text:
    A. M. ODOM et al. v. L. E. LINSEY et al.
    77-571.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      S. J. Laurie, Chatom, for appellants.
    Wyman 0. Gilmore, Grove Hill, for appel-lees.
   JONES, Justice.

This appeal, from a judgment adverse to contestants in a Will contest case, raises a single dispositive issue: Whether a general exception (objection) to a refused requested jury instruction sufficiently complied with ARCP 51 to invoke appellate review? In the narrow context here presented, we answer in the negative and affirm.

The charge in question reads as follows:

“If the jury believe from the evidence that the instrument offered for probate as the will of Emma Lee Odom is the result or product of undue influence exercised by Lamon E. Linsey, Edna Lee Lin-sey, Lamon Tyler Linsey or any other person over Emma Lee Odom, you should find for the Contestants.” (Emphasis added.)

Initially, we observe that the use of the emphasized word “believe” may of itself require an affirmance of the ruling of the trial Court in refusing the requested instruction. As to the use of “believe” versus “reasonably satisfied from the evidence,” see Moody v. Stanfield, 292 Ala. 185, 291 So.2d 301 (1974).

We deem it provident, however, not to ground our holding on the validity vel non of the word “believe.” Assuming without deciding, then, that the charge is an accurate statement of the law, was its refusal reversible error under the circumstances of the instant case? We feel constrained to base our holding upon a construction of Rule 51; and this for the reason that it has come to our attention that several recent cases in this area have tended to cause some problems of interpretation: Hosey v. Sei-bels Bruce Group, South Carolina Insurance Company, et al., 363 So.2d 751 (Ala.1978); Feazell v. Campbell, 358 So.2d 1017 (Ala. 1978); Jones v. Baggett Transportation Company, 347 So.2d 105 (Ala.1977); Dees v. Gilley, 339 So.2d 1000 (Ala.1976); and Gardner v. Dorsey, 331 So.2d 634 (Ala.1976). See also Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977).

Two sentences from Rule 51 are here pertinent:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court.”

Gardner and Hosey held that an objection to the refused (or given) charge without specifically stated grounds, under the particular circumstances of each of these cases, sufficiently preserved the assigned error for review. Feazell makes clear, however, that the holding in Gardner (as well as the subsequent holding in Hosey) in no way altered the “grounds” requirement of the Rule, only that the Rule would not be so technically construed as to obliterate its spirit. Dees and Jones (as well as Feazell) commented on the appellant’s failure to request explanatory or complementary charges. On their face, these cases may appear to ignore the second sentence of the above-quoted portion of Rule 51. In fact, they neither ignore nor weaken the intended effect of the Rule.

The true spirit of this portion of the Rule can be gleaned only by reading the two sentences together and with particular emphasis on the word “additional” in the second sentence. When so read, its meaning is clear: The trial judge’s giving or refusal to give any charge, oral or written, will not be reversed on appeal absent an objection with grounds assigned therefor. But where the ground of objection is “the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge,” and the specifics of such grounds are made known to the court, submission of additional explanatory charges (unless requested by the court) are not necessary. Its obvious purpose is to eliminate the excesses of the pre-ARCP practice: Under prior practice, on the one hand, the trial judge could be put in error for relatively trivial mistakes without ample opportunity to review and revise his ruling; and, on the other hand, the appellate courts, in an offsetting effort, declined to review an alleged misleading or incomplete charge unless counsel tendered an explanatory or complementary charge— at best, an impractical and, at worst, an impossible requirement.

An analysis of Jones, Dees and Feazell, within the context of the full record in each case, reveals without exception that the Appellant failed to comply with the first part of this Rule. That is to say, the observation in each of these cases that no explanatory charge had been requested was in the context of the failure of Appellant to assign grounds specifying wherein the complained of given charge was misleading, confusing or incomplete.

The operative spirit of this portion of Rule 51 may be summarized as follows: While the aggrieved party is required to inform the trial judge of the basis for his objection to any portion of the court’s instruction to the jury, upon the appellant’s failure to so assign grounds (if the grounds are not implicit in the objection), the appellate court may inquire whether such defi-cíency was supplied by requested explanatory charges. If Appellant does neither, he reserves nothing for review.

We turn now to an application of this Rule to the issue here presented. A careful review of the record discloses that this is a classical case for strict enforcement of the “grounds” requirement of the Rule. At the beginning of trial, the Court inquired of Contestants’ counsel whether the evidence of undue influence would be limited to Lamon Tyler Linsey, the chief beneficiary under the Will. Counsel responded in the affirmative with the qualification that he reserved the right to amend the pleading to meet the evidence. During arguments of counsel, the Appellees objected to Appellants’ argument concerning persuasion on the part of Mr. and Mrs. Linsey. The Court sustained, reminding counsel of his earlier agreement to limit this evidentiary issue. Counsel then offered to amend his pleading; whereupon the Court asked counsel whether he would be satisfied if the Court included “others” (alleged to have exercised undue influence) in his oral charge to the jury. To this inquiry, counsel for Contestants responded in the affirmative. Additionally, at the conclusion of the Court’s instruction to the jury as agreed, counsel for contestants stated that he was satisfied with the Court’s oral charge.

Appellants now contend that they were prejudiced by the trial Court’s refusal to give the requested instruction in that this refused charge named specifically the persons alleged to have exercised undue influence whereas the Court’s oral instruction specified only “Lamon Tyler Linsey and/or others.” The office of the “grounds” requirement is to point out the very thing that is absent in the record before us. The contention now made on appeal was not made by way of assigned grounds for counsel’s exception (objection) to the trial Court’s refusal of the requested charge. The trial Judge had every reason to believe that his oral charge was adequate and to the Contestants’ satisfaction.

Under these circumstances, to allow Appellants to assign as error the failing to give the written instruction in question without stating the grounds of their objection would be violative of both the letter and the spirit of Rule 51, ARCP.

AFFIRMED.

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

      . For the purpose of addressing the issue urged by Appellant, we have also pretermitted consideration of Appellees’ contention that the subject matter of the requested charge was fully and accurately covered by the court’s oral charge.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronald E. McCASKILL v. TEXACO, INC.
    77-664.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    William H. Saliba, Mobile, for appellant.
    David W. Green, Mobile, for appellee.
   PER CURIAM.

To prevail on appeal, under well-established rules of review, it is incumbent upon the aggrieved party to show manifest error below prejudicial to the Appellant’s substantial rights. Having carefully considered the entire record on appeal, along with the briefs and arguments of counsel, we find that the Appellant has not met this burden.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Darrell Bernard WALKER v. STATE of Alabama.
    77-670.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Fred K. Granade, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State of Alabama.
   BLOODWORTH, Justice.

This is an appeal by a juvenile from an order transferring his case from the Juvenile Court of Baldwin County to the Circuit Court for criminal prosecution as an adult. We affirm.

On June 16, 1978, appellant, Darrell Bernard Walker, then 17 years old, was arrested upon a delinquency petition charging him with first degree murder in the death of Charles Phillips who was shot with a pistol. On June 22, 1978, counsel was appointed to represent him. The following day the attorney filed a motion to have appellant released from custody. The motion for release was denied after a hearing on June 26, 1978. A hearing was held on June 28, 1978, before Judge Phyllis S. Nes-bit, Juvenile Court Judge, Baldwin County, on motion of the District Attorney to transfer appellant to the Baldwin County Circuit Court for criminal prosecution. On June 30, 1978, two days after completion of the testimony, Judge Nesbit entered an “Order of Transfer” holding that appellant should be transferred to the Baldwin County Circuit Court and that probable cause existed to believe the allegations were true and correct.

The record includes the testimony of Betty Rockstall, Juvenile Probation Officer, and her report which was made after a background investigation of appellant. Ms. Rockstall concluded that the best interest of the child and the community would be served by transfer of the case to circuit court. In addition, the record shows that statements had been made by the appellant’s two accomplices, one of whom implicated appellant in the crime, stating that appellant fired the fatal shot. Moreover, the record discloses that a weapon, believed to have been stolen by appellant from relatives, was the same type weapon used in the murder. Furthermore, a vehicle seen at the scene of the crime was similar to a car in which an accomplice had seen appellant.

The state has filed a motion to dismiss the appeal as “premature” under Rule 28(B), A.R.J.P. Under Rule 28(A)(1), A.R. J.P., an appeal from an order transferring a child for criminal prosecution shall be to the appropriate appellate court “if an adequate record or stipulation of facts is available and the right to a jury trial has been granted to or waived by all parties entitled thereto.” There is an adequate record in this case and the “comment” states that the “right to a jury trial in this rule applies to cases arising from jurisdiction of minors or adults as provided in Section 5-109, Act No. 1205, Acts of Alabama, 1975 Regular Session,” [now § 12-15-31, Code of 1975]. The appeal was properly made pursuant to Rule 28(A)(1), A.R.J.P., and is not subject to the motion to dismiss.

Appellant contends for reversal: (1) that there was no probable cause for the Baldwin County Juvenile Court to find that appellant committed the offense and, (2) that the uncorroborated statements of accomplices are insufficient for a finding of probable cause, citing § 12-21-222, Code of 1975.

