author: PER CURIAM. MADDOX, Justice

text:
    In re Dorothy Gray ELMORE v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2096.
    Supreme Court of Alabama.
    May 20, 1977.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, petitioner.
    No brief for respondent.
   PER CURIAM.

Dorothy Gray Elmore was indicted, tried, and found guilty by a jury of driving while intoxicated. She appealed to the Court of Criminal Appeals which reversed the judgment of conviction. Elmore v. State, (decided March 30, 1976), Ala.Cr.App., 348 So.2d 265. We granted certiorari, and reversed and remanded, on a point unrelated to the one now presented. Elmore v. State (decided July 9, 1976), Ala., 348 So.2d 264.

On remandment, the Court of Criminal Appeals again reversed the judgment of conviction, on the following two grounds:

I. The motion to exclude the State’s evidence should have been granted because the evidence was clear and unequivocal that no police officer saw petitioner operating an automobile while intoxicated upon a public highway.

II. The failure of the prosecution to lay a proper predicate for the admission into evidence of the results of the chemical test for intoxication.

I

The first issue presented is whether the evidence supports the inference that Elmore was driving on a public highway while intoxicated.

In its opinion, the Court of Criminal Appeals recounted the State’s evidence, as follows:

“The evidence for the State shows that on November 15, 1974, John W. McCormick, Jr., Deputy Sheriff of Mobile County, along with his partner Deputy McAf-ee, were on routine patrol on the Old Pascagoula Road in Mobile County. He testified that they approached the intersection of McDonald Road and Old Pasca-goula. They turned south on McDonald Road at which time a car swerved over into their lane of traffic and forced them partially off the road.
“He described the automobile as an old white Oldsmobile and he fixed the time at approximately 5:20 to 5:30 p. m. He further stated that they turned around and the traffic was pretty heavy at that time and it took them a few minutes to get turned around. They headed back down toward Pascagoula to try to find the car that ran them off the road. He stated that they came upon the automobile approximately a mile and a half from the point where they first saw it. He said that the car was stopped with the nose down into a ditch at Old Pascagoula and A1 Johns Road, that appellant was seated behind the steering wheel and there was a boy in the car with her.
“He further testified that he observed appellant at that time and she seemed disoriented and her speech was slurred and he smelled a strong odor of alcohol in the automobile. He noticed that there was some beer in the car but it was not open. He expressed his opinion that she was intoxicated.
“On cross-examination he testified that he could not identify appellant as being the driver of that car that almost ran them off the highway. He stated that he did not see appellant driving a car on a public highway. He further stated that the stopped car in which appellant was sitting under under the steering wheel was white over a dark blue Oldsmobile and that he could only identify the car by its color. He further testified that he could not state that he had seen appellant driving this automobile in Mobile County on that date or any other date.”

As stated previously, the Court of Criminal Appeals held that since no officer saw petitioner operating an automobile upon a public highway on the date she was arrested, the petitioner’s motion to exclude should have been granted. The actual holding of the Court of Criminal Appeals is as follows:

“The evidence is clear and unequivocal that no officer saw appellant operating an automobile upon a public highway in Mobile County on the date that she was arrested and therefore, the motion to exclude should have been granted.” (Emphasis added.)

Cf. Davis v. State, 27 Ala.App. 551, 176 So. 379 (1937), wherein the Court of Appeals stated:

“It is true that no witness testified to seeing the defendant take a drink of whisky or any narcotic drugs, but there is testimony for the State tending to prove that at the time of the accident, which fixed the time of the prosecution, the defendant was under the influence of whisky; and the inferences to be drawn from that fact are: He was driving the automobile while in that condition. .” (Emphasis supplied.) 27 Ala.App. at 553, 176 So. at 381.

Likewise, in Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972), the defendant was convicted of manslaughter in the second degree as a result of an automobile collision. In outlining the evidence which tended to prove defendant’s guilt, the Court of Criminal Appeals held that there was evidence appearing in the record from which the jury could reasonably infer that defendant was doing an unlawful act, i.e., driving under the influence of intoxicating liquors. The appellate court made this inference in spite of the fact that the State had no witness who testified to seeing the defendant driving. In addition, the officer testified that he arrived at the scene of the collision some fifteen minutes after the fatal accident. Admittedly, in Ayers, the defendant was “effectively trapped” in his automobile, whereas, in this case, petitioner was not trapped but was seated behind the steering wheel, but this is a distinction without a difference. Notwithstanding this factual distinction between this case and Ayers, we are of the opinion that the inferences drawn from Ayers are analogous to the case at bar.

Furthermore, we do not consider it likely that the defendant here could have had access to any significant amount of alcohol during this extremely brief period before Deputies McCormick and McAfee arrived. Montgomery v. State, 44 Ala.App. 129, 203 So.2d 695 (1967). Gamble v. State, 36 Ala.App. 581, 60 So.2d 696 (1952), is not factually controlling in this instance. Thus, we hold the Court of Criminal Appeals erred in its resolution of issue I.

II

As to the second issue, we consider the Court of Criminal Appeals ruled correctly and properly applied the rule announced in Patton v. City of Decatur, Ala., 337 So.2d 321.

The judgment of the Court of Criminal Appeals is therefore affirmed in part, reversed in part, and remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

MADDOX and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

I concur in Part I of the opinion, except I do not think that Gamble v. State, 36 Ala.App. 581, 60 So.2d 696 (1952), cited by the Court of Criminal Appeals, and also referred to and distinguished by the majority of this Court in Part I, is sound law. I believe that Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972), also cited by the majority, states the better rule, that is, that a driver’s drunken condition after an automobile accident can be a fact from which the jury would infer that he was driving the automobile while in that condition.

As to Part II of the majority opinion, I respectfully dissent. The majority holds that before a chemical test for intoxication can be admitted into evidence, the state must introduce into evidence a duly certified and authenticated copy of the Rules and Regulations promulgated by the State Board of Health. The majority states that the Court of Criminal Appeals ruled correctly and properly applied the rule announced in Patton v. City of Decatur, 337 So.2d 321 (Ala. 1976). As I understand Patton, it holds that in a prosecution for driving while intoxicated, the trial court erred in admitting into evidence the result of a photoelectric intoximeter test where it was not shown that the duly adopted methods or regulations of the State Board of Health were followed in administering the test.

In Patton, this Court said:

“Nowhere is it shown that duly adopted methods or regulations of the State Board of Health were followed in administering the test. The trial court therefore had before it no certified methods promulgated by the Board of Health for the administration of the test and consequently was unable to ascertain standards against which the evidence could be measured.
* * * * * *
“Our decision in the instant case does not stand for a proposition that every legislative delegation of power gives rise to a mandatory duty to promulgate administrative standards in order for that power to be validly exercised. But our inability here to ascertain the validity of the results obtained from a technologically sophisticated device due to questionable operator technique, demonstrates the absolute necessity for written procedural methods governing its use. In this regard, unwritten standards of the Board of Health are no better than no standards at all. See Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm., 16 Or.App. 63, 517 P.2d 289 (1973). The need for written standards becomes particularly acute where, as here, a finding of criminal conduct may well turn upon adherence to and rigid compliance with such standards.
“Our decision, moreover, is not to be construed as a rejection of results of the photoelectric Intoximeter when introduced as evidence against persons charged with driving while under the influence of intoxicating liquor. Although intoxication levels obtained from the P.E.I. and similar blood alcohol content measuring devices have been fraught with evidentiary challenges as to their probative value in criminal proceedings; see State v. Bessette, 130 Vt. 438, 296 A.2d 179 (1972); we have been willing to accept these results and statutory presumptions which attach therefrom where the record is devoid of matters which substantially draw into doubt their accuracy. Rivers v. Black, 259 Ala. 528, 68 So.2d 2 (1953); Bonner v. State, 52 Ala.App. 346, 292 So.2d 460 (1974). Furthermore, the legislature has declared that the results of P.E.I. tests ‘shall be admissible as evidence.’ Tit. 36, § 155(a), supra. Accordingly, in passing on a conviction which was based in part on the results of a P.E.I. test, the only concern of this court is to ascertain whether the will of the legislature has been obeyed. We hold that an affirmative response to that inquiry cannot follow where there are no written standards governing the manner in which P.E.I. tests are to be performed by state law enforcement agencies.” [Emphasis supplied.]

