text:
    David Wayne TANNER, alias v. STATE.
    7 Div. 374.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.

      Otis J. Goodwyn, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Embezzlement; sentence: six years imprisonment.

Charles Fordham testified for the State that he was the owner of Fordham Transfer Company located in East Gadsden, Alabama. He stated that the appellant, David Wayne Tanner, was employed by him from September 1971 through October 1974, and on two previous occasions. Fordham Transfer Company had a contract with Goodyear Tire Company in Gadsden, hauling tires from the Goodyear plant to two Goodyear warehouses, all located in Gadsden.

Fordham testified that 988 passenger, truck and tractor tires were shown by inventory to be missing between February and August of 1974. He stated the value of the tires to be $33,000.00. The appellant drove a truck, hauling the Goodyear tires, for Fordham.

Police Sergeant W. A. O’Bryant testified (outside the presence of the jury) that he met with the appellant on November 18, 1975, in a meeting in the office of the Captain of Detectives of the Gadsden Police Department. Present at the meeting were Assistant Police Chief Gerald Diggs and Bill Sine, an investigator for Goodyear from Akron, Ohio. The appellant had been contacted by telephone, and a police car was sent to pick him up since he had no transportation. O’Bryant stated that the appellant was not under arrest at the time, but had been under investigation. The witness stated that after appellant arrived :

“Well, I just told David at the present time that there wasn’t any charges against him; that we didn’t know at a later date whether there would be any charges or not, but as a precautionary measure I did explain the Miranda Warning to him; I filled out the form; I read it to him; he read it; he signed. It was witnessed by Chief Diggs and Bill Sine.”

That form, entitled “Waiver of Counsel by Defendant in Custody,” was admitted into evidence as State’s Exhibit No. 1. After the statement was read and signed, the appellant proceeded to give a statement to the officers present concerning the missing Goodyear tires. The State laid the predicate as to voluntariness of the appellant’s inculpatory statement, and counsel for appellant requested the right to cross examine at that point.

On cross examination, it was shown that the appellant had met with various law enforcement officers on several occasions prior to November 18th. The witness stated that the first meeting was held at a local motel. Present on that occasion were F.B.I. Agent George Oaks, Chief Diggs, Bill Sine, Sergeant O’Bryant, the appellant and Ronnie Cox.

The witness stated that Chief Diggs questioned the appellant about the missing tires:

“Q. What did he tell him ?
“A. He was just asking about the theft of the tires which David voluntarily told us about.
“Q. Also Chief Diggs told to him that he was not interested in prosecuting him; that he was interested in prosecuting a number of other people, didn’t he ?
“A. Not to my knowledge, no, sir.”

The witness testified concerning a later meeting at the same motel, on the following night, attended by the same people. To the best of his knowledge, it occurred in September, but no exact date was given. The following occurred:

“Q. At that time were more names discussed ?
“A. There were several names discussed.
“Q. Tell us what names were discussed at that time.
“A. The ones that I recall as far as being involved under the investigation was Clyde Tidmore, Billy Garrett, Chuck Jackson.
“Q. Now, when the name of Clyde Tid-more got into the conversation who brought that in? Did you bring it in or did Chief Diggs bring it in?
“A. David Tanner.
“Q. At that time did Chief Diggs make this statement or this in effect: That the man he wanted was Clyde Tidmore?
“A. No, sir.
“Q. And that if David Tanner would make a statement involving Clyde Tid-more that he would grant him immunity, that he would never be prosecuted ?
“A. No, sir.
Q. That didn’t happen ?
“A. No, sir.”

The witness testified concerning a third meeting in another motel, but did not recall that date. To the best of his knowledge, Bill Sine, Chief Diggs, Ronnie Cox, the appellant and the witness were present. The following occurred:

“Q. Chief Diggs questioned David ?
“A. Yes, sir, we all did.
“Q. You questioned him ?
“A. Yes, sir.
“Q. Bill Sine questioned him ?
“A. Yes, sir.
“Q. Chief Diggs tell him then that if he would make a statement involving Tid-more and these other people that he would grant him immunity ?
“A. No, sir, not in my presence.
“Q. That he would see that he was not prosecuted and wouldn’t have to serve a day?
“A. The only thing I have ever heard Chief Diggs say as far as prosecution was it wasn’t up to him, that it would be up to the proper official whether he was prosecuted or not.
“Q. Did you hear him make this statement that no warrants would be issued—
“A. —No, sir, not in my presence.
“Q. And no statements, no promises or anything were made by Chief Diggs to get him to make a statement ?
“A. No, sir.
“Q. No offer of immunity ?
“A. No, sir.”

The witness emphatically stated on direct and cross examination that no promises or threats were made by anyone in his pres-' ence to the appellant during- the meetings which he attended.

Chief Gerald Diggs was called as a defense witness (outside the presence of the jury) and was questioned concerning the three meetings with the appellant at local motels and the meeting at the police station on November 18th. He emphatically denied making any promise of immunity to the appellant at any of those meetings. He denied telling the appellant that he really wanted Clyde Tidmore and not the appellant. He denied telling the appellant that no warrants would be issued against him.

William R. Sine, Investigator for Goodyear, was called by the defendant (outside the presence of the jury). He testified as to meeting with the appellant at a local motel. Present were: F.B.I. Agent George Oaks, Ronnie Cox from the Sheriff’s Department, Sergeant O’Bryant, Chief Diggs and the appellant. The following testimony, in pertinent part, was given:

“Q. Do you recall Chief Diggs stating something to the effect that if David would cooperate that he would grant him immunity ?
“A. No, sir. He did say that he would talk to the District Attorney.
“Q. Do you recall his making the statement that if he would cooperate on Clyde Tidmore that he would not have to serve a day?
“A. No, sir. May I explain how what I believe you are talking about ?
“Q. Yes, sir.
“A. I could be wrong. I want to make sure I’m with you on the same track. David was told by Chief Diggs that if he cooperated that Goodyear would probably not be interested in prosecuting him, him himself, David Tanner, and this was the case. I was a little hesitant about doing this, but as it turned out this was the case.
“Q. What he said, he said if he would cooperate that Goodyear would not prosecute him?
“A. Goodyear was not interested in prosecuting David Tanner.
“Q. Did he further that statement by saying that he would not have to serve a day?
“A. No, sir, I do not recall that.
“Q. Did he further that statement by saying that no warrants would be issued against David Tanner?
“A. No, sir, I do not recall him saying that.
“Q. Did he make any other offer that you recall? Did he say -T will grant you immunity from prosecution or words to that effect?
“A. I definitely did not., hear anybody say anything about immunity.
“Q. Did you hear anything about offering him a job as an undercover agent with the FBI?
“A. No, sir.”

Sine testified as to another meeting in a local motel with the same persons present. He was questioned about that occasion in part as follows:

“Q. You didn’t hear him make the statement that if he would cooperate and get Clyde Tidmore that he would grant him immunity?
“A. No, sir, I can honestly say I did not. After the first meeting with David I don’t believe this was discussed anymore. After the first meeting at the Travelers Eight when David was told by Diggs that Goodyear was not going to prosecute him. I don’t recall—
“Q. —if he cooperated?
“A. Yes, that is true.
“Q. All right. Now, how long did you stay there on this occasion ?
“A. Maybe a couple of hours.
. . . . . .
“Q. And after the first discussion about Goodyear would not prosecute him if he would cooperate you never heard any further discussion about promises or anything ?
“A. Not that I recall.”

The witness stated that the appellant never requested to call a lawyer while in his presence. He said that in talking with the District Attorney, no promises were made by the District Attorney. He stated that it was understood that Chief Diggs would talk to the District Attorney if the appellant had cooperated and inform the District Attorney the appellant had cooperated with the investigation. There was no agreement that the appellant would not be sentenced, “Only the fact that Goodyear would probably not prosecute.” He stated that the District Attorney made no statement concerning probation.

Sergeant O’Bryant was recalled and questioned (in chambers) concerning any possible promises the District Attorney may have made. He said probation may have been discussed, however, that was concerning a discussion between law enforcement officers and the District Attorney before issuing the warrant, and did not reflect any promise made to the appellant to induce him to make a statement.

Chief Diggs was recalled by the defense (in chambers):

“Q. And after that meeting in Mr. Rayburn’s office and before you got the statement you again talked with David Tanner?
“A. I didn’t, no, sir.
“Q. You didn’t go to David Tanner and say that everything was all right, that you had cleared it with Mr. Rayburn, that after he made the statement or gave you a written statement that Mr. Rayburn had agreed to try Tidmore and Jackson first?
“A. No, sir.
“Q. And after that his case would be taken care of, that his case would be tried, last ?
“A. At the time I talked to Mr. Tanner there were no charges placed against him whatsoever.
“Q. Yes, sir. But I’m talking about—
“A. —The only time that I made a statement — that I saw the statement is when Mr. Sines (sic) and Sgt. O’Bryant and myself come (sic) to the District Attorney’s office.”

Chief Diggs stated that he did not recall having a meeting with the District Attorney, Mr. Sine-and Sergeant O’Bryant prior to getting the appellant’s statement. He only remembered going to the District Attorney’s Office on the day the warrants were obtained by Sergeant O’Bryant, which was after the appellant’s inculpatory statement had been given.

Sergeant O’Bryant was again recalled by the defense (in chambers). He was asked if he recalled being present at a meeting with Mr. Sine, Chief Diggs and the District Attorney, wherein the District Attorney stated that in the event the appellant gave a statement and cooperated, that Jackson and Tidmore would be tried first and the appellant’s case would be handled last. The witness stated that he did not hear any such statements made in his presence.

