author: BOWEN, Judge.

text:
    George Randall SEXTON v. STATE.
    3 Div. 708.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      Gregory A. Carr for Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the unlawful, willful and felonious sale of marijuana. A jury found the appellant guilty and the trial court sentenced him to eight years in the penitentiary. The appellant’s retained trial counsel was appointed by the lower court to represent him on appeal.

The evidence produced by the state revealed that on June 18, 1976, the appellant approached Mike Connor, a Special Contract (undercover) investigator for the Alabama Department of Public Safety, and asked Connor if he wanted to buy some “speed”. At that time, a “buy” or purchase was made.

On June 24,1976, Connor contacted Freddie L. Strength, Investigator, Narcotics Unit, Alabama Bureau of Investigation, and informed Strength that he had a buy “set up” and needed some money with which to make the purchase. Strength gave Connor sixty dollars. Connor then met with the appellant and purchased forty black capsules and two “lids” of marijuana from him.

Connor later met Strength and gave him the drugs which he had purchased from the appellant. At this time, the capsules and two lids were sealed in three separate envelopes and marked for identification.

On July 7, 1976, Connor telephoned the appellant. This conversation was recorded by State Trooper Corporal, J. D. Hobby of the Narcotics Unit, Alabama Bureau of Investigation.

After the state had presented its evidence and rested, defense counsel moved to exclude. This motion was overruled and the defendant rested without producing any evidence in his behalf.

I

The appellant maintains that the trial court committed reversible error in admitting into evidence the tape recording of the telephone conversation between the appellant and the undercover agent in that a proper predicate was not laid. Specifically, the appellant maintains that before the tape recording was introduced into evidence, the state did not show (1) that the recording device was capable of taking testimony and accurately recording the conversation and (2) that the operator of the recording device was competent.

The admissibility of tape recordings of conversations with persons accused of crimes and played to the jury have been approved by the appellate courts of Alabama. C. P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 301 So.2d 196 (1974); Wright v. State, 38 Ala.App. 64, 79 So.2d 66, cert. denied, 262 Ala. 420, 79 So.2d 74 (1954); Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955); Lykes v. State, 54 Ala.App. 7, 304 So.2d 249 (1974) and authorities cited at 54 Ala.App. 9; 6 Alabama Digest, Criminal Law, <s=» 438.1.

Tape recordings have been held admissible according to the discretion of the court after establishing a proper foundation according to specified rules. The case of Wright v. State, supra, set out the rules for testing admissibility. Stevens, supra.

“In general, where the accuracy of the machine in producing the recording and the accuracy of the recording being established, together with a showing as to the voluntary character of the statement, there can be no question as to the admissibility of a recorded statement, in so far as the statement is material to the issues of a case.”

In accordance with the procedures suggested in Wright, the trial court first, out of the hearing of the jury, had the recording played before it with the appellant and his counsel and the District Attorney present. The trial court then determined that the tape was “audible enough and material enough to be admitted to the jury as evidence”.

We note that the recording was not the only evidence offered to incriminate the accused.

In view of the testimony of Agent Con-nor that after his telephone conversation with the appellant he heard the recording played and that the recording accurately and substantially reflected the conversation in which he had participated. The failure of the state to prove that the recording device used to record the conversation was capable of taking testimony was not error. Strict adherence to the Wright requirements are not always necessary. Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972).

II

The appellant further contends that the trial court erred in admitting into evidence a brown manila envelope and a package of marijuana contained therein because the state failed to prove a complete chain of custody.

We will not detail the entire chain of custody in this opinion. It is sufficient to note that the appellant alleges the chain was broken after the marijuana had been examined by the state toxicologist and he had handed it over to a court reporter in a previous trial of the appellant. The appellant contends that the court reporter failed to testify where the exhibits were located while held in her custody and whether they were in substantially the same condition when transferred to an Assistant District Attorney as they were when received.

We are not convinced by the appellant’s argument that a proper chain of evidence had not been established. To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960).

Additionally we note that the testimony of a state toxicologist, in connection with other testimony, was sufficient to make out a case against the appellant without the introduction of the actual marijuana itself. Warren v. State, 52 Ala.App. 35, 288 So.2d 817 (1973); Taylor v. State, 47 Ala.App. 285, 253 So.2d 354 (1971). The appellant has failed to point out any potential prejudice that resulted to him because of the alleged failure of the State to prove the continuous possession of the envelope and the marijuana it contained. Alabama Rules of Appellate Procedure, Rule 45. The admission of the marijuana and the envelope was not error.

Ill

Finally the appellant asserts that the trial court erred in allowing Officer Hobby to testify to “street talk” regarding drugs in that a sufficient foundation was not laid to qualify him as an expert in “street talk”.

Officer Hobby testified that he was familiar with “street talk drugs”, had been in the drug enforcement business for three years, and during that time had had occasion to become familiar with “drug talk”. He defined the meaning of the words “lid”, “domestic”, “pancakes”, “speckled bird”, and “mushrooms”.

Whether a witness is shown to possess the requisite qualifications to give expert testimony is a preliminary question addressed to the sound discretion of the trial judge. Chapin v. State, Ala.Cr.App., 333 So.2d 599, cert. denied, Ala., 333 So.2d 609 (1976). The decision of the trial court on this issue will not be disturbed on appeal in the absence of an abuse of that discretion. Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975). Here we find that the officer was properly qualified to define slang words used in “street talk” regarding drugs.

Having reviewed the entire record, and finding no error, this court is of the opinion that the judgment of the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte George Randall SEXTON.
    SC 2606.
    Supreme Court of Alabama.
    June 24, 1977.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ„ concur.


author: BOOKOUT, Judge.

text:
    Horace WEEKS v. STATE.
    4 Div. 514.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied June 7, 1977.
    G. A. Lindsey, Elba, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen. for the State, appellee.
   BOOKOUT, Judge.

Appellant was convicted of grand larceny and buying, receiving and concealing stolen property. He was sentenced to six years imprisonment.

The key details of the offense came from the testimony of an accomplice, Harold Lawrence. He stated that he met appellant late on the night of April 7,1976, at a place called the Bungalow in Opp, Alabama (Cov-ington County). From there, they each drove a truck to Troy, Alabama (Pike County) to the premises of a club formerly called the Boomerang II.

On arriving around 1:00 A.M., the appellant opened the building with a key and entered. The two disconnected and took a Frigidaire ice maker and a four-door stainless steel Victor cooler from the premises and loaded them on the truck which appellant was driving (a Tops Vending Company truck with an hydraulic lift). They next took from the building a Scottsman ice machine and a coffee maker and loaded them on Lawrence’s truck. Appellant then locked the building, and they drove back to Covington County to the Cool Springs Church in Opp.

On arriving at the church, appellant parked his truck and both parties went to Lawrence’s house in his truck. There they unloaded the Scottsman ice machine and coffee maker and returned to the church where appellant got his truck. From the church, the two drove to “J. P. Davis’ chicken house” where they unloaded the cooler and the Frigidaire ice maker.

Around mid-April, appellant called Lawrence and had him take the Frigidaire ice maker to Green Bay (in Covington County) and install it in a grocery store where a Mr. Dwight Bryan “sold beer and ice and had pool tables.” Bryan paid Lawrence $35.00 to install the machine and was to pay appellant one dollar per day rent on the machine. Lawrence was qualified as having been in the air conditioning and refrigeration repair business around twenty years and having trafficked in ice machines such as the one in question. He estimated the reasonable market value of the Frigidaire ice maker to be $300.00.

James and Edward Armistead testified that appellant talked with them in a local restaurant in Opp in late July 1976. They were in the air conditioning and refrigeration business, and appellant asked them to go to Green Bay, pick up a Frigidaire ice maker, repair it, and to hold it until he called them for it. Ed Armistead additionally testified that when he and his cousin James went to Green Bay to pick up the machine, he was told that the Sheriff had already come and gotten it. He further testified that around Christmas, he was in the former Boomerang II club working on the heating system, and he observed a Frigidaire ice maker installed on the premises. He also observed a stainless steel Scottsman ice machine on the premises.

Testimony and exhibits show that 231 Truck Stop, Inc., was formed by incorporating papers dated March 4,1976, wherein the incorporators were Louie Grimes, Bill S. Grimes and Floyd Phillips. By deed dated February 14, 1976, the premises of Boomerang II were transferred to 231 Truck Stop, Inc., by Porter M. Moore and Ann M. Grimes.

Billy Grimes, Secretary-Treasurer of 231 Truck Stop, Inc., testified that the corporation had purchased the premises in question in order to convert it into a truck stop. He had done some work inside the building on several occasions. Neither he nor the board of directors had authorized the appellant or Lawrence to take anything from the building. However, he had not inventoried the property in the building and did not know if a Frigidaire ice maker was there when he first went to the building.

Deputy Sheriff Jim Stallings testified that in August 1976 he picked up an ice maker from the Green Bay Grocery, and the machine was presently at the county jail. He authenticated a photograph of the machine which was put in evidence. Harold Lawrence testified that he was presently in the county jail, and the ice maker he had seen in the jail was the same Frigidaire ice maker which he and the appellant had removed from the Boomerang II premises and which he later installed at the Green Bay store.

