text:
    George THOMAS, alias v. STATE.
    6 Div. 204.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.

      George P. Seabourne, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

George Thomas was charged by indictment with possession of heroin. The jury found the appellant guilty as charged, and the trial court set sentence at five years imprisonment, in addition to a $15,000.00 fine fixed by the jury.

Lieutenant James E. Bibb testified that he was assigned to the Patrol Division of the Birmingham Police Department on March 14, 1973. Bibb stated that on said day, around 4:45 p. m., he and several other officers executed a search warrant for Apartment H, 2624 Tempest Drive, Birmingham, Alabama, the residence of Sophia Marie Haley. The item named in the warrant to be seized was heroin. Bibb had obtained the search warrant based upon his own affidavit, which stated, in part, that a reliable informant had observed heroin being sold at this address. Bibb stated that the apartment door was open when he and several other officers arrived that evening. Bibb testified that Haley, Haley’s daughter, the appellant, and one other person were present at the apartment when the warrant was executed. According to Bibb, everyone in the apartment was told to sit in the living room after they were first patted-down for weapons, including the appellant. After searching for approximately one hour and forty-five minutes, the officers turned up only some marijuana and barbiturates in the apartment. Bibb stated that Joe Aloia of W.S.G.N. News Department had accompanied the officers to the apartment that evening. After the search was completed, Officer Price, according to Bibb, asked Al-oia to take a picture of himself with appellant because appellant looked like a good friend of his. Bibb stated that Officer' Price put his arm around appellant’s shoulder and in this process knocked appellant’s hat off. Bibb testified that Price could have knocked the hat off appellant’s head deliberately. Bibb stated that twenty small foil packets fell from under appellant’s hat. Officers Harris and Price testified substantially the same as to the circumstances. Officer Price did, however, testify that he knocked appellant’s hat off his head accidentally.

Arthur Craig Bailey, employed by the City of Birmingham, Department of Toxicology, testified that he examined the white powdery substance found in the twenty foil packets. Bailey stated that he found the substance to contain heroin.

George Thomas, appellant, testified at the suppression hearing. He stated that thirty minutes before the search was conducted, a black male came to the door of the apartment asking to buy some heroin. Thomas indicated that he told the man to leave, that heroin was not sold at that apartment. The black male who asked to buy the heroin, according to appellant, was one of the four officers who conducted the search thirty minutes later. Appellant stated that he refused to have his picture taken with Officer Price, and that Price “snatched” the hat from his head.

I

The affidavit, upon which the search warrant was issued in this case, is set out, in part, as follows:

“. . . On February 23rd, 1973, a search warrant was served at 2624 Tempest Drive, Apartment H, residence of Marie Haley. A quantity of heroin was seized on this date. On the afternoon of March 6th, 1973, an undercover police officer purchased a quantity of heroin from Eric Rogers at 2624 Tempest Drive, Apartment H. On March 13th, 1973, I received information from a reliable informant who has given me information over a period of the last 30 days which has led to narcotic cases being made with trials pending. This informant gave me information that he had observed heroin being used and sold at 2624 Tempest Drive, Apartment H, Birmingham, Alabama.”

For the reasons hereinafter set out, we are of the opinion that the affidavit was legally insufficient to support the issuance of a search warrant, and that appellant’s motion to suppress the heroin should have been granted.

The affidavit is deficient because it fails to show that the information received from the informant was fresh as opposed to being remote. Davis v. State, 46 Ala.App. 45, 237 So.2d 635, affirmed, 286 Ala. 117, 237 So.2d 640. The affidavit stated that the informant “had observed” heroin being used and sold from the premises described. The affidavit does not state the date or the time the informant allegedly observed the heroin on the premises. The affidavit in this case is strikingly similar to one this Court, through Harris, J., ruled to be legally insufficient. Walker v. State, 49 Ala.App. 741, 275 So.2d 724, cert. denied, 290 Ala. 371, 275 So.2d 732.

In Walker, supra, Judge Harris stated: “. . . ‘Had observed’ could have been any time in the past. The informer did not tell the officer-affiant the date or time he allegedly observed the narcotics on the premises. There is nothing in the affidavit which hints of time except the use of the past tense in connection with the informant’s telephone report to affi-ant.”

The fact that heroin was previously seized on February 23, 1973, at 2624 Tempest Drive, Apartment H, did not establish probable cause to believe that heroin was on the premises three weeks later.

Also, the fact that on March 6, 1973, an undercover police officer purchased a quantity of heroin from Eric Rogers on the premises did not establish probable cause to believe that a week later such narcotic would be still found thereon. Seven days is a considerable length of time in which to remove heroin from the premises or dispose of it in another fashion. Such makes for a stale warrant. Haynes v. State, 50 Ala.App. 96, 277 So.2d 372; Miller v. State, 54 Ala.App. 230, 307 So.2d 40.

Thus, the “two-prong test” set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, was not here met.

II

Assuming arguendo a legally sufficient affidavit existed upon which to issue a valid search warrant, still we believe that the search of appellant’s hat impinged upon his constitutional rights, and was thus unreasonable, and without probable cause (i. e., whether the hat was intentionally or accidently removed from appellant’s head has no bearing on this issue).

The appellant was a complete stranger to the officers at the time, was not a suspect involved in the commission of any offense, was not named in the search warrant, and did nothing to indicate by his conduct or appearance that he possessed any weapon. For aught that appears, the appellant was a mere visitor to the apartment. Smith v. State, 52 Ala.App. 114, 289 So.2d 812, affirmed, 292 Ala. 120, 289 So.2d 816, and cases therein cited.

The fact that one associates with narcotics dealers in no way calls for an inference that such person is engaged in the criminal traffic of narcotics. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.

The search in this case cannot be justified on the theory that the heroin was found as a result of a “frisk” for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The appellant underwent a “frisk” for weapons almost two hours before the hat in question was removed from his head. As stated by this Court in White v. State, 49 Ala.App. 5, 267 So.2d 802, “Once the officer is safe (i. e., the frisk fails to reveal any weapon), no further rummaging is warranted.”

For the reasons set forth, the appellant’s motion to suppress the evidence should have been granted, and its denial constitutes reversible error. Shipman v. State, 51 Ala.App. 80, 282 So.2d 696, affirmed, 291 Ala. 484, 282 So.2d 700.

Because of the errors shown, if follows that the judgment below is due to be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

BOOKOUT, J., concurs.

HARRIS and BOWEN, JJ., concur in the result.

DeCARLO, J., dissents with opinion.

DeCARLO, Judge,

dissenting.

I cannot agree with the majority conclusion that the affidavit in this case was deficient because it failed to show that the information received from the informant was fresh as opposed to being remote.

The rule involving vagueness of the time element in supporting affidavits for search warrants evolved as a result of Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260. There the court said:

“While the statute does not fix the time within which proof of probable cause must be taken by the judge or commissioner, it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”
This court in Walker v. State, supra, said: “To support a search warrant the proof supplied must speak as of the time of the issuance of the warrant.”

In simple terms, the affidavit supporting the search warrant must indicate proof that the premises, person, place or thing to be searched presently contains the fruits of the crime.

The United States Court of Appeals in United States v. Johnson, 461 F.2d 285 (10th Cir.), observed:

“. . . it should, be noted that the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit. . . However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.”

In Bastida v. Henderson, 487 F.2d 860 (5th Cir.), the court noted:

“The Circuits hold that where an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance.” [Emphasis added].

The Supreme Court of Connecticut in State v. Bose, 168 Conn. 623, 362 A.2d 813, went further and stated that an exception exists to the rule that facts and circumstances in an affidavit supporting a search warrant must be current and timely on the day of issuance. There the court said:

“An exception to this rule is where the court finds facts indicating the likelihood that there is a continuing criminal activity.”

The court went on to say:

“The facts indicating this continuity must satisfy the same requisites of reliability as other facts within the affidavit that purport to evidence probable cause.” State v. Rose, supra.

In the present case the facts cited in the affidavit disclosed that approximately eighteen days prior to the issuance of the search warrant, a quantity of heroin was seized on the same premises. Approximately seven days before the warrant was issued, an undercover officer purchased a quantity of heroin at the named location. The information related by the informer indicated that heroin was being sold and used at the address sought to be searched. These facts indicate an on-going criminal activity preceding the application for the warrant. Under these circumstances the issuing magistrate could have reasonably concluded that probable cause existed at the time the warrant was issued.

The majority has also concluded that the search of the appellant’s hat' was without probable cause, unreasonable and unconstitutional.

In my judgment, the facts outlined in this case, although in conflict, posed a question for the trier of fact. When the trial judge was determining probable cause, he had for his consideration the question whether or not the appellant’s hat was inadvertently knocked from his head. Undoubtedly, this question was answered in the State’s favor. Once the hat hit the floor, and the contents fell out, they became subject to the plain view doctrine and were unquestionably admissible.

On the proposition that the search of the hat was improper if it was intended to be a frisk for weapons, it is my judgment, that the right to conduct a frisk continued until the officers left the scene.

Nowhere in the record does it indicate that the appellant’s hat was searched at the outset when the so-called “frisk” for weapons was made. Often when officers enter a place to be searched, the search for weapons on the person is done very hastily. A later “frisk” of an area of the person that was not initially searched is not unreasonable. In fact, it may prevent an officer from being injured or even killed.

I am not aware of any decisions that prohibit a later search for weapons on an area of the person that was not searched in the beginning.

For these reasons, I believe the appellant’s motion to suppress should have been denied and the judgment of conviction affirmed.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 77-181.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


text:
    Lovie J. PEAGLER v. STATE.
    3 Div. 767.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Susan Beth Farmer, for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County returned an indictment against the appellant, Lovie J. Peagler, charging him with robbery. Appellant entered a plea of not guilty, and not guilty by reason of insanity. A jury found him guilty and fixed his punishment at 15 years, and he was duly sentenced by the court to fifteen years in the penitentiary. Appellant appeals to this Court.

