author:
WALKER, Justice, for the Court.
      SMITH, Presiding Justice,

text:
    Dr. Ralph HUGHES and Mary Ellen Hughes, d/b/a Hughcrest Farms v. COLLEGEDALE DISTRIBUTORS.
    No. 49782.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Dr. Ralph Hughes, pro se.
    Scribner & Brewer, William H. Brewer, Tupelo, for appellee.
   ON PETITION FOR REHEARING

WALKER, Justice, for the Court.

This was an appeal from a judgment of the Circuit Court of Lee County, Mississippi, in favor of Collegedale Distributors in the sum of $1,896.53 against Dr. Ralph Hughes and Mary Ellen Hughes d/b/a Hughcrest Farms. The case was originally affirmed per curiam.

Subsequently on petition for rehearing and after reconsideration, we now withdraw the original per curiam opinion and substitute this written opinion, affirming the lower court.

Collegedale Distributors, a wholesaler of health foods and supplies, brought suit against the Hughes, who purchased health foods for resale on an open account showing a balance due of $1,896.53. The Hughes were doing business as Hughcrest Farms Health Food Store in Tupelo, Mississippi. An itemized account, together with an affidavit to the correctness of the same, was duly attached as an exhibit to the declaration filed by appellee and was made a part thereof.

Appellant, Dr. Ralph Hughes, filed a pleading styled “Affirmative Defense and Answer.” This pleading contained a plea in bar in which the court was requested to dismiss the declaration on the ground that the cause of action was barred by the provisions of Mississippi Code Annotated section 15-1-29 (1972). The circuit court overruled the plea in bar holding that the Uniform Commercial Code’s six-year statute of limitations, Mississippi Code Annotated section 75-2-725 (1972) was applicable and not Mississippi Code Annotated section 15-1-29 (1972), the three-year statute of limitations.

The question on appeal is whether the six-year statute of limitations is applicable on the facts of this case.

Mississippi Code Annotated section 15-1-29 (1972) [the three-year statute] provides:

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after. (Emphasis added).

That portion of section 15-1-29 which reads, “Except as otherwise provided in the Uniform Commercial Code, . . . ” was an amendment thereto in 1966, Chapter 316, section 10-105, and became effective from and after March 31, 1968, the same time as the Uniform Commercial Code.

The Uniform Commercial Code is now the controlling law in this State insofar as the sale of goods is concerned. The case at bar involves a sale of merchandise by a wholesaler to a retailer, and the Uniform Commercial Code applies.

The Uniform Commercial Code provision with respect to the statute of limitations on contracts for sale, Mississippi Code Annotated section 75-2-725(1) (1972) [the six-year statute] provides:

An action for breach of any contract for sale must be commenced within six (6) years after the cause of action has accrued.

It is clear that when suit was filed, the Uniform Commercial Code of 1968 was the controlling law in this State insofar as sale of goods is concerned. However, since section 15-1-29 provides coverage specifically for “actions on an open account”, the question arises whether it should be applicable on these facts or whether the language “except as otherwise provided in the Uniform Commercial Code” makes section 75-2-725(1) the applicable statute of limitations.

The Uniform Commercial Code statute of limitations is, by its express terms, applicable to any “contract for sale.” That term is defined in Mississippi Code Annotated 75-2-106 (1972), which provides in part:

(1) In this chapter unless the context otherwise requires “contract” and “agreement” are limited to those relating to the present or future sale of goods. “Contract for sale” includes both a present sale of goods and a contract to sell goods at a future time. A “sale” consists in the passing of title from the seller to the buyer for a price (Section 2-401) [§ 75-2-401]. A “present sale” means a sale which is accomplished by the making of the contract.

The sale in this case consisted of the purchase by the Hughes from Collegedale Distributors and shipment of the goods and merchandise to the Hughes at a certain price. Such a transaction falls squarely within section 75-2-106, and, therefore, the six-year statute of limitations provided for under section 75-2-725 is controlling, and the lower court was eminently correct in its application of the statute. This construction is further strengthened since as pointed out previously, the age-old three-year statute pertaining to, among other things, open accounts and accounts stated not acknowledged in writing, was specifically amended at the time of the adoption of the Code, making it operable “Except as otherwise provided in the Uniform Commercial Code . .

Additionally, Chapter 2 of the Code (Sales) and section 75-2-102 which is concerned with the scope of the chapter and contain exclusions from the Sales chapter provides:

Unless the context otherwise requires, this chapter applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this chapter impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers. (Emphasis added).

Notably, the only statutes then existing which were exempted from the operation of the Code, are those regulating sales to consumers, farmers, or other specified classes of buyers. On the present facts, appellants are neither farmers nor consumers, but a health food business; and the sales transaction was a purchase of goods for the purpose of resale.

Section 75-1-102 entitled “Purposes; rules of construction; variation by agreement” provides, in part, as follows:

(1) This code shall be liberally construed and applied to promote its underlying purposes and policies.
(2) Underlying purposes and policies of this code are
(a) to simplify, clarify and modernize the law governing commercial transactions; .

After carefully considering the above quoted pertinent sections of the Uniform Commercial Code and considering all of the provisions in pari materia, along with section 15-1-29 which was amended as herein-before stated to become effective at the same time as the Uniform Commercial Code, we are of the opinion that it was the intention of the Legislature to exempt consumers and farmers from the six-year statute of limitations, section 75-2-725, and to make applicable to consumers and farmers the shorter statute of limitations provided for in section 15-1-29. There may be other “specified classes of buyers” enumerated within the Uniform Commercial Code sections that come under the three-year statute of limitations, but we have not been cited to, nor are we able to find such other sections.

We therefore hold that on the facts of this case Mississippi Code Annotated section 75-2-725 (1972), the six-year statute of limitations, is the applicable statute.

The cases of Bryan v. Bryan, 323 So.2d 84 (Miss.1975) and McArthur v. Acme Mechanical Contractors, Inc., 336 So.2d 1306 (Miss. 1976) are not applicable in the case at bar since section 75-2-725(1) [the six-year statute] was not urged, argued or briefed in these cases. In the McArthur case, the opinion especially stated that “No issue is raised concerning the Uniform Commercial Code.” (336 So.2d at 1307).

For the foregoing reasons, the relief prayed for in the petition for rehearing should be and is hereby denied and the judgment of the lower court is affirmed.

ORIGINAL PER CURIAM OPINION WITHDRAWN; RELIEF PRAYED FOR IN PETITION FOR REHEARING DENIED; AND THIS WRITTEN OPINION AFFIRMING THE LOWER COURT SUBSTITUTED.

PATTERSON, C. J., and SUGG, BROOM, LEE and BOWLING, JJ., concur.

SMITH,- P. J., and ROBERTSON, J., dissent.

INZER, P. J., took no part.

SMITH, Presiding Justice,

dissenting in part:

I agree with the statement in the controlling opinion that in no event may any part of the Chapter on Sales of the Uniform Commercial Code [which consists of some 224 separate distinct statutory provisions and includes Mississippi Code Annotated section 75-2-725(1) (1972)] be applied to “sales to consumers, farmers or other specified classes of buyers.” This exclusion from the provisions of the chapter is by the express terms of the chapter itself.

I disagree with the conclusion that actions on open accounts as to all classes of persons other than “consumers, farmers or other specified classes of buyers” may be brought within six years rather than within the three-year period provided by section 15-1-29 Mississippi Code Annotated (1972), (section 729 Mississippi Code 1942).

In 1966, when the so-called Uniform Commercial Code was adopted, the statute was amended by the addition of the following prefatory phrase: “Except as otherwise provided in the Uniform Commercial Code, actions on an open account, . . . ” without any other change in the statute whatever and without giving a clue as to what part or provision of it was intended to be amended.

In all other respects the statute remained unchanged. Each of the three distinct categories dealt with by the statute is clearly and separately defined and each falls within a specific category recognized and defined in the jurisprudence of this country. The provisions of section 729 have been in effect for upwards of 100 years and have been construed by this Court in scores of cases.

It is to be noted that section 729 categorically provides a period of limitation in each of the three specifically defined classes of action:

(a) Actions on open accounts;
(b) Actions on accounts stated not acknowledged and signed by the debtor;
(c) Actions on any unwritten contract, express or implied.

As part of the Chapter on Sales of the Uniform Commercial Code adopted in 1966 there appears section 75-2-725(1) (supra), which provides:

Statute of limitations in contracts for sale.
(1) An action for breach of any contract for sale must be commenced within six (6) years after the cause of action has accrued.

Leaving aside the question of the undesirability of extending to six years the period within which actions on open accounts may be brought and presumably, on accounts stated, not signed by the debtor, and any other contract involving a sale, not in writing, as well as the anomalous situation which would be created thereby, that is to say, unwritten, unsigned contracts and accounts would be governed by the same period of limitations as written contracts, executed by the party to be bound, it is obvious that no additional statute was necessary, if it was the legislative purpose to increase the period to six years in these cases. An outright repeal of the open account provision in the existing statute would have sufficed to place the actions dealt with as being within that class of cases governed by the existing general six-year statute [Section 16-1-49 Mississippi Code Annotated (1972)] and this could have been done more easily and more efficiently than providing the introductory amendment “Except, etc.” requiring an unguided and clueless search through the Uniform Commercial Code to find some possible inconsistency.

