author: SUGG, Justice,

text:
    Robert WOOD v. STATE of Mississippi.
    No. 48777.
    Supreme Court of Mississippi.
    April 27, 1977.
    Jimmy D. Shelton, Leroy Henderson, Jr., Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
   SUGG, Justice,

for the Court:

ON MOTION TO HOLD BOND FORFEITURE IN ABEYANCE

Robert Wood was convicted in the Circuit Court of Lee County on February 19, 1974 for violation of the Uniform Controlled Substances Act of 1971 and sentenced to serve one year in the county jail and pay a fine of $1,000 and all costs. His conviction was affirmed on November 3, 1975 and his petition for rehearing was denied December 8, 1975. Miss., 322 So.2d 462 (1975).

Sometime prior to the affirmance of Wood’s conviction by this Court he was indicted in the United States District Court for the Western Division of Tennessee on several counts of distribution of narcotics, fire arms violation and possession with intent to distribute narcotics. On November 28, 1975 Wood was convicted on these charges and committed to the custody of the Attorney General for imprisonment for a period of eleven years.

Wood was delivered to the Shelby County Sheriff’s Department in Memphis, Tennessee on November 27, 1975 and incarcerated in the Shelby County jail until December 13, 1975. In the interim he was convicted as heretofore stated on November 28, 1975.

On December 13,1975 he was transferred to Brownsville, Texas to stand trial on other charges and subsequently transferred to the United States Penitentiary in Atlanta, Georgia on February 13, 1976 to serve his term for his conviction in the United States District Court for the Western Division of Tennessee.

On January 19, 1976 the state filed a motion for judgment nisi on Wood’s $5,000 appearance bond returnable to the Circuit Court of Lee County. Cecil Searcy and Ernest Webb were sureties on the bond.

Judgment nisi was taken on January 29, 1976 and defendant and his sureties were ordered to appear before this Court on the first Monday of March, 1976 to show cause, if any they could, why the judgment should not be made final. Thereafter Wood and his sureties filed a motion to hold the bond forfeiture in abeyance on the ground that Wood was incarcerated in the United States Penitentiary in Atlanta, Georgia and it was impossible for the sureties to surrender Webb to the authorities in Lee County.

The state responded to the motion and relied on Nix v. State, 213 So.2d 554 (Miss.1968); Phillips v. State, 185 So.2d 157 (Miss.1966) and Corn v. State, 250 Miss. 725, 168 So.2d 304 (1964). In these cases we held that the incarceration of a principal in a different jurisdiction for a different offense against the laws of that jurisdiction, even where the principal is prevented from appearing to answer his bail by such incarceration, does not exonerate the surety.

Following the decision in these cases the legislature enacted the Professional Bail Bond Act, Mississippi General Laws of 1968, effective August 6, 1968.

Mississippi Code Annotated section 83-39-7 (1972) provides in part as follows:

In the event of a final judgment of forfeiture of any bail bond written under the provisions of this chapter, the amount of money so forfeited by the final judgment of the proper court, less all accrued court costs and excluding any interest charges or attorney’s fees, shall be refunded to the bail bondsman or his insurance company upon proper showing to the court as to which is entitled to same, provided the defendant in such cases is returned to the sheriff of the county to which the original bail bond was returnable within twelve (12) months of the date of such final judgment, or proof made of incarceration of the defendant in another jurisdiction, and that “hold order” has been placed upon said defendant for return of said defendant to said sheriff upon release from the other jurisdiction, then the bond forfeiture shall be stayed and remission made upon petition to the court, in the amount found in the court’s discretion to be just and proper. A bail bondsman licensed under this chapter shall have a right to apply for and obtain from the proper court an extension of time delaying a final judgment of forfeiture if such bail bondsman can satisfactorily establish to the court wherein such forfeiture is pending that the defendant named in such bail bond is lawfully in custody outside of the State of Mississippi. (Emphasis supplied).

The passage of this legislation had the effect of modifying the rule announced in Corn and the cases following it, insofar as professional bondsmen are concerned, thus making our decisions in those cases applicable only to nonprofessional bondsmen. This renders the rule announced in those cases unfair, unjust and mischievous. For this reason, Corn and the other cases following it are hereby overruled, insofar as they hold that a bail bondsman is not entitled to an extension of time delaying final judgment when a bondsman can establish to the satisfaction of the court that the defendant is in lawful custody in another jurisdiction. The defendant in this case is in lawful custody outside the State of Mississippi and the bondsmen are entitled to an extension of time delaying final judgment.

The state may file a detainer on Wood and insure that he will be held to serve the sentence imposed by the Lee County Circuit Court. It is the duty of the sureties to return him to Mississippi, or pay the expenses thereof, and if the defendant is not returned at the expiration of his Federal sentence, then forfeiture of the bond may be made final.

This case was considered by a conference of the justices en banc.

Motion to hold bond forfeiture in abeyance sustained.

All Justices concur.


source: Caselaw Access Project

author: PATTERSON, Presiding Justice, SMITH, Justice,

license: Public Domain

text:
    Cleveland FELLS v. STATE of Mississippi.
    No. 49361.
    Supreme Court of Mississippi.
    April 27, 1977.

      Curtis L. Collins, Clyde W. Mullins, Natchez, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   PATTERSON, Presiding Justice,

for the Court:

Cleveland Fells was convicted of armed robbery by the Circuit Court of Adams County and sentenced to twenty years in the state penitentiary.

On January 31, 1975, at about 6:24 p. m., Boothe’s Package Store, Inc., in Natchez was robbed. The clerk of the store, Mrs. Joyce Johnson, was then confronted by a robber brandishing a revolver, who stated: “This is a robbery,” or, “This is a holdup.” Waiving the gun in her face, he demanded the contents of the cash register and when it was obtained, Mrs. Johnson was commanded to “fall down” whereupon the robber turned to flee and while doing so, dropped some coins. Violating a previous order of silence, Mrs. Johnson exclaimed: “You’re dropping part of it” The bandit replied by firing a shot into the ceiling and fleeing.

Mrs. Johnson remained on the floor until her brother entered the shop a moment later. He telephoned the police and Mrs. Johnson described the robber as a black male of slender build between five feet eleven inches and six feet tall, weighing 145 to 150 pounds and wearing dark trousers with a print shirt. While the Johnsons were thusly engaged, an employee entered the store and upon learning of the robbery, informed them that upon exiting his car, he had seen an individual, running at the time, proceed toward East Oak Street. Approximately two and one-half minutes after receipt of this information by the police, the appellant was arrested on Oak Street. Oak Street is about one block south of Boothe’s Package Store as it turns off of Pine Street. The arresting officer testified that the appellant fitted the description he had received of the robber.

When Fells was frisked, he had $176 in his right front pocket consisting of five, ten, and twenty dollar bills with the exception of a one dollar bill. An accounting revealed the store to have been robbed of $274.98, largely in twenties, tens, fives, ones and some change.

Thirty or forty-five minutes after Fells was arrested, a revolver was found on Oak Street within fifty feet of where the appellant was apprehended and between that spot and the liquor store. However, no fingerprints were obtained from the weapon.

Shortly after 7:00 p. m. the same day, Mrs. Johnson identified the appellant as the robber from a “lineup” at the Natchez Police Station. Four black males, other than the appellant, participated and all were trusties from the city or county jails. The men were dressed in street clothing with light shirts. Only Fells wore a “print” shirt, the same he had on at the time of arrest.

The appellant’s first trial ended in a mistrial because the jury was unable to reach a verdict. During the second trial both Mrs. Johnson and a police investigator, Officer Hude, testified concerning the methods employed and the result obtained at the out-of-court identification procedure. Additionally, Mrs. Johnson testified that she observed the appellant for one or one and one-half minutes at the robbery when, “[she] stared in his face, directly into his eyes.”