This appeal was submitted to this Court on brief of Appellee and on a no merit letter of appellant. Appellant was at all proceedings in the trial court represented by counsel of his choice, and is here represented by court appointed counsel.

The only question presented to this Court by the record is the sufficiency of state’s evidence to make out a prima facie case of robbery against the appellant.

State’s evidence tends to prove that on December 20, 1976 at about 3:40 o’clock, A. M. Mrs. Todd, an employee at Zippy Mart, a store located on the Troy Highway in Montgomery County, was alone in the store; that the appellant and a woman pulled up to the gasoline pump and put $10.01 worth of gasoline in their car; that appellant came into the store and drew a .38 special from a shoulder holster and put it in Mrs. Todd’s face and told her, “this is a hold-up give me what you have”; that Mrs. Todd gave him $57.00 in coins contained in a bank bag and about $100.00 in bills contained in another bank bag; that appellant left the store; that Mrs. Todd called the police; that about 15 minutes later the appellant, the 38 Smith and Wesson special and a bank bag were brought back to the store and all were identified by Mrs. Todd; that Mrs. Todd was positive in her identification of the appellant; that officers of the law stopped the appellant on the Troy Highway south of Montgomery; that the appellant had in his possession the same .38 Smith and Wesson special, bank bags, and shoulder holster for the .38 special he had when he left the store; that appellant was seated on the passenger’s side when his car was stopped and a woman was seated in the driver’s seat; that before any questions were asked the appellant about the robbery he asked one of the officers how they were able to catch him so soon after the robbery; that after informing the appellant of his Miranda rights, he confessed to the robbery which confession was in writing and signed by the appellant. Mrs. Todd made a positive identification of the appellant in court. After a proper predicate was made the confession by the appellant was introduced into evidence.

The state rested its case and appellant moved to exclude the state’s evidence on the ground that the state had not proven a prima facie case of robbery. The motion was overruled and the appellant rested without offering any evidence on his behalf.

Robbery is the felonious taking of money, or goods of value, from the person of another, or in his presence, by violence to his person, or by putting him in fear. We hold that the evidence presented by the state is sufficient to sustain the jury verdict of guilty. The trial court was correct in overruling appellant’s motion to exclude state’s evidence. Wilson v. State, 268 Ala. 86, 105 So.2d 66; Phillips v. State, 272 Ala. 216, 130 So.2d 822; Summers v. State, 348 So.2d 1126.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Abraham LEWIS v. STATE.
    3 Div. 787.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Debra Jean Williams, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was convicted for violating the Alabama Controlled Substances Act in selling marijuana to an undercover agent working for the Montgomery Police Department. He was represented at trial by counsel of his choice and at arraignment pleaded not guilty. The Court sentenced him to twelve years imprisonment in the penitentiary. He gave notice of appeal and filed a petition for a free transcript. The trial court found that appellant was indigent and he was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The undercover agent was Detective Michael M. Farrier of the Montgomery Police Department who was assigned to the Vice and Narcotics Detail. Farrier testified that, on the night of November 23,1976, he and Detective James E. Nichols made plans to make a controlled buy of drugs from appellant at his home at 3558 Young Drive, Apartment A, in the City and County of Montgomery, Alabama. Officer Nichols let Officer Farrier out of the car about two hundred yards from appellant’s home. Farrier walked to appellant’s residence and knocked on the door. Appellant came to the door and asked Officer Farrier what he wanted and Farrier asked him if he could buy a “nickel bag.” A “nickel bag” is the street term for a five-dollar bag of marijuana or other type drugs. Appellant told Farrier that he could get a “nickel bag” and to come into the apartment. Farrier entered the apartment and saw appellant go into a back bedroom. He returned in a few seconds with a brown manila envelope which contained a green vegetable substance and gave it to the officer who, in turn, gave appellant five dollars. Officer Farrier left, saying, “I will see you later.” He returned to the ear where Detective Nichols was waiting and the officers left immediately for Police Headquarters where the evidence was “heat” sealed in a plastic bag by Officer Farrier, who then put his initials MMF across the top of the sealed bag. After putting his initials on the bag, Farrier discovered there was a hole or torn place in a corner of the bag, and he put the green vegetable substance in another plastic bag and resealed it, but forgot to put his initials across the seal. Farrier then attached to the new bag a Toxicologist’s request form on which he wrote a code number — 411-16—to identify the substance as that which he had purchased from appellant. This package was then placed in an evidence locker to which Farrier had the only key at that time.

Detective Farrier identified State’s Exhibit No. 1 as the Toxicologist’s form which was attached to the envelope containing the substance which he had purchased from appellant. As above stated, this form bore the code number — 411-16—assigned to the case made against appellant. Exhibit No. 1 also had on it the date Detective Farrier personally delivered the contents of the envelope to Allan Raymond Adair, the Toxicologist who conducted the laboratory analysis of the contraband. The date was November 30, 1976. This witness also identified State’s Exhibit No. 2 as the envelope containing the substance he had purchased from the appellant on November 23, 1976. Both exhibits were admitted into evidence without objection.

State Toxicologist Allan Raymond Adair, whose qualifications were admitted by appellant’s counsel, testified that, on November 30, 1976, he received from Detective Farrier a clear plastic bag in a sealed condition along with a request sheet and a yellow envelope containing green plant material. Adair stated that he analyzed the contents of the bag and his analysis revealed that the green plant material was marijuana. Adair further testified that, after he examined the contents of the bag and determined it was marijuana, he placed the bag in his evidence locker. He stated that he had exclusive control over the plastic bag from the time it was delivered to him until the day of the trial and that it was in the same condition at that time as it was when he received it, except for the amount he used in making the laboratory examination.

Appellant testified in his behalf and denied selling anything to Detective Farrier on November 23, 1976, or at any other time. He claimed he was not at home on the night of the alleged sale and that the first time he saw Farrier was on the day of his trial. Appellant stated on direct examination that he had not used, sold or had in his possession any marijuana since he pleaded guilty to selling marijuana in the year 1974.

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the Court’s oral charge. Appellant did file a motion for a new trial in which he alleged the verdict of the jury was contrary to the evidence in the case. This motion was continued for disposition within thirty days but the record does not show that the motion for a new trial was ever ruled on. The record does reflect that during this thirty day period of time the trial court reduced the twelve year sentence to eight years in the penitentiary.

The evidence as to the custody, control and possession of Exhibits 1 and 2 unequivocally shows there is no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance of the authenticity of the marijuana drug and the analyses conducted by the Toxicologist. Pitts v. State, 56 Ala.App. 10, 318 So.2d 750; Mullins v. State, 56 Ala.App. 460, 323 So.2d 109; Rupert v. State, 54 Ala.App. 578, 310 So.2d 501.

Conflicting evidence regarding defendant’s alleged participation in the sale of marijuana presented an issue for the jury to resolve. Mullins v. State, supra; Peppers v. State, 53 Ala.App. 695, 304 So.2d 39.

A motion for a new trial must not only be filed within time but a ruling thereon is necessary to invite review by this Court.

A careful search of the record fails to reveal an error to reverse and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Steven Kendrick JOHNSON, alias v. STATE.
    4 Div. 584.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      Charles T. Morris, Opp, for appellant.
    William J. Baxley, Atty. Gen., and Larry E. Craven, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted by the grand jury of Covington County, June 17, 1977, for robbery. A jury convicted him after his plea of not guilty and fixed his punishment at ten years imprisonment. An appropriate judgment was entered and a timely appeal in forma pau-peris was taken.

The alleged robbery occurred on October 7, 1976, at night, in a more or less isolated spot on a rural dirt road in Covington County. The circumstances leading up to the alleged offense originated in Lowndes County at Ft. Deposit where the victim, Roger Lee Smith, who was a filling station employee, resided. He was in the market for two pounds of marijuana.

The victim was approached in Ft. Deposit by Ted Daniel Burkett, who was an acquaintance of appellant, Steven Kendrick Johnson. Burkett and appellant were riding together. The victim, after he got off from work about 5:00 P.M., on October 7, 1976, joined them. The three, after some delay in obtaining an automobile free of mechanical defects, went south and ended up in the western part of Covington County in quest of the marijuana that the victim wanted to buy; and where he was informed it could be obtained. All were drinking alcoholic beverages.

The paved road, Number 55, they were following, came to an end at a construction project where appellant got off to retrieve some marijuana which he said could be found there. After some minutes the victim joined appellant in the search.

The evidence is in conflict as to what happened at this point. At this time and point the alleged robbery occurred.

The victim, Smith, testified that while making the search, appellant hit him across the head with a gun and told him to take off his clothes and get in the car and leave. Smith complied. He testified also that he had $347.00 and some change in his pockets at the time. Smith called the sheriff’s office in Covington County and reported the incident. He later identified appellant from a photograph in the sheriff’s office.

On cross-examination, the victim admitted that he had told the appellant’s attorney a story that did not comport with what he told from the witness stand.

It appears from the evidence that the sheriff’s deputies were in possession of a warrant of arrest (not a search warrant) for appellant when they went to the home of Mrs. Obadiah Varner, near the scene, and there arrested appellant who was hidden in an attic or loft, so the officers testified, but came down and submitted to arrest.

The officers, with the permission of Mrs. Varner, searched a bedroom and there under a mattress, found some of the stolen articles, including some credit cards of the victim, $83.00, and a pistol, which was the property of appellant.

Appellant took the stand and testified that while looking for marijuana after they stopped, Smith hit him across the face.

