author: LEIGH M. CLARK, Retired Circuit Judge. BOOKOUT, Judge,

text:
    Jackie Sue ST. JOHN v. STATE.
    7 Div. 329.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.

      R. 0. Hughes, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case has been before us on appeal once before. St. John v. State, 54 Ala.App. 672, 312 So.2d 77 (1975). It was therein held that the record was not filed in this Court on time, and an order was entered dismissing the appeal.

On September 7, 1977, defendant herein obtained an order of the United States District Court for the Northern District of Alabama, St. John v. Alabama, (No.Dist.Ala., CA-77-A-0928-M), granting her petition for habeas corpus, “subject to the right of the State of Alabama to reinstate the appeal of petitioner and conduct an appellate review on the merits of said conviction, or in the alternative, to grant petitioner a new trial . . . On December 5, 1977, on motion of the State of Alabama, we reinstated the appeal, and the case on appeal was submitted on briefs on February 6, 1978.

Defendant was convicted of murder in the first degree of Raymond St. John, defendant’s father-in-law, and sentenced to imprisonment for life.

The evidence shows conclusively that on the afternoon of November 24, 1972, while defendant and Raymond St. John and others were in or about the yard of a trailer in which defendant and her husband were living, or had lived in the then recent past, defendant shot Raymond St. John with a pistol. One bullet penetrated his chest at the left nipple, went through his left lung and lodged beneath the skin in the back: another bullet penetrated the victim’s body in the left shoulder area and lodged beneath the skin in the back of that area. The pistol was fired by defendant between four and six times. Mr. St. John was promptly taken to a hospital and died on December 1, 1972.

Others present at the time and place of the shooting included defendant’s husband, Larry St. John; another son of the victim, James Ray St. John; appellant’s mother, Geneva Patterson, and defendant’s mother’s brother, Delbert Smith.

As to the issues raised by the plea of not guilty, which included an asserted defense of self-defense, the evidence for the State was in irreconcilable conflict with the evidence for the defendant.

According to the testimony of Larry St. John and James Ray St. John, Larry and James and their father and others had been working that day on a house that was in the process of being roofed, which to that stage had been recently constructed by Larry and others on the lot on which the trailer was located and approximately ten feet southeast of the trailer. About 3:30 P.M., defendant arrived in an automobile with her mother, Geneva Patterson; the daughter of defendant and Larry, Teretha St. John, a mere child; Elbert Smith, a brother of Geneva Patterson, and Sharon Patterson. While there, defendant talked with Larry and asked him for some money for their daughter, stating that she was sick and needed some orange juice. Larry said he gave her ten dollars. According to the testimony of both Larry and James Ray, defendant observed Mr. Raymond St. John, verbally abused him, calling him, inter alia, a “S.O.B.”: there was a physical encounter between her and Mr. St. John, and defendant’s mother physically pulled defendant away from the deceased at that time, striking defendant with a purse. Defendant picked up a “stick,” which was otherwise identified as an old rake handle, raised it over her head and walked toward Mr. St. John. Larry grabbed the rake handle and words were exchanged between him and defendant.

The two brothers further testified that thereafter defendant went into the trailer and soon came out of it with a pistol in her hand. She started firing in the direction of Mr. Raymond St. John and his two sons. The two sons succeeded in dodging the bullets, but two bullets struck Mr. St. John, dropping him to the ground. According to the two brothers, defendant was advancing toward Mr. St. John as she was firing the gun: they denied that defendant had come out of the trailer with a handbag in one hand and her daughter, Teretha, at the other hand; and that their father ran at her with an open pocket knife; and she then started firing into the ground. Mr. St. John was not abusive of defendant and did not attempt to harm her.

The testimony of defendant and her mother, Geneva Patterson, was diametrically opposed to the testimony of the witnesses for the State as to material circumstances immediately preceding the firing of the pistol by defendant and the wounding of Mr. St. John. Defendant and her mother testified that while defendant and Larry were engaged in a discussion about their marital problems and the needs of defendant and Teretha, their daughter, Raymond St. John came up and cursed defendant for swearing out a warrant for Larry and threatened to strike defendant. She moved over under a pine tree where Raymond St. John hit her in the mouth, knocking her backward and causing her nose and mouth to bleed. Defendant then picked up a stick and when she raised it, her mother snatched it out of her hand. After this, Raymond St. John “patted his pocket” and went to his truck on the premises. Upon his return from the truck Mr. St. John put the blade of a knife to her throat, marking it, and threatened to kill her. With her mother’s help, defendant pulled herself away and ran into the trailer, or mobile home, where she picked up a pistol and placed it in her purse. She came out of the trailer with the purse in one hand and holding her daughter by the other, and started walking toward her mother’s automobile. At that time, Mr. St. John approached her with a knife in his hand and screamed that he was going to kill her. According to defendant and her mother, defendant placed her daughter behind her and pulled the pistol from her purse as she backed away from Mr. St. John: she fired four shots into the ground, and as he continued approaching with a knife, she fired at him. Mr. St. John lunged and fell on defendant, with his knife pressing at her throat still threatening to kill her. Defendant and her mother said that instead of defendant’s advancing on Mr. St. John, defendant was backing away from him and pleading with him not to hurt her.

Delbert Smith testified as a witness for defendant, his niece. Smith substantially corroborated the testimony of defendant and her mother.

During the cross-examination of Larry St. John, defendant’s counsel made an inquiry as to the testimony of Larry at the preliminary hearing of defendant for the shooting of Mr. St. John. He was asked whether he testified on the preliminary hearing that he was divorced. The court sustained the State’s objection to the question. He was further asked whether at the time of the shooting he had in his possession or under his control, a decree of divorce. The court sustained the State’s objection to that question also. The witness had testified to the effect that the divorce proceeding was pending, but that he and defendant were still married at the time of the shooting. According to him, they had not lived together as man and wife for approximately four days prior to the shooting.

We see little reason for any objection to the questions. We also fail to see any value to the defendant for answers to the questions. There was no conflict in any of the evidence on the trial of the case now before us on appeal as to the marital status of defendant and Larry at the time of the difficulty between defendant and her father-in-law. The evidence was clear that at that time they were still married. If Larry had said previously that they were divorced, the statement or testimony would have been inconsistent with his testimony on the trial, but the fact that he may have made such statement or given such testimony theretofore was not material to the issues before the court and jury on the trial of this case.

The testimony of a witness cannot be impeached on an immaterial matter, Morris v. Kaiser, 292 Ala. 650, 299 So.2d 252 (1974). That a witness has made a conflicting statement to that of his testimony in a case is not material, if the fact that he made the contradictory statement is not admissible for any other purpose in the case than to show the contradiction. Gamble, McElroy’s Alabama Evidence, § 156.01(5) (1977).

Where there is no conflict in the evidence as to a particular matter, where the testimony of a particular witness is in complete accord with that of all the other witnesses in the case as to the matter, and where such testimony is in conformity with the position taken by a party seeking to impeach the witness, the fact that he has made a contradictory statement theretofore is wholly immaterial to the issues being tried. Jay v. Sears, Roebuck & Co., Ala.Civ.App., 340 So.2d 456 (1976).

In some questions asked Larry St. John on cross-examination, it appears that defendant’s counsel was attempting to show bias on the part of the witness against defendant. We agree with appellant that great latitude is to be allowed a party in an effort to show bias of an important witness as to contested issues in a case. Wells v. State, 292 Ala. 256, 292 So.2d 471 (1973); Wilson v. Slate, 195 Ala. 675, 71 So. 115 (1916). We find, however, that the record does not show any specific instance in which the court sustained the State’s objection to a definite question asked Larry St. John by defendant’s counsel that would have called for an answer that would tend to show bias. Counsel for defendant seems to think, and counsel for defendant on the trial of the case — different counsel from counsel on appeal — seemed to think, that the court was inclined to not allow him the latitude to which he was entitled in attempting to show bias on the part of the witness; but we must rule as to this point on the rulings of the trial court only, and cannot speculate upon what the trial court would have ruled as to definite questions asked the witness that would purportedly call for answers indicating bias on his part.

Defendant’s counsel also attempted to interrogate Larry as to prior difficulties between defendant and the victim of the homicide. It appears that the court limited defendant’s cross-examination of the witness in this respect to the bare evidence that there had been trouble or difficulties between the two and would not allow defendant to show by the witness whether the victim had ever struck defendant.

At the time questions were asked the witness as to former difficulties between defendant and the deceased, no evidence had been presented to show that defendant was acting in self-defense. In Cole v. State, Ala.Cr.App., 337 So.2d 40, 45 (1976), we held through Harris, J., now P. J.:

“ . . . . It is settled law that evidence of prior difficulties as part of the chain of events leading up to the killing is admissible when offered by the State but when offered by the defendant, such evidence is admissible only if the defendant was not the aggressor in the difficulty resulting in the killing and if the defendant has offered some evidence tending to show self-defense. Foreman v. State, 50 Ala.App. 236, 278 So.2d 238; Byrd v. State, 257 Ala. 100, 57 So.2d 388; Sanders v. State, 242 Ala. 532, 7 So.2d 483.”

In addition, it is to be noted that Larry testified that he never witnessed any former difficulty between defendant and the witness, and that all the information he had on the subject was hearsay. No reversible error can be predicated upon the action of the court as to cross-examination of Larry relative to any possible former difficulties between defendant and the victim of the homicide.

After defendant had presented her case by testimony, tending to show she acted in self-defense, the State recalled Mr. Robert V. Johnson, whose qualifications as a state toxicologist had been established and agreed upon by defendant’s counsel when the witness first testified on call of the State. Mr. Johnson, in rebuttal, testified that a few days before the trial the clothes, which were worn by deceased at the time he was shot, taken off him when he was admitted to the hospital, and then deposited in a plastic bag, were microscopically examined by the witness to determine whether there was any powder residue or powder burn in the area of the holes in the front of the victim’s shirt. He said there were no particles of powder and no powder burns thereon. He said there was bloodstain around the holes. It was established that the bag of clothes had been delivered to James St. John the day of his father’s death, and that he delivered the bag of clothes intact to an investigator for the prosecution a few days before trial, who testified that he promptly thereafter had delivered them at the office of Mr. .Johnson for examination.