Section 61 Mississippi Constitution of 1890, provides:

No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.
To amend a statute there must be specific mention in the amendatory act of the statute sought to be amended. State ex rel. Booze v. Cresswell, 117 Miss. 795, 78 So. 770. Seay v. Laurel Plumbing & Metal Co., 110 Miss. 834, 71 So. 9.

The only means by which a statute can be amended (under the constitutional provision quoted) is to specifically mention in the amendatory act the statute to be amended. State ex rel. Booze v. Cresswell, supra.

The statute which it is suggested was amended by the Uniform Commercial Code provision was, in fact, amended only by the adoption of a prefatory phrase: “Except as otherwise provided in Uniform Commercial Code, actions on an open account, etc.” No hint is given as to which of its several parts was in contemplation. No change whatever was made in the body of the statute or in any of its provisions. At the time of the amendment the section prescribed a period of three years in which an action might be brought on an open account and in the other categories of cases dealt with by it, and it clearly and specifically defined these as:

(a) Actions on open accounts;
(b) Actions on accounts stated not acknowledged and signed by the debtor;
(c) Actions on any unwritten contract, express or implied.

It is unnecessary to argue the point that in all three of the above categories, an unwritten contract, express or implied, is involved. For reasons considered by the Legislature to have been sufficient, each class of action was clearly defined and placed in a separate and distinct category by the statute.— Is the Uniform Commercial Code provision as to “Contracts for sale,” without any reference whatever to section 15-1-29 as required by section 61 Mississippi Constitution of 1890, an effective amendment of the latter statute? Apparently it was not intended to be.

In section 75-2-102, which is the second section of the Chapter on Sales of the Commercial Code, the scope and application of the chapter is prescribed and limited:

75-2-102 Scope; certain security and other transactions excluded from this chapter.
Unless the context otherwise requires, this chapter applies to transactions in goods, it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this chapter impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.

It is beyond controversy, therefore, that section 75-2-725, which is also a part of the Chapter on Sales of the Commercial Code, was not intended to apply to open accounts (contracts for sale) where goods are purchased by a consumer for his own use because it says so.

The Legislature, ten years after the enactment of the Commercial Code in 1966, recognized the viability of section 15-1-29 by specifically amending it in 1976, but only by adding yet a fourth class of actions, that is, actions on oral contracts of employment, which it was provided must be brought within one year.

By House Bill 488 Laws of 1976, approved May 25, 1976, the Legislature brought forward and reenacted the whole section 15-1-29 with the additional provision of the one year period of limitation of actions on unwritten contracts of employment. Nothing can be clearer or more certain than that section 15-1-29 has not been repealed but has, in fact, been reenacted in its entirety a full ten years after the adoption of the Commercial Code.

Section 15-1-29 is the Mississippi law dealing with the periods of limitation which govern actions brought on all oral contracts. It expresses a clear legislative policy to require actions in such cases, where no writing exists, to be brought within three years, a relatively short time, in direct contrast to the long-prevailing period of limitations of six years which applies in actions on signed, written contracts. It is possible, of course, to rationalize from this ambiguous situation some sort of proposition that the Commercial Code provision as to “Contracts for sale,” not specifying whether written or oral, contemplates, without saying so, removal from the provision of section 15-1-29 of a single one of the several types of oral contracts then dealt with. No logical reason can be assigned for such a construction. The Uniform Commercial Code provides for the repeal of a great many specific statutes but section 15-1-29 was not one of them. No reference whatever is made in the Commercial Code to section 15-1-29, and it would seem to be more logical to apply the provisions of the Uniform Commercial Code as to “Contracts for sale,” to written contracts only, where the period of limitations is, in fact, six years.

There are literally scores of decisions of this Court declaring that the period of limitations applying in actions on open accounts is three years. The latest, McArthur v. Acme Mechanical Contractors, Inc., Miss., decided September 7, 1976 and reported at page 1306 of 336 So.2d, was decided ten years after section 15-1-29 had been amended by adding the introductory phrase “Except as otherwise provided in the Commercial Code etc.,” and ten years after the adoption of the Commercial Code.

The “Except” amendment was expressly noted in this Court’s opinion in 1976 but was not dealt with at length as no question was raised about it. Nevertheless, the Court decided that the suit on the open account was barred, applying the three year limitation embodied in the amended section 15-1-29 which we now say was not the law. The decision that the period of limitations which applies to open accounts in some cases is now (and was then) six, rather than three years, requires the Court to confess complete unawareness for more than ten years of the 1966 Commercial Code provision, although the Commercial Code reference was expressly noted in the McArthur v. Acme opinion.

Statutes of limitation are remedial statutes and are statutes of repose and are favored as ending controversy. No logical purpose can be assigned for extending the period of limitations on open accounts to six years, a period longer than in other states and which is not consistent with the stated purpose of the draftsmen of the Commercial Code.

A whole body of law has been developed over the more than a century that the Mississippi three-year statute of limitations has been in effect as to open accounts. Generations will be born, live and die before members of the general public will learn that a suit on an open account can be brought within six years in some cases, but in others must be brought in three.

The account in McArthur v. Acme, supra, is set out in full in the opinion of the Court and reflects upon its face that the items charged were plumbing supplies sold by a dealer to a plumbing company for resale and use in its plumbing business. The present decision in this case is, therefore, totally at variance with McArthur v. Acme. If the conclusion of the majority in this case is correct, the Court applied in McArthur v. Acme a totally non-existent three-year statute of limitations to bar a just claim.

ROBERTSON, J., joins in this dissent.


source: Caselaw Access Project

license: Public Domain

text:
    James W. AMOS, Trustee, and Bank of Mississippi (Formerly Bank of Olive Branch, Mississippi) v. Bobby G. LANCE, Sr. and Bessie Beam.
    No. 49775.
    Supreme Court of Mississippi.
    Feb. 8, 1978.

      Amos & Amos, Olive Branch, B. T. Jack Amos, Bay Springs, for appellants.
    Brewer, Deaton & Evans, N. C. Brewer, Jr., Greenwood, for appellees.
    Before INZER, P. J., SUGG and WALKER, JJ., and BRIDGES, Commissioner.
   BILLY G. BRIDGES, Commissioner for the Court:

The Chancery Court of DeSoto County, Mississippi enjoined the foreclosure of a deed of trust executed by the appellee Lance in favor of appellant Bank of Mississippi dated May 3, 1973, covering certain real property in DeSoto County, Mississippi, and securing an installment promissory note in the principal amount of $6120 payable in monthly installments of $170 on the 3rd day of each month commencing June 3, 1973, and which said deed of trust contained a provision as follows:

In addition to the above, it is intended that this conveyance shall secure and it does secure any and all debts, obligations or liabilities direct or contingent of the grantor herein, or either of them, to the beneficiary, whether now existing or hereafter arising at any time before actual cancellation of this instrument on the public records of mortgages and deeds of trust, whether the same be evidenced by note, open account, overdraft, endorsement, guaranty, or otherwise.

Appellee was obligated to the appellant Bank of Mississippi (formerly Bank of Olive Branch, Mississippi) on a number of other debts which were evidenced by promissory notes wherein he was either maker, endorser or grantor, some of which said notes preceded the May 3, 1973 note and deed of trust and some of which were subsequent thereto.

In addition to the above, appellee Bobby Lance, Sr. was also the co-maker on a promissory note in favor of appellant bank dated April 12, 1974, and covering certain real property in. Panola County, Mississippi, which was described as the collateral in a deed of trust securing said note in the amount of $60,000 and which said deed of trust had been foreclosed after default thereon for an amount of $65,615.06 owing thereon, including principal, accrued interest, foreclosure fees, and costs, and the bank purchased the property at foreclosure for $15,000 and now alleges a $50,615.06 deficiency.

Appellant bank did not proceed to file any suit in the proper court in order to obtain a deficiency judgment in said amount of $50,615.06 but now alleges that same constitutes a debt within the above-mentioned dragnet clause and is basis for foreclosure of the May 3,1973 deed of trust in DeSoto County in the same manner that default in the indebtedness secured by said May 3,1973 deed of trust or any other loans and debts in favor of the bank and owing by appellee Lance would be. The attempted foreclosure enjoined by the court below was commenced by publication of notice thereof in the “DeSoto County Times” on March 20, 1975.

Appellant bank alleges that at least three other notes owed by appellee Lance to the bank were past due on the said date of March 20, 1975, when said appellee Lance tendered checks to the bank for such delinquent loans. Said appellant further argues that one of said notes was the original $6120 note secured by the May 3, 1973 deed of trust.

On April 1, 1975, James W. Amos, attorney for appellant bank wrote appellee Lance a letter in behalf of appellant bank, and said:

I am enclosing the checks for three payments on loans at the Bank of Mississippi that were paid by you on March 26, 1975. These checks were received after foreclosure proceedings had been commenced against your property in Nesbit.
As you know, Bank of Mississippi holds a note on M. B. J. Company, Inc., which you personally endorsed. The bank has taken the position that all property upon which it holds a deed of trust or secured instruments also stands as security against the unpaid balance of the M. B. J. note.