A reading of Patton shows that this Court was under the impression that there were no written regulations of the Board of Health on this subject. I was under this erroneous impression. It is apparent that this Court based the Patton decision on the proposition that the Board’s rules on the P.E.I. tests were unwritten practices, rather than written and formally promulgated rules and regulations. I have examined the briefs of both parties in Patton. No rules of the Board were called to the attention of this Court. Indeed, this point was hardly touched by either side. If there were no written standards, this Court’s decision in Patton and the Court of Criminal Appeals’ decision in the instant case would be unquestionably correct, but that is not the case. On March 18, 1970, five (5) months after the Alabama Chemical Test for Intoxication Act became law, the State Board of Health formally approved and promulgated detailed rules and regulations controlling the administering of chemical tests for intoxication. These regulations were amended and reissued on October 23, 1974, and February 18, 1976.

The Rules and Regulations of the State Board of Health have the force and effect of law. Title 22, Section 7(6), Code of Alabama, 1940 (Recomp. 1958), provides:

“The state board of health shall have authority and jurisdiction .
4s :}: ‡ Ht sfc s(c
“(6) To adopt and promulgate rules and regulations providing proper methods and details for administering the health and quarantine laws of the state, which rules and regulations shall have the force and effect of law and shall be executed and enforced by the same courts, bodies, officials, agents, and employees as in the case of health laws, and a quorum, as provided for by the constitution of the medical association of the state of Alabama shall be competent to act. . . . ” [Emphasis supplied.]

It is well settled that courts in Alabama take judicial notice of administrative rules and regulations when the rules and regulations are declared by statute to have the force and effect of law. Hardin v. State, 241 Ala. 4, 3 So.2d 89 (1941), (judicial notice taken of the rules and regulations promulgated under statutory authority by the Alabama Beverage Control Board); State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943) (the Alabama Board of Medical Examiners, e. g. the State Board of Health — the same agency involved here); West v. State, 242 Ala. 369, 6 So.2d 436 (1942) (the Alabama State Department of Conservation); Department of Industrial Relations v. Headon, 42 Ala.App. 132, 155 So.2d 123 (1962) (judicial notice taken of the regulations of the Director of the Department of Industrial Relations); Lovett v. State, 30 Ala.App. 334, 6 So.2d 437 (1942), cert. denied, 242 Ala. 356, 6 So.2d 441 (judicial notice of rules and regulations of Alcoholic Beverage Control Board); McElroy, The Law of Evidence in Alabama, Vol. 3, §§ 480.01-484.02 (2d Ed.); 29 Am.Jur.2d § 42, pp. 76-77.

It is well established that Alabama courts take judicial notice of the rules and regulations promulgated by federal administrative bodies under the authority of an Act of Congress. Lawrenceburg Roller Mills Co. v. Charles A. Jones & Co., 204 Ala. 59, 85 So. 719 (1920); Morris Adler & Co. v. J. E. Jones & Co., 208 Ala. 481, 94 So. 816 (1922).

Likewise, a federal court can take judicial knowledge of those matters accorded judicial notice by a state court. Milwaukee Mechanics Ins. Co. v. Oliver, 139 F.2d 405 (5 Cir. 1943), (the federal court took judicial notice of a state administrative regulation.) See Weinstein’s Evidence, Vol. 1, § 200(02).

Furthermore, Title 15, Section 243, Code, provides:

“Presumptions of law and matters of which judicial notice is taken need not be stated.” (Emphasis supplied.)

In the past, this Court has not required the pleading of ordinances of which judicial notice could be taken. See Smiley v. City of Birmingham, 255 Ala. 604, 52 So.2d 710 (1951).

In my opinion, the Rules and Regulations of the State Board of Health were before the trial court as a matter of law when it ruled on the admissibility of the P.E.I. test results.

BEATTY, J., concurs.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Dorothy Gray ELMORE v. STATE.
    1 Div. 635.
    Court of Criminal Appeals of Alabama,
    348 So.2d 265.
    June 28, 1977.
   HARRIS, Judge.

All the Judges concur.


text:
    Mary Lee LANGSTON v. STATE.
    4 Div. 543.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.

      Don C. Dickert, Brundidge, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenshaw, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree of Willie James Wilson and sentenced to life imprisonment.

The evidence is without dispute that defendant killed Wilson by stabbing him with a knife, as alleged in the indictment. She relied upon the principle of self-defense and defense of her children who were in the house where she lived at the time she admitted she struck the fatal blow while she and the victim were outside. She had stabbed him once before, the same night, during an argument between the two outside a cafe in Brundidge, Pike County, Alabama. At the cafe the victim had been cursing and asking for some keys. The owner of the cafe had asked both of them to leave the cafe. Defendant testified that while outside the cafe the victim walked to the back of his automobile and said he was going to get something from his trunk to kill her, at which time she cut him with a knife while he was leaning over the trunk. They both then went in the cafe again but were told to leave again, which they did.

Defendant testified that she drove the victim to a hospital with a view of having him examined or treated; the victim made her turn around before they arrived at the hospital and they then went to her home in Brundidge. She said that Wilson was still cursing and said, “I am going to go in the house and kill those children and then I am going to come back and get you!” As he was leaning over and reaching under the seat, she stabbed him in the chest, from which he died. She went to a neighbor’s house and called the police and the rescue squad and then went to her house.

Defendant met the officers (Coroner Booth, Sheriff Anderson and Officer Wheeler) as they arrived. She invited them in, telling them she had nothing to hide. She was there advised fully of her Constitutional rights. The Coroner asked if they could look around, and she told them to look all they wanted that she didn’t care as she had nothing to hide. She turned on a light in the kitchen. The house had three rooms, a kitchen, a bedroom and a living room. According to State’s witnesses, when questioned at her house about the death of Wilson, she denied knowing anything about it or about the presence of his body at the front of the house. She admitted, in testifying on the trial, that she told the officers at her house that she did not kill Wilson.

Defendant was taken to jail by Sheriff Anderson. While at defendant’s house Coroner Booth had another official call and left. Deputy Wheeler remained at the house.

The next morning appellant made a written statement to the effect that she killed the deceased in defense of herself and her children.

A major contention of appellant is that the court was in error in admitting in evidence a knife, which the evidence shows was the weapon with which defendant killed Wilson, and some towels that were in the living room of defendant by the chair in which she was sitting. The towels had some blood stains on them and were seen by the sheriff while he was at the house, but were not taken until after he had returned that night to the house.

Deputy Wheeler testified that while he remained at the house after the sheriff and coroner had gone, he was told by an aunt of the children that they wanted to tell him something. He walked up to them and one of the children said, “. . . My mother killed that man . . . ” He said she was crying at the time and he thereafter asked her “. . . Where is the knife . .” and she told him she would show him. The children took him into the house and pointed to a chest of drawers. One of the drawers was broken and he could see the knife in it. He then came out of the house, secured it, “and left one responsible person in front of the door to let no one in until he could get back.” He then went to the Brundidge Police Department and located Sheriff Anderson; they returned to the house and took possession of the knife, as well as the towels. This was a short time after 12:30 A.M.