Fells argues that his conviction is improper because, prior to indictment, he was subjected to an unnecessarily suggestive police lineup without the benefit of counsel, and evidence of such was given at the trial in an effort by the state to improperly “bolster” its case, which singly, or in combination, violated his Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution as well as Article 3, Sections 14 and 26, of the Mississippi Constitution (1890).

Concerning appellant’s lack of counsel at the lineup conducted shortly after the robbery, in Cox v. State, 326 So.2d 794 (Miss.1976), this Court reaffirmed its adoption of the rule announced by the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and held that the right to counsel does not apply to preindictment lineups. Accordingly, no Sixth Amendment deprivation is here presented.

The appellant’s Fifth Amendment claim focuses upon the procedure employed at the lineup thus challenging the trustworthiness of the resulting identification evidence adduced at trial which led to his conviction. However, Fells does not direct the Court’s attention to any specific instances of objectionable procedure, but rather believes it “overwhelming (sic) obvious that the lineup, the procedure used, and the parties involved make it suggestive and conducive to irreparable mistaken identification.”

When similarly confronted in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court said:

. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable mis-identification.” Simmons v. United States, 390 U.S. [377] at 384, 88 S.Ct. [967] at 971, [19 L.Ed.2d 1247], While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process . . Suggestive confrontations . increase the likelihood of mis-identification .
What is less clear from our cases is whether . . . unnecessary suggestiveness alone requires the exclusion of evidence. .
We turn, then, to the central question, whether under the “totality of circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime [Mrs. Johnson was face-to-face with the robber separated only by a counter in a well-lighted store], the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal [Mrs. Johnson missed his true height by one inch and weight by five pounds; the description of his clothing was exact], the level of certainty demonstrated by the witness at the confrontation [Mrs. Johnson was “positive” and unwavering], and the length of time between the crime and confrontation [approximately thirty minutes], . . . (409 U.S. at 198-199, 93 S.Ct. at 381-382, 34 L.Ed.2d at 410-411)

When the Biggers test is applied, the fact that Fells was wearing a shirt similar to that described by Mrs. Johnson, and which he wore when arrested, did not make the lineup so suggestive as to result in the “likelihood of misidentifieation.” See State v. Banks, 296 So.2d 314 (La.1974); McCay v. State, 51 Ala.App. 307, 285 So.2d 117 (Ala.1973). Rather, the identification of Fells was direct and resulted from the previous “eyeball to eyeball” confrontation a few minutes before in the well-lighted liquor store.

Having found no error of constitutional moment, the decisive issue now concerns the propriety of permitting in evidence the testimony of Mrs. Johnson and Officer Hude regarding the extra-judicial identification.

Traditionally, evidence of an extrajudicial identification has been considered hearsay and this Court has categorized such as impermissible “bolstering.” See Porter v. State, 339 So.2d 564 (Miss.1976). A divergent view has arisen, however, which admits the prior identification as independent, substantive evidence of identity by a witness who is available at trial for cross-examination as well as testimony regarding the identification by third parties present who are also available for cross-examination. Martin v. Commonwealth, 210 Va. 686, 173 S.E.2d 794 (1970); State v. Simmons, 63 Wash.2d 17, 385 P.2d 389 (1963); People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960).

A common theme linking those authorities accepting this evidence may be stated as follows:

1. Need; eye witnesses to the crime may be unavailable for whatever reason or less certain in their identification due to the passage of time before trial or altered appearance of the defendant.

2. Reliability; if the procedure used to obtain the identification is not overly suggestive, then subjecting the witness to cross-examination at trial will insure its trustworthiness.

Moreover, it would seem to be a dictate of common sense that the “best evidence” of identification is normally the first identification because it is nearest in time to the crime. IV Wigmore on Evidence, section 1130 (1972), analyzes such evidence as follows:

Offered (6) after impeachment as to recent contrivance (continued): Statements identifying an accused, on a former occasion. Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness’ act of pointing out the accused (or other person), then and there in the courtroom, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person’s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him.
The psychology of the situation is practically the same as when recent contrivance is alleged. To corroborate the witness, therefore, it is entirely proper (on the principle of § 1129 supra) to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind, he recognized and declared the present accused to be the person. If, moreover (as sometimes is done) the person was then so placed among others that all probability of suggestion (by seeing him handcuffed, for example) is still further removed, the evidence becomes stronger.
* * * * * *
This is a simple dictate of common sense, and was never doubted in orthodox practice. That some modern courts are on record for rejecting such evidence is a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning.

A review of Porter v. State, 339 So.2d 564 (Miss.1976), Butler v. State, 217 So.2d 3 (Miss.1968), Short v. State, 211 So.2d 545 (Miss.1968), and Anderson v. State, 171 Miss. 41, 156 So. 645 (1934), convinces us that they should be modified to the extent hereinafter related. Compare Cody v. State, 167 Miss. 150, 148 So. 627 (1933).

We are of the opinion, and now hold, that the principal witness to a crime may testify concerning an out-of-court identification whether it occurs in a police lineup, a personal confrontation or otherwise because the initial identification being nearest in time to the event has, in our opinion, the greater likelihood of accuracy and truthfulness being undimmed by fading memory and intervening events occasioned by the passage of time. It is not intended that the foregoing be construed to eliminate a corroborating in-court identification.

We further hold that if the principal witness’ identification is impeached, then independent evidence of the identification may be introduced through third persons present at the out-of-court identification. We are persuaded to this view because such evidence not only has greater probative force and thus preserves the better evidence, but also because the witness testifying is in court and subject to cross-examination. The basis for this rule may be found in Martin v. Commonwealth, 210 Va. 686, 173 S.E.2d 794 (1970), State v. Simmons, 63 Wash.2d 17, 385 P.2d 389 (1963), and People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960), but without the impeachment limitation.

In giving application to the Big-gers, supra, rule, the totality of the circumstances, we conclude that Mrs. Johnson’s testimony at trial concerning her positive identification of Fells in the police lineup as the person who pointed the gun and robbed the liquor store, made within minutes after the crime was perpetrated, was not reversible error even though it dealt with an out-of-court identification. We are also of the opinion the testimony of Officer Hude corroborating Mrs. Johnson’s lineup identification of the appellant was also not error because the employee witness who observed the fleeing individual running toward Oak Street testified that from his view of the assailant’s lower extremities, it was not the appellant. Or differently stated, with this impeachment, the corroborating testimony was proper.

We have considered all other assignments of error and find them without merit. We are therefore of the opinion that the cause should be affirmed.

AFFIRMED.

GILLESPIE, C. J., and ROBERTSON, SUGG, WALKER, and LEE, JJ., concur.

SMITH, J., INZER, P. J., and BROOM, J., dissent.

SMITH, Justice,

dissenting:

It is one thing, perhaps, to permit the victim of a crime to say that she saw and recognized an accused as the perpetrator shortly after the fact, but it is surely quite a different matter to permit the prosecution to place third persons on the stand for the sole purpose of testifying that they saw the victim point out the accused in a formal police lineup. This procedure is capable of producing any number of “bolstering” witnesses, since it is normally conducted by and in the presence of law enforcement officials who are actually in charge of and engaged in the identification of one they have taken into custody and in his prosecution, and who have, at least to some extent, already satisfied themselves that they have apprehended the right man. It is quite unlikely that disinterested or impartial witnesses will have been invited or be in attendance in such circumstances. Moreover, in this case, the victim’s courtroom identification of Fells, based upon her opportunity to observe him during the course of the robbery, had not been impeached or challenged. The formal lineup is a device by means of which, if it is permitted to be so used, any number of bolstering witnesses may be “manufactured” and brought to testify that the victim had pointed out the accused. By that means prominent officials and other influential citizens, who have no real knowledge of the case, may be made “states witnesses” and the jury led to feel that they are supporting the prosecution.

