text:
    AQUACO, INC., a corporation, Appellant, v. Norma HOPKIN d/b/a Tropical Fish Warehouse and Northwest Miami Tropical Wholesalers, Inc., Appellees.
    No. 75-987.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Krongold & Bass and Theodore Bayer, Miami, for appellant.
    Emanuel Sponder, Miramar, for appel-lees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Aquaco, Inc., plaintiff in the trial court, appeals from an order granting defendants’ motion to transfer, which motion asserted the defense of improper venue.

The sole question presented on this interlocutory appeal is whether the defendants waived their privilege of venue when they did not file a timely motion therefor or claim the privilege in their answer but asserted the venue privilege, apparently under § 47.011, Fla.Stat., by motion filed subsequent to the answer. We hold that defendants’ privilege of venue is deemed waived. Brennan v. Brennan, Fla.App. 1966, 192 So.2d 782; Singer v. Tobin, Fla.App.1967, 201 So.2d 799; Fixel v. Clevenger, Fla.App.1973, 285 So.2d 687.

The trial court’s order of transfer is reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    OVERSEAS DEVELOPMENT, INC., a Florida Corporation, Appellant, v. R. A. KRAUSE, as Nominee of the Trustees of Atico Mortgage Investors, a Massachusetts business trust, et al., Appellees.
    Nos. 75-1114, 75-1429.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    McCormick, Bedford & Backmeyer, Miami, for appellant.
    Paul, Landy, Beiley & Yacos, Huber Parsons, Miami, for appellees.
    Paul Berger, Miami Beach, for receiver.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

These interlocutory appeals have been consolidated for all appellate purposes. The first numbered appeal is from an order appointing a receiver in a mortgage foreclosure proceeding. The second is from an order denying a motion to dismiss.

Defendant urges that, as to the appointment of the receiver, it was error to make such appointment prior to the actual service of process on the defendant. While this argument could be made under some circumstances, it ' is not available .to the appellant here inasmuch as there is no general rule requiring service prior to the appointment of the receiver whenever an emergency exists. See the rule in Bochterle v. Florida Milk Co., 1938, 132 Fla. 827, 182 So. 215 and Dixie Music Co. v. Pike, 1938, 135 Fla. 671, 185 So. 441. Under the present circumstances, it is clear that defendant had adequate notice of the application and was in no way prejudiced by the failure to be served with process before the hearing. Also, as to the appointment of the receiver, the defendant urges that the plaintiff entered the court with unclean hands. Under the facts revealed by the record, the appointment of the receiver was within the discretion of the trial court. Welch v. Gray Moss Bondholders Corporation, 1937, 128 Fla. 722, 175 So. 529 and Dixie Music Co. v. Pike, 1938, 135 Fla. 671, 185 So. 441.

The ground upon which the defendant urges that the plaintiff’s complaint for foreclosure should have been dismissed is:

“That this Court lacks jurisdiction of the person and of the subject matter in that there is no entity before the Court as Plaintiff pursuant to the law in the State of Florida.”

It urges that the plaintiff, a Massachusetts investment trust, must appear by all the trustees. The named plaintiff is: “R. A. Krause, as Nominee of the Trustees of ATICO MORTGAGE INVESTORS, a Massachusetts business trust.” The plaintiff, so styled, was the named payee on the indebtedness that was the subject of the foreclosure. This exact point has been passed upon by the District Court of Appeal, Fourth District, in Your Construction Center, Inc. v. Gross, Fla.App.1975, 316 So.2d 596. We follow the holding of that court. See also Boyd v. Boulevard National Bank, Fla.App.1975, 306 So.2d 551. We further note that such holding does not eliminate the possibility that there could be a motion to add parties under RCP 1.250.

Affirmed.


text:
    James A. WHITTINGTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-460.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We have examined the record, read the briefs, and considered the oral arguments of counsel, and the appellant having failed to demonstrate reversible error, the judgment below is affirmed.

BOYER, C. J., SMITH, J., and SACK, MARTIN, Associate Judge, concur.


author: GRIMES, Judge.

text:
    Jessie WOLFE, Appellant, v. STATE of Florida, Appellee.
    No. 75-455.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.

      James A. Gardner, Public Defender, Sarasota, and Dennis J. Plews, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The ramifications of declaring Gideon retroactive continue to multiply.

Appellant and his wife were charged with lewd and lascivious or indecent assault upon six children under fourteen years of age. Pursuant to a bargain, both entered pleas of guilty to the first three counts of the information and the state dismissed the other three counts. The court determined that appellant’s pleas were voluntarily made, that he was aware that he could receive fifteen years on each count and that no one had promised him that he would not receive the maximum sentence. Finding that the plea was freely entered with an understanding of its consequences, the court asked if there was anything to be said in mitigation. Appellant’s counsel pointed out that he was sixty-one years old and that although the court was aware of a similar conviction many years ago, the appellant had not been in trouble since that time. The state requested the maximum sentence, indicating that appellant’s wife, who had a clean record, received three concurrent fifteen year sentences, whereas appellant had a similar prior conviction. The court adjudged appellant guilty and sentenced him to three consecutive fifteen year terms.

Appellant has now filed a verified motion to vacate his sentence under RCrP 3.850. Appellant alleges that his prior conviction was invalid under Gideon because he did not have counsel to represent him. Thus, he says that the court improperly considered the prior invalid conviction when he meted out the sentences. Appellant takes this appeal from the denial of his motion to vacate.

This appeal is controlled by the case of United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. In the course of sentencing Tucker to twenty-five years for robbery, the trial judge had been specifically directed to Tucker’s three pre-Gideon felony convictions. Several years later, two of these convictions were set aside because Tucker had been unrepresented by counsel and had not been advised of his right to legal assistance and had not waived this right. The Supreme Court of the United States held that Tucker’s sentence might have been different if the sentencing judge had known that at least two of his prior convictions had been unconstitutionally obtained. The case was remanded to the trial court for resentencing “without consideration of any prior convictions which are invalid under Gideon v. Wainwright.”

The only meaningful distinction between Tucker and the instant case is that in Tucker the convictions had already been judicially set aside, whereas appellant has only made allegations which, if proven to be true, would result in his prior conviction being vacated. This case is similar in posture to Howard v. State, Fla.App.4th, 1973, 280 So.2d 705. There, the court was faced with a post-conviction motion stating that a conviction which was allegedly invalid because of having been rendered without the assistance of counsel was used to enhance a later sentence imposed for a subsequent conviction of a similar crime. The court remanded the case for an evi-dentiary hearing to determine whether the earlier conviction was invalid, and if so, the extent to which the imposition of the subsequent sentence was based upon the prior invalid conviction.

In the instant case, the record clearly reflects that the trial judge could have been influenced by appellant’s prior conviction of an offense similar to those for which he was being sentenced. Appellant’s wife had been charged with the same offenses and had made the same bargain. Appellant’s wife, with no prior convictions, was given concurrent sentences, whereas appellant received consecutive sentences. Under the circumstances, this case should be remanded for a determination of whether appellant’s prior conviction was invalid. If so, appellant should be resentenced without any consideration of this conviction.

This decision should not be construed as requiring resentencing in every case where reference is made in a pre-sen-tence report to a conviction which is later alleged to have been invalid on Gideon grounds. In this case, as in Tucker, the fact of the prior conviction was specifically called to the court’s attention in the sentencing colloquy, and the circumstances of both cases were such that it was reasonable to conclude that the sentencing judge may have been influenced by these convictions.

This case is remanded for proceedings in accord with this opinion.

McNULTY, C. J., and SCHEB, J., concur.

      . Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

      . See Weir v. State, Fla.App.2d, 1975, 319 So. 2d 80.


author: PER CURIAM.'

text:
    R. A. PRAHL and H. William Prahl, Jr., as Trustees, Appellants, v. Wyatt JOHNSON, Appellee.
    No. 75-964.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 12, 1976.

      Smathers & Thompson and William C. Lewis, Jr., and Warren P. Gammill, Miami, for appellants.
    Wyatt Johnson, Gulf Breeze, in pro per.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.'

The plaintiff, who is the appellant here, sued the defendant-appellee for rent claimed due on real property located in Dade County, Florida. Defendant, who had removed himself from Dade County, moved to dismiss the complaint on the ground of his privilege to be sued in the county of his residence. Fla.Stat. § 47.011.

The complaint alleges an action for rent accruing in Dade County, Florida. The defendant argues that although the dispute arose out of the written lease, it is actually an attempt to enforce an alleged contemporaneous oral agreement relative to the payment of rent. This fact does not appear from the pleadings. Even if this should be proved at a later stage in the proceedings, it would not divest the court of jurisdiction. The rent was payable in Dade County, therefore, the cause of action arose in Dade County. See Croker v. Powell, 1934, 115 Fla. 733, 156 So. 146; and Henry v. Lemac Builders, Inc., Fla.App.1971, 245 So.2d 115. The trial judge erred in dismissing the complaint and the order appealed is reversed with directions to proceed with the cause.