“ . . . So, whenever he done that, I didn’t know what was happening. I will admit to the pistol, was mine and I pulled my gun and I hit him with it.
Q.» Across the face?
A. Yes, sir. I don’t know if it hit him across the face, but I did swing at him.
Q. Okay.
A. I might have hit him in the shoulder or somewhere.
Q. Where did he hit you?
A. He hit me across the face.
Q. With what?
A. Just his fist.
Q. All right, well, did you have an argument before the swinging started or what?
A. I asked him, I said, I believe somebody has ripped me off. I don’t know. The man just hit me. So, whenever he hit me, I don’t know what was happening. We was all drunk.”

Appellant on cross-examination testified:

“Q. And were you there when they took this pistol out from under the pillow and those other items from between the mattresses?
A. Yes, sir, I was.
Q. Did you put them there?
A. Yes, sir, I did.”

There was other evidence that supported the State’s version of the incident. Suffice it to say the State’s version of the incident and that of appellant were conflicting.

I

Appellant contends the evidence presented to the jury was insufficient to support a conviction.

We are not in accord with this contention. The conflicts and inferences therefrom were properly submitted to the jury for their determination. All the evidence presented a jury question. The motion to exclude was properly overruled. The credibility of the witnesses was for the jury to resolve. Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421; Williams v. State, 50 Ala.App. 341, 279 So.2d 145; Young v. State, Ala.Cr.App., 346 So.2d 509.

II

A second issue is whether the trial court erred in refusing, on several occasions, to grant a mistrial in the proceeding.

(a) The first instance occurred in the opening remarks of the District Attorney as he gave his rebuttal statement. We quote:

“MR. McGILL: I certainly want you to pay attention to the witnesses because without them we couldn’t be here, and I would also like you to pay attention to the demeanor of this Defendant because he too raised his right hand and was sworn in. Now, this time—
“MR. MORRIS: Now, wait a minute. I object to that, Your Honor. I object to his remark about the Defendant taking the stand.
“THE COURT: Yes, sustain.
“MR. MORRIS: And I move for a mistrial, Your Honor. I think that is very prejudicial.
“THE COURT: I deny the motion for a mistrial, and instruct the Jury that nothing said by any person in the opening statement is evidence and you should not consider the remarks of the District Attorney, whether or not the Defendant takes the stand. He is not required to take the stand under our system of law unless he elects to do so. And if he does not do so, it would be improper for you to consider that he did not.”

We note that appellant’s counsel made an opening statement as follows:

“MR. MORRIS: This is why we have Jury trials. So that you can see these people when they come up here. And this Roger Smith, he will come out here and he will be sitting right up there in front of you; and you can look at him; and you can notice his demeanor; and the way he acts; and the way he talks; and, I believe, this Mr. Burkett, the other young fellow that was allegedly involved, he is going to come out here.”

It is to be noted that this statement, while proper and legitimate, did invite the jury to observe the witnesses and their demeanor, particularly the prosecuting witness, Roger Smith. The District Attorney followed the same trend of suggestion, but improperly referred to the appellant and included him.

We hold, however, that the trial judge’s instruction to the jury, which was very clear and positive, cured the error. Troup v. State, 32 Ala.App. 309, 26 So.2d 611(12, 13).

(b) The second motion for a mistrial was made when a witness, Deputy Don Harrell, made a voluntary and unresponsive statement. We quote:

“Q. And you say, you had several conversations or meetings with him (appellant) after that, after that meeting on October the 12th in the Sheriff’s office. Do you remember when the next one was?
“A. I don’t remember; the next one was the next day or two. He sent me word that he wanted to see me.”

(Parenthetical matter added.)

There followed a series of questions on cross-examination that adduced the following:

“A. I don’t know whether there was anyone with me or not. I remember me and Kenny talking.
“Q. Where did you tell him his bond was set?
“A. In the hallway, on the right, where he was at.
“Q. What hallway?
“A. In the jail. If you go straight through the jail on the second floor; the hallway on the right; the first cell. Also, on another occasion we talked to him, Jimmy Etheridge and myself. He sent word he wanted to plead guilty.
“MR. MORRIS: I move to exclude that, Your Honor. I haven’t asked him anything like that.
“THE COURT: Yes, that answer is not responsive.
“MR. MORRIS: And, Your Honor, I move for a mistrial. That is highly prejudicial.
“THE COURT: I want to be heard on the motion outside the presence of the Jury. Members of the Jury, be at ease. We will be back shortly.”

The court denied the motion and instructed the jury as follows:

“THE COURT: Members of the Jury, the witness in response to one of the questions, or voluntarily suggested that at some point the Defendant wanted to talk to him about pleading guilty. And I will instruct you later in my oral charge to you at the conclusion of the case to this effect, and I want you to understand right now, this Defendant has not plead guilty and he is innocent until proven guilty. He has a presumption of the innocence that attends him throughout the course of the trial, and is with him at this point. It would be highly improper (sic) you to consider that response by the witness. And it would be a violation of your oath as jurors if you did consider it. I will instruct the witness to answer only those questions that are asked you and not volunteer any information that is not asked you. If the answer can be yes or no to a yes or no question, then that is what you should answer.”

We hold that the instructions were sufficient to dissipate any prejudice that might have resulted by this unresponsive statement.

(c) Again, a witness for the State, Jimmy Etheridge, testified:

“Q. What was the purpose of your being there or why did you go over to the jail?
“A. Don Harrell had told me that Kenny wanted to talk to me about pleading guilty.
“MR. MORRIS: I object to that, Your Honor, and ask that it be excluded.
“THE COURT: Yes, I sustain the objection.
“MR. MORRIS: And again, move for a mistrial?
“THE COURT: I deny the motion for a mistrial, and instruct the Jury, you should not consider that.”

Clearly, the above answer was responsive to the question, but hearsay. The court sustained appellant’s objection and denied his motion for a mistrial. The rulings were correct.

Thereupon the following questions and answers appear; there was no objection:

“Q. Where were you seated Mr. Ether-idge when Mr. Johnson came in the office?
“A. Behind the desk.
“Q. And did he take a seat?
“A. Yes, sir, across the desk from me.
“Q. What did you say to him, at that time?
“A. I told him, I understand he wanted to see me about pleading guilty.
“Q. What did he say?
“A. He said, yes.
“Q. That’s all.”

Ill

Appellant makes a final complaint, that the court erred when it admitted in evidence certain items found in the home of Mrs. Obadiah Varner. Assertion is made that these items were inadmissible because they were the fruits of an illegal search.

We cannot agree that the search was illegal. It clearly appears that Mrs. Varner lived there and consented to the search. The consent authorized the search without a warrant therefor. Appellant was more or less an intruder, or an interloper. He did not live there, although his divorced wife and children were there. Appellant admitted on the stand that he lived in Geor-giana with his mother. He had no proprietary interest in the premises and was just there in hiding. Kirkland v. State, Ala.Civ.App., 340 So.2d 1121(3); cert. den., Ala., 340 So.2d 1127. Even if no consent had been given, appellant could not lawfully complain. Wilson v. State, 57 Ala.App. 125, 326 So.2d 316(4), cert. den., 295 Ala. 429, 326 So.2d 319.

The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    R. D. EDDY, alias v. STATE.
    6 Div. 369.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      Jesse W. Shotts, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Buying, receiving, concealing, etc. stolen property; sentence: two years imprisonment.

The State’s evidence tended to show that on November 3, 1975, about 3:00 P.M., Joyce Scott’s 1974 green Ford pickup truck was stolen from the parking lot of Woolco in Midfield. Mrs. Scott said the value of her truck on that date was “about thirty-five hundred dollars.”

Approximately 7:00 P.M. on the day Mrs. Scott’s truck was stolen, appellant brought a 1974 green Ford pickup truck to Auction City, U.S.A., in the Eastwood Mall area of Birmingham in Jefferson County. Appellant there sold the truck to Gene Schmitt for $1,665.00. Schmitt, a used car dealer, took the truck to his automobile lot in Leeds, Alabama. During the night of November 4, 1975, the truck was stolen from Schmitt’s lot.

Later in November of 1975, a green 1974 Ford pickup truck was found under water in a strip mine pit near Trussville in Jefferson County. The truck was raised on November 10 and taken to Glendale Farms near Trussville. It was heavily damaged while it was being removed from the pit. The authorities searched the vehicle on November 10 and 12 for serial numbers, but they had been obliterated. On November 17, Officer Thomas H. Cook found some wet charge receipts of Mackinaw’s Service Station, Inc.

Officer Cook took the receipts to Joyce Scott who recognized them as gas tickets she had signed and placed in the ashtray of her truck. Six charge receipts were introduced into evidence. Five were charges to “Joyce Glenn,” and one was to “Joyce Glynn.” Four were signed by “Joyce Glenn” and two by “Wayne Glenn.” Joyce Scott testified that she maintained a charge account at Mackinaw’s in her maiden name, “Joyce Glynn,” even after she married. She acknowledged that her signature was on the receipts. Scott also said she allowed her brother, Wayne Glynn, to charge gasoline on her account. She testified that he had given her the two receipts that were signed by him and that she had placed them in her truck’s ashtray with her other charge receipts.

Joyce Scott identified the truck, which was removed from the strip mine pit, as the one taken from her. The truck taken from the pit met the general description Scott gave of her truck. Scott based her identification primarily on glue in the shape of a footprint she said was left from an orange footprint shaped sticker which was on her dashboard, a dent in the back of the truck which according to her was from when her husband hit “the steps”, and “skint places” on the back of the truck which she said were due to the putting on and taking off of a wood “camper”. However, Scott testified that the truck she identified was different from hers in the following major respects: it had whitewall tires rather than the blackwall tires which were on her truck; the truck had a different license tag; it appeared to have been waxed; and the truck had been “wrecked,” while her truck had not been damaged except for the dent.

