text:
    Allen Andrew LAMBERT v. STATE.
    7 Div. 360.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.

      Dixon, Wooten, Boyett & McCrary, and Clark Carpenter, Talladega, for appellant.
    William J. Baxley, Atty. Gen., and William A. Golinsky, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to thirty years in the penitentiary. He was represented at arraignment by one attorney and at trial by retained counsel. He pleaded not guilty. After conviction he gave notice of appeal. He was found to be indigent and a free transcript was furnished him and trial counsel represents him on this appeal.

The evidence in this case is all one way and rests on the state’s testimony alone. Appellant did not testify nor did he adduce any testimony in his behalf. The state’s testimony was strong and overwhelming pointing to the guilt of appellant.

Appellant, Russell Hood, Ernest Wimpee and Sandra Shaneyfelt left Gadsden on the afternoon of July 16, 1974, to go to Talla-dega and rob a beer store and carry the beer back to Gadsden and sell it. Sandra was driving Hood’s car and Hood rode in the front seat with her. Appellant and Wimpee rode in the rear seat. Sandra did not have a driver’s license. Wimpee was living with a woman by the name of Brenda Gilley and he borrowed her driver’s license and gave it to Sandra. Before leaving Gadsden Hood borrowed a double-barrel sawed-off shotgun and a 357 Magnum pistol and put them under the back seat of the car.

When they arrived in Talladega, they found the beer store closed. They rode around the streets of Talladega discussing what place they were going to “hit.” Sandra pulled to the side rear of the A & P store located on East Street and parked the car. Hood got out of the car and entered the store to buy some cigarettes. He returned to the car in a few minutes and said it looked like a good place to him. Hood got the sawed-off shotgun and appellant got the 357 Magnum and they entered the store followed by Wimpee. The time was 6:50 p. m. and the store was in the. process of closing for the night.

As the trio entered the store they met Mr. Randall Hunt at the front door. Hunt was leaving the store for the night. Hood pointed the shotgun at Hunt and told him to back up inside the door. Hunt asked him what he was doing and Hood told him again to back up and as he was backing, Hood punched Hunt in his chest with the shotgun causing him to fall over a screen divider near the door. This fall caused a loud noise which attracted the attention of the other employees in the store and they looked toward the front door and saw the man with the sawed-off shotgun.

From the record:

“A. He told me to get up and I got up and was calling for Mr. Hare, the manager of the store and I couldn’t get anyone’s attention. And I got up and leaned up against Register Number two, the end of it,' and he called out that ‘this is a robbery.’ And from that point he directed me to Register Number two and told me to open it and get the money out.”

Hunt removed all the money from the register, totaling $44.00, put it in a sack and handed the sack to Hood. Hunt further testified that after Hood got the money from him at the second cash register, he pulled the shotgun on Miss Joye Hurst, the cashier at cash register number one, and made her empty that cash register and put it in a sack. During this time Mr. Hunt glanced at the office and saw a man in the office with Mr. Willard Baker, the Assistant Manager of the store, but he did not get to observe him long enough to identify him.

Miss Joye Hurst testified that she was operating the number one cash register when a man she subsequently identified as Mr. Hood pointed a sawed-off shotgun at her and told her to empty her cash register. She got a brown bag and put all the money she had in her cash register in the bag and handed the bag to Hood. During this time she saw a man with a pistol in his hand enter the office door of the Assistant Manager, Mr. Willard Baker, and saw him pointing the pistol directly at Mr. Baker. She heard the man tell Mr. Baker he wanted all the money. Mr. Baker asked Miss Hurst to hand him a bag. She got a large bag and leaned over the aisle separating her check-out counter from the office and Mr. Baker reached and got the bag from her. She got a good look at the man in the office pointing the pistol at Mr. Baker. After the man got the money from both cashiers and the money from the office, one of the men ordered all employees to lie down on the floor and to stay on the floor for five minutes after they walked out the front door and all employees complied with such order.

Some time later a police detective brought some photographs to the store and asked her to examine the photographs and see if she could identify anyone in the photographs. Miss Hurst identified both Hood and the appellant. She later viewed a lineup at Police Headquarters and again identified Hood and appellant. Miss Hurst also made an in-court identification of appellant as the robber with the pistol. She said the men were in the store at least five minutes. She further stated she looked at the man with the pistol for at least two minutes. She said he had reddish hair and needed a shave. She thought he had a mustache. She stated he was wearing a light colored shirt and blue jeans. As she was on the floor she watched appellant leave the store and noticed he was barefooted.

On cross-examination she testified that she was afraid. She was asked the following question and made the following answer:

“Q. And in fact, you were so afraid and so frightened that your identification could be clouded by that excitement could it not?”
“A. No, sir, because something like that, I knew what was going to happen and I thought I might have to identify them and that is why I was staring at the man in the office and I got a picture of his face in my mind.”

Perry Swain, another employee of the store, testified that he first saw a man walking back and forth down the aisles of the store. He was wearing a T-shirt and was barefooted and needed a shave. Swain went back into the work room to get some stock. Someone told him the store was being robbed and he went up front to see what was happening. He then saw appellant in the office pointing a pistol at the Assistant Manager. He viewed only the man in the office and said the man needed a shave and had tatoos, and had on a different shirt from the T-shirt he was wearing when he first saw him. He said the shirt was checkered, more like a surf shirt with no sleeves. He further said the man was barefooted.

Some time later the officers brought him some photographs to view and told him they had a man in custody and he told the officers that he would rather look at the man personally. He viewed a lineup of six or more men and identified the appellant as the man with the pistol pointed at the Assistant Manager on the day of the robbery.

From the record:

“Q. I’ll ask you this. Independent of that lineup, that is, just ignoring that lineup, do you understand what I mean, just putting that lineup out, can you tell the jury, independent of that lineup that this is the man that you saw in the office on the day the store was robbed ?”
“A. Yes, sir.”

Mr. O. C. Hare, Manager of the A & P Store was working between the second and third cash registers at the time of the robbery when someone called him to attract his attention. The Assistant Manager in his office also called him. He saw the man at the entrance door with a shotgun and a man standing in the office. He no--ticed that the man in the office was barefooted, wore sunglasses and had a heavy facial growth. He was not able to further identify the man in the office. He positively identified Russell .Hood as the man with the shotgun.

After the robbery he called in the head cashier or accountant and they went through the office safe and the cash registers and found $3,234.14 missing.

Ernest Wimpee, a co-indictee with appellant, Hood and Sandra Shaneyfelt, was called as a witness for the state. He testified that he had known appellant all of his life. That all of them got together at Russell Hood’s trailer on the morning of July 16, 1974, and started drinking beer. They all lived in Gadsden, Alabama. Around four o’clock that afternoon they left Gadsden to go to Talladega to steal beer and take it back to Gadsden and sell it. They found the beer store closed and Sandra drove to the side rear of the A & P Store. He got out and went in the store to get some tomato juice as he had a hangover. While waiting to -be checked out, he saw Hood enter the front door with a sawed-off shotgun and saw appellant in the office of the store pointing a pistol at the man in the office. He saw the man in the office with appellant sacking money. After the robbery they returned to Gadsden where they divided the money.

He further testified that Sandra, was living with Russell Hood on the day of the robbery, and that he was living with a woman by the name of Brenda Gilley. Sandra did not have a driver’s license and he got Brenda’s license and gave it to Sandra. He stated that Hood got the sawed-off shotgun and a 3S7 Magnum and put them under the back seat of Hood’s car just before they left for Talladega. Wim-pee further stated that between Anniston and Gadsden they were stopped by a State Trooper for speeding. That Sandra got out of the car and walked back to the Trooper’s car and he gave her a ticket for speeding in the name of Brenda Gilley and kept the license as a bond for her to come to court to answer the charge for speeding.

This witness further testified that on Sunday prior to appellant’s trial on Wednesday, January 25, 1975, while both he and appellant were in jail, appellant threatened to kill him if he testified against him during his trial. He stated that he had to pass the cell block where appellant was incarcerated and he heard appellant say:

“If I testified, took the stand against him in this trial, that he would see that once we got to the penitentiary that — uh —that he would like to stand and smile and watch me bleed to death when he stuck a knife in my throat.”

On cross-examination Wimpee testified that he had never had a conversation with the District Attorney’s office in which any promises were made to him to get him to testify against appellant. That the only conversation he had concerning his testimony was with the investigating officers and they only asked him if he would be willing to testify in the case and no promises of any kind were made to him. He said appellant was not face to face with him when the threat was made but he knew his voice and he could not be mistaken that appellant threatened to kill him if he testified against him.

Sandra Shaneyfelt was the next witness called by the state-. Appellant questioned the competency of this witness to testify and a voir dire examination was conducted out of the hearing and presence of the jury.

Sandra testified that she had been treated by three doctors in Gadsden from April to August, 1974. That she saw these doctors seven or eight times and the diagnosis was “depression.” That she had never been sent to a mental institution for treatment. She said she was undergoing emotional distress due to a divorce which caused her to “get real down and have crying jigs.” She said, “I was very deeply hurt at the time.”

The court asked her, “Do you recall, in your own mind, the events of Tuesday, July 16, 1974, where it is alleged that the A & P Grocery Store in Talladega was robbed?” The witness answered, “Yes, sir.” The court then ruled that she was competent to testify but the weight of her testimony would be for the jury’s consideration.

In summary, this witness testified before the jury that she was 26 years of age. That she was divorced on July 9, 1974, but had been living with Russell Hood since May of that year. That she had known appellant for about a month and that he often visited the trailer where she lived with Hood and her five children. That after she was arrested and charged with the robbery of the A & P Grocery Store in Talladega, her ex-husband came and got the children.