Reversed and remanded.


text:
    Gregory L. GERNAT, Appellant, v. Rose M. GERNAT, Appellee.
    No. 75-1365.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Raymond E. Ford and Vincent A. Lloyd by Vincent A. Lloyd, Fort Pierce, for appellant.
    Lester W. Jennings and David M. Conlon, Okeechobee, and Terence J. Moore, Arcadia, by Lester W. Jennings, Okeechobee, for appellee.
   PER CURIAM.

From our study of the briefs and record on appeal we are unable to discern any reversible error.

Accordingly, the orders appealed from .are affirmed.

MAGER and DOWNEY, JJ., and TED-DER, GEORGE W. Jr., Associate Judge, concur.


author: OWEN, Judge.

text:
    MORGEN-OSWOOD & ASSOCIATES, INC. OF FLORIDA, Appellant, v. CONTINENTAL MORTGAGE INVESTORS, a Massachusetts business trust, et al., Appellees.
    No. 74-1487.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Rehearing and Certification Denied Jan. 13, 1976.
    Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
    Richard H. Adams, Jr., and Lawrence G. Mathews, Jr., of Gray, Adams, Harris & Robinson, Orlando, for appellees Continental.
   OWEN, Judge.

If ever there was a case for imposition of an equitable lien on a particular property, it is this one.

Appellant, a general contractor, entered into a contract with the owner of property to construct a hotel thereon. The owner obtained a construction loan from appel-lee, Continental Mortgage Investors (CMI). Under the construction loan agreement, the sum of $1,450,000 was set aside in a special fund to pay construction costs, with provisions for progress payments and retainage. The construction contract was for approximately $1,382,000. Appellant completed the hotel in accordance with the construction agreement. At the time of completion appellant had received progress payments of approximately $1,-289,000, leaving approximately $93,000 as the balance on the construction contract. The owner breached the construction loan agreement by not arranging for permanent financing. As a result, CMI declared the construction mortgage in default, refused to disburse to appellant the final $93,000 due under the construction agreement, and proceeded to foreclose the mortgage, the lien of which was superior to appellant’s mechanic’s lien.

The filing of the foreclosure resulted in various cross-claims and counterclaims, and although appellant was awarded a money judgment against the owner for the balance due under the construction contract, the court denied appellant an equitable lien against the undisbursed funds which had been specifically set aside for construction costs. Under the principles announced in Crain Co. v. Fine, 221 So.2d 145 (Fla.1969), appellant had “a right of a special nature” against the “particular property”, in this case the undisbursed balance of the construction loan funds, the amount of which exceeded the balance due appellant under the construction agreement.

The trial court was apparently of the view that both appellant and the owner were in court with unclean hands because of some “kickback” arrangement between them whereby the owner received approximately $85,000. While such “deals” are offensive to the courts, are contrary to ethical business dealing, and should never be condoned, CMI was not in anywise prejudiced by such conduct. The hotel was timely completed in accordance with the plans and specifications and thus CMI had the security for which it bargained. Furthermore, the evidence established that all of the funds of the so-called “kickback” (with relatively minor exception) were used for construction related costs or expenses and, in that sense, were returned to the property. Far from being prejudiced, CMI through its own misconduct (in refusing to disburse the final payments and re-ta inage under the construction loan agreement) has been unjustly enriched to the extent of approximately $93,000, the bah anee due appellant under the construction contract.

It was suggested at oral argument of this cause that the fund, i. e., the undisbursed balance of the construction loan funds, no longer exists. Its nonexistence is due solely to the unilateral act of CMI in recapturing the funds from its disbursing agent and, presumably, commingling such with its other funds. Undoubtedly the amount thereof can be ascertained readily. Appellant was entitled to an equitable lien against the undisbursed construction loan funds and to that extent only the final judgment is reversed and this cause remanded for further proceedings consistent herewith.

MAGER, J., concurs.

CROSS, J., dissents without opinion.


author: SCHEB, Judge.

text:
    James G. O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 75-202.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Rehearing Denied Jan. 13, 1976.

      Stephen F. Myers, of Shackleford, Far-rior, Stallings & Evans, and Robert H. Mackenzie, Tampa, and G. Michael Mackenzie, of Macfarlane, Ferguson, Allison & Kelly, Clearwater, for appellant.
    Robert L. Shevin, Atty.Gen., Tallahassee, and Mary Jo M. Gallay, Asst.Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

This appeal involves a question of whether it was improper for the trial court to impose three separate sentences against the appellant who was convicted of robberies of three victims, all of which occurred as part of one criminal episode. Appellant filed a 3.850 RCrP motion contending that two of the three sentences should be vacated. The trial court vacated one sentence and denied vacation of another. The appellant appeals and the State cross-appeals. We hold the trial court erred in vacating even one of the sentences and to that extent, we reverse.

In 1970, appellant was convicted of three robberies at Farmer John’s Restaurant in St. Petersburg. The robbery of victims Messrs. Royal and Lutz, proprietor and delivery man, occurred at the same time while robbery of Mrs. Jaquis, a store employee, occurred five to ten minutes later, upon her reporting to work.

Appellant was sentenced to from 1 to 15 years on conviction on April 28, 1970, for robbery of Mr. Royal. At a trial on May 12, 1970, appellant was found guilty of the robberies of both Mr. Lutz and Mrs. Jaquis and was sentenced to two concurrent life sentences to run consecutive to the sentence previously imposed for robbery of Royal.

On this 3.850 RCrP motion, the trial judge concluded that since the robbery of Messrs. Royal and Lutz terminated just before Mrs. Jaquis came on the scene, the first two robberies were part of the same transaction and that one of the sentences should therefore be vacated. Accordingly, he vacated appellant’s sentence for robbery of Mr. Lutz. However, he denied appellant’s motion to vacate the sentence for robbery of Mrs. Jaquis on grounds that it was a later event and not part of the same transaction as the robberies perpetrated against Messrs. Royal and Lutz.

Since the appellant was convicted of robberies involving three victims, it was proper for the trial court to have imposed three separate sentences, irrespective of whether these robberies were part of one criminal episode. Trousdale v. State, Fla.App.2d 1974, 287 So.2d 721; Harris v. State, Fla.App.2d 1973, 286 So.2d 32; Ellis v. State, Fla.App.2d 1974, 298 So.2d 527.

Appellant’s reliance on the “collateral estoppel” rationale of Ashe v. Swenson, 1970, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 2d 469, as applicable to either the “single transaction” concept or a double jeopardy question, is patently misplaced. See State v. Stiefel, Fla.App.2d 1972, 256 So.2d 581.

Therefore, the trial court’s order vacating appellant’s sentence for robbery of Lutz is reversed and such sentence is reinstated; otherwise affirmed.

McNULTY, C. J., and HOBSON, J., concur.

      . Convictions of the robberies of Lutz and Jaquis were affirmed by this court. O’Neal v. State, Fla.App.2d 1971, 245 So.2d 696.

      . The “same” or “single transaction” doctrine and the characteristics which distinguish it from the “single episode” eases are explained in Chief Judge McNulty’s opinion in State v. Peavey, Fla.App.2d, 326 So.2d 461, opinion filed December 10, 1975.


text:
    Ronald MCPHERSON, Appellant, v. Jeffrey and Flora REDDING, Appellees.
    No. 75-241.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 13, 1976.
    Shutts & Bowen and Thomas H. Anderson and Phillip G. Newcomm, Miami, for appellant.
    Tobias Simon and Elizabeth DeFresne and Sidney Matthew, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, Ronald McPherson, appeals a final judgment granting plaintiffs a $60,000 lien upon his real property.

In April 1964 Ronald McPherson listed his property for sale with Tripp & Snyder real estate brokers and then departed for France. Tripp & Snyder placed an advertisement for the sale of the property in the newspaper. Plaintiff-appellees responded, offered to purchase the property for $4,500 and executed an agreement for deed whereby they would pay $200 down and $40 per month. The agreement and plaintiffs’ check for $200 were forwarded to McPherson in France. Plaintiffs, without the consent or knowledge of McPherson but with the approval of Tripp & Snyder, proceeded to clear the land and bring in 350 tons of fill to establish a worm farm. In June, McPherson returned to Tripp & Snyder plaintiffs’ check and the agreement for deed unsigned. Plaintiffs refused to accept their returned check and continued to work their worm farm. Tripp & Snyder for several years unsuccessfully attempted to persuade McPherson to consummate the transaction. During this entire period McPherson paid the taxes on the property. Upon returning to Florida in the winter of 1972, McPherson discovered the plaintiffs and the worm farm and informed them that they were on his property. Plaintiffs filed the instant complaint to impress an equitable lien upon McPherson’s property which they claim was benefited by converting it to a worm farm.