As pointed out in the controlling opinion procedures such as that employed in this case will have the effect of facilitating convictions and this perhaps outweighs the “shoring up” by pure hearsay of a shaky identification. Wisely or not, the law guarantees a fair trial to every person accused of crime and this involves the requirement that the evidence necessary to convict be lawful and lawfully obtained. The hearsay testimony of a prosecutorial official, present as such at a lineup, that the victim of a crime had there identified a person already taken into custody as the perpetrator is pure bolstering and nothing more. Its intrinsic unfairness substantially outweighs any supposed advantage that might be obtained in the search for truth. Porter v. State, 339 So.2d 564 (Miss.1976), Butler v. State, 217 So.2d 3 (Miss.1968), Short v. State, 211 So.2d 545 (Miss.1968), Anderson v. State, 171 Miss. 41, 156 So. 645 (1934).

It is trite to say that a “trial is not a game.” The adversary system, however, whatever its merits, undeniably has spawned the use of stratagems and devices, unrelated to justice, designed “to do the other side in.” The courts of this country have adopted generally the traditional Anglo-Saxon concept of fair play as a necessary ingredient of a fair trial. We are confronted in this case with a type of “manufactured” hearsay. The insistence of the prosecution upon its use is indicative of a realization that it will have a substantial impact upon a jury as being supportive of an otherwise unsupported “eyeball identification” of an accused, made by the victim, of a person hitherto a stranger, never seen before, and made upon the basis of a few moments observation under conditions of excitement, nervous strain and downright mortal fear. If the persuasiveness of the identification is to be enhanced by this type of hearsay, may it not become necessary, in all conscience, in keeping with traditional notions of fair play, to allow an accused to produce as a witness his priest (or anyone else of his selection) to testify that he, the accused, shortly after the commission of the crime had positively and unequivocally denied to the witness that he had committed it? The consequences of a mistaken identification in a criminal case are grave and should rest upon real evidence, not hearsay, however deliberately created.

I would adhere to the former pronouncements of this Court on the subject and remand this case for another trial.

INZER, P. J., and BROOM, J., join in this dissent.


author: LEE, Justice, WALKER, Justice, SMITH, Justice,

text:
    Clanton D. PICKLE, Jr. v. STATE of Mississippi.
    No. 49309.
    Supreme Court of Mississippi.
    May 4, 1977.

      J. A. White, Durant, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
   LEE, Justice,

for the Court:

PART I

Clanton D. Pickle, Jr., was convicted of capital murder and sentenced to death by the Circuit Court of Holmes County. His conviction and sentence must be set aside under this Court’s holding in Jackson v. State, 337 So.2d 1242 (Miss.1976), and the case is reversed and remanded for further proceedings consistent with the opinion in Jackson.

In addition to the constitutional question, appellant assigns the following errors in the trial below:

(1) The trial court erred in overruling appellant’s motion to quash the indictment.

(2) Mississippi Code Annotated § 97-3-19(2)(e) (Supp.1976), requires that the crime of rape must be shown to have been committed while effecting the death of the victim in order to sustain a conviction for capital murder.

(3) The verdict of the jury is contrary to the great weight of the evidence.

(4) The trial court erred in declining to reduce appellant’s sentence under Mississippi Code Annotated § 43—1—39 (Youth Court Statute).

(5) The trial court erred in refusing appellant’s requested Instructions Nos. D-3 and D-6.

(6) The trial court erred in removing a juror from the regular panel and replacing him with an alternate juror.

(7) The trial court erred in admitting evidence of alleged statements made by appellant’s father concerning the identification of a ring.

I.

Did the trial court err in overruling appellant’s motion to quash the indictment?

Appellant, a sixteen-year-old youth, was indicted by the Holmes County grand jury during the April, 1975 Term of court for capital murder. The indictment charged that on November 26, 1974, Pickle killed and murdered Mary Elizabeth Harthcock while committing the crime of rape against her. On October 8, during the regular October, 1975 Term, the grand jury was discharged, and, subsequently, at the same term of court, it was reconvened and a new indictment was returned against appellant charging him with capital murder and specifically citing Mississippi Code Annotated § 97-3—19(2)(e) (Supp.1976), as required by Mississippi Code Annotated § 99-17-20 (Supp.1976). At the same time, the grand jury returned two burglary indictments.

Appellant contends that the grand jury was recalled for the purpose of bringing a new indictment against him and that the grand jury, once dismissed, could not be reconvened because the public interest did not require its recall. This question has been answered in the negative by Earnest v. State, 237 Miss. 509, 115 So.2d 295 (1959), where the Court said:

“There is no merit whatever in the appellant’s only contention made here, to-wit that the trial court committed error in refusing to quash the indictment. The right of the trial judge to recall or reconvene the grand jury at any time before adjournment of court has been settled beyond question by the decisions of this Court. Haynes v. State, 93 Miss. 670, 47 So. 522, 17 Ann. Cases 653; Bell v. State, 118 Miss. 140, 79 So. 85; Kyzar v. State, 125 Miss. 79, 87 So. 415.” 237 Miss. at 511, 115 So.2d at 296.

II.

Does Mississippi Code Annotated § 97-3-19(2)(e) (Supp.1976) require that the death of the victim be effected while committing the crime of rape in order to sustain a conviction for capital murder?

Mississippi Code Annotated § 97-3—19(2)(e) (Supp.1976) states:

“(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
* * * * * *
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies; . . .”

Miss Harthcock’s body was found nude from the waist down in the dining room of her home. The pathologist testified that she had been raped and that she was subsequently shot with a shotgun in the chest, resulting in her death.

In 40 Am.Jur.2d Homicide § 73, at 366-367 (1968), a general discussion of the question is set out as follows:

“It is the general view that a homicide is committed in the perpetration or attempt to perpetrate another crime when the accused is engaged in any act required for the full execution of the initial crime, and the homicide is so closely connected with such other crime as to be within the res gestae thereof. The rule expressed by some courts is that a homicide is committed in the perpetration or attempted perpetration of a crime specified by the felony-murder statutes when there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is linked to or part of the series of incidents, forming one continuous transaction. The res gestae of the underlying crime begins where an indictable attempt is reached and ends where the chain of events between the attempted crime or completed felony is broken. Application of the felony-murder doctrine does not require that the underlying crime shall have been technically completed at the time of the homicide, nor does it matter at what point during the commission of the underlying felony the homicide occurs. When, however, there is a break in the chain of events leading from the initial felony, as by the felon’s abandonment of the original criminal activity, a subsequent homicide committed by him is not within the felony-murder statute, and it is a question of fact for the jury whether the original criminal activity did in fact terminate prior to the homicide. In this connection, escape or attempted escape is generally held to be so immediately connected with the initial crime as to be a part of it. The felony-murder doctrine does not apply, however, when the determination to steal property of the victim is not formed until after the homicide.”