The defense then recalled Mr. Sine and questioned him (in chambers) concerning any conversations with the District Attorney. He stated that he did not meet with the District Attorney until after the appellant’s inculpatory statement had already been made, stating:

“I recall that Mr. Rayburn and Mr. Lummis had decided that Goodyear would not sign the affidavit, that the matter would be turned over to the Grand Jury and then if Mr. Tanner was indicted that’s the way it would be.”

The witness stated that in the initial conversation with the appellant that F.B.I. Agent George Oaks informed the appellant that he could not make any deals with him, that he would talk to the federal attorney in charge and say that the appellant had cooperated. The witness said Oaks made this clear to the appellant prior to the reading of his rights and the signing of the waiver (State’s Exhibit No. 1). On cross examination by the District Attorney, the witness stated that no one present threatened the appellant in order to obtain the statement; that no one told him it would be better for him if he gave a statement or worse for him if he did not give a statement; and no one offered him any reward or hope of reward if he gave a statement.

Mr. Sine stated that the appellant signed the inculpatory statement, which was taken in his presence, and that he witnessed the statement. He testified as to what the appellant had verbally told him and the other officers concerning the offense:

“He began with telling how he got involved with certain individuals in removing tires from the Goodyear Warehouses in lots of four and eight and then it worked its way up tile (sic) load of thirty, how he became involved with other businessmen here in the area, how he felt that the big man was going to go free walking the streets while he had to pay for it, he didn’t mind going to jail himself as long as the big man that was using him also suffered a like consequence, how they switched the seals on trailers, how they had intended eventually to take a whole trailer consisting of 900 to a thousand tires, where they met

The appellant, David Wayne Tanner, took the stand in his own behalf (in chambers) to testify concerning the admissibility of his inculpatory statement.

Tanner said his first conversation with Chief Diggs was August 28, 1974, when the Chief and Lieutenant Matthews approached him on the platform at the Goodyear plant. They told him they were going to take him into custody and ask him a few questions about the theft of tires. They took him to a captain’s office at City Hall. On the way, Chief Diggs told him that he had been meeting with Goodyear officials, and they knew that appellant had taken the tires and all that Goodyear wanted was their tires back. Appellant testified that he then told the officers that if he was under arrest, he needed to notify his lawyer, and Chief Diggs told him that if he started talking about a lawyer then he was in trouble. Appellant said on that occasion he denied any knowledge of the theft.

The next confrontation was on September 18th in Fordham’s office where Chief Diggs told him he wanted to talk to him some more about the tire theft. Diggs asked him to come to police headquarters the next morning. He went there and stayed about fifteen minutes. He agreed to take a lie detector test, and they proceeded to the Ramada Inn and met Jerry Black who was working for the county. Ronnie Cox was administering the polygraph test to the Goodyear employees at the time. They met again the same day at 2:00 P. M. in Chief Diggs’ office, at the Chief’s request to talk about the persons involved in the theft. He said Diggs told him he wanted the man at Goodyear, that he wanted Clyde Tidmore, Richard Wolfe and Nasty Sparks. Diggs told him that if he wanted to be a man about it, he could be an informant for the F.B.I.

The next morning at 8:00 A. M., he left with Ronnie Cox and Chief Diggs to go to Birmingham for a meeting with F.B.I. Agent Ralph Miles. He said Chief Diggs told Ralph Miles that he could not trust the local F.B.I. representative in Gadsden. He said no promises were made to him for his cooperation at that time and no statement was given to Mr. Miles. On the way back to Gadsden, Chief Diggs wanted the appellant to take the code name Joe Davis and that, “it was more or less an understanding that he wanted to get to Clyde Tidmore,” and that the appellant was to use the code name if he wanted to contact the Chief.

Appellant stated that the next meeting with the Chief was on Monday, September 23rd. They met at the Travelers Eight Motel. Those present were: the appellant, Ronnie Cox, William Sine, Chief Diggs, Sergeant O’Bryant and F.B.I. Agent George Oaks. Appellant stated that on that occasion Chief Diggs told him that he was not interested in prosecuting him, then looked over to Sine and said, “ T feel like Goodyear will do the same provided he cooperates.’ ” Sine nodded in the affirmative, but said nothing. He was asked about Mr. Oaks’ participation, and he stated :

“Mr. Oaks — When we first got there Chief Diggs took charge of the conversation and after them two made the two promises George Oaks in return says T cannot do that because it is unethical,’ that all he could do was to go to the Magistrate. He said that he didn’t know what his participation, the Federal people, would be involved in this thing, that if I cooperated he would go to the U.S. Magistrate and tell him that I had cooperated.”

He said the next meeting was approximately 11:15 P. M. the night of September 23rd. He was picked up by Ronnie Cox and taken to the same motel again. Those present were: the appellant, Ronnie Cox, William Sine, Chief Diggs and Sergeant O’Bryant. George Oaks was not there. He stated that the officers were still talking in terms of not prosecuting him and discussed other people who might be involved.

Appellant said the next meeting was the next night at approximately 11:30 P. M. On the way to the meeting, they stopped and bought a six pack of beer and took it with them. This meeting was at the Holiday Inn. Present were: the appellant, Chief Diggs, Ronnie Cox and William Sine. O’Bryant came to the meeting later. Appellant said Chief Diggs continued to say that they wanted Clyde Tidmore and others and that the Chief was still talking about “non-prosecution,” if the appellant would continue to cooperate.

Appellant said the next meeting was October 4th in Chief Diggs’ office, with Chief Diggs, William Sine and the appellant present. He said they continued to make promises. On that occasion they wanted to confirm a statement he had made on October 1st to William Sine at the Goodyear plant. He stated that he made a statement on October 1st after being told that Fordham did not have proper insurance to cover the shortages and that his statement was needed for Goodyear to take a tax writeoff and his only punishment would be being barred from the Goodyear premises. Appellant stated that he gave the statement to protect his father’s job, as his father worked for Fordham, and because he was promised that Goodyear would not prosecute and that they merely needed the statement for a tax loss.

Appellant said that he was discharged from Fordham on October 8th and on November 16th was called by Sergeant O’Bryant who told him that Chief Diggs needed his help and asked him to come to City Hall. He arrived and spent approximately two hours. He went back on November 18th at approximately 2:30 P. M. and stayed until 10:00 or 10:30 that night. On that occasion, he signed another statement. He said that before he signed it, Chief Diggs stated that he had been to the District Attorney’s office and that the District Attorney was going along with the entire program if appellant would turn State’s evidence against Clyde Tidmore. He said Chief Diggs stated that he was not going to prosecute appellant if he would sign a statement involving Clyde Tidmore. He said the Chief told him he would get him a job if he would cooperate to get Tidmore, and that he would help him in any way possible concerning immunity, representation by counsel, making bond, etc.

Appellant was asked if Chief Diggs told him about the results of the meeting with the District Attorney, and he said:

“Yes, sir. he said that there were going to be six warrants issued, one for Mr. Hayes at Rainbow Shell, one for Mr. Jimmy Hammett, one for Billy Garrett, one for Clyde Tidmore, one for Chuck Jackson and one for myself. (Emphasis supplied).

He said he was told that the only way that the District Attorney would go along with the police was to issue a warrant for appellant, try his case last, wherein he would plead guilty and get two years on probation. He said that after this was told him, he made a statement. Appellant said the original statement to Sine at Goodyear was used wherein the officers inserted changes, and he signed it. He said he signed the waiver after he had been promised total immunity and a job. He said that after the statement was signed, Diggs, Sine and O’Bryant carried him home and they were laughing and joking and when he got out of the car, Sine told him not to worry. He was arrested the next day and taken to jail. After that he never heard from the officers, and he was totally on his own.

Appellant called F.B.I. Agent George Oaks as a witness (also in chambers). Oaks refused to testify without receiving permission from the Justice Department and was excused.

Ronnie Cox, an employee of the Sheriff’s Department, testified concerning the meeting at the local motel with the appellant, Chief Diggs, William Sine and George Oaks. He stated that one time during the conversation, Chief Diggs told Tanner that he would not be prosecuted if he cooperated and made a statement to Mr. Sine concerning prosecution by Goodyear whereupon Mr. Sine replied that Goodyear was not interested in prosecuting the appellant.

The witness stated that F.B.I. Agent Oaks stated that he did not speak for the Justice Department or the Magistrate, but that if the appellant cooperated, he would go to bat for him and tell the Magistrate or his superior that appellant cooperated and it would go better or easier on the appellant. Cox was asked about the meeting at the Holiday Inn and if promises were made to appellant. He stated, “Well, you are speaking of something that was made all along. I can’t remember exactly when it was made or what. I mean it was said several times. It could have possibly been said the second time, but I can’t say for sure.” He stated that all present were drinking, however, Chief Diggs had denied that any drinking occurred on this occasion.

Cox was asked about the trip to Birmingham to see the F.B.I. agent-in-charge, and he stated that during the trip there was a repetition of the promises previously made, that the appellant would not be prosecuted by the city or by Goodyear if he cooperated. He said Chief Diggs promised appellant three times, and told the witness once, that Diggs would not prosecute the appellant. One occasion was at the City Hall in the presence of Jerry Black, a special deputy.

