author: JAMES E. SMITH, III, Circuit Judge.

text:
    Willie L. GASKIN v. STATE.
    6 Div. 189.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Oct. 26, 1976.

      Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   JAMES E. SMITH, III, Circuit Judge.

Willie L. Gaskin, a twenty year old man, was convicted in Tuscaloosa County Circuit Court of Murder in the First Degree and sentenced to life imprisonment.

I

On the night of November 1, 1975, at approximately 9:20 p. m., the Appellant and an accomplice, Limuel Alexander, a twenty-six year old male, went to the Buzz Service Station on Highway 82 in the City of Northport, Tuscaloosa County, Alabama, for the purpose of robbing the service station attendants. The two employees, Elgin Herring and Paul W. Boatner, were seated inside a small office at the time the Appellant and his accomplice arrived at the service station. As the Appellant and his accomplice entered the service station office, Herring reached into his shirt pocket, whereupon, the Defendant’s accomplice shot Paul W. Boatner and Elgin Herring with a pistol. This shooting resulted in the death of Paul W. Boatner.

It appears from the record that the Appellant and his accomplice had arrived at the scene of the crime in the Defendant’s automobile, which was parked on a dirt road some 100 to 150 feet behind the service station. That the Appellant and his accomplice approached the service station office from the rear, and after the shooting, fled by the same route to the automobile. The Appellant and his accomplice fled the scene in the Appellant’s automobile.

At approximately 9:30 p. m., Officer Lewis Brown, who was patrolling alone in a Northport police automobile, received a radio call from the Northport Police Department Dispatcher, directing him to proceed to the Buzz Service Station. Officer Brown testified that the message he received from the Dispatcher was garbled, and he could not determine the exact nature of the trouble at the Buzz Service Station. He stated that the Dispatcher seemed to be hysterical, and he did not know exactly what the problem was at the Buzz Service Station. En-route to the Buzz Service Station on 30th Avenue, a two lane dirt road, Officer Brown was driving his patrol car at a speed of approximately 70 to 80 miles per hour, with siren on, and his blue lights flashing. He met the Appellant’s automobile, which approached and passed him at a speed of approximately 60 or 70 miles per hour. Officer Brown testified that the Appellant’s car came at him “like it was going to run me off the road.” Officer Brown turned his patrol car around and chased the Appellant for some few blocks, ultimately bringing the Appellant to a stop near the Hole-man Lumber Company. After the Appellant’s vehicle stopped, Officer Brown pulled his patrol car up near the rear of the Appellant’s vehicle, opened his door and stood behind his door. While attempting to stop the Appellant’s automobile, Officer Brown observed one of the occupants of the Appellant’s automobile bending over and acting suspiciously in the automobile. After the vehicles were stopped, the Appellant got out of his car. Officer Brown shined a light on the Appellant and ordered him to approach the patrol car. Officer Brown recognized the Appellant and observed that the Appellant had paper money in his hand which he was attempting to place in his billfold. He also noticed that the Appellant had “beggar lice” all over his clothes. At this point, the Appellant’s accomplice, Alexander, attempted to get out of the automobile and Officer Brown ordered him to remain in the automobile. Officer Brown testified that the area in which he had stopped the Appellant was not well lighted, and that he felt it was a dangerous situation. He, therefore, directed the Appellant to get back in his automobile and go with him to the Buzz Service Station, whereupon, the Appellant said to Officer Brown, “I didn’t do it.” The Appellant then returned to his automobile and drove his automobile to the Buzz Service Station with Officer Brown following closely behind him in the patrol car.

Upon arriving at the Buzz Service Station, Officer Brown observed the body of Paul W. Boatner, and conferred with Officer Smelley, a Northport police officer, as to the events which had occurred there at the service station. At this point, Officer Brown asked one of the other officers at the scene to write a citation to the Appellant, charging him with Reckless Driving. Officer Brown then went back to the area where he had stopped the Appellant and began searching for a gun. Thereafter, the Appellant and his accomplice were taken from the Appellant’s automobile and placed in a Northport city patrol car, and shortly thereafter the Appellant was transported to the Tuscaloosa County Jail by a Tuscaloosa County Deputy Sheriff, who was assisting in the investigation of the robbery and murder. It should be noted that the city of Northport does not have a jail and all city prisoners are confined at the Tuscaloosa County Jail. The Appellant arrived at the county jail in the custody of the officers at approximately 11:30 p. m., where he was held in custody. At approximately 1:30 a. m., Investigator Adolf South, a Tuscaloosa County Detective interrogated the Appellant. The record shows that prior to any interrogation, the Appellant was given a full Miranda warning by the officer questioning him. At this time, the Appellant gave the officers a statement denying any involvement in the crimes which had occurred at the Buzz Service Station. At approximately 3:45 a. m., the Appellant was again interrogated by Officer South in the presence of Officer Fields. The Appellant was asked" if he remembered the rights which had previously been explained to him, he stated that he did and that he was willing to discuss the matter. Thereafter, the Appellant told Officer South that he and his accomplice, Alexander, had gone to his father’s home, gotten a pistol, and gone to the service station for the purpose of robbing the service station attendants. That after entering the service station office, the Appellant’s accomplice, Alexander, had shot both attendants. That the Appellant and his accomplice had fled on foot to his automobile and were in the process of fleeing the scene of the crime at the time they met Officer Brown’s police automobile. This confession of the Appellant was reduced to writing and signed by the Appellant. Later that morning, the Appellant carried Officer South and Officer Fields and showed them the route which he and his accomplice had taken in their flight from the scene of the crime. The Appellant also showed Officer South the point where the pistol used in the crime had been thrown by his accomplice as they were being pursued by Officer Brown. The pistol was recovered at the point where the Appellant indicated the pistol had been thrown.

At the trial, the pistol was identified by Luther Gaskin, the father of the Appellant, as being his pistol. State Toxicologist, James Britton, testified that, in his opinion, the bullet removed from the body of Paul W. Boatner had been fired from that gun.

A State witness, one Mary Hinton, testified that shortly before the robbery and shooting at the Buzz Service Station, she had observed the Appellant’s automobile, which she recognized, parked at a point behind the Buzz Service Station. This observation was made while she was enroute to a nearby grocery store, and upon returning from the grocery store, she saw the same automobile and the Appellant at the Buzz Service Station in the custody of the police officers.

The Appellant offered no testimony at the trial of this cause.

II

The Appellant contends that his detention was unlawful and that his confession should not have been admitted into evidence as it was the product of an unlawful detention under the theory of Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, and Logan v. Capp, 5 Cir., 525 F.2d 937. The Appellant relies in his argument upon the provision of Title 36,- Section 52, Code of Alabama Code 1940. Based on this Code Section, the Appellant contends that since he was arrested for the offense of reckless driving, that he should have been allowed to sign his own bond and be released from custody, and that failure to do so resulted in an illegal detention, and made his confession “fruit of the poison tree.” We are of the opinion that this case falls clearly within the exception contained in Title 36, Section 52 “b”, which states, in substance, that a traffic violator is not entitled to be released on his own written bond when the arresting officer has “good cause” to believe such person has committed any felony. Under the circumstances of this case, Officer Brown clearly had the right to arrest the Defendant for the offense committed in his presence, that of reckless driving. Weeks v. State, 49 Ala.App. 618, 274 So.2d 646. The officer did not, at the time of making the arrest, know that a particular felony had been committed, however, the officer had knowledge of sufficient facts to know that his presence was urgently required at the Buzz Service Station. Furthermore, Officer Brown found himself in what he felt to be a dangerous situation. Under these circumstances, the officer was justified in directing the Appellant to proceed to the Buzz Service Station in order to complete the arrest procedure. Upon arriving at the Buzz Service Station and observing the circumstances there, as well as discussing the occurrences there with his fellow officers, Officer Brown unquestionably had “good cause” to believe that the Appellant had committed a felony. The arrest was unquestionably legal as the misdemeanor was committed in the presence of the officer. The Appellant’s detention was not in violation of Title 36, Section 52, as it clearly falls within the exception outlined in Subsection b thereof. There being no unlawful arrest and no unlawful detention, the Appellant’s Motion to Suppress his confession was properly overruled, and the Appellant’s confession was properly admitted into evidence.

The Appellant contends that the trial court was in error for refusing to consider all the circumstances surrounding the Appellant’s arrest, detention, interrogation and confession in determining the admissibility of the Appellant’s confession. It appears from the record that a full hearing on the Appellant’s Motion to Suppress was held outside the presence and hearing of the jury. There is nothing in the record to indicate or suggest that the trial court failed or refused to consider any of the pertinent facts surrounding the Appellant’s confession. The record reflects that the proper predicate was laid to show that the Appellant’s confession was voluntary. That before his interrogation the Appellant was given the standard Miranda warning which he stated he understood. That some two and one-half hours later, the Appellant was reminded of his Miranda rights and the Appellant indicated that he was still willing to discuss the occurrences of that night. The record shows nothing which suggests any inhumane treatment of the Appellant prior to his confession. It appears from the record that his statement admitting his participation in the crime was in no way tainted by any activities which were in violation of his rights under the Fourth or Fifth Amendment.

Ill

We have carefully considered the entire record as required by Title 15, Section 389, Code of Alabama 1940.

From this examination, we conclude that error is not made to appear.

The foregoing opinion was prepared by Hon. James E. Smith, III, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary Wayne THOMAS et al. v. STATE.
    2 Div. 164.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.

      Terry L. Meltzer, Tulsa, Okla., Jere C. Segrest, Dothan, for appellants.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. “Gen., for the State.
   PER CURIAM.

