author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ronnie Harvey HANVEY, alias v. STATE.
    6 Div. 889.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Feb. 20, 1979.

      Thomas A. Smith, Jr., Cullman, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted on an indictment charging him with the unlawful possession of “Phendimetrazine, a controlled substance, in violation of the Alabama Uniform Controlled Substances Act,” and sentenced to imprisonment for five years.

About 3:30 P.M., November 30,1977, five officers, equipped with a search warrant to search “the person” of defendant or “the premises” or “the vehicle described as a green and white house trailer” of defendant, on the east side of County Road 45, approximately eleven miles from the courthouse in Cullman, Alabama, went to said trailer, or mobile home, of defendant and his wife and conducted a search of the mobile home and an outhouse located about thirty steps from the mobile home. One of the officers went to the outhouse, opened the door and found a large black garbage bag containing an assortment of tablets (pills). The tablets were delivered to a toxicologist of the Department of Toxicology and Criminal Investigation, who, according to her testimony, examined some of the tablets, which all looked alike, and found that they contained phendimetrazine.

The major contention of appellant is that the trial court erred in admitting in evidence the contents of the bag found in the “outhouse.” Appellant strenuously urges that the search of the outhouse is not encompassed by the search warrant. He is right. Furthermore, if defendant had standing to invoke the Fourth Amendment as to the searching of the outhouse, we would have a close question as to the validity of such search and as to the admissibility of the evidence obtained therefrom. The warrantless search of a locked storehouse does not come within the “open fields” area of permissible search and seizure without a warrant. Adair v. State, 53 Ala.App. 251, 298 So.2d 671 (1974).

Under the undisputed evidence, which included the deed to the property upon which the outhouse was located showing in effect that defendant had no legal interest therein, testimony of the owner of the premises upon which the outhouse was located and testimony of defendant himself, it is clear that defendant neither had nor claimed any right to the use of the outhouse. The position of his attorney throughout the trial of the case was to the same effect. He stressed this, as he should have done, in emphasizing the inapplicability of the search warrant to the outhouse.

The rights protected by the Fourth Amendment are personal in nature and may be asserted only by those whose own rights have been, or will be, violated by the search and seizure. Thomas v. State, Ala.Cr.App., 358 So.2d 1076 (1978); Brown v. State, Ala.Cr.App., 339 So.2d 125 (1976). Defendant had no standing to invoke the Fourth Amendment as to the search and seizure in the outhouse. Such search and seizure did not constitute an infringement upon defendant’s right to be secure in his person, house, papers, and effects, against unreasonable searches and seizures.

Objection to the admission of the tablets in evidence on the ground that the evidence did not show that the tablets examined by the toxicologist were the same as those that were found in the outhouse is not supported by the evidence. The officer who found the tablets testified that he turned them over to another, who testified that he turned them over to a third officer,. who testified that he turned them over to the toxicologist who testified as to the analysis. Each of the two intervening persons testified that the pills were in the same condition when he turned them over to his successor in custody as they were when he received them from his predecessor; the first officer testified that they were in the same condition when he found them as they were when he delivered them to another, and the toxicologist testified that they were in the same condition when she received them as they were when she examined them. The toxicologist testified also that the individual pills were indistinguishable in appearance from one another.

Appellant also argues that the court was in error in not granting his motion for a mistrial, which he grounded on repeated references by witnesses and attorneys to the search warrant. It was unfortunate, we think, that so much attention was directed to the matter of the search warrant, which proved to be of little value to anyone, particularly the State; as the contraband found and seized was not obtained pursuant to the search warrant. Our review of the record convinces us, however, that neither party was any more responsible then the other for the injection of the matter of the search warrant into the case and the excessive emphasis thereon. It appears that neither side was certain as to what was intended by the other as to the search warrant and this resulted in changes in position by each. The warrant was never exhibited to the jury; none of its contents was read to the jury, and the court excluded it from the evidence. It would be purely conjectural to say that any harm whatever to defendant resulted from references to the search warrant, and we find that the court was not in error in its rulings as to it, including its overruling Of defendant’s motion for a mistrial.

The most difficult question presented is as to the sufficiency of the evidence to sustain the verdict, which was raised by defendant’s motion to exclude, which was treated by the court as a motion for a directed verdict in favor of defendant, and was overruled.

If what we have stated constituted all of the evidence as to defendant’s guilt of possession of the controlled substance alleged in the indictment, we would probably not be able to sustain the judgment. In addition, the evidence showed that at the time the officers arrived in an automobile in front of the mobile home, defendant was seen walking toward his house in a path from the outhouse to the mobile home. There was evidence also that the officers talked with defendant and fully advised him of his rights against self-incrimination and all of his rights as to an attorney without expense to him, and that defendant voluntarily discussed the matter with them. He never expressly admitted that the tablets were his, or had ever been in his possession, but, according to the testimony of the officer who found the pills, defendant asked him while only the two of them were together, how far “he was out there,” and when the officer replied, “I stepped off thirty-three steps.” the defendant said, “well, it has got to be over fifty, hasn’t it?” According to the evidence of the officer, the officer then said, “I don’t know.” The same officer testified:

“I asked Mr. Hanvey how he knew that we were coming out there on the search? And, he looked at me and said, well, said, I didn’t have any indication, information or anything from town or anywhere. There was a boy that stopped by the house that had seen a police car setting over on the side of the road and told me that looked like he was waiting on another car or something, and if I had anything I had better hide it. And, I got what of it I could hid before y’all got here.”

All of the circumstances considered, including the incriminating statement of defendant as testified to by the witness for the State, there was substantial evidence of defendant’s guilt, and the trial court was not in error in overruling defendant’s motion to exclude the evidence.

We should say also that defendant’s testimony in his own behalf, though in denial of guilt of possession of the pills found in the outhouse and in denial of his making the incriminating statement testified to by the witness for the State, did not necessarily help his side of the case. In an attempted explanation of his presence near the outhouse, he testified that his dog had killed a goat, that he hung the goat and had just drawn it and had taken the entrails and dumped them in the woods near the outhouse just before the officers arrived.

On rebuttal, the officer who found the contraband in the outhouse, testified that defendant in his conversations with him never said anything about taking the viscera of a goat anywhere. Furthermore, the officer testified that defendant had no blood on his hands or clothes, that defendant did not wash his hands, that the witness never smelled the odor of goat about defendant at any time and that defendant was in his presence practically all of the time the witness was at defendant’s home and that the two rode together in an automobile to the jail. The officer testified, and there was other evidence, that a dead goat partly skinned was hanging from a tree at the time. Another officer testified in rebuttal substantially in accordance with the officer who found the pills in the outhouse as to defendant’s failure to say anything about drawing the goat and taking its viscera away and to the apparent absence of any blood upon defendant’s hands or clothes.

We should probably say also that defendant’s wife testified in his behalf to the effect that she had never seen the contents of the plastic garbage or trash bag until the officers brought it to the mobile home and emptied it. She also said that she knew defendant was in the process of dressing a goat, but that she did not see him take anything away from the mobile home or the area in which the goat was said to have been eviscerated.

Although the evidence is not conclusive and the possibility of defendant’s innocence is obvious, the verdict of the jury is not to us palpably wrong or unjust, and we would not be justified in reversing the conviction.

We have found no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, 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. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . We will hereafter use the term “outhouse” as it was consistently used by witnesses and attorneys during the trial of the case. It should be noted, however, that the parties are in agreement that the designated house did not in November 1977 have the legal or technical status of an “outhouse” as that term is often employed in statutes or other legal authorities, as shown by Black’s Law Dictionary and 30A Words and Phrases. The parties are in agreement that in the past the particular structure had been an outdoor toilet of the occupants of a nearby dwelling, but that in November 1977 it was not used generally as a toilet by anyone and that its use in general was limited to the storage of some boards by the owner of the property upon which it was located, and that it was not within the curtilage of the mobile home occupied by defendant and his wife.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Ronnie Harvey HANVEY.
    78-312.
    Supreme Court of Alabama.
    April 6, 1979.
   PER CURIAM.

WRIT DENIED.

AH the Justices concur.


author: CLARK, Retired Circuit Judge.

text:
    L. C. BROWN v. STATE.
    1 Div. 935.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Neil L. Hanley, M. A. Marsal and L. A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Paul E. Johnson, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

Appellant-defendant was indicted for murder in the first degree of Clarence Carson “by shooting him with a pistol.” He was convicted of murder in the second degree and sentenced to imprisonment for fifteen years.

No contention is made that the evidence was not sufficient to justify the verdict, and our review of the record convinces us that there is no reasonable basis for such a contention. It is another case of an estrangement between a man and his wife, he having lived separate and apart from her; and another man, the alleged victim, having commenced living with her, where defendant would recently visit chiefly to see his children. The only surviving eyewitnesses to the killing of Carson were the defendant and defendant’s wife. She testified that as she and Carson returned from the Elks Lodge, where Carson was playing in a band, at about 4:00 A.M. and were in the process of entering the house where they were living, defendant appeared with a pistol in his right hand and shot Carson in the back of his head with one shot that, according to the undisputed evidence, caused his immediate death.

Defendant’s explanation was to the effect that he had been threatened by Carson; that he was afraid of Carson; that he was concerned about his children living in the same house as Carson and defendant’s wife; that he approached Carson and his wife with caution; that he hit Carson with his pistol and the pistol went off; that he did not intend to kill Carson or to shoot.

Charge No. 7, requested in writing by defendant and refused by the trial court, was as follows:

“If you have a reasonable doubt of defendant’s guilt growing out of the evidence or any part of it, you must acquit him.”