In MacAvoy v. State, 144 Neb. 827, 15 N.W.2d 45 (1944), the Nebraska court said:

“When a person is killed by another in the perpetration of or attempt to perpetrate a rape, an intent to kill is not a necessary element of the crime. It is first degree murder, whether an intent to kill be shown or not. Morgan v. State, 51 Neb. 672, 71 N.W. 788. The defendant urges, however, that the killing occurred after the act of sexual intercourse took place and, consequently, it was not a killing in the perpetration of a rape. There is no merit in this argument. If a killing is committed within the res gestae of the felony charged it is committed in the perpetration of, or attempt to perpetrate, the felony, within the meaning of the statute. Francis v. State, 104 Neb. 5, 175 N.W. 675. The reasons for this rule are well stated in Bissot v. State, 53 Ind. 408, wherein it is said: ‘Although we must construe criminal statutes strictly, adhere closely to the definition of crimes, and interpret technical words according to their fixed meaning, yet we cannot give to the section under consideration the construction contended for by the appellant. In our opinion, where the homicide is committed within the res gestae of the felony charged, it is committed in the perpetration of, or attempt to perpetrate the felony, within the meaning of the statute; and, being convinced in this case that the burglary charged was committed, and that the homicide was committed within the res gestae of the burglary, we must hold that it was committed in the perpetration of the burglary, within the true intent and fair meaning of the statute. It seems to us that such a construction is safe to the State and the citizen, and the only one by which the intention of the legislature can be practically carried into effect.’ See, also, Conrad v. State, 75 Ohio St. 52, 78 N.E. 957, 6 L.R.A.N.S., 1154, 8 Ann. Cas. 966; Commonwealth v. Osman, 284 Mass. 421, 188 N.E. 226; State v. Whitfield, 129 Wash. 134, 224 P. 559.” 15 N.W.2d at 48.

And, in Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960), the Maryland court held:

“As to the charge of murder in the first degree, we may note that it would make no difference as to guilt under the above statute whether death occurred after the rape had been accomplished or in an attempt to perpetrate it." 223 Md. at 606, 165 A.2d at 922.

If the crime of capital murder could not be sustained unless the homicide occurred during the actual attack upon a victim or during the actual burglary, kidnapping, arson or robbery, such could be an inducement for an assailant to kill his victim after the commission of the first crime in order to silence her/him as a witness. The rule stated in the foregoing cases is the more reasonable, and we hold that where the two crimes are connected in a chain of events and occur as part of the res gestae, the crime of capital murder is sustained.

III.

Was the verdict of the jury contrary to the great weight of the evidence?

It is not necessary to detail the evidence, since the case is remanded for a new trial. (Appellant did not testify at the trial). However, we have carefully considered the same, and, while it is circumstantial, the evidence and reasonable inferences therefrom constituted a guilt question for the jury.

IV.

The question presented in this assignment is controlled by Wansley v. State, 339 So.2d 989 (Miss.1976). However, even if the trial judge had discretion to reduce appellant’s sentence pursuant to Mississippi Code Annotated § 43-1-39 (1972) [Youth Court Statute], under the facts of this case, his discretion was not abused.

V-VI.

The trial court committed no error in refusing appellant’s requested Instructions Nos. D-3 and D-6. Assigned Error No. VI probably will not arise on a second trial of the case, and it is not necessary to discuss the point here.

PART II

VII.

Did the trial court err in admitting evidence of alleged statements made by appellant’s father concerning the identification of a ring found beside the victim’s body?

According to Deputy Taylor, he and Sheriff Moore went to the Pickle home, appellant and his father came out on the porch, the ring (with initial “P” thereon) was shown to appellant’s father, and the following transpired:

“Q. And what did Mr. Pickle say?
A. He said, ‘This is C. D.’s ring.’
Q. And what — and you say C. D. was standing there?
A. C. D. was standing there.
Q. And what did he say?
A. He said, ‘No, that’s not my ring; I lost my ring three days ago’ — and stuck out his hand — ‘squirrel hunting’ — he said he was squirrel hunting.”

When a person, with full liberty to speak, remains silent on being accused of a crime, his failure to reply or to deny the accusation is relevant as tending to show his guilt. The accusatory or incriminating statement is admissible not as evidence of the truth of the fact stated, but to show accused’s admission by silence. The doctrine of admission by silence is settled beyond question in the jurisprudence of this state. Robinson v. State, 235 Miss. 150, 108 So.2d 583 (1959). When the accused denies the accusatory or incriminating statement, it is not admissible.

The statement of appellant’s father is hearsay and became inadmissible when appellant denied ownership of the ring. Had appellant remained silent, an exception to the hearsay rule would have arisen, and the statement would have become admissible under the admission by silence doctrine as would the fact that appellant remained silent.

Jolly v. State, 269 So.2d 650 (Miss.1972), stated the rule as follows:

“The argument of the appellant, that the statements of his co-defendants made to police officers in his presence were inadmissible, is not well taken. There is ample authority to the effect that statements made by a third person, which tend to incriminate an accused, are admissible so long as they are made in the presence of the accused and are not contradicted, denied nor objected to by the accused. Here the statements made by the witnesses were not refuted by the appellant.” 269 So.2d at 656.

In Duck v. State, 247 So.2d 689 (Miss.1971), this Court said:

“The doctrine of accusatory statements made in the presence and hearing of the defendant is admissible, as admissions implied from silence are well established in this state. See Jones v. State, 228 Miss. 296, 87 So.2d 573 (1956); Thurmond v. State, 212 Miss. 36, 53 So.2d 44 (1951).” 247 So.2d at 691.

Anderson v. State, 171 Miss. 41, 156 So. 645 (1934), contains a discussion of the admission by silence doctrine, wherein the Court stated:

“The next, and most serious, assignment of error urged by the appellants is that the court below erred in permitting the testimony of Scott and Birdsong to go to the jury, which was to the effect that they had taken the two defendants to the place where Ewing, the main state witness, was in bed from the effect of the shooting, and that Ewing then and there identified them as the persons who participated in the shooting. Their objection was that Ewing’s statement was not made under oath, that it was hearsay evidence, and, therefore, inadmissible. It is the general rule that hearsay evidence is not admissible in evidence, though there are exceptions to the rule. If a party out of court accuses another of crime or makes statements against him, in the hearing of a third party, and the accused remains silent, or does not deny the accusation or statements affecting vitally his interest under certain conditions, the hearsay evidence of the third party as to the statement out of court is competent. But it is permitted to go into the record as evidence only upon the presumption that the silence or failure to deny, on the part of the accused, is an admission.
******
We are of the opinion that the evidence was hearsay, and that the proof, at the time the objection was made and subsequent thereto, never did create what could possibly be construed as an admission on the part of the defendants; so that the objection to the evidence as presented was correct. The officers, Scott and Birdsong, were never asked whether or not the defendants made a response to the statement of Ewing or whether they remained silent.” 171 Miss. at 47, 48-49, 156 So. at 646, 647.

We are not confronted here with a situation where an accused is in police custody thereby presenting the question of violation of his Fifth Amendment right to remain silent, such as occurred in Ivey v. United States, 344 F.2d 770 (5th Cir. 1965) and McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). We are unwilling, in this case, to change the long-established doctrine of admission by silence.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SUGG, WALKER, and BROOM, JJ., concur in Parts I and II.

WALKER, J., specially concurs.

SMITH, J., INZER, P. J., and ROBERTSON, J., concur in Part I, but dissent as to Part II.

WALKER, Justice,

specially concurring.

I agree with Parts I and II of the majority opinion, and, in particular, the discussion of the admission by silence doctrine.

I also agree with Justice Smith’s dissenting opinion, except the statement that the controversial testimony does not involve the so-called “admission by silence rule.” As I see the proposition, it does involve the rule in an indirect way.

The remainder of the dissenting opinion, in my view, properly analyzes the defendant’s exculpatory statement that he had lost his ring squirrel hunting as well as its relevance and admissibility under the theory that the statement was a false and material representation bearing upon his guilt or innocence. This aspect of the troublesome testimony was not raised in the briefs and not discussed in the majority opinion. Other than these minor differences, the two opinions are perfectly compatible; the majority discusses the admission by silence doctrine as it applies to the father’s statement to the deputy; the dissent discusses the defendant’s statement and why, under the circumstances, it was admissible. The Court’s opinion does not hold that the defendant’s statement was inadmissible. That question was not presented by the assignments of error.

SMITH, Justice,

dissenting in part.