At the end of the State’s evidence, counsel for appellant moved to exclude the State’s evidence as to the grand larceny count on the ground that if a larceny occurred, it was in Pike County and thus Covington County was the wrong venue. The trial court properly overruled the motion. Title 15, § 98, Code of Alabama 1940; Aaron v. State, 39 Ala. 684 (1866).

Appellant’s defense was that the machine was removed from the Boomerang II premises prior to its sale to 231 Truck Stop, Inc., and he had authority from Mike Moore to remove the machine. This presented a clear-cut conflict between the State’s evidence and that of the defense which was resolved by the jury in the State’s favor.

I

Appellant contends that the evidence was insufficient to support the two charges. We disagree. The elements of grand larceny as set out in Title 14, § 331, Code of Alabama 1940, were proved by the evidence set out above.

From the evidence presented, the jury could have reasonably concluded the following: The premises and personal property of the Boomerang II club were sold to 231 Truck Stop, Inc., prior to April 8, 1976, when the larceny occurred. On that date, neither the appellant nor his former employer owned the property. The Frigidaire ice maker was in the building prior to the sale and neither the secretary-treasurer nor the board of directors of the new corporation had authorized the appellant or anyone else to remove anything from the building. The removal of the machine took place at 1:00 A.M., an unusual hour to say the least. Appellant and his accomplice concealed the machine in a chicken house until the accomplice was sent by appellant to connect it in a store in Green Bay. Appellant rented it to the store on a per diem basis. Its value was established at $300.00.

The facts of the theft, coupled with the concealing of the machine by appellant and his accomplice, likewise proved the essential elements of the second count of the indictment pursuant tó Title 14, § 338, Code of Alabama 1940. Such testimony clearly presents a question for the jury and, therefore, appellant’s requests for the affirmative charge on the two counts were properly refused and his motion for a new trial on the same grounds was properly overruled. Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975); Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975).

II

Appellant contends the trial court erred in allowing the State to impeach witness Mike Moore on immaterial matters. The witness, testifying for the appellant, related some facts concerning his purchase of the Boomerang II club from its former owners and his later sale of the premises to the 231 Truck Stop, Inc. On cross-examination, the trial court allowed the State to go into further details involving the transaction by bringing- out the fact that Boomerang II, Inc., got behind on its mortgage payments, and the owners of 231 Truck Stop, Inc., paid off the delinquency and purchased the premises from the witness. Appellant contends that such was an improper impeachment of his witness. Had the State elicited some immaterial testimony from the witness and then called another witness to dispute the immaterial matter, the appellant’s contention would have been well-founded. Frazier v. State, 48 Ala.App. 210, 263 So.2d 511, cert. denied 288 Ala. 743, 263 So.2d 516 (1972). However, such is not the case here. Regardless of the trial court’s reason for admitting the testimony, it was not a contradiction of the witness’ prior testimony. Instead it is an expansion of facts touched upon in earlier testimony.

The extent of cross-examination is usually a matter within the sound (though somewhat limited) discretion of the trial court. The legal limitations to cross-examination are set out in Ball v. State, Ala.Cr.App., 337 So.2d 31, cert. quashed, Ala., 337 So.2d 39 (1976). We fail to see an abuse of the trial court’s discretion in this instance. Likewise, whether or not the point of cross-examination was material, we fail to see its prejudicial effect here. Rule 45, Alabama Rules of Appellate Procedure.

III

Appellant contends that the cumulative effect of improper arguments by the prosecutor should have mandated a mistrial, and the trial court’s refusal to grant such resulted in error.

The first instance complained of occurred as follows:

MR. COOK: Now, what Mr. Lawrence has done here today, ladies and gentlemen, is he has taken the witness stand and he has testified agaipst Rex Moore’s right arm.
“MR. LINDSEY: We object to that, if the Court please.
“THE COURT: I sustain.
“MR. LINDSEY: And move for a mistrial.
“THE COURT: I deny the motion for mistrial, but instruct the jury to disregard that remark in its entirety and consider it for no purpose whatsoever.”

There was evidence that the appellant was working for Rex Moore and was driving a truck from one of Moore’s companies, Tops Vending Company. The ice maker was carried away from the Boomerang II premises in that truck. Whether or not it is a logical or reasonable inference which may be drawn from the evidence that appellant was “Rex Moore’s right arm,” it certainly was not so prejudicial as to mandate a mistrial in view of the trial court’s ruling in favor of the appellant and his admonition to the jury to disregard the comment.

The second instance complained of appears as follows:

“MR. COOK: Now, ask yourself who we’re dealing with here today. We are not dealing with just Horace Weeks, we are dealing with somebody a lot bigger
“MR. LINDSEY: We object to that, if the Court please.
“THE COURT: Yes, sustained.
“MR. LINDSEY: And move for a mistrial.
“THE COURT: I’m going to deny the motion for mistrial, and instruct the jury to disregard it and Mr. Cook any similar argument to that again will bring a mistrial.” '

The two instances above would not, in our opinion, create an atmosphere so prejudicial to the appellant that it could not be eradicated by the admonition of the trial judge. The trial judge promptly sustained appellant’s objection and gave a proper and, we think, sufficient admonition to the jury under the circumstances of this particular case. See: Weaver v. State, 56 Ala.App. 29, 318 So.2d 768, cert. denied 294 Ala. 773, 318 So.2d 772 (1975); Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied 294 Ala. 764, 318 So.2d 337 (1975); Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).

AFFIRMED.

All the Judges concur.


text:
    Sylvester HOGAN, alias v. STATE.
    3 Div. 540.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.

      Horace N. Lynn, of Piel, Lynn & Thiem-onge, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Michael L. Weathers, Asst. Atty. Gen. for the State, appellee.
   LEIGH-M. CLARK, Supernumerary Circuit Judge.

The crime charged was murder in the first degree of Larry King by shooting him with a rifle. Appellant was found guilty of murder in the second degree and sentenced to fifteen years imprisonment in the penitentiary. Defendant had pleaded not guilty and not guilty by reason of insanity.

The evidence abundantly, and almost conclusively, shows that defendant killed King by shooting him with defendant’s rifle at close range, firing the rifle three or four times, and that two bullets struck him, one entering his head and the other his right shoulder, penetrating the victim’s left lung. The victim died almost immediately thereafter, not being able to rise from the spot where he had fallen.

The killing was one of the frequent aftermaths of an inordinate beer-drinking, as well as- wine-drinking party, that commenced on the part of some at least, including defendant, early in the morning and continued until evening twilight. Defendant had been the common law husband of decedent’s mother for about two years. The three had lived in the same house along with a sister of the deceased. The victim was eighteen years of age; defendant was twenty-four. Defendant had planned the barbecue and drinking affair, which took place in the back yard of the house where he lived with the victim and others, and had drunk about a dozen cans of beer and one-half of a fifth of wine before the shooting occurred.

Defendant’s common law wife (the victim’s mother), accompanied by the victim’s sister, had been to Columbus, Georgia, during the day and returned about mid-afternoon. According to the victim’s sister, she and her mother did not tarry with defendant and her brother and others who had joined the group in the back yard, but she went in the house to go to bed.

She testified that defendant came in the house and had a fight with her mother; the sister jumped between them to stop them, and defendant slapped her. Thereupon her brother, the victim, ran in and jumped between them; defendant and Larry “went to fighting,” during which time defendant punctuated his remarks with filthy language. They both left the house with Larry running and defendant proceeding to a shed or an outhouse and obtaining a rifle.

According to the undisputed evidence, the two met again a short time before dark on the road some distance from the house, at which time it seemed that they both were in the process of composing their disagreement, but instead of doing so, defendant shot Larry. Defendant testified that he remembered almost everything that happened the day of the homicide until about the time that the victim’s mother and sister returned from Columbus, but that he had no recollection of the events, including any shooting or use of a rifle, between that time and the time of his arrest later on that night.

There was evidence by relatives, friends and acquaintances of defendant that he was in an automobile accident about nine years before, as a result of which he was confined to the hospital for three or four days, with a history of some unconsciousness and with findings of bruises of the chest and injury to the head. These lay witnesses testified in effect that prior to the automobile accident defendant acted normally, but that thereafter he started drinking and when drunk would act “crazy.” Joining the witnesses as to that testimony was the defendant’s common law wife, the mother of decedent.

Defendant presented a motion to exclude the evidence, which was denied, and filed a motion for a new trial, which was overruled. In insisting that such action of the court constituted reversible error, appellant argues chiefly that the evidence shows that defendant was so intoxicated that he could not have been guilty of murder in the second degree.

In Gautney v. State, 284 Ala. 82, 88, 222 So.2d 175, 181, in quoting from Walker v. State, 91 Ala. 76, 82, 9 So. 87, 89, it is stated:

“ ‘. . . Mere drunkenness, voluntarily produced, is never a defense against a criminal charge, and can never palliate or reduce the grade of an offense, unless it is so extreme as to render impossible some mental condition which is an essential element of the criminal act. (Authorities cited)’ (Emphasis supplied)”

In Strong v. State, 52 Ala.App. 237, 291 So.2d 325, it is stated:

“. . . Voluntary drunkenness does not excuse the commission of a crime and it is not a valid defense. It is a legal defense to crimes involving a specific intent. If one becomes so intoxicated as to be unable to entertain a specific intent then drunkenness to that degree is admissible in his behalf and becomes a jury question.”