The charge is substantially the same charge which, when refused by the trial court, necessitated a reversal in Tillman v. State, Ala.Cr.App., 360 So.2d 1074 (1978), wherein Judge Bookout clearly explained why such charge should be given when requested by defendant in writing in a criminal case and set forth all the cases that need to be cited in support of the conclusion reached in the opinion.

Appellee takes no issue with the charge requested as a correct principle of law, but contends the principle was “adequately and substantially covered in the oral charge and for that reason it was not error to refuse the charge.” In setting forth the portion of the court’s oral charge that appellee contends substantially covers the principle stated in Charge 7, it quotes from the court’s oral charge as follows:

“. . . The State has the burden of proving the charge as a whole and each material allegation thereof beyond a reasonable doubt and to a moral certainty.”
“The oral charge demanded that before conviction the jury must be satisfied beyond a reasonable doubt and to a moral certainty that the evidence proved the charge as a whole and in part (each material allegation thereof).”

We do not believe that the substitution of the words “in part” for the words “each material allegation thereof” in the court’s oral charge is warranted. It appears to us that the court, in the language quoted from its oral charge, was referring to the charge in the indictment as a whole and each material allegation thereof and was not referring to the evidence as a whole and in part.

Although not cited by either party, we are reminded of the recent case of King v. State, Ala., 356 So.2d 1220 (1977) rev’g Ala.Cr.App., 356 So.2d 1216, wherein the Supreme Court held that the refusal of a similar charge was saved from error by reason of its coverage by portions of the court’s oral charge. However, our search of the oral charge for any substantial coverage therein of the principle set forth in requested Charge 7 has been in vain. There were no written charges given; all written charges requested were refused. The refusal of Charge No. 7 constitutes reversible error.

Appellant relies upon Lane v. State, 85 Ala. 11, 4 So. 730 (1887) and Morse v. State, 49 Ala.App. 203, 269 So.2d 916 (1972) in urging that it was error to refuse defendant’s requested Charge No. 6:

“The State must prove its charge, and prove it beyond a reasonable doubt, by evidence. The assertions of counsel are not evidence.”

In Lamar v. State, Ala., 356 So.2d 680, rev’g Ala.Cr.App., 356 So.2d 677, Justice Shores made it clear that what was held in the pioneer case of Lane as to a similar charge should be restricted to the circumstances of Lane, in which there had been an improper argument by the prosecuting attorney. To the record in this case, we apply what was said in Lamar:

“. . . There is nothing to indicate that improper argument was made by the prosecuting attorney. Clearly, assertions made by counsel are not evidence, but it is not necessary in every criminal prosecution that a charge to that effect be given to the jury. If the trial court adequately charges the jury as to what evidence it may properly consider in its deliberation, and adequately charges that the state has the burden to prove its charge beyond a reasonable doubt, it is not necessary that the charge expressly exclude assertions of counsel from the jury. Lane v. State, supra, does not compel a reversal in all instances where the trial court refuses the charge as requested by the defendant in this case.”

There is nothing in the record before us to indicate that the jury could have been led to believe that the assertions of counsel constituted evidence in the case. Contra-wise, just after the jury was selected to try the case and immediately before the attorneys made their statements as to what they expected the evidence to show, the court instructed the jury as follows:

. . They [the attorneys for the respective parties] are going to address you in a few moments and will tell you what they think the evidence in this case will show. What they say to you is not evidence . . ..”

Just after the close of the testimony and immediately before the attorneys commenced their arguments, the court stated to the jury:

“. . . What [the attorneys] say, what comes out of their mouth is not evidence in this ease. It’s their impression or their evaluation that they want to pass on to you of what the evidence in this case has shown or has failed to have shown . . ..”

The court was not in error in its refusal of Charge 6.

Defendant’s written Charges 2, 4, 8, 12 and 20, setting forth the principle that the presumption of innocence attends an accused “as a matter of evidence” were refused. It has beén steadfastly held that such charges state a correct proposition of law to which a defendant is entitled by an instruction of the court to the jury. Bryant v. State, Ala.Cr.App., 348 So.2d 1136 (1977), in which a list of recent cases in support of such conclusion is found.

Appellee urges that the particular principle stated in said refused charges is covered by a portion of the court’s oral charge as follows:

“. . . there is a presumption of innocence, a cloak of innocence wrapped around the shoulder of the defendant. When he walks into court That presumption of innocence, as you can see, would not require the defendant to prove anything. That’s our system of criminal justice. That presumption not only walks into the door with that defendant, but it remains wrapped around his shoulder like a cloak until the burden of proof has been met by the State or the case as a whole and each material allegation thereof . . .. The State has the burden of proving the charges as a whole and each material allegation thereof beyond a reasonable doubt and to a moral certainty.”

It is to be noted that there is no reference in the quoted portions of the court’s oral charge to the attendance of the presumption of innocence “as a matter of evidence,” and we find no such reference in any of the main body of the oral charge. However, before the jury retired and during the discussions among the court and counsel for the respective parties as to proper forms of verdict and the matter of objections or exceptions to the court’s oral charge, the following occurred:

“MR. HALE: Judge?
“THE COURT: Yes, sir.
“MR. HALE: There is just one, just a technicality, perhaps I didn’t hear it due to some inattentiveness on my part, but I think it ought to be clear that the presumption of innocence attends a defendant as a matter of evidence, and I am not sure whether that was brought out.
“THE COURT: It is so. It begins with him, it is a evidentully [sic] presumption, it begins at that door and continues until the State has met standards that I told you. I thought I made it clear it was a evidentual [sic] presumption.
“MR. HALE: Perhaps you might have.
“THE COURT: Well, it doesn’t hurt to repeat it. It doesn’t hurt to repeat it. It’s part of our system. All right, now, I have here — [instructions as to the form of verdict].”

By the quoted portion of the record, the defendant had the benefit of an instruction to the jury that the presumption of innocence attended him “as a matter of evidence.”

A trial court is not responsible for a misspelling of words in the record. We have no doubt that the learned trial judge said, “evidential,” that he meant it and that he would have correctly spelled it if he had been called upon to do so. The word was commendably apt as meaning “of the na,-ture of, relating to, or affording evidence Webster’s International Dictionary (2d ed.).

Defendant’s requested Charge 25, relative to the effect of good character in connection with all the evidence, is identical with Charge C in Kilpatrick v. State, 37 Ala.App. 165, 66 So.2d 441, cert. denied, 259 Ala. 212, 66 So.2d 445 (1953) as to which it was held:

“It is our conclusion however that the court did err in the refusal of appellant’s Charge C. This charge has been held good, and its refusal error in the absence of oral instructions along the same line, in several Supreme Court cases, above cited, and by this court in the Warren case, supra, decided in 1946.”

Several witnesses testified as to defendant’s good character in the instant case.

There is no contention, and we do not find, that the requested written charge was covered by any of the oral charge. In accordance with Kilpatrick, we find that there was reversible error in the refusal of Charge 25.

Appellant challenges the refusal of his requested Charge 9, which states:

“The Court charges the jury that the burden is upon the state, and it is the duty of the state, to show, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, every circumstance necessary to show that the defendant is guilty; and, unless the state has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.”

This is not a circumstantial evidence case. The only controversy as to the facts is to be found in the difference between the eyewitness testimony of defendant and that of defendant’s wife as to what defendant did and said at the time Clarence Carson was killed. By analogy to Harris v. State, 46 Ala.App. 497, 243 So.2d 770, 774, we find that there was no error in the refusal of Charge 9. In Harris, supra, in considering a charge requiring an exclusion to a moral certainty of every reasonable hypothesis but that of defendant’s guilt, “no matter how strong the circumstances,” it was held:

“Of a similar charge in a non-circumstantial evidence case, we wrote in Johnson v. State, 42 Ala.App. 511, 169 So.2d 773:

“ ‘Though refusal of this charge [8] was not reversible error in Morgan v. State, 20 Ala.App. 331, 102 So. 236 (Charge E), it has been approved in Wilson v. State, 243 Ala. 1, 8 So.2d 422 (Charge 51) and Bryant v. State, 116 Ala. 445, 23 So. 40. Perhaps the factor that so little of the State’s case derives from circumstantial evidence makes refusal of this charge harmless.’ (bracketed material added).”

At the conclusion of the court’s oral charge, defendant made known to the court that he was excepting to portions of the court’s oral charge relative to malice and as to its definitions of homicide, which appellant now urges were erroneous. In making known his exceptions, there was no selection and recital of what the court said. There was no statement of the substance of the parts of the court’s charge to which exceptions were taken. Under the circumstances reversible error cannot be predicated upon any alleged claimed erroneous statements contained in said portions of the court’s oral charge. Burns v. State, 57 Ala. App. 281, 327 So.2d 920, cert. denied, 295 Ala. 423, 327 So.2d 927 (1975); Aldridge v. State, Ala.Cr.App., 351 So.2d 656, cert. denied, 351 So.2d 658 (1977); Sellers v. State, Ala.Cr.App., 353 So.2d 535 (1977).

There was no error in the trial court’s stating to the jury that it had a written agreement between the parties that they could separate during the trial. The requirement of Ala.Code 1975, § 12-16-9(b), that it shall be “improper for the trial court to ask the accused, counsel for the accused or the prosecuting attorney, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial” is not violated by the court’s announcement to the jury of the fact that such an agreement has been made.” Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Lamar v. State, Ala.Cr.App., 356 So.2d 677, rev’d on other grounds, 356 So.2d 680 (1977).