I respectfully disagree with the views expressed by the majority as to the competency of testimony relating to certain portions of a conversation which took place between the officers, appellant’s father and appellant on the front porch of appellant’s home.

It seems to be undisputed that appellant owned a gold ring engraved with the monogram “P.” The testimony relative to the conversation between the officers and appellant’s father, and the latter’s contemporaneous conversation with his son, regarding the identification of such a ring found by the body, in my opinion, does not involve the so-called “admission by silence rule.”

The officers had exhibited the ring discovered near the body to appellant’s father in the presence of appellant who had joined them on the porch of his home, and asked the father if it was appellant’s ring. The father stated that it was. The father then asked appellant if the ring were his. The appellant’s reply to his father’s question dealt with two relevant and material facts bearing upon appellant’s guilt or innocence of the crime: (1) He admitted that he owned such a ring, but (2) He disclaimed the ring exhibited to him, saying that he had lost his own ring in the woods while squirrel hunting. The first amounted to an admission that he had in fact owned a similar ring. The second, obviously, is an assertion exculpatory in nature and amounted to an effort to disclaim the ring found near the body. The State offered evidence that the ring exhibited during this conversation was the ring found near the body of the deceased and witnesses identified it as being the ring which belonged to appellant. Appellant’s assertion that he had lost his ring while hunting was relevant and material. Under the State’s theory of the case, this was a false statement volunteered by appellant. It was competent for the prosecution to show that appellant had made this self-serving statement as to a material fact and that it was false. The jury had a right to consider this as a circumstance bearing upon the guilt or innocence of the appellant. It is very much as if a suspect volunteers a statement to officers by way of an alibi that he was at a certain place when the crime was committed. It would be competent to prove this statement and that it was false.

It was for the jury to say whether, under all of the circumstances in evidence, appellant had lost his ring where it was found near the body or had lost it in the woods as he asserted.

It is my opinion, therefore, that the testimony of the officers was competent and properly admitted, except the testimony of the officers as to the statement attributed by them to appellant’s father in which, they testified, the father had said that the ring exhibited to him was his son’s ring.

INZER, P. J., and ROBERTSON, J., join in this dissent.


text:
    THAMES ASSOCIATES, INC., d/b/a Mazda of Jackson v. Mike FEATHERSTON.
    No. 49380.
    Supreme Court of Mississippi.
    May 11, 1977.
    Rehearing Denied May 25, 1977.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

Young, Scanlon & Sessums, Robert R. Marshall, Jackson, for appellant.

Michael J. Malouf, Jackson, for appellee.

Before PATTERSON, P. J., and SMITH and SUGG, JJ.

AFFIRMED.


text:
    Walter MILLER, Jr. v. STATE of Mississippi.
    No. 49954.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied May 25, 1977.
    Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, P. J., and ROBERTSON and WALKER, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, BROOM and LEE, JJ., concur.


author: SHORES, Justice. ALMON, Justice

text:
    A. N. PEDDY v. Bessie K. MONTGOMERY.
    SC 1693.
    Supreme Court of Alabama.
    April 22, 1977.
    Rehearing Denied May 20, 1977.
    James R. Owen, of Owen & Ball, Bay Minette, for appellant.
    Norborne C. Stone, Jr., Bay Minette, for appellee.
   SHORES, Justice.

This is an appeal from a summary judgment granted in favor of the defendant-ap-pellee denying specific performance of an alleged contract for the sale of real estate between A. N. Peddy (purchaser) and Bessie K. Montgomery (seller). The central issue is the constitutionality of Title 34, § 73, Code of Alabama 1940, Recompiled 1958, which denies a wife the power of alienating or mortgaging her lands without the assent and concurrence of her husband. A subsidiary issue is whether the appellant would be entitled to damages because of the refusal of the appellee’s husband to join in a conveyance to the appellant, should the court uphold the constitutionality of Title 34, § 73.

Appellant contends that Title 34, § 73, is in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, as well as Article 1 of the Alabama Constitution of 1901, in that it discriminates against the wife in favor of the husband. Undeniably, husband may convey his land in Alabama without the signature of the wife as a co-grantor, though the grantee takes subject to the wife’s dower interest. In fact, the purchaser may withhold a portion of the purchase price to indemnify against her dower interest. Sadler v. Radcliff, 215 Ala. 499, 111 So. 231 (1927). On the other hand, because of this statute, if the wife conveys or mortgages her separate property without the signature of the husband as a co-grant- or, the conveyance or mortgage is void.

“Except where one or more of the exceptions noted in the statute exist, a deed is void which is executed by a wife without the assent and concurrence of her husband being manifested in the manner prescribed. [Citations Omitted].” Edwards v. Edwards, 259 Ala. 374, 376, 66 So.2d 919, 921 (1953).

Contracts made by the wife for the sale of her lands without the concurrence of the husband at the time the contract is made are also void because of this statute. Obermark v. Clark, 216 Ala. 564, 114 So. 135 (1927). This defense is raised by appellee, seller, in the instant case.

This section contains the only statutory provision left in the law of Alabama limiting the right of a married woman to contract.

Appellee contends that not only is the statute constitutional, but that the issue need not be reached because the appellant did not properly raise the issue, and because he lacks standing.

Appellee argues that the constitutional question was not properly before the court, because the appellant amended his complaint to include the allegation that Title 34, § 73, “ . . . upon which the defendant relies for a defense ... is unconstitutional,” rather than having instead moved to strike the appellee’s defense under Rule 12(f), ARCP, which provides that “if no responsive pleading is permitted . upon motion . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

A motion to strike under Rule 12(f) is the normal and proper procedure to test the legal sufficiency of a defense; however the rules must be read with the caveat that they “. . . shall be construed to secure the just, speedy and inexpensive determination of every action.” Rule 1, ARCP. The amendments to the complaint were allowed by permission of the court. See Rule 15, ARCP. This court is no longer willing to avoid an issue clearly presented because of some alleged technicality in pleading.

The appellee also contends that the appellee also contends that the appellant lacks standing to test the constitutionality of Title 34, § 73, because he is not a member of the class against whom it operates. We disagree. This court has frequently held that the constitutionality of a statute may be presented by a person adversely affected by its operation. State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943). Although Mr. Peddy, the purchaser under the alleged contract upon which specific performance is sought, is not a member of the class against whom Title 34, § 73, operates, he clearly has a personal stake in the determination of its constitutionality. If it is constitutional, his right to compel specific performance of that contract, assuming he can meet the requirements for such relief, is defeated. If the statute is unconstitutional, he has a right to proceed in his efforts to compel specific performance.

We, therefore, turn to the constitutional question presented. There is no dispute that Title 34, § 73, treats married women differently than married men and unmarried females. The question is whether that difference in treatment is permissible under the Constitution of Alabama and the Constitution of the United States.

Any doubt about whether the Constitution of Alabama contained an equal protection provision was dispelled in Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939), where it was held that §§ 1, 6 and 22 of Article 1 of the Constitution of 1901, taken together, guarantee the equal protection of the laws, and prohibit one from being deprived of his inalienable rights without due process. In 1871, referring, of course, to an earlier constitution which contained the same provisions as the 1901 version, this court said:

“ . . . According to our constitution, ‘All men are created equal;’ and the word ‘man’ includes persons of both sexes. Then, the wife is the peer and equal of the husband in all her great rights of life, liberty, and the pursuit of happiness. —Const.Ala.1867, Art. 1, § 1; Rev.Code, § 1; Const.U.S. XIV Amend. § 1. . .” O’Neal v. Robinson, 45 Ala. 526, 534 (1871)

If, therefore, Title 34, § 73, violates the Constitution of Alabama, which guarantees to the citizens of Alabama equal protection of the laws, a right is also reserved to them by the Constitution of the United States, we need not rest our conclusions on the federal constitution, although obviously cases defining rights protected by the equal protection clause of that document are helpful inasmuch as the rights protected by the state constitution are the same.