The record in this case having been corrected, the opinion of this Court of August 24, 1976 is withdrawn and the following opinion rendered in this cause.

Appellants, Gary Wayne Thomas, Henry Sisson Cooper, and Richard Wayne Dollar-hide were indicted for grand larceny, and buying, receiving, and concealing stolen property, tried jointly by jury, and found guilty as charged. Thomas was sentenced to five (5) years in the penitentiary, and Cooper and Dollarhide were each sentenced to four (4) years. They appealed to this Court on one record.

This cause was submitted to this Court on briefs. Appellants claim the trial court committed reversible error by overruling their motion for a change of venue. It is averred in the motion that due to the popularity of the owner of the property described in the indictments, and to prejudicial pretrial publicity the appellants could not get a fair and impartial trial in Wilcox County. In the record before us there is no evidence in support of appellants’ motion. The burden was on the appellants to prove to the reasonable satisfaction of the court that a fair and impartial trial could not be had in Wilcox County. There being in this record no evidence to sustain the motion for a change of venue, the trial court could not be in error in denying it. Title 15, Sec. 267, Code of Alabama, 1940, Recompiled 1958; Underwood v. State, 248 Ala. 308, 27 So.2d 492; Gilliland v. The State of Alabama, 291 Ala. 89, 277 So.2d 901; Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, writ denied, 294 Ala. 761, 318 So.2d 801.

Appellants further contend that the trial court by refusing to give at their request the general affirmative charge on the grounds that the State had not made out a case under the indictments against them, committed reversible error. We have carefully reviewed all the evidence contained in the record before us and hold that it is sufficient to sustain the verdict of the jury finding the appellants guilty as charged.

Appellants assign reversible error to the trial court’s overruling of their objections to State’s questions propounded to witness, Mrs. Henderson, on the grounds that she was not an expert. The questions objected to and overruled asked for her opinion on the value of the property taken from her husband’s house and described in the indictments.

It appears from the record before us that the articles taken were pots, washer, picture frames, chairs, rocker, telephone, churn, table, dresser, lamp and books; that Mrs. Henderson had, in fact, purchased some of the articles, was and had been for many years familiar with all of them. She identified them on the truck down the road where two of the appellants had been stopped by officers.

Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or a dealer in an article, but may testify as to value, if he has had an opportunity for forming a correct opinion. We hold that under the facts in this record the trial court did not abuse its discretion in allowing the witness, Mrs. Henderson, to give her opinion as to the value of the articles. Title 7, Sec. 367, Code of Alabama, 1940, Recompiled 1958; Jackson v. State, 17 Ala.App. 197, 84 So. 394; Vandegrift v. State, 151 Ala. 105, 43 So. 852.

Appellants claim on their motion for a new trial that the silence of a member of the venire on voir dire concealed the fact that she and her husband were close, personal friends to the owners of the property described in the indictments thereby denying the Appellants their right to advisedly exercise their peremptory strikes.

In the record before us we find the following questions propounded to the venire on voir dire:

“The Court.

Q. Are any of you jurors close, personal friends of the persons alleged to have been injured in this case, Mr. and Mrs. F. Bain Henderson?

A. (No response).

Q. Are you close, social friends, or on the same church, same social club, or anything?

A. (No response).”

Q. (By Mr. Prince, Attorney for Appellants) Anybody friendly or associated or related to anybody in the Police Department here in Camden? What is your last name?

A. My name is Simpkins.

Q. Are you related to them?

Mrs. Simpkins: I am City Clerk.

Mr. Prince: All right. Is there anybody else?

Q. (By Mr. Prince, continuing:) I’m going to call out a list of prosecution witnesses. I want to know if you’re related to them or whether you’re close friends with them.” There follows the names of nine persons. The names of Mr. and Mrs. Henderson are not included. There was no response to the question.

Appellants offered evidence at the hearing of the motion for a new trial that Mrs. Simpkins was a close, personal friend to the Hendersons. The trial court heard the evidence ore tenus and found that Mrs. Simpkins was not a close, personal friend of the Hendersons, which finding is fully supported by the evidence before the lower court.

Next the appellants contend that there was a duty on Mrs. Simpkins to disclose that her husband was a close, personal friend of the Hendersons. The trial court held that in view of the fact that Mrs. Simpkins was never asked a question about her husband that she was under no duty to disclose his relationship with the Hender-sons.

All parties are entitled to truthful answers from prospective jurors on examination of the venire and concealment of facts by silence by such a prospective juror denies the parties their right to advisedly exercise peremptory strikes, but it is permissible for a juror to remain silent until a question applies to him in a manner demanding a response. Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, writ denied, 292 Ala. 720, 289 So.2d 644; Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181.

We have examined the entire record before us carefully and hold that in view of the fact that Mrs. Simpkins was never asked a question about her husband, or his relationship with the Hendersons, she was under no duty to disclose it.

We have examined carefully the entire record before us and find from such examination that there are no errors in the record prejudicial to the appellants.

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

Affirmed.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Mike KELLY v. STATE.
    3 Div. 457.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.

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

Sale of marijuana; sentence: four and one-half years imprisonment.

The evidence presented at trial was overwhelming to the effect that the appellant engaged in the sale of marijuana on June 16, 1975. The appellant’s sole defense at trial appears to have been entrapment. The jury could have reasonably found that the evidence presented to sustain the defense of entrapment was insufficient. There are three issues raised by the appellant on appeal.

I

The appellant contends that the results of a polygraph or lie detector test should not have been admitted into evidence.

Before trial, the State and the appellant, who was represented by counsel, agreed to the admission of the results of the test. A thorough examination of the appellant and the administrator of the test revealed to the trial court that the appellant was competent to voluntarily make the agreement and take the test. The appellant’s contention that he lacked the competence to make the agreement rested solely on the fact that he had only an eighth grade education. That fact is not sufficient to establish incompetency to the degree required to make his consent involuntary.

The polygraph test was given in the presence of an attorney. The results of the test indicated that the appellant engaged in deception while attempting to recount the events of June 16,1975, the day he allegedly sold the marijuana.

Even though several of our sister states have held that the results of polygraph tests are admissible pursuant to pretrial stipulation,, it is not necessary for us to rule on that proposition at this time. See, State v. Cunningham, Fla.App.1975, 324 So.2d 173. In the present case, the appellant never objected to the introduction of the results of the test. It is axiomatic that in order to obtain a review of the admissibility of evidence one must object to the evidence stating the appropriate grounds and obtain a ruling on the objection. Therefore, there is nothing before this Court to review in this regard. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974).

II

The appellant contends that the trial court erred in not granting a mistrial because of an improper question which was propounded by the State’s attorney.

During the cross-examination of the appellant by the State, the following exchange took place:

“Q. (Mr. Espy continuing): You were convicted in January of 1974 of three cases of burglary and grand larceny for which you were sentenced to four years in the penitentiary for; is that correct?
“A. Yes, sir.
“Q. And one grand larceny case for which you were sentenced thirteen months in the penitentiary?
“A. Yes, sir.
“Q. And you were given a break in those cases, were you not? Because the judge let them all run concurrent.
“MR. SHINBAUM: Your honor, I object to that question and move to strike it. Prejudicial.
“THE COURT: Sustained.
“MR. SHINBAUM: I would like to have that statement excluded by the district attorney.
“MR. ESPY: Withdraw it.
“THE COURT: Granted.
“MR. SHINBAUM: I would move for a mistrial because of its prejudicial nature.
“THE COURT: Denied.”

There is no doubt but that the State’s assertion, that the appellant had on another occasion been given some form of break, constituted an improper argument.

The trial court has much discretion regarding the granting of a mistrial. Cooks v. State, 55 Ala.App. 538, 317 So.2d 506 (1975). There is no ironclad rule regarding abuse of discretion; rather each ruling must be reviewed in the light of the facts of each case. Here the evidence was overwhelming and virtually uncontradicted to the effect that the appellant was guilty. The only possible effect that the improper question had on the jury would have been to influence their decision as to the appellant’s sentence. But for the offense charged here, the judge imposes sentence, not the jury. We find that the trial judge did not abuse his discretion in denying the motion for a mistrial. The trial judge could have reasonably concluded that the improper question was not so prejudicial as to deny the appellant a fair trial. We reach the same conclusion.

Ill

After the trial court’s oral charge to the jury, the appellant orally requested that the trial judge charge the jury regarding possession as a lesser included offense of selling marijuana. The requested charge was not written. The trial court could have refused the charge on that ground alone. Title 7, § 273, Code of Alabama 1940 (Recompiled 1958); Kilpatrick v. State, 51 Ala. App. 352, 285 So.2d 516 (1973) cert. denied 291 Ala. 628, 285 So.2d 525.

AFFIRMED.

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


text:
    Zane BROWN v. STATE.
    3 Div. 560.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.

      Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Stephen M. Langham, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of robbery and a sentence of imprisonment in the penitentiary for ten years.

Both the defendant and the victim were seventeen years of age at the time of the offense. Defendant’s motion for treatment under the Youthful Offender Act was denied after an investigation and a hearing. He thereafter was duly arraigned and pleaded not guilty and not guilty by reason of insanity.