For the errors indicated, the judgment of the trial court should be reversed and the cause remanded for another trial.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, 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. The judgment is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Robert Lee PEACOCK v. STATE.
    1 Div. 998.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted of arson in the first degree and sentenced to eighteen years’ imprisonment. The only question raised on appeal is the sufficiency of the evidence to support the conviction.

John Tindle, pursuant to an arrangement with the appellant, entered into a contract with John R. Ambrose, a real estate salesman, to purchase a small residential house for $8,500.00. Tindle then insured the house for $10,000.00 and its contents for $5,000.00. The arrangement was that Tin-dle would “come up with the funds” and the appellant would “do the rest” and have the house burned. At the time of the appellant’s trial, Tindle had been indicted for the same offense.

James Lacy testified that the appellant contacted him to burn “that house” for $250.00, which Lacy was to receive after the house had burned. The appellant showed him the house.

Some time later Lacy returned and spread diesel fuel and gas, which the appellant had previously left, “around the house”. Lacy, using “cigarettes stuck between matches”, set a fuse in the kitchen and one in the living room. These did not go off. Lacy left and returned with another fuse. He was trying to set a new fuse when “all of a sudden it went up”. Lacy stated that he could not truthfully say who burned the house because he did not know. When “it blew up” Lacy was set afire. He ran outside and saw “a man running across the road”. Lacy testified that he “don’t know whether (he) dropped a spark or someone else threw a match through the window”.

State Fire Marshal John W. Hammac testified that he found no sign of accidental burning of Tindle’s house, that a “flammable material” was indicated and that the house “blowed out which a house will do when there are gasoline flumes and a flame ignites it”. Without objection he testified that the “police department had already found some (containers that appeared to have contained gasoline or diesel fuel) when (he) got there”.

Mr. Ambrose stated that he sold the house to Tindle; that the appellant was repairing the house for him and that the appellant said that “he had somebody that might want to buy the house”. When an agreement was reached regarding the house, Tindle, the appellant, and Ambrose were the only ones present. Ambrose denied any knowledge that the appellant and Tindle planned to have the house burned.

Ambrose saw the burned house and then went by the appellant’s trailer where he found Tindle and the appellant’s wife outside. Ambrose did not see the appellant.

Ambrose further testified that he told the appellant that he would not sell the house without insurance on it. When Ambrose told the appellant that he had received Tin-dle’s policy, the appellant “look(ed) at it very closely”.

■ Four witnesses testified for the prosecution. Excluding the testimony of the two admitted accomplices, the corroborative evidence has to be found in the testimony of Fire Marshal Hammac and realtor Am-brose.

Indulging every inference favorable to the prosecution, Marshal Hammac’s testimony revealed that Tindle’s house had been intentionally burned with the use of some flammable material such as gas or diesel fuel. Nothing in his testimony even tended to connect the appellant with the arson.

The testimony of realtor Ambrose also failed to connect the appellant with the crime. From his testimony we know that the appellant had repaired the house for Ambrose; that the appellant “had somebody (Tindle) that might want to buy the house”; that when Ambrose and Tindle reached an agreement on the purchase price of the house the appellant was present; that the appellant asked to see Tindle’s insurance policy on the house when Amb-rose brought up the matter; that the appellant looked at the policy “very closely”; and, that, on the morning after the fire, Tindle was outside the appellant’s trailer although the appellant was not there.

It is clear that the appellant was convicted on the uncorroborated testimony of his two accomplices in violation of Section 12 — 21—222, Code of Alabama 1975.

The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the evidence given by the accomplice and then examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the crime. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973); McLaren v. State, 353 So.2d 24 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977). The corroborative testimony need not be sufficiently strong in itself to support a conviction. It is sufficient if it legitimately tends to connect the accused with the offense. Senn v. State, 344 So.2d 192 (Ala. 1977). However it must raise more than a suspicion that the defendant participated in the crime. Harris v. State, 351 So.2d 681 (Ala.Cr.App.1977). Suspicious conduct on the part of the defendant is not, in itself, sufficient corroboration of an accomplice’s testimony. Lindhorst v. State, 346 So.2d 11 (Ala.Cr.App.), cert. denied, 346 So.2d 18 (Ala.1977). Here there was no conflict in the evidence and the question of whether Tindle and Lacy were accomplices was for the court and not the jury. Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972).

On appeal the State argues that James Lacy was not an accomplice as a matter of law because he was not “indicted for the offense, and it was undisputed that Lacy had neither accomplished the burning of the house nor been paid by the appellant to burn the house”. These three arguments are without merit.

The test of whether a witness is an accomplice is whether the witness could have been indicted and convicted of the offense charged either as principal or accessory. Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973). Here Tindle and Lacy admitted their participation in the arson and that participation was not disputed. The facts that Lacy received no money from the appellant for burning the house and that he testified that he did not know who burned the house are of no import. The facts stand undisputed that Lacy entered into an agreement with the appellant to burn Tindle’s house. Lacy spread gasoline and diesel fuel around the house and was in the process of attempting to detonate a third fuse when an explosion occurred. Therefore, regardless of whether Lacy actually ignited the fire by a spark or whether some unidentified party did so with a match, the fact remains that Lacy participated in the arson by spreading the gasoline with the intent to burn the house. The fact that Lacy participated in a conspiracy or an illegal venture with the appellant to burn Tindle’s house made him as guilty as the appellant even if he did not personally strike the match. Ladd v. State, 39 Ala.App. 172, 98 So.2d 56, cert. stricken, 266 Ala. 586, 98 So.2d 59 (1957). The fact that Lacy was not paid for his services has absolutely no bearing on whether or not he was an accomplice.

We recognize that it is difficult to prove arson. However that does not relieve the State of its statutory duty not to convict a defendant upon the uncorroborated testimony of an accomplice.

The appellant’s motion to exclude the State’s evidence and request for a directed verdict were due to be granted. Since a second trial is barred by the double jeopardy clause, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), this cause is reversed and rendered.

REVERSED AND RENDERED.

All Judges concur.


author: TYSON, Judge.

text:
    Jasper THORNTON v. STATE.
    3 Div. 853.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      George W. Cameron, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The appellant was indicted for the first degree murder of one Johnny Easterly “by shooting him with a pistol.” The case was tried with the State being represented by the District Attorney and by special prosecutors, and the appellant had competent counsel appointed for him by the court. The jury returned a verdict of guilty of murder in the second degree, fixing punishment at ten years imprisonment. The trial judge set sentence accordingly. From the denial of his motion to exclude and the refusal of his request for the affirmative charge, each challenging the evidence, the appellant prosecutes this appeal.

James R. Hamm testified that, on July 10,1977, about 6:00 p. m., he and his family were traveling east on the Southern Boulevard in Montgomery, Alabama, in the area near the Cleveland Avenue intersection where Hamm witnessed a shooting involving the appellant and another man. This took place on the grassy median of the Southern Boulevard. As he approached the scene of the shooting, Hamm saw the appellant walking from a green Cadillac, containing a woman and two children, which was stopped in the opposite lane of traffic. Hamm observed the appellant with a chrome pistol held down behind his leg so that it was concealed from the other man’s view. At this point, Hamm estimated that he was between fifteen and twenty feet from the scene. According to Hamm, the appellant approached the other man, who was standing on the median near a motorcycle, raised the pistol and fired once from about ten feet. As Hamm drove past the scene, he saw the appellant get into the Cadillac and drive away toward the west. The other party, Johnny Easterly, fell to the ground mortally wounded. Mr. Hamm stopped a passing motorist who called the police on his citizens’ band radio. Hamm did not recall seeing the deceased with any kind of weapon when he was shot.

Mrs. Victoria Hamm, wife of Richard Hamm, testified that she was riding with her husband on July 10, 1977, when she witnessed the shooting in question. Mrs. Hamm’s testimony was substantially the same as that of her husband concerning the sequence of events. Mrs. Hamm identified the appellant as the person whom she saw fire the pistol.

William E. Snell testified that, on the afternoon in question, he was traveling east on the Southern Boulevard when he witnessed a shooting which transpired on the grassy median between the two lanes of traffic. Mr. Snell’s testimony was substantially the same as that of Mr. and Mrs. Hamm, who previously testified. Mr. Snell stated that, when the appellant shot, the deceased was removing his helmet from his head. Mr. Snell did not see any weapons in the deceased’s hands.

Officer R. A. Rambo, a patrolman with the Montgomery Police Department, testified that, on the afternoon of July 10, 1977, he and his partner, Officer T. D. Jones, answered a police radio message directing them to proceed to the intersection of the Southern Boulevard and Cleveland Avenue to investigate an automobile accident involving a disturbance with a gun. As Officer Rambo arrived at the scene, he noted that three police units were already present and a paramedical squad was beginning to attend to the victim. Officer Rambo ascertained that the victim was one Johnny Easterly, a black male about twenty-five or twenty-six years of age. Various photographs taken at the scene of the shooting showing the location of the deceased’s motorcycle and skidmarks made by appellant’s automobile were admitted into evidence during Officer Rambo’s testimony. Officer Rambo spoke with a man named Bradshaw at the scene who had witnessed the collision between the automobile and the motorcycle. Officer Rambo did not search the area for weapons, nor did he attempt to question the victim of the shooting. Officer Rambo’s on-the-scene investigation was limited to the circumstances surrounding the traffic accident which had occurred.