That some of the testimony presented at the transfer hearing was hearsay does not preclude a finding of probable cause. The strict rules of evidence do not apply in a probable cause hearing. We expressly so held in the recent juvenile transfer case of Vincent v. State, 349 So.2d 1145 (Ala.1977):

“It has long been recognized that the strict rules of evidence do not apply in a probable cause hearing. In Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), we noted:
“ ‘The United States Supreme Court, in several very recent decisions, has written that there is a great difference between the rules governing probable cause hearings . . . and those governing the trial itself.’ ”

The provisions of § 12-21 — 222, Code of Alabama, have been expressly held to be inapplicable to probable cause hearings on motion to transfer juveniles to the criminal division of the circuit court, there to be dealt with as adults. Thus, uncorroborated testimony of an accomplice of defendant in a transfer hearing is not in itself an insufficient basis for a finding of probable cause to believe the allegations against appellant are true. Vincent v. State, 349 So.2d 1145 (Ala.1977).

We have read the record and think there is a sufficient showing of probable cause so as to authorize the transfer of appellant to circuit court for trial as an adult.

AFFIRMED.

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

      . “A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”


author: FAULKNER, Justice.

text:
    Sharon COOPER v. John REAVES.
    77-701.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Earl D. McNeal, Huntsville, for appellant.
    Bibb Allen, of London, Yancey, Clark & Allen, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment holding that a counterclaim was barred by the statute of limitations contained in § 6-5-482 Code of Alabama 1975. We reverse.

Sharon Cooper filed a medical malpractice suit against Dr. John Reaves. This suit was voluntarily dismissed by Cooper, November 29, 1977. On February 17, 1978, Dr. Reaves filed suit against Cooper alleging malicious prosecution, and claiming money due him by her on open account. In response to the Reaves suit, Cooper filed a counterclaim alleging Reaves “breached a contract” to examine and treat her in a reasonable and proper manner, thereby causing her injury and expense. Reaves contends the counterclaim is barred by the statute of limitations. We disagree.

While counterclaims in the nature of a set-off may be barred by the applicable statute of limitations, counterclaims in the nature of recoupment are not. This rule prevailed under our former system of pleading, and has not been changed by the adoption of the Rules of Civil Procedure, where recoupment is treated as a compulsory counterclaim under Rule 13(a). Campbell v. Regal Typewriter Co., Inc., 341 So.2d 120 (Ala.1976). To constitute recoupment, and thereby escape the bar of the statute of limitations, a counterclaim must arise out of the same transaction as the plaintiff’s claim. Set-off, on the other hand, need not arise out of the same transaction or contract. Scroggins v. Alabama Gas Corporation, 275 Ala. 650, 158 So.2d 90 (1963). Here Cooper’s counterclaim for “breach of contract” clearly arises out of the same transaction as Reaves’ claim on open account, since the contract allegedly breached by Reaves is the same contract which Reaves claims Cooper has not paid. Consequently, the counterclaim was not barred by the statute of limitations.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    Helen Delores Abbott McGugin ELMORE v. Woodie Luther ELMORE.
    Civ. 1531.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.
    Rehearing Denied Oct. 11, 1978.
    Thomas E. Bryant, Jr., of Gaston, Bryant & Gaston, Mobile, for appellant.
    Ralph Loveless, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals and contends that the trial court made an award of alimony to the husband. We disagree and affirm.

Viewing the trial court’s action with the attendant presumption of correctness, the record reveals the following: The parties were married in 1964 and separated in 1975. No children were born of the marriage. Both parties were employed during the marriage. The parties purchased a home and later in 1971, they purchased, jointly, forty acres of land. The purchase price for the forty acres was $20,000.

Thereafter, in 1975, according to the husband’s testimony, the husband borrowed approximately $900 from his wife. He signed what he perceived to be a note. However, the instrument which the husband in fact signed was a warranty deed, conveying to the wife the forty acres of land. The wife recorded the deed and upon repayment of the loan refused to reconvey the property to the husband.,

The trial court in its decree ordered the husband to convey to the wife his interest in the home. Additionally, the wife was awarded a sum of money as alimony in gross. The wife and husband were awarded certain personal property.

In addition to the above, the wife was required to convey to the husband an undivided one-half interest in the forty acres of land. It is this award that the wife contends is in effect an award of alimony to the husband, which is impermissible. See Bailey v. Bailey, Ala.Civ.App., 345 So.2d 304 (1977).

We do not agree with able counsel for the wife that the trial court’s action is an award of alimony to the husband.

It has long been the law of this state that in a divorce action, a court may grant full collateral relief, both legal and equitable, between a husband and wife concerning their individual property rights. Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967); Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert, denied, 287 Ala. 740, 249 So.2d 860 and cert, denied, 287 Ala. 740, 249 So.2d 861 (1971). This is so in order that the decree will settle all controversies between the parties as to divorce, alimony and property rights. Roberts v. Roberts, 247 Ala. 302, 24 So.2d 136 (1946).

In this instance, in view of the evidence as indicated above, we find no reversible error in the trial court’s division of property. The trial court, among other things, apparently considered that the warranty deed to the wife was security for the repayment of the $900 debt owed by the husband to the wife, and further that the husband had repaid this loan.

The trial court is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: TYSON, Judge. BOOKOUT, Judge, TYSON, Judge.

text:
    Eugene PASCHAL, alias v. STATE.
    7 Div. 577.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Rehearing Denied May 30, 1978.

      William D. Hudson and William R. Willard, Jr., Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

On Saturday, April 2, 1977, Michael’s Jewelry Store in Gadsden, Alabama, was robbed. This robbery also involved several employees and customers within the store at the time of this incident.

In June of 1977, the Grand Jury returned five indictments, each charging the appellant with the robbery of different persons within the store. All five indictments were consolidated for trial at the request of the appellant, and the trial jury was instructed to return separate verdicts in each case. Each found the appellant guilty, as charged, and fixed punishment at ten years imprisonment in each case. The trial court then set sentence accordingly in these cases to run concurrently.

Ronald Thomas testified that he was the watch repairman and manager of Michael’s Jewelers, located in Etowah County, Alabama, on the date in question. He stated that, around 9:00 a. m., a black male came in the store and inquired about picking up a watch. Mr. Thomas said that he went to the back of the store to look for this watch and noticed that the man had followed him to the rear of the building. He stated that, when he turned around, the man was holding a pistol on two female employees in the front part of the store. The robber forced everyone to the back of the store where they were required to completely undress. Then the robber required that everyone’s hands be tied behind their backs. Mr. Thomas stated that he remained in the back room, along with two female employees and several customers, for approximately twenty minutes. He testified that about $68,-000.00 worth of jewelry was missing from the store when he and the other victims came out of the back room. On cross-examination, Thomas testified that the appellant was not the man who robbed him that day.

Marie Gilbert stated that she was employed by Michael’s Jewelers on April 2, 1977. A black male came to the store and pulled a gun on her and forced each person therein to go to the back of the store. She indicated that everyone was instructed to undress, which they did, and the black man either tied their hands behind their backs or had other victims do so. Mrs. Gilbert related that $33.00 was missing from her purse when she came out of the back room, approximately thirty minutes later.

Sherry Teet testified that she also was employed by Michael’s Jewelers on April 2, 1977. She, too, indicated that a black male came in the store, pulled a gun out of a black bag, and forced everyone to go to the storeroom in the rear of the building. The robber instructed everyone to take off their clothes, and he forced her to tape Mrs. Gilbert’s and Mr. Thomas’ hands behind their backs. Then, she testified, he forced her to go to the front of the store and fill a suitcase with watches. During this time, the black male robber was emptying trays of rings into a pillowcase. Also, she stated, this man took $27.00 from her purse.

Clyde Tarvin testified that, on April 2, 1977, around 9:20 a. m., he was in Michael’s Jewelry Store. He stated that a man pulled a gun on him, took $200.00 from his wallet, and forced him to undress in the back room.

Roberta Harville testified that she was employed by Michael’s Jewelers on April 2, 1977. She stated that, on Friday, April 1, 1977, she noticed the appellant and another black male walking up and down the sidewalk in front of the jewelry store. The two men would stop in front of the store, look in through the glass window, and then walk away. This continued for approximately ten or fifteen minutes.

Connie Grant testified that, on April 2, 1977, he went into Michael’s Jewelers to pick up a ring. He stated that a black male stood up from behind the counter and pointed a pistol at him. The black male, according to Mr. Grant, forced him to undress and go to a small room in the rear of the store. Also, he took approximately $35.00 from his wallet. Mr. Grant identified State’s Exhibit I, a .357 Colt Python, as the pistol used by the black male that day. On cross-examination, he stated that the appellant was not the black male in the jewelry store on April 2, 1977.

Charles Brown, a deputy sheriff with the Marshall County Sheriff’s Department, testified that, on April 2,1977, he had received information concerning a robbery in Gadsden, Alabama, earlier that day. This information concerned the description of an automobile believed to have been used by the robber. Deputy Brown stated that he saw an automobile that afternoon which matched this description at the O.K. Tire Shop in Guntersville, Alabama, on Highway 431. As Deputy Brown pulled up to the automobile, one of the occupants went inside the tire store. The other occupant, who he identified as the appellant, was patted down and placed in the patrol car. He testified that he looked underneath the driver’s seat and found a .357 Magnum Colt Python hand gun. Brown stated that he arrested the appellant for not having a driver’s license and also for carrying a pistol without a permit. The appellant’s vehicle was taken to a fenced-in parking lot just outside the Sheriff’s Office in Guntersville, and there it was searched. At this time, two pillowcases with plastic ring boxes inside were found in the trunk of the appellant’s automobile.