Defendant’s varied activities, his conduct and demeanor, as described by the witnesses, including his chasing the victim, looking for and finding the rifle, and effectively using it with calmness and dexterity, preclude a finding as a matter of law that he was so intoxicated that either malice or intention to kill did not exist. The jury was comprehensively and correctly charged on the subject, and its finding was well within its province.

The point is made for the first time on appeal that the failure of the evidence to show that appellant used aliases, in support of his designation in the indictment as Sylvester Hogan, alias Sylvester Louis Hogan, alias Sylvester L. Hogan, alias Sylvester Morgan, entitled defendant to a favorable ruling on his motion to exclude the evidence.

The loading of an indictment with unnecessary aliases proved fatal to the State under the special circumstances of a prosecution for forgery. Tucker v. State, 43 Ala.App. 163, 184 So.2d 366 (1966). As a general rule, however, identification of defendant by proof as to one of the names designated in the indictment is sufficient. It was not necessary for the evidence to show that defendant was known or called by his unnecessarily alleged aliases. Evans v. State, 62 Ala. 6 (1901); Cantelou v. State, 210 Ala. 648, 98 So. 893 (1924).

Appellant misconceives a part of the transcript of the testimony, which he says shows that “the Attorney for the Defendant was asking questions of the witness concerning a conversation that the deceased and the Defendant were having immediately prior to the shooting.” The part cited is as follows:

“Q They were talking about Sylvester, weren’t they?
“A No, I don’t know whether they were talking about him or not. I’m pretty sure they wasn’t talking about him, but he just said—
“MR. PRICE: I object to what the conversation was anyway. It would be hearsay.
“THE COURT: I sustain that.
“MR. LEONARD: Your Honor, it’s actions of the deceased shortly prior to the time of his death.”

It is obvious that the attorney for appellant, who was not the attorney for defendant on the trial, which attorney is now deceased, was inadvertently misled by the statement of counsel for the defendant on the trial, in which he was apparently referring to the particular conversation between the witness and the defendant as to “actions of the deceased,” but was not referring to actions or conversations between deceased and the defendant. The court was not in error in its ruling.

Appellant next argues that the trial court was in error in allowing the State to show that after defendant had been fully informed of his privilege against self-incrimination, as guaranteed by the Fifth Amendment, and his right to counsel, as secured by the Sixth Amendment of the Constitution of the United States, the defendant declined to make a statement. Notwithstanding some confusion on the subject, as indicated by the record, we conclude that the record does not support the dedicated efforts of appellant’s counsel in this respect. The State attempted, and perhaps at one time it seemed that it would be able, to show that after defendant was informed of his rights, he declined to make a statement, but the court expressly ruled otherwise, as shown by the following statement of the court, during the colloquy among the court and counsel out of the presence of the jury:

“THE COURT: Well, I won’t — I’ll permit it if he gave him his rights again, but I think it is just going to have to speak for itself at that point. I don’t want the ‘no statement’ to go in there. I think that would be prejudice.”

After the jury returned, the record shows:

“Q Now, Mr. Litaker, I believe you testified that after arresting the defendant, you then took him to Headquarters and on the way to Headquarters you testified to the statement he made. Now, after you got to Headquarters did you again advise the defendant of his Constitutional Rights?
“A Yes, sir.
“Q From the Standard Rights Form?
“A Yes, sir.”

Thus ended questions asked the witness by the State as to the particular matter under consideration.

During defendant’s direct examination of defendant’s common law wife, the following occurred:

“Q Based on your general knowledge of Sylvester Hogan during the period of time you have known him and your opportunity to observe him that afternoon, do you have an opinion as to whether he could tell the difference between right and wrong—
“MR. PRICE: I object to that, Your Honor. That would be for the Jury.
“THE COURT: I sustain your objection.”

We have some difficulty determining why the court sustained the State’s objection. Certainly the ground of objection was not a valid one. The mere fact that the jury has to pass on a question of fact does not, in and of itself, preclude proper opinion evidence thereon of a witness. It has been uniformly held in Alabama, as stated in Hamilton v. State, 281 Ala. 448, 203 So.2d 684, 686-687 (1967):

“Witnesses, whether expert or non-expert, may express their opinion as to the sanity or insanity of defendant on trial for crime. Parrish v. State, 139 Ala. 16, 42, 36 So. 1012; George v. State, 240 Ala. 632, 636, 200 So. 602.”

The admission in evidence of the opinion of a witness as to whether the accused could discriminate between right and wrong was upheld in Powell v. State, 25 Ala. 21 (1854) and in Deloney v. State, 225 Ala. 65, 142 So. 432 (1932). It is not absolutely clear as to the time target of the question, that is, whether the inquiry was made as to defendant’s mental competency in general while the witness knew him, or to his competency on the occasion she observed him that afternoon. In this connection, it is to be noted that this witness did not observe defendant at the time, or immediately before, he killed Larry. Although objected to by the State before the question was completed, and defendant’s counsel should have been allowed to complete it, the confusing nature of part of the question asked precludes a determination that the trial court was in error in sustaining the objection of the State.

Furthermore, the witness was allowed to testify thereafter, over the objection of the State, as follows:

“Q Do you have an opinion whether you think that afternoon he was sane or insane?
“A Insane?
“Q Was he sane, in your judgment, that afternoon, was he sane or insane?
“A Well, I really don’t know.”

In addition, if it is to be assumed that witness’ answer to the question to which the objection was sustained would have been to the effect that at the time she observed defendant, he could not distinguish right from wrong, we think the action of the court in sustaining objection thereto was harmless in view of subsequent testimony by the witness as follows:

“Q Did he appear to know what he was doing?
“A I don’t know. I don’t believe he knowed what he was doing, no.”

Her testimony that in her opinion defendant did not know what he was doing was even stronger in favor of defendant than would have been testimony by her that he could not tell the difference between right and wrong at that time. We find no error prejudicial to defendant in this particular ruling of the court.

No harmful error is shown by the following:

“Q O.K. His reputation for peace and quiet is good but has he ever been in trouble with the law before?
“A Not to my knowing.
“MR. LEONARD: I object.
“THE COURT: I overrule your objection.'’

The answer of the witness was favorable to defendant. The overruling of an objection to a question is harmless when the answer thereto is favorable to the objecting party. Talley v. State, 174 Ala. 101, 57 So. 445 (1912); Coats v. State, 253 Ala. 290, 45 So.2d 35 (1950); Narrell v. State, 25 Ala.App. 426, 148 So. 166 (1933).

On defendant’s motion for a new trial, the proposition was advanced by him, for the first time in this case, that defendant, as an indigent, was entitled, at State expense, to a court reporter at his preliminary hearing and a transcript of the evidence presented at that time. He argues that as it has been held that the preliminary hearing is a critical stage in the prosecution of a criminal case in Alabama (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387), his constitutional right was violated by his not being provided a court reporter and a transcript as to the preliminary hearing. Appellant relies upon Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) and Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966). Each case is distinguishable from this one, particularly in that the request was seasonably made, for a transcript of the preliminary hearing in Roberts and of a habeas corpus proceeding in Long, and was not postponed, as in this case, until defendant had been tried and convicted. Furthermore, all questions raised by the proposition advanced have been determined adversely to appellant in Williams v. Jasper, 47 Ala.App. 91, 250 So.2d 699, cert. denied 287 Ala. 237, 250 So.2d 701.

In the closing argument of counsel for the State, he stated:

“I haven’t found a defendant yet who comes into the Court Room that couldn’t get someone to say he was a person of good character. Just bring your friends in. I can do it. You can do it. John Booth Wilkes [sic] did it who shot President Lincoln. Anybody can do it. You see, you can bring someone in and say you’re a person of good character. You can bring your friends in here, see.”

No objection was made to the argument. The question of its propriety was first presented on defendant’s motion for a new trial. Appellant urges that the argument was so “ineradicably prejudicial” that it did not require any objection, and that the court should have granted a new trial by reason of such argument.

We certainly do not approve the argument. Its historical inaccuracy is confusing, and its purported application is unclear, in the light of the fact that John Wilkes Booth was never tried. Even so, appellant presents no authority, and we can find none, to the effect that the argument was so ineradicably prejudicial that it justified granting a motion for a new trial.

We have searched the record for error prejudicial to defendant and have found none. Let the judgment of the trial court be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . Defendant afterwards developed the matter on cross-examination.


text:
    Franklin George SON, alias v. STATE.
    3 Div. 696.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.

      C. Collier Carlton, of Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for rape and convicted. The jury fixed his punishment at twenty-five years imprisonment.

The victim lived in an apartment in Montgomery. She knew appellant from seeing him playing horse shoes with her husband. It appears from her evidence that they started about 6:00 or 6:30 P.M., July 22, 1976 and played until around midnight at which time he asked for his supper and then fell asleep.

The victim testified at about 11:00 or 11:30 o’clock that evening .she saw appellant at a clothesline where she was gathering diapers. At this time he “propositioned” her. The victim further testified that later in the evening, while she was asleep in her bedroom, which was lighted to some extent by the street lights, she awakened to find a man over her bed with a knife; that he jumped on her with it; and cut some of her clothing with it, and later penetrated her. There was other supporting evidence of sexual relations with the victim.

Defendant did not take the stand. However, defendant’s wife testified that she went to work around midnight at which time her husband was at home and that he did not appear to be drunk.