Richard A. Roper, State Toxicologist, testified that he examined the body of Johnny Easterly on July 12, 1977. Dr. Roper was shown to possess the requisite training and experience to express his professional opinion as to the effect, of injuries on the human body. In the opinion of Dr. Roper, Johnny Easterly’s death was the result of massive hemorrhage caused by a gunshot wound to the abdomen which severed a major blood supply to the lower limbs. Several photographs taken by Dr. Roper during the course of the post mortem examination were admitted into evidence by the trial judge on the State’s motion.

Officer W. T. Sheriff, Jr., a patrolman with the Montgomery Police Department, testified that, about 7:00 p. m., on July 10, 1977, he stopped an automobile matching the description given to the police of an automobile allegedly used by the appellant to flee the scene of the shooting. Officer Sheriff identified the appellant as being the driver of the automobile. Passengers in the automobile included appellant’s daughter and his wife, Gloria Easterly Thornton, who was the deceased’s ex-wife. The appellant was stopped by Officer Sheriff in the area of appellant’s home, traveling in a direction opposite from that in which one would travel to arrive at Police Headquarters. Officer Sheriff arrested the appellant and confiscated a chrome plated, hammerless .38 caliber revolver, matching the general description of the weapon given to police by witnesses to the shooting. The proper chain of custody having been established, the trial judge admitted into evidence the revolver seized and identified in court by Officer Sheriff. Officer Sheriff recalled that the revolver contained two spent rounds in its chambers when he obtained possession of same.

Dr. Ronald K. Montgomery testified that he performed an emergency surgical operation on one Johnny Easterly at Jackson Hospital in Montgomery on the evening in question. Dr. Montgomery was qualified on the stand as an expert in his field. Dr. Montgomery recalled that the deceased was in a state of shock when he was first examined. During surgery, the deceased experienced a serious drop in blood pressure. Subsequently, the patient died on the operating table despite efforts to restore a normal heart rate. Dr. Montgomery was clear to the conclusion that death was the result of massive internal bleeding caused by a single gunshot wound to the abdomen.

Ms. Virginia Giles testified that she was the deceased’s grandmother. On cross-examination, it was brought out that she hired special prosecutors to handle the State’s case.

Ms. Mary Boung, the deceased’s sister-in-law, identified State’s exhibit fifteen as being a photograph of the deceased. On cross-examination, the defense inquired about the deceased’s prior acts of violence and reputation in the community. It was shown that the deceased had served a prison sentence for killing a man, and that he had shot Gloria Easterly Thornton when she was his wife.

Detective J. M. Duncan of the Montgomery Police Department testified that he participated in the investigation of the incident in question. Detective Duncan established that the shooting occurred within Montgomery County.

The State then rested its case. The appellant’s motion to exclude was denied, whereupon the defense presented its case to the jury.

The case for the defense consisted of the testimony of some thirty witnesses, twenty-three of whom testified as to the appellant’s good character and reputation. From this testimony, it appeared that appellant was employed at the City Garage where he painted municipal automobiles, including those of the police. The evidence of appellant’s good character and reputation consisted of the testimony of five fellow workers, nine friends and nine police officers. No issue being made, we will not detail this evidence.

Gloria Easterly Thornton, wife of appellant, testified that she had formerly been the wife of the deceased. Mrs. Thornton was married to the deceased for six years, from 1971 until 1977, when she was divorced and subsequently married the appellant. It appears from the testimony that, during Mrs. Thornton’s marriage to the deceased, he served some portion of a prison sentence, probably beginning in 1973.

Mrs. Thornton stated that she was with the appellant in his automobile on the afternoon of the shooting incident in question. Mrs. Thornton indicated that the deceased, while riding a motorcycle, pulled up beside the appellant’s automobile on the passenger side as they were driving east on the Southern Boulevard. Mrs. Thornton testified that the deceased said to her from his motorcycle, “I’m going to get you, bitch” (R. p. 104). At this point, the appellant increased the speed of the automobile and the deceased trailed behind the appellant. Then, the appellant came to an abrupt halt, whereupon the deceased collided with the rear of the appellant’s automobile. Without placing the automobile in parking gear, the appellant jumped out and fired a shot at the deceased who avoided being hit by the gunfire. The appellant then got back into his automobile as it began to roll away. Mrs. Thornton stated that the appellant drove to the next place where he could cross the median, made a 180° left turn, and approached the deceased, who was standing on the median near his disabled motorcycle. The appellant stopped his automobile and, armed with a pistol, walked toward the deceased. The appellant told the deceased, “. . . [I]f your [sic] going to do anything to her [Mrs. Thornton], you do it now” (R. p. 105). Then, the appellant shot the deceased, got back into his automobile and drove away.

Mrs. Thornton testified that, as a result of threats made to her and her daughter by the deceased, she went to the police, who advised her to see a lawyer. Mrs. Thornton went to Attorney Ed Livingston, who had handled her divorce from the deceased. Mr. Livingston sent Mrs. Thornton to the District Attorney. Mrs. Thornton was allowed, over objection, to relate to the jury how the deceased had shot her three times with a pistol on a prior occasion. Together, these events caused the appellant a great deal of worry.

On cross-examination, it was shown, over objection, that, at the time of the deceased’s death, there was a life insurance policy in effect, covering the deceased and specifying Mrs. Thornton as a beneficiary. The amount of the benefit under the life insurance policy was $8,000.00. At the time of trial, the insurance company had not paid this benefit.

Attorney Ed Livingston testified that, in April, 1974, he advised Gloria Easterly Thornton about a possible divorce action against the deceased, Johnny Easterly. Mr. Livingston testified that he had given advice to Mrs. Thornton on several occasions since that time.

Officer W. C. McRay with the Montgomery Police Department testified that the appellant came to him in April or May, 1977, for advice concerning threats to his safety, made by an unnamed individual. The trial judge allowed this testimony over the State’s objection.

Andrew Washer, a city employee, testified that, sometime prior to July 10, 1977, the deceased asked him to deliver a message to the appellant. The message contained a threat on the appellant’s life. On cross-examination, it was shown that Mr. Washer had served a prison sentence for grand larceny.

Officer Butch Gantt with the Montgomery Police Department participated in the investigation of the incident in question. Officer Gantt stated that he had known the appellant for approximately four years. Officer Gantt recalled that, sometime prior to the shooting in question, the appellant had sought his advice concerning threats on his life made by one Johnny Easterly. On cross-examination, it was shown that Officer Gantt had discussed the appellant’s case with the District Attorney prior to his appearance before the grand jury. On re-direct examination, Officer Gantt stated that, during his investigation of the case, he learned that the deceased had killed a man and had shot his wife (Gloria Easterly Thornton) three times with a pistol.

Jasper Thornton, the appellant, testified that he first met the deceased in 1976 when he began working for the city. The appellant related several occurrences wherein threats on his life were delivered by various people from the deceased.

The appellant’s account of the shooting was substantially the same as that of Mrs. Thornton. The appellant admitted shooting the deceased as he was standing on the grassy median of the Southern Boulevard. The appellant stated that he thought the deceased had a gun when he shot. The appellant said he was afraid of the deceased because he knew the deceased was capable of killing. At the close of the appellant’s testimony, the defense rested its case.

The court recalled the appellant to the stand to ascertain whether the appellant intended insanity to be a part of the defense in the case. . It was shown that the appellant had no intention of pleading insanity.

On rebuttal, the State called Detective J. M. Duncan, Jr., of the Montgomery Police Department. Detective Duncan testified that, after giving the appellant the standard Miranda warning, he took the appellant’s statement, which was later typed and signed by the appellant. The appellant’s signed statement, together with a signed acknowledgment of the receipt of the Miranda warning, were admitted into evidence. Officer Duncan stated that no force, threats, intimidation, improper inducements, or rewards were made or offered to the appellant in order to get him to make a statement.

Thomas E. Drone testified on rebuttal that he was employed by Equifax Services as a claim investigator. Mr. Drone investigated a claim for benefits under an insurance policy on the life of Johnny Easterly. As part of his investigation, Mr. Drone interviewed Gloria Easterly Thornton. Outside the presence and hearing of the jury, the State attempted to show, through the introduction of various documents in Mr. Drone’s possession, that Gloria Easterly Thornton in fact made a claim for the benefits under the policy. The trial judge sustained the objection by the defense to the documents, thereby foreclosing consideration of them by the jury.

The State recalled Gloria Easterly Thornton to clarify her prior testimony relative to making a claim under the life insurance policy. Mrs. Thornton testified that, after the insurance company representative came to her to discuss the policy, she signed the necessary papers to make a claim for the benefits. Mrs. Thornton stated that she made the claim about one month after Johnny Easterly’s death. The State then showed that her signature, dated July 13, 1977, appeared on a document authorizing the release of medical information on the deceased.

Olivia Easterly, the deceased’s eight year old daughter by his marriage to Gloria Easterly Thornton, testified that her father had whipped her on occasions in the past. Olivia’s account of the shooting incident was substantially the same as that of her mother and the appellant. Olivia, however, recalled her mother saying to the appellant after the first shot was fired, “. [Y]ou should have been killed him” (R. p. 292). After Olivia’s mother made the above-quoted statement, the appellant turned around and drove back to the place where Johnny Easterly was standing on the grassy median. Olivia testified that her father did not have a gun when he was shot. At the close of Olivia’s testimony, the State rested its case on rebuttal. The case was then sent to the jury.