Her testimony, in the main, corroborated the testimony of Wimpee as to the sawed-off shotgun and the 357 Magnum and the trip to Talladega. That Wimpee gave her Brenda Gilley’s driver’s license and she drove the automobile to Talladega and parked in the A & P parking lot while they robbed the store. On the way back to Gadsden Hood asked if it was agreeable to give Sandra $200.00 for driving them and appellant and Wimpee agreed to this amount. Between Anniston and Gadsden they were stopped by a State, Trooper. She got out of the car and walked to the Trooper’s car and he told her to get in his car. She got in the car and the Trooper asked for her driver’s license and she handed him Brenda Gilley’s license. The Trooper told her he had clocked her speed at 77 miles per hour and wrote out a ticket for speeding. He told her he would have to keep the driver’s license until she came to court to answer the speeding charge.

She further testified that on Monday morning before appellant’s trial on Wednesday they were sitting on a bench in the courtroom and appellant threatened her if she testified against him. According to Sandra’s testimony, “He told me that if I took the stand and told about it, and testified against him, that when — if he got sent off, that this world wouldn’t be big enough for me to hide in because he would get me.”

On cross-examination she testified that she had talked to the officers and with the District Attorney and his assistant. She said her last discussion with the District Attorney was on the day she pleaded guilty. That, “He just told me to tell the truth and that is all, nothing more and nothing less, just tell the truth.”

From the record:

“Q. In the discussion with the District Attorney, did he tell you that if you would testify in this matter he would recommend ten years and not oppose probation ?
A. Yes, sir.
Q. Now, it is all, and everybody is happy.
MR. HOLLINGSWORTH: No, it wasn’t if she testified in this matter. If she pled guilty to the offense. But that’s alright.
Q. Well, I am going to object to his telling us what the agreement was.
MR. HOLLINGSWORTH: It is a matter of court record.
Q. Well, what you told her is not a matter of court record.
MR. HOLLINGSWORTH: Well, the matters effecting this record, the jury is entitled to know.
Q. Well, you can bring it out. Now, between April of 1974, and August, 1974 — well let’s go back. I do want the whole — I want it to be clear to everybody. Let me ask you this. And listen to the question carefully and if it is not right, if it is not what the agreement was, say, no that is not the agreement. Okey/ (sic) Now did the District Attorney tell you that if you would plead guilty that he would recommend ten years and not oppose your probation?
A. Yes, sir, that is what he said.
Q. Alright, now was there any discussion with the District Attorney about your testifying in this matter as opposed to just your pleading guilty ?
A. Yes, sir.
Q. There was?
A. Yes, sir.
Q. Now, what was the discussion about your testimony?
A. Just for me to tell the truth.
Q. Were you encouraged to testify?
A. No, it was left strictly up to me.
Q. Were you promised anything if you would testify?
A. Only that they wouldn’t oppose probation if I applied.
MR. HOLLINGSWORTH:' We would like the record to show that she has a lawyer, Judge and this has been taken up with her and her lawyer in her lawyer’s presence.
Q. Judge, I am not trying to cover up anything as far as the agreement with the District Attorney.
MR. HOLLINGSWORTH: We are not ashamed of anything we did.
Q. If you not in agreement with what she says, then there is really nothing I can do about that.”

Appellant contends that the trial court erred in allowing Sandra Shaneyfelt to testify because she was not mentally competent. Sandra testified that she suffered severe depression because of her divorce. She was not sent to a mental institution because her doctors did not think it was necessary.

The law is well settled in this state that a witness may be partially insane and still be a competent witness if at the time her testimony is offered she is sane, and it is a question for the court, rather than for the jury, to decide whether she is competent. Garret v. State, 268 Ala. 299, 105 So.2d 541; Elrod v. State, 281 Ala. 331, 202 So.2d 539; United States v. McFarland, 371 F.2d 701.

The last witness for the state was Mr. Willy Willis, the State Trooper. He stated he had been employed by the Department of Public Safety for more than ten years. That he was in charge of the northern end of Calhoun County, specifically 431 Highway, on July 16, 1974. That while on duty he observed an Oldsmobile 88, about a ’65 model on the new four-lane part of Highway 431 between Anniston and Gadsden. His radar machine was on and registered the Oldsmobile going at 77 miles per hour. He turned on his blue light and stopped the car. His report showed it to be 8:05 p. m. He observed four people in the Oldsmobile when he pulled it over. The driver was a female and she got out and walked back to his car and met him at the front fender. At this point in the trial the District Attorney had Sandra Shaneyfelt brought into the courtroom to be viewed by Mr. Willis and she then left the courtroom. Mr. Willis then testified that he recognized her as the lady who was driving the Oldsmobile and the woman who came back to his car. He issued a speeding ticket to her in the name of Brenda Sue Gilley which was the name on the driver’s license. He accepted the driver’s license as a bond and released her and she got back in the car and drove away.

At the conclusion of the state’s case, appellant made a motion to exclude the state’s evidence on the ground that a prima facie case had not been proven against the. defendant. The court overruled the motion.

The evidence adduced by the state was sufficient upon which to base a verdict of guilt. Appellant was viewed by two witnesses at close quarters, for several minutes, in the face without disguise, during daylight hours, and the in-court identification was positive and unequivocal. Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100.

There was no error in allowing Sandra Shaneyfelt and Ernest Wimpee, who had given statements to the prosecuting officers and who had agreed to testify against appellant, to testify to threats made against them by appellant if they took the stand against him. This was a bold attempt on the part of appellant to suppress testimony. Ex parte State ex rel Attorney General, Whatley v. State, 209 Ala. 5, 96 So. 605; Sandlin v. State, 25 Ala.App. 311, 146 So. 82; Ellis v. State, 46 Ala.App. 289, 241 So.2d 130.

Testimony of victim of alleged robbery which was offered to establish the identity of the defendant as one of the alleged robbers presented a jury question on that issue. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336; Poole v. State, 53 Ala.App. 156, 298 So.2d 85, reversed on other grounds, 292 Ala. 590, 298 So.2d 89.

The testimony of the State Trooper with reference to the driver’s license being used by Sandra Shaneyfelt was strong corroborative evidence of her testimony as well as the testimony of Wimpee.

In Seawright v. State, 52 Ala.App. 286, 291 So.2d 376, this court said:

“Corroborative evidence necessary to justify admission of an accomplice’s testimony need not be strong or sufficient in and of itself to support a conviction but the only requirement is that it legitimately tends to connect the accused with the offense. A liberal construction is to be accorded the statute requiring that the testimony of an accomplice be corroborated by other evidence. Magouirk v. State, 49 Ala.App. 420, 272 So.2d 625; Cameron v. State, 49 Ala.App. 482, 273 So.2d 242; Moore v. State, 30 Ala.App. 304, 5 So.2d 644.”

Appellant strongly contends that the trial judge’s conduct during the trial was prejudicial to the defendant. He claims that the judge made statements concerning the introduction of a number of photographs into evidence which showed impatience and disfavor for the defendant and affected the outcome of the trial. We quote from the record:

“(Whereupon Defendant’s Exhibit No. 5 for Iden. was received in evidence as Defendant’s Exhibit No. 5. See the next page for this exhibit.)
THE COURT: Do you have any more of those pictures you are going to want to offer in evidence?
MR. CARPENTER: Yes, sir.
THE COURT: Would you just mark them all now and see if you and the District Attorney can’t agree on it.
Q. At this point ?
THE COURT: If you would like to. That is the customary way to speed things up.”

Not by the broadest stretch of one’s imagination can it be said that the above quoted excerpt reflects prejudice or impatience on the part of the distinguished trial judge. Judge Sullivan is one of the most conscientious and outstanding trial judges in this state or elsewhere. No error intervened here. Allen v. State, 290 Ala. 339, 276 So.2d 583.

Even if it could be claimed that the trial judge was in error in the statements he made with reference to the introduction of the photographs, nothing is presented to this court for review. Appellant made no objections and invoked no ruling from the court. Barnett v. State, 51 Ala.App. 470, 286 So.2d 876. Jones v. State, 50 Ala.App. 174, 277 So.2d 920.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction must be affirmed and it is so or'dered.

Affirmed.

All the Judges concur, except CATES, P. J., not sitting.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Roosevelt FINCHER v. STATE.
    6 Div. 853.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.

      Louis Mezrano, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quin-tin Q. Brown, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Fincher was indicted and tried for robbery and the jury fixed his punishment at twelve years in the penitentiary. He was adjudged guilty and sentenced in accordance with the verdict of the jury. He was represented at arraignment and trial by a court-appointed lawyer. He pleaded not guilty. At the time he was sentenced he gave notice of appeal, and he asked that his sentence be suspended. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The victim of the robbery was Lovell Williams, and he testified that on the morning of December 11, 1973, around 8:30 o’clock he went to a neighborhood grocery store in downtown Birmingham and bought a pound of bacon and a can of Pet milk. While walking back to a rooming house where he lived, he had to pass an alley between Sth and 6th Avenues on 16th Street. Two Negroes came out of the alley running toward him. He started running to the place where he lived and as he got on the porch and got his key out of his pocket to unlock the door, appellant grabbed him with his left hand and told him, “This is a stick up.” Appellant had an open knife in his right hand and told Williams he wanted his money. Williams told him he did not have any money. Fincher put his hands in Williams’ pocket but did not find any money. Fincher’s companion, who also had an open knife, searched Williams’ pockets and found two quarters, a nickel and two pennies. He also got Williams’ billfold and found a one dollar bill. This man’s name was Chris Davis.

Fincher told Davis to give him the money and the billfold. Fincher put the money in his pocket and threw the papers in the billfold on the porch. While Williams was picking up his papers, Fincher started kicking him. He kicked him in the mouth knocking out one of his teeth. Both Fincher and Davis fled the scene. Williams had seen both Fincher and Davis before this date, but he only knew Fincher by the name “Roosevelt.”

Williams called the police and reported the robbery. When the officer arrived, Williams was in the street and “hailed him down.” He and the officer learned the men were seen running down 4th Avenue, and they rode around trying to find them but were unsuccessful in locating them that morning.