While this suit was pending, a portion of the land was condemned and the State of Florida paid $8,325 as compensation for the land acquisition. This sum was awarded to the plaintiffs.

After a final hearing on plaintiffs’ complaint, the trial judge entered the herein appealed judgment impressing a $60,000 lien on McPherson’s property.

On appeal, McPherson first contends that plaintiffs are not entitled to an equitable lien on his property inasmuch as the requisite elements for such a .lien are absent.

An equitable lien on the property benefited arises where a person in good faith and under a mistake as to the condition of the title makes improvements, renders services, or incurs expenses that are permanently beneficial to another’s property. There is no such lien where expenditures are made with knowledge of the real state of the title. Johns v. Gillian, 134 Fla. 575, 184 So. 140 (1938); Dewing v. Nelson & Co., Fla.App.1960, 117 So.2d 744; Stevens v. Crowder, Fla.App. 1973, 273 So.2d 793.

When Tripp & Snyder on June 24, 1974 tendered back to plaintiffs their check for $200 and informed them that McPherson did not sign the agreement for deed, it was clear that title to the property remained in McPherson. Nevertheless, with full knowledge of the real state of the title, plaintiffs insisted upon retaining possession and continued to make improvements upon the property. Thus, plaintiffs are not entitled to a lien for improvements beyond the date that McPherson’s rejection was communicated to them by Tripp & Snyder. At most, plaintiffs are entitled to equitable lien for the three month period, April-June 1974.

Appellant secondly argues that he is entitled to the sum of $8,325, the condemnation proceeds awarded in the eminent domain action. We agree.

Appellant being the undisputed legal title holder of the property which was condemned, the trial judge erroneously ordered that the $8,325 condemnation proceeds be released to the plaintiffs.

Accordingly, the final judgment appealed is reversed and the cause remanded for further proceedings not inconsistent herewith.

It is so ordered.


author: PEARSON, Judge.

text:
    Margaret WEEDMAN, Appellant, v. SUNLAND ROLLER RINK, INC., Appellee.
    No. 75-211.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Rehearing Denied Jan. 14, 1976.

      Ralph P. Ezzo, Miami, for appellant.
    Preddy, Haddad, Kutner & Hardy, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   PEARSON, Judge.

The determinative issue on this appeal is whether the defense of assumption of risk appeared as a matter of law from the facts adduced by the plaintiff. The trial judge found that the defense was an absolute bar to plaintiff’s action for personal injuries and thereupon directed a verdict for the defendant at the close of plaintiff’s case. We hold that, upon the facts of this case, the defense was a question for the jury and, therefore, we reverse the judgment.

Plaintiff Margaret Weedman, 57 years of age, went to defendant’s rink to roller skate. She testified that before beginning to skate, she watched the other skaters for ten to fifteen minutes. She noticed many young people skating close to other skaters, darting in and out, and cutting in front of people. She then entered the rink and began skating, believing that because she was a good skater, there was no danger to her. At one point, she complained to a guard about the reckless young people, and the guard said he would “take care of it.” She continued to skate. Thereafter, a young boy skated swiftly toward her, crashed into her, and knocked her down. She sustained serious injuries. The plaintiff brought an action against the operators of the roller skating rink alleging that the defendant, as the operator of a place of public amusement, failed to take reasonable precautions to prevent injury to her as a patron.

This court has held that under the comparative negligence rule as adopted by the Supreme Court of Florida in Hoffman v. Jones, Fla.1973, 280 So.2d 431, the defense of assumption of the risk is a viable defense and that, if established, it is a complete defense. Dorta v. Blackburn, Fla.App.1974, 302 So.2d 450. This view has not yet been established as the law of Florida because the District Court of Appeal for the Fourth District has held that the defense of “ . . . assumption of the risk merges with and becomes a phase of comparative negligence.” Rea v. Leadership Housing, Inc., Fla.App.1975, 312 So.2d 818, 823.

It, therefore, appears that under the view adopted by this court, it is proper for a trial judge to direct a verdict for the defendant where it appears without issue of fact that the plaintiff has, as a matter of law, assumed the risk of the injury. On the other hand, if the defense is an aspect of comparative negligence, then it is not a complete bar and a directed verdict is error. We will, of course, follow our prior decision unless convinced of error or a contrary decision of the Supreme Court is published. We proceed, therefore, to the question of whether an issue was presented, for jury determination.

The defense of assumption of the risk is not ordinarily a question of law for determination by the court. See Bartholf v. Baker, Fla.1954, 71 So.2d 480; Perlman v. Kraemer, Fla.App.1958, 104 So.2d 609, and Clark v. Ocala Gas Company, Fla.App.1960, 123 So.2d 391. There are instances where the danger is so obvious and the submission is so clearly voluntary that the defense appears as a matter of law. These instances have often arisen from participation in games or sport activities. Payne v. City of Clearwater, 1944, 155 Fla. 9, 19 So.2d 406; Gulf Stream Park Racing Association, Inc. v. Miller, Fla.App.1960, 119 So.2d 749, and Rindley v. Goldberg, Fla.App.1974, 297 So.2d 140. The defendant urges the application of these cases to the fact situation that we have in the present case, and in this regard, we certainly do not discount the fact that the jury may find that the plaintiff (1) with knowledge and appreciation of the danger, (2) voluntarily exposed herself to that danger in order to enjoy the activity for which she had paid an admission.

The application of the defense as a matter of law would be much more likely if the plaintiff were not a paid admittee to a place of public entertainment. Here, the plaintiff had a limited right to rely upon defendant’s duty to maintain a reasonably safe place for the activity she had paid to participate in. See Rainbow Enterprises v. Thompson, Fla.1955, 81 So.2d 208. In addition, we note that shortly prior to the accident, she was reassured by defendant’s employee that the unruly skaters would be “taken care of.”

We hold that the decision in this case is governed by those decisions holding that where there are different interpretations and implications from the facts presented by plaintiff’s case, the trial judge ought not determine the application of the defense to those facts. See the rule stated in City of Miami v. Jiminez, Fla.App.1972, 266 So.2d 46. See also Anderson v. Southern Cotton Oil Co., 1917, 73 Fla. 432, 74 So. 975. But see Rauch v. Pennsylvania Sports & Enterprises, Inc., 1951, 367 Pa. 632, 81 A.2d 548, involving facts somewhat similar to the present case.

We, therefore, reverse the judgment based upon the directed verdict for the defendant and remand the cause for trial.

Reversed and remanded.


text:
    Eduardo VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-627.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rehearing Denied Jan. 13, 1976.
    Joel Hirschhorn and Yale T. Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.

      Before PEARSON, HENDRY and NATHAN, JJ. '
   PER CURIAM.

The defendant pleaded nolo contendere to a charge of aiding in the conduct of a lottery. After judgment and sentence, his appeal raised the question of the sufficiency of the affidavit upon which the search warrant was issued; therefore, a question solely of law is raised, i. e., is the affidavit insufficient as a matter of law. State v. Ashby, Fla. 1971, 245 So.2d 225. Our review of the record shows that the affidavit is not insufficient as a matter of law. See State v. Smith, Fla.1970, 233 So.2d 396; and Hicks v. State, Fla.App. 1974, 299 So.2d 44.

Affirmed.


author: BARKDULL, Chief Judge.

text:
    Ron W. LAUGHLIN, Appellant, v. The STATE of Florida, Appellee. William K. McGUIRE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-117, 75-128.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Rehearing Denied Jan. 12, 1976.
    Quinn & Payne, Key West, for appellants.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., and Joseph F. Iracki, Legal Intern, for appel-lee.
    Before BARKDULL, C. J., and HA-VERFIELD and NATHAN, JJ.
   BARKDULL, Chief Judge.

By these appeals, we are called upon to review the convictions and sentences of two defendants found guilty by a jury of possession of more than 5 grams of marijuana.

The appellants urge error, going to the sufficiency of the evidence, which we find not to be well taken. State v. Sebastian, Fla.1965, 171 So.2d 893; Decca v. State, Fla.App.1966, 186 So.2d 92; Stewart v. State, Fla.App.1969, 221 So.2d 155; Zicca v. State, Fla.App.1970, 232 So.2d 414. The appellants also urge error in a posttrial order refusing to require a newspaper reporter to reveal the source of an alleged rumor. Initially, we seriously doubt that a proper procedure was followed in the trial court and, secondly, even if such a procedure was correct [which we do not here pass upon] no error has been demonstrated, because it would have been a violation of the reporter’s First Amendment rights to require him to respond to the question in an open trial proceeding. Morgan v. State, Fla.App.1975, (opinion filed September 26, 1975) ; Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626.