No great purpose would be served in restating the status of married women at common law as regards real estate owned by them. That has been done. See Holt v. Agnew, 67 Ala. 360, 364, 365 (1880), where Chief Justice Brickell said:

“By the common law, husband and wife were regarded as but one person, for many purposes. The legal existence of the wife was lost, or, as most often expressed, merged in that of the husband. She was without capacity to contract, and had not the administration of her property. By the marriage, if she was seized of an estate of inheritance, the husband became seized thereof, taking the rents and profits during their joint lives, and, by possibility, during his life. . . . Her chattels real passed to the husband, who had power to sell, assign, or make other disposition of them, at pleasure. . .”

The foregoing was true, not only in Alabama, but in most, if not all, of the other states. In 1839, Mississippi passed the first of the Married Women’s Property Acts, and other states rapidly followed. This legislation was designed to remove many of the severe disabilities placed on married women by the common law. The first of a series of such laws was enacted in Alabama in the 1840’s. L. Kanowitz, Sex Roles in Law and Society (1973). These acts had for their purpose securing to married women their separate estates, and generally provided, insofar as material to this discussion, that under certain circumstances a married woman could go into chancery to have herself declared a “free-dealer” which, in turn, allowed her to purchase and hold property in her own name as if she were a femme sole.

The next sweeping legislation came in 1887. Section 8 of Act No. 41, General Laws of Alabama 1886-87, is now Title 34, § 73. It was amended in 1885 to require that the husband assent to his wife’s mortgaging her property, and remained in that form until 1943 when the provision relating to leases was added.

In the interim between 1846, when the first of the married women’s property acts was enacted in Alabama, and 1887, when such legislation took on its present form, Alabama acquired a new constitution. The Constitution carried the following provision for the first time:

Article XIV, Section 6, recites:

“The real and personal property of any female in this State, acquired before marriage, and all property, real and personal, to which she may afterwards be entitled by gift, grant, inheritance, or devise, shall be and remain the separate estate and property of such female, and shall not be liable for any debts, obligations and engagements of her husband, and may be devised or bequeathed by her, the same as if she were a femme sole.”

In Holt v. Agnew, supra (1880), Chief Justice Brickell, said of this provision of the 1868 Constitution:

“ . . . For twenty years before the present provision was introduced into the constitution, the statutes had enlarged the capacity of married women to take and hold property, and had abrogated the common law rights of the husband to the estate, real or personal, of the wife. The purpose of the constitution was the prevention by legislative enactment of a restoration of the common law, and the preservation of the enlarged capacity of the wife. . . .” (67 Ala. at 365)

Although many states enacted statutes similar to Title 34, § 73, in the nineteenth century, by 1913, the number of states retaining such laws had been reduced to twenty. L. Foster, The Legal Rights of Women, 46-70 (1913). By 1972, Alabama was the only state in the Union to retain the requirement that a husband must join in his wife’s conveyances. See 47 N.Y.U.L. Rev. 1033, 1077 (1972). The author of that article suggests that the statute is of dubious constitutionality.

The purpose of the Married Women’s Property Act as first enacted in Alabama has been described by Justice Peters of this court, writing in 1871, O’Neal v. Robinson, supra. His discussion concerned a predecessor statute which required not only that the husband join in the conveyances but, as to the homestead, the wife’s signature be separately acknowledged, and in addition, two witnesses were required to witness her signature. All of these statutory requirements were met in that case, except that the two witnesses did not appear on the wife’s mortgage of her homestead. Justice Peters said:

“Doubtless these precautions were imposed in order to make the security of the wife’s statutory separate estate as great as possible. The wife being, in a greater or less degree, in the power of the husband . . . both by the precepts of the church and the maxims of the law, it was intended to furnish her with the highest possible security against fraud and deception, and against that unfriendly domination of the husband over her and her estate which experience has long taught legislators and statesmen has oftenest proved detrimental to her estate, in spite of all her feeble resistance, as well as all her prayers and tears. .
“ . . There is a wide protective force in the presence of two attesting witnesses that is altogether taken away by a mere formal acknowledgment, which may be wholly the effect of a constraint against which the wife has no protection.
“ . . . Just where the wife needed the presence of two attesting witnesses, one of whom, at least, might have been selected amongst her own intelligent friends, who could have aided her with proper advice, the two witnesses are altogether left out. I do not say this to cast any suspicion upon the honesty of this transaction. But the law is intended to provide for the protection of the wife. This would not be needed, unless she was presumed to be sometimes weak, ignorant, or overpowered. . . . ” (45 Ala. at 533, 536)

This court has continued to recognize that this legislation was based upon the presumption that the husband is the dominant party to the marriage. In Smith v. Smith, 245 Ala. 420, 421, 17 So.2d 400, 401 (1944), Justice Bouldin, writing for the court, said of this statute:

“This statute recognizes the function of the husband in safeguarding the wife against imposition, etc. So in all normal situations the husband is presumed to be the dominant party in transactions, inter vivos, with the duty to shield the wife against oppressive dispositions of her property . . . ”

The court, in that opinion, noted, however, that:

“Since our married woman’s laws have given her an independent status in the ownership, use and enjoyment of her property, her rights to her own earnings, to engage in business, as well as the exercise of full political rights unknown at common law, it may be said the lawful domination of the husband is much changed, and his dominance in fact as a matter of common observation is not so universal as in other days. . . .” (245 Ala. at 421, 17 So.2d at 400.)

Although the purpose of this legislation was to protect the wife, and “not limit her power of alienation,” Newman v. Borden, 239 Ala. 387, 194 So. 836 (1940), the issue is reduced to whether it is constitutionally permissible when its effect is to treat married women, in dealing with their separate property, different from all other adult persons. Single women, divorced women, widowed women and all men are free to transact business, contract, and alienate property, free of all legislative restraints. Only married women are perceived to require restrictions on one of such rights, i.e., alienation of their property, theoretically to protect them against their own actions. In the exercise of all other rights, they are as unrestricted as all other adults.

In addressing this issue, we are not called upon to decide whether all legislation which contains a so-called “gender-based classification,” violates the constitution, either of this state or of the United States. We decide only the issue before us, i.e., whether the provision of Title 34, § 73, which, except in certain enumerated circumstances, mandates that a wife “ . . . cannot alienate or mortgage her lands, or any interest therein, without the assent and concurrence of the husband . . . ” denies equal protection of the laws to married women.

The United States Supreme Court has dealt with gender related classifications contained in various statutes within the last few years. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1972), that court held that an Idaho statute which gave a mandatory preference to males over females to act as administrators of estates violated the equal protection clause of the constitution. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the issue was whether the Due Process Clause of the Fifth Amendment prevented requiring a married woman Air Force Officer to show, in fact, that her spouse was dependent on her for over one-half of his support for the purpose of obtaining increased quarters allowance and medical and dental benefits, while a male member of the Air Force is allowed to claim his spouse as a dependent without such proof. The court held that the challenged statutes violated the constitution, although only a plurality joined Justice Brennan, who would hold that all gender classifications are inherently suspect.

In Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), Mr. Justice Blackmun, writing for a majority of the court, held that a Utah statute establishing that minority for males extended to age twenty-one and for females to age eighteen was a violation of the equal protection clause. The argument that “ . ‘. . . it is the man’s primary responsibility to provide a home . . . ’ . that ‘it is a salutary thing for him to get a good education and/or training before he undertakes those responsibilities,’ . that ‘girls tend generally to mature . before boys’ . . . and that ‘they generally tend to marry earlier’.” (95 S.Ct. at 1376) was rejected, the court observing:

“ . . .No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. See Taylor v. Louisiana, 419 U.S. 522, 535, n.17, 95 S.Ct. 692, 700, 42 L.Ed.2d 690 (1975). Women’s activities and responsibilities are increasing and expanding. Coeducation is a fact, not a rarity. The presence of women in business, in the professions, in government and, indeed, in all walks of life where education is a desirable, if not always a necessary antecedent, is apparent and a proper subject of judicial notice. If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, it is for the girl. To distinguish between the two on educational grounds is to be self-serving . . . ” (95 S.Ct. at 1378)

Similarly, in Frontiero, supra, the court discussed one of the arguments raised unsuccessfully in Reed, supra (but which was not brought out in the Reed opinion):

“ . . . Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since ‘men [are] as a rule more conversant with business affairs than . . . women.’ Indeed, appellee maintained that ‘it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are.’ And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have ‘concluded that in general men are better qualified to act as an administrator than are women.’ ” (411 U.S. at 683, 93 S.Ct. at 1768).

This argument, too, was rejected by the court.

In the instant case, the appellee argues that to hold that the challenged statute violates the Constitution of this state would be to destroy . . the basic concepts of the common law ownership of real property and the right and prerogative of our legislature to govern that part of our social and economic life.” It is also asserted that if Title 34, § 73, is held to be unconstitutional, we are “ . . . back to the common law . . . ” and “ . . . Montgomery [appellee] can’t convey because the title is in her husband . . .”

To this latter assertion, we can only reply that Article X, Section 209, Constitution 1901, assures that all real and personal property of any female in this state, whether acquired before or after marriage, “ . shall be and remain the separate estate and property of such female . . . ” As noted earlier, that provision was first placed in the Constitution of 1868 to insure that there would be no restoration of the common law rule. Obviously, the invalidation of a provision requiring the husband to join in a wife’s conveyance could not have the effect of restoring the wife to her common law status. That, too, is precluded by the Constitution.

Nor are we persuaded that the legislature has the unbridled authority to govern all aspects of our social and economic life. That legislative discretion is limited by the Constitution to the enactment of laws which do not deny to persons of this state the equal protection of the laws. To hold that all conveyances of a wife’s land, or any interest therein, must, to be valid, carry the signature of her husband, is to deny to a married woman rights which are freely exercised by every other adult person, male or female, in Alabama. To justify such a holding on the legal presumption that all married women are incapable of dealing with their own land, without the guidance of their husbands, is to ignore the realities of life as we know it.

We hold that Title 34, § 73, Code, limiting the freedom of a married woman to alienate or mortgage her lands, or any interest therein, without the assent and concurrence of her husband, violates the provisions of Article 1, Constitution of 1901, in that it denies to that category of adult landowners rights guaranteed to all other adult landowners by the Constitution and laws of this state. See In re Dorsey, 7 Port. 293, 361 (1838), holding that the Constitution of this state:

“ . . . means, and was intended to guarantee to each citizen, all the rights or privileges which any other citizen can enjoy or possess. ... As this general equality is thus expressly asserted and guaranteed as one of the fundamental rights of each citizen, it would seem to be clear, that the power to destroy this equality must be expressly given, or arise by clear implication, or it can have no legal existence. . . .”

There is no provision of the Constitution which would permit the legislature to deny to married women rights possessed by all other adults. Its authority to do so must be found in that document, and cannot rest upon an ancient myth that married women are presumed to be more needful of protection of their own interests than' other adults, male or female.

The judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, EM-BRY and BEATTY, JJ., and SIMMONS, Supernumerary Circuit Judge, sitting by designation of the Chief Justice, concur.

BLOODWORTH and ALMON, JJ., dissent.

ALMON, Justice

(dissenting):

The court today in construing the State and Federal Constitutions has set a precedent which, if properly adhered to, will inevitably lead to the unconstitutionality of every law regulating marital property rights which treats husband and wife differently or treats the husband or wife differently from single persons.

After this decision, a wife may convey her separate property free of any marital encumbrance. On the other hand, the husband cannot convey his separate real property without encumbrance, unless the wife is willing to join the conveyance, because of the wife’s potential dower interest in his estate.

Applying the same standard, the wife’s dower interest in her husband’s estate must also be held unconstitutional and so on, in domino fashion, until every law enacted by our legislature which deals with marital property rights will be stricken as unconstitutional; e.g., alimony, the husband’s duty to support the wife for necessaries, homestead exemption, etc.

The court has rendered its decision without addressing the issue of whether the husband and wife classifications are based on criteria reasonably related to a proper legislative objective. The Fourteenth Amendment does not prevent the treatment of different classes of persons in different ways. “The Equal Protection Clause of that amendment does, however, deny to States the Power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.” Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971).

The United States Supreme Court has dealt with gender related classifications and the degree to which courts should defer to the decision of the legislature in a number of cases within the last few years. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the issue was whether the Due Process Clause of the Fifth Amendment prevented requiring a married woman Air Force officer to show in fact that her spouse is dependent on her for over one-half of his support, for the purpose of obtaining increased quarters allowances and medical and dental benefits, while a male member of the Air Force is allowed to claim his spouse as a dependent without such a showing; i.e., without regard to whether the male’s spouse is in fact a dependent. Mr. Justice Brennan wrote, for a plurality of the Court, that:

“ . . . [W]e can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.” Id. at 688, 93 S.Ct. at 1771.

However, the plurality analysis of Justice Brennan has never received a majority vote.

In Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), the issue was whether “the California disability insurance program invidiously discriminates against Jaramillo and other similarly situated by now paying insurance benefits for disability that accompanies normal pregnancy and childbirth.” Id. at 492, 94 S.Ct. at 2490. Mr. Justice Stewart, writing for a majority of the Court, held that the Equal Protection Clause did not require the inclusion of normal pregnancies.

“ . . . Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. ‘The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.’ ” Id. at 495, 94 S.Ct. 2491.

In Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), the Court held that a Utah statute establishing that minority for males extended to age twenty-one and for females to age eighteen was a violation of the Equal Protection Clause. In doing so, the Court declined to specify the appropriate standard of review.

“We find it unnecessary in this case to decide whether a classification based on sex is inherently suspect. . . .” Id. at 13, 95 S.Ct. at 1377.
“We . . . conclude that under any test — compelling state interest, or rational basis, or something in between — § 15-2 — 1 in the context of child support, does not survive an equal protection attack. In that context, no valid distinction between male and female may be drawn.” Id. at 17, 95 S.Ct. at 1379.

From a review of these and other United States Supreme Court cases, I conclude that the standard of review is “something in between.” There is no need to strictly scrutinize the statute as if it dealt with a racial classification, but, on the other hand, to uphold the statute, the court would need to find a more compelling rationale than is needed to uphold an economic classification. See Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).

To further understand what is an impermissible discrimination based on sex, I propose that the recent United States Supreme Court cases may be separated according to the purpose of the statute in question:

1. Statutes which discriminate for the purpose of developing a social welfare program may be upheld. See Geduldig v. Aiello, supra, where benefits for a normal pregnancy were excluded from a state disability insurance program.

2. Statutes which discriminate for the purpose of giving an economic preference to females over males may be upheld. See Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), where widows, but not widowers, were given a $500.00 exemption from property taxation; and Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), where female naval officers were accorded a thirteen year tenure of commissioned service before mandatory discharge for want of promotion, while male officers who were twice passed over for promotion but who might have less than thirteen years of commissioned service were mandatorily discharged.

3. Statutes which discriminate for the purpose of administrative convenience are probably unconstitutional. See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) where a male seeking letters of administration was given a preference over a female; Frontiero v. Richardson, supra, where a male Air Force officer’s wife was presumed to be a dependent while a female Air Force officer’s husband was required to be a dependent in fact; and Weinberger v. Weisenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) where a part of the Social Security Act provided benefits to a widow with minor children, but not to a widower with minor children.