The robbery occurred at 1611 Sth Avenue North in Birmingham, Jefferson County, Alabama.

Mr. Thomas R. King, a patrolman with the Birmingham Police Department, was the officer who got the call about the robbery and he proceeded to the scene and was flagged down by the victim. He was asked to describe the victim’s condition and replied:

“He had blood around his lips, and a tooth was missing, I believe to the best of my knowledge, and he was holding his side. His clothes were soiled, and he stated he had just been robbed.”

Chris Davis testified in behalf of appellant. He admitted that he was with appellant on the morning of December 11, 1973, and they saw Lovell Williams that morning standing in front of his apartment, that Williams spoke to them in a mumbling voice. They got within four or five feet of Williams, and he smelled strongly of the odor of alcohol. They watched Williams start up the steps to the house where he lived and that he stumbled up the steps and fell. That in his opinion Williams was drunk and probably knocked his tooth out when he fell. He denied that he and Fincher robbed Williams or even touched him.

Prior to Davis’ testimony he had. been tried for this same robbery and Fincher testified in his behalf and the jury convicted him of assault and battery. The jury assessed a fine against him of $500.00 and the trial judge added six months in the county jail as additional punishment.

Appellant testified and his testimony was substantially the same as Davis’. He, too, denied that they robbed Williams or even touched him on the morning of the 11th of December, 1973. That they did not pull knives on Williams and take anything from him. He further testified that he had known Williams for nine years and they were close friends. He said he got within two to three or four feet of Williams that morning and he smelled alcohol on his breath. He saw him stumble and fall on the steps but that fall did not knock his tooth out. He said that tooth had been out eight or nine years. He further stated that Williams was highly intoxicated that morning.

Officer King was recalled for rebuttal testimony. He testified that he talked to Williams on the morning of the alleged robbery and he did not smell the odor of alcohol on his breath and that he definitely was not intoxicated.

The state recalled appellant to the witness stand for further cross-examination. Appellant stated that he was forty years of age and was convicted of grand larceny on March 11, 1959, and was again convicted of grand larceny on July 19, 1960.

The three essential elements of the offense of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away the property of another from his person or in his presence, all of these elements concurring in point of time. Hardin v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, Ala.App., 307 So.2d 59.

There was no motion to exclude the state’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; there were no exceptions reserved to the oral charge to the jury, and there were no adverse rulings on the admission of evidence which contain any merit. In this state of the record nothing is presented to this court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 46 Ala.App. 684, 248 So.2d 583.

This case is due to be affirmed, and it is so ordered.

Affirmed.

All the Judges concur, except CATES, P. J., not sitting.


author: BOOKOUT, Judge.

text:
    Earl K. SIMMONS v. STATE.
    8 Div. 634.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    No appearance for the State.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Forgery in the first degree: nine years in the penitentiary.

The appellant was indicted February 1974 by the Grand Jury of Madison County for forgery. He was adjudged indigent and counsel was appointed. The appellant was tried by a jury and found guilty of forgery in the first degree on January 9, 1975, and the court adjudged the appellant guilty in accordance with the verdict and sentenced him to nine years in the penitentiary.

The State’s first witness, Eddie M. Sid-don, testified that around noon on September 30, 1973, as he was checking the grounds and office of his construction company, he discovered a ladder against a window at the rear of his building. Mr. Siddon, owner of Siddon Construction, further testified that he entered the office and found three checks numbered 502, 503 and 504 missing from the checkbook. Mr. Siddon stated also that the appellant had been employed by his company for approximately one month during the summer of 1973.

Witness Siddon identified the check upon which the indictment was returned (State’s Exhibit 1) and stated that he did not issue it nor give anyone permission to use that check or two others which were stolen. He also stated that he signs his checks as “E. M. Siddon.” The check in question bore the purported signature “Eddie Siddon,” and was issued to Earl K. Simmons.

The State’s next witness was Darrell J. Frank, the bouncer at Fat Harry’s Lounge. Mr. Frank testified that the check marked State’s Exhibit 1 (Check No. 502) was the same check that had been presented to him at Fat Harry’s on a Saturday night in the latter part of September 1973. Mr. Frank testified the check was brought to him by a waitress named Dede and that he told appellant he could not cash the check as he did not have sufficient funds.

Eloise Walters Hill Jones, a waitress at Fat Harry’s, was then called as a witness for the State. Mrs. Jones testified that the appellant gave her a check for $150.00, which she identified as the check marked State’s Exhibit 1, as a loan to pay her rent. Mrs. Jones asked the appellant to endorse the check and he did. Mrs. Jones then took the check to a bank where police were notified because Mr. Siddon had reported the check as stolen.

The appellant testified that he was given the check by Randy Malone, a person he met while working at Siddon’s Construction Company. The appellant testified further that he was given the check in payment of a gambling debt. He denied trying to cash the check at Fat Harry’s, but admitted he gave the check to Dede with instructions to give it to Mrs. Jones. Simmons also testified that he had been convicted in Madison County of a charge of grand larceny of an automobile and buying and receiving or concealing stolen property.

At the close of the trial after having rested, the defense moved for a directed verdict on the ground that there had not been a scintilla of evidence put forth to sustain the allegation that endorsements of Earl K. Simmons or Eloise Hill on the reverse side of the check in question were either altered, forged or counterfeited. The court overruled the motion.

I

It is the opinion of this Court that the State made out a prima facie case under Title 14, § 199, Code of Alabama 1940 (Recompiled 1958) and that the evidence was properly passed upon by the jury.

A case directly in point is Reed v. State, 43 Ala.App. 419, 191 So.2d 258 (1966) in which some unknown person broke into the office of a contracting firm and stole a number of payroll checks. In that case, the defendant Reed took the stand in his own behalf to explain that he had gotten the check in a poker game and was completely innocent. Also on cross examination of Reed, the State brought out prior convictions (burglary and grand larceny) going to his credibility, as was done in the instant case. This Court affirmed the conviction of Reed on almost identical evidence as presented in the instant case. See also: Veasey v. State, 45 Ala.App. 469, 231 So.2d 923 (1970).

In the recent case of Jones v. State, 53 Ala.App. 497, 301 So.2d 260 (1974), this Court in an opinion by Judge Tyson, held that evidence which included testimony of the person in whose name the check was forged and testimony of employees wherein the check was presented was sufficient to sustain a conviction of first degree forgery.

Also in Jones, it is pointed out that the State need not prove that damage or injury resulted from the forgery. Wyatt v. State, 257 Ala. 90, 57 So.2d 366 (1952); Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, cert. denied, 258 Ala. 579, 64 So.2d 102 (1953).

We have carefully examined the evidence presented and find that it clearly supports the conviction. We have reviewed the entire record and find no error therein.

Affirmed.

TYSON, HARRIS, DeCARLO, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: CLARK, Supernumerary Circuit Judge.

text:
    Grady BRANTLEY v. STATE.
    5 Div. 310.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Grady Brantley, pro se.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

This appeal is from a denial of appellant’s petition for habeas corpus.

The petition as originally filed contained lengthy alleged grievances as to petitioner’s treatment on his trial and after conviction and sentence to five years imprisonment on a charge of embezzlement. Petitioner claimed many errors on the part of the trial court on the trial, but the gist of his contentions seems to be that he was denied constitutional rights in that his attorney, appointed for him as an indigent, failed to advise him of his right to appeal; that apparently he did not know of the time limit for an appeal until two or three years after his conviction on April 17, 1972; and that in the meantime he had made efforts by correspondence with the trial judge, the clerk and the court reporter to obtain a transcript of the proceedings upon which he was convicted. On the day of the hearing of the petition for habeas corpus, he amended it by adding that on May 10, 1972, he had interposed a guilty plea in another case, which plea was allegedly “obtained by the State of Alabama with a threat and promise in the presence of two or more witnesses.”

Evidence on the hearing showed that the two convictions were in a court of another circuit of Alabama relatively remote from the court in which his petition was filed and by which his petition was heard, the Circuit Court of Elmore County, a proper court for the filing of a petition for habeas corpus by this convict, as at the time of the filing and hearing of the petition he was serving time at Draper Correctional Center, in Elmore County. Code 1940, Tit. IS, § 6.

It further developed on the hearing that there was a third conviction in a court of the other circuit, each conviction being for embezzlement, and that the sentences totaled ten years. These judgments of conviction and sentence were evidenced on the hearing by certified copies of the official records.

For the hearing of the habeas corpus petition, the court appointed counsel for the petitioner as an indigent, and gave petitioner and his attorney a full hearing, although the trial judge kindly stated, almost at the beginning of the hearing, that petitioner was not pursuing an appropriate remedy for his alleged grievances and that whatever remedy he might have would be in the nature of a petition for writ of error coram nobis.

Evidence presented at the hearing showed conclusively that the circuit court in which each of the three judgments of conviction and sentence was rendered was acting clearly within its lawful jurisdiction in rendering each of the judgments; that petitioner had not become entitled to his discharge by reason of any subsequent act, omission, or event; that the process by which he was imprisoned was not void, was issued in each case under circumstances allowed by law and that he was being detained by legál authority. This meets any claim via habeas corpus that petitioner is illegally imprisoned or restrained of his liberty. Code of Alabama, Tit. 15, § 28; Aaron v. State, 43 Ala.App. 450, 192 So.2d 456 (1966).

Whether any or all of the threefold claim for relief can be successfully vehicled by a petition for writ of error coram nobis is not for us to say at this time, but we think it appropriate to call the attention of appellant, who appears here pro se, to the proper forum for such an effort, the court in which the particular judgments of conviction and sentence were rendered. Strange v. State, 52 Ala.App. 531, 294 So.2d 779. It would not have been appropriate for the court below to have granted petitioner’s request for relief by whatever form or name presented.