The victim, Richard Stubbs, testified that on December 5, 1975, he was employed at the Eastern Petroleum Station in Montgomery, working from 4:00 P.M. until midnight. As he was closing the station, a 1970 or 1971 LTD pulled into the station. Three young men or boys were in the car. On the trial, Stubbs positively identified one of them as the defendant. While Stubbs was waiting on another customer at the self-service station, the LTD was serviced by one of its three occupants, and one of them thereafter gave Stubbs a twenty-dollar bill, and he and Stubbs went into the station to get change. While the two were in the station, the other pulled a gun on Stubbs and robbed him of the money in the station, consisting of about two hundred dollars. The robber demanded that Stubbs get in the car with the other occupants. He was driven from the station to Hope Hull. On “an old country road” in the vicinity of Hope Hull, Stubbs was told to get out of the car. He said he did not remember anything after getting out of the car until he awoke thereafter while lying on the side of the road. He tried to get up but fell down. He remained conscious at the time for only a few minutes.

Stubbs was found in the early morning hours of December 6 by State Trooper B. S. Maggard, after his attention had been called to him by a passing motorist. Stubbs was then lying in a ditch on the side of the road with blood coming out of the back of his head and a bullet hole between his eyes. Mr. Maggard immediately summoned an ambulance, and Stubbs was taken to the Baptist Hospital in Montgomery and later was transferred to the University of Alabama Hospital in Birmingham, and treated for an injury to his brain that had been pierced by a bullet,

In their investigation of the crime, the Montgomery Police Department found the hull of a twenty-five caliber cartridge at the scene where Stubbs had been shot. A twenty-five caliber pistol was found by a fisherman on a bridge over Caney Creek in Hope Hull, two days after the crime, and turned over to a police officer. A State toxicologist testified that in his opinion the hull had been fired from the particular weapon.

Stubbs was interrogated by police officers of Montgomery, while Stubbs was in the hospital in Birmingham, and was shown some photographs, including photographs of defendant and his brothers Gregory Brown and Leroy Brown, whom Stubbs identified as the three persons in the LTD the night he was robbed.

On December 14, 1975, police officers went to the residence of the Browns, and they were taken into custody. A yellow 1971 Ford LTD, which the evidence showed had been painted yellow during the preceding week, but theretofore was a green or light blue color, was taken into custody and towed to police headquarters. A search warrant was obtained to search the automobile, and a toxicologist testified that “approximately ten dark brown Caucasian-head hairs lying over the fabric” of the rear seat were analyzed by him and compared with the hair from the head of Stubbs, and that he found “no dissimilarity between the two . . . the two samples of hair were consistent down the line, the hairs that I measured, with no unexplained inconsistencies.”

In testifying on the trial, defendant emphatically denied any connection with or participation in the crime and stated that he was elsewhere during the time involved. Several witnesses supported him as to the alibi.

Appellant complains of the action of the trial court in denying defendant’s pretrial motion to suppress evidence taken from the LTD automobile searched by the officers after it had been towed from the home of the Browns to police department headquarters. In the motion to suppress, it is alleged that the search “was not based on a search warrant issued prior thereto,” that it was a “warrantless search.” Evidence taken on the hearing of the motion was to the contrary. The search warrant had been obtained before the search was made. No point is made, or was made on the trial, to the effect that the warrant was invalid, other than the contention by defendant that it was issued after the search. In the testimony of one of the officers as to the time of day, there was an apparent conflict with the indicated time of the issuance of the warrant, but there was positive testimony that the warrant was issued well before the actual search of the automobile. The trial court was not in error in overruling defendant’s motion to suppress.

It is insisted by appellant that the in-court identification of defendant and the lineup identification of defendant and his brothers were tainted in the process of a prior identification of photographs of defendant and his brothers. On a hearing out of the presence of the jury of defendant’s motion to suppress the “line-up” identification of defendant, the trial judge, as well as the attorneys, interrogated the victim of the robbery, and the court concluded “that the line-up was not tainted” in denying defendant’s motion. At that time counsel for defendant was apparently making a point that the victim in viewing the people in the lineup was looking for the persons whose pictures he had seen, as distinguished from the persons who were in the automobile the night he was robbed, but the witness made it clear that he had well in memory the likenesses of the men who robbed him as he viewed them at the service station and on his ride with them therefrom to Hope Hull, even though he had seen and identified pictures of them between that time and his lineup identification of defendant. After the hearing of the motion to suppress the “line-up” identification, there was some evidence by one of the officers that the pictures of defendant and his brothers were thicker than the pictures of the other black males shown to the victim, and this now seems to be the major reason for the appellant’s contention that the process of photographic identification was so suggestive as to taint the lineup identification. No such contention, however, was made to the trial judge at the time of the hearing of, and the ruling on, the motion to suppress. The motion to suppress was not renewed. We would have to go beyond anything in the record before us to justify a conclusion that the difference between the thickness of the photographs of defendant and his brothers and the other photographs was of any material significance in the process of the victim’s identification of the photographs of defendant and this brothers. To hold that there was undue suggestiveness would constitute an undue and unwarranted extension of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, relied upon by appellant.

Although we doubt that the point was sufficiently raised on the trial, we now consider appellant’s contention that the trial court should not have admitted evidence of the shooting of Richard Stubbs. Appellant argues for the application of the general rule, that evidence of other crimes is not admissible, but the facts in this case justify the application of an exception to such rule, that if two or more crimes constitute one criminal transaction, evidence of the other crime or crimes is admissible. In Parsons v. State, 251 Ala. 467, 477, 38 So.2d 209, it was stated:

“But the rule is that if several crimes in fact constitute one criminal transaction, evidence of all such crimes may be given as part of the res gestae of the offense with which defendant is charged.—Allison v. State, 1 Ala.App. 206, 55 So. 453; Askew v. State, 6 Ala.App. 41, 60 So. 455; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782.”

Judge McElroy, citing numerous supporting authorities, has the following to say on the subject:

“Evidence of accused’s commission of another crime is admissible if such other crime is inseparably connected with, or is a ‘part of the res gestae’ of the, now-charged crime; or, if such other crime and the now-charged crime are parts of one continuous transaction or one continuous criminal occurrence. . . . ” McElroy, Law of Evidence in Alabama, § 69.01(3).

A part of the testimony of Officer E. B. Alford, a witness for the State, was to the effect that he determined who had previously owned the pistol that was found on the bridge over Caney Creek and that it had belonged to a man by the name of Reeves, whose house had been burglarized. A part of the cross-examination was as follows:

“Q You stated that this gun was owned by a Cornelius Reeves?
“A Yes, sir; I did.
“Q In your investigation, Detective, did you ascertain whether this man here had ever had possession of that gun, Zane Brown?
“A No, sir. No, no, my investigation didn’t reveal that he had possession of the gun.
“Q To your knowledge, was there any connection ever made between this man and that gun?
“A The only connection would be that Mr. Cornelius Reeves’ house is—
“Q Well, but—
“MR. TEAGUE: Your Honor, he asked for what connection.
“MR. ALLEN: All right.
“MR. TEAGUE: If you don’t want the answers, don’t ask the questions.
“Q His house was burglarized?
“A His house was three blocks from the house that Zane Brown lives in.
“MR. ALLEN: Your Honor, I would object and ask that that be stricken, because there’s no connection between the question and answer.
“MR. TEAGUE: Your Honor, I think, you know, it sounds as though he was embellishing his previous question, which was, was there any connection.
“THE COURT: I’ll allow, I mean, the question was asked by defense counsel and the answer was given to the best ability of the police officer, and I’ll allow the jury to determine what connection, if any, there was.
“MR. ALLEN: All right.
“Q The man who owned the pistol lived three blocks from this defendant?
“A Yes, sir; approximately .three blocks.
“Q All right. Do you have, did Mr. Cornelius tell you he let this man have the pistol?
“A No, sir.
“Q So, other than the proximity of where he lived, do you have any reason to suspect that there would be any connection between this man and that pistol? “A Just the proximity.
“Q All right, sir. You are not saying that as far as your knowledge, that man was involved in a burglary, are you?
“A I have no proof of that.
“Q You have no reason to suspect it; is that correct, as far as any investigation is concerned that you have?
“A No investigation; no, sir.”

Appellant now urges that the trial court was in error in overruling defendant’s request that the witness’ answer: “His house was three blocks from the house that Zane Brown lives in.” be stricken. Although there was possibly some jolt to defendant in the answer of the witness, the occurrence is governed by the principle that where the question of a party calls for evidence that is incompetent or irrelevant, he is precluded from any right he would otherwise have to have the answer to the question stricken. Toliver v. State, 94 Ala. 111, 10 So. 428; Wright v. State, 108 Ala. 60, 18 So. 941; Hammond v. State, 147 Ala. 79, 41 So. 761; Smith v. State, 19 Ala.App. 325, 97 So. 157.

An alibi witness for defendant testified that she saw defendant with his brother, Greg, about 10:30 the night of the alleged crime. On cross-examination, she was asked whether she saw Greg after that day, and she replied that she did. There was objection by defendant “to anything about any other person involved in this case,” which objection was overruled. In this, there was no error. The cross-examination of the witness was within the permissible range of the testing of the recollection and credibility of the witness as to the time she saw Greg and defendant. There was neither error nor injury to defendant to be found in the court’s ruling.

All of the refused charges requested by defendant, except charge 12 and charge 16, were substantially covered by the court’s oral charge.

Charge 12 was a general affirmative charge in favor of defendant. Under the evidence, a jury question was presented as to defendant’s guilt.

Charge 16, “The Court charges you that if the State has failed to prove, beyond a reasonable doubt and to a moral certainty that the defendant did obtain the property in question, you should find him not guilty.” placed undue emphasis upon the obtaining of the property in question. There was no real controversy on the issue whether a robbery had taken place. The sole area of genuine contest was as to the identity of defendant. As he was not charged with being the sole participant in the robbery and as the victim said that defendant was not the one who actually pulled the gun on him and took the money, the charge would have been misleading and would not have correctly stated the law as applied to this particular case.