The failure of the officers to take the towels and to observe and take the knife while appellant was in the house does not of itself make illegal the subsequent taking of them. The evidence conclusively shows that defendant invited the officers into the house and unreservedly, voluntarily and understanding^, consented to the search of the house. Even so, there was no special effort on the part of anyone of them to discover anything; they viewed only matters that were obvious. There was no probing into corners, opening of drawers, nor looking behind curtains or under beds. The observation of that which is in plain view does not constitute a search. Moffett v. State, 291 Ala. 382, 281 So.2d 630, cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114; Reese v. State, 49 Ala.App. 167, 269 So.2d 622, cert. denied 289 Ala. 750, 269 So.2d 625; Williams v. State, 43 Ala.App. 343, 190 So.2d 556.

In Moffett and in Reese, the seizure involved was without a warrant and made while the officers were in defendant’s home in the process of arresting him on probable cause that he had committed a felony.

By whatever name the manucapture of the towels and the knife may be called, there was nothing unconstitutional or otherwise illegal about it.

“There are six exceptions under which warrantless searches have been upheld: (1) plain view, (2) with consent voluntarily and knowingly given, (3) incident to a lawful arrest, (4) hot pursuit or emergency situations, (5) exigent circumstances coincidental with probable cause as in the case of movables, and (6) stop and frisk situations. Daniels v. State, 290 Ala. 316, 276 So.2d 441.” Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975)

To any argument that the defendant, who was in jail at the time the items were taken, could not have removed them before a search warrant could have been obtained for them, the answer is that she could have well been released on bail before a search warrant could have been obtained. The record shows that she was released on bail, although not until several days after the alleged crime. Furthermore, notwithstanding the fact that the children and their aunt, who then were in possession of the premises, called the attention of one of the officers to the knife, they presumably were friendly to defendant and could have readily secreted the knife before its physical custody could have been obtained by process of a search warrant.

During the direct examination of defendant the following occurred:

“Q All right. Mrs. Langston, you love those children, don’t you?
“A Yes, I do.”

Immediately, counsel for the State objected in rather strong language directed at defendant’s counsel; defendant’s counsel replied in kind. Thereupon the court said:

“I am going to sustain the objection. Ladies and Gentlemen of the jury, you will disregard the answer. It has nothing to do with this case.”

We doubt that the jury ever thought for a minute that defendant did not love her children, and we see nothing substantially harmful to either party in either allowing or in disallowing such question and answer. The question would have been better if it had not been in leading form. This of itself justified the court’s action in excluding the answer. Code of Alabama, Recompiled 1958, Tit. 7, § 444. The nature of the question is such that, especially when placed in leading form, the witness would probably answer it affirmatively more quickly than opposing counsel could object, which apparently occurred.

Appellant takes offense at the action of State’s counsel in asking defendant on cross-examination if she had been convicted in 1970 of grand larceny in Houston County, Alabama. She immediately replied, “No sir, I was not.” Defendant’s counsel thereafter moved for a mistrial. Appellant seems to challenge the good faith of State’s counsel by implying that State’s counsel “doesn’t have a record of recognition of a conviction.” Code of Alabama, Recompiled 1958, Tit. 7, § 435 permits a witness to be cross-examined as to prior convictions involving moral turpitude. After a colloquy among the court and counsel for the respective parties, the court sustained an objection of defendant to the question, denied the motion for a mistrial and stated to the jury “You will completely disregard that question.” The question was proper, but a negative answer cures any error that might have been in permitting a question to be asked. White v. State, 41 Ala.App. 54, 123 So.2d 179; Dixon v. State, 38 Ala.App. 395, 85 So.2d 156.

During direct examination of defendant the following occurred:

“Q All right. You heard the testimony from several police officers that you called them and they came to the scene that night — came to your house that night, that you didn’t know anything about this body being out in your front yard? Do you remember hearing that testimony?
“A Yes, I heard that testimony.
“Q Did you tell them that?
“A No.
“Q What did you tell them that you recall?
“A That I recall?
“Q Yes.
“A I just told them no. — I just told them that I didn’t kill him that’s what I told them.
“Q All right could you explain to us why you told them that?
“MR. CALHOUN: We object to the question calling for an explanation why the witness did something. It calls for an uncommunicated mental operation of the witness. We think she can say what she told them but we object to any explanation why she told them a certain thing.
“THE COURT: I am going to sustain.”

In so ruling, the court fell into error, we think. We held that prejudicial error was committed in a strikingly similar situation in Johnson v. State, 49 Ala.App. 356, 272 So.2d 282, cert. denied 289 Ala. 745, 272 So.2d 286, in which it was stated:

“In our opinion the court erred in not allowing the appellant to answer the question propounded above. The two statements made by appellant to the sheriff are contradictory to each other and are further contradictory to the testimony of the appellant at the trial.
“We think the case at bar is controlled by the rule set out in Ingram v. State, 34 Ala.App. 597, 42 So.2d 30, reversed and remanded, 252 Ala. 497, 42 So.2d 36.
“We therefore, hold under the authorities above set out that the witness should have been allowed to explain the discrepancy between his statements made to the sheriff and his testimony at the trial.”

For the error indicated, a reversal is required.

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. The judgment of the court below is hereby reversed and the case remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2695.
    Supreme Court of Alabama.
    July 29, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Jerry ODOM, alias v. STATE.
    6 Div. 424.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.

      Larry Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Huntner, Asst. Atty. Gen., Birmingham, for appellee.
   TYSON, Presiding Judge.

The indictment charged the appellant, Jerry Odom, with the robbery of Leonard Farley, by taking some $900.00 in currency from him. The jury found the appellant guilty as charged and fixed punishment at ten years imprisonment. The trial court then entered judgment in accordance with this verdict.

Leonard Farley testified that about 7:00 in the evening of January 28, 1976, after returning from a cattle auction, he stopped at a bar known as Rose’s Place on old Highway 78 West in Jefferson County, Alabama, to have a beer. Farley stated that he used to be a regular customer of Rose’s Place, but had not been there for the past several years. Farley testified that he walked in, sat down in a booth, and ordered a beer. Several minutes later the appellant, who was a total stranger to Farley, came over and sat down in the booth with him. The appellant, according to Farley, asked Farley to buy him a beer, which Farley did, and also asked Farley to lend him $5.00, which Farley declined to do. The appellant, according to Farley, left the booth, but returned shortly thereafter in the company of Juanita Griffin. Farley bought her a beer also, and after a while, she got up on the stage table, removed her dress, and danced. The appellant, meanwhile, left the booth and walked over to the pool table. After dancing, Griffin returned to Farley’s booth and offered to spend the night with Farley for $30.00, which Farley refused. Griffin then danced on Farley’s table. Farley testified that Griffin then sat down next to him, and he put his hand on her leg, to which she responded, “Not in here” (R. p. 17). Griffin, according to Farley, asked that Farley pay her for dancing on the table, which request Farley refused. Griffin then got up from the booth and walked over to the pool table where the appellant was standing. Farley testified that a man (at the time unknown to Farley) named Eddie Joe Earnest then walked over to his booth and asked him if he would mind if he danced with Griffin, to which Farley replied, “Why sure, go on” (R. p. 17). Farley went to the restroom for a short time and then left via the front door. Farley testified that before he got to his truck the appellant said, “You’re going to have to pay her for that [the dancing].” Farley turned around and saw the appellant and Griffin standing in front of him. Farley told the appellant that he would go back in the bar and find out if it was customary to pay for such things, and if it was, then he would pay. The appellant said that it would cost $15.00. Farley pulled out an open, average size pocket knife and proceeded to walk back to the front door, having to walk between the appellant and Griffin. As Farley walked between them someone (not the appellant) hit him in the side of the head, knocking him to the ground (R. p. 22). Farley testified that the appellant and Earnest held his arms and that Griffin tried to get his billfold from his back pocket, so he kicked her. Then he kicked the appellant. Both Earnest and the appellant lifted Farley off the ground, and one of them got his billfold (R. p. 25). In removing the billfold, they tore his pants pocket (R. p. 26). After appellant and Earnest got the billfold, they held Farley’s hands and kicked him, causing a severe cut on Farley’s eye and excessive swelling and bruising around his face. Farley testified that the next thing he remembered was standing in the doorway of Rose’s Place, asking for help. Farley received some aid inside and had someone call the sheriff (R. p. 35). Later Farley was taken to the hospital. Farley stated that there was $900.00 taken from him which he had received selling some cattle.