The judgment of the trial court should 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 below is hereby

Affirmed.

All the Judges concur, except CATES, P. J., not sitting.

      . Any contention otherwise is directed solely to action of the trial court, or action subject to its supervision and control, as to the conviction and sentence in the case constituting the sole basis for the petition before its amendment. Even though such action followed the date of petitioner’s “original conviction,” it was still within the time (six months at least) during which the jurisdiction and control of the trial court as to questions related to defendant’s right to an appeal (the appointment of counsel on appeal and defendant’s entitlement to a free transcript) continued. As to this, as otherwise indicated in this opinion, a court of concurrent jurisdiction has no control. The field of application for the statutory provision permitting habeas corpus relief by reason of an occurrence after an original lawful imprisonment is outlined in Ex parte Nations, 42 Ala.App. 128, 154 So.2d 762 (1963), by illustrations of (1) established performance of the terms of a convict’s imprisonment and (2) a pardon.


author: TYSON, Judge.

text:
    Theodis KENDRICK, alias v. STATE.
    3 Div. 367.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Sam W. Taylor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the unlawful assault with intent to ravish one Shelbie M. Howard. The jury found the appellant “guilty of assault with intent to ravish,” and fixed punishment at six years imprisonment. The trial court then entered judgment in accordance with this verdict.

Connie Jean Hill testified that she was fourteen years of age at trial, and was thirteen years of age on May 19, 1974, when she and Shelbie M. Howard, another thirteen year old girl, went walking shortly after the noon hour in Riverside Heights, Montgomery, Alabama, across the railroad tracks toward a small store. She testified that the two girls went to the store, bought some orange juice and Fritos, and were walking back when they were accosted by the appellant, Theodis Kendrick. She testified that the appellant made both girls go behind some warehouses and into a large crate box, that he made each girl disrobe to her panties, leaving their clothes on the railroad track. Connie Jean Hill then told of the sexual assault on her person by the appellant, stating that he struck her over the eye with a stick before placing his private parts in her private parts, after removing her undergarments. She testified that the appellant also struck Shelbie M. Howard across the face with his hand, then grabbed her by the arm before he picked up his pants and ran away.

Shelbie Mae Howard testified that she lived at 709 Robinson Street in Montgomery, and was fourteen years of age at the time of trial. She testified that she was thirteen years of age on May 19, 1974, and that she was attending Baldwin Junior High School. She testified that Connie Hill was a friend of hers, and that about 1:00 on the afternoon of May 19, 1974, the two girls left her home in the Riverside Heights section of Montgomery, walking down Clayton Street toward a store. She testified that they went in the store, bought some orange juice and Fritos, and continued down Clayton Street when the appellant began following them. She testified that the appellant grabbed her by the hair, and grabbed Connie by the arm, then told them to accompany him into a warehouse area. She stated that he made both girls pull off their clothes except for their panties, then go into a large box where he placed his private parts in Miss Hill’s private parts after striking her with a stick. He also struck Miss Howard across the face with his hand and shook her by the hair. She testified that after the appellant ran away, the girls went out, got their clothes, and went to where a white lady was in an apartment nearby and asked her to call the police. She testified that she then went to the Montgomery Housing Authority office on Bell Street and told her cousin, who worked there, about the assault on each of them by the appellant. She testified that she had previously identified the appellant at a police lineup at City Hall, and also at a prior trial.

Montgomery Police Sergeant J. C. Cunningham testified that he was on duty on May 19, 1974, and that he received a police radio dispatch to go to 303 Riverside Drive where he met two young girls, named Connie Jean Hill and Shelbie Mae Howard. He testified that he talked with them on this afternoon, and that they described an assault on themselves. He testified that he also went to St. Margaret’s Hospital as a part of his investigation. He testified that 'he went to the scene where the large moving crates were, at a warehouse, and found a pair of purple panties, a pair of knit panties, and a small bra, which he identified as having been found at the scene in question.

Montgomery City Detective Cody R. Wood testified that he had an oral interview, on May 24, 1974, with the appellant, after first giving him a Miranda and pre-Miranda warning. The appellant signed a “waiver of rights” form, and when he was asked why he assaulted Miss Howard, he replied that “it was too embarrassing to talk about, that he did not intend to hurt anyone, and that he did not want his foreman to find out about it.”

Appellant’s motion to exclude the State’s evidence was overruled.

The appellant testified that he was twenty-two years of age at the time of the alleged assault, that he was working at the Kimball Furniture Company in Montgomery, and was living at the Salvation Army Headquarters. He testified that on the date of the alleged assault, Sunday, May 19, 1974, he had been with a friend of his, one Willie Brassell, that after attending church services at the Salvation Army, they went by a store, bought some cigarettes, then drove out in a friend’s car and picked up a friend whom they took to the Greyhound Bus Station. He testified that they went by the Pekin Theatre, then later went back by the Salvation Army office where they met some friends. He admitted that he had a conviction for grand larceny from Morgan County, and on cross-examination admitted that he had been tried and convicted of the rape assault on Miss Hill. He denied ever having seen either of the girls before, stating that the first time he saw them was when they were at Police Headquarters at City Hall, and that he had never assaulted either of them, or made them take off their clothes, or touched them.

I

The appellant asserts two grounds as a basis for reversal of this cause. He first contends that during the argument the following statement of the District Attorney-constituted reversible error under the case of Woods v. State, 19 Ala.App. 299, 97 So. 179, the statement in question appearing on record, page 92, and reads as follows:

“. . . I would not ask you to send an innocent man to the penitentiary.”

The appellant’s motion for mistrial was overruled by the Court on the basis that such was merely argument of the counsel, and not an opinion.

In Cranmore v. State, 41 Ala.App. 276, 129 So.2d 121, former Presiding Judge Price observed:

“Defendant objected to the following statement of the solicitor during argument: T never did ask you to convict a man I believe to be innocent.’ The court overruled the objection. Counsel excepted and moved for a mistrial. We think the statement was a mere expression of opinion by the solicitor that the defendant was guilty, and was not a cause for reversal under the following authorities: Griggs v. State, 21 Ala.App. 530, 109 So. 611; Bruce v. State, 22 Ala.App. 440, 116 So. 511; Tucker v. State, 28 Ala.App. 492, 188 So. 276.”

We do not view the District Attorney’s argument in the same light as the appellant. Under Cranmore, supra, and Ross v. State, 46 Ala.App. 88, 238 So.2d 887, and Owens v. State, 51 Ala.App. 50, 282 So.2d 402, such statement as was here made is clearly not grounds for reversal. The statement in question was simply argument and not the opinion of the District Attorney, and was so understood by the trial court in its statement overruling the motion for mistrial. ' Thus, no eror was shown.

II

Appellant next asserts that the following, which occurred during the appellant’s attorney’s closing agument, constitutes reversible error [R. pp. 86 and 87]:

“MR. TAYLOR: Am I putting up a smoke screen? Am I telling it wrong from what they said? That’s what they said. This little lady Contradicted Connie and contradicted herself. And if we had given her more time, she would have contradicted herself a good deal more than that. But it wasn’t any use in going any further to press the matter. There is some serious doubt, I think, whether he put his hands on her or not.
“Now, if Your Honor please, this man crept over here and stood behind me while I was arguing this case to the jury, and he has made a comment, Your Honor.
“THE COURT: Well, wait just a minute, Mr. Bailiff. Did he make a comment? Did any of you jurors hear what he said ?
“MR. TAYLOR: He surely did. He was trying to comment on the evidence, Judge, and I move for a mistrial.
“THE COURT: I’ll hold him in contempt if the jurors heard anything he said.
“MR. TAYLOR: Judge, he is here with the same purpose as his daughter is, to get a conviction by hook or by crook.
“THE COURT: Wait a minute.
“MR. TAYLOR: If Your Honor please, ■I desire to inquire the identity of this man that crept up behind me and made this remark.
“THE COURT: Mr. Bailiff, who is that fellow? Tell this to Colonel Taylor.
“MR. BAILIFF: Arthur Howard, Jr.
“THE COURT: Go ahead with your argument.
“MR. TAYLOR: The prosecutrix Shel-bie Howard. Judge, I wish to inquire is this the father of this young lady ?
“THE COURT: I don’t think that you can go into that.
“MR. TAYLOR: Judge, we’re going to move for a mistrial. I don’t want these jurors to be influenced.
“THE COURT: Well, the jurors said that they didn’t hear anything that he said.
“MR. TAYLOR: Judge, they know who he is, and they know he is creeping around this courtroom.
“THE COURT: Well, that doesn’t make any difference, if they do know. They know who you are too, and they know who I am.
“MR. TAYLOR: All right, sir. Well, sir, I want it on the record, Your Honor, that we do move for mistrial on the grounds that this intimidation of the jurors—
“THE COURT: Overruled.”

In Howard v. State, 273 Ala. 544, 142 So.2d 685, Mr. Chief Justice Livingston noted:

“Generally, it is not an abuse of the trial judge’s discretion to deny a new trial in cases where the members of the victim’s family have sat within the bar of the court or within view of the jury and wept quietly, sobbed aloud, or even fainted. Swindle v. State (27 Ala.App. 549, 176 So. 372), supra; Davis v. State, 222 Ala. 285, 131 So. 900; Hanye v. State, 211 Ala. 555, 101 So. 108; Wyres v. State, 32 Ala.App. 630, 29 So.2d 155; Duff v. State, 40 Ala.App. 80, 111 So.2d 621, certiorari denied 269 Ala. 696, 111 So.2d 627.”

In the case at bar, the jurors indicated that they did not hear any of the alleged comment made by the prosecutrix’ father, Mr. Howard. Moreover, as the trial court noted, the jury was entitled to know of his presence within the courtroom, just as they were entitled to know who the interested parties were in the litigation.