Our search of the record reveals that the evidence justified the verdict of the jury, that no error prejudicial to defendant occurred on the trial. The judgment of the trial court should be affirmed.

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

AFFIRMED.

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


author: TYSON, Judge.

text:
    CITY OF BIRMINGHAM v. Phil TOMBERLIN.
    6 Div. 252.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.

      William C. Walker, Birmingham, for appellant.
    Arthur J. Hanes, Jr., Birmingham, for appellee.
   TYSON, Judge.

The City of Birmingham, acting through Police Officers Jimmy L. Wesson and Sgt. C. E. Nelson, made complaint against Phil Tomberlin for operating a store on September 7, 1975, in violation of the City Ordinance and State Statute prohibiting the operation of a general store on Sunday, contrary to law. The case was tried in Recorders Court, and thereafter appealed to the Circuit Court of Jefferson County, Alabama, where, following a jury trial, the appellant was acquitted, and the City of Birmingham prosecutes this appeal pursuant to the provisions of Title 62, Section 693, Code of Alabama 1940, and City of Birmingham v. Williams, 26 Ala.App. 200, 155 So. 878.

Police Officer Jimmy L. Wesson testified that, accompanied by Sgt. C. E. Nelson, he went to Eckerd’s Drug Store in the 7800 block of Crestwood Boulevard in the City of Birmingham, and went into the store about 2:30 Sunday afternoon. He testified he walked about inside the store, observed a cosmetic section near the cash registers, and thereafter walked down the aisles and saw some items of hardware and a section which sold magazines beyond the cosmetic section. In the cosmetic section he noticed that lipsticks, powders and perfumes were sold and that also near the cash register he saw some cigarette lighters and cameras and films offered for sale. Further, he noted that there was a display section which contained school supplies, stationery, pencils, pens, and ink. He also saw a section which sold electrical appliances, such as heaters, hair dryers, and mixers, and electric tapes and fuses. He and Officer Nelson purchased from one of the salesladies on duty an electric tape and some fuses, and also a football stadium cushion and paid a total price of $4.73 for the items.

He further testified that he did not see any food items for sale other than ice cream, or soda. He further stated he saw no clothing items offered for sale other than an item of convenience, stockings for women, near the front. He stated that in the rear of the store was the prescription department and that he observed a pharmacist on duty at the time, though he had no conversation with him. He stated that the saleslady from whom he purchased the fuse and electric tape, was Beverly Bloodworth. He stated that after leaving the store, he and Sgt. Nelson went back in and arrested the appellant for operating a general store in violation of the City Ordinance known as the “Blue Law.”

Sgt. C. E. Nelson testified that he accompanied Officer Wesson on September 7, 1975, to Eckerd’s Drug Store on Crestwood Boulevard, located in the 7800 block in the City of Birmingham, Alabama. He stated this was a Sunday afternoon at about 2:30, and that the two officers walked in and looked through the store to see the general arrangement. He stated that he saw a stationery and school supply department, that beyond it was a section which sold jewelry and cameras and film, but that he did not see any items of clothing for sale other than a small counter which contained ladies’ hose. He saw an electrical appliance section containing coffee pots, can openers and a few small items of hardware, such as paint and brushes, and that he and his fellow officer purchased an electric tape and some fuses. He further stated that the only food items he saw were ice cream and soda. He stated that after making the purchase, they went back in and arrested the store manager, Mr. Tomberlin, for operating a general store on Sunday in violation of the City Ordinance, known as the “Blue Law.”

By stipulation several items were then placed in evidence before the jury, which were the general store license to operate a drugstore, which had been issued by the City of Birmingham, and which was current, also the license from the Alabama State Board of Pharmacy to operate a pharmacy, which also was current. Further placed in evidence was the pharmacy license for the pharmacist on duty in the prescription department, which was also current.

Mr. Phil Tomberlin testified that he was employed as manager of Eckerd’s Drug Store, 7883 Crestwood Boulevard, in the City of Birmingham, Alabama, on September 7, 1975. He testified that he was on duty on this date, and that approximately sixty to sixty-five percent of the items sold on this date were drug and medical items. He also testified that neither officer talked with him or with the registered pharmacist on duty on the afternoon in question prior to his being arrested for operating a general store in violation of the city law. He testified that he himself was not a registered pharmacist, but that his registered pharmacist and an assistant were both on duty in the store on the afternoon in question. He testified that he had a sales clerk, named Beverly Bloodworth, who operated a cash register and who received the monies from the two officers for the purchase of an electric tape and some fuses. He testified that his store sold no food items other than ice cream and sundries, together with soda, but they did have a small hardware department for convenience where house paint and brushes were together with some small items like hose and lawn sprinklers. He said that items such as soap and detergents were also there, and that he did have an electric appliance section where fans, coffee pots, and percolators were sold. He also operated a section where ladies’ cosmetics were sold, however, they did not sell items such as fishing tackle, general foods, or clothing other than to have a small counter which contained convenience type ladies’ hose.

The trial court charged the jury on the general definition of drugstore and druggist, as set forth in the Code of Alabama and submitted and the case to the jury and charged them that they were to determine from the facts whether or not the store in question was being operated as a drugstore within the meaning of that term as is generally understood and charged them to use contemporary community standards in arriving at their verdict. The jury found the appellant innocent, and the City of Birmingham appeals from that verdict and judgment of acquittal.

The City of Birmingham contends that the Circuit Court was in error in charging the jury on the operation of a drugstore as those terms are generally understood, and that the appellant was in fact operating a general store rather than a drugstore.

I

In Stollenwerck v. State, 201 Ala. 392, 78 So. 454, Mr. Justice Mayfield made the following observations:

“Courts are not supposed to be ignorant of that which everybody knows; and everybody in this state knows that drug stores .are not limited in their stock in trade to drugs only; that they carry tobacco, cigars, candies, soaps, toilet articles, and the like, as well as medicines and drugs, and that, in the absence of local laws, they are kept open on Sunday, and sell on Sunday such articles as they carry in trade, and that it has never heretofore been deemed a violation of the criminal statute to do so. Such has been the contemporaneous construction of the statute, for 50 years, by the officers charged with the enforcement of the laws, and by the people, who are charged with observing them.
“It may be that the sale of any article in a drug store on Sunday other than drugs, or medicines, ought to be prohibited by a criminal statute; but the fact remains that such sales, of and in themselves, are not now so prohibited, and have not been, for 50 years; and, moreover, what the law ought to be is a question for the Legislature and not for the courts.”

In construing the same statute here at issue, Title 14, Section 420, Code of Alabama 1940, under challenge on appeal from a suit brought in the City of Mobile wherein it was asserted that to allow drugstores to remain open and sell items other than pure medicines and drugs was in violation of the equal protection provisions of law, such was specifically rejected by the Supreme Court of Alabama in Lane v. McFadyen, 259 Ala. 205, 66 So.2d 83. In Lane, supra, Mr. Justice Lawson noted the following:

“As shown above, druggists are excepted from the prohibition of the Sunday closing provisions of § 420, supra. In Ex parte Stollenwerck, supra, following the previous decisions of this court to the effect that the prohibition is not against sales, but against ‘keeping open store,’ we held that a bona fide druggist did not violate the Sunday closing law by keeping open store and selling on Sunday those articles of merchandise which had been customarily sold in drug stores for a long period of time, such as soda water, tobacco, cigars, ice cream, candies, confectioneries and toilet articles.
“Appellant concedes that it would not have been unreasonable for the legislature to exempt the sale of drugs on Sunday, recognizing the fact that it it in the public interest that such articles be obtainable on Sunday. However, appellant insists that where the legislature has provided, as this court held, that a druggist may keep open store and sell articles other than drugs that the classification becomes unreasonable and arbitrary. We cannot agree. We know of no power vested in the legislature to require a druggist to keep his store open for the sale of drugs only. Hence, the legislature in our opinion would be well justified in concluding that in order to have a place where drugs might be obtained on Sunday, a bona fide druggist should be permitted to dispose of those articles usually and customarily sold in drug stores other than drugs.”

The Stollenwerck and Lane, supra, opinions have been followed by the Supreme Court of Alabama in Langan v. Mobile Winn Dixie, Incorporated, 277 Ala. 583, 173 So.2d 573.

More recently, the Supreme Court of Alabama upheld the operation of small food stores, known as “convenience stores,” as being exempt from the very provisions here under construction, namely, Title 14, Section 420, Code of Alabama 1940, in an opinion by Mr. Justice Harwood in Caiola v. The City of Birmingham, 288 Ala. 486, 262 So.2d 602.

We have carefully examined the oral charge of the trial court and the evidence as set forth in this opinion and find that the trial judge did correctly charge the jury on the applicable law. Authorities herein above cited.

There is nothing contained in this record which indicates in the slightest degree any violation of law whatsoever. The City of Birmingham conceded in argument that the trial jury was out only three or four minutes before reaching its verdict and judgment of acquittal. This was entirely proper and in accordance with the evidence presented at trial. Mr. Tomberlin has done no wrong.

The judgment appealed from is due to be and the same is hereby affirmed. Stollenwerck v. State, 201 Ala. 392, 78 So. 454; Town of Livingston v. Scruggs, 18 Ala.App. 527, 93 So. 224, and: authorities hereinabove cited.

AFFIRMED.

All the Judges concur.


text:
    John Edward CHILDERS, alias v. STATE.
    6 Div. 296.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Ralph C. Burroughs, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   L. S. MOORE, Supernumerary Circuit Judge.