During Scott’s testimony, five photographs were admitted into evidence. Four showed the truck which was removed from the strip mine pit and one showed Joyce Scott with her truck. A comparison of the photograph of Scott’s truck and the photographs of the truck taken from the strip mine pit shows that each truck depicted was a Custom, F-100, Ford pickup truck of the same shade of green.

The truck taken from the strip mine pit was identified by Gene Schmitt as the one appellant sold to him and which was stolen from his Smitty’s Auto Sales lot. The truck which was found fit the general description given by Schmitt of the truck appellant sold to him. Schmitt saw the truck before it was damaged, while it was being removed from the strip mine pit, and after it was removed. It had the same license tag as the truck appellant sold to Schmitt and a Smitty’s Auto sticker Schmitt had placed over a Lonnie Russell sticker. Joyce Scott’s truck was bought from the Lonnie Russell Ford dealership. The truck recovered from the pit had whitewall tires and according to Schmitt “ . . . still had the wax on it.” Schmitt said he replaced the tires on the truck he bought from appellant with “port-a-wall tires” and had the truck cleaned. According to Schmitt he noticed, as the truck was being cleaned, that it had a little dent in the back of the cab on the right side and that it had had a camper on it. However, he observed no glue on the dashboard and stated he normally did not clean the ashtrays of vehicles he was preparing for resale.

Schmitt testified, without objection, that the license tag on the truck he bought from appellant was bought for Joel McCumby and that William Brooks signed for it. He said the man, apparently at the Jefferson County Courthouse, with whom he had a telephone conversation, told him the purchaser of the tag originally got a “car tag” then returned it for a “truck tag.” Schmitt was also told that the man who purchased the tag said he got the truck from the Phenix City Auto Auction and the truck had a dealer’s tag. Further, Schmitt testified, without objection, that when he went to the address he was given for McCumby, “ . . . one of the neighbors said that Mr. McCumby was an old man and was in a nursing home or a mental institution or something.” Also without objection, Schmitt testified that the “motor or serial number”, on the bill of sale he received for the truck, was for a Ford pickup truck which was originally sold in Tennessee. According to Schmitt, Lonnie Russell Ford was not in Tennessee.

After the State rested, the defense moved to exclude the evidence and for a directed verdict; both motions were overruled.

Harland Bruce Dean, a half-owner of an automobile lot in Tarrant City, testified, for the defense, that appellant brought a dark green 1974 Ford “custom” pickup truck to his lot on a Friday during the last of October or before November 11, 1975. He said the truck was “pretty close to the color and the year” of the truck shown in the four pictures of the truck recovered from the strip mine pit. However, Dean admitted he could not tell if it was the same pickup truck depicted in the pictures.

Defense witness, Diane Fatia, said she saw appellant driving a dark green 1974 Ford pickup truck twice during a period of a week or five days around Halloween or the first week of November, 1975.

Kelsey Steadman, the custodian of the Jefferson County Department of Revenue records of vehicle license tag receipts, testified, for the defense, that the tag receipt for the tag found on the truck recovered from the strip mine pit was issued on October 24, 1975. The receipt showed Joel McCumby as the supposed owner, and that a William Brooks bought the tag for McCumby and signed for it. Also, the receipt indicated the vehicle the tag was issued for was a 1974 Ford, “PU F-100.” Steadman also testified that on October 24, 1975, one could simply write a bill of sale and obtain a tag based on the information in it.

Appellant, R. D. Eddy, testified in his own behalf. He denied knowing the truck was stolen and contended he purchased the “pickup Ford” from Joel McCumby on October 28, 1975, for $1,500.00, cash; Appellant testified he did not know McCumby, whom he stated identified himself by way of a driver’s license and from whom he obtained a bill of sale, which was admitted into evidence. Eddy admitted he sold the truck to Gene Schmitt at the “Eastwood Mall Auction” on November 3, 1975.

Gene Schmitt, when recalled as a rebuttal witness, testified that he went, after the truck was taken from his lot, to appellant’s address, as shown on the bill of sale he received at Auction City, U.S.A., and found a vacant house. Further, Schmitt stated, without objection, that when he tried to call the appellant’s telephone number as shown on the bill of sale he was told “ . the number was disconnected, out of operation or something. No answer.”

Bobbie Williams, a rebuttal witness for the State, testified that she rode with Joyce Scott on numerous occasions in her “1974 custom F-100,” including November 3, 1975, “the same day the truck was missing.” She identified the truck recovered from the strip mine pit as the one Joyce Scott had before November 3, 1975.

I

The indictment followed T. 15 § 259, Code of Alabama 1940, Recomp.1958, Form 91. It alleged the truck was “ . . . the personal property of Joyce Scott. . . . ” During the trial in a motion to dismiss the case and later in a motion for new trial, which were both overruled, the appellant maintained there was a fatal variance between the indictment and proof. He contended the evidence showed Joyce Scott’s husband was the owner of the truck, and not Joyce Scott, as alleged in the indictment. Appellant now raises this point on appeal.

During the trial the following indicia as to the ownership of the truck were produced:

(1) Joyce Scott’s testimony that her and her husband’s money was used to make the down payment and payments on the truck.
(2)(a) A “CERTIFICATE OF INSURANCE-CREDIT LIFE — CREDIT DISABILITY from Ford Life Insurance Company” on Artis Edward Scott, Joyce Scott’s husband.
(b) A “FINANCING STATEMENT— UCC — 1” from Ford Motor Credit Company which shows Artis Edward Scott and Joyce Scott as debtors on the truck.
(c) A “NOTE — SECURITY AGREEMENT INCLUDING LOAN STATEMENT AND DISCLOSURES REQUIRED BY STATE AND FEDERAL LAW” which shows Artis Edward Scott’s name typed at the top under the heading “NAME (BORROWER(S)),” was signed by Artis Edward Scott as the borrower under an insurance notice, and signed by Artis Edward Scott and Joyce Scott at the bottom of the instrument as borrowers.
(3) The 1974 and 1975 license tag receipts for the truck were in the name of A. E. Scott, but Joyce Scott said she “went and got” the tags.
(4) Joyce Scott testified that she and her husband used the truck, but she used it “most of the time” to sell produce. The gas receipts signed by Joyce Scott also showed her use of and purchase of gas for the truck.

Even assuming appellant’s interpretation of the evidence as to ownership was correct, there was no error in the trial court’s rulings. In Dudley v. State, 19 Ala.App. 519, 98 So. 490, which was reversed on a ground not relied upon herein, the appellant was convicted of buying, receiving, concealing, etc., stolen property. The property in question was a copper worm from a still which was seized as contraband by the sheriff, R. T. Ragland. The worm was stolen from Ragland’s office and later found in a still operated by the appellant, Dudley. To the contention the worm was not Rag-land’s as laid and that no one had any property rights therein, the court said:

“The possession of the sheriff was not an unlawful possession. The possession by the sheriff does not necessarily carry with it the legal title. The ownership of property stolen is properly laid in the party in possession.” [Citation omitted.]

Further, ownership is properly laid in the bailee of property which is stolen. Leverett v. State, 18 Ala.App. 578, 93 So. 347, reversed on other grounds; Gullatt v. State, 24 Ala.App. 11, 130 So. 169, reversed on other grounds; Ex parte Economu, 211 Ala. 237, 100 So. 85; Williams v. State, 19 Ala.App. 472, 98 So. 136; Poole v. State, 28 Ala.App. 37, 178 So. 238. It is recognized that in the latter four cases the offense was larceny. The forms for indictments for grand larceny and receiving or concealing stolen goods, respectively Forms 66 and 91, T. 15, § 259 Code of Alabama 1940, Recomp. 1958, both require allegations as to whose personal property was stolen. The purpose of the allegations in both indictments is to inform the accused of whose property was stolen and to prevent double jeopardy by identifying the particular transaction. Thus there should be no distinction between such cases as to the requirements for proof of ownership. The facts show Joyce Scott was in legal possession of the truck, and was a bailee due to her possession and control of it. The constitutional requirements that the defendant be made aware of the nature of the charge against him were met. Therefore, the court’s rulings on the motions were correct.

Rebuttable presumptions of ownership of a vehicle are raised by a bill of sale or a license tag receipt (Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183), possession of the vehicle (see Vaughan v. Borland, 234 Ala. 414, 175 So. 367), and use of the vehicle (Holman v. Latady, Andrews & Co., 220 Ala. 112, 124 So. 284). This list is not all inclusive and the other evidence presented at trial should be given equal weight to that given the items listed above in determining ownership.

Joint contribution to an enterprise gives rise to the presumption of joint ownership. See Scott v. State, 55 Ala.App. 318, 314 So.2d 921. Legal possession is referred to the husband or wife who has title, if that can be ascertained, when there is a joint possession by them. However, joint possession of personal property by a husband and wife “ . . . raises a presumption of joint ownership, which gives way to direct or circumstantial evidence to the contrary, sufficient to lead to a different conclusion.” Vaughan v. Borland, supra.

No title was produced. In fact, there was no motor vehicle title registration law in this state when the truck was purchased. Thus, the evidence was in conflict as to whether Artis Edward Scott owned the truck alone, or if he and his wife, Joyce Scott, owned the truck jointly. However, the evidence, particularly the joint possession and use of the truck, and joint contributions to the down payment and payments for it, pointed strongly to the joint ownership of the vehicle by Joyce Scott and her husband. We hold that the ownership was joint, since there was an absence of evidence sufficient to lead to a different conclusion.

In an indictment for buying etc. stolen property, if the ownership of the property is joint, it is sufficient to allege ownership in either party. T. 15 § 245, Code of Alabama 1940, Recomp.1958, and Scott, supra (wherein, it should be noted, the appellant was convicted for buying etc. stolen property). Further, as noted above, there should be no distinction between larceny and buying etc. stolen property cases as to the requirements for allegations or proof of ownership of the property stolen. Therefore, the following larceny case also supports this holding: Smith v. State, 25 Ala.App. 339, 146 So. 426, reversed on other grounds. See Nix v. State, 33 Ala.App. 603, 36 So.2d 452; Lowe v. State, 32 Ala.App. 176, 22 So.2d 618.