Evilou Haynes was the cashier at Rose’s Place on the night of January 28, 1976. Haynes testified that she saw Eddie Joe Earnest and the appellant talking right before Farley went to the restroom. She then saw Farley leave, followed by the appellant, Juanita Griffin and Eddie Joe Earnest. Haynes testified that a short time later, Farley came back in the bar with his face bleeding and then someone called the sheriff’s office which investigated the incident. Eddie Joe Earnest, according to Haynes, returned later that night and paid for a beer with a ten dollar bill which appeared to have blood on it. Haynes said she kept it and showed it to Deputy Creel later that evening.

Franklin Sanford was a customer at Rose’s Place on January 28,1976. He testified that he parked his car next to a car which he had seen Griffin in earlier that evening at Knight’s Truck Stop where he was employed. Sanford also testified that the appellant, Griffin and Earnest followed Farley out the front door that night. Sanford heard a car scratch off in the parking lot shortly after Farley left. When Farley came back into the bar, he asked Sanford to look for his billfold and money in the parking lot. Sanford testified that while looking for the billfold he noticed that gravel from the parking lot was all over the hood of his car and that the car which was parked next to his was gone. This was the same car he had seen Griffin in earlier. Upon closer inspection Sanford discovered that one of his front headlights had been broken, apparently because the departing car was slinging gravel. The billfold was never found. Sanford then took Farley to the Jasper Community Hospital.

Juanita Griffin testified that she was with the appellant at Rose’s Place on January 28, 1976, when someone told her that Farley wanted her to sit with him. She testifiéd that Farley bought her a beer, and that they were then joined by the appellant. According to Griffin, Farley asked her to dance on the table, which she did twice, but he refused to pay her. Farley, according to Griffin, then left the bar and she (Griffin) left also to go next door to see the manager of Rose’s Place about employment. Griffin testified that Farley grabbed her by the arm outside in the parking lot, wanting her to go with him. The appellant then came outside and saw Farley holding Griffin at which time Farley swung a knife at the appellant. The appellant, according to Griffin, then hit Farley once, knocking him down. Griffin went back inside to get her coat and purse. When she came back outside, the appellant was waiting for her in the car. As they left, according to Griffin, Eddie Joe Earnest was standing next to where Farley was lying on the ground. She testified that neither she nor the appellant took any money from Farley. Griffin also testified that the appellant and Eddie Joe Earnest had known one another before January 28, 1976.

The appellant’s testimony as to what happened was the same as Griffin’s. The appellant also testified that he never asked Farley to loan him any money.

I

Appellant contends that he was denied due process and equal protection of the law because the indictment was not read to a duly impaneled and sworn jury. In connection with this, appellant contends that jeopardy has not attached since the indictment was not read to a duly impaneled and sworn jury and since there was no plea to the indictment against the appellant made known to the jury.

The record at page 187 discloses the following:

“This the 21st day of May, 1976, came Earl C. Morgan, District Attorney, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by his attorney, Maurice Rogers, and the defendant being duly arraigned upon the indictment in this cause, for his plea thereto says that he is not guilty and leave of the Court is hereby granted to defendant, hereafter but before trial day, to interpose any special pleas which the defendant had the right as a matter of Law to interpose prior to his plea of not guilty and case is set June 8, 1976, and passed from time to time to December 13, 1976, for trial.”

Furthermore, on page 188 of the record we find:

This the 13th day of December 1976, came Earl C. Morgan, District Attorney, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by his attorney, Maurice Rogers, and thereupon came a jury of good and lawful persons, to-wit: J. P. Guthrie, and eleven others, who being duly impaneled and sworn according to Law, before whom the trial of this cause was entered upon and continued from day to day and time to time, said defendant being in open Court at each and every stage and during all the proceedings in this cause; defendant enters plea of not guilty.
“This the 14th day of December, 1976, said jurors upon their oaths do say, ‘We the jury find the defendant guilty of robbery as charged in the indictment and fix the punishment at imprisonment in the penitentiary for a term of 10 years.’ “This the 14th day of December, 1976, said defendant being in open Court with his attorney, Maurice Rogers, and being asked by the Court if he had anything to say why the judgment of the Court and sentence of the Law should not be pronounced upon him says, T didn’t rob him.’ It is therefore considered by the Court, and it is the judgment of the Court that said defendant is guilty of robbery as charged in the indictment, in accordance with the verdict of the jury in this cause, and it is the judgment of the Court and sentence of the Law that the defendant, the said Jerry Odom alias Jerry Wayne Odom alias Jerry W. Odom, be imprisoned in the penitentiary of the State of Alabama for a term of Ten (10) years, and it is ordered by the Court that the defendant be credited with all of this actual time spent incarcerated in the Jefferson County Jail pending trial of this cause unless he was serving time for another offense.” [Emphasis supplied]

The record clearly indicates that the arraignment and trial proceedings were conducted without irregularity, although there is no actual showing that the indictment was read to the jury before any witnesses were examined.

The usual mode of charging a jury with the trial of a defendant is the reading of the indictment to them by the prosecuting attorney during his opening statements. Lyman v. State, Ala. 686. Opening statements in a trial proceeding are not usually transcribed, and thus will seldom appear in the record. See Title 13, Section 262, Code of Alabama 1940.

In Jones v. State, Ala.Cr.App., 348 So.2d 1116 (1977), this Court was presented with facts similar to the ones in this case. In Jones, supra, this Court stated:

“If, however, the jury is not so charged, it is incumbent of a defendant to bring such omission to the attention of the trial court by prompt objection or as an asserted ground in a motion for new trial. See Rodgers v. State, Ala.Cr.App., 332 So.2d 739, cert. den., Ala., 332 So.2d 746. Where, as here, there was no objection entered in the trial court below, it will be presumed that the indictment was read to the jury or that they were in some other way informed of the charges against the defendant before any witness was examined. McGuire v. State, 76 Miss. 504, 25 So. 495. See Nick v. United States, 122 F.2d 660 (8th Cir. 1941), 138 A.L.R. 791.”

Therefore, since no objection was made in the trial court, nor was this issue presented by other motion, it is presumed that the indictment was read to the jury or that they were in some other way informed of the charges against the defendant before any witness was examined. It is not necessary that the indictment be formally read to the jury to afford due process. Robles v. United States, 279 F.2d 401 (9th Cir., 1960), cert. den., 365 U.S. 836, 81 S.Ct. 750, 5 L.Ed.2d 745 (1961).