It is from this letter that we think the court below decided that appellant bank commenced its foreclosure on the May 3, 1973 deed of trust as a result of the alleged deficiency due on the Panola County foreclosure (the M. B. J. Company, Inc. note mentioned in said letter) rather than from the delinquent notes due by appellee Lance to appellant bank and which said appellee attempted to reinstate pursuant to Section 89-1-59, Mississippi Code Annotated (1972), as amended and supplemented, by payment of the three checks dated March 20, 1975 and received by the bank on March 26,1975.

We think the main question for this Court to decide is whether an alleged deficiency to the bank from a foreclosure of the deed of trust in Panola County, but not reduced to a liquidated claim or judgment in a court of proper jurisdiction, can be the sole basis for foreclosure of another deed of trust in DeSoto County, Mississippi, containing a dragnet clause as herein mentioned.

The chancellor found and ordered that the original indebtedness of Lance to appellant bank and which was secured by the deed of trust on lands in DeSoto County, Mississippi (the May 3, 1973 deed of trust) was an installment contract which could be reinstated at any time by payment of all default; that attempt was made to make such payments and that the defendant, Bank of Mississippi, refused to receive or accept same; that the personal endorsement and guaranty by Lance of a certain promissory note of M. B. J. Company, Inc., in the sum of $60,000 was not secured by the deed of trust which the Bank of Mississippi attempted to foreclose; that a determination of whether or not the waiver executed by Bessie Beam to Bank of Mississippi, which subordinated her prior existing valid first mortgage lien to Bank of Mississippi, was limited to the debt described in and secured by said deed of trust in favor of which she waived her first lien, or whether she waived in favor of the endorsement of Lance of paper in Panola County, Mississippi, is not necessary at this time in view of the holding of the Court that the deed of trust in DeSoto County, Mississippi did not secure the indebtedness alleged by Bank of Mississippi, to be due on a deficiency foreclosure in Panola County, Mississippi; and that appellant bank should be permanently enjoined from proceeding further to foreclose the lands and property of Bobby G. Lance, Sr. under the terms and provisions of the deed of trust dated May 3,1973 and recorded in Book 158 at Page 452 of the Records of Real Estate Trust Deeds of De-Soto County, Mississippi, in favor of Bank of Olive Branch, Olive Branch, Mississippi insofar as same covers any alleged deficiency or other indebtedness arising out of the transaction in Panola County, Mississippi (the M. B. J. Company, Inc. note and deed of trust) herein mentioned and set forth.

We think the findings and opinion of the chancellor were correct and proper and that the tender of payment by appellee Lance should have been received by the bank as reinstatement of the debt and not refused on the grounds of the alleged deficiency arbitrarily calculated by appellant bank and used as grounds for such attempted foreclosure.

The opinion of the Chancellor is, therefore, affirmed.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Fox ARRINGTON v. STATE of Mississippi, Board of Supervisors of Harrison County, Mississippi, G. C. Hawkins, Jr. and B. J. Randall.
    No. 50302.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Fox Arrington, Gulfport, for appellant.
    Bobby Joe Randall, Gulfport, for appel-lee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.


text:
    ILLINOIS CENTRAL GULF RAILROAD v. Heida E. HICKS.
    No. 49995.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Adams, Forman, Truly, Ward, Smith & Bramlette, E. C. Ward, R. Kent Hudson, Natchez, for appellant.
    John T. Green, Frank W. Walden, Natchez, for appellee.
    Before INZER, P. J. and SUGG and WALKER, JJ.
   Affirmed.


text:
    Willie TOOKS and Bennie McCurty v. STATE of Mississippi.
    No. 50432.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Fred M. Harrell, Jr., Brandon, for appellants.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER, and BROOM, JJ.
   Affirmed.


text:
    Shirley Cook ROBINSON v. STATE of Mississippi.
    No. 50218.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Zachary & Gillespie, James R. Fowler, Jr., Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.


text:
    Johnny Lee TILLISON v. STATE of Mississippi.
    No. 50226.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Carothers, Fedric & Laster, Robert T. Laster, Jr., Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.


text:
    Dwayne A. ALLSUP et ux. v. BANKERS TRUST SAVINGS & LOAN ASSOCIATION et al.
    No. 50284.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Covington & Roberts, Billy R. Covington, Meridian, for appellants.
    Bacon, Smith & Jernigan, L. 0. Smith, Jr., Jackson, for appellees.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    Anne S. JONES v. Bobby G. JONES.
    No. 50333.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Buckley & Ford, Travis Buckley, Laurel, for appellant.

      Ingram & Matthews, Jolly W. Matthews, III, Hattiesburg, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   Affirmed.


author: WALKER, Justice, for the Court:

text:
    David JONES v. STATE of Mississippi.
    Misc. No. 830.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    David Jones, pro se.
    No Brief filed on behalf of appellee.
   WALKER, Justice, for the Court:

ON PETITION FOR APPEAL

David Jones has filed his pro se petition for an appeal and in support thereof alleges that on March 16,1976, that he was tried in the Circuit Court of Madison County, Mississippi, found guilty of murder, and sentenced to life in the state penitentiary. He admits that no appeal was taken therefrom within the time prescribed by law. However, he alleges that on June 28, 1976, he filed a petition for writ of error coram nobis in the Circuit Court of Madison County, charging that his attorney’s actions effectively deprived him of his right to appeal. That petition was dismissed without an evidentiary hearing by the circuit judge “for the reason it is not properly the subject of coram nobis.” From that dismissal of his petition for writ of error coram nobis, the petitioner appealed to the Supreme Court and this Court in Jones v. State, 346 So.2d 376 (Miss.1977) affirmed the action of the trial court saying:

In his petition Jones does not allege any infirmity in the conduct of his trial. Rather, he alleges that he was denied an appeal through a fault of his counsel. The trial court therefore correctly concluded that coram nobis was an inappropriate remedy, since its proper function is to vacate a judgment that never should have been issued in the first place. (346 So.2d at 376).

The Court went on to say:

Furthermore, the relief available after a successful petition for writ of error coram nobis would be inappropriate in this case. Were the trial court to find merit in his allegations, it could only grant him a new trial. Allred v. State, 187 So.2d 28, 32 (Miss.1966). However, Jones has not alleged that he was deprived of a fair trial, but that he was deprived of an appeal. Jones is actually asking for an appeal to this Court, and the trial court has no authority to grant that relief. (Id. at 377).

The Court further stated:

Jones’ proper remedy is to file with this Court a petition for an appeal. With his petition, he should file the same sort of affidavits as are required by our Supreme Court Rule 38 for a petition for writ of error coram nobis originally filed with this Court. Upon receipt of such a petition and accompanying affidavits, this Court may decide for itself what relief may be due. (Id. at 377).

The procedure adopted in Jones is a new procedure designed to afford an adequate post-conviction remedy in those cases where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.

The petitioner in this case was represented by his own retained counsel on his original trial for murder. In his petition and affidavits now before the Court, the petitioner alleges that after the completion of the trial petitioner was returned to jail; that petitioner’s attorney did not come to the jail to confer with him concerning taking an appeal; that members of petitioner’s family talked to the attorney about appealing petitioner’s conviction and were informed that he was going to perfect an appeal in the matter; that petitioner requested members of his family to ask the attorney to visit him at the jail, which the family did and were assured by the attorney that he would visit the petitioner; that the attorney did not visit petitioner at the jail to confer with him about an appeal; that the attorney told members of the family that he would charge $3,000 to appeal the conviction and this information was related to petitioner who alleged that he did not have the money to pay for an appeal; that the petitioner had members of the family request the attorney to ask the court to appoint a lawyer to represent him on appeal; that the attorney stated that he would ask the court to appoint a lawyer and later advised members of the family that he had requested the court to appoint petitioner a lawyer and that the court advised him that the petitioner did not have the right to a lawyer on appeal. Affidavits to the above facts were made by three members of the petitioner’s family: Angel Lee Stevenson, Ora Lee Stevenson and Ola Mae Ste-. venson. Said affidavits are attached to the petition now under consideration.

An accused is not only entitled to counsel at trial, but he is entitled to counsel on appeal from a conviction on the merits. If he is an indigent and unable to afford an attorney, then he is entitled to a court-appointed attorney at trial and on appeal. On the other hand, if he is able to afford an attorney at trial but subsequently is reduced to the status of an indigent, then he is entitled to have a court-appointed attorney to represent him on appeal.

If the allegations of appellant’s petition and the affidavits attached thereto are correct, then he has been denied, through no fault of his own, equal protection of the law in that he has been denied the right to have his conviction reviewed on appeal.

Therefore, the Clerk of this Court is directed to send a copy of Jones’ petition for appeal to the Circuit Court of Madison County, Mississippi, to be filed therein. The trial court shall afford petitioner an opportunity for a hearing within a reasonable time to which the defendant may summons witnesses as in other cases. The purpose of the hearing shall be to determine whether petitioner is an indigent and whether his trial attorney denied him his right to perfect an appeal within the time prescribed by statute through misrepresentation to the petitioner regarding his right to a court-appointed attorney on appeal. If the court finds that the petitioner has not sustained his allegations by a preponderance of the evidence, the court shall order the petition dismissed. An appeal may be had from that order. On the other hand, if the lower court finds that the allegations of the petition have been sustained by a preponderance of the evidence and the petitioner is indigent and has no retained counsel, then the court shall appoint an attorney to represent petitioner on appeal. The court-appointed attorney shall then take all necessary steps prescribed by statute to perfect an appeal from the original judgment of conviction within the time allowed by law, such time to run from the date of the court’s order appointing such attorney.