Jim Picket, Deputy Sheriff of Marshall County, testified that, on April 2, 1977, he arrived at the O. K. Tire Store parking lot just as Officer Brown was putting the appellant in the back of his patrol car. Picket stated that the automobile driven by the appellant matched the description given in a police radio broadcast, which he had received in a report concerning a robbery in Gadsden, Alabama, earlier that day. Picket described the appellant’s automobile as a “light green GTO Tempest with a white top and two stereo speakers in the rear.”

W. A. O’Bryant, a police sergeant with the City of Gadsden, testified that he participated in the investigation of the robbery of Michael’s Jewelers. He stated that, late in the afternoon of April 2, 1977, the appellant was delivered to his custody by the Marshall County Sheriff’s Department. Sergeant O’Bryant stated that the appellant was read his Miranda warnings, once in his patrol car (R. p. 68), and again at Gadsden Police Headquarters (R. p. 69). The appellant then told O’Bryant that his brother, Jerry Paschal, was the man who had robbed the jewelry store, although he admitted that he owned the automobile and pistol found therein. Sergeant O’Bryant stated that the appellant told him that he and his brother had stopped in an alley earlier this same day and discussed disposing of the watch cases (R. p. 73). Also, the appellant had $231.00 in his wallet when he was arrested.

Sergeant O’Bryant also stated that the appellant admitted having purchased a bus ticket to Boston, Massachusetts, for his brother, Jerry, two days before the robbery. Jerry Paschal was arrested in Boston when he got off the bus, and he was carrying approximately $70,000.00 in cash at this time.

The appellant then made a motion to exclude the State’s evidence, which was overruled.

Jerry Paschal, the appellant’s brother, testified that he had plead guilty to the April 2,1977, robbery of Michael’s Jewelers. He stated that the appellant had no knowledge of the robbery and that he had taken appellant’s car and pistol that morning without informing his brother. According to Paschal, he was at Michael’s Jewelry Store the day before the robbery, but the black male with him then was not the appellant.

The appellant, Eugene Paschal, testified that he did not get out of bed until around 10:00 a. m. on Saturday, April 2, 1977. He stated that he went to the store for his mother shortly after getting up and noticed that his car was gone. Eugene Paschal indicated that he talked with a Mr. Sherman Kirkland, who was walking his dog on the way to the store. After taking the bread to his mother, the appellant stated, he went across the street to a neighbor’s house and talked with two carpenters, a Mr. Curtis Hicks and a Mr. Alford Moore.

The appellant stated that, around 1:00 p. m., April 2,1977, he saw his brother for the first time that day. He stated that Jerry drove up to his mother’s house in Eugene’s ear. Eugene stated that his brother, Jerry, told him that he had borrowed his car to pick up something. The appellant, Eugene, then testified that he and his brother then drove to Guntersville to see one Johnny Alexander. They drove to the O. K. Tire Store to get a tire fixed. Eugene testified that a sheriff’s car pulled into the parking lot, and that his brother, Jerry, told him that he had to go and then ran. Also, Eugene stated that he had no knowledge of his brother, Jerry, having robbed Michael’s Jewelry Store until their conversation in an alley shortly before pulling into the 0. K. Tire parking lot.

Lelia Mae Paschal, appellant’s mother, testified that, on Saturday, April 2, 1977, the appellant got out of bed around 10:00 a. m. Mrs. Paschal indicated that he went to the store for her shortly after waking up that morning.

Sherman Kirkland testified that he talked with the appellant, around 9:30 a. m., on Saturday, April 2, 1977. He stated that the appellant was going to the store for his mother when he saw him. On cross-examination, he indicated that he really was not positive that the date on which he talked with the appellant was April 2, 1977.

Wilbern Noland Mabree testified that he saw the appellant on April 2, 1977, around 10:00 a. m., at the Eastwood Market in Albertville, Alabama. On cross-examination, he stated he could not be positive that the day he saw the appellant at 10:00 a. m. was in fact April 2, 1977.

In rebuttal, the State recalled Officer O’Bryant to testify. Officer O’Bryant related that the appellant was not threatened, intimidated, coerced, and was not otherwise mistreated or tortured by him or anyone else while the appellant was in his custody. He advised that the appellant’s statement was freely and voluntarily given.

I

The appellant contends that the trial court erred in allowing the pistol and jewelry boxes, found in the appellant’s automobile, into evidence. Such articles, he asserts, were found as a result of an unlawful warrantless search of his automobile.

In Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), Mr. Justice Bloodworth enumerates the exceptions to the Fourth Amendment’s warrant requirement in this language:

“(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

In the instant case, Marshall County Sheriff’s Deputy Charles Brown testified that he had received a report of the description of the car used in the Michael’s Jewelry Store robbery. He stated that he saw a parked car at the O. K. Tire parking lot, fitting that description. As he approached the parked vehicle, one of the occupants went inside the store, hurriedly, while the other engaged an employee of the store in conversation. The officer asked the appellant for identification, which the appellant was unable to supply. Brown then arrested the appellant for driving without a license, patted him down, and placed him in the patrol car. See Herrín v. State, Ala.Cr. App., 349 So.2d 103, cert. denied Ala., 349 So.2d 110, and authorities therein cited; also, Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200.

As he then reached under the driver’s seat of the appellant’s vehicle, he found a .357 Colt Python pistol. See Hoppins v. State, Ala.Cr.App., 337 So.2d 134; and Racine v. State, 51 Ala.App. 484, 286 So.2d 890.

He then transported the appellant and appellant’s automobile to the Marshall County Sheriff’s Office, where the appellant was placed in jail and the vehicle there searched. The appellant was also charged with carrying a concealed weapon. Campbell v. State, Ala.Cr.App., 354 So.2d 325, 1977, and authorities therein cited.

Subsequently, the other black male, appellant’s brother, Jerry, was arrested in Boston, Massachusetts, alighting from a bus.

An automobile may be searched without a warrant if the officers conducting the search have probable cause to believe that they will find the instrumentality of a crime or evidence pertaining to a crime in the suspect vehicle. This is so because of the mobile nature of an automobile. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. See also, Landry v. State, 56 Ala.App. 421, 321 So.2d 759. The automobile’s mobility makes the obtaining of a warrant sometimes impracticable because of the imminence of escape and/or loss of evidence. New v. State, Ala.Cr.App., 337 So.2d 1355.

The officer in this case, acting on the information at hand, had probable cause to believe that the appellant’s automobile contained the instrumentalities or fruits of a crime, and therefore was justified in making the warrantless search of the appellant’s person and of his vehicle. Authorities herein cited.

Officer Brown testified that he had just received a report concerning the Michael’s Jewelry Store robbery earlier that day, and that the automobile’s description in the report matched that of appellant’s vehicle. See Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975); Racine v. State, supra; and Campbell v. State, supra.

Here, as in Daniels, supra, there were exigent circumstances in addition to probable cause, which justified the immediate search of appellant’s car. The vehicle was certainly movable, even though the appellant was in custody, since his brother was still in the vicinity and could have either driven the car away or destroyed evidence. At this point, there was no time in which to obtain a warrant without taking this risk that the appellant would escape with the vehicle. Therefore, the trial judge did not err in allowing results of the search of the vehicle, namely, the pistol, to be placed into evidence. Authorities herein cited.

Since there was probable cause to search the appellant and his vehicle at the scene, such also existed a short time later when the automobile was taken to the sheriff’s parking lot. The trial judge did not err in allowing the jewelry boxes found in the trunk of appellant’s car to be admitted into evidence.

In Chambers, supra, and then later in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), the Supreme Court of the United States stated that where police officers have probable cause to search an automobile at the scene where it is stopped, they can also do so later at the station house without first obtaining a warrant. Thus, the trial court’s ruling is correct.

II

The appellant contends that the trial court erred in overruling his motion to exclude the State’s evidence, and in refusing to give the written requested general affirmative charge. The appellant asserts that the State failed to present enough evidence to make out a prima facie case of robbery.

With respect to proof of aiding and abetting, a conspiracy may be proven by circumstantial or direct evidence. Muller v. State, 44 Ala.App. 637, 218 So.2d 698, cert. denied 283 Ala. 717, 218 So.2d 704.

The record reveals that evidence was presented by the State from which the jury might reasonably infer the existence of a conspiracy between the appellant and his brother.

The appellant also contends that the trial court erred on the ground that the State did not prove venue. Failure to prove venue is a matter which cannot be raised for the first time on appeal. Eagen v. State, 280 Ala. 438, 194 So.2d 842; Richardson v. State, 39 Ala.App. 207, 98 So.2d 59, cert. denied 266 Ala. 699, 98 So.2d 65.

Further, Mr. Ronald Thomas indicated at trial that the robbery occurred in Gadsden, Alabama (R. p. 21).