Ownership was therefore properly alleged and proven to be in Joyce Scott, since she was a joint owner of the truck in question.

II

Appellant contends the repeated attempts by the district attorney in argument to implicate him as the one who stole the truck from the Woolco parking lot and from the Smitty’s Auto Sales lot, improperly prejudiced the jury by referral to misconduct not in issue.

During the cross examination of the appellant by the district attorney the following occurred:

“Q Isn’t it a fact that then you went looking for a truck to fit that description to steal?
“A No I didn’t.
“Q Isn’t it a fact that on November third, 1975, that you found this lady’s truck and stole it and then took it down to the auto auction? “MR. SHOTTS: Judge, I’m going to object to this line of questioning. “THE COURT: Sustained.
“MR. BLACK: That’s all.”

This is the only question during trial that referred to one of the other offenses of which appellant complained and the court ruled favorably to the appellant on his counsel’s objection to it. This question, and resulting objection and ruling, is set forth merely to illustrate the atmosphere of the trial on this issue.

During the district attorney’s argument the following occurred:

(1) “MR. BLACK: . . . That’s one thing that they overlooked, whoever stole the car, which I submit to you was the defendant, R. D. Eddy.
“MR. SHOTTS: Your Honor, I object to this as being improper argument. The defendant is not charged with grand larceny. I would like to remind Mr. Black that the charge is buying and receiving and concealing stolen property.
“THE COURT: That’s what the charge is, Mr. Black, it is not grand larceny. Proceed.”
(2) “MR. BLACK: I’ll tell you this, the best way to prove that when he had it he knew it was stolen is to prove that he’s the one who stole it.
“MR. SHOTTS: Your Honor, I’m going to object to that as being an improper statement.
“THE COURT: Sustained. Sustained. The very element of buying and receiving is that he did not steal it.”
(3) “MR. BLACK: How do you make sure that you don’t get caught later? You know who bought it, you sold it to him, and you go get it.
“MR. SHOTTS: Your Honor, I object to that as an improper inference in that in this case, the sole issue that we are trying is the buying and receiving of this automobile. Mr. Black is trying to infer to the jurors things of other improper conduct for which not only has he not been indicted but there is no basis for such. “THE COURT: Overruled.”
(4) “MR. BLACK: If anybody else was the one who took that car from the lot, you better believe
“MR. SHOTTS: There has been no charge of grand larceny in this case. I object to this.
“THE COURT: The jury understands that. Overruled. He can argue any circumstances that he might draw. What he says is not evidence.’.’
(5) “MR. BLACK: Of course, he says this is not the same car. That’s the only issue. If it’s the car that he sold at the auction, he has to know that it was stolen because he sold it two hours later.
“MR. SHOTTS: Your Honor, I strenuously object to this. It is improper and Mr. Black knows it is improper.
“THE COURT: Are you talking about the stealing of the car?
“MR. SHOTTS: Yes, sir.
“THE COURT: I have instructed the jury and I will instruct the jury along those lines and what the elements are that go to make up this. I sustain the objection. I’ll explain it.”

(These parts of the argument have been numbered such that they may be referred to by number.) Further during the district attorney’s argument, the court gave the following instructions go the jury:

“Ladies and gentlemen, of course, each lawyer can argue the inferences that he draws from the facts. They can argue any circumstance that they think is reasonable from what they conclude the facts to be in certain aspects of the law. Ultimately, of course, you all determine what the facts are and I tell you what the law in the case is. You may proceed.”

Ordinarily evidence of distinct and independent offenses, and prior offenses is not admissible. However, there are numerous exceptions to this rule. McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528; McCary v. State, 39 Ala.App. 642, 107 So.2d 903. Counsel for appellant argues that the thefts imputed to the appellant by the prosecutor could not be brought out during the trial and thus should not have been allowed in argument, since argument should be based on what is in evidence.

This court stated in Scott v. State, 47 Ala.App. 509, 257 So.2d 369:

“Ordinarily there are three situations in which improper argument may be the basis for reversal. The first of which is an argument which is so grossly improper and highly prejudicial as to be ineradicable by proper ruling of the judge. Anderson v. State, 209 Ala. 36, 95 So. 171. Second, is argument which in its cumulative effect creates an atmosphere of bias and prejudice which no remarks by the trial court could eradicate. Blue v. State, 246 Ala. 73, 19 So.2d 11. It differs from the first type of improper argument in that no single remark would be sufficient justification for reversal. Instead, the cumulative nature of the remarks creates an atmosphere of prejudice which requires reversal. Finally and obviously, is prejudicial argument which the judge fails to rule on properly.”

To the objections to the second and fifth part of the argument the court ruled favorably to the appellant. There was no request the remarks be excluded from the jury. These parts of the argument were not so highly prejudicial that their unfavorable influence could not have been eliminated by instructions by the court. There was thus no reversible error in regard to the second and fifth parts of the argument when taken separately. Hipp v. State, 47 Ala.App. 580, 258 So.2d 920.

In Cosby v. State, 269 Ala. 501, 114 So.2d 250, the Supreme Court stated:

“ . . . Counsel for the State and the defendant are allowed considerable latitude in drawing their deductions from the evidence and the propriety of the argument of counsel depends upon the particular issues, facts and atmosphere of each case. . . . ” [Citations omitted.]

The elements of buying etc. stolen property, and thus the basic issues of proof for the offense, are:

“ . . ■ (1) That the goods in question had been feloniously taken and carried away, as charged in the indictment, by some one; (2) that the defendant bought, received, concealed, or aided in concealing these goods, knowing at the time that they were stolen; and (3) that he so bought, received, concealed, or aided in concealing these goods knowing that they were stolen, and not having the intent to restore same to the owner . . ..” [Citations omitted.] Jordan v. State, 17 Ala.App. 575, 87 So. 433.

Since knowledge the goods possessed were stolen is an issue, it is a legitimate subject of argument. Possession of recently stolen property by a person who is unable to satisfactorily explain the possession, gives rise to a presumption the person is guilty of buying etc. stolen goods. Baker v. State, 35 Ala.App. 596, 51 So.2d 376, reversed on other grounds; Character v. State, 51 Ala.App. 589, 287 So.2d 916. Therefore, recent unsatisfactorily explained possession of stolen property also gives rise to a presumption the person in possession knew the goods were stolen. There were thus sufficient facts to support the prosecutor’s argument in part five and it was proper for this reason also.

Since whether appellant concealed the property is in issue, it is a proper subject of argument. The third part of argument can be interpreted as an allegation of further concealment which is relevant argument to the offense charged. Further, the prosecutor does not seem to state this as a fact but as a mere deduction or argument which may be based on the second disappearance of the truck and its being placed in a strip mine pit. Part three of the argument was thus not error. Cross v. State, 68 Ala. 476; Cosby, supra.

There was no clear ruling by the court on the first objection. The best procedure is for the court to make an express ruling in the record. See Zeigler v. State, 52 Ala.App. 501, 294 So.2d 468; Harris v. State, 16 Ala.App. 509, 79 So. 270. A ruling may be determined from the surrounding procedure or circumstances. See Zeigler, supra. However, here, since it is impossible to determine how the jury considered the first part of the argument in light of the court’s statement, we shall consider it to be unfavorable to the appellant.

In the first and fourth parts of argument, it is unclear whether the prosecutor was referring to the initial theft from the Woolco parking lot or the later theft from the used car lot.

In referring to the later theft from the used car lot, it was permissible under the same reasoning given for the propriety of the third part of the argument.

If the first and fourth parts of the argument referred to the initial theft from the Woolco parking lot, it would also be admissible due to the facts and issues of this case. As noted above, permissible argument depends on the issues of the case. Here, knowledge by the appellant that the goods were stolen was in issue. Of course, a thief would know goods he stole were stolen. Here, there were facts from which it could be inferred that appellant was in possession of a recently stolen vehicle. From this possession, the inference he stole the truck could be drawn. Kilpatrick v. State, 43 Ala.App. 667, 199 So.2d 682. The arguments in parts one and four, if considered to mean appellant initially stole the truck from the Woolco parking lot, were proper. Sears v. State, 106 Tex.Cr.R. 219, 291 S.W. 547.

Due to the above, there is no need to consider the cumulative nature of the remarks. Further, the cumulative nature of the arguments was not raised, as such, by any objection or motion.

The prosecutor’s argument does not adequately fall within any of the three categories of Scott, supra, as to warrant reversal.

The facts and issues of this case make it distinguishable from the following cases, where the separate offenses mentioned in argument had no relevance to the issues of the cases and no basis in the facts of the cases: Davis v. State, 20 Ala.App. 463, 103 So. 73 (where the offense was carnal knowledge and the prosecutor in argument accused the defendant of the unrelated offense of being the father of a bastard child); and Whitman v. State, 41 Ala.App. 124, 124 So.2d 275 (in which the appellant was accused of transporting five gallons or more of prohibited liquor and the prosecutor argued he was a “bootlegger,” the peddler and illegal seller of intoxicating liquor, which the court held was irrelevant to the issues and unsupported by the evidence).

We find no prejudicial error in the record.

AFFIRMED.

All the Judges concur.


text:
    Diane YARBROUGH v. CITY OF BIRMINGHAM.
    6 Div. 534.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      Bill Kominos, Birmingham, for appellant.
    W. O. MacMahon, III, Birmingham, for appellee.
   HARRIS, Judge.

Appellant was convicted in the Recorder’s Court of the City of Birmingham for soliciting for prostitution in violation of Section 43.3, General Code of the City of Birmingham, as amended by Ordinance 75-171. The Recorder assessed a fine of $20.00 and costs against appellant and as additional punishment the Recorder sentenced her to 90 days hard labor.