A copy of the petition for appeal together with this order shall be sent by the Clerk of this Court to the district attorney and circuit judge, or senior circuit judge, if more than one, where petitioner was convicted.

This procedure shall operate prospectively only and shall not be available to defendants whose petitions are not presently pending before this Court.

PETITION FOR APPEAL GRANTED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.

      . Mississippi Code Annotated section 99-15-15 (1972).


text:
    Billy Ray BLACK v. STATE of Mississippi.
    No. 50206.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Richard E. Stratton, III, Brookhaven, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    Larry Ike JOHNSON and Archie Lee Beckworth v. STATE of Mississippi.
    No. 50224.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Cleve McDowell, Drew, for appellants.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   Affirmed.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and BOWLING, JJ., concur.


text:
    Edward E. PIRTLE v. Clyde GOUDEAU et ux.
    No. 49935.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Reeves & Reeves, Robert S. Reeves, McComb, for appellant.
    Mike Smith, McComb, for appellees.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Reversed and rendered.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    Willie Pressley ROBINSON v. STATE of Mississippi.
    No. 50202.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Scales & Scales, William B. Thompson, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Affirmed.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    Charles JONES v. BENTON COUNTY BOARD OF EDUCATION.
    No. 49979.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Johnston & Adams, Lem Adams, III, Brandon, for appellant.
    Farese, Farese & Farese, John B. Farese, Ashland, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Reversed and remanded.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    POWE-KIRKWOOD, INC., a Mississippi Corporation, and C. Bishop Barker, an Individual v. DAVID M. COX, INC., a Mississippi Corporation.
    No. 49876.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    J. B. Van Slyke, Jr., Hattiesburg, for appellant.
    R. M. Sullivan, Hattiesburg, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.

INZER, and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    Eloise Necaise BRADBURY v. CITY OF BAY ST. LOUIS, Mississippi.
    No. 49982.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Nicholas M. Haas, Bay St. Louis, for appellant.
    Bryant & Stennis, Roger T. Clark, Gulf-port, for appellee. .
    Before PATTERSON, C- J-, and BROOM and LEE, JJ.
   Affirmed.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and BOWLING, JJ., concur.


text:
    Tommie Lee STEWART v. STATE of Mississippi.
    No. 50200.
    Supreme Court of Mississippi.
    Feb. 15, 1978.
    Robert W. Graves, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

This is an appeal from a conviction of assault on a police officer while acting within the scope of his duty and office returned after a jury trial in the Circuit Court of the First Judicial District of Hinds County, Mississippi. As a result of this conviction, appellant’s previous suspended sentence of fifteen years for manslaughter was revoked and appellant was sentenced to an additional five years in the Mississippi Department of Corrections which sentence was to run consecutive to the fifteen year sentence.

Appellant first assigns as error the trial court’s refusal to allow Bert Brown to be called to the witness stand and to directly examine him before the jury, even though the court knew that Brown would refuse to answer most of the questions on grounds of self-incrimination. The testimony showed that Bert Brown initiated the altercation with Officer Jerry Young. Appellant argued to the jury that his involvement in the fracas was limited to an attempt by him to pull Bert Brown off Officer Young.

Brown was actually subpoenaed by appellant and called as a witness for him. Since it was obvious from the prior testimony of Officer Young and another witness that Brown might incriminate himself if he testified, and because Brown was not represented by counsel at this time, the trial judge appointed an attorney to represent Brown during his testimony. The district attorney, aware of this situation, asked that the jury be excused during the examination of Brown, with which request the trial judge complied.

During direct examination, Brown refused to answer most of the questions of appellant’s attorney on the grounds of self-incrimination. The district attorney had no cross-examination. Appellant’s attorney then offered to put Brown on the stand as a witness for appellant in the presence of the jury.

The problem presented here has never been directly considered in Mississippi, although the States cites Hutchins v. State, 212 Miss. 145, 54 So.2d 210 (1951) and Musselwhite v. State, 212 Miss. 526, 54 So.2d 911 (1951). However, as appellant correctly notes these cases are distinguishable from the case at bar. There seems to be a split of authority over the precise question with which we are faced. Appellant cites United States v. Shuford, 454 F.2d 772 (4th Cir. 1971); Smiloff v. State, 439 P.2d 772 (Alaska 1968); People v. Hannon, 50 Misc.2d 297, 270 N.Y.S.2d 327 (1962); State v. Gambino, 221 La. 1039, 61 So.2d 732 (1952). See also People v. Wells, 272 N.Y. 215, 5 N.E.2d 206 (1936); State v. Hall, 59 S.D. 98, 238 N.W. 302 (1931). Cf. Chapa v. State, 164 Tex.Cr. App. 554, 301 S.W.2d 127 (1957).

These cases hold that it is reversible error for a trial court to refuse to allow a witness to be put on by the defense where the witness objects on the basis of the Fifth Amendment. Of course, we have a slightly different case here, where it is the State which is objecting on behalf of the witness; however, the question presented in both situations is the same: namely, should the trial court have allowed the defendant to put the witness on even though it was likely that the witness would refuse to answer most questions on Fifth Amendment grounds?

The underlying rationale for the aforementioned decisions appears to be the right of an accused to compulsory process for obtaining witnesses in his favor. See People v. Wells, supra. However, in United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), the Court challenged this reasoning as follows:

The Sixth Amendment right to call a witness must be considered in the light of its purpose, namely, to produce testimony for the defendant. Washington v. Texas, supra. Calling a witness who will refuse to testify does not fulfill the purpose .... (503 F.2d at 600).

See also United States v. Martin, 526 F.2d 485 (10th Cir. 1975).

In United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973), the Court held that the defendant did not have the right to have a witness called who had previously indicated he would refuse to testify. However, the court of appeals also found it significant that the trial court indicated that it would reconsider whenever defense counsel could show a reasonable likelihood that the witness would or could be compelled to answer some or all questions. In the case at bar, Bert Brown refused to answer only those questions which dealt directly with the affray with Officer Young. Brown also was questioned about how well he knew the defendant and whether he knew the defendant and the defendant’s brother to be truthful. Brown did answer this question. His response to this question would have been competent if the question had been properly framed. See Barnes v. State, 249 So.2d 383 (Miss.1971).

We are aware that allowing Brown to be questioned in the presence of the jury may open the door for defense counsel to attempt to impeach Brown by asking questions he knows Brown will refuse to answer and by inference get inadmissible evidence before the jury. However, we are of the opinion that the potential for a miscarriage of justice is minimal, particularly in view of the fact that the jury can be instructed not to draw any inferences from the witness’ assertion of his Fifth Amendment privilege. See United States v. Johnson, supra. See generally, Annot., 24 A.L.R.2d 895 (1952); 98 C.J.S. Witnesses § 455 at 307 (1957). We therefore hold that the trial court’s refusal to allow Brown to be called to the stand by appellant and questioned in the presence of the jury, even though it had been demonstrated that he would refuse to answer most of the questions propounded to him on the grounds that the answers would tend to incriminate him, was reversible error.

Appellant next assigns as error the trial court’s refusal to instruct the jury as follows:

The Court instructs the jury for TOMMIE LEE STEWART that you are the sole judges of the weight, worth and credibility of the testimony of each and every witness who has testified in this case, and that if a policeman or other law enforcement officer has testified against TOMMIE LEE STEWART, then you are not to give his testimony any added weight merely because he is a law enforcement officer.

.Appellant argues that the instant case is different from the usual criminal case in that the complaining witness was also a police officer. He asserts that we live in a jurisdiction where citizens still respect and trust our law enforcement officials. Their testimony, according to appellant carries a great deal of weight in a criminal trial when they are witnesses. But in a case of this nature, in which the complaining witness is a policeman, there is the danger that the jury may not consider any testimony after they hear that of the policeman, merely because he is a policeman. Therefore, appellant concludes that the foregoing instruction was necessary to set things in perspective for the jury, and to refuse it was reversible error. Appellant cites Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967), wherein the Court stated that an instruction similar to the one quoted above was fair.

However, as the State notes in its brief, Mississippi Code Annotated section 99-17-35 (1972) provides, in part, that: “The judge in any criminal cause, shall not

sum up or comment on the testimony, or charge the jury as to the weight of evidence . .” It is clear that the requested instruction by its very terms constitutes a comment upon the weight of certain evidence, namely that given by the law enforcement officers who testified. Accordingly, the requested instruction was properly refused. It should be noted here that appellant has not cited nor have we found in our own research any case in which the refusal to give such an instruction was held to be error. On the contrary, in the only cases in which the refusal to give this particular instruction was alleged to be error, it has been held not to be such. See People v. Uselding, 39 Ill.App.3d 677, 350 N.E.2d 283 (1976); People v. Roche, 68 Cal.App.2d 665, 157 P.2d 440 (1945).

Appellant’s next assignment of error deals with the trial court’s refusal to grant appellant’s requested instructions 4 and 8. Instruction no. 4 can be dealt with summarily by reference to Carr v. State, 192 Miss. 152, 4 So.2d 887 (1941), wherein a similar instruction was condemned by this Court.