Defendant objected to questions as to powder residue or powder burns on the clothes, saying, “There is no proof that these items of clothing are in the same identical condition as they were on the 24th day of November, 1972.” On appeal, appellant says that at the hospital “the clothing could have been washed or otherwise laundered so as to remove any powder which might have been on it.” We think that a showing was made that the clothes were in substantially the same condition at the time of their examination by Mr. Johnson as they were at the time the victim arrived at the hospital and the clothes were taken off him. There is hardly any likelihood of the clothes having been washed while at the hospital. Furthermore, if they had been washed or cleaned they would hardly have been placed again in a plastic bag. Also, the fact that bloodstains appeared on the shirt indicates that it had not been washed or cleaned since the shooting occurred.

The contention of defendant on appeal that she was entitled to the service upon her, “at least one entire day before the day set for the trial,” of “a list of the names of all the jurors drawn for the week in which the trial is set . . . . together with a copy of the indictment,” as provided by Code of Alabama, Tit. 30, § 63 (Recomp.1958) has been definitely determined adversely to defendant. Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975); Usrey v. State, 54 Ala.App. 448, 309 So.2d 485, cert. denied, 293 Ala. 776, 309 So.2d 489 (1975); Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, cert. denied, 295 Ala. 401, 328 So.2d 321 (1976); Spears v. State, 57 Ala.App. 525, 329 So.2d 579, cert. denied, 295 Ala. 420, 329 So.2d 582 (1976); Scott v. State, Ala.Cr.App., 331 So.2d 759, cert. denied, Ala., 331 So.2d 762 (1976); Proctor v. State, Ala.Cr.App., 331 So.2d 828 (1976); Killough v. State, Ala.Cr.App., 332 So.2d 736, cert. denied, Ala., 332 So.2d 739 (1976); Mathews v. State, Ala.Cr.App., 337 So.2d 125 (1976). The case now under review was tried in January, 1974. The cases just cited hold that Tit. 30, § 63 of the Code (Recomp. 1958), which is limited in its coverage to capital cases, has no field of application to cases, such as this one, that are no longer considered capital, in the light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

We do not agree with defendant’s insistence that the failure of the record to show affirmatively that defendant was served with a copy of the indictment as required by Tit. 30, § 63 of the Code, supra, constitutes a violation of her right to “a copy” of the “nature and cause of the accusation” against her as specified in Constitution of Alabama of 1901, Art. 1, § 6. The cases relied upon by defendant, including McCaghren v. State, 292 Ala. 378, 294 So.2d 766 (1974); Green v. State, 160 Ala. 1, 49 So. 676 (1909) and intervening cases all dealt with capital cases that were tried before Furman.

In a non-capital case, Boswell v. State, 290 Ala. 349, 355, 276 So.2d 592, 598 (1973), Justice Faulkner held:

“Appellant urges that he did not receive a copy of the indictment and thus had no notice of the charges against him, in violation of Article 1, § 6, Alabama Constitution. Again, there is nothing in the record on this question. We do note, however, that he waived the reading of the indictment during his arraignment on September 25, 1972. By pleading not guilty, he waived any argument that he had not been furnished with a copy of the indictment. See Howard v. State, 146 Ala. 149, 41 So. 301 (1906).”

We also note that at the arraignment the defendant in this case appeared with her attorney and “waived formal arraignment and pleaded not guilty.”

While Mrs. Essie Daffrin was testifying on the call of the State in rebuttal, an objection was made by defendant’s counsel to some of the questions asked her, on the ground that it was not proper evidence in rebuttal. Mrs. Daffrin lived across the road from the trailer and testified that she was in her yard cleaning some fish when the altercation and shooting occurred. She testified that she heard the loud talking, heard defendant call someone a “S.O.B.,” saw defendant’s mother grab defendant and hit her with her purse, saw defendant pick up a stick and get within reach of Raymond St. John when Larry took the stick away from her. She further testified that she saw defendant then go to the trailer and come out of the trailer with a gun in her hand in front of her. After all of this testimony, defendant for the first time made an objection on the ground that it was not proper evidence in rebuttal. Objection on that ground was made to the specific question, “How far was Mr. Raymond St. John away from Jackie St. John at the time and on the occasion she fired the pistol?” To that question as revised somewhat by State’s counsel, she said “Approximately from here to the lady in the black dress.”, which answer was modified to some extent after another question by State’s counsel, to which she replied, “That is when the gun was fired the first time.” Soon thereafter, she testified that the gun was pointed straight out in front of her, and upon her being asked by State’s counsel, “Was there any pause between the first and second shot?”, there was an objection by defendant’s counsel “because it’s improper rebuttal,” which objection was overruled by the court. The witness answered, “Just a short pause. It was just bang, bang, bang.” She was asked, “What, if anything, was she doing when she was firing the pistol?” To which defendant’s counsel said: “We object to that, because it’s improper.” The court overruled the objection, and the witness answered, “ . . . She was approaching, or in a move toward Mr. St. John.” Immediately thereafter, counsel for defendant stated, “We move to exclude the answer because it’s improper rebuttal.”

We conclude that, although defendant’s counsel did as noted above object to some of the testimony of the witness on the ground that it was improper rebuttal, there was no objection to much of her testimony as to what she saw and heard taking place in the yard where the altercation and shooting occurred. Under these circumstances, and all other circumstances, including the fact that at. the time the State rested its case there was no evidence sufficient to support defendant’s claim of a justifiable homicide under the principle of self-defense, there was no abuse of the discretion vested in the trial court in testimony presented in rebuttal that could have as well been presented by the State in its case in chief. Emerson v. State, 281 Ala. 29, 198 So.2d 613 (1967); Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964); Posey v. State, Ala.Cr.App., 337 So.2d 113 (1976); Hunter v. State, Ala.Cr.App., 335 So.2d 194, cert. denied, Ala., 335 So.2d 203 (1976); Martin v. State, 51 Ala.App. 405, 286 So.2d 80 (1973); Alexander v. State, 51 Ala.App. 267, 284 So.2d 292 (1973); Haisten v. State, 50 Ala.App. 504, 280 So.2d 209 (1973); Veith v. State, 48 Ala.App. 688, 267 So.2d 480.

J. Kent Ellerd also testified on rebuttal by the State as to matters that could have been shown by him as a witness for the State in the case in chief, but there was an objection to only one of the questions. The question was as to what he saw the three St. Johns do when the witness turned around, after he heard the first shot. His answer was: “I saw them pass out of my view by the trailer there at kind of a hurried walking motion.” The overruling of defendant’s objection to the question was not an abuse of the discretion vested in the trial court.

Mr. Robert V. Johnson, a toxicologist with the State Department of Toxicology, testified in minute detail as to an external and internal post-mortem examination that he made of deceased on the day of his death. He stated the location and condition of each of the holes in decedent’s chest, traced the path of the bullets and recovered them from the back of the body. He said that one bullet passed through both the upper and lower lobes of the lung and made its entry from the chest at the level of the tenth rib. He looked at the “heart, the lungs, the liver, the gall bladder, the spleen, pancreas, the kidneys, the G.I. system, the stomach, the intestines, the urinary bladder, and most of the organs.” In looking at the heart he observed that the man had had a heart attack some time in the past, a rather severe heart attack. He “found scars all through the heart.” He continued during interrogation by the prosecution as follows:

“Q In your opinion, Doctor Johnson, had Mr. St. John recovered from the heart attack that you say had occurred more than a month prior to your examination?
“MR. FAMBROUGH: Just a minute. We want to enter an objection to that question, because of the lack of qualification of this witness.
“THE COURT: Do you have a judgment?
“THE WITNESS: Yes, sir.
“THE COURT: Overruled.
“MR. FAMBROUGH: We except.
“A Yes, sir. In my opinion, what I saw was scars so that he sustained an attack. It had healed. This leaves him in a position of having less reserve.
“Q Would you describe to the jury what condition you found the lung that had been punctured by the bullet, or the trauma had gone through?
“A Actually, both lungs, as I recall. The other lung was probably more severe, even than the left one, but the lungs had filled with fluid. A condition not unlike pneumonia, one of respiratory failure. Instead of being like (sic)', airy, and spongy, these were very heavy and beefy. On dissection, they oozed a lot of blood, showing they had filled up with blood.
“Q Dr. Johnson, based on your examination of this body, Mr. Raymond St. John, and based on your experience and training as a toxicologist, do you have a judgment or an opinion, based on this post-mortem examination, as to the cause of death of this man?
“MR. FAMBROUGH: We object to that, Your Honor.
“THE COURT: Overruled.
“MR. FAMBROUGH: No proper predicate laid.
“THE COURT: Overruled.
“MR. FAMBROUGH: We except.
“THE,COURT: All right.
“A Yes, sir, I do.
“Q What is that, please sir?
“A In my opinion, this subject died as a result of pneumonia and pneumoni-tis, that is a respiratory failure from the bullet hole that entered near the left nipple.”

Mr. Johnson was not a physician. He had a B.S. degree, in chemistry; he was a postgraduate of Ohio State University, and had spent two and one-half years of postgraduate work at the Medical College of the University of Alabama, in biochemistry. He had done postgraduate work at Meade College; he had been a toxicologist for eighteen years and during that time had performed between fifteen hundred and sixteen hundred autopsies.

The position apparently taken by defendant on the trial, as well as the position definitely taken by appellant, was to the effect that, although Mr. Johnson’s qualification as an experienced toxicologist who had performed hundreds of post-mortem examinations was conceded, the fact that he was not a physician prevented him from testifying properly as to the cause of Mr. St. John’s death.