Appellant appealed this conviction to the Circuit Court of Jefferson County and demanded a trial by jury. Upon a trial de novo she was again convicted and the jury assessed a fine of $20.00 against her. As additional punishment the Court sentenced her to 150 days hard labor for the City of Birmingham.

Section 43.3 of the General Code of the City of Birmingham, as amended, reads as follows:

“No person shall solicit, invite or entice any person to have sexual intercourse or participate in any natural or unnatural sexual act for a monetary consideration or other thing of value.”

Appellant was put to trial in the Circuit Court of Jefferson County on the following complaint:

“Comes the City of Birmingham, a municipal corporation, and complains that Diane Yarbrough, within twelve (12) months before the beginning of this prosecution, on to-wit: October 20, 1976, and within the City of Birmingham, or the police jurisdiction thereof, at to-wit: 1400 23rd Street North, apt. F., unlawfully solicited, invited, or enticed Larry Pitts and/or Danny Johnson, a person or persons to have sexual intercourse or participate in any natural or unnatural sexual act for a monetary consideration or other thing or (sic) value, contrary to and in violation of Section 43.3 of the General Code of the City of Birmingham, Alabama, 1964, as amended.”

Appellant filed the following motion to quash the complaint:

“Comes now the defendant Dianne Yarb-rough by and through her attorney of record and moves this honorable court to quash or set aside the complaint filed against her by the City of Birmingham, and as grounds therefor state:
“1. The complaint fails to allege any offense against the State of Alabama or the City of Birmingham.
“2. The complaint is vague and indiffin-ite (sic) as to who this defendant was to have solicited, invited or enticed.
“3. The complaint alleges two possible offenses in one complaint.
“4. The complaint fails to allege that the defendant was over 18 years of age at the time of the commission of the offense and within the jurisdiction of any court other the Juvenile Court of Jefferson County.”

This motion was overruled.

The sufficiency of the evidence is not presented to this Court for review. The facts are undisputed. Appellant did not testify nor did she offer any evidence in her behalf.

The evidence adduced by the City of Birmingham was that on October 20, 1976, Danny Wayne Johnson, a police officer for the City of Bessemer, was called by an officer with the Vice Squad of the City of Birmingham to accompany Officer Larry Pitts to an apartment located at 1400 Twenty-third Street, North, Apartment F. in the City of Birmingham. Pitts was also an officer employed by the City of Bessemer at the time he and Johnson went to the above mentioned apartment but, at the time of appellant’s trial, he was in the employ of the Sheriff’s Department of Jefferson County. Johnson was the only witness who testified for the City and we will summarize so much of his testimony as is necessary to show the offense charged against appellant as laid in the complaint.

Johnson stated that, prior to going to the address at 1400 Twenty-third Street, he and Officer Pitts met Sergeant Holton, Police Officer Paul Nichols and a Ms. Bice who were all members of the Birmingham Police Department assigned to the Vice Detail. He stated that Sergeant Holton gave him and Pitts $100.00 and they split the money between them; that Sergeant Holton also gave Officer Pitts a transmitting device which he strapped around one of his legs. When they arrived at the apartment and knocked on the door they were met by a black woman who invited them into the apartment. They had a conversation with her and she left the room. They waited fifteen or twenty minutes and appellant and another woman came to the apartment. Appellant, the other woman, Officers Johnson and Pitts all went into a back bedroom suite. Appellant then told Johnson that she would commit an unnatural act on him or do anything else he wanted to do for $40.00. Johnson took out his billfold and opened it and appellant took $40.00 from the billfold. Appellant then removed her blouse and blue jeans but still had on her panties. She was not wearing a bra. Johnson then took off his shirt and shoes and was in the process of removing his trousers when Officer Pitts announced that appellant and the other woman were under arrest for “soliciting for prostitution.” Officer Pitts, using the transmitter, said, “Come on up, Paul.” In two or three minutes Officers Holton, Nichols and Bice entered the room, took custody of the women and transported them to the City jail.

There was no motion to exclude the City’s evidence; there was no request for the affirmative charge; there was no motion for a new trial, and no exceptions were reserved to the oral charge of the court. In this state of the record nothing is presented to this Court for review. Ala.Dig.Crim. Law, Key No. 1044(1).

Title 62, Section 654, Code of Alabama 1940, confers on the City of Birmingham the full measure of the State’s police power to provide for the safety, preserve the health, promote the prosperity, improve the morals, orders, comforts and convenience of the inhabitants of the City, and prevent and punish injuries and offenses to the public therein. Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So.2d 196; Cavu Club v. City of Birmingham, 269 Ala. 46, 110 So.2d 307; Holloway v. City of Birmingham, 55 Ala.App. 568, 317 So.2d 535.

It was under this broad police power that the City promulgated Section 43.3, supra, and this ordinance does not supersede or contravene State law. There was no error in overruling appellant’s motion to quash the City’s complaint.

Appellant contends the trial court exceeded its authority in two instances, (1) by reinstating the judgment in the Recorder’s Court and sentencing appellant to four days hard labor for failing to pay the fine and costs in that court, and (2) ordering the State to recover the costs of feeding the appellant while in jail. We are in full accord with these two contentions made by appellant.

Appellant also contends that the trial court was without authority to sentence appellant to an additional term of 150 days hard labor for the City of Birmingham. We disagree with this contention.

In Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64, 66, certiorari denied, 213 Ala. 685, 106 So. 67, the Court held that a “trial de novo” means that the Circuit Court “assumes control of the case afresh or anew with all the powers, privileges, duties, responsibilities, and authority that was vested by law in the recorder while the case was pending in said recorder’s court.” A trial de novo means that the slate is wiped clean and a trial in the Circuit Court is had without any consideration being given to prior proceedings in another court.

When a case is appealed to the Circuit Court for a trial de novo the judgment in the Recorder’s Court is only a step toward the jurisdiction of the Circuit Court and such judgment is of no effect if the Circuit Court makes final disposition of the case. The judgment of the Recorder’s Court is reinstated by the Circuit Court only where the appeal is dismissed. Anthony v. City of Birmingham, 240 Ala. 167, 198 So. 449.

A defendant is not liable for the cost of food while incarcerated. The costs of feeding prisoners confined to jail are payable by the State. Title 45, Section 144, Code of Alabama 1940, as last amended, Ex parte State, 121 Ala. 327, 25 So. 563.

The additional punishment of 150 days hard labor imposed on appellant by the court was authorized by Title 37, Section 455, Code of Alabama 1940, and Title 62, Section 654. of said Code. Guin v. City of Tuscaloosa, supra.

The judgment of the Circuit Court of Jefferson County, to the extent that the judgment of the Recorder’s Court was reinstated and the costs of feeding appellant while in jail were ordered to be recovered, must be treated as surplusage. In all other respects the judgment is affirmed. Osner v. State, 54 Ala.App. 520, 310 So.2d 241, certiorari denied, 293 Ala. 769, 310 So.2d 247.

AFFIRMED.

All the Judges concur.


text:
    Charles Lynn SMITH v. STATE.
    6 Div. 557.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    William W. Rogers, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent here and at nisi prius, entered a plea of not guilty to an indictment for robbery. The jury convicted him and fixed punishment at thirty years imprisonment. A proper judgment is an incident of this appeal.

I

Appellant in his brief asserts that he was denied his constitutional right to a speedy trial. Ala.Const., Art. I, § 6 (1901); U.S.Const., Amend. VI.

We fail to find in the record any motion or other proceeding which indicates that the point was raised at nisi prius in this case. The record fails to show a ruling of the Court. On appeal, this Court is limited to matters properly raised in the trial court. Phillips v. State, 47 Ala.App. 688, 260 So.2d 418(2).

We do find that appellant’s brief shows that a petition for habeas corpus was filed and denied by the trial judge. No appeal was taken to test the ruling of the Court. Facts asserted in the brief of appellant or appellee, which cannot be ascertained from the record will not be reviewed. Lucy v. State, Ala.Cr.App., 340 So.2d 840(3); cert. den. Ala., 340 So.2d 847.

II

Appellant also asserts that the trial ?ourt committed reversible error in receiving into evidence defendant’s inculpatory statement “ . ... WHICH WAS PROCURED BY FORCE, COERCION, THREATS, PERSONAL INJURY . . ” and because accused was not advised “ . . . OF HIS CONSTITUTIONAL RIGHT MORE COMMONLY REFERED (sic) TO AS THE MIRANDA WARNINGS.”

We have examined the record and find that defendant’s rights were observed and protected by the Court. The hearing on the voluntariness of the statement was held outside the presence of the jury. Evidence was adduced at the hearing which supported the State’s contention that the defendant was given his Miranda warnings, and that the statement was voluntary. Defendant testified to the contrary. The Court decided the issue in favor of the State. We will not disturb its ruling. The same evidence in substance was adduced before the jury. However, defendant did not take the stand before the jury. The hearing and proceedings before the jury comported with the requirements of the law. Wallace v. State, 290 Ala. 201, 275 So.2d 634.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge. BOOKOUT, Judge,

text:
    Kenneth CANTRELL v. STATE.
    6 Div. 614.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      W. Mark Anderson, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

In 1964 the appellant was indicted by a grand jury of Marion County for first degree murder. The victim was a police officer for the City of Hackleburg, Alabama. A trial in November of 1964 resulted in a mistrial. The following year the appellant was retried and found guilty. Punishment was fixed by the jury at life imprisonment. At trial and on appeal the appellant was represented by the highly respected firm of Beddow, Embry, and Beddow of Birmingham, Alabama.