The trial court’s refusal to grant appellant’s requested instruction no. 8 on the presumption of innocence is more troublesome. This instruction reads, in part, as follows:

The Court instructs the jury for TOMMIE LEE STEWART that the . . . fact that TOMMIE LEE STEWART has been indicted creates no presumption of guilt against him, and the law presumes [him] . . . to be innocent until his guilt is proven beyond every reasonable doubt. .

The vice of the instruction which was condemned in Carr v. State, supra, was that it charged the jury that the presumption of innocence enters the trial with the defendant and remains alive throughout the trial. However, the Court also used the following language in Carr:

The force of the “presumption” as a valuable right available to the defendant is not conserved by tolerating its expression in the fantastic phrases accepted as appropriate adjuncts to trial eloquence, whence, indeed, its bombast was borrowed. Bradner, Evidence, section 460; Thayer, op. cit. supra, p. 553. Only its existence and its legal effect upon the burden of proof should be stated by the trial court, whose tongue should not be borrowed for those vagaries in which counsel remain free to indulge. (192 Miss, at 157, 4 So.2d at 888-89).

The State argues that under the Carr rationale, the chief and original function of the so-called presumption of innocence is to place upon the State the burden of proving the defendant guilty beyond a reasonable doubt. The State submits that this function was amply served by instruction no. 1 given by the trial court which told the jury that the burden of proof was on the State and never shifted to the defendant.

However, we disagree with the State’s argument. At the conclusion of the opinion in Carr, the Court stated that the “. . . existence [of the presumption] and its legal effect upon the burden of proof should be stated by the trial court . .” (192 Miss, at 157, 4 So.2d at 889). Clearly instruction no. 1 contains nothing concerning the presumption of innocence; and this was error for “. an instruction as to reasonable doubt will not supply the place of an instruction as to presumption of innocence, when the latter is requested.” Gentry v. State, 108 Miss. 505, 508, 66 So. 982, 983 (1914).

Finally, appellant contends that the jury’s verdict was against the overwhelming weight of the evidence. We disagree.

The testimony in this case was sharply conflicting and presented a classic jury question. There was ample evidence which, if believed by the jury, would have justified the verdict. However, since this case will have to be remanded for a new trial, it is not necessary for us to detail the facts here.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.

      . “The Court instructs the Jury that in this case, the law does not require of TOMMIE LEE STEWART, that he prove himself innocent, but the law imposes upon the State the burden of proving beyond a reasonable doubt . . . every material allegation necessary to establish TOMMIE LEE STEWART’S guilt, and this burden never shifts to TOMMIE LEE STEWART, and that if the State fails to meet this burden, then you must find TOMMIE LEE STEWART ‘Not Guilty’.”


author: WRIGHT, Presiding Judge. WRIGHT, Presiding Judge.

text:
    CENTRAL BANK, Thomas R. McCleod, David McCleod, D & J, and Birmingham Wholesale Furniture v. John BOYLES d/b/a RAH Enterprises.
    Civ. 1198, Civ. 1198-A.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1977.
    Rehearing Denied Jan. 4, 1978.

      William E. Shinn, Jr., Decatur, for appellant, Central Bank of Ala., National Assn.
    George R. Stuart, III, Birmingham, for appellants D & J, and Birmingham Wholesale Furniture, David McCleod and Thomas R. McCleod.
    Richard C. Duell, III, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Separate appeals are taken by defendants from judgments against them for conversion of personal property. We reverse and remand the judgment against Central Bank of Alabama. We affirm the judgment against the other defendants.

The issue presented by the appeal of Central Bank of Alabama (hereafter called CBA) is whether venue of the action was proper in the courts of Jefferson County. This issue was raised in the trial court by motion to transfer, motion for directed verdict and motion for judgment notwithstanding the verdict.

CBA is a national bank chartered in Morgan County, Alabama under the National Banking Act of 1863 as revised and amended by acts of Congress. National banks may not be interfered with by state action except as Congress may permit. Van Reed v. Peoples’ Nat’l Bank, 198 U.S. 554, 25 S.Ct. 775, 49 L.Ed. 1161 (1905). 12 U.S.C. § 94 established the venue in both federal and state courts for bringing suit against a national bank. Section 94 is as follows:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

The Supreme Court of the United States said in the case of Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963) that the provisions of § 94 were mandatory and expressed precisely the intent of Congress that a national bank could be sued against its will only in the courts designated therein. That holding has been supported in the cases of Michigan Nat’l Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963); National Bank of N. A. v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976) and Citizens & Southern Nat’l Bank v. Bougas,-U.S. -, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977).

Appellee responds to the apparent mandate of the statute with propositions for avoidance. The first proposition is waiver. Waiver is premised upon two factual conditions: (a) the fact that substantially all the stock of CBA is owned by Central Bancshares of the South, Inc., a holding company with principal offices in Jefferson County and (b) the transaction of substantial business in a county other than its principal place of business.

No valid authority is presented that waiver of venue by a national bank may be established by showing that suit is brought in the county where the principal owner of its stock resides or has its principal place of business. We do not so hold here.

The special privilege accorded national ba.nks by § 94 may be waived expressly or by failure to assert when sued. First Charlotte Nat’l Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889). Waiver may be inferred from conduct inconsistent with the assertion of the privilege. However, the conduct relied upon must demonstrate an intentional relinquishment or abandonment of the privilege. The commission of a tort does not constitute waiver. Nor does the disposition by sale of property located in one county, but thought to be subject to a security instrument executed in another county. Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir. 1973).

The fact that CBA was a joint defendant with a party properly sued in Jefferson County does not prevent it from claiming the privilege of the statute. Mercantile Nat’l Bank v. Langdeau, supra. The statement in the case of First Nat’l Bank v. Alston, 231 Ala. 348, 165 So. 241 (1936), to the contrary is dicta and precedes Lang-deau.

The holding in Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52 (1880) that the privilege of the statute extends only to transitory actions does not aid plaintiff here. State law determines whether the action is of a local or transitory action. Moreland v. Rucker Pharmacal Co., 59 F.R.D. 537 (D.C.La.1978). An action for conversion is considered transitory in Alabama. Title 7, § 54, Code of Alabama (1940) (Recomp.1958); Cable-Shelby-Burton Piano Co. v. Turbeville, 213 Ala. 565, 105 So. 555 (1925).

Plaintiff contends that even if the motion to transfer was erroneously denied, denial was error without injury because the rights of CBA were not prejudiced and the judgment is clearly for the right party.

We are not given any authority in this state applying Rule 45, ARAP so liberally. We do not consider that the principle of error without injury is applicable to denial of a claim of privilege under 12 U.S.C. 94. It has been clearly held that the provisions of the statute are mandatory and not permissive. Mercantile Nat’l Bank v. Langdeau, supra.

Judgment against CBA must be reversed and remanded.

Defendants McCleod, et al., present as error the overruling of their objection to plaintiff arguing punitive damáges in his closing summation when he had referred only to compensatory damages in the opening portion.

Defendants contend that plaintiff voluntarily relinquished his claim for punitive damages by stating in his opening summation the following:

“Ladies and gentlemen, the only thing that we have come here to ask you for is that you make John Boyles whole again, a man that’s, lost 987 War Eagle and Roll Tide matts [sic] and this is a lot to him.”

In closing, plaintiff’s counsel contended that punitive damages should be awarded plaintiff. Defendants McCleod objected to such argument on the ground that because of the original statement, they had not argued against punitive damages in their summation, assuming that plaintiff intended to forego such damages though claimed in the complaint. The court overruled the objection.

Defendants McCleod support their claim of error with citation from 93 A.L.R.2d 274 and the case of Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340 (1968). We have considered the authorities cited. It was said in Dunnavant that the annotation in 93 A.L.R.2d 274 stated there was a doctrine prevailing in some states that it is generally improper for counsel having the burden of the issues in a civil case to argue new matter or points in his closing summation, after his opponent’s argument, where such matter was not argued, discussed or mentioned in his opening summation. The court then said it had found no Alabama case on the point. It subsequently showed that the facts in the case were such that there was no violation of the doctrine. The court did not adopt the doctrine in this state.

We do not believe that the courts of this state, either trial or appellate, have applied any doctrine to final summation of counsel in a civil case, except that they be confined to the issues and evidence presented during the trial. The conduct and content of argument of counsel have always been considered to be a matter for the sound discretion of the trial judge. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970).

Defendants in this case were informed in the complaint that plaintiff claimed both compensatory and punitive damages. We do not believe that plaintiff’s statement in his opening summation quoted hereinabove so misled defendants as to cause them to believe that punitive damages were no longer an issue in the case. In any event, defendants could have requested opportunity to respond to the closing summation of plaintiff. They did not do so. The following also appears in 93 A.L.R.2d at page 279.

“It has also been stated that error cannot be predicated in the appellate court on the ground that plaintiff’s counsel has argued new matter in his closing summation where it appears that defense counsel did not (1) insist that plaintiff make a full and complete opening statement, or (2) ask for an opportunity to reply to the allegedly new matter.”