The mere fact that Mr. Johnson was a toxicologist did not qualify him as an expert to testify as to the cause of death. Nevertheless, the witness does not have to be a physician in order to so testify. Judge Tyson, in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973), summarized the law and authorities on the subject at that time, as to which there has been no change since, as follows:

“ . . .In instances where testimony relating to cause of death is offered, the Alabama cases show that the testimony need not be given by a physician. By way of example, such persons can testify as to cause of death as a funeral director of twenty-five years experience, Cauley v. State, 33 Ala.App. 557, 36 So.2d 347, cert. den. 251 Ala. 163, 36 So.2d 354; a licensed embalmer and undertaker, Le vert v. State, 34 Ala.App. 523, 42 So.2d 525, reversed 252 Ala. 308, 42 So.2d 532, cert. den. 252 Ala. 659, 42 So.2d 534; a chemistry professor, Scott v. State, 141 Ala. 1, 37 So. 357; an employee of the State Toxicologist’s Department who was not a physician, Maund v. State, 254 Ala. 452, 48 So.2d 553; an undertaker and county coroner of many years experience, Williams v. State, 255 Ala. 229, 51 So.2d 250; a mortician, Thomas v. State, 249 Ala. 358, 31 So.2d 71; county coroner with background of two years of college and one year working under the employ of a pathologist, King v. State, supra, or a deputy county coroner with the requisite training and experience, Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922; Willingham v. State, 50 Ala.App. 363, 279 So.2d 534; Snow v. State, 50 Ala.App. 381, 279 So.2d 552.”

The court was not in error in overruling defendant’s objection to questions asked Mr. Johnson. In making this determination, we do not overlook evidence offered by defendant by the testimony of Dr. John E. Hayne, the physician who treated Mr. St. John for his gunshot injuries while in the hospital, who had last seen him alive the day before his death, who expressed the opinion that he died of a heart attack which was “only indirectly” caused by the gunshot wound.

Among the refused charges requested by defendant was the following:

“I charge you, Ladies and Gentlemen of the jury, that unless you find from the evidence, and are satisfied beyond a reasonable doubt and to a moral certainty, that the deceased, Raymond St. John died from the gunshot wounds inflicted on him by the Defendant, then you must acquit the Defendant, Jackie Sue St. John.”

Five other requested charges of a similar import were refused. Appellant urges that refusal of each of the six charges was erroneous.

In each of said charges the words “wounds,” instead of the word “wound” is found. In four of said charges, the words “gun shot wounds” were used. The charges are misleading in the use of the plural instead of the singular. There was no contention, there was no evidence, that the bullet that entered the left shoulder of Mr. St. John caused or contributed to his death. There was no contention, there was no evidence, that any bullet wound was fatal other than that which was caused by the bullet that entered Mr. St. John’s chest at the left nipple and went through his left lung. The indictment charged defendant with killing Mr. St. John “by shooting him with a pistol.” It was not necessary for the State to prove that his death was caused by more than one wound or by more than one gunshot wound.

We think also that defendant had the benefit of everything to which she was entitled, to be found in the charges, by the comprehensive oral charge of the court as to the necessity of proof sufficient to convince the jury beyond a reasonable doubt that defendant killed Mr. St. John by shooting him with a pistol as alleged in the indictment. The court made it clear that defendant should not be convicted unless the shooting caused his death, making it also clear, however, that the shooting did not have to be the sole cause of his death. The court quoted from the oral charge approved in Barron v. State, 29 Ala.App. 137, 193 So. 190 (1940), and correctly applied it to the facts of this case, similar to Barron as to the particular issue of criminal responsibility for a homicide when there is evidence that natural causes and criminal causes have mingled on the deathbed.

We note also that all of the refused charges, except perhaps the charge quoted above, omitted consideration of the evidence as a basis for a reasonable doubt. We held as to a “reasonable doubt” charge in Green v. State, 45 Ala.App. 549, 233 So.2d 243, 245 (1970):

“Charge 15 is bad for leaving out consideration of all the evidence. Smith v. State, 230 Ala. 18, 158 So. 808 (Charge 55).”

There was no error prejudicial to defendant in the court’s refusal of any of the requested charges.

We have searched the record for error prejudicial to defendant and have found none. The judgment appealed from should be affirmed.

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

AFFIRMED.

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

BOOKOUT, J., dissents with opinion.

BOOKOUT, Judge,

dissenting:

I dissent from the reinstatement of the appeal and express no opinion on the merits of the case as written to in the majority decision.

As I stated in my dissenting opinion in Cantrell v. State, Ala.Cr.App., 353 So.2d 80, at 83 (1977):

“ ‘An appeal is not a matter of vested right, but by the grace of statute, and must be perfected pursuant to the time and manner prescribed in the controlling statute, and if the requirements of such statute are not met, the appeal must be dismissed. . . . ’ LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581 (1972), cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299.
“For numerous citations to the same effect, see 2 Alabama Digest, Appeal and Error, § 1.
“The federal courts may entertain petitions for and grant writs of habeas corpus. They may order the release of persons from confinement where they find that the State has failed to abide by certain constitutional provisions in the trial and confinement process. The federal courts may not, however, amend the Alabama statutory law by granting an ‘out-of-time appeal.’
“There is no such thing in Alabama law as an out-of-time appeal. Ellison v. State, 55 Ala.App. 50, 312 So.2d 632 (1975); Ex parte Mitchell, 54 Ala.App. 203, 306 So.2d 296 (1974), cert. denied, 293 Ala. 767, 306 So.2d 298.”

The original appeal in this case was dismissed by this court on April 1, 1975, for failure to comply with the statutory time for perfecting an appeal. That was prior to the effective date of the new Alabama Rules of Appellate Procedure, and thus the appeal was governed by the strict requirements of our statute regulating appeals. See: St. John v. State, 54 Ala.App. 672, 312 So.2d 77 (1975). This court has no authority to waive the express provisions of a statute and reinstate an appeal. The appeal has been reinstated in the instant case as well as in Cantrell, supra, by rule of expediency rather than rule of law. It is more expedient to give an appellate review than to put the State to the additional cost and effort of a new trial. On this point, I part company with my brethren on the court and respectfully dissent.

      . The reinstatement of the appeal is in accord with action of the Supreme Court of Alabama as recited in Cantrell v. State, Ala.Cr.App., 353 So.2d 80, 81 (1977).


source: Caselaw Access Project

author: KARL, Justice.

license: Public Domain

text:
    Ernest P. MURPHY, Sheriff of Osceola County, Florida, et al., Petitioners, v. Curtis L. MACK et al., Respondents.
    No. 51025.
    Supreme Court of Florida.
    March 2, 1978.
    Rehearing Denied June 5, 1978.
    Jack M. Skelding, Jr., of Madigan, Parker, Gatlin, Truett, Swedmark & Skelding, Tallahassee, Norman J. Smith, Kissimmee, Frank J. McKeown, Jr., West Palm Beach, and Walter O. Lambeth, Jr., Atlanta, Ga., for petitioners.
    William E. Powers, Jr., Gen. Counsel, and Gene L. Johnson and Michael M. Switzer, Staff Attys., Tallahassee, and Irving Wein-soff, of Weinsoff & Weinsoff, Miami, for respondents.
    Mallory E. Horne, Tallahassee, for Florida Police Benevolent Ass’n, amicus curiae.
   KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, in Murphy v. Mack et al., Heidtman v. Florida State Lodge, Fraternal Order of Police, reported at 341 So.2d 1008 (Fla. 1st DCA 1977). We have jurisdiction because the decision of the District Court affects a class of constitutional officers. Article V, Section 3(b)(3), Florida Constitution.

The Florida State Lodge, Fraternal Order of the Police, filed an amended petition for certification of representation with the Public Employees Relations Commission (PERC) seeking certification as representative of certain deputy sheriffs of the Palm Beach County Sheriff’s Office for the purpose of collective bargaining. The amended petition designated the Palm Beach County Sheriff’s Department as the employer, and the designated unit claimed to be appropriate included all sworn personnel up to and including lieutenants and excluded civil deputies, bailiffs, captains and above. The Osceola County Police Benevolent Association also filed a petition for certification with PERC seeking to represent all Osceola County deputy sheriffs as their exclusive bargaining agent. The amendment to the amended petition for certification named Ernest Murphy, Sheriff of Osceola County, and/or the Osceola County Commission as the public employer.

Both Sheriff Heidtman, Palm Beach County, and Sheriff Murphy, Osceola County, filed separate motions to dismiss the amended petitions for certification which alleged, inter alia, that a sheriff is not a public employer under Chapter 447, Florida Statutes (1975), which motions were subsequently denied. PERC requested that the Division of Administration provide hearing officers for both of these matters to consider whether sheriffs are public employers within the meaning of Chapter 447, Florida Statutes (1975), whether petitioners are employee organizations within the meaning of Chapter 447, Florida Statutes (1975), whether the employee organizations are properly registered organizations with PERC, and what are the appropriate units of public employees. After the hearing officer filed his reports with PERC and exceptions were filed, a public hearing was held, and PERC then rendered its decisions. PERC concluded that a sheriff is an entity with “sufficient legal distinctiveness properly to carry out the functions of a public employer” and determined that deputy sheriffs are public employees within the definition of Section 447.203(3), Florida Statutes (1975).

Petitions for writ of certiorari were thereafter filed with the District Court of Appeal, First District, to review the PERC orders. The two cases were consolidated for oral argument and for decision by the District Court. The two questions presented were whether a sheriff is a public employer and whether deputy sheriffs are public employees as defined in Chapter 447, Florida Statutes (1975). The District Court held that a sheriff is an agency of the State and, therefore, comes within the definition of public employer as set out in Section 447.203(2), Florida Statutes (1975), which provides:

“ ‘Public Employer’ or ‘employer’ means the state or any county, municipality, or special district or any subdivision or agency thereof which the commission determines has sufficient legal distinctiveness properly to carry out the functions of a public employer. . . . ”

The District Court further determined that although deputy sheriffs are officers, they are also public employees within the definition of Section 447.203(3), Florida Statutes (1975), since Chapter 447, Florida Statutes (1975), includes persons appointed to their positions and public officers.