In 1968, the Alabama Supreme Court dismissed the appeal of the appellant on the grounds that the record filed on appeal contained no certificate of the clerk of the trial court as to the completeness and correctness of the transcript as required by statute, Code of Alabama 1940, Title 7, Section 767, and Supreme Court Rule 24. See Cantrell v. State, 283 Ala. 225, 215 So.2d 440 (1968). In 1969 the Supreme Court of the United States refused to review the action of the Alabama Supreme Court and denied a petition for a writ of certiorari. Cantrell v. Alabama, 394 U.S. 950, 89 S.Ct. 1290, 22 L.Ed.2d 485 (1969).

In April of 1976, the appellant’s petition for a writ of habeas corpus alleging ineffective assistance of counsel on appeal was denied by the United States District Court for the Northern District of Alabama. Cantrell v. Alabama, (No. Dist. Ala.) C.A. 76-A-0203-J, April 12, 1976. Appeal was taken to the United States Court of Appeals for the Fifth Circuit and on February 4, 1977, that court reversed the denial of the writ of habeas corpus by the District Court and ordered that the writ be issued to provide the appellant with an out-of-time appeal or release. Cantrell v. Alabama, 546 F.2d 652 (5th Cir. 1977). Certiorari was denied by the Supreme Court of the United States.

On July 26, 1977, the Supreme Court of Alabama, pursuant to the dictates of the federal appellate court, set aside its order of March 14, 1968, ordering the record on appeal stricken and the appeal dismissed. The record was restored, the appeal reinstated and the cause was ordered to be transferred to this court for a consideration of the appeal on its merits.

The passage of time and the mechanics of the wheels of justice have added nothing to this appeal. For the reasons set forth below and after a careful consideration of the merits and record of this cause, we are of the firm conviction and opinion that the judgment of the trial court is due to be upheld and affirmed.

Only two issues are raised on this appeal: (1) The admissibility in the state’s case in chief of the testimony of the accused at a former trial and (2) the adequacy of the trial court’s oral charges to the jury on self defense.

The evidence presented by the state supports the finding that the appellant murdered Officer Taylor by shooting him with a shotgun while Taylor was standing on the road in front of the appellant’s house on fhe night of June 20, 1964. The appellant attempted to prove that he acted in self defense and shot the officer only after Taylor drew his weapon.

I

While raising the issue that the trial court erred in allowing the state to introduce the testimony of the appellant taken in the first trial, appellate counsel concedes that the trial court was on sound footing in allowing the admission of the transcript. Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973). In that case this court adopted the general rule that a defendant who voluntarily takes the witness stand in his own behalf and testifies without asserting his privilege against self incrimination waives the privilege as to the testimony given and such testimony may be used against the defendant in a subsequent trial for the same offense even if he does not take the stand at the second trial.

II

The issue is also raised that the trial court failed to adequately charge the jury on the elements of self defense.

The appellant alleges that it was error for the trial court to deny the following requested charge.

“37. The Court charges the jury that if defendant shot deceased under a bona fide belief that he was in impending danger of limb, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.”

The refused charge is a proper statement of the law and has a long history of approval beginning with Kennedy v. State, 140 Ala. 1, 37 So. 90 (1903); Grady v. State, 51 Ala.App. 143, 283 So.2d 453 (1973); Abercrombie v. State, 33 Ala.App. 581, 36 So.2d 111 (1948). However the refusal of a charge, though a correct statement of the law, is not a cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge. Title 7, Section 273, Code of Alabama 1940. The application of this rule to the instant charge is found in Grady, supra. Charges on self defense are properly refused where they were fairly and substantially covered in the oral charge of the trial court. Mitchell v. State, 53 Ala.App. 58, 297 So.2d 383, cert. denied, 292 Ala. 742, 297 So.2d 388 (1974).

In pertinent part the trial court charged as follows:

“That he must be in such grave danger of suffering great bodily harm or of losing his own life, or that from the appearance of things that a reasonable man would be justified in so believing, and that he must have no reasonable avenue or means of escape. Now, those three elements ordinarily must exist for a person to be able to say that he acted in self defense or in defense of his own life or safety, the freedom from fault in provoking the difficulty, the danger of suffering great bodily harm or of losing his own life, and the duty to retreat. * * *, you must be reasonably satisfied from the evidence of the defendant that he was either in danger of losing his own life or suffering great bodily harm, or that from the appearance of things that such was the condition, the law says that a man is entitled to act upon the appearance of things as they would appear to a reasonable man at the time. In other words, it does not follow that hindsight to look back with a cold eye over what was actually going on and say, well, he was not actually in any danger or any such danger, but it allows a man to act on how things appear to him at that particular time and place, as to how a reasonable man would act under the same circumstances if he were confronted with them if he honestly believed to be in such grave danger, and also he is entitled to act on the appearance of things as to withdraw safely from the difficulty, because that is not recognized as a. cowardly doctrine, * * * Again, he is entitled to act upon the appearance of things. Did it appear to him that he could safely do so without increasing his own peril.”

In our opinion this and other portions of the trial court’s oral charge fairly and adequately covered other charges requested by the appellant.

We have carefully reviewed each and every action of the trial court contested on appeal. In addition, we have reviewed the entire record as required by law and scrutinized all rulings adverse to the appellant. Code of Alabama 1975, Section 12-22-240. We are of the opinion that the judgment of the trial court is due to be affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., dissents.

BOOKOUT, Judge,

dissenting:

“An appeal is not a matter of vested right, but by the grace of statute, and must be perfected pursuant to the time and manner prescribed in the controlling statute, and if the requirements of such statute are not met, the appeal must be dismissed. . . .” LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581, 583 (1972) cert. denied 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299.

For numerous citations to the same effect, see 2 Alabama Digest, Appeal and Error ©=»1.

The federal courts may entertain petitions for and grant writs of habeas corpus. They may order the release of persons from confinement where they find that the State has failed to abide by certain constitutional provisions in the trial and confinement process. The federal courts may not, however, amend the Alabama statutory law by granting an “out-of-time appeal.”

There is no such thing in Alabama law as an out-of-time appeal. Ellison v. State, 55 Ala.App. 50, 312 So.2d 632 (1975); Ex parte Mitchell, 54 Ala.App. 203, 306 So.2d 296 (1974) cert. denied 293 Ala. 767, 306 So.2d 298.

      . Those other requested charges refused by the trial court on which the appellant predicates error are:
      “28. 1 charge you, gentlemen of the jury, that if the circumstances attending the shooting of the deceased by the defendant were such as would justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not retreat without adding to his peril, and defendant believed such to be the case, he was justified in shooting the deceased, although he was not in actual danger, and retreat would not have added to his peril, and, if the defendant acted under such circumstances, the burden of showing that the defendant was not free from fault in bringing on the difficulty is on the State.
      “30. I charge you, gentlemen of the jury, that if the circumstances attending the death of which the defendant is charged were such as to justify the defendant in a reasonable belief that he was in danger of great bodily harm, and he honestly believed such to be the case, he could act in self-defense though, as a matter of fact, he was not in actual danger, and the burden of showing that defendant was not free from fault in bringing on the difficulty is on the State.
      “32. While there is already invoiced (sic) as an element of self-defense the fact that deceased was in the act of, or appeared to be in the act of doing the defendant serious bodily harm, the Court charges the jury that in order to sustain that part of the claim of self-defense it is not necessary that deceased should in fact have been about to take the life of the defendant, but if the defendant reasonably and honestly entertained the opinion and was justified in believing from all the facts and circumstances surrounding him at the time that it was the purpose of deceased to do him serious bodily harm and that he had the present ability to carry that purpose into execution, that part of self defense is sustained.
      “33. The defendant has the right to act upon appearances and to govern himself accordingly, and if it appears to him to be reasonably necessary, in order to protect himself from deceased, that he killed the said deceased, it is immaterial whether, in truth and in fact, the deceased was capable of doing the defendant serious bodily harm, or that it was his intention to do so.”


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Frank E. FREEMAN, Respondent.
    No. 52142.
    Supreme Court of Florida.
    Nov. 30, 1977.
    G. Lynn Kilpatrick, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This matter if before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On August 3, 1977, The Florida Bar filed its Petition alleging:

“1. During November 1973, Frank E. Freeman represented Al and Blanche Lil-ienfeld, as their attorney, in the sale of their restaurant franchise to Louis and Evelyn Friedland, pursuant to which the Lilienfelds would receive a mortgage from the Friedlands.
“2. Mr. Freeman received for his services in the above-described transaction a fee in the amount .of $500.
“3. In addition, Mr. Freeman received from the Lilienfelds $233 for documentary stamps for the above-described mortgage and another $200 for preparing a new set of corporate books and for purchasing new stock certificates.
“4. Mr. Freeman subsequently misplaced the mortgage document, failed to record it with the clerk of county court, and did not attempt to find it until after a malpractice suit was filed against him by the Lilienfelds.
“5. Between the 1973 closing and the malpractice suit filed by the Lilienfelds, the Friedlands obtained and recorded a second mortgage on the restaurant franchise.
“6. Because of Mr. Freeman’s failure to record the first mortgage, it would be necessary for the Lilienfelds to initiate court proceedings to establish the priority of their mortgage should the second mortgage on the restaurant franchise default.
“7. Mr. Freeman did not give the corporate books to either the Lilienfelds or the Friedlands.
“8. Mr. Freeman repeatedly avoided demands by the Lilienfelds and their attorney, Howard L. Kuker, that Mr. Freeman return to the Lilienfelds their papers and property relating to the above-described real estate transaction.
“9. During 1973, Mr. Freeman agreed to represent Charlene McKeever of Duluth, Minnesota, in prosecuting a claim in the courts of Dade County, Florida.
“10. The above-described claim was dismissed by the court in 1973.
“11. Mr. Freeman neglected to inform Charlene McKeever that her claim had been dismissed for a period of two years after its dismissal.
“12. Pursuant to a complaint filed by Charlene McKeever with The Florida Bar, investigative proceedings were held on July 23,1975, by the Eleventh Judicial Circuit Grievance Committee, Committee “K.”
“13. On July 25, 1975, the Eleventh Judicial Circuit Grievance Committee, Committee “K” found probable cause justifying further disciplinary proceedings against Mr. Freeman in the matter involving Charlene McKeever.
“14. Pursuant to a complaint filed by A1 Lilienfeld with The Florida Bar, investigative proceedings were held on December 18, 1975, by the Eleventh Judicial Circuit Grievance Committee “K.”
“15. On December 29, 1975, the Eleventh Judicial Circuit Grievance Committee “K” found probable cause justifying further disciplinary proceedings against Mr. Freeman in the matter involving the sale of the Lilienfelds’ restaurant franchise.
“16. Thereafter, the Board of Governors of The Florida Bar authorized staff counsel to tender to Mr. Freeman a conditional guilty plea for consent judgment for a public reprimand and payment of costs in the amount of $253.00.
“17. Staff counsel subsequently submitted a conditional guilty plea to Mr. Freeman, which Mr. Freeman agreed to execute.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Frank E. Freeman, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of two-hundred and fifty-three dollars ($253) are hereby taxed against the Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Ronald E. HOLMES, Respondent.
    No. 51861.
    Supreme Court of Florida.
    Dec. 2, 1977.
    Larry Gibbs Turner, Bar Counsel, Gaines-ville, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