Jerry Black was called by the defense (out of the presence of the jury). He stated that he was a special deputy sheriff and that he helped Deputy Cox at times with the polygraph. He was not certain of the date, but testified that around September 20th or 21st he overheard a conversation between Chief Diggs and the appellant, that if appellant would cooperate in getting the rest of the people involved in the tire theft that, “they could get him out of it. In other words, he wouldn’t get anything.” He said Chief Diggs was trying to get appellant to sign a statement or make a confession at that time and promised appellant that he would not get any time at all if he would cooperate and get the rest of the people. He said he heard the Chief promise this no less than three times during a period of four hours.

The District Attorney and defense counsel made arguments to the trial judge concerning admissibility of the confession of appellant, and the trial judge overruled the appellant’s objection and admitted into evidence the testimony concerning the appellant’s verbal confession and likewise admitted the two written statements.

The jury was returned to the courtroom, and Mr. William Sine testified on behalf of the State. Miss Diane Leonard, who typed the appellant’s statement, testified on behalf of the State, and then the defense put on Jerry Black and Ronnie Cox as witnesses. The State called William Sine, Gerald Diggs and Sergeant O’Bryant as rebuttal witnesses.

The State’s testimony was to the effect that no promises were made by the State to the appellant that he would not be prosecuted if he cooperated and signed the statement. Witnesses Black and Cox testified substantially as before. Following the testimony of Mr. Oaks, in chambers, defense counsel had him subpoenaed and he again claimed that he was immune from testifying. He stated that he had been in touch with the Assistant United States Attorney in Birmingham and was ordered not to testify, however, the defense could make proper application through the United States Attorney which would be considered. The court stated: “Well, I am going to grant his request to not appear as a witness in view of the fact that you have not followed the prescribed procedure to get him to testify.” To which, the defense excepted.

The written statements, signed by the appellant and introduced into, evidence, constituted a full confession by the appellant as to his part in the embezzlement and theft of the tires. The contents of the confession as to the mechanics or scheme of the crime need not be set out here.

At the end of the case, the defendant moved to exclude the evidence and discharge the defendant, without stating grounds, which was overruled by the judge. At the end of the court’s oral charge, both the State and the defendant announced that they were satisfied.

I

Appellant contends that his confession was not voluntary and thus should not have been admitted into evidence.

The evidence is in sharp conflict as to whether or not Chief Diggs, Bill Sine or others promised the appellant either total immunity or probation as an inducement for him to make a confession. Each officer, as well as Sine, denied making any promises to the appellant. Sine stated that he made no promises, but Chief Diggs told the appellant that Goodyear would probably not be interested in prosecuting him. Sine said that he, as an agent of Goodyear, did not have authority to make that statement and thus did not make such a promise to the appellant.

Although George Oaks did not testify, there was testimony from other witnesses that he made no promises to the appellant. There was testimony that Oaks told the appellant that he could not make any promises to him, but that he would inform the United States Attorney of any cooperation of the appellant, if a federal charge was made.

The witnesses that had met with the District Attorney likewise testified that no promises were made by the District Attorney concerning probation or immunity. The appellant testified that he was promised total immunity by Chief Diggs. Later in his testimony, he stated that Goodyear promised that he would not be prosecuted if he gave them a statement which they needed for tax purposes and that he would only be barred from the Goodyear premise's. Appellant’s later testimony became confused in regard to whether he was being promised immunity or probation. He testified that he was told that he would be arrested, but would be tried last and would be given probation.

Both witnesses Ronnie Cox and Jerry Black testified that Chief Diggs promised the appellant immunity. It is well settled that extrajudicial confessions are presumed to be involuntary, and the burden is upon the State to establish volun-tariness. Our Supreme Court has stated that the test to be used is, “whether, under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor.” The duty to determine whether or not a confession is voluntary rests on the trial judge. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967). The Wallace decision was a comprehensive per curiam opinion by the Court dealing with the question of the voluntariness of a confession. The Court held that a confession, after a Miranda warning, was not involuntary due to the fact that a detective told the accused a probation officer could be told that the accused told the truth, if he gave the detective a truthful statement. However, in Womack, supra, the confession was held to be involuntary where the sheriff told the accused that it would go lighter on him if he made a statement.

The person inducing an accused to make an inculpatory statement need not be a law enforcement officer. In Allen v. State, 53 Ala.App. 66, 297 So.2d 391 (1974), cert, denied 292 Ala. 707, 297 So.2d 399, this Court held a confession to be involuntary which was made to a person, not a law enforcement officer, who could have been fairly, supposed by the defendant to have the power to secure the promised benefit for the accused. However, the evidence in the instant case does not convince us that the appellant was lead to believe that Goodyear had the sole discretion as to whether or not he would be prosecuted. There is ample evidence that the appellant was made aware that although Goodyear may not wish to press charges, the state or the federal government could do so.

In McNair v. State, 50 Ala.App. 465, 280 So.2d 171, cert. denied 291 Ala. 789, 280 So.2d 177 (1973):

“This Court has previously recognized the fact that it is not unusual for the voluntariness inquiry to present conflicting evidence. . . . When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. . . . Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge .need only be supported by substantial evidence and not to a moral certainty. . . .” (Citations omitted).

The United States Supreme Court in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), held it to be constitutional for a state to prove volun-tariness of a confession, “by a preponderance of the evidence.”

We believe the trial judge’s ruling in the instant case was supported by “substantial evidence” or “a preponderance of the evidence” and should not be disturbed by this Court on appeal.

Neither do we find the statement purportedly made by F.B.I. Agent George Oaks to have affected the voluntariness of the confession. The Fifth Circuit Court of Appeals has held that a confession is not rendered involuntary, “by reason of the single fact that the FBI agents told him that if he cooperated with them his cooperation would be made known to the United States Attorney, that there might be some consideration given by the United States Attorney but that the agents could make no promises.” United States v. Frazier, 434 F.2d 994 (5 Cir., 1970).

II

The appellant contends that there must be independent proof of the corpus delicti in a criminal case before a confession may be admitted into evidence.

The first witness in the instant case, Charles Fordham, testified that 988 tires were missing from his inventory between February and August of 1974. He stated the value of the tires to be $33,000.00.

It is true that a confession without independent evidence of the corpus de-licti is not sufficient to support a conviction, and the burden is upon the State to prove the corpus delicti independently of the confession. King v. State, 49 Ala.App. 111, 269 So.2d 130 (1972); Robinson v. State, 45 Ala.App. 74, 224 So.2d 675 (1969). However, proof of the corpus de-licti does not necessarily include evidence connecting the defendant with the crime. The term corpus delicti means the body or the substance of the crime and connotes the commission of the offense by the criminal agency of someone. Latham v. State, 38 Ala.App. 92, 77 So.2d 499, cert. stricken 262 Ala. 108, 77 So.2d 502 (1954); Malone v. State, 37 Ala.App. 432, 71 So.2d 99, cert. denied 260 Ala. 699, 71 So.2d 101 (1954).

On cross examination, Fordham was asked how he determined the figure of 988 tires to be missing. He said the number was first given to him by Goodyear and that he checked his bills of lading and verified it. The count was conducted by Fordham and one of his office employees. He was then asked how he determined the value of the tires. He stated that he was charged with the claim for the loss of them, and on redirect examination, stated that the $33,000.00 value was his best judgment. We deem the testimony of Charles Fordham sufficient to establish the corpus delicti, and such testimony coupled with the confession of the appellant is sufficient to support a conviction.

Ill

Appellant contends that the trial court committed error by refusing to require F. B.I. Agent George Oaks to testify.

Contrary to appellant’s contention, we find Holt v. State, 46 Ala.App. 555, 246 So.2d 85 (1971) to be controlling. There we stated:

“The first claim of error arose from the denial of a ten day continuance because an F.B.I. agent under subpoena took umbrage under an order of the Attorney General of the United States. The witness respectfully declined to testify about an investigation of certain Birmingham police officers, claimed to have breached Holt’s civil rights.
“We find no timely motion by Holt to request that the Attorney General of the United States make provision for the production of the information. The lack of such a motion made well before the day of the trial suffices to support the ruling of the trial court. Parsons v. State, 251 Ala. 467, 38 So.2d 209; Anno. 165 A.L.R. 1302. There was no error in denying the continuance.” (Footnote omitted).

In the instant case, appellant sought to produce Agent Oaks as a witness on the day of the trial. When Oaks declined to testify without permission from the United States Attorney, appellant sought a continuance until permission was granted. The trial judge refused to grant the continuance, but during the course of the trial, it was made known that the United States Attorney in Birmingham had declined the request for Oaks to testify, but that any formal request made pursuant to federal regulations would be considered. Appellant then subpoenaed Agent Oaks, and the trial judge declined to order him to testify.

Holt clearly applies in the instant case. The trial judge was not in error for refusing to make Agent Oaks testify where no timely motion was made requesting permission of the United States Attorney.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny PAGE v. STATE.
    4 Div. 334.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Cada M. Carter, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack Merrill Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of possession of heroin. The court fixed his punishment at five years imprisonment in the penitentiary and sentenced him accordingly. By Code of Alabama 1940 Recompiled, 1973 Cumulative Supplement, Tit. 22, § 258(29) (c), heroin is a controlled substance, the possession of which is proscribed and made punishable by imprisonment for not less than two and not more than fifteen years imprisonment, by Section 258(47) of said Title 22.

Appellant does not contend, and we see no basis for a contention, that the evidence was insufficient to support the verdict of the jury and the resultant judgment. We see no necessity, therefore, to narrate the evidence, and we limit our discussion of the testimony to portions thereof pertinent to the questions under consideration herein.

