fact subsequently filled by a pharmacist, “4th: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for tepanil ten-tab, a controlled substance to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Joyce Banks not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for tepanil ten-tab was in fact subsequently filled by a pharmacist,
“5th: The Grand Jury of said county further charge that before the finding of this indictment FERDINAND D. BRADFORD, JR., whose name is to the Grand Jury otherwise unknown, did on to-wit: June 21, 1977, violated section 258(58) of the Alabama Uniform Controlled Substances Act in that he to-wit: issued a prescription for Quaalude, a controlled substance, to Tyrone Anderson going by the name of Tyrone Holmes and such prescription was issued in the fictitious name of Dorothy Smith not in good faith for a legitimate medical purpose in the usual course of his professional practice and such prescription for Quaalude was in fact subsequently filled by a pharmacist,”

The pertinent section of the statute under which appellee was charged is as follows:

“Section 505. (Rules and Regulations Pertaining to Administering, Dispensing, and Prescribing by Practitioners.) It shall be unlawful for any practitioner of dentistry to prescribe, administer, or dispense any controlled substance enumerated in Schedules I through V for any person not under his treatment in his regular practice of his profession or for any practitioner of veterinary medicine to prescribe, administer, or dispense any controlled substance enumerated in Schedule I through V for the use of human beings. Provided, however, that the provisions of this section shall be construed not to prevent any lawfully authorized practitioner of medicine from furnishing or prescribing in good faith for the use of any habitual user of substances enumerated in Schedules I through V who is under his professional care such substances as he may deem necessary for their treatment, when such prescriptions are not given or substances furnished for the purpose of maintaining addiction or abuse. Any person who violates this section shall be guilty of a felony and shall on conviction thereof be subject to imprisonment for not less than 2 nor more than 15 years.”

Counsel for the appellee filed a demurrer to the indictment alleging, among other grounds, that the facts as alleged did not violate the statute; that the statute “does not proscribe conduct of a licensed physician in and about the issuing of prescriptions for controlled substances.” Ground 12 of the demurrer contended that the statute violated the appellee’s rights under the state and federal constitutions as being vague, indefinite and overbroad; failing to sufficiently put the appellee on notice as to his duties as a licensed physician in issuing prescriptions for controlled substances; and that it fails to meet due process of law.

The trial judge sustained the appellee’s demurrer to the indictment holding that the statute was “unconstitutional as to licensed physicians in that said section is vague and ambiguous and does not fully apprise a licensed physician as to what constitutes unlawful conduct as regards prescribing of controlled substances.” The State appealed the ruling of the trial court to this court.

I

The statute in question (referred to throughout the record by its unofficial designation as Title 22, § 258(58), Code of Ala.1940) clearly and patently applies only to dentists and veterinarians by its expressed terms.

In its simplest form, the statute states that it shall be unlawful for (1) a practitioner of dentistry to prescribe certain drugs to a person not his patient, or (2) a practitioner of veterinary medicine to prescribe certain drugs for human use. Nowhere in § 505 does the legislature state that it shall be unlawful for a practitioner of medicine to do anything. A limitation or rule of construction is added to § 505 stating that the section “shall be construed not to prevent any lawfully authorized practitioner of medicine from furnishing or prescribing in good faith for the use of any habitual user of substances enumerated . . . who is under his professional care such substances as he may deem necessary for their treatment” when the drugs are not to maintain addiction. (Emphasis supplied.)

Whatever the purpose of the quoted rule of construction, the act could not be construed as applying to physicians, regardless of whether or not they act in good faith, simply because the only prohibitions in the statute specifically apply only to dentists and veterinarians.

It would take a strained and convoluted construction to apply the criminal sanctions of § 505 to a physician. One of the most elementary principles governing the review of criminal cases is that criminal statutes must be strictly construed in favor of the persons sought to be subjected to their operation. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). In Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952), the Alabama Supreme Court restated that fundamental principle by quoting from cases of longstanding historical importance in this state:

“ ‘ * * * “A penal statute cannot be extended by implication or construction to cases within the mischief, if they are not at the same time within the terms of the act, fairly and reasonably interpreted.” . .

Likewise, in Fuller the Supreme Court quoted from Young v. State, 58 Ala. 358 (1877):

“The rule is, that penal laws are not by construction to be made to embrace cases not plainly within their meaning. . One who commits an act which does not come within the words of a penal statute, according to the general and popular understanding of them, when they are not used technically, is not to be punished thereby, merely because the act contravenes the policy of the statute.”

The clause in § 505, supra, referring to practitioners of medicine is clearly not penal in nature, but is merely a rule of construction or at most a statement of “policy.”

Statutes should be given a constitutional construction when possible, and we construe § 505, supra, as being constitutional in its application to those persons coming within its purview — dentists and veterinarians. But, being constitutional as written and being applied in an unconstitutional manner are two different propositions. We consider the act to be constitutional on its face, yet the State attempted to enforce it in a very unconstitutional manner against a person to whom it did not apply.

The dissenting opinion (which was originally written as the majority opinion) cites United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975) as authority to validate the indictment, however, Moore is based upon a federal statute that in no detail resembles the Alabama statute in question. Neither is light shed upon the issue by looking to other foreign jurisdictions for definitions of and constructions placed upon the term “good faith” as used in statutes completely dissimilar to ours.

II

There is an additional reason for affirming the trial court. The indictment is patently defective even under the State’s interpretation of the statute. Assuming, arguendo, that the statute did apply to physicians, then the indictment would additionally have to charge that the defendant prescribed the drugs to a habitual user for the purpose of maintaining addiction or abuse.

Count One merely states that the defendant prescribed a drug to “Tyrone Anderson going by the name of Tyrone Holmes,” that the prescription was not issued in good faith and was later filled by a pharmacist. Such wording fails to track any of the wording of the statute. Count Two alleges the same except it adds that the prescription was issued in the fictitious name of Mary Glisson. Counts Three, Four and Five allege the same except different drugs and different fictitious names.

It escapes us what relationship to the statute a prescription has that was issued to “Tyrone Anderson going by the name of Tyrone Holmes” as set out in Count One. Likewise, we find no reference to a fictitious name anywhere in the statute. Evidently, the State relies upon the “evil” of writing a prescription (1) in a fictitious name and (2) not in good faith for a legitimate medical purpose in the usual course of the defendant’s professional practice. The only words in the five allegations of the indictment which even appear in the statute are: “in good faith.”

If construed as a prohibition at all, the pertinent section would prohibit: (1) a “practitioner of medicine” from (2) furnishing one of the schedule drugs (3) not in good faith (4) to a habitual user (5) for the purpose of maintaining addiction or abuse. Thus, taking the wording of the clause in question and reversing the phraseology (which is necessary to write it as a prohibition), it is readily apparent that not one of the charges in the indictment even comes close to describing the conduct which the State says the statute prohibits. None of the above five elements, except “good faith” (or lack thereof), is even set out in the indictment. Therefore, the indictment would be totally defective if the State’s theory was, by the widest stretch of judicial construction, correct. We therefore hold that the trial court properly sustained the demurrer to the indictment.

AFFIRMED.

TYSON and BOWEN, JJ., concur.

HARRIS, P. J. and DeCARLO, J., dissent.

TYSON, Judge,

concurring:

I concur with Judge Bookout in this cause. In addition to the reasons stated by Judge Bookout, I wish to also point out that under the statute under which Dr. Bradford was charged (Act No. 1407, Acts of Alabama 1971), the State, in Count 1, failed to specify who the pharmacist was, who filled the prescription in question, and, in addition, failed in any way to indicate whether such prescription was administered, used, sold, given away, or otherwise disposed of to presumably some type of habitual user, or other individual, for purposes of maintaining addiction or abuse.

In addition to the above, which affects all five counts, in my judgment, Counts 2 through 5 fail to aver that Ferdinand D. Bradford, Jr., was acting as a licensed medical practitioner or physician.

For all of the reasons herein enumerated, I view all five counts as being defective, and the trial court therefore correctly sustained the demurrer to the indictment in this cause.

DeCARLO, Judge,

dissenting.