I

The evidence of the victim about the defendant “propositioning” her at the clothesline was admissible as manifesting a lustful desire for the prosecutrix. We think it had a probative value, the weight of which was for the jury. Patterson v. State, 51 Ala.App. 659, 288 So.2d 446[6, 7],

II

On cross-examination, defendant’s counsel propounded questions to the State toxicologist, an expert; one of which was answered and objection sustained as to the other:

“Q Now, I believe you stated that you were present during the gynecological examination. Did Mrs. Kelly have any type of bruises or other problems in her genital area?
“A No, sir, none noted by me or the doctor.
“Q Is that unusual in a rape case?
“MR. SASSER: I object, Your Honor, as to whether or not it’s unusual in other cases or not.
“THE COURT: Sustained.”

Appellant complains that this court erred in sustaining the State’s objection, supra.

We are not in accord with this contention. The reply of the witness to the first question was in the negative. It appears to us that the next question called for an answer that was immaterial. The witness answered that there were no bruises. The second question was broad in its scope. Objection was properly sustained.

III

Any conflict in the testimony of the prosecutrix presented a resolution for the jury in deciding the guilt or innocence of defendant. There was sufficient evidence, which if believed by the jury, to establish defendant’s guilt. Title 14, Section 396, Code of Alabama 1940, Recomp. 1958; Stephenson v. State, 35 Ala.App. 379, 48 So.2d 255(1).

IV

The fourth contention was that the trial court abused its discretion in allowing the State to reopen its case and prove venue. The testimony ’as to venue was adduced before argument had begun. This adduction was not error. Title 7, Section 252, Code of Alabama 1940, Recomp. 1958.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Charlie AUSBORN, alias v. STATE.
    3 Div. 719.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.

      Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of one Andrew Fletcher by the Grand Jury of Montgomery County, Alabama, February, 1976 term. On December 8, 1976, the appellant was tried and found guilty of murder in the second degree. The jury fixed punishment at twenty years imprisonment. Judgment and sentence were properly entered and this appeal, in forma pauperis, follows.

The appellant has been previously tried and convicted )for murder in the second degree) on the same indictment for which he was convicted in the present case. This court affirmed the former conviction of the appellant in Ausborn v. State, Ala.Cr.App., 338 So.2d 482 (1976). This record does not show the reason the first conviction of the appellant came to be retried. The Attorney General, in his brief on appeal, states on information and belief that counsel for the appellant after his first trial filed a petition for a writ of error coram nobis in the trial court alleging ineffective assistance of counsel. Counsel then confessed his ineffectiveness at the hearing and on that basis the trial court granted a new trial. On this appeal, no issue is taken with the manner in which the appellant came to be retried.

The evidence presented by the state revealed that on the evening of December 19, 1975, the appellant and Andrew Fletcher had an argument. The next morning, Fletcher was visiting at the residence located at 2465 Hickman Street, Montgomery, Alabama. The appellant drove up outside this residence and waited with the barrel of a sawed-off shotgun resting in the open window of his automobile. When Fletcher went to his truck he had to pass the appellant’s automobile. As he did, some words passed and Fletcher turned his head toward the appellant who shot Fletcher with the shotgun.

The coroner for Montgomery County testified that Fletcher died as a result of a shotgun blast to the right side of his face fired at a distance of three to eight feet.

Both in his statement to the police and his testimony at trial, the appellant admitted shooting the deceased but claimed it was in self-defense. He stated that on the evening before the killing he and Fletcher had an argument when he asked Fletcher to leave his cafe. Shortly thereafter Fletcher smashed the windshield of the appellant’s automobile. The appellant then went to meet Fletcher to discuss payment for the broken windshield. Because he knew that Fletcher sometimes carried a gun, the appellant took his shotgun to the meeting. In his statement to the police, the appellant admitted that he sawed off the barrel of the shotgun the morning of the killing. At trial, the appellant denied the truth of this statement.

According to the appellant, Fletcher grabbed the shotgun and it discharged killing the aggressor. The condition of the shotgun was such that it had to be held together while firing. The trigger did not function and the hammers or “rabbit ears” would not cock. The weapon could only be fired by pulling a hammer back and releasing it.

I

The appellant asserts that it was error to allow the District Attorney to bolster the character of an alleged victim of crime when his character has not been attacked by the defense. The portion of the record giving rise to the alleged error is as follows:

“Q. (By the Assistant District Attorney) Now, from the time that you have known Mr. Fletcher, Mrs. Davis, to your personal knowledge has he ever been convicted of a felony in this State?
“A. No, he hasn’t.
“Q. Any place?
“A. No.
“MR. ALLEN (Defense Counsel): We object to this line of questioning.
“MR. PRICE (Assistant District Attorney): I have no further questions.”

The question itself was objectionable but no objection was made until after the answer. There was no adverse ruling by the court and no motion to strike or exclude. After a question is asked, and a responsive answer given, an objection comes too late, and the trial court will not be put in error absent a motion to exclude or strike an adverse ruling thereon. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975); Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).

II

The appellant complains that the trial court should have excluded the state’s evidence, directed a verdict for the appellant, and given the written requested affirmative charge. There is legal evidence from which the jury can by fair inference find the appellant guilty. The verdict of the jury should not be disturbed. Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975), 7 Alabama Digest, Criminal Law, Key Number 1159.2(4).

III

Finally the appellant urges that it was error for the trial court to refuse to give his written charge. This charge reads as follows:

“Ladies and Gentlemen of the Jury, I charge you that if you find from the evidence that the Defendant believed himself to be in imminent and grave danger and defended himself accordingly then it is your duty to find him not guilty in that he acted in self-defense.”

This charge pretermitted consideration of freedom from fault and the qualified duty to retreat as essential elements of the defense of self-defense, and it was properly refused. Grady v. State, 51 Ala.App. 143, 283 So.2d 453 (1973); Mitchell v. State, 53 Ala.App. 58, 297 So.2d 383, cert. denied, 292 Ala. 742, 297 So.2d 388 (1974). In any event, the court’s oral charge properly covered all elements of the defense of self-defense. Smith v. State, 45 Ala.App. 48, 223 So.2d 289 (1969). The refusal to give the charge requested by the appellant was not error.

We have considered the entire record as required by Title 15, Section 389, Code of Alabama 1940 and conclude that there is no prejudicial error therein. The judgment of the trial court is

AFFIRMED.

All Judges concur.


text:
    Wilson GILMORE v. STATE.
    6 Div. 959.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.

      William M. Dawson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

Wilson Gilmore, the appellant, was indicted by the Grand Jury of Jefferson County in November of 1974 and charged with the first degree murder of Willie Moody by pushing him down a flight of stairs. A petit jury found the appellant guilty of manslaughter in the first degree and fixed his punishment at five years imprisonment in the penitentiary. Accordingly the trial court entered judgment and sentence. Gilmore, an indigent, is represented by court appointed counsel both at trial and on appeal.

On appeal, Gilmore contends that his conviction is due to be reversed for two reasons: (1) Because of the admission of photographs of the deceased and (2) because the state failed to prove the cause of death.

The testimony presented by the state tended to show that on the evening of May 20, 1974, Willie Moody, age 39, and his sister, Mary Johnson, went to the rooming house where Gilmore, age 61, was staying to pick up some clothing that his sister had left in the apartment. The apartment belonged to a Leroy Collins and was located on the second floor of an apartment building. Mary Johnson entered the apartment to get her clothing. As Willie Moody, alias “Green Honey” arrived at the front door, Gilmore asked Moody what he was doing coming to the house. Moody replied that he came after fifty cents. According to eyewitness testimony, Gilmore then grabbed Moody and threw him over the second story banister. Moody hit the concrete below and never regained consciousness. He died on August 14, 1974, approximately three months after this injury was sustained. Evidence was adduced that Gilmore told the deceased he would kill him and stated, after he shoved Moody to his death, that he did not care if he did kill him. Immediately after this incident, Gilmore fled the scene of the crime.

The appellant, Gilmore, presented evidence that Mary Johnson had been living with him at Collins’ apartment. On the day of the killing, Gilmore learned that Ms. Johnson had spent the day with another man. When she returned that evening with her brother (the deceased) and another man, Gilmore asked them to leave because Collins was sick. As he opened the screen door, Moody stepped up and hit Gilmore in the head knocking his glasses off. A fight ensued. Gilmore testified that the deceased cursed him and continued the assault. As Moody swung at the appellant, Gilmore ducked and Moody went over him and over the stair rail.

I

The state introduced three photographs which were taken of the deceased at the time of his death which occurred approximately three months after his injuries were received. During this period the deceased underwent two surgical operations to his head. Initially the trial court allowed the photographs in evidence over the objections of the appellant. However, following the close of the evidence, the court granted the appellant’s motion to exclude the pictures,

“for the reason that there had been an operation earlier, scars from an earlier date on there. So, for that reason I’m excluding these pictures, because I don’t feel they have probative value.”

The trial judge determined that the pictures were not “passed around” to the jury although one juror admitted that he could see them.

The appellant contends that the admission of the photographs into evidence was error because they depicted a substantial change in the condition of the deceased from his condition at the time of his injury. These photographs were not made a part of the record on appeal.