Three officers of the Alabama ABC Board and one officer of the Dothan Police Department, acting on an informer’s tip, spotted appellant in Dothan and identified themselves to appellant, who gave his consent to a search of his motor vehicle and his person. No contraband was found in his vehicle, but two “hits” of heroin were found in an inside pocket of his coat. At the time, he denied knowledge of the presence of the heroin in his coat. He did not testify as a witness in the case. However, several witnesses, including his wife, testified in his behalf to the effect that they had never known of appellant’s pushing or using prohibited drugs and that some time before he was arrested his coat or jacket in which the heroin was found had been borrowed by a mysterious person who went by the name of “Clarence.” In general, the testimony of most of them was to the effect that Clarence was a “pusher” and user of prohibited drugs, including “hard stuff.”

Defendant filed a motion for new trial which included grounds that since the conviction “new evidence has been discovered concerning one Clarence Parker, who is working in Dothan, Alabama, in an undercover capacity under the direction of agents for the Drug Information Administration . . .”

After several continuances of the motion, there was a hearing thereon in which there was testimony, including that of defendant’s appointed attorney on the trial of the case, to the effect that the two Clar-ences were the same, and that defendant and his attorney did not have knowledge of the fact that Clarence was an undercover agent until he “cross-examined him in a Federal trial.” He said he “cross-examined him in Johnny Page’s Federal trial” and that Clarence admitted in the federal court that he used the jacket for several days and had borrowed it from Johnny.

Appellant insisted (1) that the trial court should have granted the motion for a new trial on the ground of newly discovered evidence and (2) that the trial court should have granted defendant’s motion for a mistrial that was made on the ground that a state witness had made some statements to other witnesses sequestered in the witness room, who afterwards testified for the State.

The evidence on the motion for new trial was presented ore tenus. We would prefer less mystery as to Clarence Parker that exists even to the present time, which probably could have been clarified to some extent at least by testimony or affidavit from him on the hearing of the motion, but this is a matter beyond our control. To be weighed against whatever evidence there was that tended to support the contention of the defense, though not supported by any evidence from any testimony of defendant himself, that he had no knowledge of any heroin in an inside pocket of his jacket, is to some extent offset by evidence that Clarence had been in possession of “hard stuff,” even pushing it, while he was on an extraordinarily close friendly relationship with .appellant. This, together with all the other circumstances, prevents us from being able to say that the trial judge was clearly wrong in overruling defendant’s motion for a new trial. A motion for new trial on the ground of newly discovered evidence rests in the sound discretion of the trial court, and its action will not be disturbed on appeal except where abuse of discretion is clearly shown. Page v. State, 273 Ala. 5, 130 So.2d 227; Fuller v. State, 269 Ala. 312, 113 So.2d 153; Smith v. State, 40 Ala.App. 393, 114 So.2d 295; Lassiter v. State, 38 Ala.App. 287, 83 So.2d 365, cert. denied 263 Ala. 618, 83 So.2d 369.

Appellant argues that as the record shows a witness was talked to by two witnesses who had previously testified, the motion for a mistrial should have been granted. In appellant’s brief it is correctly stated that the record shows that the conversation was “concerning questions being asked on the witness stand.” The record also shows that upon being asked by State’s counsel whether there was any discussion of responses given to the questions he asked, the witness replied:

“No, sir, not when I was in there. I wasn’t in there but just a minute. I stepped out to the D.A.’s office during recess.”

The witnesses should strictly comply with the order of the court in sequestering them, putting them under the rule, but there is no showing of any injury to appellant in any way resulting from any infraction by the witnesses. The court was not in error in overruling defendant’s motion for a mistrial. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175, cert. denied 266 Ala. 694, 96 So.2d 178, cert. denied 355 U. S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414; Otinger v. State, 53 Ala.App. 287, 299 So.2d 333.

We find that the trial court was not in error in either of the particulars urged by appellant. In addition, our search of the record convinces us that no error prejudicial to defendant occurred in the trial or proceedings in the trial court, and that the judgment appealed from should be affirmed.

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

Affirmed.

CATES, P. J., and HARRIS and De-CARLO, JJ., concur.


text:
    Mavis Ballard CHAVERS v. STATE.
    3 Div. 408.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.

      P.' Richard Hartley, Greenville, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

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

The victim and her sister-in-law went to the home of their sister-in-law, the appellant, in Greenville around 4:00 or 4:30 P.M. October 27, 1974. The transcript of the testimony shows without dispute that the victim was killed by shot from a shell in a shotgun fired by defendant. The only eyewitnesses to the killing who testified were the visiting companion of the victim and the defendant. The only other persons at the house at the time were some children related to the victim’s companion, who were brought by her to defendant’s home.

The companion of the victim was a witness for the State. She testified that a quarrel between defendant and the victim ensued soon after she arrived at defendant’s house. Before the quarrel subsided, the victim went out of the house, through the front door, to get something out of her car, and as she returned to the front door of defendant’s house she was met by defendant who was holding a shotgun. According to the witness, defendant told deceased, “Don’t come back in this house. We are through with each other. We have said all we are going to say.”; that the victim then stepped up on a step of the porch and defendant said, “Don’t come back in here anymore.”; that deceased stepped up on the porch and the defendant then fired the shotgun through the closed screen door, knocking the deceased into the yard, where she soon died. The witness also said that there had been a quarrel the day before between the deceased and defendant, which took place in the presence of the witness.

In her testimony, defendant said that during the quarrel between her and deceased, deceased slapped her “up side of the head” scaring her, and that when the deceased attempted to come back into her house, after being warned not to do so, defendant shot her through the screen door.

The two witnesses mentioned testified as to other details, and there were additional witnesses who testified, but none of them had any knowledge of what took place other than what they learned after the homi--cide.

Defendant had pleaded not guilty and not guilty by reason of insanity. She relied upon her claim of self defense to support her plea of not guilty.

The sufficiency of the evidence to support the verdict is not questioned on appeal, and our review of the testimony convinces us that a jury question was presented as to defendant's guilt of murder in the first degree.

Appellant bases her insistence upon a reversal upon three particular rulings of the trial court: (1) denial of defendant’s motion to exclude a statement of a State’s witness as to the pregnancy of the victim, (2) the admission in evidence over the objection of defendant of photographs of the front door of defendant’s residence and (3) overruling defendant’s objection to the use by State’s attorney, while he was cross-examining defendant, of a purported statement by her as to the killing.

As to the reference to the pregnancy of the victim, the record shows that while Kathy Sexton, the State’s only eyewitness to the killing, was being cross-examined as to the size of the victim the following occurred:

“Q. So, she was about my height?
“A. Yes.
“Q. And, weighed more than I do ?
“Yes.
“She was bigger than I am, not because she was six months pregnant, though.
“BY MR. HARTLEY: I move that that statement be excluded, and I ask that the Judge caution the Jury, and instruct them as to the content of that statement.
“BY THE COURT: Motion denied.
By Mr. Hartley:
“Q. How big was she, normally ?
“BY MR. ANDREWS: Object to the word normally, Your Honor.
“BY THE COURT: Overruled.
“By Mr. Hartley:
“Q. Alright, go ahead ?
“A. I couldn’t tell you.
“Q. Normally, is she bigger than I am ?
“A. I’d say a little.”

Appellant argues that “knowledge that the deceased was pregnant when struck in the abdomen with a shotgun blast had a significant effect on the jurors. This information almost certainly tended to inflame the jurors, to appeal to their emotions instead of reason and generally to prejudice the defendant. Most certainly the information was of no probative value and did not prove or disprove issues in controversy.”

We doubt not that there is basis for the contention that such evidence had a tendency to arouse the emotions of jurors, but this alone does not make the testimony in-, admissible. The contention that the evidence was “of no probative value and did not prove or disprove issues in controversy” is not supported by any authorities cited. On the contrary, it has been uniformly held that in a homicide case in which self-defense is relied upon by defendant, the physical condition of the victim is admissible in evidence. Nixon v. State, 261 Ala. 74, 72 So.2d 846, Smith v. State, 209 Ala. 666, 96 So. 779.

The photographs to which objection was made and overruled depicted a clear view of the front door of defendant’s house, almost to the full length of the door, including the sides of the doorframe and a short distance beyond. They show the closed screen door with the hole in the screen caused by the blast from the shotgun and the closed inner wooden front door of defendant’s house. The pictures were taken the day after the homicide.

Appellant presents an interesting question by his argument that the “photographs undermine the defendant’s entire effort to show that it was quite possible to see into the house where defendant stood and almost certainly prejudiced defendant’s case of self-defense in the minds of the jury.” This contention was not as clearly presented to the trial court in defendant’s objection to the photographs, although defendant did insist that the photographs did not depict the scene as it was at the time of the homicide.

As we understand appellant’s position, a photograph of the door and the doorway of her house would not have been admissible unless taken at the same time of day, on the same kind of day, while the wooden door was open, so that it could be determined therefrom what view, if any, and if any to what extent, the victim would have had of defendant as she was approaching or standing inside the door with her shotgun in her hands. We doubt that such perfection in photography can be usually expected or required. We do not think the jury was misled by the photographs. If anything, they tend, we think, to lead them toward the defendant as to her contention and not toward the State. A clear view of the closed door is shown. There is no contention that the photographs were introduced for the purpose of showing the view of something beyond the screen in the house. They were pertinent and admissible evidence in the State’s case in chief in showing where defendant shot while the screen door was closed. The distance of the hole from the floor had a bearing upon the position of the gun when fired by defendant. The trial court was not in error in admitting the photographs, and we do not believe that defendant was prejudiced in any way by the fact that the wooden door was closed when the photographs were taken.