Under these circumstances, we are of the opinion that the trial court properly overruled the appellant’s motion for a mistrial, and there was no abuse of discretion in allowing the father of the victim to be present in the courtroom during the attorney’s closing argument. Brodka v. State, 53 Ala.App. 125, 298 So.2d 55, and authorities therein cited. Cranmore v. State, supra.

Ill

At the conclusion of the trial court’s oral charge, the appellant announced “satisfied.” The trial court then gave eleven of the written requested charges, denying only three charges, affirmative in nature. Clearly, this was proper under the evidence. Title 7, Section 273, Code of Alabama 1940.

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

Affirmed.

HARRIS, DeCARLO, BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


text:
    Emanuel SPIVEY v. STATE.
    3 Div. 347.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Craig Miller, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and J. Brent Thornley, Asst. Atty. Gen. for the State.
   TYSON, Judge.

The indictment (omitting formal parts) is as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, EMANUEL SPIVEY, whose name is to the Grand Jury otherwise unknown, did falsely pretend to Stanley Caldwell, the agent, servant, or employee of S. S. Kresge Company, a corporation, with intent to defraud that he had on deposit with City Bank of Tuskegee, Tuskegee, Alabama, the sum of Fifty-four and 87/100 ($54.87) Dollars, and by means of such false pretense obtained from the said S. S. Kresge Company, a corporation, money or merchandise, or money and merchandise of the value of $54.87, against the peace and dignity of the State of Alabama.”

The appellant waived arraignment and entered a plea of not guilty. Thereafter, the appellant, prior to trial, filed a motion asserting that this prosecution for the offense of false pretense was a denial of due process and equal protection of law since the offense in question constituted the giving of a worthless check, a misdemeanor. There were three continuances granted at the request of the appellant, and thereafter the cause came on for trial on August 1, 1974. The Jury found the appellant guilty as charged. The trial court then entered its judgment, setting sentence at fifteen months imprisonment in the penitentiary.

Bruce T. Nilsson testified that he was the security manager for the K-Mart store on the Southern By-Pass in Montgomery, Alabama. He testified that he was on duty on December 12, 1972, and observed the appellant browsing about in the Automotive Parts Department of the store. He testified that he saw the appellant write out a check in the amount of $54.87 and present it for payment; that this check was drawn on the City Bank of Tuskegee. He testified that the check, being in excess of $50.00 had to be approved by Mr. Caldwell, the manager of the department, that he did so, and the same was deposited in the due course of business.

Mr. Nilsson further testified that on two occasions he telephoned the appellant and asked that he come by and make the check good as it had been returned from the bank, marked “No Account.” He testified that on one occasion the appellant came by and made a $20.00 payment.

James L. Chambers, Jr. testified that he was an assistant cashier of the City Bank of Tuskegee, Alabama. He testified that he examined the ledger sheets on the account of one Emanuel Spivey, and that on June 20, 1972, the account was .22$ overdrawn. He further testified that two checks, one on July 26, and one on July 28, were paid by the bank, which brought the account to the sum of $4.94 overdrawn. He testified there was no activity on this account from late July, 1972, until December 1, 1972, when the bank then deposited $4.94 to Emanuel Spivey’s account and marked this amount off for bad accounts and closed the account. He testified the bank duly notified Mr. Spivey that his balance was zero, and that the account was closed as of December 1, 1972.

On cross-examination, Mr. Chambers testified that after December 1, 1972, no checks were honored by this bank on the account of Emanuel Spivey.

Lewis King testified that he was a detective for the City of Montgomery, Alabama, and on Wednesday, February 6, 1974, he drove to Tuskegee, Alabama, and there presented the appellant, Emanuel Spivey, with a warrant for his arrest. He testified that he gave him a Miranda warning, and then placed him in the automobile and drove him back to Montgomery. He testified that he read to him from a “Miranda Card” and also advised him that he did not have to give any statement, that he did not threaten him, nor did anyone in his presence threaten him, and that there had been no inducement, coercion or other intimidation to obtain a statement from the appéllant, Mr. Spivey. He testified that, while talking with the appellant at Police Headquarters in Montgomery, at the station office, the appellant admitted giving the check in question to K-Mart, which had been returned by the bank, indicating the 'account was closed.

The appellant then moved to exclude the State’s evidence, stating that the State failed to prove a prima facie case.

The appellant then called the security manager, Mr. Bruce T. Nilsson, to the stand, and he testified that it was not his job to run the cash register at the K-Mart where the check was presented. He testified that he had been on duty in the Automotive Parts Department on the date in question when the appellant presented the check for $54.87, and that he saw him write it out. He saw Mr. Caldwell, the department manager, approve the check, as this was for the payment for merchandise, that any check for more than $50.00 had to be approved by the department manager. He further testified that this was not a payment on an account as that was handled only at the front registers in the front of the store.

The appellant did not testify at trial.

I

The appellant contends that the State here failed to prove a prima facie case and that his motion to exclude and request for affirmative charge should have been given. The offense in question consists of: (1) The pretense. (2) Its falsity. (3) Obtaining property by reason of the pretense. (4) Knowledge on the part of the accused of the falsity of the pretense. (5) Intent to defraud. Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, cert. denied 258 Ala. 558, 64 So.2d 121.

In the case of Young v. State, 155 Ala. 145, 46 So. 580, the Supreme Court made’ this observation:

“And if a person should fraudulently represent a fact to be true, knowing at the time that it is not true, and resorts to the fraudulent representation to obtain money from another, and does so obtain it, he would be guilty of ‘defrauding’ another by ‘deceitful means,’ and we do not doubt he would be guilty of obtaining the money under false pretenses.”

In Eaton v. State, 16 Ala.App. 405, 78 So. 321, this Court stated:

“The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol, or token that the defendant had money on deposit in the bank on which the check was drawn, and if this check was given with the intent to deceive the seller of the goods in this case, and he was thereby induced to part with the title to his property, and the symbol or token was false, and the seller was thereby deceived, the defendant was guilty. The jury by its verdict so determined, as it had the right to do, and we find no reason in the record for disturbing the judgment of conviction.”

We are of the opinion that the State here presented a prima facie case, Eaton v. State, supra, hence, the refusal of the affirmative charge, and the denial of the appellant’s motion to exclude, were proper. Harvey v. State, 41 Ala.App. 300, 130 So.2d 823.

II

Appellant argues that if an offense was committed, it was that of giving a worthless check, a misdemeanor, and that he should have been prosecuted for this, rather than under the false pretense statute. Title 14, Section 209, Code of Alabama 1940.

While the appellant did file a motion in the trial court, asserting this alleged denial of equal protection and due process of law, this matter was not called to the attention of the trial court, nor was a ruling obtained thereon in said court. Such alleged invalidity must be distinctly pointed out. Cooper v. Hawkins, 234 Ala. 636, 176 So. 329.

Where, as here, the alleged unconstitutionality was not considered below, or a ruling obtained thereon in the trial court, there is nothing for this Court to review on this claim of error. Williams v. State, 291 Ala. 505, 282 So.2d 905; Weathington v. Birmingham, 52 Ala.App. 77, 289 So.2d 645, cert. denied 292 Ala. 757, 289 So.2d 649.

III

Under the facts of this case, it is our opinion that the check presented by the appellant was a false token. The Jury, by its verdict determined the presence of the other essential elements of the crime of false pretense as it had a right to do. Authorities herein cited.

We find no error and the judgment is due to be and the same is hereby

Affirmed.

All the Judges concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. William B. DAWSON, III, Respondent.
    No. 46948.
    Supreme Court of Florida.
    July 24, 1975.
    Rehearing Denied Sept. 11, 1975.
    S. Thompson Tygart, Jr., Bar Counsel, James T. Terrell, Jr., Assistant Bar Counsel, Jacksonville, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    William A. Hallowes and Edward M. Booth, Jacksonville, for respondent.
   PER CURIAM.

Pursuant to Article XI, Rule 11.09(3) of the Integration Rule of The Florida Bar, respondent has petitioned for a review of the report and recommendation of a referee appointed in a Bar disciplinary proceeding. The referee has recommended respondent’s disbarment on the grounds that he knowingly received stolen property and knowingly accepted a financial interest in the outcome of a client’s litigation. The referee’s findings of fact on these two charges essentially show:

1. that respondent repeatedly made monetary advancements to his clients for purposes unrelated to the conduct of their litigation, and if a client’s case was lost no effort was made to recover the advancements. Respondent’s secretary testified to a “Friday payroll” for a significant number of clients.

2. that respondent received five stolen typewriters, four of which he subsequently purchased, from an admitted thief. Although the thief never told respondent that the typewriters were stolen, the referee found that the price paid was significantly below the market value for like equipment, that the transactions occurred at an unusual hour and location, and that taken together these facts were sufficient to establish that respondent knew or should have known that the merchandise was stolen.

Our independent review of the record on the first charge indicates that there was clear and convincing evidence before the referee to justify his finding that respondent violated Ethical Consideration 5-8 of the Florida Code of Professional Responsibility, which states that a financial interest in the outcome of litigation results if monetary advances are made by a lawyer to his client. The record further substantiates the referee’s recommendation that respondent should be disbarred based on his complete inability to comprehend the responsibility of an attorney admitted to practice in this state.

Our independent review of the record on the second charge indicates that there was sufficient evidence to support the referee’s findings that respondent knew or reasonably should have known that typewriters brought to his home in the middle of the night were stolen property. Because this finding is based in part on circumstantial evidence, however, we would not be inclined to disbar respondent if this were the only offense with which he had been charged. Taken with the other proven charge, however, we believe the public will best be protected if respondent is denied continued permission to engage in the practice of law in Florida.

The report of the referee is adopted and the recommendation of disbarment is approved.

Accordingly, the respondent William B. Dawson, III is disbarred from the practice of law in Florida.

It is so ordered.