I respectfully dissent for the following reasons:

Section 20-2-74 of the Alabama Uniform Controlled Substances Act, Code of Alabama 1975, reads:

“(a) It shall be unlawful for any practitioner of dentistry to prescribe, administer or dispense any controlled substance enumerated in schedules I through V for any person not under his treatment in his regular practice of his profession or for any practitioner of veterinary medicine to prescribe, administer or dispense any controlled substance enumerated in schedules I through V for the use of human beings; provided, however, that the provisions of this section shall be construed not to prevent anv lawfully authorized practitioner of medicine from furnishing or prescribing in good faith for the use of anv habitual user of substances enumerated in schedules I through V who is under his professional care such substances as he may deem necessary for their treatment. when such prescriptions are not given or substances furnished for the purpose of maintaining addiction or abuse.
“(b) Any person who violates this section shall be guilty of a felony and shall, on conviction thereof, be subject to imprisonment for not less than two nor more than 15 years. (Acts 1971, No. 1407, p. 2378, § 505.)” [emphasis added.]

Specifically, Dr. Bradford was charged, in a five-count indictment, with writing prescriptions for controlled drugs to fictitious persons, for no legitimate medical purpose, and issuing them to a person with whom he had no doctor-patient relationship.

After Dr. Bradford was arraigned on July 29, 1977, he entered a plea of not guilty. Trial of the case was set for January 3, 1978.

On October 21, 1977, counsel for Dr. Bradford filed a demurrer to the indictment, alleging that § 258(58), supra, was constitutionally vague and indefinite. At that time the demurrer was overruled.

On January 4, 1978, after reconsidering the indictment and demurrer, the trial judge ruled that § 258(58), supra, was unconstitutional because it was vague and ambiguous as applied to a licensed physician.

The order, in pertinent part, stated:

“This the 5th day of January, 1978, the Court after reconsidering the indictment and demurrer thereto specifically as to ground 12 of the demurrer, and [sic] the Court is of the opinion that Title 22 Section 258(58) (1975 Code 20-2-74) is unconstitutional as to licensed physicians in that said section is vague and ambiguous and does not fully apprise a licensed physician as to what constitutes unlawful conduct as regards prescribing of controlled substances.”

In its order, the court specifically stated that its reconsideration of the demurrer was based on appellee’s ground 12. The demurrer, including ground 12, states that the appellee demurs to the indictment on several grounds, as follows (omitting formal parts):

“1. That it is void.
“2. That it is voidable.
“3. That no offense is alleged.
“4. That no facts are alleged which constitute an offense.
“5. That the facts as alleged are not alleged to be unlawful.
“6. That the facts as alleged are vague, indefinite, overbroad and the Defendant is not apprised of that which he is called upon to defend.
“7. That the facts as alleged do not violate Section 258(58) of Title 22 of the Alabama Uniform Controlled Substances Act.
“8. That said Section 258(58) is vague, indefinite and overbroad as to any duty imposed upon a licensed physician.
“10. That the provisions of Section 258(58) do not put the Defendant on proper notice as to what conduct is unlawful in regard to a licensed physician issuing prescriptions for controlled substances.
“11. That the Defendant as a licensed physician, is not subject to the prohibitions set out in said Section 258(58).
“12. That said Section 258(58) is viola-tive of this Defendant’s rights under the Constitution of the State of Alabama and the Constitution of the United States of America, separately and severally, as follows, separately and severally:
“(a) It is vague, indefinite and overbroad.
“(b) It does not sufficiently put the Defendant on notice as to his duties as a licensed physician in issuing prescriptions for controlled substances.
“(c) That it does not meet due process of law.” [emphasis added.]

I

It is the State’s position that the trial court erred in sustaining the appellee’s demurrer to the indictment. The State argued that the phrase “in good faith,” as it is used in the statute, has been formerly construed in similar statutes in a manner which establishes a clear and unambiguous criteria for determining when and if, in fact, good faith was used in prescribing medications.

Numerous cases have been cited by the State for the purpose of clarifying the term, “prescribing in good faith.” It is the State’s position that, through case law, the “good faith” standard has been adequately defined and is a test that is neither vague nor ambiguous as applied to licensed physicians.

The appellee counters that a penal statute must be strictly construed and may not be extended by construction. In support of this contention, he cites Locklear v. State, 50 Ala.App. 679, 282 So.2d 116, and Bolin v. State, 266 Ala. 256, 96 So.2d 582, holding unconstitutional a statute making possession of the commonly-found ingredients of a “stink or tear gas bomb” prima facie evidence of intent to manufacture such a bomb.

Bolin, supra, stated that the mere prohibition of such possession did not put the accused on notice of the “standard of conduct . . . intended to be required,” and that prohibition of such commonly-used ingredients was “an unwarranted abuse of the police power of the state.”

Locklear, supra, also cited by appellee, states that “[cjriminal statutes cannot be extended to cases not included within the clear and obvious import of their language,” and that “[n]o person is to be made subject to penal statutes by implication.” In this case, our court found error by the trial court in refusing to exclude the State’s evidence, where the evidence at trial showed that the appellant wore a patch on his clothing which contained vulgar or obscene words, rather than posted an “obscene or vulgar picture, placard, writing, or printed matter,” as required by the statute under which the indictment was drawn.

I distinguish the cases cited by the appel-lee in that the statute complained of neither establishes a rule of evidence, as in Bolin v. State, supra, or makes criminal acts not within the clear and obvious import of the statute, as in Locklear, supra. Specifically, we find that the clear and obvious import of this section establishes a “good faith” standard for a licensed physician in prescribing substances designated as controlled under the Alabama Uniform Controlled Substances Act.

II

If the terms of a statute will permit, it will be so construed as to render it constitutional. Oliver v. State, 232 Ala. 5, 166 So. 615; State v. Ballard, Ala.Cr.App., 341 So.2d 957. It is the court’s duty to construe the meaning of an act in such a manner as to give it a constitutional field of operation. Coughlin v. State, 56 Ala.App. 225, 320 So.2d 739. Courts are particularly cautious in holding an act unconstitutional, unless convinced beyond a reasonable doubt and after indulging every presumption in favor of its constitutional validity. Long v. State, 39 Ala.App. 372, 105 So.2d 136, reversed on other grounds, 268 Ala. 1, 105 So.2d 144.

Only when a statute’s invalidity is “distinctly pointed out” is it declared unconstitutional. “Otherwise, courts are compelled to uphold the validity of a statute, if at all possible.” Young v. State, 283 Ala. 676, 220 So.2d 843.

The appellee insists that the foregoing underlined portion of § 20-2-74, Code of Alabama 1975, does not sufficiently “put [licensed physicians] on proper notice” as to their “duties ... in issuing prescriptions for controlled substances.”

The appellee suggests that:
“Said statute was intended by the legislature to protect physicians from prosecution who administer treatment to narcotic addicts by furnishing or prescribing controlled substances that are necessary in such treatment but which are not furnished nor prescribed for the purpose of helping continued narcotic addiction.”

He insists that the statute aids the physician who participates “in various drug abuse programs” to know the limitations placed upon his dispensing of controlled substances by the law.

On the other hand, the appellant, State of Alabama, maintains that a close reading of the statute allows another equally valid interpretation:

“Reduced to its simpliest terms the statute prohibits any practitioner of medicine from prescribing controlled substances unless the prescription is written in ‘good faith’.”

Further, the State also argues that the phrase “in good faith” has been uniformly construed in statutes similar to the one in question to establish an unambiguous criteria consisting of the following elements:

“Whether or not a physical examination was given to the patient before the prescription was written. (2) Whether or not a physician-patient relationship had been established before the prescription was written, and (3) whether in the opinion of medical experts the prescription was written for legitimate purposes.”

The applicable rule of statutory construction is that, where a statute is susceptible to two constructions, it is incumbent upon the court to adopt the constitutional interpretation. Johnson v. State, 245 Ala. 499, 17 So.2d 662.

Further, in Mooring v. State, 207 Ala. 34, 91 So. 869, it was stated that it is also the court’s duty, in determining whether an act is constitutional:

[T]o consider all related parts and provisions thereof that may contribute to disclose the legislative intent, and in so doing to give operation and effect to every provision, if fairly possible. It is never supposed that the Legislature intended in one act to introduce contradictory provisions; and it is never so declared unless that conclusion is required by the terms employed. It is the office of construction to reconcile inharmony of legislative terms, if that may be done without any assumption opposed to the language used.”