During a part of the cross-examination of defendant, counsel for the State held in his hand a document purporting to be a transcript of statements made by defendant upon her arrest after the homicide. Although ample proof was made of all requirements for the admission of a confession, the court sustained defendant’s objection to the offer in evidence of the transcript on the ground that no evidence had been presented showing that it was an accurate reproduction of the tape. Appellant’s insistence has been resolved against her under circumstances almost identical with those considered. In Parker v. State, 266 Ala. 63, 94 So.2d 209, the solicitor used what appeared to be a written transcription of the defendant’s oral statement for the purpose of cross-examining defendant. Appellant’s argument therein “that it was reversible error for the court to permit the solicitor to cross-examine the defendant” from the paper was rejected. In following Parker, it was held in Caldwell v. State, 282 Ala. 713, 213 So.2d 919:

“In Parker v. State, 266 Ala. 63, 94 So.2d 209, a situation almost identical to that presented in the present case was considered. This court wrote:
“ ‘The solicitor merely used the paper to refresh his own memory when propounding questions to the defendant on cross-examination. In other words, the character of the paper was nothing more than private notes of the solicitor.’
“No error resulted in the procedure so complained of by the appellant in this instance.”

It is not to be said, we think,' that there cannot be circumstances constituting an abuse of the privilege of counsel to use such a statement while cross-examining a witness, such as where the purpose or effect is not to aid counsel in the performance of his duties but to lead the jury to a belief in the existence of facts that should come to them by admissible evidence only. In overruling defendant’s objection, the trial court obviously relied upon sudi cases as Parker, supra and Caldwell, supra, which it should have done. We do not have before us a pictorial view of the action of State’s counsel. The record does not reflect the extent of the use by State’s counsel of the transcription. All of this was in open view of the trial judge and properly controllable by him within the exercise of his discretion. We can see no abuse thereof, and we think it should be stated that there is no contention that there is any such abuse.

In addition to our consideration of the alleged errors urged by appellant, we have examined the record for any error prejudicial to defendant and have found none and conclude that the judgment of the trial court should be affirmed.

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

Affirmed.

CATES, P. J., and TYSON, HARRIS and DeCARLO, JJ., concur.


text:
    Edwin William SMITH v. STATE.
    3 Div. 375.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.

      Stokes & Jernigan, Brewton, for appellant.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, in forma pauperis here and below, was convicted of rape pursuant to an indictment therefor and sen- ' tenced by the jury to thirty years imprisonment. The court entered judgment accordingly.

It is unnecessary to state the details of this unfortunate offense, but it is sufficient to say that evidence was adduced which was relevant to the issues of fact created by defendant’s plea of not guilty and not guilty by reason of insanity.

The record shows that the trial judge, pursuant to a motion by defendant, ordered defendant to be sent to a state mental institution for examination and later released. The evidence indicates this procedure, but so far as we observe, the order of confinement does not appear in the record.

I

Appellant complains that the trial court erred in permitting the State, on cross examination, to elicit from the defendant’s father, Edwin Smith, and his sister, Elsie McCullough, that appellant-defendant had been sent to Searcy Hospital, thereby implying that appellant had been placed in a mental institution and had been released and was mentally competent.

We noted that the defendant did not object to these questions propounded by the State to the witnesses and by that means obtain a ruling of the court as to their relevancy and competency. In the absence of such objections and a ruling, there is nothing for this Court to review. Shepard v. State, 20 Ala.App. 627, 104 So. 674; Handley v. State, 214 Ala. 172, 106 So. 692.

II

The next assertion is that the trial court erred in refusing, on motion of defendant, to disqualify for cause some of the jurors who were acquainted with the rape victim’s father and some who had worked under and for said father. There was no showing that such acquaintances or contacts were probably prejudicial to defendant. Such probable prejudice must be shown. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391.

III

A third and final contention of error is made because the trial court permitted a witness, over defendant’s objection, to state defendant had told him in the jail, “: . . that it didn’t make any difference about him being charged, that they couldn’t convict him, that they (sic) had been charged like this before in the State of Florida, and that he had played crazy and beat the rap.”

The objection was predicated on the failure of the State to show when the statement was made. The witness testified that he did not recall when it was, but that he only had one conversation with defendant in the Escambia County jail. We think the answer as to time was sufficient and that the court did not err in overruling defendant’s objection. Nichols v. State, 276 Ala. 209, 160 So.2d 619. We quote from Nichols:

“The issue of insanity gives much latitude, both to the defendant and the State, for the introduction of evidence of defendant’s acts, declarations and conduct, prior and subsequent to the alleged crime, subject to the limitation that the acts, declarations and conduct inquired about must have a tendency to shed light on the accused’s state of mind when the act for which he is being tried was committed. Hall v. State, 248 Ala. 33, 26 So.2d 566; Barbour v. State, 262 Ala. 297, 78 So.2d 328, and cases there cited; Annotation 8 A.L.R. 1219.”

The judgment is affirmed.

The foregoing -opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: SUNDBERG, Justice. ENGLAND, Justice

text:
    Richard S. CLARKE, Chairman, et al., Appellants, v. Peter J. MORGAN, Jr., et al., Appellees.
    No. 46504.
    Supreme Court of Florida.
    Dec. 10, 1975.
    As Modified on Denial of Rehearing March 4, 1976.
    Morison Buck, Asst. City Atty., for appellants.
    Theodore C. Taub, Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellees.
   SUNDBERG, Justice.

On direct appeal we review a summary judgment of the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsbor-ough County, which held Chapter 69-1651, Laws of Florida, Special Acts of 1969, to be unconstitutional. Our jurisdiction vests by virtue of Florida Constitution, Article V, Section 3(b) (1), F.S.A.

This controversy over the use variance power of the City of Tampa Board of Adjustment arose when the Board granted one W. G. Hobbs the right to alter an existing residencej to a tearoom restaurant with a seating capacity of forty-eight and with an area for off-street parking sufficient to accommodate fourteen vehicles. The property at issue was zoned R-3, the basic multi-family residential dwelling classification, and, therefore, the use intended by Hobbs was unquestionably nonconforming. The City’s building inspector denied the requested permit, and appeal was taken to the Board. The Board granted the use variance despite the unanimous contrary-recommendation of the Hillsborough County Planning Commission, which must review all such applications before the Board of Adjustment can act. Chapter 69-1651, Laws of Florida, Special Acts of 1969, supra.

Appellees, owners of residences adjacent to the subject property, commenced this litigation. They moved the lower court for entry of summary judgment on the ground that the Board did not have legal authority to grant use variances. The circuit court declared the granting of the use variance on the Hobbs property to be null and void, finding Chapter 69-1651 to be constitutionally invalid insofar as it purports to grant the Board authority to issue a use variance permitting property to be used in a manner prohibited by the zoning ordinances of the City of Tampa.

We have before us, therefore, the constitutionality, vel non, of Chapter 69-1651, Laws of Florida, Special Acts of 1969, which provides in pertinent part as follows:

“Section 1. In addition to the powers granted to the board of adjustment of the City of Tampa by section 176.14, Florida Statutes, any such board appointed for the City of Tampa is authorized upon appeal in specific cases to grant such variance or use variance from the terms of the zoning ordinances of said city permitting changes in the use of property as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions of such ordinances will result in unnecessary hardship, and so that substantial justice may be done; provided however, that no use variance shall be granted for new construction on unimproved property; and provided that no such changes in the use of property shall become effective unless it shall have been first submitted to the Hills-borough County planning commission for review and recommendation, and the report of said commission having been received, or a period of thirty (30) days from and after the date of said submission having expired. If the planning commission shall fail to make its recommendation within thirty (30) days after its receipt of such proposed change or modification, it shall be deemed to have approved the proposed amendment or change .”

This Special Act affecting Tampa, Florida, can be measured against the Standard State Zoning Enabling Act which provides :

“The board of adjustment shall have the following powers: 3. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” Standard State Zoning Enabling Act, Section 7 (1926).

The learned trial judge in an extensive and well-written summary final judgment concluded that Chapter 69-1651, Laws of Florida, Special Acts of 1969, constitutes a prohibited delegation of legislative authority to an administrative agency in contravention of Article II, Section 3, Florida Constitution. The trial court cites extensively from the Florida cases which have dealt with this thorny problem and have reached differing results depending on the facts of the particular case. Our review of the cases on the subject reflects that the courts of- Florida have reached differing results depending, essentially, on whether the court concluded the action taken by the board or commission constituted the exercise of legislative authority, in which event the administrative agency’s action was struck down, or whether the court concluded that the action of the board or commission constituted the exercise of an administrative function, in which event the action of the board or commission was sustained. Cases representative of the first category are Josephson v. Autrey, 96 So.2d 784 (Fla.1957), wherein the board was held to be without authority to allow construction of a filling station in an area zoned restrictively for motels and tourist accommodations; Mayflower Property, Inc. v. City of Fort Lauderdale, 137 So.2d 849 (2d DCA Fla.1962), wherein the board was not permitted to allow petitioner to build hotels, motels, or apartments on property zoned Residential because this indulgence would be tantamount to placing the property affected in an entirely different zone; Clarke v. DiDio, 226 So.2d 23 (2d DCA Fla.1969), wherein the board was held powerless to grant a permit allowing construction of two apartment buildings in an area zoned for single family dwellings, the case arising prior to the 1969 legislative action specifically authorizing the board to issue “use variances” where appropriate; and Kaeslin v. Adams, 97 So.2d 461 (Fla.1957), wherein the principle of equitable estoppel operated to preclude revocation of a permit issued to allow construction of a trailer park in a prohibited area, after the owner had spent $6,900 on the project in reliance on the earlier decision. The last cited case must be construed to fall within the stated category by virtue of the enunciation by the court on rehearing that it should not be deemed to be in conflict with Josephson v. Autrey in that the majority of the court concurred in its decision on the basis of equitable estoppel, thereby effectively neutralizing the concurring opinion of Associate Justice Taylor which would otherwise have placed the case in the second category announced above.