Therefore, for the reasons above stated, the convictions and sentences thereon be and the same are hereby affirmed.

Affirmed.

       Editor’s Note: The opinion in Morgan, as corrected, was refiled on December 3, 1975. See 325 So.2d 40.


text:
    John DIAMOND et al., Appellants, v. Charles CREIGHTON and Sunrise Shopping Center, Inc., Appellees.
    Nos. 75-752, 75-753.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal from Circuit Court, Broward County; Lamar Warren, Judge.

Appeal dismissed.


text:
    Walter Leon THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1764.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 1975.
   ORDERED that the October 1, 197S Application to the Fourth District Court of Appeal for the Issuance of an Extraordinary Constitution Writ is hereby denied.


text:
    Mary Anne WAHL, Appellant, v. Dennis Richard WAHL, Appellee.
    No. 75-381.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.
    Rehearing Denied Jan. 8, 1976.
   PER CURIAM.

Affirmed.


text:
    Allen D. RHOADES, Petitioner, v. Mel COLMAN, Sheriff of Orange County, Florida, Respondent.
    No. 75-1925.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1975.
    As Amended Dec. 23, 1975.
   ORDERED that Appellant having filed a Petition for Writ of Habeas Corpus in Case No. 75-1925 in this court on November 3, 1975 and said Petition having initiated the above-styled case and this court having reviewed the Circuit Court of Orange County’s denial of bail pending trial; the Response to Rule to Show cause; the Respondent’s Answer to said Response; said Bond is granted pending trial; contingent upon petitioner filing with the clerk of the Circuit Court of Orange County a good and sufficient bail bond in the amount of Ten Thousand Dollars ($10,000.00) conditioned according to law and further conditioned upon Appellant’s complying with all future Orders of this court in this case.


text:
    GROVER HOUSING CORPORATION, Appellant, v. ARMSTRONG MANOR, INC., Appellee.
    No. 75-474.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Brenda F. PERRIER, Appellant, v. Gordon PERRIER, Appellee.
    No. 75-1150.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Irwin L. SHAPIRO, Appellant, v. DADE COUNTY et al., Appellees.
    No. 75-252.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Dana ERVIN, a minor, By and Through her mother and Guardian, Betty Ervin, individually, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, Appellee.
    No. 75-1685.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1975.
   Certiorari dismissed.


text:
    Buree ADELBERG, Appellant, v. Amelia WAGNER a/k/a Yvonne Wagner and/or Steve Michelson, Appellee.
    No. 75-1190.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    AUTO-OWNERS INSURANCE CO., Petitioner, v. Charles H. GORDON, d/b/a Gordon’s Tractor Service for the Use and Benefit of Sentry Insurance, a Foreign Corporation, and Robbins International Truck Sales, Inc., Respondents.
    No. 75-1240.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
   PER CURIAM.

Petition for writ of certiorari denied.


text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Michael F. BARRETT and Mary V. Barrett, Appellees.
    No. 75-748.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    David J. GRASSMAN, Petitioner, v. Charles J. CRIST and St. Paul Insurance Companies, Respondents.
    No. 75-1122.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    COSTA LINE, INC., a New York Corporation, Appellant, v. Irving W. PACKER, individually, and as Guardian and next friend of Howard Packer, a minor child, Appellees.
    No. 75-1689.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 1975.
   PER CURIAM.

Appeal dismissed


text:
    Charlotte MINDNICK, Appellant, v. Charles I. HOPKINS, d/b/a C. & J. Hopkins Realty, Appellee.
    No. 75-146.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Willie J. BARNES, Jr., Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Offender Rehabilitation, State of Florida, Respondent.
    No. 75-2134.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 1975.
   Habeas corpus denied.


text:
    COMMERCIAL BANK & TRUST COMPANY, a Florida Banking Corporation, Appellant, v. Julius J. SHEPARD and Paul A. Toppino, Appellees.
    No. 75-1244.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Clyde HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1573.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 1975.
   Habeas corpus denied.


text:
    STATE of Florida ex rel. George K. BEEBE, Petitioner, v. Edward J. STACK, Sheriff of Broward County, Florida, Respondent.
    No. 75-2151.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 1975.
   Habeas corpus denied.


text:
    STATE of Florida ex rel. DEPARTMENT OF REVENUE, State of Florida, Relator, v. Honorable Thomas A. TESTA, Judge of the Circuit Court of the Eleventh Judicial Circuit, In and For Dade County, Fla., Respondent.
    No. 75-1559.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Robert ALLEN and Sylvia Allen, d/b/a Allen’s Studio, Appellants, v. MIAMI DOLPHINS, LIMITED, a Florida limited Partnership, et al., Appellees.
    No. 75-1574.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Robert SILVER, Appellee.
    No. 75-1930.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Broward County; Wm. Clayton Johnson, Judge.

Appeal dismissed.


text:
    ANTIQUERS AERODROME, INC., a Florida Corporation, Appellant, v. Jack HOUSTON and Esther Houston, Appellees.
    No. 75-1290.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Harold J. ARNSTEEN, Appellant, v. Monique ARNSTEEN, Appellee.
    No. 75-1835.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Brevard County; Tom Waddell, Judge.

Appeal dismissed.


text:
    AUSTIN FORD, INC., Appellant, v. Linda C. ALGER, Appellee.
    No. 75-1086.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Herbert M. BERGMAN, Appellant, v. Evelyn BERGMAN, Appellee.
    No. 75-1495.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Broward County; Jose Gonzalez, Judge.

Appeal dismissed.


text:
    Gabriel A. BURY, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and City of Lakeland, Respondents.
    No. 75-752.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
    Rehearing Denied Jan. 7, 1976.
   PER CURIAM.

Petition for writ of certiorari denied.


text:
    June E. CADY and Kent E. Cady, Appellants, v. Fred CADY, Appellee.
    No. 75-95.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Frank CATANIA, Appellant, v. STATE of Florida, Appellee.
    No. 75-230.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Nona A. CULPEPPER, Appellant, v. SHELBY MUTUAL INSURANCE CO., etc. et al., Appellees.
    No. 75-96.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Henry Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-117.
    District Court of Appeal of Florida, Fourth. District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Barney DUCKWORTH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1574.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    EDWARD L. NEZLEK, INC., and Travelers Indemnity Company, Appellants, v. HILL YORK BROWARD, INC., Appellee.
    No. 75-1492.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Broward County; Wm. Clayton Johnson, Judge.

Appeal dismissed.


text:
    Zvi Lev GEITHEIM, Appellant, v. Helen GEITHEIM, Appellee.
    No. 75-1810.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Vernell HADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 73-1069.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Lance A. LAVENSTEIN, Executor of Estate of Gerald L. Lavenstein, Deceased, Appellant, v. Willis M. ANDERSON et al., Appellees.
    No. 75-709.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    LAKE PARK APARTMENTS, INC., a Florida Corporation, Appellant, v. NEW PLAN REALTY TRUST, a Massachusetts Business Trust, Appellee.
    No. 75-1383.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Larry Leon HIGDON, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections and Ray E. Howard, Chairman of Florida Parole and Probation Commission, Appellees.
    No. 75-2086.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Habeas corpus denied.


text:
    Alphonse A. MARZANO, Appellant, v. STATE of Florida, Appellee.
    No. 75-367.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Douglas Arthur MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 75-281.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Donald MIMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-202.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Harold Connor MINNIS, and Dade County, a political subdivision of the State of Florida, Appellants, v. Janice ELVINE, Appellee.
    No. 75-609.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Max A. MOGUL, Petitioner, v. WACO EQUIPMENT COMPANY, Respondent.
    No. 75-1354.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Hattie Mae PETERSON, Appellant, v. John WAMBLES, and American Mutual Liability Insurance Company, a corporation, Appellees.
    No. 74-1396.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert Dudley MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1978.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Osceola County; Cecil H. Brown, Judge.

Appeal dismissed.


text:
    Willie James MOORE, Appellant, v. STATE of Florida, Appellee. Robert T. FAISON, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1815, 75-55.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    PLYWORLD CORPORATION, Appellant, v. FRED MORRISON CONSTRUCTION COMPANY, etc., et al., Appellees (two cases).
    Nos. 75-1323, 75-1377.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Orange County; Thomas E. Kirkland, Judge.