The Alabama Uniform Controlled Substances Act is a penal statute. Article 4 of the Act, under which § 20-2-70 is found, is entitled “Offenses and Penalties,” and delineates the penalties for possession or distribution of the controlled substances listed in its schedules. Also, the sections immediately preceding and following the section in question provide both felony and misdemeanor penalties for their enumerated offenses. See §§ 20-2-73 (providing for a sentence of from 4 to 30 years imprisonment for the sale of certain controlled substances to minors) and 20-2-75 (providing both misdemeanor and felony penalties for the possession of paraphernalia, or presence where controlled substances are unlawfully used.) The'section in question plainly provides:

“Any person who violates this section shall be guilty of a felony and shall on conviction thereof, be subject to imprisonment for not less than 2 nor more than 15 years.” § 20-2-74, Code of Alabama 1975.

In my judgment, the challenged section of the act was not designed to protect those doctors who distribute controlled substances from prosecution in any and all instances, but was intended to limit their dispensing authority to that done “in good faith.” United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333.

In United States v. Moore, supra, the Supreme Court of the United States considered the case of a physician accused of violating T. 21 U.S.C., § 841(a)(1), which makes it unlawful for “any person” knowingly to distribute or dispense a controlled substance, “except as authorized” by the act. The Supreme Court held that a registered physician could be prosecuted under that section when his activities fell outside the “usual course of professional practice.” In Moore, the court approved the good faith standard as follows:

“The trial judge assumed that a physician’s activities are authorized only if they are within the usual course of professional practice. He instructed the jury that it had to find
‘beyond a reasonable doubt that a physician, who knowingly or intentionally, did dispense or distribute [methadone] by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.’ ” [emphasis added.]

See also Needelman v. United States, 261 F.2d 802.

Whether the words of the statute are sufficiently clear to inform a licensed physician as to what conduct on his part will render him liable to the statute’s penalties is the test by which the statute must stand or fall. State v. Weeks, Fla., 335 So.2d 274.

In Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, we find:

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” [Emphasis added.]

Although no case defining or treating “good faith,” as the term is used in the challenged section, has been previously presented before our courts, other jurisdictions have reviewed this language in the face of similar arguments.

The Indiana Supreme Court has commented in Smith v. State, 214 Ind. 169, 13 N.E.2d 562, that:

“[G]ood faith means ‘good intentions and the honest exercise of his best judgment as to the need of [defendant doctor’s] patient,’ ”

and that:

“ ‘Good faith’ needs no definition other than that implied by the words themselves.”

The Illinois Uniform Narcotic Drug Act of 1957 (Ill.Rev.Stat.1963, Ch. 38, Pars. 22.-1-22.49), requires “good faith.” See 1962 Ford Thunderbird v. Div. of Narcotic Control, 49 Ill.App.2d 8, 198 N.E.2d 155, 10 A.L.R.3d 554.

In rejecting the contention that the term “good faith” sets no recognizable standard of conduct, the Illinois Supreme Court in People v. Guagliata, 362 Ill. 427, 200 N.E. 169, stated that:

“ ‘[G]ood faith’ means ‘honest, lawful intent,’ and . . . [as used in the statute has] a definite and well-understood meaning . . . free from ambiguity

The California Supreme Court, in People v. Nunn, 46 Cal.2d 460, 296 P.2d 813 said:

“The phrase ‘good faith’ in common usage has a well-defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation. (See 18 Words and Phrases, Good Faith, p. 475 et seq.; 35 C.J.S. (1943), Faith, p. 488; 1 Bouvier’s Law Diet. (Rawle’s Third rev. 1914), p. 1359.)”

That court also determined that the term was inoffensive to the constitutional due process.

In State v. Weeks, supra, the Florida Supreme Court said:

“[W]e approve the definition of ‘good faith’, in the context of this statute, to mean that the practitioner ‘has got to act in an honest endeavor to carry on his profession’ of healing patients.”

The Oxford English Dictionary, Vol. 5, p. 32, defines “good faith” as: “honest of intention in entering into engagements.” The Uniform Commercial Code defines “good faith” generally as “honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” § 7-2-103(l)(b), Code of Alabama, 1975.

See also provisions of the Harrison Narcotic Act, 26 U.S.C.A., § 2550 et seq. exempting physicians from its operation only when they dispense drugs in “good faith” in their regular practice. Richards v. United States, 193 F.2d 554 (10th Cir. 1951).

To construe the statute in question as the appellee would have us would be to acknowledge that the statute has no gauge of criminality for physicians because, as the appellee suggests, the standards of conduct for physicians are not set forth in any cpg-nizable form in the statute itself. Such a construction would render the statute unconstitutional as applied to physicians.

I recognize that a penal statute must be strictly construed. However, I do not believe that the strict construction standard is a command to override common sense. In this case, I believe the principle set forth in United States v. Brown, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442, should be followed:

“The canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. . . Nor does it demand that a statute be given the ‘narrowest meaning’; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.”

In my judgment, the words employed by the statute, “given their fair meaning” were sufficiently clear to enable those persons coming within its purview to understand the conduct sought to be proscribed.

I do not believe that the proviso allowing practitioners of medicine to prescribe drugs to drug addicts involved in drug abuse programs can be fairly read to support the view that all activities of practitioners of medicine are beyond the reach of this statute.

In my judgment, the legislative intent was to limit the physician’s dispensing authority to a course of action performed in “good faith.” The statute was not intended to impede the physician who is involved in prescribing drugs for known drug addicts while participating in the various drug abuse programs, but it did not intend to exempt him from penalties when his act goes beyond the limits of those done in “good faith.”

Under these facts, it is my judgment that the statute was designed to proscribe certain behavior of a licensed physician in prescribing substances designated as controlled under the Alabama Uniform Controlled Substances Act.

Therefore, I would find that the trial court was in error in sustaining the appel-lee’s demurrer, and the judgment and order of the trial court should be reversed.

HARRIS, P. J., joins in this dissent.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Earnest Edward REED, Jr. v. STATE.
    6 Div. 758.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.

      Larry T. Woods, of Townes & Woods, Gardendale, for appellant.
    Charles A. Graddick, Atty. Gen., Montgomery, and James L. O’Kelley, Asst. Atty. Gen., Birmingham, for appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the unlawful possession of a controlled substance, chlordiazepoxide, contrary to and in violation of Sections 20-2-29 and 20-2-70, Code of Alabama 1975. The jury fined the appellant three hundred dollars and the trial court imposed a three year term of imprisonment. The only issue presented by the appellant is the propriety of the war-rantless search of his motor vehicle.

I

The evidence concerning the search is undisputed. Between 1:15 and 1:30 on the afternoon of July 29, 1977, agent Sam Robinson of the “United Narcotics Detail” (UNDO) of Jefferson County received a telephone call from a confidential and reliable informer. The informer specifically described the vehicle the appellant was driving, where it was located, the type of drugs and where they were located in the appellant’s vehicle. The informer stated that the appellant was in the van and was “stoned”.

There was testimony that the informer had given information in the past upon which both arrests and convictions had been secured. Agent Robinson testified that he had “bought drugs off” the appellant and, in the summer of 1977, had arrested the appellant for violation of a narcotics law. There was testimony that the informer had stated that he had seen the appellant “in the alley and the pills in the rear compartment” of the appellant’s van “just a few moments before he called Deputy Robinson”.

Robinson and two other UNDO agents separately arrived at the location given by the informer at 1:40 that afternoon. The informer’s information proved correct. Twenty-six tablets of chlordiazepoxide in a tin-foil package marked “Mexican Quaa-' lude” were found behind some oil cans in the rear engine compartment of the appellant’s Volkswagen van. The van was occupied by the appellant and a female. When the agents arrived at the scene the appellant was sitting in the driver’s seat and the engine was running. One agent testified that the van “started to back up as we pulled in behind him”.

While exigent circumstances are not automatically supplied just because an automobile is involved, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the warrantless search of the appellant’s vehicle was justified because of the presence of probable cause plus exigent circumstances. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). In New v. State, 337 So.2d 1355, 1359 (Ala.Cr.App.1976), this court stated the rule justifying the war-rantless search of an automobile.