II

Appellant contends that the trial court erred in allowing the victim, Leonard Farley, to testify as to the uncommunicated intent of the appellant. From the record (R. pp. 40, 41):

“Q. Now, of that, what you have testified what happened to you, what did Jerry Odom do to you that you actually saw Jerry Odom do?
“A. He run up first, as I told you while ago, to get my billfold and I kicked him. Whenever this fellow turned me up on my side, he gets down there with him and he—
“MR. RODGERS: We object to what he was going to do as giving a judgment what the man’s intentions were on approaching him and move to exclude that.
“THE COURT: I didn’t understand him to say that. Overruled.
“MR. RODGERS: We except.” [Emphasis supplied]

A witness cannot testify as to the uncommunicated intent of another person. Casualty Reciprocal Exchange v. Wallace, 280 Ala. 61, 189 So.2d 861; Holmes v. Holmes, 212 Ala. 597, 103 So. 884; Shadle v. State, 280 Ala. 379, 194 So.2d 538. In each of the above cited cases, however, the questions asked by counsel called for the witness to testify as to the uncommunicated intent of another person. As can be seen upon a reading of the record above shown, counsel’s question did not call for such a response. The question asked of the witness was, “What did Jerry Odom do to you that you actually saw Jerry Odom do” (R. p. 40). The witness prefaced his answer with, “[A]s I told you while ago.” The witness -was referring to the following testimony which he had given earlier (R. pp. 25, 26):

“Q. At this time, what did the defendant, Jerry Odom, do?
“A. Well, when he pulled me up here, I was laying on my billfold. He pulled me up. Eddie is he. He had his hand down there and then Jerry Odom run up and they was both there. Which one of them got my billfold I don’t know. They was there working at the same time. I can’t tell you.” [Emphasis supplied]

The witness clearly was testifying as to physical movements of appellant within his own knowledge, and not as to the uncom-municated intent of another person. No error is shown.

Ill

The appellant contends that his conviction was based upon circumstantial evidence which failed to meet the required standards for consistency with guilt and inconsistency with innocence. The sufficiency of the evidence presented by the State is not before us for review since no motion to exclude the evidence was made by appellant, the affirmative charge was not requested in writing, and there was no motion for a new trial. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 46 Ala.App. 684, 248 So.2d 583.

IV

Appellant contends that the State failed to prove, through any evidence, that Jerry Odom had a larcenous intent to steal any property of Leonard Farley.

It is an essential factor in robbery “that the taking should, at the time of manucaption, have been with a larcenous intent.” Kennedy v. State, 208 Ala. 66, 93 So. 822. The question of intent is one- for the jury and the verdict of the jury resolved this issue against appellant. Root v. State, 247 Ala. 514, 25 So.2d 182.

The trial court properly submitted this cause to the jury. Mays v. State, Ala.Cr.App., 335 So.2d 246; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Calhoun v. State, Ala.Cr.App., 346 So.2d 39 (1977).

The judgment below is

AFFIRMED.

All the Judges concur.


text:
    Ex parte Jerry ODOM.
    SC 2705.
    Supreme Court of Alabama.
    July 29, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: KARL, Justice.

text:
    STATE of Florida, Petitioner, v. Marvin HARRIS, Respondent.
    No. 49743.
    Supreme Court of Florida.
    March 17, 1977.
    Rehearing Denied July 29, 1977.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for petitioner.
    Bartley K. Vickers, of Mahon, Farley & Vickers, Jacksonville, for respondent.
   KARL, Justice.

We have for review by petition for writ of certiorari granted the decision of the District Court of Appeal, First District, in Harris v. State, reported at 334 So.2d 316 (Fla. 1st DCA, 1976), which directly conflicts with State v. Fitzpatrick, 294 So.2d 708 (Fla. 4th DCA, 1974). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

The decision for review holds that, to charge the crime of manslaughter under Section 860.01(2), Florida Statutes, the charging document must use the specific statutory words and allege that the death of a human being was caused by the operation of a motor vehicle by defendant “while intoxicated.” The decision in conflict, State v. Fitzpatrick, supra, concludes that “being under the influence of intoxicating liquor to the extent that one’s normal faculties are impaired, or so as to deprive one of full possession of his normal faculties” is equivalent to “being intoxicated.” We agree with the District Court of Appeal, Fourth District, and hold that the equivalent language is sufficient for use in the information.

Respondent was charged in a two-count information with the offenses of manslaughter by culpable negligence in violation of Section 782.07, Florida Statutes, and manslaughter by intoxication in violation of Section 860.01(2), Florida Statutes. At the conclusion of the State’s case, the trial court granted a motion for directed verdict of acquittal as to the charge of manslaughter by culpable negligence. The jury returned a verdict of guilty of manslaughter by intoxication and respondent was convicted on this charge.

The second count of the information charged respondent with the crime of manslaughter by intoxication, as follows:

“And for a second count of this information, your informant further charges that MARVIN HARRIS, on the 21st day of January, 1974, in the County of Duval and State of Florida, did then and there while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties, the said MARVIN HARRIS did drive and operate an automobile into, upon and against ESTHER BELL, then and there giving and inflicting divers mortal wounds upon the said ESTHER BELL, of and from which said mortal wounds so inflicted as aforesaid, the said ESTHER BELL, did then and there die, contrary to the provisions of Section 860.01(2), Florida Statutes.”

On appeal, the District Court of Appeal, First District, determined that the information failed to charge the crime of manslaughter by intoxication and ordered the judgment of conviction reversed and respondent discharged.

Examining and interpreting three Florida decisions which it concluded were relevant to the disposition of the issue of sufficiency of the subject information to charge a crime. The District Court determined that to charge the crime of manslaughter under Section 860.01(2), Florida Statutes, the charging document must allege that the death of a human being was caused by the operation of a motor vehicle by defendant “while intoxicated.”

Taking a contrary position to that expressed by the First District Court of Appeal in the instant cause, although relying on the same decisional precedent, the District Court of Appeal, Fourth District, in State v. Fitzpatrick, supra, explained,

“The trial court relied upon Smith v. State [Fla., 65 So.2d 303], supra, Cannon v. State [91 Fla. 214, 107 So. 360], supra, and Lowe v. State [Fla.App., 116 So.2d 254], supra, in dismissing the information presumably for the proposition that ‘being under the influence of intoxicating liquor’ and ‘being intoxicated’ are different terms and do not mean the same thing. This of course is true. However, ‘being under the influence of intoxicating liquor to the extent that one’s normal faculties are impaired, or so as to deprive one of full possession of his normal faculties’, is equivalent to ‘being intoxicated.’ Clowney v. State, Fla.1958, 102 So.2d 619. Thus, in the case at bar, if appellee had a breathalyzer reading of 0.18 per cent he is presumed to be under the influence to the extent his normal faculties are impaired, i. e., he is presumed to be intoxicated.” (emphasis supplied)

Therein, the information charged appellee with being intoxicated or under the influence of intoxicating liquors to such an extent as to deprive him of full possession of his normal faculties causing the death of a human being.

Section 860.01(2), Florida Statutes, provides:

“(2) If, however, damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083, and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.”