We do not adopt the above quote as law in Alabama any more than the Supreme Court adopted the doctrine quoted in Pinckard v. Dunnavant, supra, and from 93 A.L.R.2d 274. We merely point out that defendants’ authority for reversal also contains the answer to their argument.

REVERSED AND REMANDED AS TO DEFENDANT CENTRAL BANK OF ALABAMA. AFFIRMED AS TO DEFENDANTS McCLEOD, D & J, BIRMINGHAM WHOLESALE FURNITURE CO.

BRADLEY and HOLMES, JJ., concur.

ON REHEARING

OPINION EXTENDED

WRIGHT, Presiding Judge.

Defendants McCleod, D & J, and Birmingham Wholesale Furniture in application for rehearing claim as unjust our reversing the judgment against Central Bank of Alabama (CBA) and remanding for error in denying the motion of CBA as to improper venue without also reversing the joint judgment against them.

It was said in Alabama Power Co. v. King, 280 Ala. 119, 124-25, 190 So.2d 674, 679-80 (1966) as follows:

“At common law a joint judgment was regarded as an entirety, and a reversal of the judgment as to one defendant required a reversal as to all. . . This earlier rule of entirety has now been modified to the extent that where a judgment, though joint in form is several in effect, and the interests of the parties are several and independent, then such judgment is not necessarily considered as entire, and such joint judgment may be reversed as to one or more of the defendants and not as to the other. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223, on rehearing.
“This relaxation of the older rule has, however, never been applied where it might work an injustice to one party defendant if the judgment were to be affirmed as to him while reversed as to one or more of the joint defendants . . ”

The posture of the judgment in this case as finally entered after motion for new trial and order of remittitur was unusual to say the least. The verdict of the jury and judgment thereon was a joint judgment for $2,750 compensatory damages and $8,000 as punitive damages. The court in ruling on the post trial motion of CBA determined that it had erroneously permitted the claim for punitive damages against CBA to go to the jury. It required a remittitur by plaintiff of all punitive damages against CBA. Such remittitur was duly filed. The court further determined that the jury did not intend to assess $8,000 in punitive damages but only intended to assess $4,000. It therefore ordered a remittitur of $4,000 of the punitive award against defendants McCleod, et al.

The final judgment as remitted was $2,750 compensatory damages jointly against all defendants and the additional amount of $4,000 in punitive damages only against defendants McCleod, et al. Therefore, we have the unusual situation of a joint judgment for $2,750 against all defendants and a separate judgment for $4,000 joint as to all defendants except CBA.

Our reversal as to CBA of the judgment in which CBA is joined does not bar nor prevent further prosecution against it after transfer to the proper forum. We are unable to discern how we could reverse the same judgment as to the remaining defendants without also reversing the judgment against these defendants for punitive damages. That would reverse a judgment to which CBA is not joined and would result in a gross injustice to the plaintiff.

We therefore decline to reverse a judgment against the applying defendants which is joint with the other defendant only in part and which judgment was entered without error or prejudice to such defendants. The judgment as entered is not entire as to all parties and the interest of CBA is largely separate and independent from that of the remaining defendants. We find no substantial injustice results to these defendants hs a result of reversing as to CBA and affirming as to the remaining defendants. Alabama Power Co. v. King, supra.

APPLICATION FOR REHEARING IS OVERRULED. OPINION EXTENDED.

BRADLEY and HOLMES, JJ, concur.

      . The decision in Citizens & Southern Nat’l Bank v. Bougas expands prior construction of the statute. The court there held that “located” includes an authorized branch “located” in a county other than the county of the bank’s charter or principal office. It does not apply in this case as there is no branch of CBA in Jefferson County.

      . We would be inclined to hold the same if our state venue statutes were involved.


author: FAULKNER, Justice.

text:
    Ex parte D & J, BIRMINGHAM WHOLESALE FURNITURE CO., et al.
    77-268.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, AL-MON and EMBRY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Norman FAVORS, Jr. v. STATE.
    6 Div. 183.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Rehearing Denied Jan. 24, 1978.

      James H. Dumas, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

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

According to the undisputed evidence, the bludgeoned body of Alonzo Williams, .the alleged victim, a man 56 years of age, was found in the 1200 block of Third Alley, North, Birmingham, between 10:00 and 11:00 A.M. on Sunday, April 6, 1975. His head was badly battered; his skull was fractured; and there was considerable blood on his head. Close to his body were a board, approximately a 2 X 4 about four feet long, and a rock about the size of a human head. The rock had blood and hair on it and the board had hair on it. There was testimony that the body had been dead about twelve hours.

Defendant, twenty-three years of age, had been seen with the victim at a Catfish King restaurant about twelve hours before the victim’s body was discovered. Together they left the Catfish King, which was across the street from the place where the body was found.

Police were notified and an ambulance was called soon after the body was found. Soon after the arrival of Sgt. Webb, the body was sent to the morgue, and Sgt. Webb proceeded toward the morgue. Meanwhile someone had told him about seeing the defendant with the victim the night before. On his way to the morgue, Sgt. Webb observed defendant within about a block of the place where the victim’s body was found. He asked defendant whether or not he was with the victim the night before, and defendant replied in the affirmative. Sgt. Webb then asked Sgt. Cousins to take defendant “to the City Hall with the rest of the witnesses we had at that time,” which Sgt. Cousins did. Upon completing his mission to the morgue and another short official mission, Sgt. Webb went to the City Hall where Sgt. Cousins had the witnesses, other than the defendant. Defendant had gone. Sgt. Webb looked for defendant in the vicinity where the body was found. He found defendant at 804 Twelfth Street, North, under a bed in an intoxicated condition. He and Sgt. Cousins placed him under arrest at that time and took him to the City Hall where they placed him in jail. The next day they interrogated him and obtained his written statement, after fully advising him of his rights and giving him the Miranda warnings, and after he had signed an acknowledgment of his understanding of his rights and his desire to make a voluntary statement without contacting an attorney or having one present. Defendant then said, and signed a written statement, that he got mad with Alonzo Williams in the Catfish King the night before, that they left together and, as they went into the alley, he was fussing with Alonzo Williams, whom he called “Chalkie.” He stated he threw a bottle at Chalkie, then saw blood on Chalkie’s face. He said that about that time a man by the name of Roger, whose last name defendant did not know, struck Chalkie “with a large piece of what looked like concrete.” According to defendant, he then left the scene, and the next day he talked to Roger at City Hall, where the witnesses had assembled for questioning, and he and Roger agreed that “whichever one of us they put it on, we wouldn’t tell on the other.” He said that shortly after that he ran away from City Hall and was caught later hiding under a bed.

The day after he made his written statement, as above discussed, defendant made another written statement, which was also admitted in evidence. It was made after he had again been fully advised of his rights, to the same extent that he was advised and warned before making his first written statement. In his second or supplemental statement, he said that he was not telling the truth in his first statement about Roger, who turned out to be Roger Smith, and that he did not see Roger the night before. He also said in his second statement that, as he was walking down the alley with “Chalkie,” he kept asking Chalkie for some money to buy some food, and Chalkie pulled out what he thought was a knife, and defendant slapped Chalkie. Chalkie kept saying he had no money. Defendant picked up a wine bottle and hit Chalkie on the head, then pushed him again, picked up a large rock and hit him on the head with it, then picked up a board and hit him on the head. After Chalkie fell to the ground, defendant said he took Chalkie’s boots off and took down his pants, looking for money and found seventy-five cents in his right front pocket.

There was other evidence of defendant’s guilt of murder in the first degree, but the foregoing statement is sufficient to show the presentation of a jury issue and that the verdict was amply supported by the evidence. Defendant did not testify, and no testimony was offered in his behalf.

The argument is made that defendant’s conviction violates the rule requiring corroboration of a defendant’s confession or incriminating statement by evidence of the corpus delicti. The argument is based on an erroneous assumption that proof of the corpus delicti must include evidence of defendant’s guilty connection with the alleged crime. In Arnold v. State, 57 Ala.App. 172, 326 So.2d 700, 701 (1976) it was held:

“Proof of the corpus delicti does not necessarily include evidence connecting defendant with the crime. The term, meaning body of the offense, connotes the actual commission of the crime by someone. Latham v. State, 38 Ala.App. 92, 77 So.2d 499, cert. stricken, 262 Ala. 108, 77 So.2d 502; Malone v. State, 37 Ala.App. 432, 71 So.2d 99, cert. denied, 260 Ala. 699, 71 So.2d 101.”