“To meet the burden cast on it, the prosecution may justify the search of an automobile without a search warrant by establishing: (1) that there was prior reasonable cause for belief that the automobile contained articles which by law are subject to search and seizure, and (2) that the processing of a search warrant was impracticable because of imminence of escape or loss of evidence. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.”

The evidence clearly establishes that the agents had probable cause to believe that the appellant’s van contained a controlled substance. Hatton v. State, 359 So.2d 822 (Ala.Cr.App.), cert. quashed, 359 So.2d 832 (Ala.1977); Kirkland v. State, 342 So.2d 806 (Ala.Cr.App.), cert. denied, 342 So.2d 810 (Ala.1977). The facts show beyond question that the processing of a search warrant was impracticable because of the imminence of escape or the loss of the evidence. “The search of a motor car without a warrant rests on expediency— particularly where time does not allow going for a warrant.” Spurlin v. State, 46 Ala.App. 485, 487, 243 So.2d 758, cert. denied, 286 Ala. 738, 243 So.2d 763 (1969).

II

We have examined the evidence and found it sufficient to support the appellant’s conviction for possession of a controlled substance.

The van was occupied by the appellant, who was sitting in, the driver’s seat, and a female sitting in the front passenger’s seat. The drugs were found in the rear engine compartment of the van behind some oil cans. Although the van was registered to the appellant’s brother in Mobile there was testimony that the brother had given the van to the appellant. The appellant had been seen driving the same van two or three weeks prior to his arrest. The appellant was “extremely intoxicated” when arrested although the odor of alcoholic beverages was not detected. No drugs were found on the appellant’s person. The arresting agents knew the appellant had a recent history of drug involvement.

There was no testimony on the physical or mental condition of the female passenger. A small “reefer” (marijuana cigarette) and some syringes were found in her purse. Besides the chlordiazepoxide and this marijuana, no other drugs were found.

The mere presence of the defendant in an automobile in which illicit drugs are found does not, without more, constitute sufficient proof of his possession of such drugs. Pryor v. State, 48 Ala.App. 465, 265 So.2d 907 (1972); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971). However the defendant’s presence when coupled with the existence of additional evidentiary factors from which the defendant’s unlawful possession may be inferred may furnish sufficient evidence to support a conviction for possession. 57 A.L.R.3d 1319 (1974). Other evidentiary factors which have been considered are (1) incriminating statements made by the defendant at the time of his arrest, 57 A.L.R.3d at 1326; (2) suspicious or incriminating behavior by the defendant when he became aware of the presence of law enforcement officers, 57 A.L.R.3d at 1327; (3) the participation of the defendant in a recent sale of drugs, 57 A.L.R.3d at 1328; (4) the fact that the defendant was under the influence of narcotics at the time of his arrest, 57 A.L.R.3d at 1329; (5) the proximity of the defendant to the location of the drugs, 57 A.L.R.3d at 1329; or (6) the fact that the drugs were found in plain sight in the automobile, 57 A.L.R.3d at 1330. The appellant’s knowledge of the presence of drugs may be established by circumstantial evidence. Smith v. State, 351 So.2d 668 (Ala.Cr.App.), cert. denied, 351 So.2d 675 (Ala.1977); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala.1977).

Here the evidence presented raised a question of fact for the jury. The presence of the appellant coupled with the evidence of his ownership, dominion and complete control over the vehicle, his state of intoxication without the odor of alcoholic beverages, his known past involvement with drugs, and the location of the drugs in the rear engine compartment of the appellant’s vehicle constituted circumstantial evidence of the appellant’s knowledge and possession of the drugs. See Corrao v. State, 154 Ind.App. 525, 290 N.E.2d 484 (1972), recognizing that constructive possession of drugs found in the trunk of an automobile could be attributed to the driver who was also the owner-occupant of the vehicle despite the fact that there were other passengers in the automobile. There is no evidence that someone other than the appellant had recent access to the rear compartment where the drugs were found. Under these circumstances the trial court properly submitted the issue to the jury.

We have searched the record and found no error prejudicial to the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.

      . Officer Robinson testified that on this occasion the appellant “ripped (him) off with bad dope” and “sold (him) a hundred and fifty dollars worth of purple Kool-Aid” instead of M.D.A.


author: HARRIS, Presiding Judge.

text:
    Lovell JENKINS v. STATE.
    6 Div. 952.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

This is an appeal from revocation of probation in three cases of burglary in the second degree, grand larceny, and buying, receiving, concealing or aiding in concealing; for which appellant, an indigent, received three two-year sentences to run consecutively. After entering pleas of guilty to the charges against him, appellant was placed on probation for five years on May 19, 1977.

On May 15, 1978, the Circuit Court of Tuscaloosa County entered the following order:

“It being made to appear to the Court that the probationer herein is delinquent as such, has violated the terms and conditions of probation, has absconded, has failed to make reports to probation officer, is reputed to have violated the criminal laws, has been idle and not gainfully employed, has been drinking intoxicating liquors and consorting with associates of bad repute and that a hearing should be had to determine whether probation herein should be revoked or other action taken by the Court. It is, therefore, the order and judgment of the Court and it is ordered and adjudged by the Court that probationer herein is delinquent as such, and that probationer be, and hereby is, declared delinquent and that the running of probationer’s probationary period be and hereby is tolled and stopped and that capias and warrant forthwith issue for arrest of probationer and that when apprehended probationer be brought before the court for hearing for the determination of the truth of the charges made against probationer herein and what action should be taken by the court and whether probation herein should be revoked and order suspending sentence herein set aside.
“Done and ordered this 15 day of May, 1978.”

On August 11,1978, appellant’s probation was revoked in one of his cases, following a hearing, and the trial court placed him on a new probationary period of five years with a special condition of probation being confinement for twelve months in the drug and alcoholic treatment center at Bryce Hospital. Appellant was discharged from Bryce on September 8, 1978.

On September 21,1978, appellant’s probation was revoked in all three cases following an abbreviated hearing at which no evidence was presented. Those proceedings are set out below in their entirety.

“THE COURT: This is cases number 6441, 6442 and 6443. We have been working with Mr. Lovell Jenkins for some time now trying to get him to straighten out but our efforts have been to no avail. He was sent out to Bryce Hospital for the program out there and I have been advised by the authorities there that they couldn’t do anything with him and that he has refused to co-operate and he has been given notice of this hearing, has he not?
“MR. CHANDLER: Judge, we are aware of the charges listed on the report dated May 10, 1978.
“THE COURT: Well, we are really at the end of the rope so to speak. I don’t know of anything else to do other than go ahead and revoke him. Do you have anything to say?
“MR. CHANDLER: Judge, he stands before you today charged with six charges mainly involving where he lived, where he didn’t work, failure to pay supervision fees, failure to pay court costs and two offenses of public drunkenness that he got five days apiece for in Birmingham and Lovell of course if you don’t work it is kind of hard to pay your court costs and supervision fees.
“THE COURT: Well, we have been more than lenient with Lovell really. What do you say, Mr. D.A.?
“MR. HUDSON: He seems to be able to make enough money to drink off of, Your Honor. I am not in any sense supporting the sole reason of failure to pay supervision fees. That is really the least of them although it is a valid charge for revocation, Your Honor, but I think his history is unequivocally one of being unable to co-operate at all with any of the authorities who are trying to help him. We have tried to give him as much of a break as we can. He wouldn’t work with the probation officer. We tried to work him into the Bryce program out there and he wouldn’t co-operate with them. The State can’t think of anything else to do in the matter but revoke him.
“THE COURT: I feel like I have no alternative rather than to revoke him, Mr. Chandler. Do you have anything to say why your probation should not be revoked?
“MR. JENKINS: Yes, sir, I believe my peoples have been on my side one hundred percent since I have been locked up and they recognize how much the fee- is. I talked to Matilda today and she wanted to know how much the fee is and I believe she would be willing to pay it for me.
“THE COURT: Well, this thing has been strung out long enough. It is the order, judgment and decree of the Court that the probation previously extended to you in case 6441-B, 6442-B, and 6443-B be and the same are hereby ordered revoked. I hope you go down and try to straighten up your life.
“MR. CHANDLER: Your Honor, we would like to state for the record we have denied these charges and we continue to deny these charges and we would like to give notice of appeal at this time.
“THE COURT: All right.
“MR. CHANDLER: And ask that he be allowed to appeal in forma pauperis because he is indigent and ask' that we be allowed to represent him on that appeal. “THE COURT: He has had notice of this hearing?
“MR. HUDSON: Yes, sir.
“THE COURT: We really don’t have much of a choice. I went way out on a limb to send him out to Bryces. He wouldn’t co-operate with the people out there. We don’t like to revoke probation but sometimes you don’t have much choice. Well, that will be it, thank you, gentlemen.
“MR. CHANDLER: Thank you, Judge.”