Interpreting similar statutory language to that in question sub judice, this Court, in the early decision of Cannon v. State, 91 Fla. 214, 107 So. 360 (1926), opined:

“The last clause of Section 5563 of the Revised General Statutes as amended by Chapter 9269 of the Laws of 1923, reads as follows: ‘ * * * and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter and, on conviction, be punished as provided by existing law relating to manslaughter.’
“The language of the indictment, while sufficient to charge the offense defined in Section 5039, the gist of one element of which is the culpable negligence of the defendant as being the cause of the death, was not sufficient to constitute a charge of manslaughter under this amendatory act. The additional words in the indictment, ‘being at the time under the influence of intoxicating liquor,’ are not, in the commonly accepted meaning of such words, synonymous with or equivalent to the words in the amendatory statute, which are ‘while intoxicated.’ Though all persons intoxicated by the use of alcoholic liquors are ‘under the influence of intoxicating liquors,’ the reverse of the proposition is not true; for a person may be under the influence of intoxicating liquors without being intoxicated.
“It is true that Chapter 9269, above referred to, amending Section 5563 of the Revised General Statutes, makes it- a misdemeanor for any person ‘while in an intoxicated condition or under the influence of intoxicating liquors to drive’ any automobile or motor vehicle on the streets or highways of this state, but it is only where death results from the operation of a motor vehicle by a person ‘while intoxicated’ that is defined as manslaughter. In this connection the words ‘under the influence of intoxicating liquors’ are omitted. The felony lies not in the driving of an automobile negligently while intoxicated or under the influence of intoxicants but in the killing of a person ‘by the operation of a motor vehicle while intoxicated’ and in such ease the question of ‘culpable negligence’ in the driving of the automobile is not made an element of the crime.” (emphasis added)

This Court in Taylor v. State, 46 So.2d 725 (Fla.1950) explained that the term “intoxicated” is stronger and includes the term, “under the influence of intoxicating liquors,” reemphasized in Smith v. State, 65 So.2d 303 (Fla.1953), that “intoxication” and “being under the influence of intoxicating liquors” are different terms and do not mean the same thing.

The District Court of Appeal in Clowney v. State, 97 So.2d 316 (Fla. 2d DCA, 1957), certiorari discharged, 102 So.2d 619 (Fla. 1958), discussed a difference between use of the terminology “under the influence of intoxicating beverages” and “under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one’s body or mental faculties or both” and found the latter to be synonymous with the term “intoxicated.” Therein, the District Court declared:

“This court is of the opinion that while the Judge of the lower court was in error in his instruction to the jury, to-wit:
“ ‘If the death of any human being be caused by the operation of an automobile by a person under the influence of intoxicating liquor, he shall be deemed guilty of manslaughter, and upon conviction, shall be punished as provided by the law relating to manslaughter.’;
in view of the fact that the court in the subsequent paragraph defined intoxication as follows:
“ ‘Intoxication, lady and gentlemen, I charge you, as used in the second count of the Information, means under the influence of intoxicating liquor to such an extent as to deprive .one of the normal control of one’s body or mental faculties, or both.’,
such error was not prejudicial.
“A great deal of confusion is caused in criminal prosecutions by the use, interchangeably, of the terms ‘intoxicated’ and ‘under the influence of intoxicating bev-eragés.’ These terms are not synonymous. A person intoxicated is under the influence of intoxicating beverages, but it does not necessarily follow that a person under the influence of intoxicants is intoxicated. If a person is prosecuted on a charge of causing the death of a person while intoxicated, it must be proven beyond a reasonable doubt that the defendant was intoxicated and not just under the influence of intoxicants.”

In its opinion discharging the writ of certiorari in Clowney v. State, supra, this Court approved the rationale of the District Court. Referring to the earlier decisions of Cannon, supra, Taylor, and Smith, supra, this Court said:

“We do not find the definition conveyed to the jury by the combined charges an expression that conflicts with the pronouncements of this court in the opinions to which the petitioner has referred us.
* * * * * *
“The language is practically the same as that appearing in the first two paragraphs of Sec. 860.01, supra, denouncing the operation of a car by one ‘while in an intoxicated condition or under the influence of intoxicating liquor to such extent as to deprive [the driver] of full possession of his normal faculties.’ In this introductory paragraph the mere act of driving when in such condition is made punishable as a misdemeanor. Sec. 317.-20, Florida Statutes, 1955, and F.S.A.
“In the following paragraph it is provided ‘[i]f, however, damage to property or person of another, other than damage resulting in death’ is done by ‘said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties’ a misdemeanor is committed.
“There is similarity in the language used in the first paragraph and in the first part of the second paragraph, but the elimination of the conjunction ‘or’ from the latter is noteworthy for by such exclusion the degree of intoxication required to constitute the offense is defined.
“The second paragraph concludes: ‘and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated’ the driver shall be guilty of manslaughter.
“The second paragraph consists of but one sentence. Of course, the troublesome question of degree of intoxication would probably not have arisen had the definition appearing in the first part of the second paragraph been repeated when the penalty for causing death was prescribed, but it seems to us that since it was used in the single sentence of the paragraph, it is more logical to apply it to cases of manslaughter than to use one definition, that is relatively clear, in cases of driving in the condition described in the first portion of the paragraph and then struggle with a definition of ‘intoxicated’ when the more serious offense is charged, because of resulting death.
“In the instant case the trial judge seems to have borrowed the definition from the first part of the second paragraph except that he changed ‘full possession of * * * normal faculties’ to ‘normal control of * * * body or mental faculties * * *.’
“We think the proper definition of ‘intoxicated’ is the one we have quoted in analyzing the second paragraph, and we think further that the trial judge’s definition substantially complied with it.”

We adhere to the early precedent established by this Court and agree with the interpretation given thereto by the District Court of Appeal, Fourth District, in State v. Fitzpatrick, supra. Cf. Ingram v. Pettit et al., 340 So.2d 922 (Fla.1976).

Under the circumstances presented in the instant cause, we find that the language in the subject information “while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties” was sufficient to charge appellee with violation of Section 860.01, Florida Statutes.

Accordingly, the decision of the District Court of Appeal, First District, is quashed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

      . Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); Clowney v. State, 97 So.2d 316 (Fla. 2nd DCA, 1957); and Clowney v. State, 102 So.2d 619 (Fla.1958).

      . Sub judice the trial judge properly used the approved standard jury instruction which includes the following definition:
      “ ‘Intoxication’ means more than merely being under the influence of intoxicating liquor. As used in these charges, intoxication means that the defendant must have been so affected from the drinking of intoxicating liquor as to have lost or been deprived of the normal control of either his body or his mental faculties, or both. Intoxication is synonymous with ‘drunk.’ ”


author: SUNDBERG, Justice.

text:
    Kevin BLACKBURN, Jr., a minor, by and through his father and next friend, Kevin Blackburn, Sr., and Kevin Blackburn, Sr., Individually, Petitioners, v. David DORTA, a minor, by and through his parent and natural guardian, et al., Respondents. LEADERSHIP HOUSING, INC., Petitioner, v. Concetta REA and Frank Rea, her husband, Respondents. MAULE INDUSTRIES, INC., a Florida Corporation, Petitioner, v. Raymond C. PARKER, Sr., and Patricia A. Parker, his wife, Respondents.
    Nos. 46621, 47621 and 48443.
    Supreme Court of Florida.
    May 5, 1977.
    Rehearings Denied July 27, 1977.

      Ira H. Leesfield, Miami, James D. Little and Larry S. Stewart, Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for petitioners in 46621.
    William E. Sadowski, Helliwell, Melrose & DeWolf, Miami, for respondents in 46621.
    Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioner in 47621.
    James W. Dawson, Fazio, Dawson & Thompson, Fort Lauderdale, for respondents in 47621.
    Thomas E. Scott, Jr., Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for the Dade County Defense Bar Association, amicus curiae.
    Alfred A. Green, Jr., Green, Strasser & Hammond, Daytona Beach, for petitioner in 48443.
    Anthony I. Provitola and Michael McDer-mott, Provitola & McDermott, Deland, for respondents in 48443.
   SUNDBERG, Justice.