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

      . Respondent was previously disciplined for similay misconduct involving money advances to clients. State v. Dawson, 111 So.2d 427 (Fla.1959).


author: ROBERTS, Judge. BOYD, Judge

text:
    Harry LINCENBERG, Petitioner, v. Minnie ISSEN et al., Respondents.
    No. 45696.
    Supreme Court of Florida.
    July 30, 1975.
    Rehearing Denied Oct. 8, 1975.

      Arthur J. Morburger, Alvin N. Wein-stein and Harry D. Bavly of Weinstein & Bavly, Miami, for petitioner.
    Mark Pollack of Whitman & Wolfe, P. A., Miami, for Minnie Issen, and R. Fred Lewis of Kuvin, Klingensmith & Coon, Miami, for Angelo and Eleanor Rhodes, respondents.
    Robert Orseck of Podhurst, Orseck & Parks, and J. B. Spence, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
    Kenneth L. Ryskamp of Bolles, Goodwin, Ryskamp & Welcher, Miami, for Florida Defense Lawyers Assn., amicus curiae.
    Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Luke Rader, M.D. and The Employers Fire Ins. Co., amicus curiae.
    Anne C. Booth of Hall & Booth, Tallahassee, for amicus curiae.
   ROBERTS, Judge.

This 'cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, in Issen v. Lincenberg, Rhodes and Rhodes, reported at 293 So.2d 777 (Fla. App.1974), which conflicts with this Court’s decision in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Succinctly, the facts are as follows:

Minnie Issen sued Eleanor and Ronald Rhodes and Harry Lincenberg alleging that on July 16, 1972, she was a passenger in an automobile owned and driven by the defendant, Harry Lincenberg, which collided with a vehicle owned by Eleanor Rhodes and driven by Ronald Rhodes. Plaintiff was not guilty of negligence, and it was established at the trial that the negligence of each of the defendant drivers was a contributing legal cause of the plaintiff’s injuries. In response to special interrogatories submitted by the trial court, the jury found that as to the negligence of the two drivers, Lincenberg’s represented 15% and Rhodes’ represented 85%, and the jury fixed $20,000 as the amount of damages which plaintiff was entitled to recover. The following special interrogatory verdict form was submitted to the jury:

“1. Was there negligence on the part of the Defendant, HARRY LINCEN-BERG, which was the legal cause of the accident ?
YES V NO
If so, state the percentage (%) of the negligence attributable to Defendant HARRY LINCENBERG.
15_%
2. Was there negligence on the part of Defendants, ELEANOR RHODES and RONALD ANGELO RHODES, which was the legal cause of the accident?
YES V NO _
If so, state the percentage (%) of negligence attributable to these Defendants.
85_%
3. What is the total amount of damages, if any, you find that the Plaintiff MINNIE IS SEN has sustained as a legal result of the accident ?
$20,000.00 (twenty thousand 00/100)
DATE 10-24-73
/s/ William J. Eckerth
FOREMAN”

Being uncertain as to whether the judgment to be entered in favor of the plaintiff should be charged against the defendants in the percentages above-stated or charged in full against the several defendants, the trial judge certified the following question to the District Court of Appeal, Third District :

“Where the plaintiff, in an automobile injury accident case sues two defendants, alleging both to be negligent' resulting in injuries to the plaintiff, is it proper for the trial judge to allow the jury to apportion fault as it sees fit between the negligent defendants, therefore, was it proper in a case wherein the plaintiff sued two defendants, alleging each negligently operated to instruct the jury to apportion fault and submit the foregoing special interrogatories to the jury?”

The District Court answered this question in the negative and opined:

“The doctrine of comparative negligence (Hoffman v. Jones, Fla.1973, 280 So.2d 431) is not applicable between defendant joint tort-feasors. The doctrine is one which is applied between a damage claimant and a defendant (or defendants), that is, in an action where negligence of a plaintiff, on the one hand, and negligence of a defendant (or defendants) on the other hand, have contributed to constitute legal cause of the plaintiff’s injury or loss.
“In the law of Florida (subject to certain exceptions not applicable here) there is no contribution between joint tort-feasors. [Footnote: Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316; Kellenberger v. Widener, Fla.App. 1963, 159 So.2d 267; Westinghouse Electric Corp. v. J. C. Penney Co., Fla.App. 1964, 166 So.2d 211; Aircraft Taxi Co. v. Perkins, Fla.App.1969, 227 So.2d 722; Stembler v. Smith, Fla.App.1971, 242 So.2d 472.] The Supreme Court appears to have recognized the continued existence of that rule notwithstanding adoption of the doctrine of comparative negligence, in Hoffman v. Jones, supra (280 So.2d at 439).
“Moreover, in this case where the plaintiff was not guilty of any negligence contributing to cause her injuries, the doctrine of comparative negligence was not involved. The plaintiff was entitled to judgment against the defendants for the damages awarded to her by the jury verdict.”

This Court granted certiorari to review the instant decision of the District Court because-of the direct conflict with Hoffman v. Jones, 280 So.2d 431 (Fla.1973), wherein this Court adopted the doctrine of comparative negligence.

In Hoffman v. Jones, supra, this Court opined that contemporary conditions must be met with contemporary standards which are realistic and better calculated to obtain justice among all the parties involved, based upon the circumstances applying between them at the time in question and explicitly stated:

“Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on [the] fault premise.
% * * * * *
“When the negligence of more than one person contributes to the occurrence of an accident, each person should pay the proportion of the total damages he has caused the other party.”

Therein, this Court specifically declared that in the field of tort law, the most equitable result that can ever be reached by a court is the equation of liability with fault. Relative to the argument against judicial derogation of common law, this Court in Hoffman, supra, at 435, explained that “Even if it be said that the present bar of contributory negligence is a part of our common law by virtue of prior judicial decision, it is also true from Duval [Duval v. Thomas, 114 So.2d 791 (Fla.1959)] that the Court may change the rule where great social upheaval dictates. It has been modified in many instances by judicial decision, such as those establishing the doctrine of ‘last clear chance’, ‘appreciable degree’ and others.”

Petitioner urges that in view of the rationale of this Court in Hoffman, supra, social policy and equity dictate • that this Court adopt a rule of apportionment among joint tortfeasors whereby the jury would determine the proportional percentage of causal negligence of each of the joint tortfeasors. The principal contention of respondents is that in Florida there can be no contribution between joint tort-feasors and that the judicial adoption of the principles of comparative negligence does not require a change in the law of Florida to permit apportionment or contribution among joint tortfeasors.

Initially, we are compelled to elucidate on the questioned continued viability and compatibility of the principle of no contribution among joint tortfeasors, a doctrine to which the courts in Florida have been committed in negligence suits although significantly we must note that various exceptions have been created to alleviate the harshness of this rule. See: Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Westinghouse Elec. Corp. v. J. C. Penney Co., 166 So.2d 211 (Fla.App. 1964); Kellenberger v. Widener, 159 So.2d 267 (Fla.App. 1963); Stembler v. Smith, 242 So.2d 472 (Fla.App. 1, 1970); Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.App. 3, 1969); and Stuart v. Hertz, 302 So.2d 187 (Fla.App. 4), Opinion filed September 27, 1974. Pertinent to the exceptions created to the rule against contribution, the Court of Appeals of New York in Dole v. Dow Chemical, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), opined:

“It has been observed that the doctrine of indemnity ‘evolved in the unnatural surroundings of an inflexible rule against contribution’ and that courts have relied on ‘artificial distinctions’ such as ‘active-passive’ and ‘misfeasance-nonfeasance’ (65 Col.L.Rev. 123, 126, op. cit.).
******
“One of the first studies made by the New York Law Revision Commission was on this subject (1936 Report, pp. 703-747) followed almost 20 years later by a further study in depth of the problem, and of the direction of decisional law (1952 Report, pp. 21-63).
“The earlier study noted'the refusal to allow contribution among joint tort-fea-sors was ‘of doubtful validity even in the most extreme case’ (p. 720). The 1952 study observed what seems manifest in the willingness of the court to ameliorate an injustice by the ‘passive-active’ concept, that essentially what had happened is the recognition by the court of a discernible ‘difference in the degree of the wrong committed’ (p. 54).”

The principle of no contribution had its inception in the English case of Merryweather v. Nixan, 8 Term.Rep. 186, 101 Eng.Rep. 1337 (K.B.1799), and was based on the principle “in pari delicto potior est conditio defendentis,” — no man can make his own misconduct the ground for an action in his favor. Adamson v. Jarvis, 4 Bing. 66. The majority of states have receded from this doctrine either by legislation or judicial fiat in view of its inequity and harshness. The rationale for this , change of view is generally explained that principles of justice require that in the case of a common obligation, the discharge of it by one of the obligors without proportionate payment from the others, gives the latter an advantage to which he is not equitably entitled. George’s Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 (1942); Wiener v. United Air Lines, 216 F.Supp. 701 (S.D.Cal.1962). This Court early stated in Love v. Gibson, 2 Fla. 598 (1849), that the principal of contribution does not spring from contract but rather is based on a principle of equity and justice that one person should not be singled out by the creator to pay the whole demand. Pertinent to the question as to whether this Court should recede from the principle of no contribution as the majority of jurisdictions have done and relative to the problems in general created by a change to comparative negligence rule, this Court in Hoffman, supra, explained the purposes of the adoption of the rule to be as follows:

“(1) To allow a jury to apportion fault as it sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury; and
(2) To apportion the total damages resulting from the loss or injury according to the proportionate fault of each party. Hoffman v. Jones, 287 [280] So.2d [431] 439.”