The second category of cases, i. e., those which conclude that the grant of a use variance under the circumstances of the particular case is essentially an administrative function, is represented by Tau Alpha Holding Corporation v. Board of Adjustments of City of Gainesville, 126 Fla. 858, 171 So. 819 (1937), wherein an ordinance giving the board power to vary the effect of a zoning regulation was held not to be an unconstitutional delegation of legislative authority, the court upholding a temporary permit to a restaurant owner to replace his frame building with a brick building despite its location in an area zoned Residential; State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114 (1931). wherein the court quashed a writ of mandamus ordering the issuance of a permit for the construction of a commercial building in a residential zone and held constitutional the special act granting to an administrative body or board authority to grant use variances as against the contention that said act unconstitutionally delegated legislative power; State ex rel. Landis v. Valz, 117 Fla. 311, 157 So. 651 (1934), wherein a zoning ordinance allowing the city commissioners to permit construction of a racetrack in a residentially-zoned area was upheld; and Wood v. Twin Lakes Mobile Homes Village, Inc., 123 So.2d 738 (2d DCA Fla.1960), wherein a suit by a property owner attacking a zoning classification as unreasonable was dismissed for failure to exhaust “administrative remedies” which included application to zoning authorities for variance.

The seeming divergence in result reached by the Florida cases on the question here presented is also reflected in the cases from other jurisdictions. A collection and summary of those divergent views is aptly set forth in the case of Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). See also the annotation appearing in 58 A.L.R.2d 1083.

Although each of the foregoing representative Florida cases has directly or indirectly considered the question of delegation of legislative authority to an administrative body when that body engages in the grant or denial of a use variance, the question of the constitutionality vel non of the enabling act under which the agency performed has not been determined in this state, except in Tau Alpha Holding Corporation v. Board of Adjustments of City of Gainesville, supra. In each instance the action of the board with respect to the particular facts of the case was considered. For example, in the extensive and well-considered opinion in Josephson v. Autrey, supra, this court did not hold the enabling act unconstitutional, but decided only that the appeals board exceeded its authority in that its action was tantamount to amending the zoning ordinance. As stated by Mr. Justice Thornal at page 788 of the opinion:

“. . . To endow such a board with the authority to amend the zoning ordinance in particular instances by authorizing a use of property prohibited by the ordinance itself would be to convey to the appeals board the authority to enact legislation, nullify the decision of the municipal legislative body, and in effect destroy the beneficient results to be obtained by comprehensive zoning. When circumscribed by reasonable bounds the appeals board serves a valid and useful purpose. If granted unrestricted power to amend the zoning ordinance by changing completely the authorized uses of the particular land, the effect would be to transfer the legislative powers of the municipality to this non-legislative administrative agency.” (Emphasis supplied)

If such language is literally construed it equals a broad disapproval of all use variances. However, absent some provision of a statute or ordinance specifically withholding the power to grant use variances, no court has disapproved all such variances. Anderson, American Law of Zoning, § 14.68, page 59. If the same language is construed in the context of the court’s remarks about power “circumscribed by reasonable bounds” for its exercise and about a grant of “unrestricted poWer”, the disapproval of use variances can be reduced only to those variances which are unsupported by such reasonable grounds, or where the enabling act places inadequate limitations upon the discretion of the-board.

From a review of the foregoing authorities both within and outside the state of Florida we conclude that the act under review should not be construed to be unconstitutional vel non if appropriate and meaningful standards are included therein to guide an administrative body in acting upon an application for a use variance. We turn, then, to an examination of the express language of the act to ascertain whether the Legislature has imposed sufficient limitations upon the discretion to be exercised by the board of adjustment so as to obviate the objection that the proper exercise of its function violates the constitutional prohibition against, delegation of legislative authority. We can be guided in this inquiry by reference to the analysis made by Mr. Justice Terrell in State ex rel. Taylor v. City of Jacksonville, supra, wherein his task was to determine whether it was a prohibited delegation of legislative power to authorize a city commission through its inspector of buildings to enforce and administer the zoning ordinances of the City of Jacksonville there under consideration. Commencing at page 115 of 133 So. Mr. Justice Terrell opined:

“ * * * Section 15 provides that all zoning regulations be enforced and administered by the inspector of buildings under rules and regulations of the city commission, and that said city commission shall hear and decide appeals and review any order, decision, requirement, or determination made by the inspector of buildings in the enforcement of zoning regulations.
, “We do nof think this pro.vision.(am,fi-nable to the assault made on it. In taking such a position, we do not renounce the doctrine of the nondelegability of powers which has become so firmly embedded in our tripartite scheme of government, but on account of the inability of the three branches to respond to the demands of a changing social order, the Legislatures have created and the courts, both state and federal, have approved what the law-writers choose to call the fourth power in government, the administrative, which for practical purposes co-ordinates the other three departments and makes for a more flexible and efficient administration. The Supreme Court of the United States early held that no fundamental or whole power could be delegated, but that the power to supply the details and apply the policy as expressed by the Legislature to changing factual conditions could be. ¡(Citations omitted)
“It cannot be said that administrative boards such as we are concerned with here do not perform certain judicial or quasi judicial functions, but, from an analysis of the foregoing and other cases, the courts in holding them good have proceeded on the theory that governmental administration is a practical matter, and that the incidental exercise of the functions of one department by another is not an impairment of the doctrine of the nondelegation of powers.”

The standards and guidelines set forth by the Legislature in Chapter 69-1651, Laws of Florida, Special Acts of 1969, which limit the board of adjustment in acting upon appeals in specific cases to grant variances, may be paraphrased as follows:

1. Such changes in the use of property shall not be contrary to the public interest ;
2. Special conditions must exist justifying the use variance;
3. A literal enforcement of the provisions of the zoning ordinance will result in unnecessary hardship;
4. The variance in use must be required so that substantial justice may be done;
5. No use variance shall be granted for new construction on unimproved property; and
6. No such changes in the use of property shall become effective unless it shall have been first submitted to the Hillsborough County Planning Commission for review, and recommendation.

It appears clear that the foregoing standards would in no instance authorize the Board of Adjustment to engage in amendments of the basic zoning ordinance, which is a legislative function condemned by Mr. Justice Thornal in Josephson v. Autrey, supra. In the first place, under the proscriptions contained in the Special Act, the applicant must make a showing of special conditions and that a literal enforcement of the provisions of the ordinances will result in xmnecessary hardship. Explicit, then, is the requirement that the applicant show not only hardship but unnecessary hardship by literal enforcement; that such unnecessary hardship is brought about by special conditions; and, of course, the hardship cannot be “self-created” as condemned by Josephson v. Autrey. Additionally, and of equal significance, such change in use cannot be “contrary to the public interest” and must serve “substantial justice”. The quoted terms make it clear that in considering an application the board of adjustment must take into cognizance the scheme of comprehensive zoning reflected in the ordinances and may not upset the balance between the public interest served by the comprehensive plan and the individual interest of an applicant who makes the requisite showing of “unnecessary hardship.” The Act goes even further by prohibiting use variances for new construction on unimproved property and provides the check of a review by and recommendation from the Hillsborough County Planning Commission.

We believe that the standards and guidelines expressed in the enabling act provide an adequate framework for review by the courts to determine whether the administrative agency has exceeded the authority granted it and is acting in a legislative capacity prohibited by the Constitution as opposed to an administrative capacity which is permissible. Our conclusion is buttressed by the able opinion of Judge Wigginton in the case of Safer v. City of Jacksonville, 237 So.2d 8 (1st DCA Fla.1970), wherein that court had under consideration the provisions of the Housing Code of the City of Jacksonville which permit the Board of Adjustment to vary the application of any provision of the Code to any particular case when, in its opinion, the enforcement thereof would do manifest injustice, and would be contrary to the spirit and purpose of the Code or public interest. At page 12 of the opinion it is stated:

“It is appellants’ position that the foregoing provisions of the Code constitute an unlawful delegation of legislative power to an administrative board because they contain no standard by which ‘undue hardship’ or ‘manifest injustice’ may be measured in order to determine whether an owner or tenant is entitled to the relief provided for in the Code. Appellants argue that because of this deficiency the Housing Board of Adjustments and Appeals may arbitrarily and capriciously grant or withhold relief against literal application of the Housing Code according to whim or caprice under the guise of exercising the discretionary power vested in it by the Code. We are unable to agree that such is the legal effect of the provisions here assaulted, and are of the view the terms ‘undue hardship’ and ‘manifest injustice’ are susceptible of legal interpretation based upon the facts of a given case.
“The above-quoted sections of the Code are analogous to the municipal zoning statutes of our state which vest in the zoning board of adjustment the power to authorize variances from the terms of a zoning ordinance where a literal enforcement of its provisions will result in unnecessary hardship or manifest injustice.
“Zoning ordinances, like housing codes, are authorized and enforceable under the police power of the state to preserve, protect, and promote the health, safety, welfare, and morals of our citizens. The validity of a city zoning ordinance identical in all material respects to the zoning statute above mentioned was challenged on constitutional grounds in the case of Tail Alpha Holding Corporation v. Board of Adjustments, etc. It was contended that the ordinance was void because it amounted to an unconstitutional delegation of legislative authority. Such contention was rejected by the Supreme Court which held the ordinance to be valid under the majority view prevailing in our country. On the authority of the Tau Alpha Holding Corporation decision, the contention of appellants in this regard must be rejected.” (Footnotes omitted)

Accordingly, we find Chapter 69-1651, Laws of Florida, Special Acts of 1969, not to be violative of Article II, Section 3, Florida Constitution.