The trial court thereupon entered the following order:

“September 21, 1978. The question of alleged misconduct of probationer Lovell Jenkins herein coming on to be heard in open Court on this date with probationer present at this hearing after the due notice thereof had been duly given to him and it being made to appear to the Court that said probationer has violated the terms and conditions of his probation herein since being placed on probation and is not being rehabilitated as hoped or contemplated by the law the Court is of the opinion that such probation should be revoked. It is therefore ordered and adjudged by the Court, and it is the order and judgment of the Court, that said probationer Lovell Jenkins has violated the terms and conditions of his probation and that the probation of probationer Lo-vell Jenkins herein be, and the same hereby is, revoked and that he serve his full sentence herein.”

Appellant contends: (1) that there was no evidence to support the trial court’s revocation of probation; (2) that no disclosure of the evidence against him was made to him; and (3) that the trial court failed to prepare a written statement as to the evidence relied on for revoking probation.

It well established that although a revocation of probation is not a criminal prosecution, the probationer must be afforded the minimum standards of due process. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Our Supreme Court in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), set out its interpretation of Morrissey and Gag-non, supra. Those guidelines are:

“1. Written notice to the probationer of the claimed violations of probation.
“2. Disclosure to the probationer of evidence against him or her.
“3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.
“4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
“5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.
“6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
“7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.
“8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
“9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).” [Footnote omitted.]

A cursory glance at the record of the proceedings below is sufficient for a determination that they were wholly deficient under the aforementioned authorities. The State must submit enough substantive evidence to reasonably satisfy the trier of facts that a condition of probation was breached. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875, cert. denied, 270 Ala. 737, 121 So.2d 881 (1960); Hill v. State, Ala.Cr.App., 350 So.2d 716 (1977). Here there was no evidence at all except the probation officer’s report. It necessarily follows that appellant was denied the right to confront and cross-examine adverse witnesses, guideline four of Armstrong, supra. Additionally, as appellant contends, the trial court failed to set forth in a written statement the evidence relied on and the reasons for revoking probation as provided in guideline five of Armstrong, supra.

The total failure of the trial court to follow the mandates of the above cited authorities leaves us no alternative but to reverse and remand this case for a new hearing.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Tyrone WHITE v. STATE.
    8 Div. 142.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.

      Macon L. Weaver, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge, that before the finding of this indictment, Tyrone White, whose name is unknown to the Grand Jury other than as stated, felo-niously took, to-wit: $5,500.00 lawful money of the United States, a further description of same being unknown to the Grand Jury, the personal property of E. H. Drake, doing business as Drake’s One Stop, from his person or from or in his presence, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

Prior to arraignment it was made known to the Court that appellant was indigent and the Court appointed an experienced trial lawyer to represent him. When he was arraigned in the presence of appointed counsel appellant interposed a plea of not guilty. It took the jury only twenty-five minutes to return a verdict of guilty as charged in the indictment. The trial court sentenced appellant to thirty years imprisonment in the penitentiary. He gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

The sufficiency of the evidence is not presented for review by this Court. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the Court’s oral charge. Appellant did file a motion for a new trial but not on the ground that the evidence was not sufficient to support the verdict of the jury.

Appellant did not testify nor was any evidence offered in his behalf.

The evidence presented by the State tended to show that appellant, Tyrone White, and a companion, “Chicken” Leslie, accosted Mr. E. H. Drake on the night of February 21, 1978, as he was closing his place of business in Huntsville. As Mr. Drake approached his vehicle carrying $5,500. in cash receipts in a grocery bag, he was approached by the two men. Mace was sprayed in his face and as he attempted to fight off the two men, his gun fell out of his pocket. Mr. Drake was shot with his own gun, and the two men got away with all of the money. During the struggle appellant fired his pistol but the bullet struck one of his fingers.

There was medical testimony indicating the extent of the wound received by Mr. Drake and the surgery performed as a result of this wound. Mr. Drake remained in the hospital more than thirty days. The bullet remained in the body.

There was ample evidence to sustain the conviction of robbery. In addition to the victim’s testimony and the in-court identification of appellant as the man who robbed him, there was evidence of a prior extrajudicial photographic identification of appellant by the victim. Appellant’s written and signed statement was admitted into evidence in which he admitted that he and “Chicken” Leslie robbed E. H. Drake.

Appellant’s signed confession is as follows:

“On 2/21/78 Jackie, Betty, Chicken and I went by the VFW & Ernie’s. We left & rode around. Chicken told me he knew where some money was, but the man knows me. I asked him the details on it, what it was about. He told me it was Mr. Drake. He said he had enough money to be worth getting. The girls dropped us off at the corner of Drake’s Store. We waited by the Van until Mr. Drake came out. We jumped him. We was tusseling over the gun & his gun went off. The money sack fell. In the tussel I got shot in the finger. Chicken was hiding behind the van and grabbed the money sack when it fell. Chicken also had a gun. I don't know if he fired a shot or not, when I got to the van I got the money sack from Chicken. We went back to the car after Chicken looked around to make sure no one was coming. We got in the ear & went to Council Ct. to Michael Sullivan’s house. They counted the money while I went to get some gin. I couldn’t find any so Michael went & got some. I got half of the $1800.00 & Chicken got the other half. I gave Betty $300.00 and Chicken gave Betty $200.00. Betty & Jackie left. Chicken, Michael & 1 sat around & drank. About 4:00 a. m. I called Betty & Jackie to come get us. We dropped Chicken off at his house & we went to Nashville to get my finger fixed.
“I have read this statement consisting of 2 pages, and I affirm to the truth and accuracy of the facts contained therein. “This statement was completed at 3:00 P.M. on the 25th day of Feb., 1978.
“WITNESS: /s/ R. Yearick # 237 “WITNESS:_
/s/ Tyrone White Signature of person giving voluntary statement.”

Appellant raises two issues on appeal: (1) The trial court erred in allowing State’s witness, Detective Howard Turner, to withhold the name of the person who gave him the gun which was marked as State’s Exhibit No. 14, and identified as the gun belonging to E. H. Drake, and (2) the admission of appellant’s statement.

State’s Exhibit No. 14 was identified during direct examination by E. H. Drake as the gun belonging to him and the one which he carried on the night of February 21, 1978. The gun was not formally introduced into evidence by the State but was apparently exhibited frequently during the course of the trial as noted by the trial court in ruling on the objection to the identity of the informer. Defense counsel attempted to elicit from State’s witness, Detective Howard Turner, the name of the person who gave him the gun. The State objected to this testimony on the ground that the introduction of the weapon was not material to the State’s case and that the life of the informer would be in jeopardy if his name was divulged. The trial court found that the gun was not introduced into evidence but that it had been “brandished around the court room all day” by the State. The Court ruled that the witness would not be required to reveal the name of the informer.

The primary purpose for disclosure of the informer’s name or identification is to prevent a miscarriage of justice in cases where an accused might have been entrapped into committing the offense for which he is prosecuted. Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206. The general rule is that the identification of the informer is not ordinarily in the public interest except where it is needed to show the innocence of the accused. Hood v. State, 47 Ala.App. 192, 252 So.2d 117.

In this case it does not appear that the identity of the person who turned over the gun to Detective Turner would have served any useful purpose at all. The identity of the defendant was not questioned. In addition to the photographic and in-court identifications by the victim, the appellant’s statement was admitted into evidence in which he confessed to robbing Mr. Drake. There was not even the slightest tendency of the evidence to show appellant was mistakenly identified, entrapped in any manner or unjustly accused. The result would be the same even if the gun were treated as evidence under the rule of Kabase v. State, 31 Ala.App. 77, 12 So.2d 758 which held that exhibits properly identified and exhibited before the jury become evidence even in the absence of formal introduction.