The appellant was indicted, tried and convicted for robbery. He appealed from that final judgment to this Court.

In the trial below Steven Swindle testified that on October 24, 1974, he was employed by David and Company and worked alone from 12:00 o’clock midnight until 8:00 a. m. About 2:45 a. m., while in the back of the store, he saw three men come in; the first one grabbed him and threatened him with a piece of plastic pipe, and then he was shoved down on the floor. All three men were black and there were no other people in the store. Swindle stated further that the first one grabbed him, another one pulled a shotgun from under his coat and pointed it at him, and another one went to the cash register and took $800.00 out of it; that Harvey Lee Bobo and David Crawford were two of the three men in the store at the time; Crawford had the shotgun and pipe and Bobo got the money from the cash register. He further testified that Steve Weller owned the store and its contents, including the money taken from the cash register, and that the three men were in the store three or four minutes; that he could not positively identify the appellant as being one of the three men in the store at the time in question. The witness stated that the man other than Crawford and Bobo had the shotgun pointed at him.

Alan Fondren testified in substance in the trial of the appellant; that he was Investigator for the Police Department; that he saw appellant at the police station on October 24, 1975; that at that time the appellant made a statement to him. After proof that the Miranda warning was given to appellant, and further proof that the statement made by appellant was voluntarily and freely given without threats, coercion, intimidation, or hope of reward, the witness was permitted to testify to the contents of the statement made by appellant as follows:

“Q And what did he say to you at that time?
A He said he was with two other people, Harvey Bobo and David Crawford, and he said he went out to the Austin Arms Apartments to see a friend of his, Carlos Cameron, and he said he left the other two boys in the car and went up and knocked on the door of Cameron’s residence and he stated he wasn’t at home. And he came back to his car and the other two boys were gone out of the car. And he waited on them for a short time and they came running back to the car saying something about, ‘let’s go, there has been a robbery,’ and he said he cranked up the car and took off.
Q Did you question him what type car he was in?
A Yes, sir.
Q What type automobile did he say it was?
A A 1972 Chevrolet.
Q Did he say what color it was?
A White.
Q Did he say who was driving it or who owned the car?
A He said it was his car.
Q Now did you question him concerning a sawed off shotgun?
A Yes, sir.
Q Alright. What did he say, if anything?
A He said it was the type gun that it would break down in three pieces and that it was a short barrel gun with something like a pistol grip on it and the kind of gun that was made up pretty fancy.
Q Did you question him concerning when he first saw this shotgun?
A Yes, sir.
Q What did he say in answer to that?
A He said something about early in the day when they got together he noticed them when he got in the car, they had it in a brown bag, something like an army bag or convas bag.
Q And did he give a description of it at that time? I will ask you to state whether or not it was broken down or in one piece.
A I believe he said it was broken down.”

This witness further testified that the appellant said he saw the shotgun that night when they (the other two) put it into the car; that it was in some sort of bag.

James Harry Montgomery testified in substance that on November 20, 1975, he went to Detroit, Michigan, to bring the appellant back to Alabama. This witness was a Deputy Sheriff and after giving testimony that when they got in the car for the return trip to Alabama he gave the Miranda warning to the appellant and the appellant gave a voluntary statement to him on the way back from Detroit. The witness went in details and facts surrounding the voluntariness of the statement. The law was fully complied with in that respect. He then testified the appellant made the following statement to him:

“Q And what was that statement?
A He said that two of his friends had asked him to go over to David and Company over on University Boulevard, that they wanted to buy something. And he carried them to the store and they went inside and he stayed outside in the car. And he didn’t know what was going on until they came out of the store.
Q He stated to you he waited in the car?
A Yes, sir.”

All of the evidence was offered by the State. The appellant did not testify and he did not submit any other evidence.

The appellant contends the trial court erred in overruling his motion to dismiss the State’s evidence and for a directed verdict.

There was sufficient proof of the corpus delicti. There was also evidence that three persons took part in the robbery; that the three were inside the store, two of whom were identified by the witness, Steven Swindle, but Swindle could not identify the third person as being the appellant. That witness testified the unidentified person had the shotgun and held it on him during the robbery.

In the first statement of the appellant, admitted in evidence and set out in his opinion, the appellant stated in substance that he carried Harvey Bobo and David Crawford to the Austin Arms Apartments. Other evidence shows this apartment building was very near the scene of the robbery — one or two doors from the store where the robbery took place. It was also shown that the said Bobo and Crawford were two of the three people that took part in the robbery.

In the statement referred to, the appellant said that he entered the apartment building and when he came back to the car Bobo and Crawford were gone out of the car; that he waited a short time and they came running back to the car and said there had been a robbery; that one of them had a fist full of money and that he cranked up the car and took off. He further said in that statement that Crawford and Bobo had the shotgun in a brown bag when they got together early that day.

In the second statement of his introduced evidence as set out above he said, in substance, that he took them to the store where the robbery took place and they went inside and he stayed outside in the car.

Those statements are substantial evidence of his guilt when taken in connection with the evidence of the robbery inside the store, and presented a jury question. There was substantial evidence that he aided and abetted in the commission of the offense.

T. 14, § 14, Alabama Code of 1940, recompiled in 1958, reads as follows:

“The distinction between an accessory before the fact and a principal, between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors.”

Under the evidence in this case, even if the appellant was not the third man inside the store engaged in the robbery, the jury was justified in deciding that appellant knew what was going on; that he aided and abetted in the commission of the robbery by transporting the other participants in the robbery to the scene of the robbery, served as a “Lookout” and drove the “get away car.” That was a jury question that was justifiably answered by the verdict of guilty returned by the jury. See Bobo v. State, 56 Ala.App. 622, 324 So.2d 336.

The appellant also contends that there was no evidence of flight on the part of the appellant and that counsel for the State should not have been permitted, over appellant’s objection, to have argued that there was such flight, and that the trial judge should not have instructed the jury on the subject of flight for the same reason.

The argument of District Attorney objected to, as set out in the record is as follows:

“MR. RANDALL: We submit there was flight in this case and that the defendant had to be brought back.”
* ifc * ifc * *
“MR. RANDALL: That is not correct and we have shown flight and we would like for the jury to be allowed to consider that.”

On that subject the trial judge instructed the jury as follows:

“ * * * If you think from all the evidence in this case that the testimony shows he was fleeing or running off from the crime, so to speak, you have a right to consider that but it is up to you to give whatever weight you might give it if you should find there was flight. I am not saying there was flight, but that is for you to decide from all the evidence in this case. It is really up to you, * *

In White v. State, 111 Ala. 92, 21 So. 330, in quoting from Bowles v. State, 58 Ala. 335, the court said:

“ ‘All evasions or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts. Of themselves they may not warrant a conviction, but they are relevant as evidence, and the weight to which they are entitled it is the province of the jury to determine, under proper instructions from the court. * * * Flight for which no proper motive can be assigned, and which remains unexplained, is a circumstance, all authorities agree, it is proper to submit to the jury, in connection with other evidence tending to show the guilt of the accused. * *

In Tiner v. State, 279 Ala. 126, 182 So.2d 859, the court stated:

“Flight, though not conclusive, is usually evidence of guilt, and if a suspect flees at the approach of officers having knowledge of, or reasonable cause to believe, that a felony has been committed, there can be no doubt but that such conduct furnishes a reasonable cause for believing that the suspect committed the felony.”

Therefore, the argument of the District Attorney and the charge of the court in the case before us were in line with the law if there was any evidence of flight.

The robbery having been shown by the evidence, coupled with the statement of the appellant, “ * * * they came running back to the car * * * that he saw one of the boys with a fist full of money and that he cranked up the car and took off. * * and, also with the facts that he was some months later found in Detroit, Michigan, and the fact that his actions in the meantime remains unexplained, is clearly evidence of flight which should have been submitted to the jury. The argument of the District Attorney and the charge of the court is without error.

In the case before us the trial judge did not instruct the jury on any offenses other than robbery and no objection or exception to the charge was made or taken in that respect. The appellant did not submit any requested written charge or charges to the trial judge. However, on this appeal the appellant contends this failure to charge on other offenses embraced in the indictment is reversible error.

In De Graaf v. State, 34 Ala.App. 137, 37 So.2d 130, we find this statement of the law:

“In the quite recent case of Edwards v. State [33] Ala.App. [386], 34 So.2d 173, this court, through Bricken, Presiding Judge, held that where all the evidence adduced shows either the complete, consummated crime, or no offense at all, a jury is warranted only in returning a verdict of guilty of the offense charged, or a verdict of not guilty, depending of course upon whether the jury accepts the evidence presented by the State, or by the accused. On this point Judge Bricken wrote:
“ ‘As stated the only evidence adduced upon the trial of this case as to the commission of the alleged offense by appellant was that of the named injured party, which evidence was unsupported by any other evidence in the case. Said evidence tended to show that the crime of robbery itself was completed, that is to say under said evidence the crime was fully consummated. However the verdict of the jury acquitted the defendant of the offense of robbery, and, as noted, found the defendant guilty of an assault with intent to rob. Said verdict was unsupported by the evidence and was manifestly a com1 promise verdict which the law does not approve or contemplate. It also shows the exercise of a discretion by the jury not based upon the law or facts; hence in law, was contrary to the law and the evidence, as contended by appellant.”

The offense of robbery was clearly proven by the evidence without contradiction in the evidence. The trial judge of his own motion is not required to charge on an offense for which the jury could not legally convict.

There are other sound legal reasons why the failure to charge on inferior offenses embraced in the indictment is not error. One may not object to something not in the charge and certainly not for the first time on appeal.