We are here confronted with the questions of whether a sheriff is a “public employer” and whether a deputy sheriff is a “public employee” as such terms are utilized in Chapter 447, Florida Statutes (1975). Petitioners argue that the District Court erred in holding that a sheriff, an independently elected, county constitutional officer, is an agency of the State and mistakenly relied on State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 So. 721 (1897), as authority for its decision. Petitioners submit that the constitutional and statutory scheme of this state relating to county sheriffs is to provide for independently elected county officers who are subject to minimal interference by any state regulatory agency. Distinguishing the classification of sheriffs from county school boards, petitioners state that sheriffs in Florida have never been held to be immune from suit under sovereign immunity on the theory that they were a part of the State. Petitioners emphasize that the term “officer” is noticeably absent from the Chapter 447, Florida Statutes (1975), definition of public employer and that sheriffs have not been made part of a state system subject to state control.

PERC responds that the District Court correctly found the office of sheriff to be an agency of the State since it is well established that a public office is an agency of the State, that the constitutionally created office of sheriff is an agency of the sovereign power from which it derives its authority and, therefore, is a public employer. Clear legislative intent was to encompass all governmental entities functioning as a public employer — all employing entities in the public sector. Undoubtedly, sheriffs perform the functions normally associated with an employer and exercise the requisite control over their personnel and the conditions under which they work.

Respondents, Florida State Lodge, Fraternal Order of the Police, contend that a sheriff is a public employer and that this Court expressly stated in State ex rel. Clyatt v. Hooker, supra, that an office is an agency of the State. Comparing Section 447.203, Florida Statutes (1975), and Section 112.044, Florida Statutes (1976), (which does contain an exclusion for any law enforcement agency) respondent argues that had the Legislature intended to exclude sheriffs from the coverage of Section 447.203, Florida Statutes (1975), it would have expressly done so as it had done in Section 112.042, Florida Statutes (1975).

Amicus, Florida Police Benevolent Association, submits that the sheriffs never questioned their sufficient legal distinctiveness and requisite control of the terms and conditions of employment of their personnel so as to carry out the functions of a public employer.

In response to the first question, we agree with the decision and rationale of the District Court and find that the definition of public employer does encompass sheriffs. Because óf the broad purpose enunciated in the act to promote harmonious and cooperative relationships between government and its employees, both collectively and individually, and to protect the public by assuring the uninterrupted operations and functions of government, we find that the term “agency,” as employed by the Legislature, was intended to include sheriffs. The office of sheriff possesses the requisite control over the terms and conditions of employment of its personnel and is sufficiently distinct from other county offices to warrant its designation as a public employer. Cf. Blackburn v. Brorein, 70 So.2d 293 (Fla.1954), Weitzenfeld v. Dierks, 312 So.2d 194 (Fla.1975).

As to the second issue for review relative to the status of deputy sheriff under Chapter 447, Florida Statutes (1975), we find that the language employed by the Legislature in Chapter 447, Florida Statutes (1975), does not reveal a legislative intent to include appointed deputy sheriffs within the definition “public employee.”

Section 447.203(3), Florida Statutes (1975), defines “public employee” as:

“ . . . any person employed by a public employer except:
“(a) Those persons appointed by the Governor or elected by the people, agency heads, and members of boards and commissions.
“(b) Those persons holding positions by appointment or employment in the organized militia.
“(c) Those individuals acting as negotiating representatives for employer authorities.
“(d) Those persons who are designated as managerial or confidential employees pursuant to criteria contained herein upon application of the public employer to the Public Employees Relations Commission.” (Emphasis supplied.)

Section 30.07, Florida Statutes (1975), provides:

“Deputy sheriffs. — Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.”

A sheriff is authorized to appoint deputies, for whose acts he is responsible, to act in his stead. A deputy sheriff holds office by appointment rather than employment and is invested with the same sovereign power as the chief law enforcement officer of the county. The relationship between sheriff and deputy has not been recognized by this Court to be that of employer and employee. To the contrary, this Court has expressly held that a deputy is not an employee, which is consistent with the common-law concept of deputy sheriffs. Blackburn v. Brorein, supra. The office of deputy is described in 70 Am.Jur.2d Sheriffs, Police and Constables § 2, and we quote with approval the following excerpt therefrom:

“The office of under or deputy sheriff is a common-law office; and this is the rule unless a change is effected by the constitution or statute law of the state. He holds an appointment, as distinguished from an employment. Where so clothed with power, a deputy sheriff is a public officer, although he may not be a state or municipal officer within the meaning of constitutional provisions. A deputy sheriff is a public officer under laws which require his appointment by the sheriff to be approved by a judge, and which provide that he must take an oath of office, and confer on him powers and duties equal to those of the sheriff himself. As such, he has been held not subject to civil service regulations. And in the absence of specific language including deputy sheriffs, a deputy sheriff has been held to be an official, and not an employee, of a county, within the meaning of a workmen’s compensation act. A deputy sheriff has been held to be embraced within the words ‘or other county officer’ contained in a statute relating to jury service, and, a special deputy, or one employed in particular eases, has been held to be an officer of the state under a statutory provision relating thereto.”

Rather than changing or modifying the traditional conception of the relationship between a sheriff and his deputy, this Court has ofttimes recognized the peculiar status of the deputy. This Court, in Holland v. Mayes, 155 Fla. 129, 19 So.2d 709 (Fla.1944), iterated that there is no relation as master and servant existing between the sheriff and his deputies. Cf. Mendez v. Blackburn, 226 So.2d 340 (Fla.1969).

Blackburn v. Brorein, supra, involved a suit by the Sheriff of Hillsborough County to determine the status of deputy sheriffs, i. e. whether they were employees of the sheriff or of the county. Describing at length the nature of the office, both at common law and under the constitution and laws of this state, emphasizing that the statutes require appointment of deputy sheriffs by the sheriff and citing with approval the passage from 47 Am.Jur. Deputies § 154 to the effect that the deputy holds an appointment as distinguished from an employment, this Court concluded that deputy sheriffs were not employees and that the provision of the Hillsborough County Civil Service Law providing that deputy sheriffs are employees within the classified services provision of the act was unconstitutional. Therein, this Court incidentally explained the necessity of a sheriff maintaining absolute control over the selection and retention of his deputies in order that law enforcement be centralized in a county and in order that the people be enabled to place responsibility upon a particular officer for failure of law enforcement.

In Parker v. Hill, 72 So.2d 820 (Fla.1954), a widow of a deputy sheriff who died from injuries received in an altercation while on duty filed a claim for workmen’s compensation benefits against the county and the sheriff thereof. Opining that the acts performed by the deputy sheriff are as a deputy “sheriff” of the county and not as an “employee,” this Court held that the deputy sheriff was not an employee but did come under the purview of the Workmen’s Compensation Act, not as an employee but as an officer “not elected at the polls.”

The District Court of Appeal, First District, in Johnson v. Wilson, 336 So.2d 651 (Fla. 1st DCA 1976), has previously determined that a deputy sheriff was not an employee since the sheriff did not employ Johnson as a deputy sheriff but appointed him, giving him the same power as the sheriff. The issue posed therein was whether the Police Officers’ Bill of Rights was applicable to the constitutional office of sheriff, and the District Court held that it was not applicable.

Since deputy sheriffs have not been identified as employees by the courts of this state, we cannot assume that the Legislature intended to include them within the definition of public employee without express language to this effect. In the absence of language including deputy sheriffs within the definition set forth in Chapter 447, Florida Statutes (1975), we find that they are not encompassed by the act.

The determination that a deputy sheriff is not a public employee is not inconsistent with our conclusion that the sheriff is a public employer since there may be persons employed by the sheriff, such as typists, stenographers, bookkeepers, cooks, janitors or others, who are not deputy sheriffs and whose duties and powers do not constitute a part of the sovereign power, who would be embraced by the definition of “public employee” in Section 447.203(3), Florida Statutes (1975). Cf. Blackburn v. Brorein, supra.

Accordingly, we hold that a sheriff is a “public employer” within the definition of Chapter 447, Florida Statutes (1975), but that a deputy sheriff is not a “public employee” within the contemplation of said act. Therefore, the decision of the District Court of Appeal is quashed insofar as it is inconsistent with this decision, and this cause is remanded for further proceedings consistent herewith.

It is so ordered.

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


author: ADKINS, Justice.

text:
    James David RAULERSON, Appellant, v. STATE of Florida, Appellee.
    No. 47991.
    Supreme Court of Florida.
    March 16, 1978.
    Rehearing Denied June 5, 1978.

      David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

The defendant, Raulerson, at approximately 11:00 o’clock p. m., Sunday night, April 27, 1975, walked to the back door of the Sailmaker restaurant in Jacksonville, Florida, where he pointed a .38 caliber revolver at Leonard J. Wilson, a young man working at the restaurant. Raulerson then pulled a wool mask over his head, forcing Wilson to enter the restaurant and lie face down on the floor. Raulerson went to the manager’s office where the manager, Robert E. Couture, was sitting with his wife, Nancy Couture, “cashing out receipts” for the restaurant. He forced them to lie on the floor with their face down and then was heard scooping the restaurant’s money off the table. Raulerson, after cutting the telephone wire, went to the back of the restaurant where everyone present was forced to lie down with their face to the floor.

Raulerson then took a young secondary school art teacher who was working evenings at the restaurant, to a back room with him. He forced her to take off her clothes and place her mouth on his penis. He then inserted his penis in her vagina, later pulling his penis out of her vagina and ejaculating on her stomach.

In the meantime, Raulerson’s cousin, Jerry Leon Tant, wearing a mask similar to the one worn by Raulerson, was standing guard over the others in the restaurant. Officer English, answering a call, came to the scene and started pushing a buzzer at the door of the restaurant. When there was no response to the buzzer, Officer English opened the door, saw Tant standing at the door with the mask on and an automatic pistol in his hand. He shot Tant with Tant falling to the floor. Officer English then bent over Tant.