With emphasis, we restate that this Court in Hoffman announced that when the negligence of more than one person contributes to the occurrence of an accident, each should pay the proportion of total damages which he has caused the other party. The same rationale eliminates justification for the no contribution principle and dictates that this rule be abolished. Cf. Orr v. United States, 486 F.2d 270 (5th Cir. C.A.1973); Tampa Electric Co. et al. v. Stone & Webster Engineering Corp., etc., 367 F.Supp. 27 (U.S.D.C.Fla.1973). There is no equitable justification for recognizing the right of the plaintiff to seek recovery on the basis of apportionment of fault while denying the right of fault allocation as between negligent defendants. Courts in other states which have receded from the doctrine of no contribution have emphasized the unfairness and injustice of placing the entire burden upon the one who happens to be called upon to pay the entire damages where such payment should in justice be shared by another who shared the responsibility for the injury. See Ellis v. Chicago & N. W. Ry. Co. et al., 167 Wis. 392, 167 N.W. 1048 (1918); Rusch v. Korth, 2 Wis.2d 321, 86 N.W.2d 464 (1957); Davis v. Broad Street Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950). In a special concurring to the decision of this Court in Ward v. Ochoa, 284 So.2d 385 (Fla.1973), Justice Dekle relative to the impact of the adoption of a comparative negligence rule on the rule against contribution among joint tortfeasors accurately concluded:

“In any full consideration of the degrees of liability of the parties involved in a single accident, it now seems essential to a complete disposition of the relative claims, that we remove the limitation imposed by the rule against the division of liability among joint tortfeasors. A further reason supporting such discontinuance of the rule, in view of the change in the law, is the fact that in most instances tortfeasors are financially reliable through insurance coverage. This fact eliminates one of the basic reasons for the rule which was to insure a full recovery by an injured party, no matter against which one he had to go for how much.
“In the present posture of the matter, for ‘equal justice’ on a comparative basis, any involved party should be brought into the matter in such position as he actually appears, and the limitation on our own Florida third party practice which stands in the way of this should be revamped accordingly. To continue without this completion of the change over to comparative negligence, is to allow what was a well-intended joint tortfeasor rule to be used unfairly as a tool to avoid complete justice. The object is to have a full and fair evaluation by the jury of the extent of each party’s actual liability.”

Therefore, although this Court has in the past recognized as viable the principle of no contribution, in view of a re-examination of the principles of law and equity and in light of Hoffman and public policy, as a matter of judicial policy, it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault, and for these reasons this Court recedes from its earlier decisions to the contrary.

During the pendency of this appeal, the Legislature passed Section 768.31, Florida Statutes, the Uniform Contribution Among Joint Tortfeasors Act, which was signed into law by the Governor on June 13, 1975, which Act took effect upon becoming law. This Act provides that it shall apply to all causes of action pending at the time of its passage wherein the rights of contribution among joint tortfeasors are involved and cases filed after the effective date of the law.

Having established that “no contribution” is no longer a viable principle in Florida, we were confronted with the problem of determining what procedure will most fully effectuate the principle that each party should pay the proportion of the total damages he has caused to the other party, and we considered several alternatives. However, since Section 768.31 became effective during the pen-dency of this cause, the procedure adopted therein by the Florida Legislature relative to contribution among joint tortfeasors applies sub judice. The Act retains the full, joint, and several liability of joint tort-feasors to the plaintiff, and provides for contribution between them on a pro rata basis. In determining pro rata shares of the tortfeasors in the entire liability, this law provides:

“(a) Their relative degrees of fault shall not be considered;
“(b) If equity requires the collective liability of some as a group shall constitute a single share; and
“(c) Principles of equity applicable to contribution generally shall apply.” (emphasis supplied)

The trial court by allocating damages on the basis of percentage of fault acted inconsistently with the new law since said act specifically provides for contribution on a pro rata basis with the relative degrees of fault not to be considered. Relative to pro rata shares, the Commissioner’s comment to the “Uniform Contribution Among Tortfeasors Act” provides in pertinent part:

“This section in positive terms resolves several difficult questions of policy.
“First, it recognizes and registers the lack of need for a comparative negligence or degree of fault rule in contribution cases. As stated in the comments on subsection 1(c) the exclusion of intentional, wilful and wanton actors from the right to contribution eliminates the better arguments for a relative degree of fault rule. Only Arkansas, Delaware, Hawaii and South Dakota apply such a rule in contribution cases.
“Second, it invokes the rule of equity which requires class liability, including the common liability arising from vicarious relationships, to be treated as a single share. For instance the liability of a master and servant for the wrong of the servant should in fairness be treated as a single share. Other examples are those situations involving co-owners of property, members of an unincorporated association, those engaged in a joint enterprise and the like; where the problem is the allocation of liability between such a group on the one hand and a tortfeasor having no connection with the group. It adopts the equitable principle involved in the case of Wold v. Grozalsky, 277 N.W. [N.Y.] 364, 14 N.E.2d 437 (1938), where the plaintiff was injured by the collapse of a party wall between two buildings. One building was owned by A, the other jointly by B and C. It was held that B and C were liable each for only one-fourth of the entire liability, rather than one-third. Another case is Walsh v. Phillips, New York Supreme Court, Niagara County, July 3, 1952, where one contributor was an unincorporated association, and its numerous members were held liable in the aggregate only for a single share.”

While special verdicts such as that utilized by the trial court, sub judice, on the degrees of fault are not dispositive of the issue of contribution in view of Section 3(a), such special verdicts may be desired and of assistance to the trial judge in performing his equity responsibility under Section 3(c). To that end -and for that purpose only, the trial judge may in his discretion request special verdicts on the degrees of fault. These special verdicts if employed for equity considerations under Section 3(c) would be a determination on a vertical basis of the liability as between plaintiff and the several defendants and horizontally among the multi-party defendants. Vertical apportionment to be determined by the jury is explained in Hoffman, supra, as follows:

“If plaintiff and defendant are both at fault, the former may recover, but the amount of his recovery may be only such proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant. For example, where it is found that the plaintiff’s negligence is at least equal to that of the defendant, the amount awarded to the plaintiff should be reduced by one-half from what it otherwise would have been.”

The plaintiff is entitled to a measurement of his full damages and the liability for these damages should be apportioned in accordance with the percentage of negligence as it relates to the total of all the defendants. The negligence attributed to the defendants will then be apportioned on a pro rata basis without considering relative degrees of fault although the multi-party defendants will remain jointly and severally liable for the entire amount.

In view of Section 768.31, Florida Statutes, the question which was certified by the trial court to the District Court of Appeal should have been answered in the negative although not for the reasons stated by the District Court of Appeal. The trial judge inquired as to whether it was proper for him to apportion fault as it sees fit between the negligent defendants. Since contribution will be determined on a pro rata basis as above-described, the determination of percentage of fault is not necessary.

The Act further provides that the right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability and his total recovery is limited to the amount paid by him in excess of his pro rata share and provides that there is no right of contribution in favor of any intentional tortfeasor. The method of enforcement of contribution is explicitly set out in subsection (4) of the Act which provides, inter alia, that the judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution and further provides:

“(b) Where a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action,”

Accordingly, for the foregoing reasons and in view of the newly enacted Uniform Contribution Among Joint Tortfeasors, the decision of the District Court of Appeal, Third District, is quashed and the cause remanded with directions to remand to the trial court.

It is so ordered.

ADKINS, C. J., and McCAIN and OVERTON, JJ., concur.

BOYD, J., concurs specially with an opinion.

BOYD, Judge

(concurring specially).

Because the new statute cited in the majority opinion prevails in this matter, I would not include language relative to proposed changes in judicial policy considered by the Court in this case prior to the enactment of the statute.

As enacted, Section 768.31(3), Florida Statutes, provides:

“(3) Pro Rata Shares. — In determining the pro rata shares of tortfeasors in the entire liability.
“(a) Their relative degrees of fault shall not be considered;
* ‡ , ‡ * *
“(c) Principles of equity applicable to contribution generally shall apply.”

There seems to be conflict between the two above-stated provisions in the statute. It is the duty of courts to construe statutes in such fashion so as to achieve legislative intent wherever possible and to hold the statute constitutional. I would therefore hold that the two sections considered together would require the relative degrees of fault of joint tortfeasors be considered by the jury and court in fixing liability, thereby achieving an equitable result as contemplated in the statute.

      . Ark.gtat.Ann. §§ 34-1001 to 34-1009 (1947 Supp.1959); Cal.Civ.Proc. §§ 875-880; Augustus v. Bean, 56 Cal.2d , 270, 14 Cal.Rptr. 641, 363 P.2d 873 (1961); Del. Code Ann. Tit. 10, §§ 6301-6308; George’s Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 (1942); Knell v. Feltman, 85 U.S.App.D.C. 22, 174 F.2d 662 (1949); Ga.Code Ann. § 105-2012, §§ 6-803 to 6-806; Hawaii Rev.Laws §§ 663-11 to 663-17; Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); McKinney v. Miller, 204 Kan. 436, 464 P.2d 276 (1974); Ky.Rev. Stat. § 412.030; La.Civ.Code Ann., Arts. 2103 to 2105; 14 Maine Rev.Stat.Ann. § 156; Packard v. Whitten, 274 A.2d 169 (Me. 1971); Md.Ann.Code, Art. 50, §§ 16-24; Mass.Gen.Laws Ann., Ch. 231; Mich.Stat. Ann. § 27A.2925, M.C.L.A. § 600.2925; Duluth M. & N. R. R. v. McCarthy, 183 Minn. 414, 236 N.W. 766 (1931); Lloyds v. Smith, 166 Minn. 388, 208 N.W. 13 (1926); Miss. Code Ann. § 335.5; Mo.Ann.Stat. § 537.060; New Hampshire Rev.Stat.Ann. § 507:7-a; N.J.Stat.Ann. § 2A :53A-1-5; N.M.Stat.Ann. §§ 24-1-11 to 24-1-18 (1953); N.Y.Civ. Prac. Act Ann. § 211-a; Dole v. Dow Chem. Co., etc., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288; Gen.Stat. of N.C. Ch. § 1B-1 to § 1B-6 (1969); N.D.Cent.Code Ch. 32-38 — 01-04; Pa.Stat.Ann., Tit. 12, §§ 2082-2089; R.I.Gen.Laws Ann. §§ 10-6-1 to 10-6-11; S.D.Code §§ 33.04 A01-33.04 A10; Tenn.Code Ann. §§ 23-3101 to 23-3105; Davis v. Broad St. Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950) ; Huggins v. Graves, 210 F.Supp. 98 (E.D.Tenn.1962); Vernon’s Texas Rev.Civ.Stat.Ann. Art. 2212; Va.Code Ann. § 8-627; W.Va.Code § 55-7-13; Buskirk v. Sanders, 70 W.Va. 363, 73 S.E. 937 (1912); Wisc.Stat.Ann. § 133.01 to 113.-10; Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); Wyoming Stat. § 1-7.3— 1-7.6 (1973 Supp.); Gomes v. Brodhurst, 394 F.2d 465 (3d Cir. [VI] 1968) — Virgin Islands.