We have performed our statutory duty to search the record for error and have found no error.

It is, therefore, ordered that the judgment of the trial court be and is affirmed. Bobo v. State, supra.

The foregoing opinion was prepared by Supernumerary Circuit Judge L. S. Moore, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; opinion is hereby adopted as that of the Court. The judgment is hereby

AFFIRMED.

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


text:
    Jerry BUTTRAM v. STATE.
    7 Div. 497.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.

      Roger Killian, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

On August 28, 1973, on an indictment charging murder in the first degree, appellant was convicted of manslaughter in the first degree of Harold W. Culpepper and sentenced to imprisonment for ten years. Explanation for the interval of more than three years between the conviction and this opinion is to be found, partly at least, in the change of mind of defendant after he had notified the court that he did not desire an appeal, and proceedings subsequent to such change of mind. On a hearing on a petition for habeas corpus by appellant herein, the United States District Court for the Northern District of Alabama, Middle Division, found that he had changed his mind and his court appointed counsel had given the court timely notice by letter that he desired to appeal his conviction and the court “instructed court-appointed counsel to prepare an order appointing counsel for the appeal and to file an application for a free transcript,” but for “unexplained reasons, these procedures were not followed.” The United States Court granted the petition for habe-as corpus subject to conditions in the alternative: (1) the State could retry petitioner, (2) the State, if it chose to do so, could grant petitioner an out-of-time appeal, or (3) the State could consider that defendant had given timely notice of an appeal. Thereafter, on motion of the State of Alabama through the Attorney General, the trial court entered an order declaring defendant indigent, directing the preparation of a transcript, without expense to appellant, and appointing his counsel on the trial as his counsel on appeal. Briefs have been filed, and the appeal was orally argued and submitted on the merits on October 4,1976. We will proceed to a determination thereof on its merits.

Defendant pleaded not guilty and not guilty by reason of insanity. In advance of trial, a hearing was conducted on defendant’s motion for “determination of defendant’s mental competency.” In the motion, defendant had requested that the defendant be made available for the “Dekalb County Mental Health Center to administer a test to determine the intelligence quotient of the defendant prior to the court’s hearing the main motion herein.” The request was granted and defendant was analyzed by a psychometrist at the DeKalb County Mental Health Clinic. On the hearing of the “main motion,” the report of the psy-chometrist was offered in evidence, but the State objected to it on the ground that it was hearsay, and the court sustained the State’s objection. The report showed an intelligence quotient of sixty-six, which placed defendant in the “mild mentally retarded category of intellectual functioning,” which according to the report indicated that he functioned somewhat like a ten-eleven year old child. The motion expressly relied upon “Title 15, Chapter 21, Article 2, Code of Alabama.” Section 426 thereof provides in part as follows:

“If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct. .

The quoted portion of the statute is the controlling provision as to this case.

In determining whether there is “reasonable ground to doubt his sanity,” or to doubt a “defendant’s mental competency” to stand trial, the trial court is not necessarily restricted by general principles of evidence. It has the right to consider, and should consider, any matter that comes to its attention that bears upon the question of defendant’s sanity or his competency to stand trial. At times, it may be that the fact that proffered testimony is hearsay would warrant a rejection of it as incredible, but this would not always be correct. For instance, while a court is considering a question whether a defendant is mentally competent to stand trial, a recent written report of an eminent physician, a specialist in mental disorders, to the effect that he has carefully examined defendant and found him to be an idiot, should not be rejected merely because it is in hearsay form, especially if the court had no reason to question the authenticity of the report. The usability of reports of experts, without the attendance in court of the expert in connection with proceedings under Code of Alabama, Title 15, § 426, is vivified by the provision thereof as follows:

“. . . When the superintendent of the hospitals shall be of the opinion that such person is so restored he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to prison on an order of such judge, and the criminal proceedings resumed. . . .”

Our review of the record convinces us that, although the report of the psychome-trist was entitled to consideration by the trial judge in the absence of any challenge to its authenticity or reliability, the trial court did in effect consider it in the conclusion it reached in denying defendant’s motion “for a judicial determination of the mental competency of the defendant.” Defendant’s counsel made it clear to the court that he had nothing upon which to base the motion other than the report of the psy-chometrist. During the colloquy among the court, counsel for defendant and counsel for the State, the trial court stated:

“Assuming for the sake of argument that it would be admissible, and I know what counsel has said as to its contents, there would-be nothing in what counsel has stated thus far that would tend to prove that the person was mentally incompetent, as far as the criminal culpability under Alabama law is concerned.”

Thereafter counsel for defendant correctly distinguished between mental competency to commit a crime and mental competency to stand trial, and subsequently the court said:

“However, the statute, as I recall the statute to which you refer, there must be a showing from which the Court would conclude that such a determination would be indicated.”

As we view the record, the trial court concluded that the report of the psychometrist, which is made a part of the record and which was exhibited to the trial court, was not sufficient to cause the trial court to have reasonable ground to doubt defendant’s sanity, or his mental competency to stand trial.

That a defendant is put to trial without a judicial determination of his sanity, or his mental competency to stand trial, is not ground for a reversal of a conviction. In such an event, the appropriate procedure is for judgment to be suspended and the case remanded to the trial court for a determination thereof, if there is sufficient basis for requiring such a determination. Edgarson v. State, 53 Ala.App. 581, 302 So.2d 556; Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, writ quashed, 292 Ala. 745, 293 So.2d 489, judgment vacated after remand, 57 Ala.App., 633, 330 So.2d 615; Buttram v. State, 57 Ala.App. 422, 329 So.2d 111, after remand, 57 Ala.App. 425, 329 So.2d 114, cert. denied, 295 Ala. 394, 329 So.2d 116. In Buttram, appellant is the same appellant as here. According to the undisputed evidence, he had, on the same general occasion, killed H. W. Culpepper, as charged in this case, and James R. Williams, as charged in the other Buttram case, by shooting them separately, for which separate indictments were brought against him and separate trials were conducted. For killing Williams, he was found guilty of murder in the second degree and sentenced to imprisonment in the penitentiary for twenty years. Defendant had moved somewhat in accord with his motion in this case, as to which apparently there was no hearing but a ruling by the court as follows:

“The defendant’s motion requesting an examination by a physician is denied.” We thought that the evidence on the trial of the case gave rise to a serious question whether the trial court should have had “reasonable ground” to doubt his sanity, and remanded the case for a determination thereof. In compliance with directions, the trial court conducted a hearing and, before making a determination, had defendant admitted to Bryce Hospital for an examination and evaluation “as to the defendant’s competency to stand trial on December 19, 1974, and, additionally, his present competency to stand trial.” A written report was submitted by Dr. Jerold S. Lower, Clinical Coordinator, Forensic Program, at Bryce Hospital, stating that the Forensic Evaluation Board had determined that “there is no evidence of [Mr. Buttram’s] having a degree of disturbance sufficient to destroy or impair his competency or his criminal responsibility, either presently or at any time in the past. He should be promptly returned to the judicial system.” We cannot ignore, and we take judicial notice of, for the purpose at hand, the record before us in the other Buttram case. Jones v. State, 48 Ala.App. 32, 261 So.2d 451.

A suspension of the judgment of conviction and a remand to the trial court to determine whether defendant was competent to stand trial at the time of the trial in instant case is not justified for the following separate and distinct reasons: (1) The trial court evidently concluded that the intelligence quotient test report was not in and of itself sufficient to create a reasonable doubt as to defendant’s competency to stand trial, and we cannot find that the trial court was in error in such conclusion, (2) there is no reason to believe that further consideration of the question by the trial court in the light of all available evidence, or indications, on the point would lead to reasonable doubt as to defendant’s competency to stand trial and (3) appellant does not request that the case be remanded to the trial court for a determination of his mental competency to stand trial at the time of the trial. We can see that such a request, if granted, would not necessarily be to the best interest of defendant, as he has now served approximately one third of his sentence.

During the closing argument of counsel for the State, the following occurred:

“(Thereupon, the following objection was made at a point during Mr. Black’s closing statements to the jury.)
“MR. NELSON: Your Honor, we object; there was no testimony they were out there at the request of Mrs. Buttram.
“THE COURT: Just a minute. I don’t recall the testimony you have reference to, counselor.
“MR. NELSON: Mr. Black said he submitted they were there at the request of Mrs. Buttram, and there was no testimony to that effect.
“THE COURT: Overruled.
“MR. NELSON: We except.”

Appellant insists that the ruling of the court was erroneous. We might be justified in upholding the ruling of the court, on the ground that the argument of counsel for the State is not sufficiently set forth to enable us to determine what was really said. ■ In Johnson v. State, 35 Ala. App. 645, 51 So.2d 901, it was stated:

“ ‘In order for this court to intelligently pass upon the question, enough of the remarks of the solicitor must be incorporated in the record to inform the court as to what was really said, and not mere[ly] disjointed sentences of the solicitor’s speech.’ Gray v. State, 19 Ala.App. 550, 98 So. 818, 819; Pate v. State, 32 Ala. App. 365, 26 So.2d 214.”