Appellant contends that the admission of his written, signed statement given to police officers was error. We disagree. The Miranda and voluntariness predicates were properly laid both outside the presence of the jury and again before the jury. The testimony of Officer Yearick as to the circumstances under which appellant’s statement was taken was controverted by appellant’s testimony on voir dire. The admissibility of the confession is to be determined by the trial judge in exercise of enlightened discretion, and this decision allowing the confession into evidence will not be disturbed unless it is palpably contrary to the weight of the evidence. Burks v. State, Ala.Cr.App., 353 So.2d 539. The trial court found the confession was knowingly, understanding^ and voluntarily made and its admission into evidence was, in all respects, proper.

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

AFFIRMED.

All the Judges concur.


text:
    Tommy HARGROVE v. STATE.
    8 Div. 171.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.

      H. Kenan Timberlake, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was convicted for second degree murder and sentenced to fifteen years’ imprisonment.

The evidence of how the murder occurred is in direct conflict. The State’s chief witness, Albert Luther Morrow, testified that the appellant hit Billy Salters on the side of his head with a wine bottle when Salters attempted to get his wine back from the appellant. In a confession given to the police and at trial, the appellant maintained that Morrow hit Salters in the head with a brick after Salters hit the appellant in the head with a wine bottle. There is no conflict over the fact that a dispute arose when Salters discovered the appellant drinking his wine. The only issue is who hit Salters.

I

Although the appellant contends that his conviction was obtained on the uncorroborated testimony of Morrow, this was a question for the jury. Where there is a conflict in the evidence as to whether a witness is an accomplice and the testimony is susceptible to different inferences on that point, the question is one for the jury. Jacks v. State, 364 So.2d 397, 403 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). Where the issue of whether the State’s witness is an accomplice is for the jury, the denial of the defendant’s motion to exclude the State’s evidence for insufficient corroboration is not error. Jacks, 364 So.2d at 404.

II

The appellant contends that the trial court erred in excluding and failing to permit testimony of statements made by the deceased to his friends and to members of the police department after the beating. Argument is submitted that the statements were not hearsay because they were offered merely for proving that the statements were made. Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976). The statements are allegedly to the effect that the deceased said that “he did not know who beat him”, that “someone at the carnival beat him”, and that he was beaten up at a place other than where this offense allegedly occurred.

Statements and declarations of a deceased are not competent evidence for or against an accused in a murder prosecution unless made in his presence, or unless they are admitted in evidence as part of the res gestae or constitute dying declarations. Kitchens v. State, 251 Ala. 344, 346, 37 So.2d 428 (1948); Holland v. State, 162 Ala. 5, 11, 50 So. 215 (1909); Hill v. State, 339 So.2d 1077, 1080 (Ala.Cr.App.), cert. denied, 339 So.2d 1082 (1976). See also Reaves v. State, 158 Ala. 5, 48 So. 373 (1909); Lakey v. State, 18 Ala.App. 442, 93 So. 51 (1922).

Here the statements of the deceased were properly excluded. The only significance of these statements was not in the simple fact that they were made but in the truth of the factual matter asserted. See 6 Wigmore, Evidence, § 1770 (Chad-bourn revision, 1976). The statements were not made in the presence of the appellant. There was no preliminary evidence to justify the admission of the testimony as dying declarations. Wilson v. State, 140 Ala. 43, 37 So. 93 (1904). Statements made by the deceased the day after he received the ultimately fatal blow are not part of the res gestae because so far removed in point of time. Twitty v. State, 197 Ala. 185, 72 So. 405 (1916); Ludlow v. State, 156 Ala. 58, 47 So. 321 (1908); Inman v. State, 23 Ala.App. 484, 127 So. 262 (1930); Chappell v. State, 15 Ala.App. 227, 73 So. 134 (1916). The statements made by the deceased some time after his injury to other witness were pure hearsay and were not shown to constitute dying declarations. Therefore they were properly excluded.

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

AFFIRMED.

All Judges concur.


author: HATCHETT, Justice.

text:
    Julie MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 51778.
    Supreme Court of Florida.
    Nov. 16, 1978.
    Rehearing Denied Feb. 13, 1979.
    Robert W. Pope, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HATCHETT, Justice.

In this case, we are again called upon to determine the constitutional validity of Section 796.07 and Section 480.02(1) Florida Statutes (1975). Jurisdiction vests pursuant to Article V, Section 3(b)(1). Relying on our decision in State v. Bales, 343 So.2d 9 (Fla.1977), we uphold the statutes and affirm the judgments entered below.

Appellant was charged in two informa-tions with (1) entering, remaining, or residing in a structure or building for the purpose of lewdness, prostitution, or assignation, Section 796.07(3)(c), Florida Statutes; (2) maintaining or operating a place, structure, or building for the purpose of lewdness, assignation, or prostitution, Section 796.07(2)(a), Florida Statutes; (3) committing or offering to commit or engage in lewdness, assignation, or prostitution, Section 796.07(3)(a), Florida Statutes; and (4) practicing massage without a license, Section 480.02(1), Florida Statutes. She moved to dismiss the informations on the ground that Section 796.07 and Section 480.02(1) were unconstitutionally vague. These motions were denied, and appellant pleaded nolo contendere to all charges, specifically reserving her right to appeal.

Appellant’s argument is threefold: (1) she challenges the constitutionality of Sections 796.07 and 480.02(1), Florida Statutes (1975); (2) she challenges the sufficiency of the charging informations; and (3) she argues that the trial judge erred in denying her motion to include a definition of sexual intercourse in the instructions to the jury.

Appellant’s first point was decided against her in State v. Bales, supra, and again in Tatzel v. State, 356 So.2d 787 (Fla.1978) and Bell v. State, 289 So.2d 388 (Fla.1973). We see no reason to recede from these decisions.

Appellant’s second point must also be decided against her on the basis of well settled law. An information will be quashed only if it is “so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Fla.R.Crim.P. 3.140(o ). See also, Brown v. State, 135 Fla. 30, 184 So. 518 (1938); Williams v. State, 92 Fla. 648, 109 So. 805 (1926); and Machin v. State, 270 So.2d 464 (Fla.3d DCA 1972). Generally, an information is sufficient if it follows the language of the statute, Major v. State, 180 So.2d 335 (Fla.1965); Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); and Harrell v. State, 79 Fla. 220, 83 So. 922 (1920), and need not set forth proof with which the state intends to establish its case. State v. Cauley, 213 So.2d 521 (Fla.4th DCA 1968). We have reviewed the informations in this case and find that they are sufficient to inform the appellant of the nature of the offenses charged, Drozewski v. State, 84 So.2d 329 (Fla.1955); Gray v. State, 58 Fla. 54, 50 So. 538 (1909); and Blair v. State, 161 So.2d 233 (Fla.3d DCA 1964), and do not mislead or embarrass her in the preparation of her defense nor subject her to double jeopardy.

Appellant’s third point raises a more difficult question. Can a defendant who pleads nolo contendere reserve for appeal a trial court’s denial of a motion for jury instructions. It is clear that a plea of nolo contendere bars the appeal of any issue other than the facial sufficiency of the charging instrument, except where a criminal defendant reserves the right to appeal a question of law. Vinson v. State, 345 So.2d 711 (Fla.1977); Hand v. State, 334 So.2d 601 (Fla.1976); and State v. Ashby, 245 So.2d 225 (Fla.1971). Questions of fact cannot be reserved. Since the giving of a jury instruction involves issues of law and fact, and depends in part upon the evidence presented, we hold that a trial court’s ruling on a pre-trial request for instructions is not appealable on a plea of nolo contendere.