Ill

Finally, the appellant contends that the trial court erred in allowing the State to impeach the appellant on a collateral or immaterial issue.

Officer O’Bryant testified as to several statements made to him by the appellant which were inconsistent with the appellant’s own testimony at trial. The appellant stated that he had been mistreated and tortured by the police. In rebuttal, the State recalled Officer O’Bryant to testify. He stated that no one to his knowledge or in his presence mistreated, threatened, intimidated, coerced, or abused, or otherwise tortured the appellant.

The voluntariness therefore of appellant’s statements to Officer O’Bryant, even though not necessarily of a confessionary nature, were on a material issue. Thus, no error is shown.

We have carefully examined this record and find no error therein. The judgment is

AFFIRMED.

HARRIS, P. J., and DeCARLO, J., concur.

BOWEN, J., concurs in result.

BOOKOUT, J., dissents with opinion.

BOOKOUT, Judge,

dissenting:

Deputy Sheriff Brown saw a car parked in the parking lot of a tire store in Gunters-ville. The car matched the description given him over police radio of a car supposedly used in a robbery in Gadsden some six or seven hours earlier. After spotting the car, Deputy Brown turned his patrol car around and entered the parking lot. The two occupants of the suspected vehicle were outside the car when he drove up. One entered the tire store, and he did not see him again. Brown arrested the appellant for driving without a license (although the record does not show that the officer ever saw appellant driving). He handcuffed the appellant, placed him in the patrol car, and then searched the appellant’s vehicle without a warrant. Brown found a pistol under the driver’s seat of the appellant’s car.

Deputy Brown then had the appellant’s car taken to a fenced-in lot outside the sheriff’s office where it was again searched without a warrant, at which time the ring boxes were discovered in the trunk.

The trial court admitted the results of the first search into evidence on the ground that it was incident to “hot pursuit.” The fruits of the second search were admitted as being incident to a valid inventory search.

I fail to understand how the doctrine of “hot pursuit” can be used to justify a war-rantless search of a parked car discovered in another city several hours after the crime was committed. See: Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Likewise, I fail to see how the first search of the automobile could qualify under the “incident to a lawful arrest” exception to the warrant requirement. The appellant was handcuffed and inside the police car when his vehicle was searched and was thus unable to reach for a weapon in his vehicle or destroy contraband. Ghimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The gun seized was not in plain view; the appellant did not consent to the search; and a “stop and frisk” situation did not exist. If exigent circumstances existed because the appellant’s brother was possibly lurking in the vicinity, still probable cause must exist coincidentally with the exigent circumstances. Probable cause does not exist merely because the officer received his information over a radio rather than from the lips of someone. Police radio dispatches may supply probable cause when, on objection, evidence establishes the basis for the report’s believability. The facts of this case distinguish it from Crane v. State, 55 Ala. App. 619, 318 So.2d 315 (1975) wherein the evidence established that the arresting officer was given detailed and credible information by police radio dispatch which was derived from reliable sources.

In the instant case, the record does not show that a detailed description of the vehicle or its occupants was furnished to the officer. The record is completely silent as to what information was put out over the police radio. From the record, it would appear that none of the witnesses ever saw the robber outside of the jewelry store. None of them mentioned an automobile. The record does not disclose anything the officer relied upon other than a radio dispatch giving a description of a vehicle believed to have been used in a robbery.

The facts in the instant case are somewhat similar to those in Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied 291 Ala. 794, 282 So.2d 417 (1973). There, a police officer stopped a vehicle on the basis of a police radio broadcast. The evidence at trial established that the only witness did not see a vehicle, but only gave a description of two suspects fleeing on foot. Another officer saw a vehicle come to a screeching halt and take on passengers who fit the description of the felons. He put out a radio bulletin of the description of the car, but not of the occupants. This court found that an officer in another town who made the arrest had only a radio broadcast describing the vehicle to go on. Quoting from Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), this court stated that the arresting officer “could rely on the radio broadcast, but the subsequent determination by any court as to probable cause must necessarily turn on all the circumstances giving rise to the radio dispatch. . . . ” The subsequent evidence in Owens which disclosed the factual basis for the radio dispatch did not support probable cause, and the resulting search was invalidated.

In Whiteley, supra, the United States Supreme Court stated:

“. . . Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the investigating officer to rely on fellow officers to make the arrest.”

The second search at the sheriff’s lot does not fall within the definition of a true inventory search as set out in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The second search was obviously an investigative search rather than a routine “protective” inventory search. I therefore respectfully dissent.

On Rehearing

TYSON, Judge.

Appellant’s counsel challenges, on rehearing, this Court’s determination that the trial court properly found there was probable cause for the search of the appellant’s automobile in which a pistol was found under the seat, and subsequently, upon further search at Police Headquarters, the missing watches and rings from Michael’s Jewelers were found, along with the boxes containing same, in the trunk of appellant’s automobile.

Appellant’s counsel asserts the following in his brief on rehearing (p. 11):

“The Court found probable cause to exist for the searches because of information received by Officer Brown concerning the robbery of Michael’s Jewelers earlier that day and a description of an automobile described as having been used in the robbery. This information was received by radio dispatch and there is absolutely no other evidence of Officer Brown receiving any other information from any source.
“Neither is there any testimony concerning the origination of the radio dispatch. The record is void of any support for the suspicion that the auto described in the radio dispatch was in fact involved in the robbery. None of the victims testified concerning any car. No witness was produced who testified to seeing the car at or near the scene of the robbery. The Gadsden police officers who investigated the robbery did not testify to any information they had received from any source describing the car.”

After carefully reviewing this record again, we have determined that there was no challenge in the trial court, either by way of motion to suppress, motion to exclude, or other objection to the evidence at trial as to the basis of the information received by either Deputy Sheriff Charles Brown or Deputy Sheriff Jim Picket, the two officers who made the arrest of the appellant and subsequently searched his vehicle in Marshall County, Guntersville, Alabama.

At no point during the trial of this cause was there any objection made to the testimony in which these two officers related the information they had received by way of police radio broadcast from Gadsden, Alabama, concerning the robbery of Michael’s Jewelers. Not only were the contents of this broadcast not challenged in the trial court, at no point during the triál proceedings was there any objection to the officers relating the information received. There was absolutely no inquiry during trial as to the basis of the information broadcast on the police radio, as to who may have broadcast such information, or the source thereof, or the details of such broadcast.

There being no challenge to such matters in the trial court, such may not now be asserted on appeal.

The sole basis for objection to the items seized from the appellant’s vehicle, at trial, was that the arresting officers did not have a search warrant.

Assuming for the sake of argument that the information received by the two arresting officers, Brown and Picket, deputy sheriffs, was hearsay, nevertheless, the authorities are legion to the effect that probable cause may be based upon credible hearsay information, particularly where, as here, such emanates from a police radio broadcast in the normal course of business immediately following a robbery. The description of the suspects and the vehicle was contained in this broadcast. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); see also, Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

OPINION EXTENDED, REQUEST FOR ADDITIONAL FACTS DENIED, APPLICATION OVERRULED.

HARRIS, P. J., and DeCARLO, J., concur.

BOWEN, J., concurs in result.

BOOKOUT, J., dissents.

      . Mrs. Harville stated that the appellant “looked like he was casing the joint, looking in.” (R. p. 36)

      . Deputy Pickett testified that the description “met the description as broadcast from Gadsden.” (R. pp. 62, 63)

      . Deputy Brown testified that he saw the two black males alight from the vehicle as he was turning his vehicle around. (R. pp. 48, 49)

      . The appellant made a sudden turning movement, accompanied by “verbal objections as he was being arrested.” (R. p. 55)


author:
BEATTY, Justice.
      MADDOX, Justice

text:
    Ex parte Eugene Paschal. Re Eugene PASCHAL v. STATE of Alabama.
    77-590.
    Supreme Court of Alabama.
    Nov. 10, 1978.
    Rehearing Denied Dec. 8, 1978.
    William D. Hudson and William R. Willard, Jr., Gadsden, for petitioner.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, respondent.
   BEATTY, Justice.

Certiorari was granted in this case to consider whether the opinion of the Court of Criminal Appeals is in conflict with an opinion rendered heretofore on the requirement of probable cause. We reverse and remand.

After a thorough review of the record pursuant to Rule 39(k), ARAP we are unable to adopt without correction the facts of this case as reported in Paschal v. State, 365 So.2d 672 (Ala.Crim.App., 1978). The extended opinion of the court below mistakenly stated that “[t]he description of the suspects and the vehicle was contained in this [radio] broadcast,” when, in actuality, the record shows evidence only that the vehicle was described in the radio dispatch. Further, the Court of Criminal Appeals mistakenly added that “. . . at Police Headquarters, the missing watches and rings from Michael’s Jewelers were found, along with boxes containing same, in the trunk of appellant’s automobile.” However, the record shows that only empty plastic ring boxes and pillowcases were recovered from the automobile.

The dispositive issue in this case concerns the warrantless search of the defendant’s automobile. In Goolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) the Supreme Court of the United States instructed that:

“ ‘[SJearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ . ‘[T]he burden is on those seeking the exemption to show the need for it.’ . .”