I

Appellant contends that the trial judge erred in failing to charge the jury on the law relating to manslaughter in the second degree. Manslaughter in the second degree has been defined as the unlawful killing of a human being without malice and without intent to kill or inflict injury resulting in death, but accidentally committed while the accused was doing an unlawful act amounting to a misdemeanor, or doing a lawful act in a grossly negligent or improper manner. Touchstone v. State, 42 Ala.App. 141, 155 So.2d 349 (1963); Pitts v. State, 40 Ala.App. 702, 122 So.2d 542 (1960); see also § 13-1-90, Code of Alabama (1975).

There was no evidence presented which would tend to support a theory of the case consistent with manslaughter in the second degree. Under such circumstances, the trial judge’s refusal to charge the jury on manslaughter in the second degree was proper. Kelly v. State, 235 Ala. 5, 176 So. 807 (1937); Whitehead v. State, 206 Ala. 288, 90 So. 351 (1921); Lindsey v. State, 29 Ala.App. 25, 191 So. 474 (1939).

II

Appellant contends that the admission of a photograph (State’s exhibit fifteen) of the deceased taken by Dr. Roper during the post mortem examination was prejudicial error requiring reversal. Appellant argues that the photograph had no reasonable tendency to prove or disprove any material fact in issue.

It is well settled that the decision as to whether a photograph offered into evidence reasonably tends to prove or disprove a material fact in issue is within the sound discretion of the trial judge. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). After examining the photograph in question, we find no abuse of discretion in the admission of the photograph such as would warrant our reversal of appellant’s conviction. Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953); Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Brodka v. State, 53 Ala. App. 125, 298 So.2d 55 (1974).

III

During defense counsel’s direct examination of Attorney Ed Livingston, the following colloquy took place (R. p. 139):

“Q. Did she [Gloria Easterly Thornton] come to you back in July of this year relative to Johnny Easterly threatening her, mistreating her?
“MR. LOWERY: We object to the hearsay question and it calls for a hearsay answer.
“THE COURT: Sustained.”

Gloria Easterly Thornton had testified immediately before Attorney Ed Livingston. Mrs. Thornton testified that she went to Attorney Ed Livingston for advice concerning threats made to her by Johnny Easterly.

Appellant would have this Court hold that, since Mrs. Thornton had testified in the present trial that deceased had threatened her, the testimony of Attorney Livingston relative to the same subject would not have violated the rule against admission of hearsay. This we cannot do.

Hearsay includes every human statement, not made in the process of testifying as a witness in the present trial or contained in a deposition taken for use in the present trial, offered as tending to prove the truth of the matter stated. Gamble, McElroy’s Alabama Evidence, § 242.01 (3d Ed.1977), and authorities therein cited. Without a doubt, Attorney Livingston’s testimony was offered as tending to prove that, in fact, Johnny Easterly had threatened Mrs. Thornton in July, 1977. But the mere fact that Mrs. Thornton had previously testified that Johnny Easterly had threatened her in July, 1977, serves in no manner to bolster the reliability and trustworthiness of Attorney Livingston’s statement that Mrs. Thornton told him that Johnny Easterly had threatened her in July, 1977. Such was offered no doubt to bolster Mrs. Thornton’s assertions. The trial judge’s ruling was therefore proper.

IY

Appellant finally contends error to reversal occurred when the trial judge refused the following written requested instruction (R. p. 331):

“The Court charges the Jury that intent to kill is an element of the offense of murder and if the jury believe from the evidence that the mind of the defendant at the time of the act was such that he could not form the intent to kill, then you cannot find him guilty of murder.”

After reviewing the trial judge’s oral charge, we find that appellant’s above-quoted written requested charge was argumentative in nature, not properly predicated on the evidence in the case, and further was fully and substantially covered in the trial judge’s oral charge. Refusal was proper. § 12-16-13, Code of Alabama (1975); Barnes v. State, Ala.Cr.App., 361 So.2d 390 (1978), cert. denied, Ala., 361 So.2d 396 (1978); Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied, 292 Ala. 743, 290 So.2d 213 (1973).

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Jimmy EASLEY, alias Jimmy Gibbons v. STATE.
    3 Div. 977.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      C. Collier Carlton of Carlton & Carlton, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The twenty-eight year old appellant was indicted and convicted for the rape of an eight year old female child. The incident occurred on March 11, 1978, in a deserted apartment complex in the Jackson Heights area of Montgomery, Alabama.'

I

Though the prosecutrix was only eight years old she was positive in her testimony that she was raped by the appellant. As stated by appellate counsel, “It is without dispute that the prosecutrix in the case at bar, at one time or another, testified to facts that constitute rape”. Although there are some apparent conflicts in this child’s testimony concerning whether she had ever seen the appellant’s automobile, whether he pulled his pants down, and whether she knew what the word “rape” meant, these matters go to the weight and credibility to be afforded her testimony by the jury. Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921). The trial judge, in the exercise of his sound discretion, rightfully determined that the child was competent to testify. Wade v. State, 50 Ala. 164 (1874).

II

The trial judge did not err in refusing to give the appellant’s requested charges on the lesser included offenses of assault and battery and simple assault. The State’s evidence presented a prima fa-cie case of rape. The appellant denied any conduct with the prosecutrix. Under the evidence the appellant was either guilty of rape or he was innocent. Therefore there was no evidence to warrant the court in charging the jury on any lesser included offense. Fisher v. State, 57 Ala.App. 310, 328 So.2d 311 (1976).

III

The appellant contends that defense counsel was improperly restricted in cross examining a state toxicologist on the result of a laboratory test comparing soil samples allegedly taken from the appellant’s automobile and from the scene of the crime. The State objected “until it can be shown that this in fact did come from the car". The toxicologist testified that he received the two samples from evidence technician Hibbert. Officer Hibbert earlier testified that he collected soil samples from the scene of the crime and that he received other samples from Officer Shanks. Shanks did not testify that he took any samples from the appellant’s automobile and in fact there was no testimony, other than the toxicologist, that any samples were taken from the appellant’s vehicle. Therefore the toxicologist’s testimony regarding the source of the samples was hearsay and the State’s objection was properly sustained. Defense counsel made no attempt to lay the proper predicate for the admission of the test results and was not illegally restricted in his cross examination.

IV

Pursuant to instructions by the trial judge, the jury fixed the appellant’s punishment at thirty years’ imprisonment. This was error. Under the 1975 Alabama Code a jury has no such power where the charge is rape. Alabama Code §§ 13-3-110, 15-18-20, 1975. See Burton v. State, 364 So.2d 394 (Ala.Cr.App.), cert. denied, 364 So.2d 397 (Ala.1978) (robbery). Such error does not constitute a reversal but requires that this cause be remanded for proper sentencing by the trial judge. Swicegood v. State, 42 Ala.App. 492, 168 So.2d 624, cert. denied, 277 Ala. 702, 168 So.2d 626 (1964), cert. denied, 380 U.S. 920, 85 S.Ct. 916, 13 L.Ed.2d 804 (1965). In remanding we note that this matter is solely within the discretion of the trial judge who may increase or reduce the appellant’s sentence within statutory limits.

We have searched the record and found, no error prejudicial to the appellant. Therefore the judgment of the trial court is affirmed and the cause remanded for proper sentencing.

AFFIRMED; REMANDED FOR PROPER SENTENCING.

All Judges concur.


author: DeCARLO, Judge.

text:
    James Edward THOMAS v. STATE.
    4 Div. 667.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Larry W. Roney, Phenix City, for appellant.

      Thomas B. Estes, Asst. Dist. Atty., Phe-nix City, for appellee.
   DeCARLO, Judge.

This is an appeal from the circuit court of Russell County and is submitted to this court for review on brief of appellant and “notice of intention not to file brief” by appellee.

The appellee’s “notice” reads, in pertinent part, as follows:

“. . .in view of the fact that the defendant appears to be indicted for unlawful possession of phencyclidine and was allowed to plead guilty to the unlawful possession of marijuana, as shown by the amended judgment entry, the State must respectfully decline to file a brief herein. . . . ”

Briefly, the facts are that the appellant, James Edward Thomas, was indicted by the Russell County Grand Jury during its winter term of 1977. At arraignment, on April 28, 1978, appellant entered a plea of not guilty, but on May 17, 1978, Thomas executed an Ireland form, which indicated he wished to plead guilty to the offense of unlawful possession of marijuana. On June 23, 1978, appellant was sentenced to two years imprisonment in the penitentiary and his application for probation was denied.

The alleged error which gives rise to this appeal concerns the variance between the indictment and the offense to which the plea was made.

The indictment, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge that before finding of this Indictment James Edward Thomas did, while at or near 2318 Eighth Place, Phenix City, Russell County, Alabama, unlawfully possess phencyclidine, a controlled substance, in violation of Act Number 1407 of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Alabama Uniform Controlled Substances Act, and that such possession took place subsequent to September 16, 1971. . . .”

As can be seen from the foregoing, appellant was indicted for the unlawful possession of phencyclidine, but pleaded guilty to unlawful possession of marijuana. He contends that it was error for the trial court to accept the plea because it was for possession of a substance not named in the indictment.

The Ireland form executed by appellant and the in-court examination of appellant conducted by the trial judge specifically alluded to the offense of possession of marijuana, as follows, from the record:

“THE COURT: This is Case Number 67-24, James E. Thomas and he is up here on violation of the Alabama Uniform Controlled Substance Act; that is, possession of narcotics. Are you familiar with that charge; do you know what you are charged with?
“THE COURT: This charge of a violation of the Alabama Uniform Controlled Substance Act, it is narcotics but it is my understanding that you were charged with having marijuana, do you understand that?”