Accordingly, the judgments entered below are affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . Section 796.07, Fla.Stat. (1975), provides in pertinent part:
      Prohibiting prostitution, etc., evidence; penalties; definitions.
      (1) As used in this section, unless the context clearly requires otherwise:
      (a) The term “prostitution” shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for licentious sexual intercourse without hire.
      (b) The term “lewdness” shall be construed to include any indecent or obscene act.
      (c) The term “assignation” shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.
      (d) The term “prostitution” as used in paragraph (a) shall be construed so as to exclude sexual intercourse between a husband and his wife.
      (2) After May 1, 1943, it shall be unlawful in the state:
      (a) To keep, set up, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution.
      (b) To offer, or to offer or agree to secure, another for the purpose of prostitution, or for any other lewd or indecent act.
      (c) To receive, or to offer or agree to receive, any person into any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to remain there for such purpose.
      (d)To direct, take or transport, or to offer or agree to take or transport, any person to any place, structure, or building, or to any other person, with knowledge or reasonable cause to believe that the purpose of such directing, taking, or transporting is prostitution, lewdness, or assignation.
      (3)It shall further be unlawful in the state:
      (a) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
      (b) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.
      (c) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.
      (d) To aid, abet, or participate in the doing of any of the acts or things enumerated in subsections (2) and (3) of this section.

      . Section 480.02(1), Fla.Stat. (1975) provides:
      Masseurs and Masseuses to be registered.
      (1) It shall be unlawful for any person or persons to engage in the practice or attempt to practice massage for a fee, or for a gratuity, or to conduct or teach in a school of massage without a certificate of registration issued pursuant to the provisions of this chapter.

      . Rule 3.140(o), Fla.R.Crim.P. states:
      Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.


author: BOYD, Justice.

text:
    Anthony PACE, Appellant, v. STATE of Florida, Appellee.
    No. 49200.
    Supreme Court of Florida.
    Feb. 1, 1979.
    Rehearing Denied March 27, 1979.

      Irwin J. Block and Mitchell R. Bloomberg of Fine, Jacobson, Block, Goldberg & Sem-et, Miami, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., Miami, for ap-pellee.
   BOYD, Justice.

Anthony Pace, a member of The Florida Bar, was convicted following jury trial in the County Court of Dade County, of solicitation of legal business in violation of section 877.02(1), Florida Statutes (1973). During the proceedings below, the appellant filed motions to dismiss, for new trial, and for arrest of judgment. Each raised the issue of the constitutionality of the statute. In a consolidated order the court denied the motions, holding that the statute is constitutional on its face and as applied. Such initial and direct passing on the constitutional validity of the statute gave this Court jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

The evidence showed that the appellant instigated a meeting between himself and a high school athlete, John Henry King, who was then a prospective college football player. The ultimate result of the meeting was that the student and his legal guardians entered into a retainer agreement with the appellant. While there was some evidence that the initial overture by Pace was made as a recruiter on behalf of his alma mater, the University of Pittsburgh, the jury was justified in concluding that the appellant committed acts constituting a violation of the statute.

On his appeal, Pace raises a number of issues, only two of which we find to merit extended discussion.

The appellant contends that the statute is unconstitutionally overbroad in that it is susceptible of application to expression that is protected by the first and fourteenth amendments to the United States Constitution and the declaration of rights of the Florida Constitution. Before considering this contention, we must resolve the preliminary issue raised by the state’s assertion that the appellant does not have standing to present the overbreadth issue since the conduct he was shown to have engaged in is clearly not protected by freedom of expression principles. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

The anti-solicitation statute clearly has impact on speech. Standing to challenge a law for overbreadth on first amendment grounds “does not depend upon whether [one’s] own activity is shown to be constitutionally privileged.” Bigelow v. Virginia, 421 U.S. 809, 815, 95 S.Ct. 2222, 2229, 44 L.Ed.2d 600, 608 (1975). The Supreme Court of the United States has consistently permitted “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22, 28 (1965). This principle is an exception to the usual rules governing standing, and it applies here.

In the area of first amendment freedoms, government may regulate only with narrow specificity. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In Button, the Supreme Court had for consideration a statute, aimed at the improper solicitation of legal business, which made it a crime to advise a person that his legal rights had been infringed and to refer him to a particular attorney or group of attorneys. At issue was the application of the statute to the NAACP’s practice of supplying its staff lawyers to persons litigating racial discrimination issues. The state NAACP organization had a policy of devoting “much of its funds and energies to an extensive program of assisting certain kinds of litigation on behalf of its declared purposes.” Id. at 419-20, 83 S.Ct. at 331, 9 L.Ed.2d at 410. The Court described the practices which were subject to being punished under the statute:

The members of the legal staff of the Virginia Conference and other NAACP or Defense Fund lawyers called in by the staff to assist are drawn into litigation in various ways. One is for an aggrieved Negro to apply directly to the Conference or the legal staff for assistance. His application is referred to the Chairman of the legal staff. The Chairman, with the concurrence of the President of the Conference, is authorized to agree to give legal assistance in an appropriate case. In litigation involving public school segregation, the procedure tends to be different. Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual, after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund. In effect, then, the prospective litigant retains not so much a particular attorney as the “firm” of NAACP and Defense Fund lawyers, which has a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation.
These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to “go all the way” in any possible litigation that may ensue. While the Conference in these ways encourages the bringing of lawsuits, the plaintiffs in particular actions, so far as appears, make their own decisions to become such.

Id. at 421-22, 83 S.Ct. at 331-32, 9 L.Ed.2d at 411-12 (footnotes omitted).

The Supreme Court held “that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business . ..” Id. at 428-29, 83 S.Ct. at 335, 9 L.Ed.2d at 415.

In State ex rel. Farber v. Williams, 183 So.2d 537 (Fla.1966), this Court upheld section 877.02 against contentions that it was vague and overbroad. The opinion of the Court made reference to the Button decision and the freedom of expression concerns emanating therefrom. The Court held the statute valid and elaborated as follows:

The object of § 877.02(1) is to prohibit the solicitation of legal business by an attorney directly or by his agent or employee, or by another acting in his behalf. It does not prohibit the recommendation of an attorney by anyone to another where the one recommending has no relationship or privity with the attorney as the latter’s agent or as his employee or other similar relationship with the attorney for the purpose of soliciting legal business for him. Thus the statute does not prohibit the recommendation of an attorney by a mere volunteer or acquaintance who has no prior and continuing relationship as agent or employee or similar status with the attorney recommended which contemplates solicitation of legal business for the attorney.
As interpreted above, we do not find the statute to be violative of the State or Federal Constitution. F.S. Section 877.-02(1), F.S.A., falls in the class of acts mala prohibita within the province of the legislature to enact. The legislature, drawing upon its knowledge of conditions inimical to the public welfare in the community and perceiving that solicitation of legal business by an attorney or by others in privity with him and acting in his behalf represents a social evil which for many years had been denounced as an unethical practice in the legal profession, had constitutional power to make such practice a criminal offense.

183 So.2d at 538-40.

It might be contended, however, that a number of recent decisions of the United States Supreme Court on the relationship between freedom of expression and lawyers’ advertising and solicitation call for a reconsideration of the decision in State ex rel. Farber v. Williams.

In Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that the Arizona State Bar could not use its disciplinary power to unqualifiedly restrict attorneys from advertising routine legal services because to do so would constrict the flow of information protected by the first amendment. The decision is a recognition that the regulation of the legal profession by those bodies charged with the discipline of attorneys under codes of ethics can sweep too broadly into the area of protected expression. But the Court made clear that it was not dealing with the kind of situation we have in the case at bar.

[W]e . . . need not resolve the problems associated with in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or “runners.” Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue . is not before us.

Id. at 366, 97 S.Ct. at 2700, 53 L.Ed.2d at 825.

Two more recent decisions of the Supreme Court are more on point, as they deal with the solicitation situation. In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), provides further enlightenment on the question of the concerns expressed in Button as they relate to the problem of personal solicitation. The Court there considered whether an attorney may be subjected to bar discipline who, “seeking to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated.” 436 U.S. at 414, 98 S.Ct. at 1895, 56 L.Ed.2d at 423. The Court likened the activities of the organization involved — the American Civil Liberties Union — to those that had been recognized as protected modes of expressive and associational freedom in Button. “As Button indicates, and as appellant offered to prove at the disciplinary hearing . the efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.” 436 U.S. at 431, 98 S.Ct. at 1904, 56 L.Ed.2d at 434. The Court held that the disciplinary rules, designed to prevent “undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, lay interference, and other evils that are thought to inhere generally in solicitation by lawyers of prospective clients,” 436 U.S. at 435, 98 S.Ct. at 1905, 56 L.Ed.2d at 435, sweep too broadly because thereunder, “a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he or she retain the organization’s free services, and it would seem that one who merely assists or maintains a cooperative relationship with the organization also must suppress the giving of such advice if he or anyone associated with the organization will be involved in the ultimate litigation.” 436 U.S. at 433, 98 S.Ct. at 1905, 56 L.Ed.2d at 435.