This Court has embraced this principle. See Kinard v. State, 335 So.2d 924 (Ala., 1976).

At trial the defense counsel objected to testimony pertaining to the search of the automobile and the admission into evidence of the fruits of that search on the ground that there was no search warrant. This objection placed upon the State the burden of showing either a warrant or one of the reasonable exceptions to a warrant-less search. The Court of Criminal Appeals held that this burden was met by the State when it stated: “Here, as in Daniels [290 Ala. 316, 276 So.2d 441 (1973)], there were exigent circumstances in addition to probable cause, which justified the immediate search of appellant’s car.” (emphasis added). See Chambers v. Maroney, 339 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We need not discuss both elements of the Chambers’ exception since petitioner has focused our attention on that of probable cause. The Court of Criminal Appeals found that:

The officer in this case, acting on the information at hand, had probable cause to believe that the appellant’s automobile contained the instrumentalities or fruits of a crime, and therefore was justified in making the warrantless search . (emphasis added)

However, it appears from the opinion of that court that the “information at hand” consisted only of the following evidence:

Officer Brown testified that he had just received a report concerning the Michael’s Jewelry Store robbery earlier that day, and that the automobile’s description in the report matched that of appellant’s vehicle. .

Therefore, in effect, the Court of Criminal Appeals held in the present case that the requirement of probable cause — which is necessary in any search, warrantless or not, see United States v. Brennan, 538 F.2d 711 (5th Cir., 1976), was satisfied by the radio dispatch, and the radio dispatch alone. Such a holding, however, is contrary to that Court’s earlier decision in Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied 291 Ala. 794, 282 So.2d 417 (1973).

In Owens, supra, an officer observed a man getting into an automobile near the scene of a burglary. He radioed headquarters with a description of the automobile. An all points bulletin (A.P.B.) was then put out by the radio operator. Law enforcement officers in another town heard the radio report, stopped the automobile and then searched it. The Court of Criminal Appeals held that:

[T]he [arresting] officers at Town Creek could rely on the radio broadcast but the subsequent determination by any court as to probable cause must necessarily turn on all the circumstances giving rise to the police dispatch. . . . (emphasis added)

The court went on to find that on the facts of that case there was no probable cause to search the automobile. In the present case there is no evidence of the underlying circumstances which gave rise to the dispatch; there is merely the naked fact that a radio dispatch had described an automobile that fit the description of the defendant’s automobile. As Owens clearly shows, this is insufficient to establish probable cause, and therefore the search was unreasonable under Coolidge, Kinard and Owens. If the law were otherwise, then mere suspicions insufficient to obtain a search warrant, nevertheless could be routed through a radio operator to the field and through that mechanical process gain legal credibility; in fact, if the broadcast were enough in itself to justify a search, as the court below appears to hold, then the State would never need to enter into evidence the suspicions behind the broadcast. As we have shown, that is not the law in this state. Hence, the majority of the Court of Criminal Appeals erred in holding that probable cause was established by the radio dispatch alone.

The case is therefore due to be and is hereby reversed and remanded to the Court of Criminal Appeals with instructions to remand to the trial court for a new trial.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

MADDOX, Justice

(dissenting).

I agree with the majority that warrant-less searches are per se unreasonable, and that the burden was on the State to show its need for the exemption, but I believe that the State met its burden here by showing that the officers had probable cause to seize the automobile and search it; therefore, under all the facts and circumstances, and based on the facts available to the officers at the time, I conclude they acted reasonably.

The majority and I differ basically only in one narrow area. The majority would require the State to “enter into evidence the suspicions behind the broadcast.” I do not believe the law puts this burden on the State.

I realize that Alabama follows the minority rule and allows a motion to suppress allegedly illegally obtained evidence to be made for the first time at trial [Brown v. State, 277 Ala. 108, 167 So.2d 291 (1964)], but I do not believe that the burden was on the State to go behind the radio broadcast and show its validity.

The defendant, attempting to suppress evidence, is the moving party and has the burden of going forward with the evidence. The ultimate burden, of course, depends on the claimed illegality. If the search and seizure was incident to a regularly issued warrant, valid on its face, then the accused must prove lack of probable cause, or unreasonable execution of the warrant.

If the accused proves that the search and seizure was without a warrant (as was true here), then the burden shifts to the State to prove the existence of probable cause for the search. I believe the State met its burden in this case. In fact, as I read the majority opinion, I do not understand that the majority holds that the officers did not have probable cause to make the search and seizure, only that the State failed to “enter into evidence the suspicions behind the broadcast.” As a matter of fact, I do not think the majority could hold that the arresting officers lacked probable cause. In Whiteley, the Court pointed out:

“The State, however, offers one further argument in support of the legality of the arrest and search: the Laramie police relied on the radio bulletin in making the arrest, and not on Sheriff Ogburn’s unnamed informant. Clearly, it is said, they had probable cause for believing that the passengers in the car were the men described in the bulletin, and, in acting on the bulletin, they reasonably assumed that whoever authorized the bulletin had probable cause to direct Whiteley’s and Daley’s arrest. To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest have probable cause for believing the arrestees are perpetrators of a crime would, it is argued, unduly hamper law enforcement.
“We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” (Emphasis supplied.)

In both Whiteley and Owens, which are cited in the majority opinion, the accused in each case carried his burden of going behind the radio broadcast and was able to successfully attack the validity of the warrants in those cases. Whiteley says specifically that officers may act on the strength of a radio bulletin. Then why was the evidence excluded in Whiteley ? The defendant was able to show that the warrant was defective. That’s why. Here, the State showed that the officers acted reasonably on the strength of a radio bulletin, plus the additional facts and circumstances gathered at the search scene. At that point, absent any other evidence of illegality, the State shouldered its burden of showing its right to an exception from the warrant requirement. After the State had shown this, the accused did not proffer one item of proof to show that the officers at the scene or the officers making the radio dispatch acted illegally. After all, public officers are presumed to do their duty. Judge Tyson pointed out on rehearing what the record shows in this regard:

“After carefully reviewing this record again, we have determined that there was no challenge in the trial court, either by way of motion to suppress, motion to exclude, or other objection to the evidence at trial as to the basis of the information received by either Deputy Sheriff Charles Brown or Deputy Sheriff Jim Pickett, the two officers who made the arrest of the appellant and subsequently searched his vehicle in Marshall County, Guntersville, Alabama.
“At no point during the trial of this cause was there any objection made to the testimony in which these two officers related the information they had received by way of police radio broadcast from Gadsden, Alabama, concerning the robbery of Michael’s Jewelers. Not only were the contents of this broadcast not challenged in the trial court, at no point during the trial proceedings was there any objection to the officers relating the information received.
“There was absolutely no inquiry during trial as to the basis of the information broadcast on the police' radio, as to who may have broadcast such information, or the source thereof, or the details of such broadcast.
“There being no challenge to such matters in the trial court, such may not now be asserted on appeal.”

On a motion to suppress, the movant has the obligation to present evidence in court designed to convince the court that his motion should be granted. Cf. United States v. Thompson, 409 F.2d 113 (6 Cir., 1969); See also, Comment, Procedural Problems of a Motion to Suppress Evidence in a Federal Criminal Case, 1 U.S.F.L.Rev. 188 (1966); U. S. v. Warrington, 17 F.R.D. 25 (U.S.D.C. Calif., 1955).

The accused here initially carried his burden by showing a search and seizure without a warrant. The burden then shifted to the State. The State, defending its officers’ actions, showed probable cause and exigent circumstances. For the defendant to win under the circumstances here presented, I believe the defendant had the burden of going forward with the evidence, if any he had, to show that the radio broadcast was based on “mere suspicion . routed through a radio operator . . . ”

As a final note, I would show that the majority, I fear, erroneously concludes that the Court of Criminal Appeals held “that probable cause was established by the radio broadcast alone.” I do not so read that Court’s opinion. The opinion details other facts which were within the knowledge of the officers to establish probable cause.

In any event, I think the evidence was clearly admissible under the authority of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which involved a robbery and a search incident to the stop of a vehicle which matched a description of an automobile given in a radio bulletin.

TORBERT, C. J., concurs.

      . In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied 291 Ala. 794, 282 So.2d 417 (1973), cited by the majority, the accused satisfied the burden by showing an improper warrant in each case.


text:
    Eugene PASCHAL, alias v. STATE.
    7 Div. 577.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
   REVERSED AND REMANDED on authority of the Supreme Court of Alabama, 77-590, November 10, 1978, 365 So.2d 681. No opinion.

All the Judges concur.


author: BOWEN, Judge.

text:
    Joseph Russell HOBBIE v. STATE.
    3 Div. 864.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Application for Rehearing Dismissed Dec. 19, 1978.
    No brief for appellant on original submission.
    Elno A. Smith, Jr., Montgomery, for appellant, on rehearing.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
    No brief for the State, on rehearing.
   AFFIRMED; no opinion.

ON REHEARING

BOWEN, Judge.

The appellant was indicted and convicted for robbery and sentenced to ten years’ imprisonment. This court affirmed his conviction without opinion. Hobbie v. State, 3 Div. 864, decided October 31, 1978. No brief was filed on behalf of the appellant on original submission.