Raulerson at this time left the young art teacher, went out into the main part of the restaurant, saw Officer English bending over Tant, and shot Officer English in the chest after which Officer English cried out that he was hurt. Officer Stewart, who was standing behind Officer English, started shooting Tant who was moving. Rauler-son fired five more shots from his revolver, emptying the revolver and shooting Officer Stewart in the heart, killing him. During this period there were approximately fifteen shots fired. Raulerson then ran from the immediate scene of the shooting clutching his side where he had been shot, trying to escape. After finding no viable escape route, Raulerson returned, took off his mask, laid down his gun, and surrendered.

An indictment was returned charging defendant with murder in the first degree. He was convicted and the sentence of death was imposed. This appeal resulted.

Defendant attacks the Florida death penalty, contending that it violates the provisions of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9 and 17, Florida Constitution, because arbitrary, standardless .discretion still exists in the process by which the penalty is determined and imposed. He also says that the death penalty is inherently unconstitutional in that it is cruel and unusual punishment.

Among other things, the defendant says that the state attorney is granted unbridled discretion in that he has a choice in filing capital charges against one co-defendant and not against another equally culpable co-defendant; that he can seek conviction for any lesser degree of a capital offense or for a lesser offense; and that he has discretion in plea negotiations.

In considering the question of discretion in the sentencing procedure, this Court in State v. Dixon, 283 So.2d 1 (Fla.1973), discussed Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and said:

“The mere presence of discretion in the sentencing procedure cannot render the procedure violative of Furman v. Georgia, supra; it was, rather, the quality of discretion and the manner in which it was applied that dictated the rule of law which constitutes Furman v. Georgia, supra.
“Discretion and judgment are essential to the judicial process, and are present at all stages of its progression — arrest, arraignment, trial, verdict, and onward through final appeal. Even after the final appeal is laid to rest, complete discretion remains in the executive branch of government to honor or reject a plea for clemency. See Fla.Const., art. IV, § 8, F.S.A., and U.S.Const., art. II, § 2.
“Thus, if the judicial discretion possible and necessary under Fla.Stat. § 921.141, F.S.A., can be shown to be reasonable and controlled, rather than capricious and discriminatory, the test of Furman v. Georgia, supra, has been met. What new test the Supreme Court of the United States might develop at a later date, it is not for this Court to suggest.
“Capital punishment is not, per se, vio-lative of the Constitution of the United States (Furman v. Georgia, supra) or of Florida. Wilson v. State, 225 So.2d 321 (Fla.1969).” pp. 6-7.

This reasoning and holding was followed and affirmed in Sullivan v. State, 303 So.2d 632 (Fla.1974). These cases are dispositive of the issues raised on this point.

Defendant then contends that the State failed to prove that Michael David Stewart was dead in that the proof failed to show that the Michael David Stewart named as the deceased in the indictment was the victim. He cites Freeman v. State, 101 So.2d 887-88 (Fla.2d DCA 1958), where the court held that proof of identity was an essential element of the corpus delicti. Defendant also refers to Smith v. State, 80 Fla. 710, 86 So.2d 640 (1920), where the information alleged that the victim’s name was “Mary Ida Bogich,” but the proof only shows that a “little girl” was killed. This was held insufficient.

The proof of the identity of the deceased must be established beyond a reasonable doubt. If circumstantial evidence is resorted to, the proof must be the most convincing, satisfactory, unequivocal proof that is compatible of the nature of the case. Johnson v. State, 201 So.2d 492 (Fla.4th DCA 1967).

The court in Trowell v. State, 288 So.2d 506 (Fla.1st DCA 1973), set out nine methods that could be utilized in proving this element of the corpus delicti.

“It would have been manifestly easy for the State in its zeal to prove beyond a reasonable doubt that Raymond Jones was dead and to identify his dead body:
“1. There could have been the testimony of a relative or friend who saw his dead body as late as the funeral service;
“2. The funeral director, if he knew him personally;
“3. Any person who saw his corpse at the hospital who knew him personally;
“4. A photograph could have been taken of the cadaver which was autopsied which could later at trial have been identified by any person who knew him in his lifetime;
“5. A picture properly identified as Raymond Jones when alive could have been identified at trial as the person upon whom Doctor Klein performed the autopsy;
“6. Since allegedly death occurred sometime after the incident at the Santa Fe Bar, a certified copy of the death certificate could have been proffered;
“7. Circumstantial evidence, such as the contents of the body’s billfold, rings and other personal effects, garments, etc., could have been utilized.
“8. Scientific evidence, such as fingerprints, identification of teeth, hair, etc., tending to establish identity, may have been available to the State; and finally
“9. The prosecution could have at least proffered the hospital records where presumably Raymond Jones died, as well as the bullet which caused the death of the person whose body was somehow delivered to the autopsy room of the Ala-chua General Hospital on July 3, 1972.” At 508.

In the case sab judice, Officer James E. English testified that he went to the Sailmaker Restaurant with his “partner, Officer Mike Stewart,” and that Mike Stewart was shot. He identified the individual in a photograph as being Mike Stewart. The pathologist performed an autopsy on the body of the person identified in the photograph as Officer Stewart. Officer Weathington saw “Officer Stewart” fall when he was hit by gunfire and he pulled “Officer Stewart” out of the line of fire. He checked “Officer Stewart’s” pulse and stated “Officer Stewart has no pulse, and in my estimation, he was dead at the time.” This evidence is sufficient to prove the fact that the victim died. See Sims v. State, 184 So.2d 217 (Fla.2d DCA 1966).

Defendant says there was a fatal variance in that the information charged that defendant murdered “Michael David Stewart” and the proof showed that “Mike Stewart” was the name of the deceased. Defendant relies upon Davis v. People, 19 Ill. 74 (1857), and Timms v. State, 44 Tenn. (4 Cold.) 138 (1867).

In Davis v. People, supra, defendant was charged with the murder of “Seth Taylor,” but the victim was identified by the witnesses as “Taylor.” This warranted a reversal.

Timms v. State, supra, charged defendant with the murder of “H. G. Trobeck,” but the victim was referred to during testimony as “Gilbert Trobeck” or “the deceased Tro-beck.” The Tennessee Supreme Court held that in the absence of any proof that the victim was known as H. G. Trobeck, the variance was fatal and a new trial was ordered.

In Branch v. State, 94 Fla. 286, 115 So. 143 (1928), defendant was charged with assault with intent to commit murder upon one “Harry C. Beaty.” The testimony showed that the true name of the victim was “Henry Beaty.” While there was no testimony that the victim was as well known by the name of “Harry” as by the name of “Henry,” or that he was generally or commonly known as “Harry,” there was testimony that his true name was “Henry” and that he had been called “Harry” by his associates and others. The Court held that the testimony established the identity of the person alleged and proved to have been assaulted.

A material variance between the name alleged, and that proved, is fatal. Primarily, it is a question of identity and the essential thing in the requirement of correspondence between the allegation of the name in the indictment and the proof is that the record must be such as to inform the defendant of the charge against him and to protect him against another prosecution for the same offense.

It is general knowledge, and we take judicial notice of the fact that a person named “Michael” is generally referred to as “Mike.” We hold that the proof of the identity of the deceased was established beyond a reasonable doubt. The defendant could not have been embarrassed in the preparation of his defense, and the identity of the victim as alleged in the indictment with the person who was shot by the defendant is clearly shown by the record. This protects the accused against another prosecution for the same offense.

The evidence is sufficient to sustain the verdict of guilty of murder in the first degree.

After the rendition of the verdict a penalty hearing was held. The State produced witnesses who testified that defendant and his accomplice had committed an identical type of robbery in Hokes Bluff, Alabama, an act which defendant admitted in his own testimony during the penalty phase. A psychiatrist produced by defendant testified that defendant had a deepseated character disorder and that he was given to impulsive “acting-out” when under the influence of alcohol or drugs. The defendant himself testified that he had not been using drugs or alcohol at the time of the incident. The jury recommended the death sentence. At the conclusion of the penalty phase, the following occurred:

“THE COURT: At this time, the jury having found James David Raulerson to be guilty of Murder in the First Degree, the jury having rendered its Advisory Sentence — eight recommending the death penalty and four recommending life in prison — the Court having found, pursuant to the jury verdict, the defendant guilty of the crime of Murder in the First Degree, and the Court having denied the Motion for New Trial and other Motions of the defendant, the Court does at this time adjudicate the defendant, James David Raulerson, to be guilty of the crime of Murder in the First Degree, Case No. 75-1325.
“Do you, or anyone on your behalf, have any legal cause to show why sentence should not be pronounced?
“MR. STEDEFORD: No legal cause at this time, Your Honor.
“THE COURT: Is there anything further in mitigation or aggravation?
“MR. STEDEFORD: Your Honor, I talked with Mr. Raulerson about the matter earlier. Anything he might say, we realize, of course, that you have the Pre-sentence Investigation Report that you have provided to me. I have gone over it, I know that you have.
“THE COURT: Mr. Stedeford, I requested my • secretary to give you two copies of that so Mr. Raulerson may have one also.
“MR. STEDEFORD: I have not given him his copy. I received a second copy earlier just a few moments ago, but I will give him one at the conclusion of this hearing.
“Your Honor, Mr. Raulerson and I did discuss what mitigation we might bring before the Court. We, frankly, feel as though it would do little good to talk of mitigation in this case, and we feel as though you have considered it, and that Mr. Raulerson and I both concur that anything we might say would not change what you might be doing today.
“At this time, Your Honor, there s nothing further to say in mitigation.”

Defendant now says there was a violation of the principles announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in that the defendant himself was not shown the presentence investigation report.