Thus, no contention can be made that the court did not comply with requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, the indictment did not charge possession of marijuana, but possession of phencyclidine.

A plea of guilty is “only an admission of record of the truth of whatever is sufficiently charged in the indictment, and does not prevent a defendant from taking advantage of error or defects apparent of record.” Camp v. State, Ala.Cr.App., 359 So.2d 1187.

Also, a plea of guilty must be “in form and substance to fit the indictment.” Woodard v. State, 42 Ala.App. 552, 171 So.2d 462. See also Champion v. State, 39 Ala. App. 13, 95 So.2d 800, in which the indictment charged a felony and the defendant interposed a plea of guilty “to some charge referred to as a violation of the prohibition law, and was sentenced as for a misdemean- or.”

Further, in Champion, supra, the court stated:

“Under the above cited authorities the indictment included no lower grade of offense, therefore since the record sustains the contention of the defendant that he did not plead to the indictment, the judgment must be reversed and the cause remanded.”

In the present case, the specific crime charged by the indictment is possession of phencyclidine, in violation of the Alabama Uniform ControlledSubstances Act, and that charge includes no lower grade of offense. As a consequence, no conviction could be predicated upon this indictment for any crime other than that specifically charged. Further, it is clear that appellant could not have pleaded guilty to possession of marijuana, an offense that was not specifically set out in the indictment.

We are of the opinion that the judgment should be reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Harry A. MILLS et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 54453.
    Supreme Court of Florida.
    March 8, 1979.
    William Wagner of Wagner, Cunningham, Vaughan & Genders, Tampa, for appellants.
    James C. Hadaway of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellee.
   PER CURIAM.

The order of the trial court, holding that section 627.7262, Florida Statutes (1977), is constitutional, is reversed. Markert v. Johnston, 367 So.2d 1003 (Fla.1978). This case is remanded to the trial court for further proceedings not inconsistent herewith.

It is so ordered.

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


text:
    WILSON REALTY, INC., a Florida Corporation, Appellant, v. Sara DAVID, Appellee.
    No. 78-917.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1979.
    Rehearing Denied March 27, 1979.
    John P. Grier and Burton J. Green, Cocoa Beach, for appellant.
    John M. Potter, Clewiston, for appellee.
   PER CURIAM.

After consideration of the record and briefs and hearing oral argument we have concluded that there is competent, substantial evidence to support the trial court’s final judgment denying specific performance of a contract for sale of real property as sought by appellant. However, we find it necessary to set aside the award of attorney’s fees to appellee.

The contract between the parties provided that if litigation arose from the contract relationship the successful party would be entitled to reasonable attorney’s fees. When the court entered judgment for appellee jurisdiction was reserved to award attorney’s fees at a later time. A hearing on attorney’s fees was subsequently held, but it occurred after appellant had filed its notice of appeal to this court of the final judgment. Consequently, at the time of the hearing the trial court had no jurisdiction to proceed without first obtaining the permission of the appellate court pursuant to Rule 9.600(b), Florida Rules of Appellate Procedure, which was not done. It cannot be argued that the trial court was proceeding on a matter which was unrelated to the final judgment because appellee’s right to a fee was predicated on that judgment.

Accordingly, the judgment is affirmed; the order awarding attorney’s fees is vacated; and the case is remanded for the purpose of conducting a new hearing directed toward the award of attorney’s fees to ap-pellee.

GRIMES, C. J., and BOARDMAN and SCHEB, JJ., concur.


text:
    Luis HERNANDEZ, James Eaton Staples, and Chic Eder, Appellants, v. The STATE of Florida, Appellee.
    Nos. 77-1682, 77-2412.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 16, 1979.
    Michael Kennedy and Paul Costeleiro, New York City, Jack Attias, Key Biscayne, Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellants.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

These appeals have been consolidated for appellate disposition because they grow out of the same factual situation. Chic Eder and James Eaton Staples appeal a judgment finding them guilty of possession of over one hundred pounds of marijuana, entered upon their plea of nolo contendere, reserving their right to appeal the trial court’s order denying their motions to suppress evidence of the marijuana, which was found in a truck and over which they were alleged to have had knowledge and control. The defendant Luis Hernandez appeals a judgment finding him guilty of the same crime. Hernandez was tried before a jury and found guilty.

Each of the defendants has a point urging error upon the trial court’s denial of defendants’ motion to suppress. For the determination of this question, it is necessary briefly to present the facts as revealed by the record. These facts will be set out in the light most favorable to the order of the trial judge. See Ponder v. State, 323 So.2d 296 (Fla.3d DCA 1975); and Rodriguez v. State, 189 So.2d 656 (Fla.3d DCA 1966).

Two police officers received a radio dispatch that an unidentified caller saw several men unloading bales from a boat at night in the Miami River. When the officers saw nothing in the area, they radioed for more information and were given the location of the caller. They contacted the caller, who gave them no further information other than pointing to the general location of the activity he allegedly saw. The officers proceeded to the private property involved. It was an area where lobsters and fishing boats frequently unload. The officers parked their car so as to block ingress and egress to and from the lot. With firearms drawn, they entered the property, saw a truck and heard a rustling noise in the surrounding bushes. Defendant Eder was seen near a moored boat backing into the water. As the officer approached him, Eder began to swim away. The officer returned to the back of the truck, looked inside through the rear door and saw bales of an unidentified substance enclosed in opaque material. One officer observed what he believed to be marijuana on the loading platform of the truck and thereafter cut open one bale to find a substance he recognized as marijuana.

Another police officer later spotted three heads bobbing in the river, one of whom he identified as Hernandez. Hernandez was not wearing a shirt, but a shirt was found aboard the boat on which the marijuana was seized. The officers seized the marijuana in the truck and on the boat.

We hold that the evidence is sufficient to show a probable cause to search the area and the truck which contained the contraband. We further hold that there was adequate, legally-sufficient evidence to withstand defendant Hernandez’s motion for judgment of acquittal in that the evidence viewed in the light most favorable to the State shows a prima facie case. See Everett v. State, 339 So.2d 704 (Fla.3d DCA 1976).

Defendant Hernandez urges, in addition to his claim that the evidence was insufficient, that he should be granted a new trial because a state requested instruction given by the court tended to place the burden on him of disproving his own guilt. We have examined the instruction to which objection was made and hold that it was properly given. See Selph v. State, 22 Fla. 537 (1886); and U. S. v. Llamas, 280 F.2d 392 (2d Cir. 1960).

Having examined the contentions of each appellant in the light of this record and finding no error, the judgments and sentences are affirmed.

Affirmed.


author: ERVIN, Acting Chief Judge.

text:
    Regina W. FORD, as Administratrix of the Estate of Ronald Charles Ford, Deceased, Appellant, v. HIGHLANDS INSURANCE COMPANY, a corporation, and Hertz Equipment Rental Corporation, a corporation, Appellee.
    No. JJ-316.
    District Court of Appeal of Florida, First District.
    March 2, 1979.
    Rehearing Denied April 19, 1979.
    James T. Terrell and Wayne Hogan of Brown, Terrell & Hogan, Jacksonville, for appellant.

      Charles Cook Howell, III of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellee.
   ERVIN, Acting Chief Judge.

The appellant’s decedent, Ron Ford, was electrocuted after running upon a truck crane whose boom had come into contact with an energized electrical wire on a construction site. Both the decedent and the truck crane operator were working for E. E. Huff Company on the construction project at the time. The appellant sued the appellee Hertz Equipment Rental Corporation, lessor of the truck crane, and appellee Highlands Insurance Company, Hertz’s insurer, for Ford’s wrongful death, on counts of negligence, strict liability and implied warranties of fitness and merchantability. The appellees filed a third party complaint against Huff Company and National Truck Corporation, which manufactured the truck crane.

The thrust of the appellant’s case is that (1) Hertz negligently leased the truck crane without installing a “proximity warning device” on it, which would have visually and audibly warned the truck crane operator and others of dangerous, nearby wires, and without which, exposed the decedent to an unreasonable risk of danger; (2) Hertz breached an implied warranty of fitness for a particular purpose in leasing the truck crane, which was to be used around live wires, without installing the proximity warning device; (3) Hertz breached an implied warranty of merchantability because the truck crane, without the warning device, was not fit for the purposes for which it was leased; and (4) Hertz was strictly liable for the decedent’s death because the truck crane, without the warning device, was defective.

After the presentation of appellant’s evidence. the appellees moved for a directed verdict on all counts of the complaint. The trial judge granted the motion, stating, (1) as to strict liability, that “as a matter of law,” the truck crane was not rendered defective by not having a warning device; (2) as to breaches of warranty, that “the law which controls this case must necessitate . . . finding that this crane is fit for its intended purpose and particular purpose and merchantable without a proximity warning device;” (3) as to negligence, that the determinative question was whether Hertz had a duty to install the device on its truck cranes, and concluded, “as a matter of law” Hertz was not negligent.

The appellant argues that the appellees were not relieved as a matter of law from liability and that the “obvious danger” doctrine is no longer viable as a bar to products liability cases. The appellees argue that the “obvious danger” doctrine bars any recovery by appellant.

After oral arguments in this appeal, the Florida Supreme Court ruled that the “obvious danger” doctrine, stated by this court to be the law in Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976), is no longer a complete bar to recovery under any theory of products liability in Florida. Auburn Machine Works Company, Inc. v. Jones, 366 So.2d 1167 (Fla.1979). Sinee it appears the directed verdict was based on that now defunct doctrine, and since questions of fact suitable for jury determination exist, we reverse and remand for further proceedings not inconsistent with this opinion.

MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.

      . The patent danger doctrine states:
      [T]he manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. . . . If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. Campo v. Scofield, 301 N.Y. 468, 471-2, 95 N.E.2d 802, 803-4 (1950).

      . In addition to their general argument, appel-lees assert that a lessor is not liable in a suit for breach of implied warranties of merchantability, because the Supreme Court in Johnson Equipment Company .v. United Airlines, Inc., 238 So.2d 98 (Fla.1970), only stated that lessors were liable for breaches of implied warranties of fitness. We disagree. In that case, the plaintiff only sued for breach of an implied warranty of fitness; however, the Supreme Court stated that “[p]ublic policy demands that in this day of expanding rental and leasing enterprises the consumer who leases be given protection equivalent to the consumer who purchases.” Id. at 100.


text:
    Nelson William LANCIONE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-2168, 77-2563.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 16, 1979.
    Richard M. Saccocio, Ft. Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEAR-S0N and HUBBART, JJ.
   PER CURIAM.

These consolidated appeals are from two judgments finding the defendant guilty of the crimes of receiving stolen property and grand larceny.

Prior to arraignment, an out of state attorney acting on behalf of the defendant entered into negotiations with the law enforcement officers to provide that the defendant would give certain information to the officers and in return would receive either a reduction in the charge against him or a reduced sentence. The proposed plea negotiations were never approved by the court and there is nothing in this record to support defendant’s version of his agreement with the law enforcement officers. At the time that the claimed agreement was presented by the defendant to the court, the court refused to approve the negotiated plea. Thereupon, the defendant was tried before a jury on the first charge, was found guilty, and was adjudicated and sentenced. Thereafter, the defendant entered a nolo contendere plea to the second charge and reserved his right to appeal both his claim that plea negotiations had not been honored and that he was not granted a speedy trial as provided by the applicable rules.

The first point presented, urging error because of the court’s refusal to approve the plea negotiations does not present error. See State v. Adams, 342 So.2d 818 (Fla.1977).

The second point, urging error upon the denial of the motion for discharge for failure to grant a speedy trial, does not present error under the law as stated in State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).

Four other points presented by the defendant relating to the conduct of the trial have been examined and found not to present error on this record. Accordingly, the judgments and sentences are affirmed.

Affirmed.


text:
    Rene Elias COTERA, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1297.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 18, 1979.
    Jack R. Blumenfeld, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976), and Molinaro v. State, 360 So.2d 119 (Fla. 3d DCA 1978).


text:
    Steven W. HINST, Appellant, v. FLORIDA STATE BOARD OF ARCHITECTURE, Appellee.
    No. KK-413.
    District Court of Appeal of Florida, First District.
    March 8, 1979.
    Rehearing Denied April 23, 1979.
    John W. Bowen of Rowland, Bowen & Thomas, Orlando, for appellant.
    James C. Rinaman, Jr. and Gerald W. Weedon of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee.
   PER CURIAM.

Steven W. Hinst seeks review of a final order entered by the Florida State Board of Architecture whereby Hinst was denied his request for registration in Florida as an architect.

We have carefully reviewed the record, briefs and oral argument of counsel. Appellant has failed to demonstrate by the record that he was or is qualified for registration as an architect pursuant to the applicable laws of the State of Florida. Therefore, the Board was eminently correct in refusing to register him.

The Order of the Florida State Board of Architecture denying registration to Steven W. Hinst is AFFIRMED.

McCORD, C. J., MELVIN, J., and EASTMOORE, E. L., Associate Judge, concur.


text:
    William P. TROTTER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-545.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 16, 1979.
    Martin Blitstein and Ross A. Rosenberg, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellant was found guilty by a jury under a four count information charging him with aggravated battery, aggravated child abuse, and two counts of battery upon a law enforcement officer. The trial court entered judgment of conviction on all four counts and sentenced appellant to serve in the State Penitentiary as follows: as to Counts I and II, fifteen years on each of the counts; as to Count III, sixty days; and credit of seventy-eight days for time served.

Appellant seeks reversal on the grounds that the trial court erred in admitting into evidence police officer’s testimony concerning victim’s narrative police report and that the trial court erred in denying appellant’s motion to sever counts.

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

Therefore, the judgment and sentences appealed are affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    William SHAW, Appellant, v. Sandra SHAW, Appellee.
    No. 78-970.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 16, 1979.

      Joe N. Unger, Forrest, Ruffner, Traum & Hagen, Miami, for appellant.
    Albert George Siegel, Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

This is a dispute over the custody of two boys aged six and nine years. The appellant is the father. The order appealed was entered after a reference of the custody issue to a general master. The general master found that (1) the father and his new wife were able to prove a more stable environment for the children than the mother, (2) the previously-agreed split custody had resulted in conditions detrimental to the children, (3) the mother had neglected the children, (4) it was in the best interests of the children that the father be awarded custody. The mother filed exceptions to the report.

The exceptions to the general master’s report were heard by the trial judge. These proceedings were not transcribed, but it is clear from two subsequent hearings which were transcribed that although no evidence was presented, the court had a “conference” with the appellant and appel-lee.

The trial judge entered a final judgment stating only that the mother’s exceptions to the master’s report were granted and that the court had “. . . reviewed the file, examined and considered the evidence, heard argument of counsel, reviewed the memoranda submitted . . . ” The recommendation of the general master that custody of the children be awarded to their father was rejected. The alternating custody arrangement was terminated and the mother was granted permanent custody and control of the children. This appeal is by the father from the judgment.

When a trial judge determines to refer a matter to a master, the trial judge gives up the opportunity to observe the witnesses. Therefore, he is not in the same position as a trial judge who hears a case. See Harmon v. Harmon, 40 So.2d 209 (Fla.1949).

The findings of fact and recommendations of a master should be approved and adopted by the trial judge unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. See Claughton v. Claughton, 347 So.2d 437 (Fla.3d DCA 1977), and cases cited therein. The trial judge failed to hold that any finding of the master was clearly erroneous or that the master had in any particular misconceived the legal effect of the evidence. Our examination of the record in the light of the briefs and oral argument fails to reveal any basis upon which the trial judge could have found the master’s report at fault on either of these grounds.

Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment in accordance with the findings and conclusions of the master.

Reversed and remanded.

      . The report of the general master reflected an investigation by child care authorities, four hearings, nine witnesses, including psychiatrists and school officials, for a total of 300 pages of testimony.


text:
    J. Fernando BANDERAS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1072.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 18, 1979.
    Raskin & Grande and Stephen L. Raskin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 297 So.2d 93 (Fla. 2d DCA 1974).


author: KEHOE, Judge.

text:
    Philip SIEGEL, Petitioner, v. The STATE of Florida, Respondent.
    Nos. 78-1329, 78-1350.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 16, 1979.
    Moran & Gold and Thomas G. Murray, Miami, for petitioner.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for respondent.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   KEHOE, Judge.

Petitioner, defendant below, in these consolidated cases seeks review of an order entered by the trial court granting respondent, the prosecution below, motion to substitute defense counsel. Case No. 78-1329 is a petition for writ of common law certio-rari and Case No. 78-1350 is a plenary appeal. We have consolidated these cases and have ordered the parties to proceed under the applicable rules of appellate procedure in regard to writs of certiorari. Cer-tiorari is granted.

Petitioner was charged by an indictment with the first degree murder of Donald Gould. During the proceedings below, respondent filed a motion to substitute counsel contending that petitioner’s attorney, George D. Gold, should be disqualified from representing respondent. The basic reason for such disqualification was that Gold had previously represented petitioner’s father in the grand jury proceeding out of which the charges against petitioner arose. Also, Gold’s law firm had represented, in unrelated matters, four of the witnesses who were due to testify against petitioner in the instant case. As a result of respondent’s motion to substitute counsel, the trial court ordered substitution of counsel. It is from this order, that petitioner brings his petition for common law writ of certiorari.

Petitioner contends that the trial court’s order requiring substitution of his counsel both departs from the essential requirements of law and deprives him of his constitutional right to his choice of counsel for representation in this criminal proceeding.

At the outset, we note that this is not a case where a public defender is involved; further, we note that at the time the trial court entered its order requiring substitution of counsel no testimony had been taken. At the time the trial court entered the order, it had before it respondent’s motion to substitute counsel accompanied by an affidavit signed by the assistant attorney general to the effect that the allegations in the motion were true and correct to the best of his knowledge, respondent’s memorandum of law, a statement from Jack Sie-gel, and two affidavits from Philip Siegel. Jack Siegel’s statement stated in pertinent part:

“First: The only reason that I had ever gone to Mr. Gold when I was subpoenaed before the Grand Jury was because I knew that he could advise me of my rights, as I guess any criminal attorney would have. * * * Mr. Gold only generally explained my rights to me and I, myself, then dictated what the lawfully proper course was to take.”

One of Philip Siegel’s affidavits was primarily an expression of his confidence and belief in his counsel’s abilities, and the other affidavit stated, basically, that he was aware of respondent’s claims in regard to potential conflicts of interest with his attorney, that he was concerned over respondent’s efforts to “knock out” the lawyer of his choice because respondent placed Gold’s name on the prosecution’s witness list, and that he thought his attorney could maintain all confidences, if any, allegedly imparted to him by putative State witnesses in cross-examination of them. No other evidence was presented to the trial court.