The case at bar is distinguishable from situations in which the concerns of Button and Primus appear. This is made clear by the case of Ohralik v. Ohio State Bar Association, 436 U.S. 447, 457, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). The Court there held that the organized bar, acting with state authorization, constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the state has a right to prevent.

In response to Ohralik’s argument that the disciplinary rules in question tended to infringe upon first amendment freedoms, the Court said:

As applied in this case, the Disciplinary Rules are said to have limited the communication of two kinds of information. First, appellant’s solicitation imparted to Carol McClintock and Wanda Lou Hol-bert certain information about his availability and the terms of his proposed legal services. In this respect, in-person solicitation serves much the same function as the advertisement at issue in Bates. But there are significant differences as well. Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. The admonition that “the fitting remedy for evil counsels is good ones” is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the “availability, nature, and prices” of legal services, cf. Bates, supra, at 433 U.S. 364, 97 S.Ct. 2691; it actually may disserve the individual and societal interest, identified in Bates, in facilitating “informed and reliable deci-sionmaking.” Ibid.
It also is argued that in-person solicitation may provide the solicited individual with information about his or her legal' rights and remedies. In this case, appellant gave Wanda Lou a “tip” about the prospect of recovery based on the uninsured motorist clause in the McClintocks’ insurance policy, and he explained that clause and Ohio’s guest statute to Carol McClintock’s parents. But neither of the Disciplinary Rules here at issue prohibited appellant from communicating information to these young women about their legal rights and the prospects of obtaining a monetary recovery or from recommending that they obtain counsel. Dr> 2-104(A) merely prohibited him from using the information as bait with which to obtain an agreement to represent them for a fee. The rule does not prohibit a lawyer from giving unsolicited legal advice; it proscribes the acceptance of employment resulting from such advice. 436 U.S at 458, 98 S.Ct. at 1919-20, 56 L.Ed.2d at 454-55 (footnotes omitted).

The Primus and Ohralik decisions clearly draw the line between communication which cannot be subjected to disciplinary or criminal sanction and that solicitation which properly can. Ohralik applies to the case at bar,

The appellant’s other major contention is that the anti-solicitation statute as applied to lawyers violates the Florida Constitution by intruding upon this Court’s exclusive jurisdiction over the discipline of members of the bar of this state. Article V, section 15, Florida Constitution, provides: “The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”

The appellant argues that the legislature may not criminalize conduct by a lawyer, committed in the course of his practice of law, unless the conduct is criminal per se. To adopt this view would be to say that the legislature may not punish conduct deemed harmful to the public welfare if the conduct also falls within the purview of this Court’s authority to discipline lawyers for violating the Code of Professional Responsibility in the course of their practice of law. Simply because certain conduct is subject to professional discipline is no reason why the legislature may not proscribe the conduct. Under the police power the legislature may enact penal legislation that affects the legal profession just as it can with regard to other occupations and professions.

The legislature, drawing upon its knowledge of conditions inimical to the public welfare in the community and perceiving that solicitation of legal business by an attorney or by others acting in his behalf represents a social evil which for many years had been denounced as an unethical practice in the legal profession, had constitutional power to make such practice a criminal offense.

State ex rel. Farber v. Williams, 183 So.2d at 540.

The judgment of the county court is affirmed.

It is so ordered.

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

HATCHETT, J., dissents.

      . It shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal service, or to make it a business to solicit or procure such business, retainers or agreements; provided, however, that nothing herein shall prohibit or be applicable to banks, trust companies, lawyer reference services, legal aid associations, lay collection agencies, railroad companies, insurance companies and agencies, and real estate companies and agencies, in the conduct of their lawful businesses, and in connection therewith and incidental thereto forwarding legal matters to attorneys at law when such forwarding is authorized by the customers or clients of said businesses and is done pursuant to the canons of legal ethics as pronounced by the Supreme Court of Florida.


author: ADKINS, Justice.

text:
    Alberto ALMEIDA and Sheryl Almeida, his wife, Petitioners, v. Ted M. TRUSHIN et al., Respondents.
    No. 51382.
    Supreme Court of Florida.
    Feb. 8, 1979.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for petitioners.
    Harry G. Hinckley, Jr. of Hinckley & Shores, Fort Lauderdale, Sam Daniels of Daniels & Hicks, and Brumer, Moss, Cohen & Rodgers, Miami, for respondents.
   ADKINS, Justice.

Certiorari was granted in this cause to review the decision of the District Court of Appeal, 4th District, (330 So.2d 550) on ground of direct conflict with the opinion of this Court in Vining v. Avis Rent-a-Car Systems, Inc., 354 So.2d 54 (Fla.1977), on the question of liability in the event a thief steals an automobile, with key in the ignition, and subsequently injures someone while negligently operating the stolen vehicle.

Trushin loaned his car to Acker, who drove it to the Harbor Lounge. When Acker stopped at the front of the lounge, he left the lights on and the motor running. Acker waved to one of the attendants who waved back. Acker then entered the lounge. None of the attendants parked the car and it was not seen thereafter. It was stolen.

While the thief was allegedly operating the vehicle in a negligent manner, plaintiffs were injured and they sued Trushin, Acker, Harbor Lounge, Inc., and/or Southern Caterers of North Bay Village, Inc.

The trial court entered summary judgment in favor of the lounge, finding as a matter of law that Harbor Lounge, Inc., and/or Southern Caterers had not attained the status of bailee. The trial court noted that the gravamen of the action was the negligence of Acker in leaving the keys in an unattended automobile. The summary judgment entered in favor of Trushin was not appealed and the action against Acker is pending at the trial level. We are only concerned with the summary judgment entered in favor of the lounge.

The Plaintiffs’ appeal and the judgment of the trial court was affirmed without opinion. In a specially concurring opinion Judge Anstead expressed the reliance of the district court upon Vining v. Avis Rent-a-Car Systems, Inc., 330 So.2d 550 (Fla. 3d DCA 1976) where the court held that the intervening criminal act of theft breaks any causative, chain between the original negligent act of leaving the keys in the car and the subsequent damages incurred in an accident. This Court in Vining v. Avis Rent-a-Car Systems, Inc., supra, modified this rule and held that the owner of the stolen automobile could be held accountable if a reasonable man should foresee the theft of an automobile left unattended with the keys in the ignition.

The Vining, supra, decision does not conflict with the decision in the case sub judice.

The keys were left in the ignition by Acker and there is nothing in the record which suggests that the lounge’s employees were negligent. The summary judgment was appropriate and there is no conflict of decision.

The Writ of Certiorari is discharged.

ENGLAND, C. J., and BOYD and SUND-BERG, JJ., concur.

OVERTON, J., concurs in result only.


author: PER CURIAM. ADKINS, Justice,

text:
    M. B. F. THEATRES, INC., etc., Appellant, v. STATE of Florida, County of Dade, Appellee.
    Nos. 52301, 51717, 51718 and 53951.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Yale T. Freeman of Hirschhorn & Freeman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Arthur Joel Berger and James H. Greason, Asst. Attys. Gen., Miami, for appellee.
   PER CURIAM.

Appellant appeals to this court from county court convictions under section 847.-07, Florida Statutes (1973), challenging the constitutional validity of that statute. These same constitutional issues were previously resolved by this court in State v. Aiuppa, 298 So.2d 391 (Fla.1974), and First Amendment Foundation of Florida, Inc. v. State, 364 So.2d 450 (Fla.1978), and we are not persuaded that reconsideration is warranted at this time. Therefore, we quash those issues challenging the constitutionality of the statute and transfer the case to the Circuit Court of the Eleventh Judicial Circuit for determination of the remaining points.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I would reexamine the constitutionality of section 847.07, Florida Statutes (1973) in light of decisions of the United States Supreme Court rendered subsequent to our decision in State v. Aiuppa, 298 So.2d 391 (Fla.1974). We should retain jurisdiction.