The three photographs were made by a deputy coroner approximately three months after the fatal injuries were received. Apparently these photographs depict scars resulting from two separate operations on the head of the deceased necessitated by the injuries he received at the hands of the appellant. In addition to these operations, the deceased also received a tracheotomy and another minor operation in which a tube was inserted in his abdomen for feeding purposes. The head of the deceased was partially shaved and revealed evidence of pressure ulcers or “bedsores”.

The basis of the objection of the appellant to the photographs is that they depict several scars and incisions on the body of the deceased which were the result of operations and were not a depiction of just those injuries he received in the fall.

The Deputy Coroner who made the pictures testified that he examined the body of the deceased and noted that the deceased,

“had two old scars on the bottom part of his body in the abdomen area; had an old scar on his left leg; had an old scar on the right side of his head; and had an abrasion-type wound on the left side of his head.”

The head of the deceased had been shaved during his stay in the hospital. The coroner stated that these were the only marks on the head of the deceased.

On May 20, 1974, the day the appellant was injured, he was admitted to the University Hospital in Birmingham. He remained there for two months before he was transferred to Mercy Hospital on July 18th where he came under the care and supervision of Dr. John Bazley. The transfer was necessary because after his injury, the deceased had developed a problem of infection, a brain infection, and chronic aspiration pneumonia.

Dr. Bazley testified that the deceased underwent two major operations while at University Hospital. He had obtained a medical history of the deceased “from the doctors taking care of him and their records when he was at the University.”

He identified on the photograph of the deceased the cranial area that was operated on and pointed out the area of the head on which the operations had been performed. He also pointed out the area where the deceased had developed abscess and a pressure ulcer or “bedsore”. He identified the scar on the deceased which was caused by a tracheotomy. He could not identify a mark or scar across the right temple of the deceased as being caused by an operation or as being a previous scar from “another day or year” or whether it “was related to this illness or another illness”.

The general rule in Alabama is that photographs of a murder victim taken after the performance of surgery or an autopsy are admissible in evidence even though they show the marks of incisions made for the purpose of the autopsy or resulting from the surgery where these marks are sufficiently identified and pointed out to the jury. McKee v. State, 33 Ala.App. 171, 31 So.2d 656, cert. denied, 249 Ala. 433, 31 So.2d 662 (1947); Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268 (1958); Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970); Means v. State, 51 Ala.App. 8, 282 So.2d 356, cert. denied, 291 Ala. 792, 282 So.2d 359 (1973); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62 (1974); Allen v. State, 55 Ala.App. 549, 317 So.2d 517 (1975). While Dr. Bazley could not identify the cause of each and every scar or mark on the head and body of the deceased, he was able to specifically identify what portions of the head were operated on and where the injury to the head occurred. This was a sufficient identification under the circumstances of this case to satisfy the rule set forth above.

We disagree with the finding of the trial court that the photographs were of no probative value as they tended to show the nature and location of the fatal wound. The fact that a photograph has very little probative value does not prevent its admissibility where it will tend to shed light on, strengthen, or illustrate the truth of other testimony; or where it has a reasonable tendency to prove or disprove some material fact or issue in the case; or where it illustrates the location, nature or extent of the wound or is used to identify the deceased. Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038 (1976); Robinson v. State, Ala.Cr.App., 342 So.2d 1331 (1977).

Additionally there was no error in originally allowing the pictures in evidence because of the action of the trial judge in withdrawing the photographs from evidence before the jury began its deliberation and before they were passed around to the jury. As we have already determined that the photographs were, in fact, relevant and admissible, though of little probative value, there was no error in their original admittance because they were subsequently withdrawn from evidence despite the fact that one juror stated that he could see the picture and no instructions were given by the trial judge directing the jury to disregard and not consider the photographs. We therefore distinguish this case from Patrick v. State, 43 Ala.App. 338, 190 So.2d 551 (1966) where it was held that any error in the admission of a photograph of a stab wound which was taken after the wound was altered by surgery was cured by the court’s withdrawal of the photograph from evidence and an instruction to the jury not to consider it.

In holding that the admission and subsequent withdrawal from evidence of the photographs were not reversible error we especially note that no photograph could be more descriptive, graphic, or revealing of the injuries suffered by the deceased in terms of prejudice or damaging testimony to the appellant than the testimony of that witness for the state who stated that when the head of the deceased hit the concrete, it “popped like a balloon”.

II

The second and final argument of the appellant is that the state failed to prove the cause of death. The matter of proof was complicated by the fact that Moody lived for approximately three months following his fall.

An eyewitness testified that when the head of the deceased hit the concrete it “popped like a balloon”. Following his fall, Moody never regained consciousness. Expert testimony by the attending physician revealed that he sustained a severe head injury, developed pneumonia and a brain infection and died. In particular we note the following testimony:

“Q. In your medical opinion, what was the cause of his death?
“A. I think it was a combination of the extensive destruction of the brain with superinposed infection in the area of the brain that was destroyed; lung infection, secondary to the prolonged unresponsive state of coma.
“Q. And in your opinion as his doctor and as an expert, was that infection caused by the trauma to his head?
“A. Yes.
“Q. The injury to his head?
“A. Yes.”

This expert also testified that it was his opinion that the initial injury to the brain was the cause of complications which ultimately caused death.

With this testimony, the causal connection between the injury inflicted and the cause of death was not left to doubt or speculation. A physician who attended the deceased may testify as to the cause of death. Simon v. State, 108 Ala. 27, 18 So. 731 (1895); Diamond v. State, 219 Ala. 674, 123 So. 55 (1929); See 6 Alabama Digest, Criminal Law, &wkey;476.

We have reviewed the entire record carefully and as required by law. Finding no error we are of the opinion that the judgment of the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.


author: SMITH, Judge.

text:
    EDWIN K. WILLIAMS & CO.-EAST, a Virginia Corporation, d/b/a Marcoin Management Services, Appellant, v. Thomas W. HUNT and Marie L. Hunt, Appellees.
    No. CC-284.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1976.
    Rehearing Denied Oct. 7, 1976.
    George L. Hudspeth of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    Clinton E. Foster, Panama City, for ap-pellees.
   SMITH, Judge.

Two years and eleven months after termination of the agreement by which appellant granted appellees an exclusive license to engage in business marketing appellant’s management and record keeping systems in specified counties, appellant filed this action to enforce by injunction the restrictive covenant by which appellees agreed not to compete in the territory for three years after termination of the agreement. Upon a hearing conducted after the third anniversary of the agreement’s termination, the circuit judge dismissed the complaint for injunctive relief but granted appellant leave to amend to claim money damages at law. By this interlocutory appeal we review the trial court’s determination, from the face of appellant’s complaint, that appellant was not entitled to injunctive relief.

By a divided decision in Capelouto v. Orkin Exterminating Co. of Fla., Inc., 183 So.2d 532 (Fla.1966), app. dism., 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10, the Florida Supreme Court affirmed a chancellor’s decision holding Orkin entitled to injunctive relief against a former employee. The chancellor decreed noncompetition for the specified two years beginning on a future date set in the decree rather than on the date appellant’s employment was terminated, as required by the letter of the agreement. To deny Orkin such prospective relief for the full two-year period, the Court reasoned, would render the agreement and the Court’s approval of it ineffective simply because the litigation itself consumed much of the period in which there was to have been no competition. The Supreme Court noted that the controversy was swiftly submitted to the trial court within a month after the employment terminated and the dispute arose.

The question here, as in Capelouto, is whether the chancellor erred in deciding an equitable matter. Appellant’s complaint shows that, as in Capelouto, the parties ended their contractual relationship with a controversy over whether appellees could refuse to sell their accounts and goodwill to appellant and, instead, continue doing business in the territory in competition with appellant. In contrast with the circumstances in Capelouto, however, appellees were content to pursue their business without litigation and appellant was content for more than two years and eleven months to allow them to do so unchallenged. On that ground the chancellor determined that there were no grounds for equitable modification of the contractual period of protection, as in Capelouto, and so dismissed with prejudice appellant’s claim for injunctive relief.

The distinction which the chancellor saw between this case and Capelouto is a telling one, in our opinion, justifying his dismissal of the equitable aspects of the case. Appellant has no justifiable claim to the extraordinary equitable remedy which was fashioned in Capelouto after knowingly permitting appellees to carry on their business under a claim of right for virtually the full span of the protected period.

We therefore sustain the chancellor’s decision that the three-year period of noncom-petition prescribed by the contract had virtually run when the action was commenced and had run when the motion to dismiss the equitable claim was presented. Our holding is not based strictly on the affirmative defense of laches, an alternative ground of the chancellor’s decision, for the complaint did not show on its face that appellees lacked knowledge that appellant would eventually hope to assert rights under the contract. See Van Meter v. Kelsey, 91 So.2d 327, 331 (Fla.1956). It is unnecessary for us to consider other grounds argued by counsel for sustaining the chancellor’s ruling.

Interlocutory appeal dismissed.