The foregoing holding perhaps does not provide a precise mechanical formula, and therefore it is apparent that occasions will arise when the courts will be called upon to review the actions of boards of adjustment or appeal to determine whether they have exceeded the standards and guidelines imposed by the enabling act. However, we do not deem this an encroachment by the judiciary on the legislative function of zoning, a concern expressed by the trial court in its summary final judgment. The function of the judiciary simply will be to determine — as it does in the case of other administrative boards, commissions and agencies — whether the authority granted by the Legislature has been exceeded.

We do not reach nor is this decision intended to render any opinion with respect to the merits of the action taken by the Board of Adjustment in the case at bar.

The summary final judgment herein is reversed and the cause remanded for further proceedings not inconsistent herewith.

ROBERTS, BOYD and OVERTON, JJ., and MOORE, Circuit Judge, concur.

ENGLAND, J., dissents with an opinion, with which ADKINS, C. J., concurs.

ENGLAND, Justice

(dissenting).

I respectfully dissent. The Board acquired its authority to grant use variances, if at all, in 1969. A pre-existing delegation of variance authority to this Board had been construed to deny that very grant of power, despite express language in the law “permitting changes in the use of property.” In 1969 the Legislature amended the Board’s variance statute to read (adding only the underscored language) :

“[the Board is authorized] to grant such variance or use variance from the terms of the zoning ordinances of said city permitting changes in the use of property as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions of such ordinances will result in unnecessary hardship, and so that substantial justice may be done; provided however, that no use variance shall be granted for new construction on unimproved property . . ..”

The change was intended, apparently, to overcome the prior denial of use variance authority,

In my view, Josephson v. Autrey teaches that no amendment to the law can give the Board the authority it seeks. The Legislature simply lacks power to delegate to this administrative board a legislative power which had already been properly and exclusively lodged in a municipality. To hold otherwise would allow unlimited, random rezoning.

I would affirm the trial court’s declaration that the amendments effected by Chapter 69-1651, Laws of Florida, are unconstitutional. This invalidation of that amendatory statute would leave to the Board only those variance powers set out in Chapter 63-1983, Laws of Florida, the act which the 1969 Legislature endeavored to amend.

ADKINS, C. J., concurs.

ON REHEARING

On consideration of the Petition for Rehearing filed by appellees, the Court has corrected its opinion filed December 10, 1975 and the Petition for Rehearing is addressed to the corrected opinion and is hereby denied.

OVERTON, C. J., and ROBERTS, BOYD and SUNDBERG, JJ., and MOORE, Circuit Judge, concur.

ENGLAND, J., would strike the Petition for Rehearing or disregard it, on the authority of Texas Co. v. Davidson, 76 Fla. 475, 80 So. 558 (1919).

ADKINS, J., would grant the petition for rehearing.

       Although not necessary to our decision herein', it should be noted that Section 176.14, Florida Statutes, was repealed by Chapter 73-129, Laws of Florida.

      . Ch. 69-1651, Laws of Florida.

      . Clarke v. DiDio, 226 So.2d 23 (2d DCA Fla. 1969), affirming an opinion of the Hills-borough County Circuit Court.

      . The trial judge found in his Summary Final Judgment that the amendment was enacted at the request of the Board after the decision • in Clarice, supra n. 2.

      . 96 So.2d 784 (Fla.1957).

      . Despite the majority’s assertion that “rezoning” can be controlled by judicial review of Board action, and that “the function of the judiciary simply will be to determine . whether the authority granted by the Legislature has been exceeded,” I am not persuaded that it is wise to place the courts in these proceedings even to that extent. The general problems inherent in judicial review of administrative agencies are likely to be exaggerated in these types of eases. For example, could we ascertain from a record on appeal whether the Board had exceeded its authority if this case were to return here with findings to the effect that Mr. Hobbs should be granted a permit to build his tearoom because (i) the tearoom is not contrary to the public interest taking into account the comprehensive zoning scheme reflected in the ordinance, (ii) his special conditions justify the variance, (iii) literal enforcement of the R-3 classification will cause him an unnecessary hardship, and (iv) substantial justice will be served by granting the variance?


author: ENGLAND, Justice.

text:
    In re Adoption By Charles W. COX, Sr., joined by Patricia A. Cox, his wife, Petitioners.
    No. 46325.
    Supreme Court of Florida.
    Feb. 11, 1976.

      Albert M. Salem, Jr., of Salem & Salem, Tampa, for petitioners.
    Peirce Wood, Melbourne, for respondent.
   ENGLAND, Justice.

Our jurisdiction under Article V, § 3(b)(3) of the Florida Constitution is invoked to review a direct conflict between the decision below, reported at Fla.App., 299 So.2d 104, and that rendered in Ptigh v. Barwick. Our review of the case also discloses conflict with the decision in In Re Stonehouse’s Adoption Certiorari is granted.

This proceeding arose when Charles and Patricia Cox endeavored to adopt the natural daughter of Adella Goode. The child had been borne out of wedlock and placed with Ms. Goode’s father, who in turn employed the Coxes to care for the baby. During the first eleven months the child was in their care, the Coxes attempted to adopt her on two occasions but were denied permission. On their third attempt the Coxes obtained Ms. Goode’s consent to adopt on a form which was notarized and witnessed by two persons, one of whom was Ms. Goode’s new husband.

A formal adoption proceeding was conducted in Brevard County, in which Ms. Goode appeared and participated. She there challenged her earlier written consent. Conflicting evidence was presented as to her reasons for executing the consent, but there was no allegation or proof that her consent was obtained by fraud, duress, undue influence, or other than voluntarily. At the conclusion of the adoption proceeding, the trial judge held that the consent form was defective for lack of the acknowledgment required for purposes of service of process in adoption proceedings. He ruled, however, that the defect was immaterial in light of Ms. Goode’s full participation in the contested adoption proceeding. He then found the Coxes fit to serve as parents, concluded that the Cox home would provide the best environment for the child, and awarded them permanent custody of the child.

The district court reversed the adoption award upon the authority of Roy v. Holmes and Torres v. Van Eopoel, omitting any discussion of Ms. Goode’s consent. Roy and Torres hold that an order of adoption for strangers is improper where the natural parents are shown to be fit and desirous of the child. Neither of those cases involved the natural parents’ consent. Since the question of the natural parents’ fitness to care for a child is not reached unless there is no consent or a purported consent is invalid, the district court necessarily determined Ms. Goode’s consent was invalid.

The question brought to us for review is whether Ms. Goode’s consent met the requirements of Florida law. The trial court found that it did, and we concur in that result. An acknowledgment is not essential to a valid consent voluntarily given in an adoption proceeding, and in the absence of fraud or duress a consent freely and voluntarily given is irrevocable. As the trial court ruled, the service of process statute for adoption matters has no application to this proceeding in light of Ms. Goode’s full participation in the trial.

It is frequently said that contested adoptions are the most difficult of all cases for trial judges. Where a natural mother seeks the return of her child after she has bettered her position to care for the child and has reconsidered her original motives for allowing the adoption, the burden placed on a trial judge is even more weighty. We recognize the difficulties inherent in making a decision in matters of this nature, and we are most reluctant to substitute our judgment (or let the district courts substitute their judgments) in the resolution of these emotionally-charged matters. Where the trial judge has guided his decision by reference to the best interest of the child and fully considered all of the evidence before him, there is very little room for the exercise of appellate discretion.

In this case, the record reveals that the trial judge found the child’s best interests would be served by allowing the child to remain with persons she had known her entire (albeit short) life. In such circumstances, we will not say that the natural mother’s recantation of consent, or her fitness and desires, must prevail over the trial court’s judgment to the contrary.

The opinion of the district court is quashed with directions to reinstate the judgment of the trial court.

OVERTON, SUNDBERG and HATCHETT, JJ., concur.

BOYD, Acting C. J., dissents.

      . 56 So.2d 124 (Fla.1952).

      . 155 Fla. 223, 19 So.2d 788 (1944).

      . Ms. Goode’s new husband joined in her resistance to the Coxes’ subsequent adoption proceeding, indicating a willingness to care for and support the child.

      . Section 63.081, Fla.Stat. (1971) : “Service of process shall be unnecessary when a written consent is filed with the petition, or thereafter executed in the presence of two witnesses and acknowledged before an officer authorized by law to take acknowledgments . ” This statute has been repealed and replaced by Section 63.082, Fla.Stat. (1973).

      . 111 So.2d 468 (Fla.App.2d 1959).

      . 98 So.2d 735 (Fla.1957).

      . Bee Pugh v. Barwick, 56 So.2d 124 (Fla. 1952).

      . In Re Stonehouse’s Adoption, 155 Fla. 223, 19 So.2d 788 (1944).