It is riot necessary, however, for us to apply the principle here. What we have before us shows that counsel for the State was arguing inferentially only and was not making a statement of a substantive, outside fact, stated as a fact. The two men killed were at Mrs. Buttram’s house. They were there before defendant arrived with his girl friend. The two were in the kitchen with

Mrs. Buttram, sitting around the kitchen table with Mrs.- Buttram, and drinking beer at the time defendant and his girl friend arrived at the house a short while before he shot Culpepper and Williams. There was evidence to the effect that after the argument commenced between defendant and one of the victims, Mrs. Buttram told defendant that he should have known better than to bring someone like Williams to her house and that she ordered the two men to leave. Before the argument started, however, the evidence indicated that the two men were guests in Mrs. Buttram’s home, where they sat around the kitchen table with her and drank beer. It would be an unreasonable restriction upon counsel for the State not to be able to argue, as distinguished from stating as an out-of-the-record fact, that the victims were not intruders or trespassers, but that they were in the kitchen of appellant’s mother as her guests, that they were there at her request, express or implied. Counsel should be allowed considerable latitude in drawing their deductions from evidence and argument to the jury. Espey v. State, 270 Ala. 669, 120 So.2d 904; Cosby v. State, 269 Ala. 501, 114 So.2d 250; Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697, cert. denied, 294 Ala. 756, 320 So.2d 709; Edson v. State, 53 Ala. App. 460, 301 So.2d 226.

We have considered all contentions made by appellant and have searched the record for error prejudicial to defendant. We conclude that the evidence justified the verdict of the jury, that no error prejudicial to defendant occurred on the trial or in any of the proceedings in the trial court, and the judgment should be affirmed.

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

AFFIRMED.

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


author: BOYD, Justice.

text:
    UNIQUE CATERERS, INC., etc., Appellant, v. RUDY’S FARM COMPANY, etc., Appellee.
    No. 48032.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Rehearing Denied Nov. 22, 1976.
    Seymour Kaplan of Heller & Kaplan, Miami, for appellant.
    Lucien C. Proby, Jr., of Pallot, Stern, Proby & Adkins, Miami, for appellee.
    Robert L. Shevin, Atty. Gen., and Thomas A. Harris, Asst. Atty. Gen., for the State of Florida, intervenor.
   BOYD, Justice.

We have for our review an order of the Circuit Court, Eleventh Judicial Circuit, in which the court acting in its appellate capacity passed on the constitutional validity of Chapter 76, Florida Statutes, upholding it as constitutional. We have jurisdiction.

Rudy’s Farm Company filed a complaint on an account stated against Unique Caterers, Inc., a Florida corporation, in the County Court in and for Dade County, Florida. Attached to the complaint was a copy of a statement supported by invoices which showed a debt owed to Rudy’s Farm by Unique of $1,630.61. Recovery of this amount plus interest was sought in the complaint.

At the same time the complaint was filed a Motion for Issuance of a Writ of Attachment was filed pursuant to Section 76.09, Florida Statutes. The motion was not supported by an affidavit, nor is an affidavit required under the statute. A writ of attachment was issued by the Clerk of the County Court ordering the seizure of so much of the property of Unique Caterers as would satisfy a judgment of $1,630.61. Sufficient personalty of the defendant was seized by the Sheriff of Dade County. A Motion to Dissolve Attachment was denied by the County Court and the cause proceeded to trial before a jury. A directed verdict was entered by the trial court in favor of the plaintiff. Defendant appealed both the denial of its dissolution motion, claiming Chapter 76, Florida Statutes, to be unconstitutional, and the judgment for plaintiff to the Circuit Court, whose order we now review.

The order affirmed the judgment and found Chapter 76 to be constitutional. Our review of the record reveals no basis for reversing the Circuit Court’s affirmance of the judgment. The constitutionality of Chapter 76 presents a much more difficult issue.

The question before us is whether the procedures of Florida’s attachment statute, Chapter 76, Florida Statutes, violate the United States Constitution’s Fourteenth Amendment guarantee that no state shall deprive any person of property without due process of law.

For many years the commercial statutes of the states were thought to be unassailable by due process attacks. Consistent with this view the Supreme Court of the United States upheld prejudgment attachment statutes. McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929); Coffin Bros. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921). But recently the concepts of due process have been expanded by the United States Supreme Court and the expansion entered the field of commercial law in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). There it was held that, absent prior notice and hearing, prejudgment garnishment procedures violate fundamental principles of due process. The Court seemed to be limiting its holding to garnishment,

“We deal here with wages — a specialized type of property presenting distinct problems in our economic system.” Id at 340, 89 S.Ct. at 1822.

Nevertheless Sniadach opened the door to due process attacks on commercial statutes which protect creditors by prejudgment deprivation of a debtor’s property.

The concept of procedural due process as it relates to commercial statutes was further expanded in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), where the replevin statutes of this State and Pennsylvania came under attack. The statutes authorized the summary seizure of goods and chattels upon the ex parte application of a person out-of-possession who claimed a right to them and posted a security bond. The core of procedural due process was stated to be that parties whose rights are affected are entitled to be heard, which includes the right to notice, and that hearing and notice rights must be meaningful both as to time and manner. The purpose of meaningful notice and hearing was said to be to minimize unfair or mistaken deprivation of property, and this purpose applied to not just the “necessities of life” as Sniadach might have indicated but to “property” generally. Meaningful notice and hearing was determined to be prior hearing and notice, where replevin was concerned, and so the replevin statutes of this State and Pennsylvania which did not provide for prior hearing were held to work a deprivation of property without due process of law. The power of the State to seize goods before final judgment in order to secure creditors’ interests was not questioned as long as the claims were tested in a fair prior hearing. The Court recognized that there are extraordinary circumstances which justify postponement of notice and hearing but the examples cited by the Court: collection of internal revenue of the United States; fulfilling needs of a war effort; protection against a bank failure, misbranded drugs or contaminated food; are, as described by the Court, “truly unusual.” Id at 90, 92 S.Ct. 1983.

Were we afforded only Fuentes as authority for decision in this case we would probably hold the challenged attachment statute unconstitutional for failure to require prior notice and hearing, even though such a holding might seem to defeat, in part, the remedy the statute offers. The grounds on which a writ of attachment will issue do not seem to fit into those “extraordinary circumstances” which justify postponement of an opportunity to be heard, though it might be noted that the Court referred to immediate danger that a debtor will destroy or conceal disputed goods as an unusual situation. Id at 93, 92 S.Ct. 1983. At any rate, the Court has handed down two post -Fuentes decisions which appear to initially recede from and then partially revive Fuentes: Mitchell v. W. T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) and North Georgia Finishing Inc. v. Di-Chem Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). Their effect on “prior hearing” requirements is not crystal clear. Requirements of prior hearing aside, it is clear that an objectionable aspect of the Fuentes replevin statutes was that a private party could invoke the statute unilaterally, without any review by a state official and this objection to prejudgment lien statutes was voiced again by the Court in Mitchell.

In Mitchell the issue was whether notice or hearing was required before sequestration of the property of a debtor sold under an installment sales contract by a creditor who retained a vendor’s lien in the property under State law. Premising its opinion on the fact that both the seller and the buyer had current, real interests in the property the Court upheld the sequestration and, in the process, the sequestration procedure on its face, as well. The Court found the Louisiana sequestration statute to meet constitutional muster in five significant ways: 1) the writ would not issue unless it was supported by an affidavit which clearly demonstrated the grounds for sequestration; 2) the writ would not issue in the Louisiana parish in which the case arose unless authorized by a judge to whom a clear showing of the grounds for issuance was made; 3) the creditor was required to post a bond; 4) the debtor could regain his property by posting a bond sufficient to protect the interests of the creditor; 5) the debtor was entitled to an immediate post-seizure hearing, at which the creditor would have the burden or proving the grounds upon which the writ issued. Special emphasis appears to have been placed on the immediate post-seizure hearing which would minimize, as much as possible, the impact of unfair deprivation.

In his concurring opinion in Mitchell Justice Powell noted that Fuentes was implicitly overruled and Justice Stewart, the author of Fuentes agreed. Both were to retract the Fuentes death knell in North Georgia Finishing, supra.

In North Georgia Finishing a corporate defendant’s bank account was garnished under a state statute which permitted a clerk of the court, or some other officer authorized to issue an attachment, to issue the writ of garnishment if supported by an affidavit which states the plaintiff has reason to expect loss of the amount claimed due. The only method open to the defendant for dissolving the writ was by filing a bond. Without such a bond, the defendant would be deprived of the property pending the litigation because there was no provision for an early hearing. The Court stated the Georgia statute was vulnerable under the Fourteenth Amendment’s Due Process Clause for the same reasons as were the Fuentes replevin statutes, no “opportunity for an early hearing,” nor participation by a “judicial officer.” Id at 606, 95 S.Ct. 719.

In light of the reliance of North Georgia Finishing on Fuentes the question is when are prior hearings in attachment proceedings required by the Due Process Clause. Reference to prior hearings is conspicuously absent in the majority opinion in North Georgia Finishing. Perhaps a secret ex parte hearing before a judicial officer prior to issuance of the writ without notice to the creditor would aid in balancing debt- or and creditor interests because such a hearing would best minimize the chance of unfair deprivation without giving the debt- or the chance, by concealing the property or removing it from the jurisdiction, to defeat the remedy which the statute is designed to offer. At any rate, it is clear that due process requires an early hearing, which we believe in prejudgment attachment cases should be an immediate post-seizure hearing, at which the debtor has an opportunity to be heard and at which the creditor “would be required to prove at least probable cause,” Id. at 607, 95 S.Ct. at 723, for the attachment. We believe such a hearing would be “meaningful” enough to satisfy Fuentes. It is also clear that the saving characteristics of the Louisiana statute in Mitchell will aid in protecting an attachment statute from a due process attack. Those characteristics are: judicial participation, a supporting affidavit clearly setting out the grounds for issuance of the writ, an immediate post-seizure hearing following which the writ will be dissolved absent proof by the creditor of the grounds on which the writ issued, and posting of bond by the plaintiff, as well as opportunity to post bond by the defendant.