BOYER, C. J., and MILLS, J., concur.


author: PER CURIAM. BARKDULL, Judge,

text:
    HART PROPERTIES, INC., Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 75-1743.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      Edith Held Cooper, Miami Beach, Hueb-ner, Shaw & Bunnell, Fort Lauderdale, for appellant.
    Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appel-lee.
    Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for intervenor.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

The appellant, Hart Properties, Inc., is an abutting property owner who objects to a zoning change made by the County Commission. The intervenors, Sam Morris and Melvin Levine, petitioned for a change of zoning from RU4, which allows apartments of 50 units to the acre, and RU4A, which allows apartments, hotels and motels of 50 to 75 units per acre, to BUI, which allows limited business use, on a parcel of property located at 16200 Collins Avenue, Dade County, Florida, which is approximately 230 feet by 137 feet. The County Commission, after a public hearing, unanimously granted the change. Appellant adjacent property owner brought a petition for certiorari in the circuit court to review the action of the County Commission. The circuit court denied certiorari on the ground that the change was fairly debatable.

The wisdom of the County’s action is not a proper subject for discussion here. See Clarke v. Di Dio, 226 So.2d 23 at 25 (Fla. 2d DCA 1969). The governing question is whether the circuit court committed error in concluding, from the facts of this case, that the change in zoning was a fairly debatable legislative decision. If the change was reasonably related to the public health, safety, morals and welfare, it is not arbitrary, capricious and unreasonable and must be sustained as a proper exercise of the legislative authority of the County. See City of Miami Beach v. 8701 Collins Avenue, 71 So.2d 428 (Fla.1954); City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3d DCA 1967); and County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969).

The granting of a zoning change such as the present one is not unique or prohibited in American law:

“Amendments which reclassify residen-tially zoned land to permit the construction of shopping centers have been upheld on the ground that they permit a use which is needed, and which serves the comprehensive plan for community development. Such an amendment may, of course, be disapproved if the court discerns no compensating public need for the use favored by the legislation. Approval on similar grounds has been extended to commercial uses of various kinds where the courts were convinced that the service was needed and that the new use would not be destructive of other property in the neighborhood.”
Anderson, American Law of Zoning § 5.06 “Benefit or detriment to public,” at 248 (1968).

See the cases cited in 82 Am.Jur.2d Zoning and Planning § 76, and 101 C.J.S. Zoning § 34. See also Yokley, Zoning Law and Practice § 8-3' at 365. The' record before the County Commission shows that the property in question is surrounded by a nightclub, a fishing wharf and is closely situated to an area with restaurants and stores. There was also evidence before the County Commission that because of the development of the area by the erection of highrise apartments and numerous motels, that service stores would be in the best interest of the community. The County Commission had before it conflicting recommendations from its County Director of Building and Zoning, whose recommendation was against the change, and the Planning Director of Dade County, whose recommendation was in favor of the change upon the ground that stores are proper for the service of the residents of the area.

We, therefore, hold that error has not been shown and that the record before the trial judge substantiated his conclusion that the change in zoning was fairly debatable.

Affirmed.

BARKDULL, Judge,

dissenting.

I respectfully dissent from the majority opinion in this cause. The impact of the opinion is to approve the creation of a new business use district in the middle of a residential area, an area devoted exclusively to motels, apartments, and single family residences. To better understand the physical characteristics of the property involved, a copy of petitioner’s Exhibit K is incorporated in this opinion, as follows:

The property involved is that shaded in black, immediately on the west side of State Road AIA. It is surrounded by a motel development on the east side of AIA; motels fronting on Atlantic Ocean on the right side on Exhibit K; on the north side by a bridge to Hibiscus Island; on the west by a waterway; across the waterway, single family homes on Atlantic Island in a RU-1 zoning classification; and on the south by a RU-4 multiple family use district. There is no commercial property on the west side of State Road AIA south of Ocean Beach Boulevard, also known as 163rd Street. The businesses along Ocean Beach Boulevard face this boulevard, and there is BU-2 zoning on the east side of AIA at the intersection of Ocean Beach Boulevard. The fishing pier referred to in the majority opinion extends easterly from an extension of Ocean Beach Boulevard; the nightclub referred to is located on Fairyland Island. There is another fishing pier at the south end of Haulover Park, to the bottom right off of Exhibit K. See: Sunny Isles Fishing Pier, Inc. v. Dade County, 79 So.2d 677 (Fla.1955). The only restaurants and stores closely situated to the area are along Ocean Beach Boulevard and to the north thereof, along AIA. The one non-conforming use on the east is now a defunct drive-in. The. record is unclear as to whether or not a small parcel to the south, along the western side of AIA, is in use by a Howard Johnson ice cream shop. There is testimony in the record that there is no commercial use along the'west side of AIA from Ocean Beach Boulevard on the north to Haulover Park on the south, which appears at the bottom on Exhibit K.

The property owner acquired this property on October 8, 1974. He prepared an application for a boundary change, commencing at least by February 18, 1975, per letter attached to Application for Zoning Change; the application, in fact, is dated February 25, 1975. The property owner had previously owned this property, so there is no question but that he knew what the zoning on it was at the time he acquired it. He immediately sought to change the zoning. He applied for a use variance per the application, although the County Commission granted “A district boundary change from RU-4 (Apartment House and Hotel) and RU-4A (Hotels and Motels) to BU-1 (Neighborhood Business).”, notwithstanding the recommendation of the Zoning Director that this application be denied:

* * * * * $
“Application should be denied with prejudice.
“This is a request for a spot zone in this area lying South of Sunny Isle Ocean Beach Boulevard which is almost entirely restricted to residential use contrary to the area lying North of Sunny Isle Ocean Beach Boulevard which is a combination of Motel and Business use, and the request is totally incompatible with this zoned and developed apartment house and motel area. If approved, the predominate RU-4 (Apartment Houses) and RU-4A (Apartment Houses and Motels) area, the integrity of this area would be violated and it would constitute a harmful intrusion into this multiple family residential neighborhood.
“There is more than sufficient commercially developed property on Sunny Isle Ocean Beach Boulevard and on AIA, North of Sunny Isle Boulevard to serve this apartment house and motel area, and to approve this unneeded business at this location will promote additional requests of business zoning South of Sunny Isle Ocean Beach Boulevard. It should be pointed out that in this area South of Sunny Isle Ocean Beach Boulevard, there are several large complexes of apartment houses of great density which permit food and drug stores within the complexes, which if the demand justifies, can be installed to serve the needs of the residences South of Sunny Isles Ocean Beach Boulevard.”

If the application was for the purpose of securing a variance, it should have been denied under the following authorities. Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3rd D.C.A. 1959); Board of Adjustment of City of Fort Lauderdale v. Kremer, 139 So.2d 448 (Fla. 2nd D.C.A. 1962); Allstate Mortgage Corporation of Florida v. City of Miami Beach, 308 So.2d 629 (Fla. 3rd D.C.A. 1975). Because there was not hardship, hardship (if any) was self-created; there was, in fact, no district boundary change as enacted by the County Commission in the resolution under attack. A district boundary change would be an alteration of an existing use district. What, in fact, the property owner received was the creation of a completely new use district within a RU-4A zoned area. This action on the part of the County Commissioners, which was sustained by the trial court, is a blatant example of spot zoning. It is a complete departure from the residential character of the neighborhood; it permits the development of drive-in business facilities, which are unneeded in the area. There is ample evidence that the commercial area along Ocean Beach Boulevard and north from the boulevard, along the west side of AIA, is sufficient to serve the residents of the area. The evidence indicated that the highrise developments to the southwest of the property have in-house commercial developments to serve their tenants. To permit this spot zoning or “cancer” on the west side of AIA would subject the entire area south of this property to the north boundary of Haulover Park being zoned BU-1 for commercial activity, and this court should not countenance such spot zoning. Smith v. City of Miami Beach, 213 So.2d 281 (Fla. 3rd D.C.A. 1968); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th D.C.A. 1969).

Therefore, I would reverse the final judgment under review, and return the matter to the trial court with directions to quash the action of the County Commission creating this new use district.

      . “The Court is governed by the well-established principles of the ‘fairly debatable’ doctrine, and cannot substitute its judgment for that of the Board of County Commissioners of Metropolitan Dade County, if the zoning question before that Board was fairly debatable. It is equally clear that the petitioner carries the heavy burden of demonstrating to this Court that the facts relied upon in support of the decision by the Board of County Commissioners of Metropolitan Dade County were baseless, insubstantial, or wholly refutable.
      “This Court may well have reached a different result based upon the record before it, however, it is not the duty, nor the province of this Court to re-evaluate the probative weight to be given to the evidence presented to the Board of County Commissioners of Metropolitan Dade County, but merely to determine whether or not the findings of fact reached by the Commission are supported by competent, substantial evidence.
      “It appears crystal clear that the zoning question before the Board of County Commissioner of Metropolitan Dade County in this instance was fairly debatable and that there was competent, substantial evidence presented to the Board of County Commissioners to support their decision.”


author: PER CURIAM.

text:
    Steven J. GREEN and Jerome C. Berlin d/b/a S & J Investments, a partnership, Appellants, v. Steven CASPER, Appellee.
    No. 76-678.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 17, 1977.
    Storace, Hall & Hauser, Miami, for appellants.
    Ryan & Shahood, Dania, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiffs, judgment creditors of the defendant, seek reversal of an order denying their petition to set aside fraudulent conveyance.