Now on application for rehearing the appellant presents this court with a brief. Rule 40, Alabama Rules of Appellate Procedure specifically prohibits an application for rehearing, as a matter of right, by any party who did not submit an original brief. The appellant has shown no cause, excuse, or justification as to why we should entertain this application. Therefore, the application for rehearing is due to be and is hereby dismissed.

Lest the appellant feel that his efforts are a total loss, we have considered the issues presented in his brief and find them to be without merit. In an indictment charging robbery the ownership of stolen property is properly laid in the party in possession, either as owner conditional, or bailee, or agent. Fowler v. State, 100 Ala. 96, 99, 14 So. 860 (1893); Dorsey v. State, 134 Ala. 553, 33 So. 350 (1902); Montgomery v. State, 169 Ala. 12, 53 So. 991 (1910); Mays v. State, 335 So.2d 246 (Ala.Cr.App. 1976); Bray v. State, 47 Ala.App. 308, 253 So.2d 531, cert. denied, 287 Ala. 726, 253 So.2d 533 (1971); Riggens v. State, 44 Ala. App. 275, 207 So.2d 141 (1968); Howell v. State, 26 Ala.App. 612, 164 So. 764 (1936). The indictment need not aver that the person robbed was lawfully in possession or the legal custodian of the property stolen. Danzey v. State, 126 Ala. 15, 28 So. 697 (1900). There is no material variance between an indictment which charges that the property taken was the personal property of a named individual and proof showing that the property belonged to another or to a corporation. Montgomery, supra; Mays v. State, 335 So.2d 246 (Ala.Cr.App.1976); Mitchell v. State, 57 Ala.App. 601, 329 So.2d 658, cert. denied, 295 Ala. 412, 329 So.2d 663 (1976); Oliver v. State, 55 Ala.App. 192, 314 So.2d 111 (1975); Woods v. State, 55 Ala. App. 450, 316 So.2d 698 (1975); Argo v. State, 42 Ala.App. 454, 168 So.2d 19, cert. denied, 277 Ala. 177, 168 So.2d 23 (1964); Nix v. State, 33 Ala.App. 603, 36 So.2d 452 (1948).

APPLICATION FOR REHEARING DISMISSED.

All Judges concur.


author: OVERTON, Chief Justice. ENGLAND, Justice, OVERTON, Justice.

text:
    S.R.G. CORPORATION, Appellant, v. DEPARTMENT OF REVENUE, State of Florida, Appellee.
    No. 52491.
    Supreme Court of Florida.
    June 30, 1978.
    Rehearing Denied Dec. 14, 1978.
    Kenneth M. Myers and Debra E. Cohen of Myers, Kaplan, Levinson, Kenin & Richards, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and David K. Miller, Asst. Atty. Gen., Tallahassee, for appellee.
   OVERTON, Chief Justice.

This cause is before us on direct appeal from a final summary judgment of a circuit court upholding the constitutionality of Chapter 220, Florida Statutes (1975). We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

The issue concerns the applicability of Florida’s new corporate income tax law to deferred taxable gains which were realized prior to November 2, 1971. We hold such gains are not taxable.

The facts of this case are not disputed by the parties and may be briefly summarized as follows. In 1963, the United States Government condemned the appellant’s property, and the appellant received an award from those condemnation proceedings. In 1965, the appellant utilized the condemnation award to purchase replacement property. Pursuant to Section 1033 of the Internal Revenue Code, the appellant chose to defer the capital gain realized when he received the condemnation award. The federal income tax liability for that gain was therefore not recognized in 1963 and was deferred under the cited provision of the Code until ultimate disposition of the replacement property.

At the time of the described transactions in 1963 and 1965 there existed in the State of Florida a constitutional prohibition against the levy of a corporate income tax. Article IX, Section 11, Florida Constitution (1924). On November 2, 1971, the voters of this State adopted an amendment to our constitution allowing the imposition of a tax on the income of “other than natural persons.” Article VII, Section 5, Florida Constitution. Following this amendment, the Florida Legislature enacted the Florida Income Tax Code, Chapter 220, Florida Statutes (1977), which imposed an income tax commencing January 1, 1972, on “other than natural persons.”

In 1975, the appellant sold the replacement property and paid the federal income tax on the capital gain. The federal tax paid by the appellant included the deferred gain realized on the original property at the time it was condemned and the gain realized on the replacement property. The State, through its Department of Revenue, asserted that it was entitled to compute the state capital gain tax on both the deferred gain from the 1963 condemnation transaction and the gain realized on the replacement property.

The appellant then commenced this action as a suit for declaratory and injunctive relief, seeking a declaration that the State could not tax that portion of the transaction relating to the deferred gain which was realized when the property was condemned in 1963. The appellant does not contest taxation of the gain realized on the replacement property.

At trial, the appellant taxpayer asserted (1) that the Florida corporate income tax provisions could not be construed to impose a tax on gain which was “realized” prior to the effective date of the taxing statute, and (2) that, if the Florida corporate income tax provisions were construed to be applicable, taxation of the gain in this case would constitute retroactive taxation in violation of the Due Process Clauses of the Florida and United States Constitutions. The trial court rejected these contentions and granted summary judgment in favor of the ap-pellee, Department of Revenue. We agree with the appellant’s first contention and reverse.

Section 220.02(4)(a) of the Florida Income Tax Code defines “income” which is subject to taxation as:

(a) “Income,” for purposes of this Code, including gains from the sale, exchange, or other disposition of property, shall be deemed to be created for Florida income tax purposes at such time as said income is realized for federal income tax purposes; [Emphasis supplied.]

The appellee, Department of Revenue, contends that the term “realized” as it appears in this section is used in a nontechnical sense. They argue that Chapter 220 contemplates taxation of all income which is recognized and reflected on the federal income tax return for the same period. Essentially, the Department of Revenue asserts that recognition of income by the federal government is the event which brings the Florida tax into operation. We disagree.

The Florida Income Tax Code expressly provides that the Code shall utilize concepts of law developed in connection with the federal income tax laws. Section 220.02(3), Florida Statutes (1977). Under the federal laws, the terms “realization” and “recognition” are not synonymous. “Realization” for federal income tax purposes occurs when the taxpayer received actual economic gain from the disposition of property. See Helvering v. Horst, 311 U.S. 112, 115, 61 S.Ct. 144, 85 L.Ed. 75 (1940). It is when the taxable event occurs which gives rise to actual economic gain. “Recognition,” on the other hand, refers only to the time when the tax itself becomes due and payable. Ordinarily, these two events occur simultaneously, but this does not alter the fact that the two terms have distinct and different meanings.

In statutory construction, case law clearly requires that legislative intent be determined primarily from the language of the statute. Thayer v. State, 335 So.2d 815 (Fla.1976); Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). The reason for this rule is that the Legislature must be assumed to know the meaning of the words and to have expressed its intent by the use of the words found in the statute. We must, therefore, conclude that the Legislature intended to employ the federal concept of realization when it used that term in its definition of income found in Section 220.02(4)(a).

This conclusion is in full accordance with our recent decision in Department of Revenue v. Leadership Housing, Inc., 343 So.2d 611 (Fla.1977). Although Leadership Housing involved different issues from the present case, we held that, for purposes of the Florida Income Tax Code, gain becomes true taxable income when it is realized at the time of sale or other disposition of the property. In the present case, appellant realized gain when the federal government paid it the condemnation award in 1963. That was the realized taxable event, and, in 1963, the Florida Constitution prohibited the imposition of an income tax on that transaction. We find and hold that Chapter 220 only authorizes taxation of gain which is realized by the taxpayer after January 1, 1972, and, since the disputed portion of the appellant’s gain was realized in 1963, the State cannot impose an income tax on that gain.

In view of this finding we need not address the second contention of the appellant which asserts that the imposition of a tax on the portion of its gain relating to the 1963 condemnation constitutes retroactive taxation.

The final summary judgment entered by the circuit court is reversed and the cause is remanded to the circuit court with directions to enter judgment in accordance with the views expressed herein.

It is so ordered.

ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, J., dissents with an opinion, with which SUNDBERG, J., concurs.

ENGLAND, Justice,

dissenting.

Like so many other matters in life, if you ask the wrong question you’re apt to get a wrong answer. That is what a majority of the Court has done here, although the initial fault rests not with the Court but with the Department of Revenue. The department framed the issue (or it allowed S.R.G. Corporation to frame the issue) for our review as one involving the taxation of income “realized” in 1963. That was a mistake, and it has proved to be the predicate on which the Court has now fashioned its mistaken resolution of this controversy.

The issue presented for our review, I submit, is whether the department must compute the Florida income tax liability of a corporate taxpayer by reference to all “basis” provisions in the Internal Revenue Code of 1954 (“the Internal Revenue Code”), or whether it is required under the Florida Income Tax Code (“the Florida Code”) to fashion a hybrid basis provision for the Florida tax in situations such as the one before us. I think that the answer in the Florida Code is explicit that all federal bases — whether original cost, adjusted cost, or substituted — are to be utilized for Florida income tax purposes. As there is no constitutional defect in the statutory scheme prescribed, it follows that we have no choice but to rule with the department in this case.