We have before us an original complaint by The Florida Bar against Ronald E. Holmes, one of its members. The referee in the disciplinary proceedings instituted by the Bar found respondent Holmes guilty of technical, but not willful, violations of the Integration Rule of The Florida Bar and disciplinary rules of the Code of Professional Responsibility. The violations stemmed from a loosely constructed agreement Holmes had with clients for the management of a trust account and payment of legal fees. In his report the referee recommends that Holmes be publicly reprimanded for mishandling the trust account and the trust monies. Holmes has not filed a response in opposition to the referee’s findings or recommendation.

The recommendation of the referee appearing to be proper for disposition of this cause, Ronald E. Holmes is hereby publicly reprimanded and ordered to pay costs incurred in these proceedings by the Bar of $2,206.20.

It is so ordered.

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


text:
    Dr. Ed FARRAR and Schering Corporation, Petitioners, v. EWELL ENGINEERING & CONTRACTING COMPANY, Charles M. Moore and John Lyles, Respondents.
    No. 47265.
    Supreme Court of Florida.
    Dec. 8, 1977.
    James C. Rinaman, Jr., and Bill L. Bryant, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for petitioners.
    William B. Wilson and Walton B. Hallow-es, Jr., of Maguire, Voorhis & Wells, Orlando, for respondents.
   PER CURIAM.

A petition for writ of certiorari to the District Court of Appeal, Fourth District, was granted in this cause.

We now remand this case to the District Court for reconsideration in light of our recent decision in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla., filed July 28, 1977), rehearing denied, November 28, 1977.

It is so ordered.

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


author: ENGLAND, Justice.

text:
    UNITED STATES STEEL CORPORATION, Petitioner, v. Gerald GREEN and the Florida Department of Commerce, Industrial Relations Commission, Respondent.
    No. 50901.
    Supreme Court of Florida.
    Dec. 8, 1977.

      William J. Smith, Orlando, for petitioner.
    Gabriel H. Blumental of Blumenthal & Schwartz, Titusville, for respondent.
   ENGLAND, Justice.

By petition for a writ of certiorari, United States Steel Corporation has asked us to reverse an order of the Industrial Relations Commission approving a finding of permanent total disability and an award of attorney’s fees in the amount of $13,000. For the reasons expressed below, we grant the petition and reverse both determinations of the Commission.

Gerald Green suffered a job-related injury and filed a claim seeking, among other things, temporary total or permanent partial disability benefits and “all other benefits available under the Workmen’s Compensation Act.” After hearings in 1973 at which U. S. Steel contested the claim, the judge of industrial claims found that Green had not reached maximum medical improvement. He awarded temporary total disability benefits, together with an attorney’s fee of $1,200. On review the Industrial Relations Commission affirmed Green’s entitlement to benefits but concluded that he had reached maximum medical improvement. The Commission remanded the matter with instructions for the judge to fix the date when temporary disability had terminated, and to award benefits accordingly. On remand the judge heard testimony only on the issue of attorney’s fees. He then entered a new order to comply with the Commission’s directive, setting the date on which maximum medical improvement had been reached. The judge went further, however, and ruled that Green was permanently and totally disabled. He also awarded an attorney’s fee of $13,000. After one remand for clarification the Commission reviewed and affirmed both of these conclusions without elaboration.

U. S. Steel’s basic complaint is that total disability benefits were awarded in a proceeding where it defended only against a claim for either temporary total or permanent partial disability benefits.' The corporation asserts that the judge’s conversion of that claim into the more encompassing award results in U. S. Steel’s never having had an opportunity to challenge Green’s unemployability, a prerequisite to any finding of permanent total disability.

Green counters U. S. Steel’s complaint by asserting that in fact there was ample notice, from at least two sources, that total permanent disability benefits could be awarded at any stage of the proceedings. First, the Florida Industrial Commission’s claim form served on all employers recites that employees’ claims will not be limited to the benefits initially sought. Second, Green points out that his application expressly claimed “all other benefits ' available under the Workmen’s Compensation Act.” We are compelled to agree with U. S. Steel on the question of notice.

Neither form of notice given by Green was adequate to apprise U. S. Steel of “the nature of [Green’s] claim” for permanent and total disability benefits, as required by Section 440.19(l)(c), Florida Statutes (1973). As to the claim form notice, Green would have us read the “boilerplate” on the Commission’s printed form as if additional benefits become available without notice or hearing. The form in no way carries such an import. As to Green’s specific claim, it seems more likely that the present assertion of notification intent is a consequence of accident rather than design. A fair reading of the claim suggests that the “other benefits” sought by Green’s generic recitation were incidental benefits under the Act, of lesser dignity than costs. Consistent with this reading of the claim, Green’s prosecution of his claims at the initial hearing gave no hint that the “catch-all” reference in his claim was designed to put permanent total disability benefits in issue.

More significantly, if either of Green’s assertions were engrafted into the workmen’s compensation law, every proceeding would require an employer to prepare and present a defense against a claim of permanent total disability, no matter how minor or temporary the injury giving rise to the claim. Moreover, employers could never agree to lesser awards or the need for temporary benefits at a first hearing, lest they later find themselves saddled with liability for permanent total disability benefits against which they had never defended.

Regarding the increase of attorney’s fees from $1,200 to $13,000, it is undisputed that Green’s counsel performed no uncompensated services between the time of the judge’s initial order awarding temporary total disability benefits and the subsequent award of permanent total disability benefits. Obviously the only basis on which the judge could have enlarged the award was by reference to the increase in benefits to the claimant from the new award for permanent total disability. U. S. Steel concedes that higher fees might be appropriately awarded where greater benefits are obtained for a claimant, but it suggests that an increase of these proportions is wholly unjustified. Again, we are compelled to agree with the company’s position.

We have previously condemned the practice of computing fee awards as a percentage of the ultimate benefits awarded to the claimant. An attorney’s fee is, after all, supposed to represent compensation for services rendered, and although the Code of Professional Responsibility recognizes that “results obtained” may be taken into account, it was capricious to find that identical services might be worth $1,200 or $13,000 depending upon the mathematics of a workmen’s compensation award. In setting a proper fee on remand, and in future cases, the judges and the Commission will want to scrutinize testimony and affidavits relating to attorney’s fees more carefully, to avoid the imbalance between services and results which is so patent here.

The order of the Industrial Relations Commission is vacated, and the case is remanded for further proceedings consistent with this opinion.

BOYD, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, Acting C. J., dissents.

      . We have jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const., and § 440.27(1), Fla.Stat. (1975).

      . See, e. g., International Minerals & Chem. Corp. v. Tucker, 55 So.2d 720 (Fla.1951).

      . FIC Form 17, entitled “Application for Hearing on Claim”, bears the following statement on the reverse side:
      “This statement will not limit the scope of the claim if it develops the claimant is entitled to further or additional benefits.”

      . The claim sought:
      “Temporary total disability, permanent partial disability, penalties, interest, travel expenses, reimbursement for medical expenses, attorney’s fees, costs and all other benefits available under the Workmen’s Compensation Act.”

      . Green’s counsel was separately compensated for his work in defending U. S. Steel’s appeals to the Industrial Relations Commission.

      . See, e. g., Heavy Constructors, Inc. v. Dericho, 259 So.2d 489 (Fla.1972). In Lee Engineering & Constr. Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968), we said:
      “[T]he nature of the Workmen’s Compensation Law is such that the contingent percentage basis is not appropriate.”

      . Fla. Bar Code Prof. Resp., D.R. 2-106(B)(4).

      . Attorney’s fees awarded in workmen’s compensation cases are, of course, required to be “reasonable”. § 440.34(1), Fla.Stat. (1975). In an affidavit submitted before the claimant’s award was revised, Green’s attorney stated that, in his opinion, a reasonable fee for his services would be $2,500.

      . This is not the first case in which we have remanded a case to the Commission on the ground of an excessive fee award. See R. H. Coody & Assoc., Inc. v. Shelton, 352 So.2d 852, Ho. 50,806 (Fla., filed Sept. 29, 1977). The Legislature’s recent amendment of § 440.-34, Fla.Stat. (1975), by Ch. 77-290, § 9, Laws of Florida, to provide a “sliding scale” set of guidelines for computing fees, may eliminate the need for remands in future cases. We note that if the new statutory method had been applicable in the present case, an attorney’s fee would have been set at just under one-half of the amount actually awarded.