      . Grabovetz v. Machs, 262 So.2d 703 (Pla.App.3d), cert. denied 267 So.2d 329 (Fla.1972).


text:
    Clyde L. HEATH, Clerk of Circuit Court of Broward County, Florida, Petitioner, v. Wada Sue BECKTELL, Respondent.
    No. 47240.
    Supreme Court of Florida.
    Oct. 21, 1975.
    For Opinion on Rehearing Jan. 14, 1976.
    See 327 So.2d 3.
   The petition for rehearing is granted and the Clerk is directed to issue the Writ and set the cause down for oral argument.

The Petition herein for a Writ of Cer-tiorari to the District Court of Appeal, Fourth District of Florida, is granted and the cause is hereby set down for oral argument at 9:30.o’clock a. m. Tuesday, January 6, 1976. A maximum of twenty (20) minutes to the side is allowed but counsel is expected to use only so much of that time as is necessary.

Either side may waive oral argument. If both sides waive oral argument the case will be promptly assigned for decision and the cause expedited.

The Court has tentatively accepted jurisdiction of this case; however, the parties should be prepared to argue the jurisdictional issue should the question be raised by the Court. \

The time for filing briefs on the merits is set forth in Rule 4.5c(6), F.A.R. Please file an original and two copies of all briefs. Unless briefs are timely filed, the privilege of oral argument will be forfeited.

No continuances will be granted except upon a showing of extreme hardship. 308 So.2d 647.

ADKINS, C. J., and. ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ„ concur.


author: PER CURIAM.

text:
    Audrey Faye McCLAMROCK, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1425.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied March 3, 1976.
    Louis Stoskopf, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Audrey McClamrock, was indicted for the first degree murder of her former husband, Gordon Stevens. A jury found her guilty of second degree murder, and she was sentenced to life imprisonment. She seeks reversal of her conviction and sentence on the grounds that the guilty verdict is not supported by the evidence, and the trial court erred in not granting her motion for acquittal. The facts giving rise to the indictment are as follows :

On July 14, 1973, the date of the killing, appellant received a phone call from her ex-husband, the deceased, who informed her that he was not going to allow her to exercise her visitation rights and see their minor daughter Chenina on the following day. She then woke up her present husband, Edward McClamrock, and informed him of the conversation she had with Gordon. After Edward unsuccessfully attempted to talk to Gordon on the telephone, he and the appellant got into their car and drove to Gordon’s residence. Upon arriving, Edward told the appellant to go get Gordon. Appellant went to the door and requested Gordon to come outside because Edward wished to talk with him. As Gordon came outside, Edward got out of the car and shot and killed him. Then, Edward and the appellant got into their car and drove away.

The theory upon which the prosecution grounded its case against the appellant was that she was an aider and abettor under § 776.011, Fla.Stat., F.S.A.

The established rule is that before an accused may be convicted as an aider and abettor, the intent to participate in the crime must be proved. Douglas v. State, Fla.App.1968, 214 So.2d 653.

Appellant argues that there was insufficient evidence to prove her intent inasmuch as she testified that on the day of the killing she did not know her husband had a gun or that he intended to kill her ex-husband. However, a review of the record on appeal reflects that there was competent substantial evidence to the contrary with respect to this issue of intent. One of the arresting officers testified that after reading the Miranda warnings to the appellant, she confessed to him that she knew her husband was going to kill the deceased. Appellant’s older daughter Cynthia Peel testified that on numerous occasions appellant had threatened the deceased.

The jury having resolved the conflicting evidence against the appellant, and the circumstances proving appellant’s intent in the case at bar being sufficient to exclude any reasonable doubt of the appellant’s guilt engendered by her explanation of her presence at the time and place of the commission of the crime, we will not disturb the judgment of conviction on appeal. See Wetherington v. State, Fla.App.1972, 263 So.2d 294; Williams v. State, Fla.App. 1975, 307 So.2d 877 and Douglas v. State, supra at 655.

Judgment and sentence affirmed.


author: PEARSON, Judge.

text:
    Sol MEGDELL, Appellant, v. Bernard WIEDER and Hilda Wieder, etc., Appellees.
    No. 75-120.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied March 3, 1976.
    Horton, Perse & Ginsberg, Miami, Hy-lan H. Kout, Miami Beach, for appellant.
    Sibley, Giblin, Levenson & Ward, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The plaintiff, who is a real estate broker, appeals from a final summary judgment in an action for a brokerage commission. He contends that there is a genuine issue of material fact as to whether he was á procuring cause in the sale of the Martinique Hotel on Miami Beach. We hold that there is a genuine issue of material fact and reverse the summary judgment with directions to proceed with the cause.

In reviewing a summary judgment, an appellate court is required- to view the evidence which appears from the depositions, answers to interrogatories and admissions in the light most favorable to the position of the party moved against. See Williams v. Florida Realty and Management Co., Fla.App.1973, 272 So.2d 176. Viewed in this light, the facts before the trial judge were that the defendant-owner gave the plaintiff-broker an oral, exclusive agency to procure a purchaser for the Martinique Hotel. Plaintiff advertised the property and furnished information as to its availability and price. Thereafter, a second broker representing a prospective purchaser contacted the plaintiff and the two agreed to become cooperating brokers, agreeing to split the commission. The second broker introduced the purchaser to the 'seller and the deal was ultimately closed without the assistance of either broker. The second broker was paid a $15,000 commission on a $1,800,000 sale.

The appellee contends that there is no genuine issue of material fact because the evidence clearly shows that under the exclusive agency to procure a purchaser the seller was entitled to sell the property himself without paying a commission. See Nicholas v. Bursley, Fla.App.1960, 119 So.2d 722; and Wilkins v. W. B. Tilton Real Estate and Insurance, Inc., Fla.App.1971, 257 So.2d 573. It is further urged that the facts clearly show that the sale was consummated by the seller and that the only broker involved was the second broker who represented the purchaser. It is urged that under these facts, the plaintiff is not a procuring cause of the sale and, because he did not procure a purchaser, he could not be entitled to a commission.

The inferences to be drawn from evidence is for the finder of fact and not for the trial court on a motion for summary judgment. It has often been held that the burden of the movant on a motion for summary judgment is not simply to show that the facts support his own theory of the case, but rather to demonstrate that, under the facts appearing without controversy, the party moved against cannot prevail. See Campbell v. Anheuser-Busch, Inc., Fla.App.1972, 265 So.2d 557. There is nothing in the record in this case to show conclusively that the second broker was not a cooperating broker and that he did not undertake the work of procuring a purchaser as a cooperating broker acting under and with the plaintiff broker who held the listing on the property. His deposition in the record reveals that he did so act. Until it conclusively appears that the deposition is false, a summary judgment may not be entered upon the theory that the plaintiff did not, through his own efforts and those of his associate, procure a purchaser for defendant’s property as he had contracted to do. Accordingly, the summary judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Dallas AMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-175.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied March 10, 1976.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst.Public Defender, for appellant.
    Robert L. Shevin, Atty.Gen., and Joel D. Rosenblatt, Asst.Atty.Gen., and Carl Schwait, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant was charged in a two count information with manslaughter. The first count charged him with culpable negligence in violation of § 782.07 Fla.Stat., F.S.A. Count Two charged him with operating a motor vehicle while intoxicated resulting in the death of Kate Smith Ward, a passenger, in violation of § 860.01 Fla.Stat., F.S.A.

In a jury trial appellant was granted a directed verdict of not guilty as to Count Two. The jury found him guilty as charged on Count One.

The several grounds relied on by the appellant for reversal have been carefully considered in the light of the record, briefs and arguments of counsel, and we find no reversible error has been shown. The record discloses that the case was fully and fairly tried, that the verdict is supported by the evidence and that the several rulings of the trial court challenged by appellant did not, on the record and under the law, constitute harmful error. Therefore, the judgment and sentence are affirmed.

Affirmed.


text:
    Joseph VIDI and Pennsylvania Millers Mutual Insurance Company, Appellants, v. Charles STANLEY et al., Appellees.
    No. 75-50.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied March 10, 1976.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Joseph W. Wom-ack and Thomas E. Scott, Jr., Miami, for appellants.
    Preddy, Haddad, Kutner & Hardy, Pod-hurst, Orseck & Parks, Miami, for appel-lees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant Vidi and his insurer appeal a final judgment for the plaintiff in an action for damages resulting from personal injury to a passenger in a small boat. The evidence established a prima facie case of negligence in the operation of the boat. Defendant Vidi was called as a witness by the plaintiff. The defendants had no further witness on the question of liability. The court directed a verdict for the plaintiff on that issue and submitted the question of damages to the jury.

The defendants claim that it was error to direct a verdict on liability because the evidence presented a jury issue of defendants’ negligence and plaintiff’s comparative negligence or assumption of the risk. The defendants do not claim, however, that there was additional evidence on the negligence issue to be presented. Rather, it is suggested that a jury could have found that defendant Vidi was not negligent. We find nothing in the record to support the submission of this issue to the jury.

It is next urged that a jury could have found that 'the plaintiff was negligent by failing to protect himself. However, such a conclusion by the jury would have been pure speculation. See the rule in Ephrem v. Phillips, Fla.App.1957, 99 So.2d 257 at 261. Appellants’ point urging assumption of the risk is not supported by the record. In addition, the point claiming error in trial procedure is not sustainable under the law set forth in Rogers v. Visionecring Concrete Construction Co., Fla.App.1963, 155 So.2d 163. Finally, the appellants’ point on the manifest weight of the evidence was not properly raised in the trial court and, therefore, is not appropriate for appellate review. See Paul v. Kanter, Fla.App.1963, 155 So.2d 402.

Affirmed.

NATHAN, J., dissents.