Additionally, we have for our guidance the recent United States Supreme Court opinion in Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976). The Court had for its review a federal district court decision declaring New York’s attachment statute unconstitutional. The case was remanded to the district court to abstain from a decision until the parties had an opportunity to obtain a construction from the New York courts which might save an otherwise unconstitutional statute.

Try as we might we are unable to construe this State’s attachment statute so that it would be constitutional under present concepts of procedural due process, as we understand them. Fortunately, the statute requires bond before the writ may issue and permits the property to be returned upon bond by the debtor. We do not believe that notice and hearing prior to attachment is required in order to satisfy the demands of due process. Otherwise the remedy of the statute is likely to be defeated. However, under the standards set by the United States Supreme Court the statute is constitutionally deficient in the following respects: the statute does not require that a judge issue the writ; nor does it require a supporting affidavit when the debt is alleged to be due; the writ, in such an instance, may issue on a conclusory allegation by the creditor that he believes in the existence of one of the grounds for attachment in Section 76.04, Florida Statutes; most seriously the statute does not require an immediate post-seizure hearing, rather it simply keeps the court open at any time to hear dissolution motions. It might be noted that at the dissolution hearing, the burden of proof is properly on the creditor/plaintiff.

The commercial law of this State must keep up with the concepts of procedural due process as they are refined by the United States Supreme Court. The interests of those whose property may be mistakenly attached are entitled to as much protection as possible without defeating the interests of creditors.

For the reasons stated the judgment is affirmed; Chapter 76, Florida Statutes, to the extent it provides for attachment prior to judgment, is declared unconstitutional, and the attachment dissolved without prejudice to plaintiff to enforce the judgment through appropriate post-judgment proceedings. The cause is remanded to the Circuit Court, Eleventh Judicial Circuit, for proceedings consistent with this opinion.

It is so ordered.

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

ROBERTS, ADKINS and SUNDBERG, JJ., dissent.

Rehearing denied; OVERTON, C. J., BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS and ADKINS, JJ., dissent.

      . Article V, Section 3(b)(1), Florida Constitution.

      . The Motion stated that the defendant owed the plaintiff $1,630.61, plus interest from January 25, 1973, and as grounds for the Motion that movant had reason to believe: (a) the defendant is actually removing all his property to New Jersey in order to continue doing business there; (b) all officers, directors and stockholders reside out of the state.

      . 76.04 Grounds when debt due. — The creditor may have an attachment on a debt actually due to him by his debtor, when the debtor:
      (1) Will fraudulently part with his property before judgment can be obtained against him.
      (2) Is actually removing his property out of the state.
      (3) Is about to remove his property out of the state.
      (4) Resides out of the state.
      (5) Is actually moving himself out of the state.
      (6) Is about to move himself out of the state.
      (7) Is absconding.
      (8) Is concealing himself.
      (9) Is secreting his property.
      (10) Is fraudulently disposing of his property.
      (11) Is actually removing himself beyond the limits of the judicial circuit in which he resides.
      (12) Is about to remove himself out of the limits of such judicial circuit.
      76.05 Grounds when debt not due. — Any creditor may have an attachment on a debt not due,'when the debtor:
      (1) Is actually removing his property out of the state.
      (2) Is fraudulently disposing of his property to avoid the payment of his debts.
      (3) Is fraudulently secreting his property to avoid payment of his debts.

      . 76.12 Attachment bond. — No attachment shall issue until the person applying for it, his agent or attorney, makes a bond with surety to be approved by the clerk payable to defendant in at least double the debt demanded conditioned to pay all costs and damages which defendant sustains in consequence of plaintiff’s improperly suing out the attachment. In foreclosure of a mortgage on personal property if the motion states that the property or part of it has been disposed of without the consent of the party holding the mortgage and that plaintiff does not know who has the property or part of it, the bond shall be made payable to the state for the use and benefit of all parties interested, conditioned to pay all costs and damages which are sustained in consequence of plaintiff’s improperly suing out the attachment. Any party aggrieved may sue on the bond but the state is not liable for any costs, damages or expenses that are incurred. Any bond in attachment is not void as against the obligors, nor are they discharged therefrom on account of any informality, although the attachment is dissolved because of the informality.

      . 76.18 Return of property upon forthcoming bond. — At any time property attached may be restored to defendant or some other person for him on defendant or such other person giving bond with surety to the officer levying the attachment to be approved by the officer payable to plaintiff in double the value of the property levied on if the property value does not exceed the amount of plaintiff’s claim, or double the amount of plaintiff’s claim if the value of the property exceeds the amount of plaintiff’s claim, the value to be fixed by the officer, conditioned for the forthcoming of the property restored to abide the final order of the court.

      . 76.03 Courts from which attachments shall issue. — Attachments shall issue from the court which has jurisdiction of the amount claimed by the creditor but if the property to be attached is being actually removed from the state and the creditor is unable to obtain process from the proper court in time to prevent such removal, any judge may issue the writ, making it returnable to the proper court and immediately sending all papers in the action to the clerk of the court to which the writ is returnable.

      . 76.09 Motion when debt due. — When the debt is actually due, the motion shall state the amount of the debt that is actually due, and that movant has reason to believe in the existence of one or more of the special grounds in § 76.04, stating specifically the grounds.

      . See Note 3.

      . 76.24 Dissolution of attachment.—
      (1) The court to which the attachment is returnable is always open to hear motions to dissolve the attachment.

      . 76.24 Dissolution of attachment.—
      ******
      (2) On answer by defendant that any allegation in plaintiff’s motion is untrue, this issue shall be tried, if the allegation in plaintiff’s motion which is denied is not proved to be true, the attachment shall be dissolved.


text:
    John C. HICKEY, Sr., as Administrator of the Estate of John C. Hickey, Jr., Deceased, Petitioner, v. John DOUGHERTY and Providence Washington Insurance Co., an Insurance Corporation, Respondents.
    No. 49531.
    Supreme Court of Florida.
    Sept. 30, 1976.
    G. Bruce Hill of Adams, Best & Sears, Orlando, for petitioner.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for respondents.
   PER CURIAM.

Affirmed. Hanley v. Liberty Mutual Insurance Company, Fla., 334 So.2d 11, filed May 28, 1976.

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


text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE ARTICLE XI.
    No. 47596.
    Supreme Court of Florida.
    Oct. 21, 1976.
   Pursuant to opinion of this Court entered February 26, 1976, 332 So.2d 1, certain amendments to the Integration Rule of The Florida Bar, including a new rule numbered 11.02(4)(c), were approved. By such order, bylaws implementing such rule are to be approved by this Court. The Florida Bar has filed its motion for implementing order requesting, inter alia, approval of proposed bylaws annexed to its motion. Henry P. Trawick, Jr., a member of The Florida Bar, has filed his response to the motion.

Upon consideration of the motion of The Florida Bar and response thereto, it is hereby ordered as follows:

1. The bylaws implementing Integration Rule 11.02(4)(c), as revised by this Court and annexed hereto, be, and the same hereby are, approved;
2. The Florida Bar be, and the same hereby is, authorized to publish said bylaws pursuant to Integration Rule Article VII; and
3. The first certificate required to be filed under paragraph D-2 of the bylaws shall be filed between June 1, 1977 and August 15, 1977.

Proposed Bylaws Approved by the Board of Governors

July, 1976

A. Applicability: The provisions of these bylaws apply to all trust funds received or disbursed by members of The Florida Bar in the course of their professional practice of law except special trust funds received or disbursed by attorneys as guardian, personal representative, receiver, or similar capacity such as trustee under a specific trust document where the trust funds are maintained in a segregated special trust account and not the general trust account and wherein this special trust position has been created, approved, or sanctioned by law or an order of a court which has authority or duty to issue orders pertaining to maintenance of such special trust account.

B. The minimum trust accounting records which shall be maintained by all lawyers practicing in Florida who receive or disburse trust money subject to this bylaw and related to their practice of law in Florida are:

1. A separate bank account clearly labeled and designated a trust account as provided in Rule 11.02(4)(a).
2. A journal, file of receipts, file of deposit slips, or check book stubs listing the source and date of all receipts of trust funds.
3. A journal which may consist of can-celled checks, showing the date and recipient of all trust fund disbursements.
4. A file or ledger containing an accounting for each person from whom or for whom trust money has been received.
5. All cancelled checks drawn on the trust account whether or not such can-celled checks are used to satisfy the requirements of a journal under paragraph 3 above.

C. The minimum trust accounting record which shall be maintained by all lawyers practicing in Florida who receive or distribute trust property other than cash are journals, receipts, or files showing receipt or distribution of all trust property other than cash of intrinsic value of more than $50.

D. The minimum trust accounting procedures which shall be followed by all attorneys practicing in Florida who receive or disburse trust money or property are:

1. The lawyer shall cause to be made a reconciliation of his trust accounts balance at least quarterly and shall retain a copy of such reconciliation for at least 6 years.
2. The lawyer shall file with The Florida Bar between June 1 and August 15 of each year a certificate stating:
“I certify that I have read the provisions of Integration Rule 11.02(4) and the Bylaws under said rule and that I am in substantial compliance with the minimum requirements as to trust accounting records and procedures set forth therein.

Attorney”

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


text:
    Thomas Wendell KNOX, Appellant, v. STATE of Florida, Appellee.
    No. 48785.
    Supreme Court of Florida.
    Oct. 21, 1976.
    Thomas Wendell Knox, in pro. per.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. State v. Webb, 335 So.2d 826 (Fla.1976).

It is so ordered.

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