These three consolidated cases are before the Court under our conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Florida Appellate Rule 4.5(b). The District Court of Appeal, Third District, in Dorta v. Blackburn, 302 So.2d 450 (Fla. 3d DCA 1974), found that the doctrine of assumption of risk is still viable as an absolute bar to recovery subsequent to our adoption of the rule of comparative negligence in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). On the same point of law, the District Court of Appeal, First District, in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla. 1st DCA 1975); and the Fourth District in Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla. 4th DCA 1975), reached contrary conclusions. Subsequent to entertaining these consolidated cases, the District Court of Appeal, First District, has decided Smith v. Carter, 338 So.2d 845 (Fla. 1st DCA 1976); Hambrick v. Jackson, 333 So.2d 96 (Fla. 1st DCA 1976), and Manassa v. New Hampshire Insurance Co., 332 So.2d 34 (Fla. 1st DCA 1976). In addition, the District Court of Appeal, Second District, has decided Hall v. Horton, 330 So.2d 81 (Fla. 2d DCA 1976). Each of these last cited decisions rejects the continued viability of assumption of risk as a complete bar to recovery. We have jurisdiction.

Since our decision in Hoffman v. Jones, supra, contributory negligence no longer serves as a complete bar to plaintiff’s recovery but is to be considered in apportioning damages according to the principles of comparative negligence. We are now asked to determine the effect of the Hoffman decision on the common law doctrine of assumption of risk. If assumption of risk is equivalent to contributory negligence, then Hoffman mandates that it can no longer operate as a complete bar to recovery. However, if it has a distinct purpose apart from contributory negligence, its continued existence remains unaffected by Hoffman. This question was expressly reserved in Hoffman as being not ripe for decision. 280 So.2d 431, 439.

At the outset, we note that assumption of risk is not a favored defense. There is a puissant drift toward abrogating the defense. The argument is that assumption of risk serves no purpose which is not subsumed by either the doctrine of contributory negligence or the common law concept of duty. It is said that this redundancy results in confusion and, in some cases, denies recovery unjustly. The leading case in Florida dealing with the distinction between the doctrines recognizes that “[a]t times the line of demarcation between contributory negligence and assumption of risk is exceedingly difficult to define.” Byers v. Gunn, 81 So.2d 723, 727 (Fla.1955). The issue is most salient in states which have enacted comparative negligence legislation. Those statutes provide that the common law defense of contributory negligence no longer necessarily acts as a complete bar to recovery. The effect of these statutes upon the doctrine of assumption of risk has proved to be controversial. Joining the intensifying assault upon the doctrine, a number of comparative negligence jurisdictions have abrogated assumption of risk. Those jurisdictions hold that assumption of risk is interchangeable with contributory negligence and should be treated equivalently. Today we are invited to join this trend of dissatisfaction with the doctrine. For the reasons herein expressed, we accept the invitation.

At the commencement of any analysis of the doctrine of assumption of risk, we must recognize that we deal with a potpourri of labels, concepts, definitions, thoughts, and doctrines. The confusion of labels does not end with the indiscriminate and interchangeable use of the terms “contributory negligence” and “assumption of risk.” In the case law and among text writers, there have developed categories of assumption of risk. Distinctions exist between express and implied; between primary and secondary ; and between reasonable and unreasonable or, as sometimes expressed, strict and qualified. It will be our task to analyze these various labels and to trace the historical basis of the doctrine to unravel what has been in the law an “enigma wrapped in a mystery.”

It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry and upon which we express no opinion herein. Meistrich v. Casino Arena Attractions, supra (see footnote 5). Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the cove-nantee’s negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport.

The breed of assumption of risk with which we deal here is that which arises by implication or implied assumption of risk. Initially it may be divided into the categories of primary and secondary. The term primary assumption of risk is simply another means of stating that the defendant was not negligent, either because he owed no duty to the plaintiff in the first instance, or because he did not breach the duty owed. Secondary assumption of risk is an affirmative defense to an established breach of a duty owed by the defendant to the plaintiff. Meistrich v. Casino Arena Attractions, supra.

The concept of primary assumption of risk is the basis for the historical doctrine which arose in the master-servant relationship during the late nineteenth century. See Leavitt v. Gillaspie, supra (see footnote 3). The master was held not to be negligent if he provided a reasonably safe place to work; the servant was said to have assumed the inherent risks that remained. In this context assumption of risk was not an affirmative defense at all. Rather, it was another way of expressing that the master was not negligent, for the servant had the burden of proving that his injury resulted from a risk other than one inherent in a facility or location that was a reasonably safe place to work. Taylor v. Chicago, Rock Island & Pacific Ry., 186 Iowa 506, 170 N.W. 388 (1919). As is often the case in the common law, however, the doctrine mutated into an affirmative defense, with the burden of pleading and proof upon the master. Consequently, even if the servant could show that the master owed and had breached a duty to provide a reasonably safe place to work, the master could escape liability if he could establish that the servant had voluntarily exposed himself to a risk negligently created by the master. Thus, two distinct concepts came to bear the same label with inevitable confusion which has persisted to the present. Meistrich v. Casino Arena Attractions, supra.

It is apparent that no useful purpose is served by retaining terminology which expresses the thought embodied in primary assumption of risk. This branch (or trunk)' of the tree of assumption of risk is subsumed in the principle of negligence itself. Under our Florida jury instructions, the jury is directed first to determine whether the defendant has been negligent, i. e., did he owe a duty to the plaintiff and, if so, did he breach that duty? To sprinkle the term assumption of risk into the equation can only lead to confusion of a jury. See McGrath v. American Cyanamid Co., supra (see footnote 3). An example of this concept is presented in the operation of a passenger train. It can be said that a passenger assumes the risk of lurches and jerks which are ordinary and usual to the proper operation of the train, but that he does not assume the risk of extraordinary or unusual lurches and jerks resulting from substandard operation of the train. The same issue can be characterized in terms of the standard of care of the railroad. Thus, it can be said that the railroad owes a duty to operate its train with the degree of care of an ordinary prudent person under similar circumstances which includes some lurching and jerking while a train is in motion or commencing to move under ideal circumstances. So long as the lurching or jerking is not extraordinary due to substandard conduct of the railroad, there is no breach of duty and, hence, no negligence on the part of the railroad. The latter characterization of the issue clearly seems preferable and is consistent with the manner in which the jury is instructed under our standard jury instructions.

Having dispensed with express and primary-implied assumption of risk, we recur to secondary-implied assumption of risk which is the affirmative defense variety that has been such a thorn in the judicial side.. The affirmative defense brand of assumption of risk can be subdivided into the type of conduct which is reasonable but nonetheless bars recovery (sometimes called pure or strict assumption of risk), and the type of conduct which is unreasonable and bars recovery (sometimes referred to as qualified assumption of risk). See Parker v. Redden, supra (see footnote 6). Application of pure or strict assumption of risk is exemplified by the hypothetical situation in which a landlord has negligently permitted his tenant’s premises to become highly flammable and a fire ensues. The tenant returns from work to find the premises a blazing inferno with his infant child trapped within. He rushes in to retrieve the child and is injured in so doing. Under the pure doctrine of assumption of risk, the tenant is barred from recovery because it can be said he voluntarily exposed himself to a known risk. Under this view of assumption of risk, the tenant is precluded from recovery notwithstanding the fact that his conduct could be said to be entirely reasonable under the circumstances. Morrison & Conklin Construction Co. v. Cooper, 256 S.W.2d 505 (Ky.1953); Restatement (Second) of Torts, § 496C, Comments d-g (1965). There is little to commend this doctrine of implied-pure or strict assumption of risk, and our research discloses no Florida case in which it has been applied. Certainly, in light of Hoffman v. Jones, supra, there is no reason supported by law or justice in this state to give credence to such a principle of law.