Appellant complains of the admission in evidence of a statement by defendant to Sgt. Webb when he first saw defendant while Sgt. Webb was on his way to the morgue to which the victim’s body was being transported. Although Sgt. Webb at that time had obtained information from others that defendant had been with the victim the night before at Catfish King and that the two had engaged in an argument, the record is clear that, at the time the statement was made by defendant, no investigation had centered upon defendant and that Sgt. Webb was treating defendant as he was treating others at or near the apparent scene of the victim’s death, in questioning them for information and in asking them to go to the City Hall for further interrogation as witnesses. Sgt. Webb was intensively interrogated by defendant’s counsel on the subject. It is shown that he merely asked defendant who he was, his name, and whether he had been with the victim the night before. The fact that defendant was not asked another question until the next day, after he had been arrested and placed in jail, strengthens the conclusion that Sgt. Webb was not in the process of a custodial interrogation at the time he first saw defendant. Applicable to the situation here is what was expressed by Judge DeCarlo in Wright v. State, 54 Ala. App. 725, 312 So.2d 417, cert. denied 294 Ala. 99, 312 So.2d 421, as follows:

“The ‘compelling atmosphere’ denounced in Miranda, supra, was not present when Sgt. Latta questioned this appellant. No in-custody interrogation was in progress. This was a general on-the-scene questioning of a citizen under circumstances that warranted investigation and is a well accepted police practice. Ison v. State, 281 Ala. 189, 200 So.2d 511; Burrell v. State, 45 Ala.App. 664, 235 So.2d 913.
“An officer in the normal course of his patrol at 4:00 A.M., can stop a driver and ask for some identification under the circumstances depicted in this case. The question asked Charles Wright, concerning items in the truck was limited to inviting an explanation of his possession. Under these circumstances, we hold the answers given were within the permissible range of an on-the-scene investigation and not subject to the warning requirements of Miranda, supra. In fact, it would be absurd to require a police officer to warn every person he confronts of his rights.”

The officer could not have sensibly warned defendant of his rights until he had questioned him as to his identity. We are convinced that his main objective at that time was to find witnesses. His investigation was still in progress. The accusatory stage had not commenced. The statements of defendant at that time were properly admitted in evidence. In addition, we note that the information contained in his statements was already in evidence and established as an undisputed fact.

During the time defendant was making his first written statement, he complained of some pain in his stomach. Appellant argues that his physical condition at the time vitiates the statement as evidence. There is nothing to indicate that defendant was not physically able to undergo an interrogation at the time. There is no indication that he was in any way mistreated. In fact, the evidence shows that upon his complaint of some pain in his stomach, he was asked if he wanted something in the way of medical help, and he replied in the negative.

A fingerprint technician testified that she examined a latent fingerprint lifted from the neck of a broken wine bottle found near the body of the victim, but by reason of the smudge she could not identify it as the fingerprint of any particular person. Defendant moved to exclude the witness’ testimony, and the motion was overruled. Appellant urges that the admission of such evidence probably caused confusion prejudicial to defendant. It was perfectly clear that the evidence was not admitted for the usual purpose of identifying a defendant by his fingerprint, but was for the sole purpose of showing one of the circumstances of the struggle that resulted in the death of Alonzo Williams and corroborating the incriminating statement made by defendant that he had broken a wine bottle during the time he had beaten Williams to death.

The rock, bottle neck and board found at the body of Williams were admitted in evidence. Appellant argues that the chain of custody was not established. We think otherwise. The possibility that physical objects have not changed or been altered from the time of their relevancy as evidence until the time of trial need not be established in order to make them admissible. A showing of improbability of a material alteration is sufficient. Bell v. State, Ala.Cr.App., 339 So.2d 96; Washington v. State, Ala.Cr.App., 339 So.2d 611.

We have searched the record for error prejudicial to defendant and have found none. The judgment is due to be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article, (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Norman FAVORS, Jr.
    77-314.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: ADKINS, Judge. BOYD, Judge, HATCHETT, Judge,

text:
    Learie Leo ALFORD, Appellant, v. STATE of Florida, Appellee.
    No. 44647.
    Supreme Court of Florida.
    Nov. 10, 1977.
    Rehearing Denied March 9, 1978.
    David Roth of Cone, O wen, Wagner, Nu-gent, Johnson & McKeown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Judge.

We have for consideration a motion of Learie Leo Alford to vacate his sentence of death.

Alford’s judgment and sentence were affirmed by this Court (Alford v. State, Fla., 307 So.2d 433), and the United States Supreme Court denied his petition for writ of certiorari (428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221). In accordance with the rule of law pronounced in Gardner v. State, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393, this Court ordered the sentencing judge to state whether he based his sentencing decision upon any information not known to Alford. The trial judge responded that he did not consider any information unknown to Alford and enclosed a letter which he wrote to the probation supervisor prior to sentencing, saying: '

“I know you have expended a great deal of time, effort and conscientious evaluation in the preparation of the pre-sentence report concerning Learie Leo Alford. I recall that you indicated to me that the revelation of the confidential section of this report to the defense would be damaging and compromising to sources who had confided in you. I respect your judgment in this.
“I feel, however, in a case in which the jury has recommended the supreme penalty known to our law, that there well may be a constitutional right to disclosure of this confidential section to the defendant. As far as I know, there is not yet a judicial decision on what the meaning of ‘factual material’ in Rule 3.713(b) may be. I feel that if I cannot release the confidential section to the defendant, I should not review it myself in this particular case. I know that this means that I shall not have the benefit of a major portion of your work in this report because of this view and I regret that this is so.
“Accordingly, do not deliver that section of your report to me.”

During the course of the clemency proceeding, the Governor wrote Alford’s attorney and enclosed a copy of the confidential evaluation portion of the pre-sentence investigation. The first paragraph of the confidential evaluation indicates that the sentencing judge was “made aware of some of these facts” by the supervisor.

In response to the motion to vacate, the State says that, assuming the judge was “made aware” of certain facts, that doesn’t mean that he “considered” those facts in imposing the sentence. The State draws a distinction between being “aware” of certain facts and “considering” them. We agree.

The United States Supreme Court in Gardner recognized the ability of the sentencing judge to disregard material in imposing sentence when it said:

“In those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material.” (Emphasis supplied.)

The judicial discretion exercised in imposing the death sentence is limited in such a manner that the judge may not consider many factors of which he is aware. As pointed out in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976),

“[I]t has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases. At 252, 96 S.Ct. at 2966.
“Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. At 253, 96 S.Ct. at 2967.
******
“The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” (Emphasis supplied.) At 258, 96 S.Ct. at 2969.

In considering the imposition of the sentence, the trial judge’s discretion is guided and channeled by statute and case law. He may be “aware” of other factors, but he does not “consider” these factors in the exercise of his discretion. For example, the judge may be “aware” of inadmissible evidence after a proffer has been made, but this evidence is never “considered” by the judge.

The record clearly shows that the trial judge complied with the requirements of Gardner and the motion to vacate is denied.

It is so ordered.

OVERTON, C. J., and ENGLAND and KARL, JJ., concur.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents with an opinion with which BOYD and SUNDBERG, JJ., concur.

BOYD, Judge,

dissenting.

During the course of the clemency proceeding, the Governor wrote Alford’s attorney and enclosed a copy of the confidential evaluation portion of the pre-sentence investigation. The first paragraph of the confidential evaluation indicates that the sentencing judge was “made aware of some of [the report’s] facts” by the supervisor.

The trial court, however, has filed a copy of a letter sent to the probation, supervisor prior to sentencing directing that the confidential portion of the report not be delivered to him. If, in fact, however, the sentencing judge was “made aware” by the supervisor of some of the report’s undisclosed facts, constitutional standards announced in Gardner v. State, supra, require that the undisclosed facts now be presented to appellant with an opportunity to refute them before the trial judge, if he should see fit.

In criminal proceedings, it is unconstitutional for courts to receive testimony concerning guilt without affording the accused an opportunity to know, confront and cross-examine the witnesses appearing against him. In my opinion, it is likewise unconstitutional for courts to impose sentences upon persons convicted of crime without affording the accused persons an opportunity to refute any information known to the sentencing judge. Without providing such protection, incorrect representations, perhaps made in good faith, could be used by the court to give punishment more severe than would otherwise be imposed.

Such protection is more important in capital cases, where the defendant’s life is at stake, than in any other kind of case.

It is my opinion that prior to making a final determination in this cause, it should be remanded to the trial court with directions that, if any portion of the confidential record was made known to the judge, it be presented to the appellant with an opportunity to refute those statements. If, indeed, the judge did not know of information undisclosed to the defense, he should so advise this Court before the Court makes a final determination of this cause.

HATCHETT, Judge,

dissenting.

I dissent from the majority opinion which denies Alford’s motion to vacate his death sentence on the grounds that the trial court was made aware of facts during the sentencing phase of the trial proceedings which were not disclosed to defense counsel. The majority attempts to create a distinction between the trial court’s “considering” this confidential information and his merely being “aware” of these facts. Allowing such a distinction to be made by the trial court violates the rationale in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) by violating the defendant’s due process right to be given notice of and an opportunity to challenge any facts presented to the trial court relevant to its sentencing determination.

The majority has construed Gardner as recognizing “the ability of the sentencing judge to disregard material in imposing a sentence.” This construction is based upon the statement that:

In those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material. Gardner v. Florida, supra, at 1205.

However, I believe a reading of the entire paragraph from which that quotation is excised, makes it clear that the Court in Gardner meant a trial court can disregard material only if it has been presented to the defendant for examination, and only after the defendant has been provided an opportunity to contest the accuracy of any facts. If the contested material is of critical importance, then the trial court may not merely disregard it, but rather must make a full inquiry and resolve the dispute.

Although the confidentiality of sources is an important state interest, it is clearly outweighed by the due process rights of a defendant sentenced to death.

BOYD and SUNDBERG, JJ., concur.