The record clearly shows that defense counsel was provided with a copy of the presentence report and that he discussed the matter of mitigation with the defendant prior to the time the judge imposed the sentence. The presentence report was made a part of the record and defendant has not referred to any portion which he desires to rebut or explain.

Gardner contemplates that the presen-tence report be furnished to defense counsel, as stated by the court:

“There is no dispute about the fact that the presentence investigation report contained a confidential portion which was not disclosed to defense counsel. At 1202.
* * * * * *
“Without full disclosure of the basis for the death sentence, the Florida capital sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia. In this particular case, the only explanation for the lack of disclosure is the failure of defense counsel to request access to the full report. That failure cannot justify the submission of a less complete record to the reviewing court than the record on which the trial judge based his decision to sentence petitioner to death.
“Nor do we regard this omission by counsel as an effective waiver of the constitutional error in the record. There are five reasons for this conclusion. First, the State does not urge that the objection has been waived. Second, the Florida . Supreme Court has held that it has a duty to consider ‘the total record,’ Swan v. State, 322 So.2d 485, 489 (1975), when it reviews a death sentence. Third, since two members of that court expressly considered this point on the appeal in this case, we presume that the entire court passed on the question. Cf. Boykin v. Alabama, 395 U.S. 238, 240-242, 89 S.Ct. 1709, 1710-1712, 23 L.Ed.2d 274 and n. 3. Fourth, there is no basis for presuming that the defendant himself made a knowing and intelligent waiver, or that counsel could possibly have made a tactical decision not to examine the full report, cf. Estelle v. Williams, 425 U.S. 501, 507-508, 96 S.Ct. 1691, 1694-1695, 48 L.Ed.2d 126. Fifth, since the judge found, in disagreement with the jury, that the evidence did not establish any mitigating circumstance, and since the presentence report was the only item considered by the judge but not by the jury, the full review of the factual basis for the judge’s rejection of the advisory verdict is plainly required. For if the jury, rather than the judge, correctly assessed the petitioner’s veracity, the death sentence rests on an erroneous factual predicate.” (Emphasis supplied.) 97 S.Ct. at 1206-07.

The record clearly shows that the trial court complied with the Gardner standards.

Thereupon, the defendant was sentenced to death. The following findings in mitigation and aggravation were made by the court:

“MITIGATION
“(a) Whether the defendant has no significant history of prior criminal activity.
“Finding:
As a juvenile, or a young adult, Rauler-son received at least one sentence to the State Institution at Alto, Georgia for larceny in the State of Georgia, occurring in 1967. On March 12, 1975, Raulerson robbed the Warehouse Grocery, Hokes Bluff, Alabama. In committing the robbery, he followed the same procedure that he followed in the present ease in that he used a .38 caliber revolver, a similar mask, and required everyone to lie on the floor, face down. Raulerson was positively identified by James Pritchett, the husband of the head cashier of the Warehouse Grocery, as the man who pointed a .38 caliber revolver at him on the night of the robbery. After the Jacksonville Sheriff’s Office arrested Raulerson, they found approximately $11,000.00 in his Corvette automobile parked at the Ramada Inn at Jacksonville Beach. The money has been traced to the money taken in a robbery on March 12, 1975, of the Warehouse Grocery, Hokes Bluff, Alabama, and the money taken from a robbery committed on April 26, 1975, at the Brown Derby Restaurant, Tallahassee, Florida. The State of Alabama has extradition proceedings in progress to return Raulerson to Alabama to be tried for armed robbery.
“(b) Whether the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“Finding:
Raulerson knew and was able to understand the nature, quality, and wrongfulness of his acts on April 27, 1975; was able to understand the charges facing him; was able to adequately assist counsel in his defense at the trial. Raulerson has an antisocial or passive/aggressive personality with a dichotomy in personality (a Jekyll-Hyde personality with the catalyst which triggers the Mr. Hyde manifestation being alcohol, drugs, or a verbally or physically perceived threat). Rauler-son denies using drugs or alcohol in excess. There was no evidence of extreme mental or emotional disturbance during the commission of the crime.
“(c) Whether the victims were participants in the defendant’s conduct or consented to the act(s).
“Finding:
The victims at no time and in no way consented nor participated in the conduct of the defendant’s acts.
“(d) Whether the defendant was an accomplice in the murder committed by another person, and the defendant’s participation was relatively minor.
“Finding:
Raulerson was not a mere accomplice but was the active and aggressive perpetrator of the robbery, the rape, and the murder.
“(e) Whether the defendant acted under extreme duress or under the substantial domination of another person.
“Finding:
The defendant was the dominant person in the robbery, rape, and murder and in all surrounding events. There was absolutely no evidence of any form of duress or domination.
“(f) Whether the capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired.
“Finding:
Raulerson fully appreciated the criminality of his conduct and was capable of conforming his conduct to the requirements of law [refer to mitigation finding (b)].
“(g) The age of the defendant at the time of the crime.
“Finding:
Raulerson was in his majority, twenty-five years of age, at the time of the crime.
“AGGRAVATION
“(a) Whether the defendant was under sentence of imprisonment when the defendant committed the murder of which the defendant has been convicted.
“Finding:
Raulerson was not under sentence of imprisonment when he committed the murder of which he has been convicted.
“(b) Whether the defendant has previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person.
“Finding:
There was no evidence of a previous conviction involving the use of threat of violence.
“(c) Whether, in committing the murder of which the defendant has been convicted, the defendant knowingly created a great risk of death to many persons.
“Finding:
Raulerson, by the use of a firearm, by his directions to the people in the Sail-maker restaurant, and by all of his aforementioned actions created a great risk of death to many persons.
“(d) Whether the murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery or rape.
“Finding:
The murder was committed immediately after Raulerson committed the crimes of robbery and rape and in an attempt to flee after committing the robbery and rape.
“(e) Whether the murder of which the defendant was convicted was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
“Finding:
The murder was committed by Rauler-son in an attempt to escape from the Sailmaker restaurant and/or to avoid lawful arrest.
“(f) Whether the murder of which the defendant has just been convicted was committed for pecuniary gain.
“Finding:
The murder was committed during the commission of an armed robbery which Raulerson committed for pecuniary gain.
“(g) Whether the murder of which the defendant has just been convicted was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
“Finding:
The person killed by Raulerson was a police officer of the Jacksonville Sheriff’s Office performing his lawful duty in the enforcement of the laws of the State of Florida, and the protection of the people of the State.
“(h) Whether the murder of which the defendant was convicted was especially heinous, atrocious or cruel.
“Finding:
The murder of Officer Stewart, the wounding of Officer English, the robbery of the manager of the Sailmaker restaurant, and the rape of Linda Harrison were cold, calculated crimes which were atrocious, heinous, and cruel.
“It is the finding of this Court after weighing the aggravating and mitigating circumstances that there are sufficient aggravating circumstances which exist to justify the sentence of death.”

It is our responsibility to review the judgment and sentence imposed upon defendant in the light of other decisions and determine whether or not the punishment is too great. The sentencing process must be a matter of reasoned judgment rather than an exercise in discretion.

Alford v. State, 307 So.2d 433 (Fla.1975), was an affirmance of a death sentence where it appeared that the premeditated murder was committed by the defendant after committing rape. The Court found that the act was especially heinous, atrocious and cruel and the only mitigating circumstance was that defendant had no significant prior criminal record. Defendant in the present case says that the homicide was not heinous or cruel because it was accomplished by a pistol shot causing immediate death. This crime was committed during the course of the robbery and immediately after a rape. There were many shots fired and the deceased was well aware that his life was in danger from the moment he entered the restaurant. This was not a sudden attack, but was a part of a general robbery scheme. Alford had no significant prior criminal record. Rauler-son had a significant history of prior criminal activity.

In Sawyer v. State, 313 So.2d 680 (Fla.1975), the death penalty was justified by aggravating circumstance, which included the facts of an armed robbery resulting in murder, the defendant’s prior record including the commission of multiple robberies. Sawyer was a hard drug user requiring the expenditure of $200 per day, and was a man with an uncontrollable violent temper. Just as in Sawyer, the defendant in the case sub judiee had engaged in a series of robberies. Although it does not appear that Raulerson needed funds for the purchase of drugs or alcohol, it does appear that he was seeking pecuniary gain and that he committed a rape prior to the murder.

Songer v. State, 322 So.2d 481 (Fla.1975), involved the murder of a state trooper. The defendant who was sentenced to death was 23 years of age, had prior felony convictions, and was not so intoxicated at the time of the crime as to be unaware as to what he was doing. The defendant murdered the state trooper by shooting him four times and attempted to flee. There were no mitigating circumstances and the death penalty was held to be appropriate. Raulerson’s offense was committed during his effort to flee.

The defendant in Henry v. State, 328 So.2d 430 (Fla.1976), had a lengthy history of violence and demonstrated callous indifference to human life when he assaulted a police officer at the time of his arrest. The Court found that his acts were committed for pecuniary gain and for no other motive than perhaps to eliminate a witness. The death penalty was properly imposed. Rau-lerson’s acts were committed for pecuniary gain and for the purpose of avoiding arrest.

We are not confronted with the situation in which the “trigger man” was sentenced to life and the accomplice improperly received the death sentence, Slater v. State, 316 So.2d 539 (Fla.1975), nor are we confronted with the situation where the jury gives an advisory verdict recommending mercy and the trial judge sentenced defendant to death. Swan v. State, 322 So.2d 485 (Fla.1975); Tedder v. State, 322 So.2d 908 (Fla.1975).

A murder committed during the course of a robbery, where the evidence shows defendant as being the trigger man, has been carefully considered by the Court in several cases. Meeks v. State, 339 So.2d 186 (Fla.1976), involved an execution-type murder so that defendant could flee after the commission of the robbery. The death penalty was held appropriate even though defendant was 21 and had no prior history of criminal conduct.

In Sullivan v. State, supra, the sentence of death was held appropriate where defendant and his accomplice abducted the manager of a restaurant, fully intending to murder the victim. The defendant was 25 years old, with no prior criminal record. The victim was shot several times in the back of the head.