S.R.G. Corporation owns property which was condemned by the United States government in 1963 (“the old property”). Within the time limitations expressed in Section 1033 of the Internal Revenue Code, S.R.G. reinvested the condemnation proceeds in similar property (“the new property”) and was allowed by the Internal Revenue Service to defer the recognition of gain on the disposition of the old property until the new property was either disposed of or sold. The new property was then sold by S.R.G. in 1975, at which time S.R.G. reported the sale for both federal and Florida income tax purposes.

On its 1975 federal income tax return, the corporation was obliged to show as the basis for new property, for purposes of computing its taxable capital gain, the difference between the 1975 sales price and the basis of the old property. For Florida income tax purposes, however, the corporation reported a gain subject to tax on the difference between the 1975 sales price and the cash paid for the new property — that is, the amount received in 1963 as recompense for the condemnation of the old property. In tax terms, the corporation did not report for Florida income tax purposes the same “substituted” tax basis it reported to the federal government; rather it reported a “pseudo-cost” basis for Florida tax purposes, as if the new property had no genesis in the old property but was taxable under a Florida Code modification of Section 1012 of the Internal Revenue Code. Section 1012 provides:

“The basis of property shall be the cost of such property, except as otherwise provided in this subchapter . . . .”

There is no provision in the Florida Code which contemplates a modification of either the pure cost basis described in Section 1012 or a basis “as otherwise provided in this subchapter” (which includes Section 1033) of the Internal Revenue Code.

The department assessed a deficiency against the corporation, asserting that the tax basis for Florida tax purposes must be identical with that reported for federal tax purposes. I am convinced that the department’s basis computation, and its treatment of the corporation’s 1975 gain, were correct.

Under the Florida Code, income is generated for Florida income tax purposes at the same time as income is “realized” for federal income tax purposes. Both parties agree that the property acquired in 1965 and sold in 1975 (the new property) produced a gain which must be taxed on the basis of a “realization” of income in that latter year. In fact, S.R.G. concedes taxability on a portion of the proceeds of the 1975 sale. Having realized income as a result of the sale of a capital asset in 1975, S.R.G. was necessarily taxable on “all” income then realized in accordance with the methods of accounting and other tax concepts embodied in the Internal Revenue Code. The Florida Code expressly states that taxable Florida income shall mean taxable income as “properly reportable for federal income tax purposes.” There exist no independent methods for computing “basis” under the Florida Code which differ from those under the federal Code, save in certain areas which are not germane to this proceeding.

Nor is there any authority in the Florida Code for a division or segregation of taxable “gain” realized after 1971 into separate components — one taxable and one non-taxable — depending upon whether federal tax basis is computed by reference to cost or to some other methodology.

For Florida tax purposes, the initial step for computing taxable gain on a capital transaction is to identify and analyze the appropriate federal tax basis. Under the Internal Revenue Code, basis for the purpose of determining gain or loss on the “sale or other disposition of property” is determined under Section 1011. Subsection 1011(a) directs that the adjusted basis for determining the gain or loss from the sale or other disposition of property shall be determined under Section 1012 of the Code (generally cost), or under other applicable sections of Code subchapters C, K, 0, and P. The basis of S.R.G.’s property for federal income tax purposes was not properly determinable on the basis of its “cost” in 1965 under Section 1012 of the Code. Rather, it was determinable under Section 1033 of the Internal Revenue Code (in subchap-ter O), which substituted for the 1965 cost the purchase price for the old property that had been condemned in 1963. This point is not disputed.

Since there is absolutely nothing in the Florida Code to direct otherwise, the basis of S.R.G.’s property for Florida income tax purposes would likewise have to be determined by reference to Code Section 1033, rather than Code Section 1012. As shown earlier, the Florida Code fully “piggybacks” the basis provisions of the Internal Revenue Code, and it deems inconsequential for Florida purposes which of several possible bases are available to the taxpayer for federal tax purposes. Whether the corporate taxpayer is eligible for and elects for federal tax purposes to utilize a true “cost” basis or some other basis, such as one which takes into account depreciation or which permits one of several forms of “substituted” basis (involuntary conversion, exchange of like-kind property, exchange of stock for property), the Florida Code is statutorily neutral and in no way affected by the taxpayer’s election.

These principles, I suppose, would present no confusion whatsoever to taxpayers or administrators were it not for Florida’s constitutional ban on corporate income taxation prior to November 2, 1971. Because of that earlier prohibition, S.R.G. now contends that it is being forced to pay tax on a capital gain which was realized as a result of the sale of property in 1963, when the constitutional prohibition barred taxation. It is, I confess, an ingenious and superficially intriguing argument. One can readily see the ostensible inequity in the department’s attempt to tax that “pre-1972 capital gain”. There are, however, two fallacies in S.R.G.’s argument. First, by reason of the taxpayer’s election, there was in reality no 1963 capital gain. Second, there is in the present tax controversy (over a 1975 sale of property) no element of gain which was “realized” or taxable prior to 1972. Several alternate explanations of S.R.G.’s transactions will make these fallacies transparently clear.

First, the corporation is not being asked to pay a Florida tax on gain realized in 1963 because it is irrelevant to know in this proceeding, and the State of Florida has no interest in knowing, what amount of gain was actually realized in that year. By the taxpayer’s election, the Internal Revenue Code wholly relieved the corporation of its tax burden in 1963, so that the difference between the original cost of the old property and the proceeds of its disposition in 1963 (by condemnation) is a figure which need not be a part of, and will always remain completely irrelevant to, both the federal government’s tax concerns and this proceeding. The full proceeds of the 1963 non-sale disposition were put into the property acquired in 1965 and sold in 1975. The 1975 sales price of the new property could have been more or less than the non-sale disposition price of the old property in 1963. Thus, any gain “inherent” in the 1963 conversion of the old property into cash could be more or less than the amount which the corporation presently must report to the federal government as its gain on the sale of the new property in 1975.

Second, the transaction can also be viewed as if S.R.G. had invested in the new property not the cash dollars it received on condemnation of the old property in 1963, as S.R.G. claims, but rather the non-depreciated amount which the corporation originally paid for the old property sometime prior to 1963, if any. That is to say, it is immaterial for federal tax purposes what happened to the 1963 condemnation receipts or how much they were — that money did not come to rest in the corporation’s coffers but was immediately substituted for property of the same kind as that which had been condemned. Up until the 1975 sale of the new property, neither the federal government nor S.R.G. had any reason to treat the 1963 cash receipts as having any tax or practical significance. In fact, they both have considered those 1963 cash proceeds nonexistent for federal tax purposes by carrying a substituted basis on the corporation’s books for the property purchased in 1965. For all purposes, then, both S.R.G. and the Internal Revenue Service have treated S.R. G.’s only investment in the new property as being the amount which it carried on its books for the old, condemned property.

Third, viewed as a practical business matter, the old property reappeared after its condemnation in 1963 as a continuum of usable facilities and remained available for company activities up to the moment of sale in 1975. It was at that moment in time that the federal government became interested in taxing some capital gain, and the measure of that gain was the difference between the depreciated cost of the original property and the ultimate (1975) sales price. Similarly, Florida is statutorily interested only in taxing the difference between the corporation’s basis for the new property (using that term in the Internal Revenue Code’s technical sense) and the ultimate sales price which was “realized” on a date long after the Florida Code came into effect. It is only by confusing the 1975 realization event with the 1963 transaction, and attempting to treat the 1975 sale as a seriated transaction, that an argument can be made that Florida is attempting to tax something which it has no right to reach. Obviously, however, there were not two “realizations” with respect to the property sold in 1975; there was only one. The only question in this case is the basis of that property.

Fourth, an analysis of the prospective ramifications of the parties’ respective positions on the operation of the Florida Code bears out the correctness of the view just expressed. In order to be consistent, S.R. G.’s position would seem to require the taxation of corporate taxpayers twice in Florida in situations like this one — once at the time of condemnation on the gain then realized, and again at the time when the substituted property is disposed of or sold. This would seem to apply even to involuntary conversions after 1971, since there is certainly no ostensible statutory justification for differentiating taxability on the basis of when a federal basis election is made. On the other side, the department admits that, under its view of taxability, if an involuntary conversion of corporate property occurs after 1972 and the taxpayer elects the benefits of Section 1033 for federal tax purposes, the department can collect no Florida tax at the time of conversion.

The department’s view is correct, of course, not only as a matter of law but as a practical matter. Section 1033 was enacted by the federal government in recognition of the fact that a taxpayer has no cash with which to pay tax at the time of an involuntary conversion if the proceeds of condemnation are reinvested to their full extent in the same kind of property as was used in the corporation’s business. The department’s position is consistent with this practical fact, and recognizes that in the event of a post-1971 involuntary conversion made eligible for Section 1033 treatment by the taxpayer’s timely reinvestment of the proceeds (or a like situation under Section 1031 or 1032 of the Internal Revenue Code), the State of Florida will have to wait for the tax (if any) that may be due when the taxpayer makes a sale or other disposition of the property which is substituted with the condemnation proceeds. That event may occur at a time in the future when the value of the substituted property has diminished to the point that there exists no gain, or at a time when the corporate taxpayer’s income is not taxable in Florida for some other reason (such as a constitutional ban on corporate income taxation). In either case, the department would never receive any tax on the non-recognized but “realized” gain which came into being at the time of involuntary conversion. That possibility comports squarely with the Florida Code’s wholesale adoption of all accounting and taxability concepts under the federal Code. In contrast, S.R.G.’s position (as adopted by the Court today) not only will require corporate taxpayers to pay a Florida tax when they have no available cash, but it will necessarily reduce the amount of tax to be paid, if any, at the time when the funds ultimately become available.