       The State also suggests that full disclosure of the presentence report will unnecessarily delay the proceeding. We think the likelihood of significant delay is overstated because we must presume that reports prepared by professional probation officers, as the Florida procedure requires, are generally reliable. In those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material. Or if the disputed matter is of critical importance, the time invested in ascertaining the truth would surely be well spent if it makes the difference between life and death. (Footnotes omitted) Gardner v. Florida, supra, at p. 1205. (emphasis added)


author: PER CURIAM.

text:
    FLORIDA EXPRESS, INC., f/k/a Schreiber Express, Inc., Petitioner, v. Paula F. HAWKINS et al., Respondents.
    No. 51057.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Rehearing Denied March 9, 1978.
    James E. Wharton, Orlando, for petitioner.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for Fla. Public Service Com’n, respondents.
    Norman J. Bolinger of Schwartz & Bol-inger, Jacksonville, for Alterman Transport Lines, Inc., Gator Freightways, Inc. and South Fla. Freightways, Inc., intervening respondents.
   PER CURIAM.

Denied.

ADKINS, Acting C. J., and ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


author: ADKINS, Justice.

text:
    Franz Peter BUCKREM, Appellant, v. STATE of Florida, Appellee.
    No. 48029.
    Supreme Court of Florida.
    Jan. 26, 1978.
    Rehearing Denied March 13, 1978.

      Gale K. Greene, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and sentencing him to death.

On a Saturday evening, Summers, Caylor, and several other people were having a “get together” at Caylor’s apartment. Debbie Townsend, the murder victim, had been living with Caylor (although not married) and was present at the “get together.”

During the early morning hours, around 1:00 a. m., Summers and Caylor heard a noise like a gunshot or firecracker and left the apartment to determine what happened. They proceeded to defendant Buckrem’s apartment because it sounded as though it came from there. Defendant answered the door. Caylor and Summers said defendant was stumbling and seemed drunk. Defendant denied shooting a gun or firecracker, then asked them if they were “queer.” Defendant physically offended Caylor (in a manner not clear in the record) and, according to Summers, was trying to “put the make” on Caylor. Caylor struck defendant, who fell and sustained minor facial injuries. Caylor and Summers then returned to Cay-lor’s apartment.

Susan Wallsman, one of the visitors in Caylor’s apartment, went to defendant’s apartment right after the altercation and found him on the ground. She helped defendant’s wife wash off the blood and defendant stated he was “going to get those kids and he was going to kill Frank,” referring to Frank Caylor. Susan testified that defendant appeared to have sobered up pri- or to her leaving. Shortly after 3:30 a. m., Susan heard a car leave which she believed to be defendant’s automobile.

At approximately 4:00 a. m., Susan heard a loud crash, scream and gunshots.

Caylor testified that after his guests left he was sitting on the bed with Debbie Townsend when defendant kicked open the apartment door wielding a shotgun. Defendant punched Caylor in the eye with the barrel of the gun and shot him, almost severing Caylor’s arm from his body. After shooting Caylor, defendant shot Debbie Townsend at point blank range causing her immediate death.

Defendant denied the commission of the homicide stating that he and his wife were at a friend’s house, where he passed out on the floor. Donna Meyer corroborated defendant’s alibi to some extent, but acknowledged that defendant could have left the house after she went to sleep around 4:00 a. m.

The jury returned a verdict of guilty of murder in the first degree for the homicide of Debbie Townsend, and assault with intent to commit murder in the first degree for the shooting of Caylor.

Defendant complains 'that the assistant state attorney during his argument to the jury made reference to the fact that two witnesses who could have testified relative to appellant’s alibi defense were not called by the defense. This argument is without merit. In Jenkins v. State, 317 So.2d 90 (Fla.1st DCA 1975), the court said:

“Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant’s failure to produce the witness is properly a subject of comment by the prosecutor. This is particularly true if the witness is the spouse of the defendant. 23A C.J.S. Criminal Law § 1099b, page 181; 5 A.L. R.2d 930.” At 91.

The other contentions of defendant are also without merit. The evidence was sufficient to sustain the verdicts of guilt.

At the conclusion of the penalty phase of the proceedings, the jury recommended that life imprisonment be imposed upon the defendant. The trial judge did not follow the recommendations of the jury and imposed the death sentence with the following findings:

“It is the Sentence and Judgment of this Court that you, for your said offense of Murder In The First Degree be committed to the Florida State Prison, and that you be sentenced to death, the Court finding under Florida Statutes, Chapter 921, that there are no significant mitigating circumstances, and that sufficient aggravating circumstances exist. The murder was especially heinous and atrocious. The defendant and the victim, a young girl, were strangers to each other, and the defendant after shooting the victim’s boyfriend, heard her scream, whereupon he turned and shot her though the arms and chest with a shotgun. There was some evidence that the defendant had been drinking intoxicating liquor for some time prior to the murder. However, there was ample testimony to show that the defendant at the time of the murder was well aware of his actions and that he had previously threatened the victim’s boyfriend. The defendant has no significant history of prior criminal activity but such mitigating circumstance is far outweighed by the heinous and atrocious murder he committed. The other aggravating and mitigating circumstances contained in Chapter 921, Florida Statutes, are not applicable.”

We must determine whether the trial judge gave great weight to the recommendation of the jury. In Tedder v. State, 322 So.2d 908 (Fla.1975), we said:

“A jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” At 910.

In State v. Dixon, 283 So.2d 1 (Fla.1973), we said:

“When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.” At 9.

The jury found that the mitigating circumstances outweighed those in aggravation, while the judge found that the mitigating circumstances did not override the aggravating circumstance that the murder was especially heinous and atrocious.

In Swan v. State, 322 So.2d 485 (Fla. 1975), the homicide was found to be heinous and atrocious. However, Swan was 19 years of age and his co-defendant (who received a life sentence) was 16 years of age. Swan was also suffering from a mental weakness. In view of the recommendation of the jury for life imprisonment, we held that the mitigating circumstances should be given greater weight by the judge and the imposition of the death sentence, under the circumstances, was improper.

In Jones v. State, 332 So.2d 615 (Fla. 1976), the defendant raped the victim and stabbed her 38 times. The homicide was heinous and atrocious. However, Jones was suffering from a paranoid psychosis and had been drinking alcoholic beverages on a daily basis. We pointed out that the jury had observed Jones as he testified and believed that the death penalty should not be inflicted. We recognize that extreme emotional conditions of defendants in murder cases can be a basis for mitigating punishment. As a result we held that the court should have followed the jury’s recommendation for a life sentence.

Defendant Buckrem was drinking during the night the homicide was committed. He had a previous altercation with Caylor and was obviously disturbed, as well as intoxicated. The defendant had no previous criminal activity, was gainfully employed, but engaged in the use of alcoholic beverages on weekends. On the facts and circumstances of this case, there is insufficient reason shown by the record to override the jury’s advisory sentence. After carefully reviewing the entire record we conclude that the court should have followed the jury’s recommendation for a life sentence.

Defendant’s conviction for first degree murder is affirmed, but the sentence of death is set aside and the cause is remanded to the trial court with instructions to impose a sentence of life imprisonment without eligibility for parole in 25 years.

The judgment and sentence of assault with intent to commit murder are affirmed.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


author: PER CURIAM. MILLS, Judge.

text:
    Betty Diane POWELL, as Administratrix of the Estate of Desmond Lamar Hawthorne, Deceased, Appellant, v. W. L. COBB CONSTRUCTION COMPANY, and Aetna Life & Casualty Co., the City of Daytona Beach, Florida, a Municipal Corporation, and the State of Florida Department of Transportation, Appellees.
    No. FF-105.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1977.
    Rehearing Denied March 7, 1978.
    Aaron A. Green, Gainesville, for appellant.
    Alfred A. Green, Jr., James 0. Eubank, Daytona Beach, Jerrold K. Phillips, Tallahassee, Frank B. Gummey, III, Daytona Beach, and Winifred Sheridan Smallwood, Tallahassee, for appellees.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the order appealed is affirmed.

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

ON PETITION FOR REHEARING DENIED

MILLS, Judge.

Powell sued several defendants in Volusia County, among them being the Department of Transportation and the City of Daytona Beach. The Department asserted its privilege of being sued in Leon County. The trial court granted the Department’s motion to abate for improper venue and ordered “that further prosecution of this cause is abated pending its transfer to the Circuit Court of Leon County, Florida.”

Interlocutory appeal was taken to this Court and we affirmed per curiam. Powell has now filed a petition for rehearing suggesting that to allow both the Department and the City to assert their venue privilege will require two independent trials. The action against the Department would be tried in Leon County and the action against the City would be tried in Volusia County. Powell contends this would cause a number of complex problems.

The record reflects that all of the other defendants were notified of the hearing on the Department’s motion to abate for improper venue and were furnished copies of the trial court’s order which abated further prosecution of the cause in Volusia County pending its transfer to the Circuit Court of Leon County, Florida. There were no objections by any defendant to the order.

The record reflects that notice of interlocutory appeal, as well as copies of all subsequent pleadings, was served on all of the defendants who were made parties to the appeal. None of the defendants, except the Department, participated in the appeal or argument on petition for rehearing.

We deny the petition for rehearing. The problem suggested by Powell will not arise because the trial court, without objection, from defendants transferred the cause, including all parties, to the Circuit Court of Leon County, Florida.

McCORD, C. J., and BOYER, J., concur.