In reviewing the aggravating and mitigating circumstances, the nature of the murder and the circumstances under which it was committed, we hold that the aggravating circumstances outweigh the mitigating circumstances and the penalty of death is the proper sentence.

We have reviewed the evidence and it does not appear that the ends of justice require that a new trial be awarded. . We find that the judgment and sentence of the trial court in this cause is in accordance with the justice of the cause. Accordingly, the judgment and sentence of the circuit court is hereby affirmed.

It is so ordered.

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


author: GRIMES, Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Elliott BUCHMAN, as Administrator of the Estate of Andrea C. Buchman, Deceased, Appellee.
    No. 77-365.
    District Court of Appeal of Florida, Second District.
    April 21, 1978.
    As Modified On Denial of Rehearing May 19, 1978.

      George D. Lynn, Jr., and Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellant.
    Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, and William Wagner of Wagner, Cunningham, Vaughan & Genders, P. A., Tampa, for appellee.
   GRIMES, Judge.

The railroad appeals a final judgment for the plaintiff in a wrongful death action arising out of a crossing accident.

The accident occurred at the intersection of Twin Lakes Boulevard and the Seaboard Coast Line Railroad tracks in Hillsborough County. Twin Lakes Boulevard was a two-lane roadway running in a north/south direction. The road was 16 to 18 feet wide and was neither curbed nor marked with a center line. The Seaboard line consisted of a single set of railroad tracks running in an east/west direction. Approximately 900 feet east of the Twin Lakes crossing the tracks curved to the southeast. About 26 feet north of the railroad crossing, Twin Lakes Boulevard connected at a T-interseetion with Busch Boulevard which ran in an east/west direction parallel to the railroad tracks.

There was a standard black and white crossbuck warning sign for northbound traffic located on the right side of Twin Lakes Boulevard 37 feet south of the northernmost rail of the tracks. A standard red and white stop sign stood on the right side of the road 29 V2 feet south of the northernmost rail of the tracks. There were no signal lights or gates at the crossing.

The railroad right of way was 60 feet wide, 30 feet on each side of the center line of the tracks. There were no obstructions on the railroad right of way. However, there was a citrus grove to the southeast of the crossing and off the railroad right of way which obstructed the view of the track to the east for northbound vehicles until they were within 35 to 42 feet of the track.

The accident occurred about 11:50 a.m., April 15, 1975, in clear, sunny weather. The decedent was traveling north on Twin Lakes Boulevard in her Datsun sports car at approximately 15 to 20 miles per hour. She did not diminish her speed at any time from the time she passed the privately owned orange grove in the southeast quadrant of the crossing until the accident occurred. The speed limit on Twin Lakes Boulevard at this point was 30 miles per hour. When the accident occurred, the car radio was playing and the windows were closed. The train, consisting of a diesel locomotive and four passenger cars, was proceeding in a westerly direction from Tampa to St. Petersburg. As it rounded the curve east of the Twin Lakes crossing, it was traveling approximately 45 miles per hour. As it left the curve, the train accelerated and it was traveling at 50 miles per hour at the time of the collision. The speed limit for trains at the crossing was 59 miles per hour.

When the train was 100 to 140 feet from the crossing, the fireman saw the decedent’s automobile traveling north on Twin Lakes Boulevard appear from behind the orange grove. Since it appeared that the car was not going to stop, the fireman immediately jumped out of his seat and put the train into an emergency stop. The emergency braking system worked properly, but the engine did not come to rest until it was approximately 1,209 feet west of the crossing. The train struck the right front door of the Datsun, killing the decedent.

The engine’s headlamps were on at the time of the accident, and the train bell had been ringing continuously for three miles before the train reached the Twin Lakes crossing. The engineer and the fireman testified that the train began to blow its whistle at the whistle post designated for the crossing, and the whistle continued to blow in the standard sequence — two longs, a short, and a long — until the accident occurred. Two railroad employees who were driving on Busch Boulevard testified that they heard the whistle blowing as the train approached the crossing. Two train crewmen in the last car of the train and another person driving a truck on Busch Boulevard said that they did not recall hearing the train whistle. An investigating patrolman testified.that the wind at the accident scene was blowing toward the east at about 17 miles per hour.

The court denied the railroad’s motion for directed verdict and submitted the case to the jury. On the basis of comparative negligence, the jury found that the plaintiff’s decedent was 60% at fault and the railroad was 40% at fault. Accordingly, the court entered a final judgment for the plaintiff in the sum of $136,000.

The railroad first argues that it should have been granted a directed verdict. In response the plaintiff contends that a jury question was presented with respect to (1) the inadequate or untimely blowing of the train’s whistle, (2) the excessive speed at the crossing under the circumstances, and (3) the absence of more adequate crossing protection in light of the train speed in question.

A leading case on the subject of train whistles is Tyus v. Apalachicola Northern Railroad, 130 So.2d 580 (Fla.1961), in which the supreme court held that the testimony of a witness that he didn’t hear the whistle blow presents a jury question on the negligence of the railroad for failing to blow the whistle if the witness’ attention was directed to the point in issue. The language of Tyus is also susceptible to an interpretation that whenever negative testimony about the whistle is presented, a jury question always arises regarding whether the witness’ attention was actually directed to the existence of the train and the possibility that the train would be blowing its whistle. However, we think the true application of the rule depends on whether there are facts from which the jury could reasonably infer that the witness in question had his attention directed to the matter of audible signals as the train approached the crossing. If so, the jury is entitled to decide if the witness was paying attention and to accord to his testimony the weight it may deem proper; if not, the testimony of the witness simply lacks probative value. See Seaboard Coast Line Railroad v. Helman, 330 So.2d 761 (Fla. 4th DCA 1976), reversed on other grounds, 349 So.2d 1187 (Fla.1977).

In the case before us, there was no evidence from which the jury could infer that the attention of those witnesses who gave negative testimony about the whistle was directed to the matter of audible signals as the train approached. In fact, each of them specifically stated that they did not know whether the train blew its whistle because they were not paying attention.

Likewise, there was no basis upon which the jury could conclude that the train did not blow its whistle in a timely manner. The engineer and the fireman both testified that they began blowing the whistle at the whistle post located 1,261 feet east of the crossing. While two Seaboard men testified that whistle posts are usually placed about 1,500 feet from the crossing, there was no indication that this was required. Even at a speed of 50 miles per hour, if the train began to blow its whistle 1,261 feet from the crossing, the whistle would have been blowing for about 18 seconds before the accident. The fact that the whistle might have been blowing about three seconds longer had it commenced blowing at 1,500 feet could not be a basis for negligence.

The subject of train speed requires less discussion. Ordinarily, a jury question on negligence is presented when there is evidence that the train involved in a crossing accident was operating at a speed in excess of its speed limit. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187 (Fla.1977); Martin v. Favorato, 79 So.2d 780 (Fla.1955); Leslie v. Atlantic Coast Line Railroad, 103 So.2d 645 (Fla. 1st DCA 1958). However, no case has been cited for the proposition that a jury issue on train speed alone is presented when the evidence reflects, as in the instant case, that the train was operating within its speed limit. Of course, this does not mean that the speed of the train may not be a significant factor in those cases where there are no applicable train speed limits or where there are circumstances present which make the crossing particularly dangerous.

On the question of adequate crossing protection, our supreme court, in Atlantic Coast Line R. v. Wallace, 61 Fla. 93, 54 So. 893 (1911), long ago held that the legislature rather than the jury must determine whether particular methods of crossing protection should be used in order to prevent an injury, but that it was the province of the jury in a crossing accident to determine whether the railroad exercised all of the care and diligence required by the circumstances of the particular ease. This principle was more recently reaffirmed in McNulty v. Atlantic Coast Line Railroad, 198 So.2d 876 (Fla. 2d DCA 1966). Obviously, the railroad’s failure to provide crossing protection according to a statutory mandate would be evidence of negligence. But are there circumstances under which the railroad may have to go further?

In Atlantic Coast Line R. v. Smith, 53 So.2d 301 (Fla.1951), the railroad argued that it should have been granted a directed verdict because the evidence reflected that the speed of its train was under control and that the train was ringing its bell and sounding its whistle when the accident occurred in downtown Winter Haven. The court distinguished the cases upon which the railroad relied on the basis that they involved rural crossings rather than a crossing in the congested area of a fast growing municipality. In affirming a judgment for the plaintiff, the court observed:

It may not always be enough to blow the whistle and ring the bell, particularly is this true where the tracks of defendant are in a congested area where the vision is obstructed and various and sundry noises and other distractions are prevalent.

Id. at 302.

Florida East Coast Railway v. Soper, 146 So.2d 605 (Fla. 3d DCA 1962), involved an accident at a busy crossing in the City of Ft. Pierce. Visibility down the track was obstructed, and the crossing was marked by only the standard crossbuck warning sign. In affirming a jury verdict against the railroad, the court said:

The appellant contends that the trial court erred in failing to direct a verdict in its behalf since the evidence amply demonstrates full compliance with the law and, therefore, a total absence of negligence. This contention would merit serious consideration if the degree of care required of a railroad in a case such as this were fixed, requiring no more than audible and visual warnings and compliance with the laws relative to speed and erection of crossing signs. However, the degree of care is variable and dependent upon the circumstances of a particular case and the danger prevalent at a particular crossing. . .

Id. at 607.

The same principles were applied by our court in Seaboard Air Line Railroad v. Hawes, 208 So.2d 634 (Fla. 2d DCA 1968). The accident in that case occurred at a crossing where the view up the track was obstructed by a tree and some buildings off the railroad right of way. However, the driver apparently did see the train before the accident occurred because he left skid marks of 150 feet up to the tracks. There was no indication that the train failed to sound its whistle and its bell or that it was proceeding in excess of the speed limit. The crossing protection consisted of the standard crossbuck and some yellow lines painted on the highway. Relying heavily on Atlantic Coast Line R. v. Smith, supra, this court affirmed a judgment for the plaintiff by stating:

We conclude that in this case there was a factual situation for the jury to determine; whether considering the location of the railroad, the obstruction of the view of the railroad from the highway, and whether better look-out protection should be afforded the traveling public. In other words, we conclude that this was a jury case and that there was sufficient evidence to support the jury’s verdict.