Appeal dismissed.


text:
    Charles W. POTTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-589.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    James S. REEBALS, Appellant, v. Judith D. REEBALS, Appellee.
    No. 75-327.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    REX-NORECO, INC., Appellant, v. David KERR and Sheridan E. Kerr, his wife, Appellees.
    No. 75-431.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    C. J. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-257.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    C. Arthur RUTTER, Jr., et al., Appellants, v. Rose E. SAVAGE, Appellee.
    No. 75-672.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Marcia B. SCHUG, individually, and as Co-Executrix of the Estate of Kenneth J. Schug, Deceased, and First National Bank of Minneapolis, Minnesota, as Co-Executor of the Estate of Kenneth J. Schug, Deceased, Appellants, v. Edgar I. GERHARD, Jr., et al., Appellees.
    No. 75-1901.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Broward County; John G. Ferris, Judge.

Appeal dismissed.


text:
    Milford SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1057.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    64 MANAGEMENT CO., INC., Appellant, v. HAROLD BADER AND ASSOCIATES, INC., Appellee.
    No. 74-1814.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Broward County; Gene Fischer, Judge.

Appeal dismissed.


text:
    Mary Ludwig SOKAL, Appellant, v. CITY OF BOYNTON BEACH, Appellee.
    No. 75-1995.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Palm Beach County; Culver Smith, Judge.

Appeal dismissed.


text:
    Anthony J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 75-1990.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Broward County; James Reasbeck, Judge.

Appeal dismissed.


text:
    T. Ross THOMPSON, Appellant, v. Samuel J. THOMPSON et al., Appellees.
    No. 75-433.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    TILDEN, DENSON, LOBNITZ, INC., a Florida Corporation, Petitioner, v. TITTLE/WHITE CONSTRUCTORS, INC., a Florida Corporation, Respondent.
    No. 75-2115.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Certiorari dismissed.


text:
    Celia TRUNCALE, Appellant, v. FLORIDA JAI ALAI, INC., and Cincinnati Insurance Company, Appellees.
    No. 74-1547.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Joseph Anthony VALERIO, Appellant, v. STATE of Florida, Appellee.
    No. 75-21.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Clarence Lloyd WHITLOW, Appellant, v. STATE of Florida, Appellee.
    No. 75-459.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    David John WINCHIP, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 75-682.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    George M. WORLEY and Dorothy N. Worley, Appellants, v. ORLANDO-ORANGE COUNTY EXPRESSWAY AUTHORITY, a body politic and corporate and agency of the State of Florida, and Diversified Services, Inc., et al., Appellees.
    No. 75-691.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
   Appeal from Circuit Court, Orange County; Parker Lee McDonald, Judge.

Appeal dismissed.


text:
    William H. BOYD et al., Appellants, v. MANCHESTER INSURANCE AND INDEMNITY COMPANY, etc., et al., and Gene Aughenbaugh & Associates, Inc., et al., Appellees.
    No. 75-1919.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1975.
   Appeal from Circuit Court, Orange County; B. C. Muszynski, Judge.

Appeal dismissed.


text:
    King Edward BRILL, Appellant, v. STATE of Florida, Appellee.
    No. Y-383.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    FLORIDA PLANNED COMMUNITIES, INC., et al., Appellants, v. FLORIDA DEPARTMENT OF LEGAL AFFAIRS, Appellee.
    No. 75-581.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1975.
   Appeal from Circuit Court, Palm Beach County; Tom Sholz, Judge.

Appeal dismissed.


text:
    Bobbie Lee FLUKER, Appellant, v. STATE of Florida, Appellee.
    No. Y-495.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    Benjamin HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. X-174.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    MANCHESTER INSURANCE AND INDEMNITY COMPANY, Appellant, v. William H. BOYD and Gene Augenbaugh & Associates, Inc., et al., Appellees.
    No. 75-2036.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1975.
   Appeal from Circuit Court, Orange County; B. C. Muszynski, Judge.

Appeal dismissed.


text:
    Lucious SLOAN, Appellant, v. STATE of Florida, Appellee.
    Nos. X-170, X-171.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    FIRST CHRISTIAN CHURCH OF MIAMI, Florida, et al., Appellants, v. J. B. CASH et al., Appellees.
    Nos. 75-1584, 75-1585.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Alfred J. McCALOPE, Appellant, v. STATE of Florida, Appellee.
    No. Y-200.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles E. MILLER, as Administrator of the Estate of Charles E. Miller, Jr., Deceased, Appellant, v. Earle BENNETT, Esquire, as Administrator of the Estate of Allen Leroy Ames, Deceased, and State Farm Mutual Automobile Insurance Company, a corporation, Appellees.
    No. Y-63.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
   PER CURIAM.

Affirmed.


text:
    Adolphus David WILDS, Appellant, v. STATE of Florida, Appellee.
    No. Y-152.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
   PER CURIAM.

Affirmed.


text:
    Gerald King YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. Y-301.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
   PER CURIAM.

Affirmed.


text:
    CAMERA PATROL, INC., Appellant, v. Lee MENDELSON, Appellee.
    No. 75-1194.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Theodore E. CARR, Sr., Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LAKE COUNTY, Florida, Appellee.
    No. 75-671.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Samuel H. GREEN, Appellant, v. WORLD WIDE LABORATORIES, INC., et al., Defendants, and Skip, Inc., Appellee.
    No. 75-504.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    W. Richard MINOR, Appellant, v. STATE of Florida, Appellee.
    No. 75-240.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    R. C. PETERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-525, 75-526.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. C. Hugh HAYES et al., Appellees.
    No. 75-574.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Irving KARP, Relator, v. The Honorable Lenore C. NESBITT, Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, In and For Dade Criminal Division, Respondent.
    No. 75-1727.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Thelma Ree VAUGHN, Appellant, v. George W. VAUGHN, Appellee.
    No. 75-840.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Roy WALSDORF, Appellant, v. Richard F. WITCHER, a/k/a Frank Witcher, and his wife, Barbara A. Witcher, d/b/a Witcher Caretaking Service, et al., Appellees.
    No. 75-1544.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Appeal dismissed.


text:
    Marian YOUNG, Appellant, v. Sam YOUNG, Appellee.
    No. 75-1855.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY and Burt and Scheld, Inc., Appellants, v. AMERICAN AND OVERSEAS REINSURANCE LTD., a corporation, et al., Appellees.
    No. 74-1421.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed


text:
    BILTMORE CONSTRUCTION CO., INC., et al., Appellants, v. C & W INTERIORS, INC., a Florida Corporation, Appellee.
    No. 75-950.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    James Donaldson BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 75-667.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    DANIEL CONSTRUCTION COMPANY, INC., a South Carolina Corporation, d/b/a Daniel Construction Company of Florida, Appellant, v. NICHOLS ENGINEERING & MATERIALS CO., INC., a Foreign Corporation, and National Surety Corporation, a Foreign Corporation, Appellees.
    No. 75-788.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    J. Pendleton GAINES, d/b/a Penco Enterprises, Appellant, v. WESTERN NEW YORK SAVINGS BANK, a New York Banking Corporation, et al., Appellees.
    No. 75-917.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


author: PER CURIAM..

text:
    Walter A. GARRISON, Petitioner, v. Jack KING and Florida Real Estate Commission, Respondents.
    No. 75-1030.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM..

Certiorari denied.


text:
    GILCHRIST COUNTY SCHOOL BOARD, and John Rutledge, as Principal of Trenton High School, Appellants, v. Ronald T. BIVENS, by his natural guardian, Genevieve V. Bivens, et al., Appellees.
    No. X-464.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.
    Rehearing Denied Feb. 18, 1976.
   PER CURIAM.

Affirmed.


text:
    Norman HANSEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-290.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    T. C. HOBBS, Appellant, v. STOKELY-VAN CAMP, INC., an Indiana Corporation, and Bird-Harrell, Inc., formerly Harrell Sales Corporation, Appellees. HARRELL MARKETING CORPORATION, formerly Harrell Sales Corporation, a Delaware Corporation, Appellant, v. T. C. HOBBS, Appellee.
    Nos. 75-366, 75-590.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    The SCHOOL BOARD OF PINELLAS COUNTY and Mildred E. Mason, Appellants, v. Marie H. STONE et al., Appellees.
    No. 74-1531.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    John H. MILLER, Appellant, v. CARRIGAN & BOLAND, INC., Appellee.
    No. 75-396.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Hurley JONES, a/k/a Sonny Jones, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1136.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.
   PER CURIAM.