On January 14, 1975 defendant, Steven Casper, remarried his former wife, Judith, whose marriage to Steven had been dissolved in October 1973. Prior to their remarriage, Steven and Judith Casper executed an ante-nuptial agreement wherein they agreed to create an estate by the en-tireties of all real property presently owned by them as tenants in common. After their remarriage, they executed a post-nuptial agreement to the same effect and all their real property was conveyed to a third party who in turn reconveyed the property back to them as tenants by the entireties. On February 27, 1975 a $20,500 judgment was entered against Steven Casper in favor of plaintiffs, Steven Green and Jerome Berlin. In August 1975 plaintiffs filed their petition to set aside fraudulent conveyance on the ground that the conveyance creating an estate by the entireties was a fraud and was made with the intention to hinder, delay and frustrate the collection of the judgment. After an evidentiary hearing at which Steven and Judith Casper were the only persons who testified, the trial judge denied the petition. We affirm the denial order.

Quoting American Jurisprudence, our Supreme Court in Cleveland Trust Company v. Foster, 93 So.2d 112, 114 (Fla.1957) listed some of the following more commonly recognized indicia or badges of fraud:

“ ‘The facts which are recognized indi-cia of fraud are numerous, the most important being the insolvency or indebtedness of the transferrer, lack of consideration for the conveyance, retention by the debtor of possession of the property, relationship between the transferrer and the transferee, the reservation of benefit to the transferrer, the pendency or threat of litigation, secrecy or concealment, and the transfer of the debtor’s entire estate.’ [Citations omitted.]”

We first note a total absence from the record with respect to any evidence of Steven Casper’s insolvency. All that is present is the bare allegation in plaintiffs’ petition that Casper is insolvent and the denial of that allegation by Casper in his answer. Moreover, a conveyance of property for the consideration of marriage pursuant to an ante-nuptial settlement is not fraudulent as to creditors on the ground of want of consideration and even though made with a fraudulent design by the transfer, it should not be set aside without the clearest proof of the wife’s participation in the intended fraud. Dova v. Hancock, 88 Fla. 503, 102 So. 646 (1924). Here again, the record demonstrates no such participation on the part of Mrs. Casper in the alleged intended fraud. She testified that the reason for the ante-nuptial and post-nuptial agreements was to avoid the problems the parties experienced with a division of their property as a result of the prior dissolution of marriage proceeding.

We conclude that the trial judge’s denial of plaintiffs’ petition was supported by competent substantial evidence.

Affirmed.


text:
    R. D. HERMES and Therese Hermes, his wife, Appellants, v. Elizabeth ANTON a/k/a Elizabeth Larosa, Appellee.
    No. 76-681.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 17, 1977.

      Guralnick & Gellman, Miami, Myles J. Tralins, North Miami, for appellants.
    Horton, Perse & Ginsberg, Highsmith, Strauss & Nelson, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiffs appeal an order granting a new trial, or in the alternative directing them to file a remittitur of $18,200 of the $20,000 in punitive damages awarded by the jury in an action for fraud in the inducement.

Appellants, R. D. and Therese Hermes, filed a complaint seeking compensatory and punitive damages against appellee, Elizabeth Anton, for fraud in the inducement alleging that she leased a single family residence to them for a term of one year and encouraged them to make considerable repairs to the premises when she knew the leased property was being condemned by the State and the proceedings substantially completed. After, occupying the leased premises for less than two months, the plaintiffs had to vacate by reason of the condemnation. Following the trial of this action, the jury returned a verdict in favor of plaintiffs for $1,800 in compensatory damages and $20,000 in punitive damages. Defendant filed a motion to strike punitive damages and/or in the alternative for new trial. After a hearing the trial judge, on the ground that the amount of punitive damages awarded is so excessive as to shock the judicial conscience of the court, ordered a new trial or in the alternative that plaintiffs remit $18,200 of the $20,000 in punitive damages. Plaintiffs appeal and we reverse.

There being no question as to defendant’s ability to pay the punitive damages or the degree of maliciousness required to sustain the amount of the award, we must only determine whether the amount of punitive damages bears no reasonable relationship to the compensatory damages awarded. See Canty v. Wackenhut Corporation, 311 So.2d 808, 809 (Fla. 3d DCA 1975). The punitive damages amount to approximately ten times the compensatory award and we cannot say that this amount is excessively out of relation to compensatory damages. See Air Line Employees Association International v. Turner, 291 So.2d 670 (Fla. 3d DCA 1974); Lan-Chile Airlines, Inc. v. Rodriguez, 296 So.2d 498 (Fla. 3d DCA 1974); Canty, supra; Ocean Mile Galleries, Inc. v. Huguenor, (Fla. 4th DCA opinion no. 74-31, filed January 4, 1977).

The order herein appealed is reversed and the cause remanded to the trial court with directions to enter final judgment for plaintiffs in accordance with the jury verdict.

Reversed and remanded with directions.


text:
    The STATE of Florida, Appellant, v. Albert PUIG, Appellee.
    No. 76-2184.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 17, 1977.
    Richard E. Gerstein, State’s Atty. and George Volsky, Asst. State’s Atty., for appellant.
    No appearance by counsel for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Earman v. State, 265 So.2d 695 (Fla.1972); Bailey v. State, 319 So.2d 22 (Fla.1975); Urquhart v. State, 211 So.2d 79 (Fla.2d DCA 1968).


text:
    Carmelo SAVOCA and Marie Savoca, Appellants, v. SHERRY FRONTENAC HOTEL OPERATING COMPANY, INC., d/b/a Sherry Frontenac Hotel, and Consolidated Mutual Insurance Company, Appellees.
    No. 76-224.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Rehearing Denied June 17, 1977.
    • Dixon, Dixon, Lane & Mitchell and Edward R. Nicklaus, Miami, for appellants.

      Horton, Perse & Ginsberg, P. J. Carroll & Associates, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiffs, Carmelo Savoca and Marie Sa-voca, appeal a final judgment awarding Marie $13,000 and Carmelo zero dollars for damages for injuries sustained by Marie on the premises of the defendant when she slipped and fell injuring her hip.

Plaintiffs basically argue that the trial judge erred in giving conflicting and contradictory instructions to the jury as to whether the jurors or the judge were to reduce the total amount of compensatory damages in accordance with the jury’s initial determination as to the percentage of negligence attributed to the plaintiffs and the defendant. Plaintiffs claim that the $13,000 final judgment was the result of a double reduction of the damages.

The record reflects that initially the trial judge instructed the jury on comparative negligence and that the jurors should reduce the total amount they find Marie Sa-voca is entitled to by the percentage of her negligence. Five minutes after the jury retired to deliberate, the trial judge called the jurors back to instruct them on the sympathy charge which he had omitted. After cautioning them not to permit bias to enter into their consideration of the verdict, the judge then explained the special interrogatory form of the verdict which the clerk gave them, and further instructed them not to be concerned about the reduction of the amount of damages. Counsel for plaintiffs and defendant made no comment or objection when asked by the trial judge if there was anything further. The jury deliberated for about an hour and then returned a verdict finding plaintiff Marie Savoca 80% negligent and defendant Sherry Frontenac Hotel 20% negligent. However, the jury had not filled in the amount of damages and the judge asked them to retire and complete the form of the verdict. At this juncture, the jurors were confused about the reduction and submitted in writing the question of who reduces the damages, the jury or the judge. Thereupon, the trial judge called the jurors into the courtroom and explained to them that they should determine the total amount of damages and the court would then reduce it. The jury retired and two minutes later returned with a verdict awarding Marie $65,-000. However, the amount of damages for her husband, Carmelo, was left blank. The judge noted the blank and informed the foreman that if the jury’s answer was none, then to so indicate by writing “none” or “zero” in that blank space. The foreman then wrote in the word “none”. After the verdict was published, both attorneys, upon being asked; declined to poll the jurors. Thereafter, the trial judge (in accordance with the percentage of negligence attributed to Marie) reduced the $65,000 to $13,-000 and entered judgment in that amount.

It is clear that any confusion on the part of the jurors as to the issue of reduction of damages was resolved by the trial judge’s explanation when he answered the question posed to him on this matter. Furthermore, when asked by the judge if his explanation to the jury on reduction was satisfactory, plaintiffs’ counsel answered in the affirmative. Plaintiffs’ counsel having failed to make any objection and, in fact, having acquiesced and the evidence being sufficient to sustain an award of $65,000 before reduction, we find no merit in this contention of plaintiffs. See Holmes v. School Board of Orange County, 301 So.2d 145 (Fla.4th DCA 1974); Florida Antilles Properties, N. V. v. Rose & Rose, Inc., 324 So.2d 129 (Fla.3d DCA 1975).

Plaintiffs also urge as reversible error the fact that the verdict for zero dollars for Carmelo and $65,000 for Marie is inconsistent as Carmelo had a derivative claim for medical expenses while Marie’s claim was for pain and suffering.

The record demonstrates that this matter of inconsistent verdicts was raised by defendant’s counsel immediately after the verdict was published. Plaintiffs’ counsel refused to concede that the verdicts constituted error and after further discussion, the attorneys could not agree on a resolution of this problem and the jury was discharged.

We conclude this point also lacks merit. First, no objection to the verdicts was made by plaintiffs’ counsel who refused to concede error. In addition, the inconsistency could have been corrected before the jury was discharged if, as counsel for defendant suggested, the cause was resubmitted to the jury. However, plaintiffs’ counsel refused to agree to this suggestion. Thus, any error as to the receipt of the inconsistent verdicts has not been preserved for purposes of this appeal. See Lindquist v. Covert, 279 So.2d 44 (Fla.4th DCA 1973); Shank v. Fassoulas, 304 So.2d 469, 471 (Fla.3d DCA 1974).