As a final matter, I would comment on the argument which runs through the contentions of both parties with respect to the relevance of this case to either Department of Revenue v. Leadership Housing, Inc., 343 So.2d 611 (Fla.1977), or Clearwater Federal Savings and Loan Association v. Department of Revenue, 350 So.2d 1134 (Fla. 2d DCA 1977). Neither of those cases, I believe, is precisely applicable here, although Leadership Housing offers concepts which are compatible with today’s decision. In Leadership Housing the Court held that capital gain was treated by the Florida Code in the same manner as all other income arising as a result of a post-1971 taxable event, and that the Florida Code adopted the “realization” test by which to measure the tax. That case is relevant to this proceeding only because the threshold issue here is when “realization” took place with respect to the property sold in 1975. It is not dispositive in any way of the outcome of this proceeding, however, because both parties concede that realization occurred in 1975 when the new property was sold by S.R.G.

Seemingly closer in point, but really differing in principle, is the Clearwater Federal case. In that case an accounting adjustment prior to 1972 resulted in an agreement as to when tax should be paid on a taxable event which occurred prior to the effective date of the Florida Code. The Service agreed to accept tax payments spread over ten future years, and the department sought to include in the corporate taxpayer’s income the amounts of gain which were spread into years after 1972 as a result of the taxpayer’s agreement with the Service. The obvious difference between Clearwater Federal and this case is that there was only one taxable event in that case, and the event took place in a year prior to the effective date of the Florida Code. The tax liability of the taxpayer there arose as a result of “realization” before our tax law became effective, and unlike the present case Clearwater Federal did not involve a basis determination as to how the amount of gain should be measured. The situation in Clearwater Federal would be no different from an attempt by the Florida Code to tax installment sales which occurred prior to 1972, as to which a corporate taxpayer would spread payments to the Internal Revenue Service under Section 453 of the Internal Revenue Code. But installment sales of that type were recognized by the framers of the Florida Code to be outside the permissible reach of the Florida tax. It was recognized when the Code was passed in 1971 that the State of Florida might not be permitted to tax post-1971 income realized as a result of earlier installment sales. As a consequence of that inhibition, the legislature expressly addressed the potential revenue loss and the equities of the situation by a compromise which allowed taxpayers the right to elect the installment sale treatment after 1971 (which the legislature need not have allowed), in exchange for a partial taxation of installment sales made prior to 1972.

For the reasons expressed, I would hold for the department that S.R.G. Corporation is taxable in full on the gain reported on its 1975 federal income tax return from the sale of the new property.

SUNDBERG, J., concurs.

ON PETITION FOR REHEARING OR CLARIFICATION

OVERTON, Justice.

We ordinarily would not respond to a party’s erroneous interpretation of an opinion in its petition for rehearing. We deem this case an exception because of the absolutely erroneous interpretation made by the appellee Department of Revenue which, because of its position, has the power and authority to implement that interpretation to the detriment of many taxpayers.

The appellee Department of Revenue in its petition for rehearing has asserted that our majority opinion mandates it to collect the capital gains tax immediately upon the realization of a gain, with no deferment being allowed if such is provided in the Internal Revenue Code. This interpretation by the appellee is without foundation.

The construction by the appellee Department of Revenue fails to take into account the date the Constitution of this State was changed to allow the corporate income tax to be assessed, to wit, November 2,1972. It further fails to take into account the fact that realization in the instant case occurred prior to the effective date of the new constitutional provision. The date is critical. Our decision was the result of a constitutional issue not present in realizations which occur after November 1, 1972. We emphasize that nothing contained in the majority opinion prohibits the deferment of a taxable gain which is realized after November 1, 1972. Any construction of our opinion which prohibits deferment is erroneous and not justified.

The petition for rehearing is denied.

ADKINS, BOYD and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG and HATCHETT, JJ., dissent.

      . Actually, the property was owned by S.R.G.’s predecessor in title, but for tax purposes all parties agree that S.R.G. Corporation is to be treated as the owner.

      . Int.Rev.Code, 26 U.S.C. § 1033(b).

      . It is inconsequential to this proceeding that the condemnation resulted in a capital gain for federal tax purposes and ordinary income for Florida income tax purposes. See England, Corporate Income Taxation in Florida: Background, Scope, and Analysis, in Florida Corporate Income Taxation 4, 20-21 (Fla.St.Univ.L. Rev., April 1972).

      . Although arguments of the department were cast in a somewhat different light, as earlier noted, there is no difference of opinion between the department and S.R.G. Corporation as to the effect of what the department proposed.

      . § 220.02(4)(a), Fla.Stat. (1975).

      . The conceded gain represents the amount by which the 1975 sale price exceeds the cash investment in the new property.

      . § 220.02(4)(c), Fla.Stat. (1975).

      . § 220.42(1), Fla.Stat. (1975).

      . §§ 220.02(3) and 220.11-.13, Fla.Stat. (1975) (the latter defining the amount taxed as “adjusted federal income”).

      . § 220.13(2), Fla.Stat. (1975). There are exceptions, but none is relevant here.

      . See, for example, § 220.13(l)(c), Fla.Stat. (1975), relating to installment sales.

      . Section 1011(a) does state that the basis under these provisions must be adjusted as provided in Section 1016. That adjustment provision is not relevant here, except that it too recognizes the other adjustments preserved in subchapter O. Int.Rev.Code., § 1016(b).

      . Int.Rev.Code, §§ 1011(a) and 1016(a)(2).

      . Int.Rev.Code, § 1033(b).

      . Int.Rev.Code, § 1031(d).

      . Int.Rev.Code, §§ 1032(b) and 362.

      . An example will illustrate the point. If the property was originally acquired in 1950 for $100 and condemned in 1963 for $500, the “gain” at that time would be $400 and a tax would have been paid on that gain if deferral of the tax liability had not been elected under Section 1033 of the Internal Revenue Code. If the corporation had taken the $500 and reinvested it in similar property so as to defer the recognition of that $400 gain, just as S.R.G. Corporation did in the present case, and if in 1975 the hypothetical corporation had sold the substituted property for $1,000, the total gain to be reported to the federal government in 1975 would be $900, or the difference between the sales price of $1,000 and the substituted basis of $100. The formerly inherent $400 gain would be irrelevant for 1975 tax purposes. By the same token, if the corporation had sold the substituted property in 1975 for $400, then the gain reportable for federal income tax purposes in 1975 would be $300. Obviously, the inherent $400 profit from 1963 would never have been considered a taxable gain on which the taxpayer would be obligated to pay. Just as obviously, the actual and ultimately taxable gain (if any) for any taxpayer electing Section 1033 or its companion provisions will vary depending upon the sale or disposition price of the substituted property. Thus, it is inaccurate to suggest that the 1975 sale results in taxation of the inherent 1963 gain, either for federal or for Florida income tax purposes.

      . Again it should be remembered that S.R.G. Corporation readily concedes that the taxable event which triggered the Florida tax occurred in 1975, and that under the Florida Code there was “realization” at that time. It is not contended the new property was sold so as to trigger “realization” before the effective date of the Florida Code.

      . See England, note 3 above, at 17-19.

      . § 220.13(l)(c)4, Flat.Stat. (1975).


text:
    Charles LANDRAU, Appellant, v. STATE of Florida, Appellee.
    No. 52866.
    Supreme Court of Florida.
    June 30, 1978.
    Rehearing Denied Jan. 19, 1979.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Ronald A. Dion, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Appellant challenges the facial constitutionality of Section 784.07, Florida Statutes (1977), on the ground that the statute is violative of the equal protection clauses found in the United States and Florida Constitutions. He argues that the “compelling state interest” test is the burden which the State must sustain in order to uphold the statute at issue because felons suffer attendant inflictions from their classification as such which deprive them of fundamental rights. We recently upheld Section 784.07, Florida Statutes, against an equal protection challenge in Soverino v. State, 356 So.2d 269 (Fla.1978), finding that a rational basis existed between the statutory classification and the object of the legislation. We reaffirm our implicit determination in that case that the constitutionality of the instant statute should be measured pursuant to the “rational basis” test and find appellant’s argument to be without merit. The statute merely reclassifies the crime of battery upon a law enforcement officer from a misdemeanor to a felony, an alteration of the sanction prescribed for conduct already prohibited. See Section 775.08, Florida Statutes (1977); Chapman v. Lake, 112 Fla. 746, 151 So. 399 (1932). The severity of the sanction prescribed by a classification does not indicate whether the affected interests are fundamental. Dor-rough v. Estelle, 497 F.2d 1007, 1011 (5th Cir. 1974), rev’d on other grounds 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975).

Accordingly, the order of the trial judge denying appellant’s motion to dismiss and upholding the constitutional validity of the statute is affirmed.

It is so ordered.

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