Certiorari denied.


text:
    SEAWORTH SHIRE, INC., Appellant, v. Milan O. NOVOTNY et al., Appellees.
    No. 75-1336.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Carolyn Sue SHAPPO, Appellant, v. STATE of Florida, Appellee.
    No. Y-241.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Alan V. VENZER, Appellant, v. Arlene R. VENZER, Appellee.
    No. 75-1565.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Billy Joe WEDENFELLER, Appellant, v. STATE of Florida, Appellee.
    No. Y-207.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    James F. WHITE and Rosa Jane White, his wife, Appellants, v. J. C. TESTON and Mrs. J. C. Teston, his wife, Appellees.
    No. 75-805.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Phyllis D. WILLIAMS, Appellant, v. Richard R. WILLIAMS, Appellee.
    No. 75-561.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Cyrus LITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 75-427.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1975.
   Appeal dismissed.


text:
    Burr W. SKINNER and Theresa P. Skinner, Appellants, v. DADE COUNTY and Mateo Concepcion, et al., Appellees.
    No. 75-1616.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Raymond RHOME, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1051.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Sally Jean DUDLEY, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, a Corporation, Appellee.
    No. 75-644.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert MAZE and Shelby Mutual Insurance Company, Appellants, v. Laurenne A. CARSON, as Administratrix of the Estate of Dennis J. Carson, Deceased, et al., Appellees.
    No. 75-1420.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
   Appeal dismissed.


text:
    Susan Hamill OSBORNE, Appellant, v. Nathan G. OSBORNE, Jr., Appellee.
    No. 75-906.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    PEPSICO TRUCK RENTAL, INC., a Delaware Corporation, Appellant, v. Eugene ANDERSON d/b/a A & S Trucking, and Bob’s Welding, Inc., a Florida Corporation, Appellees.
    No. 75-537.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    John Russell WEIDNER and State Farm Mutual Automobile Insurance Company, Appellants, v. Edward Lewis MARSHALL and Melda C. Marshall, Appellees.
    No. 75-879.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1975.
   Appeal dismissed.


author: TYSON, Judge.

text:
    Howard STEELE v. STATE.
    7 Div. 347.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.
    Phillips & Watson, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Frank L. Thiemonge, III, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of one Clarence Baker by shooting him with a' pistol. The jury found the appellant guilty of murder in the second degree and fixed punishment at ten years imprisonment. The trial court then entered judgment in accordance with this verdict, and thereafter overruled the appellant’s motion for a new trial following a hearing.

The toxicologist’s report and the weapon used by the appellant in the homicide were stipulated into evidence. The toxicologist’s report indicated that the deceased, at the time of his death, had ethyl alcohol equivalent to 0.17 percent in his blood, and that his death was caused by a gunshot wound from a thirty-two caliber bullet delivered to the left anterior chest which lacerated the left subclavian artery. Also stipulated were a thirty4wo caliber projectile removed from the body of the deceased and a white “tee” shirt which contained blood stains.

Clyde Turner testified that between 3 :30 and 4:00 on the afternoon of August 12, 1974, he was driving in his automobile down Main Street in Piedmont, near where Ladiga Street intersected with Main Street. He stated that he observed the appellant, Howard Steele, stop his vehicle, that he saw him cross over and stand by the deceased’s, Mr. Baker’s car with a pistol in his hand, that he drove past them, and he saw the appellant turn and leave Baker’s car. He stated that a short time later he went to the location where the deceased’s 1973 automobile was parked and saw a shotgun unbreeched on the inside, that this was the location where the Pontiac car struck the corner of the Lang Warehouse, that this was about one or two blocks from where he first observed the two men, that he saw two police officers there, one of whom was the brother of the deceased, this officer being one Fred Baker, and that the shotgun was lying on the front floorboard.

Tommy Posey testified that on the afternoon of August 12, 1974, he was riding a motorcycle on South Main Street in Piedmont, Alabama, near the intersection of Main and West Ladiga Streets. He saw two cars stop, and that he learned that the Ford automobile belonged to the appellant, Howard Steele. He saw Steele stop_ and get out of his car and walk across the street with a pistol in his hand, and then observed him start hitting the deceased with the pistol. He stated that he observed the appellant go into the deceased’s car and then heard a sound as though a shot had been fired. He was not sure of the number of times he saw the appellant strike the deceased with the pistol before the gun fired, but that it was at least two or three. He testified that some five or ten minutes later he rode near the corner of the warehouse where the deceased’s car was found and saw some police officers there, that they were putting Clarence Baker in an ambulance.

Hoyt Crook testified that he had been employed for thirty-two years by the Street Department of Piedmont, Alabama, and that shortly after 3:30 on the afternoon of August 12, 1974, he heard a loud crash and observed an automobile strike the corner of a warehouse located a short distance from the City Barn. He stated that he approached the car and saw the deceased, Clarence Baker, under the steering wheel, and that there was an unbreeched shotgun lying on the floorboard of the front seat. He testified that it was a little over a block from the point where he observed the vehicle strike the warehouse at the intersection of Ladiga and Main Streets in Piedmont. He stated that shortly thereafter some police arrived and placed the deceased in an ambulance.

The appellant’s motion to exclude the State’s evidence was overruled.

The appellant, Howard Steele, testified that he was a resident of Piedmont, Alabama, and was manager of the American Legion Club there. He testified that he knew the deceased, Clarence Baker, that at one time they had been friends, and that Baker was the manager of the VFW Club in Piedmont. He testified that he had been by his Club on the morning of August 12, 1974, driving on Main Street, when he saw the deceased at the intersection of Main and.Ladiga Streets, that he made a turn, and after recognizing deceased driving a Pontiac automobile, he stopped his car and got out, that he had a pistol which had been turned over to him by his Legion Post Commander, Gary Buttram, with him. He stated that the pistol was a thirty-two caliber revolver. He stated that he stopped about twenty-five or thirty feet from the vehicle in which the deceased was riding, called to him, and walked over to speak to him. He said he endeavored to open the door of deceased’s automobile, that the deceased reached for a shotgun, and as he did so he struck him with the pistol. He stated that he hit him two more times and the pistol in his hand suddenly discharged, that he was not sure the deceased had been shot, but he told him that he wanted him to be at the City Hall that night for a trial, and that the deceased for the past two weeks had been going about town making threats that he was going to kill him. He said that he did not know that the deceased had been shot until about thirty or forty minutes later after he drove away, and had been informed by a Mr. Ledbetter that the deceased had been shot.

At this point in the trial, the appellant sought to present evidence of the details of prior threats made upon him by the deceased, and as to the deceased’s general reputation. The trial court excused the jury and heard the appellant’s motion, then denied same under Sanders v. State, 242 Ala. 532, 7 So.2d 483, stating that at this point in the trial there had been no evidence of self-defense which would justify the allowance of such testimony.

Thereafter the jury was returned to the box, and the appellant then continued to testify that his encounter with the deceased took place between 3:00 and 3:30 on the afternoon of August 12, 1974, at the intersection of Main and Ladiga Streets in Piedmont. He stated that as he first approached the deceased’s automobile, he did not point the gun at the deceased or make any threat upon the deceased. He stated that there was supposed to be a trial that night at the City Hall on a burglary of the American Legion Club, and that the deceased was involved in this case. He stated that he had received word that afternoon that the deceased was trying to have the case postponed, and that he told him he wanted him to be at City Hall that night to take care of the case. He stated that as he did so, the deceased reached for his gun. From the record:

“Q. What was said by you or by him after you mentioned the case ?
“A. Nothing was said then. Then he reached for the gun and that is when I hit him with my gun and it discharged. I didn’t know he was shot. I hit him two more times and then I backed out of the car. I told him ‘You be at City Hall tonight; I don’t want to be running around here two more weeks with • threats about you are going to kill me.’
“Q. Had you heard that he was going to kill you?
“A. Numerous times.
“Q. And you say up until the time he reached for the gun you had not raised that pistol from your side ?
“A. No sir.
“Q. Did you at any time before he reached for that shotgun make any threats toward him ?
“A. No sir.
“Q. Did you in any manner make any statement that you were going to kill him?
“A. No sir.”

On cross-examination, the appellant testified that he had been the manager of the American Legion Club for approximately three years prior to the time of the incident in question, that he had gotten out of his car and approached the deceased’s vehicle because of the pending burglary case that night at City Hall. He stated that the deceased had not called to him, but that he had stopped and gotten out of his car to discuss the matter with the deceased. He further testified that the windows were up, that he could not see inside the deceased’s car until he opened the door, that shortly after he did so the deceased reached for the shotgun, and that was when he struck the deceased with the pistol. He further testified that he was about six feet two inches and weighed about 215 pounds, and the deceased was a small man, weighing about 150 pounds. He further testified he did not realize that the gun had been fired until he later talked with Leroy Ledbetter.

The appellant then presented a stipulation that one Troy Hunt, if called to testify, would state that he was one of the ambulance attendants who picked up Clarence Baker about a block from the intersection of Main and Ladiga Streets in Piedmont on August 12, 1974; that the deceased was taken to the hospital at Ft. McClellan, and that he found a shell in the left front pocket of the shirt of deceased, Clarence Baker, that the deceased had lacerations on the left side of his head, but that he did not know deceased had been shot until he was x-rayed at Ft. McClellan.