In our opinion, at the time the trial court entered its order requiring substitution of petitioner’s counsel, it was simply too early, or premature, in the proceedings to ascertain whether there was a conflict of interest in regard to Gold’s representation of petitioner which would require or support a substitution of counsel. Further, it was also too early for petitioner to make an intelligent waiver, if possible, in regard to any conflict. Accordingly, the order appealed is quashed and the cause is remanded for further proceedings.

Further, we are confident that petitioner’s counsel is cognizant of the application of the applicable provisions of the Florida Code of Professional Responsibility in cases such as this one, and of his duty to completely and .properly represent petitioner. Further still, this opinion should not be construed in any manner from precluding the trial court in further proceedings in this cause from exercising its judicial discretion in a timely manner in regard to any relevant matter before it, including a motion to substitute.

Quashed and remanded.


text:
    Norman KASSER, Appellant, v. Ralph R. POPKIN, s/k/a Samuel R. Popkin, Appellee.
    No. 78-2143.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 18, 1979.
    Herbert A. Warren, Miami, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendant-appellant, Norman Kasser, appeals a temporary injunction enjoining him from prosecuting a mortgage foreclosure action until determination of the instant suit.

Ralph Popkin, plaintiff-appellee, and Norman Kasser on May 5,1978 entered into two contracts (A & B for simplicity) wherein Popkin agreed to purchase from Kasser two contiguous parcels of real estate. On June 13 a closing was held as to the property described in contract A and Popkin executed a $38,000 note and purchase money mortgage in favor of Kasser. On June 29 Popkin appeared to close on the property described in contract B. Some difficulties arose between the parties over the terms of the contract and Kasser refused to close the transaction. Kasser’s failure to close precipitated Popkin filing the instant suit seeking declaratory judgment, reformation, specific performance and other relief. In addition, Popkin prayed that the expenses incurred with respect to contract B and the costs of the action be offset against the mortgage executed by him in favor of Kas-ser with regard to the property purchased in contract A. Shortly thereafter, Kasser filed suit against Popkin to foreclose the $38,000 mortgage on the ground that Pop-kin did not make payment on July 13 as required under the mortgage terms. Thereupon, Popkin filed a motion for restraining order seeking to enjoin Kasser from proceeding with the mortgage foreclosure suit on the ground that both lawsuits involve the interrelated purchase of real property. After a hearing the trial judge entered a temporary injunction restraining Kasser from prosecuting the mortgage foreclosure suit until further order of court upon Popkin posting a $39,000 bond. Thereafter, Kasser moved to dissolve the temporary injunction. The motion was denied and Kasser appeals this denial order.

We find no error in the order denying the motion to dissolve the temporary injunction as Kasser has failed to demonstrate that the two real estate contracts involving contiguous parcels of property were not related or connected. The record reflects to the contrary as the contracts, although referring to separate but contiguous parcels of property, involve the same parties and are related as evidenced by the memorandum of June 13 signed by Popkin and Kasser modifying both contracts dated May 5. The trial court having concurrent jurisdiction over both these actions, we find no abuse of discretion in the issuance of the temporary injunction. Cf. Coon v. Abner, 246 So.2d 627 (Fla. 4th DCA 1971) and cases cited therein.

We also considered Kasser’s second point on appeal and find no merit therein.

Affirmed.


text:
    Josephine SILVERMAN, Appellant, v. Wally BLAUSTEIN, Appellee.
    No. 78-2251.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 18, 1979.
    Mamber, Epstein & Elster and Stanley Epstein, North Miami Beach, for appellant.
    Levine & Fieldstone and Samuel I. Burs-tyn, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendant-appellant, Josephine Silver-man, appeals the entry of a temporary restraining order enjoining her from secreting or dissipating any estate assets in her possession or control.

Plaintiff-appellee, Wally Blaustein, as personal representative of the estate of her husband, Max Blaustein, deceased, filed the instant suit for damages and equitable relief against Josephine Silverman. In her complaint Blaustein alleged that her late husband had given Silverman a general power of attorney to allow her to withdraw sufficient funds for his care during his lifetime. Blaustein further alleged that Silver-man wrongfully converted and secreted her husband’s funds in her own personal bank account. In addition to damages and other equitable relief, Blaustein also sought the issuance of a temporary restraining order enjoining Silverman from dissipating the funds. After hearing the chancellor issued a temporary restraining order enjoining Sil-verman from secreting or dissipating any assets in her possession or under her control which belong to the estate of Max Blau-stein, deceased.

After a review of the record we find no abuse of discretion on the part of the chancellor in the entry of the temporary restraining order. See United States Fire Insurance Company v. Brown, 185 So.2d 11 (Fla. 3d DCA 1966). Nevertheless, we agree with Silverman that the chancellor erred in issuing a temporary restraining order without requiring that Blaustein post a bond or in the alternative determining she is unable to give bond as required by Fla.R. Civ.P. 1.610(b). This error must be corrected. We affirm the restraining order but remand the cause to the chancellor with directions to determine whether Blaustein is financially able to post bond and, if so, to set the amount of such bond. See e. g. Lewis v. Lewis, 66 So.2d 260 (Fla.1953); McGovern v. Amira, 328 So.2d 862 (Fla. 4th DCA 1976).

It is so ordered.


author: McCORD, Chief Judge.

text:
    James C. KISH, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. II-149.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearing Denied April 23, 1979.
    S. Jean Laramore and Robert J. Angerer, of Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.

      Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for respondent.
   McCORD, Chief Judge.

Petitioner seeks review of the Florida Parole and Probation Commission’s revocation of petitioner’s parole for violation of two parole conditions. We reverse.

In September, 1974, petitioner was granted parole contingent upon standard parole conditions. Thereafter, petitioner became a resident of Tallahassee, Florida, found work, and lived without incident until August, 1977, when he obtained permission from his parole supervisor to visit with his mother in Homestead (Dade County), Florida. During that visit, petitioner was arrested in Broward County and charged with aggravated assault and armed robbery. However, those criminal charges were dropped after a committing magistrate ruled that there was no probable cause to hold petitioner, and the state filed a “no information” on all of the charges. As a result of that incident, petitioner was charged with violating Parole Conditions 6 and 10 — failing to conduct himself honorably in that he fled from and attempted to elude his arrest by police officers and failing to comply with all instructions of his parole supervisor in that when given permission to visit in Dade County, he entered Broward County also, without consent of his parole supervisor. After a hearing, the Commission found petitioner guilty of those violations and consequently revoked his parole.

The Commission heard testimony from police officers that, while searching for an armed robbery and aggravated assault suspect, they spotted petitioner running across the street in Broward County, close to the Dade County line. The officers, who admitted that they were dressed in plain clothes at the time, testified that they yelled, “Stop, police" several times but that petitioner continued running from them and entered a wooded area, at which time the officers fired a few shots toward him. When uniformed officers drove a police cruiser into the wooded area, petitioner surrendered to them. Petitioner testified that he had gone to a restaurant to meet a friend, but the friend did not show up. Petitioner testified that after leaving the restaurant, he was crossing a street, running to avoid traffic, when he heard someone shout, “There he is.” Petitioner stated that he turned around, saw a person dressed in plain clothes running toward him and shooting at him. He testified that he did not hear anyone identify himself as a police officer and that he frantically ran from the firing shots. He testified that when he saw police officers in uniform, he surrendered.

On the basis of the above evidence, the Commission found that petitioner had violated Condition 6 of his parole, which requires that petitioner conduct himself honorably. Under the circumstances, however, especially in light of the fact that petitioner surrendered when approached by uniformed policemen in a police patrol car, petitioner should not be faulted for running from the plain clothes policemen. That act should not be considered a failure to act honorably and thus was not a proper basis for revocation of his parole. There is not competent substantial evidence to support the Commission’s ruling.

Petitioner was also charged with violation of Parole Condition 10 — failing to comply with all instructions given by his parole supervisor. At the hearings before the Commission, petitioner’s parole supervisor testified that she gave petitioner permission to visit his mother in Dade County, but she did not specifically instruct him not to leave Dade County and not to enter Broward County. She testified that petitioner told her he was not even aware of the county line. She also stated that she normally allows her parolees to take day trips from Leon County into an adjoining county without specific permission and that petitioner always had been a very cooperative parolee. Since petitioner was not given an instruction that he could not enter Broward County, he did not violate instructions of his parole supervisor when he entered Broward County. Therefore, petitioner’s presence in Broward County was not a violation of Condition 10 of his parole under the circumstances of this case.

REVERSED.

MILLS and MELVIN, JJ., concur.


text:
    In re The ADOPTION OF Christopher Lee DAVIS and Jennifer Jane Davis. Clarence Lee WYCKOFF, Appellant, v. Currie Boyd DAVIS, Appellee.
    No. KK-52.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearing Denied April 19, 1979.
    Henry Lee Adams, Jr. of Marshall, Adams & Kyle, Jacksonville, for appellant.
    Norwood S. Wilner of Zisser, Robison & Spohrer, P. A., Jacksonville, for appellee.
   PER CURIAM.

Clarence Lee Wyckoff appeals an order wherein the adoption of his natural children by the stepfather was granted.

After reviewing the record, we reluctantly reverse and remand because the trial court’s order relied upon records of prior separate proceedings, but those records were not introduced into evidence in the proceeding now appealed. Atlas Land Corp. v. Norman, 116 Fla. 800, 156 So. 885 (1934). The final judgment of dissolution of marriage granting custody to the natural mother, the order prohibiting visitation by the natural father, and the psychiatric reports regarding the natural father are all referred to, but are not properly supported by the record before us.

Accordingly, the cause must be reversed and remanded.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.