       The constitutionality of this new law is neither presented, argued, nor decided in these proceedings.

      . We considered pure apportionment whereby plaintiff or plaintiffs may recover judgment against a defendant or defendants only for the percentage of damages caused by the negligence of each defendant individually which rule is best evidenced by the New Hampshire statutory provision relative to contributory negligence — New Hampshire Rev.Stat.Ann. § 507:7-a — which provides, in pertinent part:
      “ . . . provided that where recovery is allowed against more than one defendant, each such defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The burden of proof as to the existence or amount of causal negligence alleged to be attributable to a party shall rest upon the party making such allegation. This section shall govern all actions arising out of injuries and other damages sustained on and after August 12, 1969, and none other.”
      Cf. Vermont Stat.Ann. Title 12, § 1036, and considered a rule of contribution as adopted by the Supreme Court of Wisconsin in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), whereby the multi-party defendants remain jointly and severally liable to the plaintiff for the full amount of plaintiff’s damages but any defendant may seek contribution according to the proportionate percentages of causal negligence of the other defendant or defendants. By this decision in Bielski, supra, the Wisconsin court determined that the right of a tortfeasor to contribution is not barred because his negligence may be equal to or greater than the negligence of his eo-tort-feasor. Succinctly, the Wisconsin Court announced the following principle of contribution as the applicable doctrine to be applied in multi-party defendant situations:
      “After considerable study and careful consideration of the first problem and of the consequences of a change or modification of the present rule, we conclude the amount of liability for contribution of tortfeasors who sustain a common liability by reason of causal negligence should be determined in proportion to the percentage of causal negligence attributable to each. We make it plain at the outset, this refinement of the rule of contribution does not apply to or change the plaintiff’s right to recover against any defendant tortfeasor the total amount of his damage to which he is entitled. Likewise, we point out that sec. 331.-045, Stats., has no application to the doctrine of contribution.”
      See also: State Farm Mutual Automobile Ins. Co. v. Schara, 56 Wis.2d 262, 201 N.W.2d 758 (1972); Wurtzinger v. Jacobs, 33 Wis.2d 703, 148 N.W.2d 86 (1967); Pachowits v. Milwaukee & Suburban Transp. Corp., 56 Wis.2d 383, 202 N.W.2d 268; Williams v. Milwaukee & Suburban Transp. Co., 37 Wis.2d 402, 155 N.W.2d 100 (Wis.1967); Newberger v. Pokrass, 33 Wis.2d 569, 148 N.W.2d 80 (1967). Cf. Dole v. Dow Chemical Company, supra.

      . (2) Right To Contribution. — •
      (a) Except as otherwise provided in this act, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
      (b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.

      . Uniform Laws Annotated, Civil Procedural and Remedial Laws, Master Edition, West Publishing Co., 1975.


text:
    Aaron Dennis CARROLL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 45967.
    Supreme Court of Florida.
    June 25, 1975.
    Rehearing Denied Oct. 13, 1975.
    James M. Russ, and Michael F. Cycman-ick, Law Offices of James M. Russ, and Charles J. Cullom, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen R. Koons, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed.

ADKINS, C. J., ROBERTS, OVER-TON and ENGLAND, JJ., and HENSLEY, JOANOS and MELVIN, Circuit Judges, concur.


text:
    THE FLORIDA BAR, Complainant, v. Kenneth M. ABAGIS, Respondent.
    No. 46790.
    Supreme Court of Florida.
    June 4, 1975.
    Rehearing Denied Sept. 10, 1975.
    Charles S. Williams, Jr., Bar Counsel, Pensacola, and David G. McGunegle, Assistant Staff Counsel, Tallahassee, for complainant.
    Kenneth M. Abagis, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Kenneth M. Abagis is before us on complaint of The Florida Bar, Report of the Referee, and Petition for Review by Respondent, Abagis.

After hearing on the complaint of The Florida Bar and consideration of the pleadings, exhibit's, and evidence, the Referee found as follows:

“1. The respondent, Kenneth M. Aba-gis, is and at all pertinent times was a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
“2. The Complaint was filed by The Florida Bar upon the direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
“3. The respondent was retained by Mr. and Mrs. James A. George on or about February 12, 1972 to represent them in an attempt to recover damages for termite destruction of their home from Better Homes Realty, who had recently sold them their home, or from other parties liable; and the respondent at that time was associated with the Pensacola law firm of Levin, Warfield, Graff, Mabie & Rosenbloum.
“4. The respondent contacted Better Homes Realty and the former owners (Hines) by letters and' received replies declining reimbursement or damages for termite destruction of said home; the clients deposited the sum of $150.00 on account of a $300.00 attorney’s fee on June 6, 1972; and that in December of 1972 when James A. George was transferred to South Carolina by the United States Navy, no suit had been filed and no effective action taken on behalf of the clients, although the clients asked the respondent in September of 1972 to conclude the case before the transfer of James A. George in December of 1972.
“5. The respondent, on the 19th day of December, 1972, the day that the clients were vacating and moving from the home to South Carolina, executed an agreement with the clients wherein he agreed to make the mortgage payments of $126.16 per month until the property was sold, commencing with the payment due 1 January, 1973; to rent the property and endeavor to sell it at no less than $18,500.00 clear to the clients, all rents to be applied against the mortgage payment; to cause the home to be termite proofed and repaired, with the costs to be paid by the respondent who had the right to sue any person, including Better Home Realty, Inc. and the former owners ; and to assume responsibility for damage not covered by homeowner’s insurance with right to sue and collect damages, and a contingent fee over and above the sale price of $18,500.00 and costs incurred.
“6. The respondent made one (1) or at most, two (2) mortgage payments (see Closing Statement) and then ceased making mortgage payments, and as a result a foreclosure action was initiated against the clients.
“7. Although in a letter dated January 15, 1973 (Exhibit “C” of Respondent’s Exhibit #1), the respondent indicated that there would be a hearing in the Circuit Court on 12 February, and that Better Homes had made a Motion to Dismiss based upon the Termite Inspection Certificate, but he would keep the clients informed of the trial results, no case had been filed as of January 15, 1973, nor was a case filed; and although respondent indicated that a realtor was showing the home and the respondent expected to get a buyer soon, the exclusive right to sell listing was not entered into until February 14, 1973, as shown by Exhibit “F” of Respondent’s Exhibit #1.
“8. The respondent opened his own office as single practitioner in about November of 1972.
“9. The respondent introduced into evidence at the Grievance Committee hearing a copy of a letter bearing the date of January 18, 1973, the original copy of which is filed herewith, purporting to notify the clients that the evidence to show that the termite damage existed at the time the clients purchased the property did not exist; that the respondent would not file suit, and that the clients could get another attorney; that the respondent would continue to try to sell the home, but would make no more mortgage payments after February; and that if the respondent did not hear from the clients, he would continue to try to sell the house. Although the respondent testified that the letter was written in longhand, typed by Jeannie Lucas and mailed to his clients, Jeannie Lucas, by her deposition, denied typing the letter of January 18, 1973, and the client, James A. George, did not receive the original of said letter. The letter dated January 18, 1973 was not typed by Jeannie Lucas and was prepared and presented to mislead the Grievance Committee (original file copy in record).”

The Referee recommends that Respondent be found guilty of:

(1) Having violated Disciplinary Rule 5-103(A) and (B) — Avoiding Acquisition of Interest in Litigation — in that by drafting and executing the agreement dated December 19, 1972, between the Georges and Respondent, Respondent acquired a proprietary interest in the cause of action.

(2) Having violated Disciplinary Rule 6-101 (A)(1) — Failing to Act Competently —by failing to effectively represent the interest of his clients.

(3) Having violated Disciplinary Rule 7-101 (A) (3) — Representing a Client Zealously — by failing to make the mortgage payments he had agreed to make, Respondent prejudiced the credit standing of his clients, and caused them monetary damage.

(4) Having violated Integration Rule 11.02(3) (a) — Breaches of Discipline — Moral Conduct — Standards; and having violated Disciplinary Rule 1-102(A)(4) — Misconduct — in that by misleading his clients and by introducing false evidence at the Grievance Committee hearing, Respondent engaged in dishonesty, fraud, deceit, misrepresentation and immoral conduct. The Referee recommended the following disciplinary measures relative to the above recommendations of guilty, respectively, (1) public reprimand, (2) public reprimand, (3) suspension for one month, and (4) four months suspension with proof of rehabilitation, all suspensions to run concurrently.

Having heard oral argument, carefully reviewed the record and briefs, we approve the findings and recommendations of the Referee with the following modification to recommendation (4) relative to the four-month suspension: Respondent is suspended for four months and thereafter until he shall have convinced the Chief Judge of the First Judicial Circuit that he has read in depth with understanding the Code of Professional Responsibility and the Chief Judge has certified the same to us.

Execution is directed to issue for the costs of the proceedings against Respondent in the amount of $253.00.

It is so ordered.

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