Ray Reagan testified that he was an employee of the Piedmont Water Works, that he also served with the Piedmont Rescue Squad and drove an ambulance, that he was with Troy Hunt when they answered a call to go to Ladiga Street where a vehicle had struck a warehouse. He stated that they found the deceased, Clarence Baker, slumped over the steering wheel of the car, that there was a shotgun lying on the front floorboard, unbreeched, that he spoke to the deceased, and as he did so he saw a spot on his head. He stated that he told him that he might ought to go to a doctor, and the deceased first stated that he did not want to go. He stated he saw Troy Hunt remove a shell from the pocket of deceased on the way to the hospital, but he did not know that deceased had been shot until he was x-rayed at Ft. McClellan.

Leroy Ledbetter testified that he was a self-employed automobile repairman and was Chairman of the American Legion Club in Piedmont. He testified that he was notified by two police officers to come to the club on the early morning of August 9, 1974, that when he arrived, Clarence Baker was in the custody of two policemen waiting outside American Legion Hall. He testified that on the afternoon of August 12, 1974, the appellant, Howard Steele, had left him in charge of the Legion Hall, and that he told him he was going down to City Hall to see about why the burglary case that was to be heard that night had been postponed. He stated that later that afternoon the appellant came back to the Legion Hall and talked with him. He testified that the appellant’s general reputation in the community was good.

Jack Waites testified that he was a member of the City Council of Piedmont, employed by the Standard-Coosa Company. He testified that he went to Front Street with some police officers to investigate a scene where an automobile had struck the corner of a warehouse. He stated that as he arrived he saw the deceased, Clarence Baker, being placed in an ambulance, and that he observed a shotgun lying on the front floorboard of the car, pointed up. He stated that he observed a bottle of Vodka, which had been partially consumed, lying on the front seat, that he saw one of the police officers, who was Fred Baker, a brother of the deceased, Clarence Baker, take the bottle of Vodka and throw it against the warehouse, breaking it.

Ray Fagan testified that he operated a service station in Piedmont, Alabama, that he knew both Howard Steele and Clarence Baker. He testified that in the early afternoon of August 12, 1974, Baker had come by his station and bought some gasoline, that he appeared to have been drinking heavily.

Gary Buttram testified that he was Commander of the American Legion Post on August 12, 1974. He testified that, following a burglary of the American Legion Hall on Friday, August, 9, 1974, he had given his thirty-two caliber pistol to Howard Steele to use.

Joe W. Cambrón testified that he had formerly been a police officer for the Piedmont Police Department on August 12, 1974. He stated that he investigated an accident at a warehouse on Front Street, that he remembers Officer Jack Waites being there, that he looked inside the Pontiac automobile and found a sixteen-gauge single-barrel shotgun lying on the front seat, that he later received one shell, which had been removed from the pocket of Clarence Baker. He observed Officer Fred Baker take a bottle of Vodka, which was inside the automobile, and throw it against the warehouse.

Police Officer Cecil Parrish testified that he was called to investigate the burglary of the American Legion Club on the early morning of August 9, 1974. He stated that Clarence Baker was at the Club and was charged with burglary. Upon being asked about threats made on this occasion, the court sustained the State’s objection.

The appellant then presented a number of character witnesses who testified that his reputation in the community was good.

I

The appellant cites, as error the refusal of the trial court to permit the testimony of appellant as to the details of threats apparently made by the deceased upon him after his arrest on the night of August 9, 1974, at the American Legion Club, and also a statement allegedly given appellant by the deceased’s wife to the same effect on the day of the homicide.

The general rule covering this situation is well-stated in Sanders v. State, 242 Ala. 532, 7 So.2d 483, as follows:

“None of such evidence is admissible when offered by defendant, if he was the aggressor in the difficulty which then and there resulted in the killing. For under such circumstances self-defense is not available to him. And if he approached deceased for the purpose of bringing on the difficulty, such plea is unavailing. DeArman v. State, supra [71 Ala. 351],
“There is nothing to sustain a claim that defendant did not deliberately go home and get his gun and then go to a place where he would meet deceased for the purpose of renewing the difficulty with him, or that there was any reason to get his gun and go to meet him other than to renew the difficulty, or that he could not have avoided the difficulty after he saw deceased and saw him with a knife, as he says. Such a situation was analyzed in connection with a claim of self-defense in the case of Dunn v. State, 143 Ala. 67, 39 So. 147.
“Before such matter is admissible, there must be a tendency of other aspects of the evidence to show that defendant was without fault in bringing on the fatal rencounter; that he was in imminent peril, real or apparent, of loss of life or limb, that he could not avoid the difficulty or retreat without increasing his peril. And if an act was committed by him in the nature of a present provocation, he was not without fault. Unless there is a tendency of the evidence favorable to defendant on those questions, he cannot prove the bad character of deceased for turbulence, nor threats by him toward defendant, nor a prior difficulty with him, though of a serious nature..."

Moreover, as noted in Parker v. State, 266 Ala. 63, 94 So.2d 209, it was not here shown that the appellant did not have an opportunity to retreat. Further, it was not shown that the appellant did nothing to provoke the deceased, and it was not shown that the appellant could not have avoided the difficulty.

Clearly therefore, the trial court correctly did not allow the details of these prior specific acts of the deceased to be shown in this cause. Byrd v. State, 257 Ala. 100, 57 So.2d 388; Farley v. State, 279 Ala. 98, 182 So.2d 364; Sanders v. State, supra; Parker v. State, supra; Plemmons v. State, 42 Ala.App. 638, 176 So.2d 45.

We cannot say that the trial court should be placed in error for excluding such evidence when in fact such evidence was offered prior to evidence which might tend to show self-defense. Authorities herein cited.

II

The appellant further argues that the trial court erred in refusing his requested written charge No. 2.

At the conclusion of the trial court’s extensive oral charge, the appellant announced, “Satisfied,” and the trial court then gave five written requested charges. Refused Charge No. 2 contains misspelled words, and hence was properly refused, State v. Owen, 279 Ala. 281, 184 So.2d 362; Griffin v. State, 284 Ala. 472, 225 So.2d 875; Darby v. State, 48 Ala.App. 421, 265 So.2d 449.

Moreover, the charge in question was not properly predicated on the evidence in this case, and hence was argumentative, thus, the trial court properly refused same.

We have carefully examined this record and find no error therein. The judgment is therefore due to be and the same is hereby

Affirmed.

All the Judges concur.


author: MERRILL, Justice.

text:
    In re Howard STEELE v. STATE. Ex parte Howard Steele.
    SC 1532.
    Supreme Court of Alabama.
    Nov. 20, 1975.
    John R. Phillips, Anniston, for petitioner.
   MERRILL, Justice.

Petition of Howard Steele for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Steele v. State, 56 Ala.App. —, 323 So.2d 721.

Writ denied.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Aaron HOLLOWAY v. The CITY OF BIRMINGHAM.
    6 Div. 24.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Rehearing Denied Dec. 16, 1975.
    Joseph W. Adams, Birmingham, for appellant.
    W. O. MacMahon III, Birmingham, for appellee.
   TYSON, Judge.

The appellant, Aaron Holloway, was charged with the violation of Section 34-56 of the City Code of Birmingham, Alabama, by driving a motor vehicle while under the influence of an intoxicating beverage.

The jury found the appellant guilty, and the court fixed punishment at a fine- of $100.00. The court also assessed thirty days hard labor as additional punishment for failure to pay the fine and costs accrued in Recorders Court, and twelve days at hard labor for the county as cost of this proceeding.

Although the City of Birmingham did in its proof in support of its complaint place Officer Jervis Wooten on the stand to testify as to the results of a P.E.I. test administered by him about 7:15 on the evening of February IS, 1975, at the Ensley Precinct, the City of Birmingham also offered the testimony of Birmingham Police Officers Oliver E. Young and R. L. Webb, who arrested the appellant at the scene of the accident at the intersection of 8th Street and Avenue H in the City of Birmingham, Jefferson County, Alabama.

Each of the officers testified that they were answering another call when they observed the appellant endeavor to make a left hand turn onto Avenue H from 8th Street. The appellant was driving at such a high rate of speed that he could not make the turn, the rear of the automobile slid across the street and hit a parked motor vehicle. Each officer testified that the appellant was driving a 1964 Valiant, and that the speed zone at the intersection was 25 miles per hour. Each of the officers testified that the front end of appellant’s vehicle struck the rear of the parked automobile. The two officers testified that when they approached the appellant’s vehicle they asked for the appellant’s driver’s license, that he was slumped under the wheel, and there was a strong odor of alcohol about his person. After asking for his driver’s license, they asked the appellant the date of his birth, and that the appellant could not remember his birth date. Each officer testified that the accident occurred about 6:00 p. m., February 15, 1975. The two officers estimated appellant’s speed at the time of the accident between 35 and 40 miles per hour. Each officer also testified that the appellant had nothing to eat or drink between the time of his arrest and his being taken to the Ensley Precinct, and then to Mercy Hospital before being taken to the City Jail. Each officer testifed that the appellant was given a balloon test at the scene, which was “positive.”