Affirmed.


text:
    Victor Manuel MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-753.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Rehearing Denied June 17, 1977.
    Thomas F. Almon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Victor Manuel Martinez appeals a second degree murder conviction.

Appellant first contends the trial court committed reversible error by including in the instructions to the jury a charge on flight on the ground that the evidence did not afford a basis for the charge. Specifically, appellant argues that the evidence demonstrated that he left the scene of the crime to take his wounded child to the hospital for treatment.

When a suspect endeavors to evade prosecution by flight from the vicinity of a crime, such fact may be shown as one of the circumstances inferring guilt which is to be considered by the jury under appropriate instructions. Mackiewicz v. State, 114 So.2d 684, 689 (Fla.1959); Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975).

The testimony of the State’s key eyewitness was that immediately after the shooting, the appellant fled from the bathroom (the scene of the crime) and knocked him unconscious in the process. In addition, the police officers testified that appellant had concealed two guns under the seat of his car. We conclude that was sufficient evidence to take to the jury the issue of whether appellant fled after the crime, and the court properly instructed the jurors with respect thereto. Cf. Hargrett v. State, 255 So.2d 298 (Fla.3d DCA 1971),

Appellant secondly argues that the trial court erred in failing to grant a new trial on the ground that the prosecution had failed to produce the criminal record or rap sheet of the victim pursuant to the defense’s request to produce any criminal record which the deceased may have had in order to corroborate the appellant’s contention that he shot the deceased in self-defense. We cannot agree.

It is apparent that the prosecution did not have within its actual or constructive possession any rap sheet on the victim nor did the prosecutor have any knowledge thereof, but rather this information was obtained by the medical examiner through a contact with the FBI. See State v. Coney, 294 So.2d 82, 87 (Fla.1974). It further appears that after the conclusion of the trial defense counsel did, in fact, obtain the victim’s rap sheet and could have obtained it before trial. Thus, the prosecution was under no duty to furnish the defense with the rap sheet when such evidence was otherwise reasonably attainable. See State v. Crawford, 257 So.2d 898 (Fla.1972).

Last, appellant contends the trial judge committed reversible error in denying defense counsel’s request to make an opening statement after the defense had commenced with the presentation of its case and its second witness was in the midst of testifying.

We find no abuse of discretion by the trial court in refusing to allow defense counsel to make an opening statement at this late date where he frankly admitted he had forgotten to make it at the appropriate time. See Henderson v. State, 158 Fla. 684, 29 So.2d 698 (1947) and cases cited therein. Moreover, we cannot say that the failure to present an opening statement resulted in defense counsel being ineffectual.

Affirmed.


text:
    Jeff DONNER, Appellant, v. ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY et al., Appellees.
    No. 76-777.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Rehearing Denied June 20, 1977.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellant.

      Richard M. Gale, Stephens & Schwartz, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Vandercar v. David, 96 So.2d 227 (Fla.3d DCA 1957).


text:
    Guillermo DIAZ, Appellant, v. CERTIFIED MARINE INDUSTRIES, INC., a corporation licensed to do business in the State of Florida and Terry Lee Venable, Appellees.
    No. 76-444.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Rehearing Denied June 20, 1977.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellant.
    Dixon, Dixon, Lane, Mitchell & Harris and Edward R. Nicklaus, Miami, for appel-lees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant Guillermo • Diaz, who was the plaintiff below, appeals from the judgment entered on a jury verdict rendered in favor of the appellee-defendants, in an action for damages for personal injuries.

The accident in which the plaintiff was injured was a collision between a truck, which the plaintiff was driving, and a truck being driven by the defendant Terry Lee Venable and owned by the defendant Certified Marine Industries, Inc.

The collision occurred in Dade County, on U.S. 27, a two-lane highway, in daylight, at a point on a straight section of the highway on which there was a center line between the north and the south traffic lanes.

Plaintiffs motion for directed verdict made at the close of the evidence, and his motion for a new trial following the verdict, were denied. Judgment was entered, and the plaintiff appealed.

The determinative question on this appeal is whether the verdict finding the defendant was not guilty of negligence was against the manifest weight of the evidence. The appellant contends that it was, and we agree.

Other than the two drivers, there were no eye-witnesses to the accident. The plaintiff testified that while driving in a northerly direction in the northbound lane he observed the defendant’s truck approaching in the southbound lane when it was 200 or 300 feet distant; that when the latter vehicle was about 10 feet away it came over into his lane, and the vehicles collided. The point of contact on each vehicle was its left front.

The defendant driver, Venable, who is here referred to as the defendant, did not testify in direct conflict thereto. He did not testify that the plaintiff turned his car into defendant’s southbound lane, or as to how the accident occurred, but testified that at all times he remained in his proper lane.

At a discovery deposition taken prior to trial the defendant had testified that he did not know how the accident occurred, and again that he had no idea how it occurred. When asked on the deposition how far the plaintiff’s truck was when defendant first saw it, he answered that he could not say. When asked if he had any idea whether the plaintiff’s truck was “5 feet or a mile” away when he first saw it, the defendant answered no. When asked on deposition if he recalled the plaintiff having attempted to make a turn out of his lane, he said no. Further in the deposition defendant testified he did not recall which truck hit the other, and that he could not say in which of the traffic lanes the impact occurred. At the trial, on cross-examination, when the defendant was questioned with regard to his above-mentioned deposition testimony, he admitted having so testified.

Following the collision, both vehicles came to rest in the northbound, the plaintiff’s lane. There was no evidence of skid marks prior to the apparent point of impact. The investigating officer testified the collision debris was a short distance inside the plaintiff’s traffic lane. The testimony and photographs showed that the vehicles were in the north lane after the collision.

On those facts this case is quite similar to Florida Publishing Company v. Copeland, 89 So.2d 18 (Fla.1956). In that case, where there was a collision of approaching vehicles on a two-lane highway, each of the drivers testified that the other turned into his lane and caused the collision. However, the physical evidence was such as to clearly indicate that the collision occurred in the defendant’s traffic lane, as indicated by the impact of the vehicles having been to the left front side of each of .them, and by the position of the cars after the accident and the collision debris which were so located as to establish the point of impact or collision as having taken place in the defendant’s lane. Notwithstanding such evidence, the jury verdict in that case was for the plaintiff. The Supreme Court, concluding the verdict was against the manifest weight of the evidence, reversed the judgment and remanded the cause for new trial.

In the present case, there was no substantial conflict or contradiction of the testimony of the plaintiff that the defendant’s vehicle was turned into the plaintiff’s lane prior to the collision. The defendant did not testify to the contrary directly, but only inferentially by testifying that at all times he drove in his proper lane, and the defendant did not testify that the plaintiff turned his vehicle into defendant’s lane. There was no reasonable basis on which the jury could have concluded that the collision occurred in the southbound, the defendant’s lane. The physical evidence established the contrary. The defendant’s vehicle came to rest almost fully across the northbound lane. The plaintiff’s vehicle remained in that lane. The collision debris indicated the point of impact was in the northbound lane.

After giving the verdict and judgment the benefit of the degree of presumption of correctness which their rendition and entry denote, and having considered the inferences the jury could or should logically have drawn from the evidence, we are impelled to conclude the jury verdict finding the defendant driver was not guilty of negligence was not supported by the evidence, and was contrary to the manifest weight of the evidence and was unjust.

When the trial court concludes that a verdict is against the manifest weight of the evidence, and thereby is unjust, a new trial should be granted. When an appellate court so regards a verdict the judgment entered thereon may be reversed and a new trial granted, on the ground that failure of the trial court to grant a new trial was an abuse of discretion. Florida Publishing Company v. Copeland, supra; Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959); Roberts v. Bushore, 183 So.2d 708 (Fla.1st DCA 1966); Sutton and J. J. Kelly, Inc. v. Logan, 184 So.2d 662 (Fla.1st DCA 1966); Kinsey v. Kelly, 312 So.2d 461 (Fla.1st DCA 1975).

The judgment is reversed, and the cause is remanded for new trial.


author: BARKDULL, Judge.

text:
    Genaro Manuel HERNANDEZ, Appellant, v. Alex Paulding PARROTT, Appellee.
    No. 76-673.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Rehearing Denied June 17, 1977.
    Samuel Sheradsky, Miami, for appellant.
    Weissenborn, Burr & Hyman, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

In an intersectional accident case, tried before a jury, with issues as to the negligence of both the plaintiff-driver and the defendant-driver, the trial court permitted evidence that the plaintiff-driver and the owner of the automobile he was driving settled property damage claims with one of the defendants. This should not have been permitted into evidence. See: Babcock v. Flowers, 144 Fla. 479, 198 So. 326, wherein the following syllabus is found:

* ‘ * * * * *
“4. In' tort action for personal injuries, the admission of testimony, over defendant’s objection that the defendant had stated that he would take care of plaintiff’s hospital bills was error since an agreement to pay expenses of an injured person constitutes no admission of actionable negligence on the part of the person making such agreement.”

The other points urged for reversal have been examined and found to be without merit.

The final judgment and the jury verdict adverse to the appellant, plaintiff-driver in the trial court, be and the same are hereby reversed and the cause is remanded to the trial court for a new trial.

Reversed and remanded, with directions.