Id. at 637.

From these and similar decisions, it appears that our courts have established a rule in railroad cases that where obstructed crossings in congested areas are involved, it may not be enough for the railroad to protect its crossing with the standard cross-buck, to operate its train within the speed limit, and to blow the whistle and ring the bell. The jury is still permitted to determine whether the railroad exercised reasonable care and caution under the circumstances and conditions existing at the time of the accident. A directed verdict would only be appropriate in those cases in which there is no evidence of any specific acts of negligence and there is no evidence that the crossing is especially dangerous.

The following quotation from 65 Am.Jur.2d Railroads § 509 (1972), reflects the fact that other jurisdictions have reached similar conclusions:

Support is found in many decisions for the conclusion that where the crossing involved is, as it is frequently put, an “ordinary country crossing” and presents no features of unusual danger, compliance with statutory requirements as to the giving of warning signals measures the full duty of the railroad company, but where the crossing is, in view of the geographical configuration of the vicinity, the presence of obstructions to the view of the crossing by an approaching traveler, the amount of travel over the crossing, etc., extrahazardous, the giving of the statutory signals may not be sufficient, and the jury may be justified in finding that additional warning was required to discharge the obligation of the railroad to use reasonable care in view of all the circumstances. .

Applying these principles to the instant case, it is evident that the court properly denied the railroad’s motion for directed verdict. While the subject crossing was about three miles beyond the city limits of Tampa, it was located in a congested area, and there was evidence from which the jury could infer that the crossing was frequently used. The decedent’s view to the right was totally obscured until she was about 40 feet from the track. Therefore, assuming an undiminished speed of 15 miles per hour, she had an unobstructed view up the track for less than three seconds before the accident. Accordingly, whether the railroad should have provided additional crossing protection became a jury issue, and in deciding whether the railroad was negligent, the jury could properly consider the manner in which the train was being operated and all of the other circumstances surrounding the accident.

A further point on appeal involves the testimony of three expert witnesses presented by the plaintiff over the objection of the railroad. First, Frank Fowler, a human factors consultant, was allowed to give an opinion that there were a number of “confusion factors” at the crossing, such as, (1) the fact that Twin Lakes Boulevard intersected with a four-lane highway (Busch Boulevard) approximately 30 feet beyond (north of) the crossing; (2) the fact that the railroad crossing had a slight rise to it; (3) the fact that the view of an approaching northbound driver would be restricted by the orange grove to the right; and (4) the fact that the county stop sign did not indicate whether it applied to the railroad crossing or to the street intersection.

The second expert witness was Professor Norman Korobow, a human factors psychologist, who testified that 80% to 87% of the population would not have been able to hear the train whistle under the circumstances described in a hypothetical question which assumed facts in evidence concerning the accident. He indicated that he did not take visibility into consideration because he had concluded that due to the respective speeds of the train and the automobile the plaintiff’s decedent could not have stopped short of the tracks when the train first came into view. His testimony did not suggest any consideration of the responsibility of motorists approaching marked railroad crossings to be alert and to listen for approaching trains.

The last expert was William Fogarty, a professor of civil engineering at the University of Miami. Professor Fogarty testified that in his opinion the crossing did not meet minimum design standards because the Florida Uniform Manual of Traffic Control Devices did not expressly provide for the installation of stop signs at railroad crossings.

On the subject of the admissibility of opinion testimony by a traffic reconstruction expert concerning the cause of an automobile accident, the court in Smaglick v. Jersey Insurance Co. of New York, 209 So.2d 475 (Fla. 4th DCA 1968), said:

Expert opinions are admissible only when the facts to be determined are obscure and can be made clear only by the opinions of persons skilled in relation to the subject matter of the inquiry; and when facts are within the ordinary experience of the jury, conclusions therefrom will be left to them, and even experts are not permitted to give conclusions in such eases, (citations omitted)

Id. at 476.

In Seaboard Coast Line Railroad v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971), the court, by a split decision, approved the admission of a psychologist’s testimony that the deceptive quality of various factors in the environment affected the visibility of the defendant’s standing train to the extent that the average driver in the shoes of the decedent would not have been able to react properly to avoid it. The court pointed out that the opinion of another expert witness that the railroad crossing was dangerous because it lacked sufficient warning devices to have alerted a driver in the decedent’s position should not have been permitted, but concluded that the admission of that testimony was harmless error.

Several years later a different panel of the same court, in Seaboard Coast Line Railroad v. Kubalski, 323 So.2d 32 (Fla. 4th DCA 1975), held that it was reversible error to allow the president of a consulting engineer and safety consultant firm to give an opinion in response to a hypothetical question with respect to how an average automobile driver would react when he found himself approaching a railroad crossing in a line of traffic under the same circumstances as the plaintiff’s decedent. The court concluded that the testimony improperly invaded the province of the jury to decide what a reasonable man should do or would do when faced with the instant situation. The court distinguished Hill on its facts by observing that the accident in Hill involved extraordinary circumstances.

As might be expected there are a number of cases from outside Florida on the general subject. The case of St. Louis Southwestern Railway v. Jackson, 242 Ark. 858, 416 S.W.2d 273 (1967), is of particular interest because many of the factors among those deemed to be within the comprehension of the average juror were present in the case below. In Jackson, the Arkansas Supreme Court said:

We hold that the trial court erred in admitting the expert testimony about the abnormally dangerous condition of the crossing. The facts submitted to the witness for the basis of his opinion were as follows:
1. The type of highway.
2. The speed of automobiles approaching the crossing.
3. The approach to the crossing— namely, a straight level highway running due east and west.
4. The advance warning signs.
5. The number of vehicles that daily cross the crossing.
6. The number of trains that pass the crossing daily.
7. The speed of the trains.
8. The angle of the approaches — namely, right angles.
9. Obstruction to vision of motorist.
10. Obstruction to vision of train crew.
11. Previous accidents that had occurred recently under similar conditions.
12. Distraction elements to motorists.
13. Railroad crossing signals.
14. The kind of day.
15. The position of the sun.
Not a single one of the foregoing facts taken individually is beyond the comprehension of the average juror; nor can we find any reason to say that an average juror would not be competent to determine from the facts when considered together whether the crossing was abnormally dangerous. We have consistently held that it is prejudicial error to admit expert testimony on issues which could conveniently be demonstrated to the jury from which they could draw their own conclusions. See S & S Construction Co. v. Stacks, 241 Ark. 1096, 411 S.W.2d 508 (1967). Therefore we hold that the trial court committed reversible error in admitting the expert testimony on the abnormally dangerous crossing.

Id at 280.

After a thorough review of the record in the instant case, we have concluded that the testimony of the plaintiff’s experts referred to above had the effect of invading the province of the jury. The testimony was particularly prejudicial in this case because there was no independent evidence of specific acts of negligence. Expert testimony can be very helpful in explaining complicated subjects which are beyond the knowledge of the average juror. On the other hand, the practical effect of permitting an expert to testify is to advise the jury that this is a person whose opinion is worth considering. Therefore, allowing an expert to testify on matters of common knowledge creates the very real possibility that the jurors will be unduly influenced by the opinion of one whose advice was not needed by them to reach an intelligent conclusion.

All of the factors which Mr. Fowler said would cause confusion at this crossing were matters which could be readily appreciated by any person who drives an automobile. Counsel could have very properly pointed out the so-called “confusion factors” to the jury in his closing argument since they were predicated upon facts admitted into evidence. However, permitting Mr. Fowler to make the same observations effectively put the stamp of expertise upon an issue that the jury was fully competent to decide.

The testimony of Professor Korobow flies directly in the face of Kubalski. There are circumstances surrounding every railroad crossing accident which are peculiar unto themselves. However, unlike Hill, there were no “extraordinary” circumstances existent in this case which would warrant having a psychologist tell the jury that most people in the position of the decedent on the day of the accident would not have heard the whistle blowing.

The testimony of Professor Fogarty about the propriety of having a stop sign at the railroad tracks was inappropriate because this sign had been erected by the county rather than the railroad. Whether the presence of the sign was a factor which should have served as an additional warning to the decedent or whether it may have tended to confuse her were matters for the jury to decide.

The other points raised by the parties need not be discussed. The special verdict reflected total damages of $340,000 and the respective percentages of fault. No issue concerning compensatory damages was raised in this appeal. The judgment is reversed, and the case is remanded for a new trial only on the issue of liability.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: KEHOE, Judge.

text:
    Alice E. REPO et al., Appellants, v. FLAGSHIP FIRST NATIONAL BANK OF CORAL GABLES, Appellee.
    No. 77-141.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.
    Podhurst, Orseck & Parks and Michael S. Olin, Miami, for appellants.
    Myers, Kaplan, Levinson & Kenin, Miami, for appellee.

      Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a summary final judgment dated December 27, 1976, entered by the trial court in favor of appellee, defendant below. For the reasons set forth below, we affirm.

The basic question raised by this appeal is the propriety of the summary final judgment entered by the trial court in favor of appellee. The answer to this question turns, upon an analysis of the record to ascertain whether, at the time the trial court entered the summary final judgment, there existed any genuine issue of a material fact which would have precluded the proper entry of the summary final judgment. In our opinion, the record clearly reflects that appellee had negated the existence of any genuine issue of a material fact, notwithstanding the bare paper allegations of the complaint in regard to negligence, fraud, and misrepresentation. In the light of this determination, we hold that, pursuant to Rule 1.510, Florida Rules Civil Procedure, and the other applicable rules of law, the trial court properly entered summary final judgment in favor of appellee.

Affirmed.