The City, in support of its test, as administered to the appellant by Officer Wooten at the Ensley Precinct, placed in evidence a Birmingham Police Office Memorandum, dated December 4, 1974, which directive designated the Photo-Electric Intoximeter as the principal test to be administered by the Birmingham Police Department in determining the alcoholic content of blood.

Officer Wooten also testified that he held a permit from the State Board of Health and had been given a forty hour course, which he successfully completed in the operation of the machine in question, and that this machine had been examined on January 9, 1975, and found to be in good working order.

The appellant testified that he had been by his own home and then gone to visit his brother-in-law, who lived on Avenue F. He denied drinking any alcoholic beverages at his brother-in-law’s home, but stated that he had had a beer at his own home before he drove over there. The appellant denied that he staggered, or that he was under the influence of alcohol at the time of his arrest following the accident in question. The appellant did admit that he signed a consent form to take the test in question.

On cross-examination, the appellant admitted that he had signed a consent form at the Ensley Precinct Station, as well as giving, the officers permission to administer a balloon test at the scene. The appellant did not dispute the two officers’ testimony as to the accident except to say that his wheels had locked, causing him to skid. The P.E.I. test result was .23% alcohol.

I

The appellant asserts as error the failure of the City of Birmingham to lay a proper predicate prior to its admission into evidence of the Photo-Electric Intoximeter test administered to the appellant about 7:15 on the evening of February 15, 1975, as required by Title 36, Section 155(b), Code of Alabama 1940, as amended 1969. See Myrick v. Montgomery, 54 Ala.App. 5, 304 So.2d 247.

This Court pretermits consideration of this objection as we are firmly of the opinion that the appellant's condition at the time of the accident, and immediately thereafter, was fully proven by the City by the testimony of Officers Young and Webb, who both observed the accident at the time of its occurrence and talked with the appellant immediately thereafter, then placed him under arrest at the scene.

The record contains proper proof of the guilt of the appellant. The judgment appealed from is therefore due to be and the same is hereby

ffirmed.

All the Judges concur.


author: PER CURIAM:

text:
    Edward Aaron ENGLISH v. STATE.
    1 Div. 570.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied June 30, 1975.
    Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Charles N. Parnell, Ill., Asst. Atty. Gen., for the State, respondent.
   PER CURIAM:

Affirmed.

All the Judges concur.

Judgment reversed, 295 Ala. -, 323 So.2d 728, on remand, Ala.Cr.App., 56 Ala.App. -, 323 So.2d 730.


author: SHORES, Justice.

text:
    In re Edward Aaron ENGLISH v. STATE of Alabama. Ex parte Edward Aaron English.
    SC 1372.
    Supreme Court of Alabama.
    Nov. 6, 1975.

      Ian F. Gaston, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, respondent.
   SHORES, Justice.

Edward Aaron English was indicted by the Mobile County Grand Jury on November 8, 1973, for the offense of possession of a pistol after having been convicted of a crime of violence. He was found guilty as charged and sentenced to two years in the penitentiary. He appealed to the Court of Criminal Appeals, 56 Ala.App. -, 323 So.2d 728, which affirmed the conviction without opinion.

We granted certiorari because the af-firmance of the conviction by the Court of Criminal Appeals appeared to be in conflict with Reid v. State, 168 Ala. 118, 53 So. 254 (1910), and Esco v. State, 278 Ala. 641, 179 So.2d 766 (1965).

“ . . . We have long held that we can, and will, review a decision of one of the Courts of Appeal on a ‘federal question’ even though there is no written opinion of that court in the cause. . ” Haynes v. State, 293 Ala. 221, 223, 301 So.2d 208, 210.

This case presents a fundamental question of due process justifying consideration by this court.

As indicated, in the instant case the indictment charged Edward Aaron English with the offense of possession of a pistol after conviction of a crime of violence. In support of its case, the state introduced, over the defendant’s objection, made by motion to suppress, a certificate of judgment dated September 24, 1973, showing that Aaron E. English had been convicted of burglary in the second degree.

The state offered no evidence to show that Aaron E. English and Edward Aaron English were one and the same individual.

Reid, supra, involved a prosecution for bigamy. There, the state offered a certificate of marriage showing that Robert L. Reid had married in New Orleans in 1907. The indictment charged Robert Reid with the crime of bigamy. This court held that there was no error in allowing the certificate of marriage, but stated “ . . . The law .takes no notice of the middle initial. If ‘Robert L. Reid’ was not the same person as ‘Robert Reid,’ it could be shown by evidence. The duty was on the state to show that they denominate the same person-, . . .” (Emphasis Supplied) (168 Ala. at 121, 53 So. at 255.)

In Esco v. State, supra, we said:

“The general rule is well settled that identity of name imports, prima facie, identity of person. Ex parte Davis, 200 Ala. 577, 76 So. 935. It would seem to follow that a difference of name imports, prima facie, a difference of person. ...” (278 Ala. at 643, 179 So.2d at 768.)

This court has for many years held that the law knows but one Christian name and that the insertion or omission of a middle name or initial is immaterial and may be disregarded. McMahan v. Colclough, 2 Ala. 68 (1841); Edmundson v. State, 17 Ala. 179 (1850); Pace & Cox v. State, 69 Ala. 231 (1881); and Rooks v. State, 83 Ala. 79, 3 So. 720 (1887).

When the rule of these cases is applied to the instant case, it is clear that the defendant was indicted under the name “Edward English,” and his guilt proven by a certificate of judgment showing that “Aaron English” had been convicted of burglary in the second degree.

Under Reid, the certificate of judgment was not inadmissible because of the discrepancy in names, but the burden was on the state to show that the person named in the indictment and the person shown on the certificate of judgment were one and the same.

We have been directed to no evidence in the instant case which indicates that any effort was made by the prosecution to prove that Edward English was one and the same as Aaron English. For this failure, the judgment of affirmance entered by the Court of Criminal Appeals is reversed and the cause is remanded to that court for the entry of a judgment consistent .with this opinion.

Reversed and remanded.

All the Justices concur except HEFLIN, C. J., not sitting.


text:
    Edward Aaron ENGLISH v. STATE.
    1 Div. 570.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
   After remandment from the Supreme Court of Alabama: Reversed and remanded on authority of SC 1372, November 6, 1975. 294 Ala.-, 323 So.2d 728.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Doyle BLAND v. STATE.
    3 Div. 401.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    ' Carl O. Pilgrim, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession of heroin; guilty plea; sentence: two and one-half years imprisonment.

On February 28, 1974, the appellant executed “Exhibit A,” a form detailing all the rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), commonly referred to as an Ireland form. (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602). The appellant, his attorney and the circuit judge all signed the form, acknowledging that the appellant understood the rights enumerated therein and voluntarily entered a plea of guilty.

A minute entry in the record, dated the same date, recited that before the trial judge accepted the guilty plea, he ascertained that the plea was, “intelligently and voluntarily made and also that the defendant understood (1) the privilege against self incrimination, (2) the right to a trial by jury, (3) the right to be confronted by his accusers, (4) that he fully understood what the plea connoted, including the nature of the charge and acts sufficient to constitute the offense, and (5) the consequences of the plea, including the range of the sentence, and being satisfied that the foregoing was fully and intelligently understood by the defendant and that his plea of guilty was freely and voluntarily made, the Court proceeded with the hearing.”

By separate order that date, the case was continued and the court committed the appellant to the Alabama State Hospital, Drug Treatment Center, in Tuscaloosa, as a drug addict. On January 15, 1975, the appellant, with counsel, appeared in court for sentencing and punishment was fixed at a penitentiary term of two and one-half years.

Appellant seeks a reversal for failure of the record to show a colloquy between the trial judge and the appellant before the court reporter.

The Alabama Supreme Court has held a guilty plea to be intelligently and voluntarily entered where the same type form as executed herein (Exhibit A) is executed and signed by a defendant and acknowledged by the signatures of the defense counsel and circuit judge, provided there is other evidence in the record supporting that fact. That showing may be made by a recitation in the judgment entry and in such case, a verbatim colloquy recorded by a court reporter is not required. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974).

The facts of the instant case fall squarely within the purview of Twyman, supra, and thus we hold that the record adequately sustains the guilty plea as having been intelligently and voluntarily entered by the appellant.

Affirmed.

All the Judges concur.