There remains, then, for analysis only the principle of implied-qualified assumption of risk, and it can be demonstrated in the hypothetical recited above with the minor alteration that the tenant rushes into the blazing premises to retrieve his favorite fedora. Such conduct on the tenant’s part clearly would be unreasonable. Consequently, his conduct can just as readily be characterized as contributory negligence. It is the failure to exercise the care of a reasonably prudent man under similar circumstances. It is this last category of assumption of risk which has caused persistent confusion in the law of torts because of the lack of analytic difference between it and contributory negligence. If the only significant form of assumption of risk (implied-qualified) is so readily characterized, conceptualized, and verbalized as contributory negligence, can there be any sound rationale for retaining it as a separate affirmative defense to negligent conduct which bars recovery altogether? In the absence of any historical imperative, the answer must be no. We are persuaded that there is no historical significance to the doctrine of implied-secondary assumption of risk. As pointed out earlier in this opinion, the affirmative defense developed from a misapplication of principles applicable to the standard of care imposed upon an employer in the master-servant relationship. The opinion of the United States Supreme Court in Tiller v. Atlantic Coast Line R. R., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943), demonstrates that the doctrine has not only been indiscriminately misapplied historically but also represents a morally unacceptable social policy which was calculated to advance the industrial revolution regardless of the cost in human suffering. Mr. Justice Frankfurter, concurring, put it aptly when he stated:

The phrase “assumption of risk” is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas. Thus, in the setting of one set of circumstances, “assumption of risk” has been used as a shorthand way of saying that although an employer may have violated the duty of care which he owed his employee, he could nevertheless escape liability for damages resulting from his negligence if the employee, by accepting or continuing in the employment with “notice” of such negligence, “assumed the risk.” In such situations “assumption of risk” is a defense which enables a negligent employer to defeat recovery against him. In the setting of a totally different set of circumstances, “assumption of risk” has a totally different meaning. Industrial enterprise entails, for all those engaged in it, certain hazards to life and limb which no amount of care on the part of the employer can avoid. In denying recovery to an employee injured as a result of exposure to such a hazard, where the employer has in no sense been negligent or derelict in the duty owed to his employees, courts have often said that the employee “assumed the risk.” Here the phrase “assumption of risk” is used simply to convey the idea that the employer was not at fault and therefore not liable.
Plainly enough only mischief could result from using a single phrase to express two such different ideas. Such ambiguity necessarily does harm to the desirability of clarity and coherence in any civilized system of law. But the greater mischief was that in one of its aspects the phrase “assumption of risk” gave judicial expression to a social policy that entailed much human misery. The notion of “assumption of risk” as a defense — that is, where the employer concededly failed in his duty of care and nevertheless escaped liability because the employee had “agreed” to “assume the risk” of the employer’s fault — rested, in the context of our industrial society, upon a pure fiction. And in all English-speaking countries legislation was necessary to correct this injustice. . . . 318 U.S. 54 at 68-69, 63 S.Ct. 444 at 452.

See also Lyons v. Redding Construction Co., supra (see footnote 3).

We find no discernible basis analytically or historically to maintain a distinction between the affirmative defense of contributory negligence and assumption of risk. The latter appears to be a viable, rational doctrine only in the sense described herein as implied-qualified assumption of risk which connotes unreasonable conduct on the part of the plaintiff. This result comports with the definition of contributory negligence appearing in Restatement (Second) of Torts, § 466 (1965). Furthermore, were we not otherwise persuaded to elimination of assumption of risk as a separate affirmative defense in the context herein described, the decision of this Court in Hoffman v. Jones, supra, would dictate such a result. As stated therein:

. A primary function of a court is to see that legal conflicts are equitably resolved. In the field of tort law, the most equitable result that can ever be reached by a court is the equation of liability with fault. Comparative negligence does this more completely than contributory negligence, and we would be shirking our duty if we did not adopt the better doctrine. 280 So.2d 431, 438.

Is liability equated with fault under a doctrine which would totally bar recovery by one who voluntarily, but reasonably, assumes a known risk while one whose conduct is unreasonable but denominated “contributory negligence” is permitted to recover a proportionate amount of his damages for injury? Certainly not. Therefore, we hold that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones, supra, shall apply in all cases where such defense is asserted.

Accordingly, the petition for writ of cer-tiorari to the District Court of Appeal, Third District, in Blackburn v. Dorta, Case No. 46,621, is granted, the decision of that court is quashed, and the cause is remanded for further proceedings not inconsistent herewith. In Leadership Housing, Inc. v. Rea, Case No. 47,621, and in Maule Industries, Inc. v. Parker, Case No. 48,443, the District Court decisions are approved, and writs of certiorari are discharged.

It is so ordered.

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

      . See 2 Harper and James, Law of Torts, 1956, 1162-1192; Fleming, Law of Torts, 2d Ed. 1961, 249-258; Bohlen, “Voluntary Assumption of Risk,” 1906, 20 Harv.L.Rev. 14, 91; Rice, “The Automobile Guest and the Rationale of Assumption of Risk,” 1943, 27 Minn.L.Rev. 33; Payne, “Assumption of Risk and Negligence,” 1957, 35 Can.Bar Rev. 950; Wade, “The Place of Assumption of Risk in the Law of Negligence,” 1961, 22 La.L.Rev. 5; James, “Assumption of Risk: Unhappy Reincarnation,” 1968, 78 Yale L.J. 185, 56 Minn.L.Rev. 47.

      . See for example Petrone v. Margoiis, 20 N.J. Super. 180, 89 A.2d 476 (1952), which says that the two doctrines are now treated as “convertible terms.”

      . Our research indicates that the following states have indicated either that assumption of risk should not be pleaded or that assumption of risk should be considered the equivalent of contributory negligence:
      a. Alaska: Leavitt v. Gillaspie, 443 P.2d 61 (Alas.1968);
      b. Connecticut: G.S.C.A. § 52-572h (1973);
      c. New Hampshire: Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641 (1962);
      d. New Jersey: McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963);
      e. New Mexico: Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971);
      f. North Dakota: Wentz v. Deseth, 221 N.W.2d 101 (N.D.1974); N.D.Stat. 9-10-06 (1973);
      g. Utah: Utah Stat. 78-27-37 (1975);
      h. Wisconsin: McConville v. State Farm Mutual Auto Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14 (1962).
      The following states have indicated that although express assumption of risk is a viable defense, implied assumption of risk is equivalent to and should be treated like contributory negligence:
      a. Kansas: Smith v. Blakey, 213 Kan. 91, 515 P.2d 1062 (1973);
      b. Maine: Wilson v. Gordon, 354 A.2d 398 (Me.1976);
      c.Minnesota: Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971);
      d. Oregon: Zumwalt v. Lindland, 239 Or. 26, 396 P.2d 205 (1964); Or. Rev.Stat. § 18.470 (1971);
      e. Texas: Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex.1975);
      f. Washington: Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (1973);
      g. Wyoming: Sanders v. Pitner, 508 P.2d 602 (Wyo.1973) (The court notes that the comparative negligence doctrine may necessitate a distinction between the doctrines at some later date.)

        California, Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), and Hawaii, Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 406 P.2d 887 (1965), have both indicated that assumption of risk may not be a defense when it overlaps with contributory negligence.

      . See Schwartz, Comparative Negligence, § 9.2, pp. 158-159.

      . See Meistrich v. Casino Arena Attractions, 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959).

      . See Parker v. Redden, 421 S.W.2d 586 (Ky. 1967).