4.Statutes which discriminate for the purpose of preserving “old notions” (Stanton v. Stanton, supra, 421 U.S. at 14, 95 S.Ct. at 1378) as to the relationship between men and women are probably unconstitutional.

My research has led me to no important cases upon the subject other than those discussed. Counsel for appellant apparently relies on the initial ire engendered in the minds of constitutional activists upon first glance at the statute in question.

However, the inquiry should go further. The legislature, a co-equal branch of government, has seen fit to enact a number of statutes dealing with the rights of husband and wife which must be considered as a statutory scheme. See Tit. 34, Marital Relations, Code of Alabama 1940, Recompiled 1958, Tit. 16, Descent and Distribution, and Tit. 7, Chapter 13, Exemption. It is not enough to dissect the part without considering the whole. It has long been the law in this jurisdiction that statutes are presumed constitutional and the burden of striking them down is upon those who assert their unconstitutionality.

Courts should, if possible, construe statutes as being constitutional so long as legislative intent is not thwarted or the constitution itself maligned. Whether this statutory scheme will ultimately withstand the United States Supreme Court’s expanding view of due process and equal protection, I am not sure. I am sure, however, that the United States Supreme Court at this time has not seen fit to throw a constitutional roadblock in the way of states to fashion reasonable restrictions on married persons’ property rights.

I perceive the object of this statutory scheme is to foster and preserve the family unit. Determining the wisdom of these enactments is not a judicial function if the object of the legislation is a legitimate state function. Indeed if one were to weigh the effect of statutes regarding husbands’ and wives’ rights, it could be forcefully argued that the scales are tilted in favor of the wife. For example, dower (Tit. 34, § 40, Code 1940) and curtesy (Tit. 16, § 12, Code 1940) are not abstractly equal. The husband is not permitted to defeat the widow’s dower right; whereas, the wife may by will defeat the widower’s curtesy rights.

The observation of Mr. Justice Powell, the Chief Justice and Mr. Blackmun in their concurring opinion in Frontiero v. Richardson, supra, 411 U.S. at 692, 93 S.Ct. at 1773, is pertinent:

“There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democractic [sic] process, are debating the proposed Amendment. It seems to me that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.
“There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.”

I do not maintain that our law in every instance treat everyone equal. Neither do I personally agree with many of its provisions. I do think, however, that it is a proper legislative function to enact laws to promote and preserve the family unit.

Ultimately, some of these problems will have to be dealt with. My dissent, in the spirit of separation of powers, is a plea for judicial restraint.

BLOODWORTH, J., concurs.

      . Title 34, § 73: “Power of wife to alienate or mortgage her real property.—The wife, if the husband be of sound mind, and has not abandoned her, or be not a nonresident of the state, or be not imprisoned under a conviction for crime for a period of two years or more, cannot alienate or mortgage her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land. But if the husband be non compos mentis, or has abandoned the wife, or is a nonresident of the state, or is imprisoned under a conviction for crime for a period of two years or more, the wife may alienate or mortgage her lands as if she were sole. Provided, however, that the wife may lease her lands and tenements or any interest therein without the assent and concurrence of the husband.”

      . For a full treatment of problems involved in such legislation in Alabama, see Knowles, The Legal Status of Women in Alabama: A Crazy Quilt, 29 Ala.L.Rev. - (1977).

      . “ ‘[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is “so unjustifiable as to be viola-five of due process.” ’ Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); see Shapiro v. Thompson, 394 U.S. 618, 641-642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).” (411 U.S., n.5, at 680, 93 S.Ct. at 1767).

      . Footnote 17 in Taylor, supra, reads as follows: “In Hoyt v. Florida, supra [368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961)], the Court placed some emphasis on the notion, advanced by the State there and by Louisiana here in support of the rationality of its statutory scheme, that 'woman is still regarded as the center of home and family life.’ 368 U.S., at 62, 82 S.Ct. [159] at 162. Statistics compiled by the Department of Labor indicate that in October 1974, 54.2% of all women between 18 and 64 years of age were in the labor force. United States Dept, of Labor, Women in the Labor Force (Oct. 1974). Additionally, in March 1974, 45.7% of women with children under the age of 18 were in the labor force; with respect to families containing children between the ages of six and 17, 67.3% of mothers who were widowed, divorced, or separated were in the work force, while 51.2% of the mothers whose husbands were present in the household were in the work force. Even in family units in which the husband was present and which contained a child under three years old, 31% of the mothers were in the work force. United States Dept, of Labor, Marital and Family Characteristics of the Labor Force, Table F (March 1974). While these statistics speak more to the evolving nature of the structure of the family unit in American society than to the nature of the role played by women who happen to be members of a family unit, they certainly put to rest the suggestion that all women should be exempt from jury service based solely on their sex and the presumed role in the home.” (419 U.S. at 535, 95 S.Ct. at 700).


author: OVERTON, Chief Justice.

text:
    Fred AARON, Appellant, v. STATE of Florida, Appellee.
    No. 47075.
    Supreme Court of Florida.
    Feb. 25, 1977.
    Rehearing Denied May 31, 1977.
    Henry R. Barksdale of Barksdale, Murphy & Crongeyer, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   OVERTON, Chief Justice.

This is a direct appeal from a retrial, upon remand, of a criminal contempt conviction. The proceeding commenced with a grand jury presentment that appellant had attempted to influence the action of its grand juror Jenny Rosenbaum, now Jenny Finman. This resulted in criminal contempt proceedings and a prior decision of this Court in Aaron v. State, 284 So.2d 673 (Fla.1973) (hereinafter referred to as Aaron I). We there* held a sentence of four months imprisonment could properly be imposed by the judge as trier of both law and fact, but reversed the trial court for its denials of appellant’s motion to take the complaining grand juror’s deposition and motion for a bill of particulars.

Retrial was held on June 17, 1974, before a judge who had not taken part in the previous proceedings. He made the following findings:

“THE COURT: Gentlemen, the Court very carefully listened to all of the testimony that has been presented here today and observed the candor and demeanor of each witness, including the Defendant, as he or she has taken the stand and has testified here. The Court finds beyond a reasonable doubt that the Defendant, Fred Aaron, is guilty as charged in the presentment of the Grand Jury to this Circuit Court as filed on the thirteenth day of August, 1970, as such presentment relates to the efforts of Fred Aaron to influence the vote of Jenny F. Rosenb-aum, now Mrs. Jenny F. Finman, by attempting in a conference in her home, as alleged, to remind her of what should be her gratitude to Sheriff Bill Davis. By reminding her that the Grand Jury Room was not beyond being bugproof; by reminding her that if anybody should be investigated, it should be one Mike Iaonne and not Sheriff Davis, and by reminding her that she was, in his judgment, a lady who had leadership and could lead other jurors in the course that it was desired that they should take in the matter under consideration with reference to Sheriff Davis, with the purpose and view on the part of Fred Aaron to pollute the streams of justice by hampering the investigation by the Grand Jury and by influencing the vote of said Grand Juror, and by attempting through her to have an influence upon such others on the Grand Jury as with whom she may have influence. ...”

This appeal was transferred here by the District Court of Appeal, holding that the trial judge necessarily passed on the constitutionality of Section 38,22, Florida Statutes, which provides:

“Power to punish contempts. — Every court may punish contempts against it whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.”

We relinquished jurisdiction to the circuit court to certify whether it passed on the constitutionality of the subject statute. The circuit court replied it had so ruled, and we therefore have jurisdiction.

Appellant contends that the federal and state constitutions entitle him to a jury trial. He says our acknowledgement in Aaron I that “criminal contempt is a crime” brings trials of such contempts within Article I, Section 16, of the Florida Constitution, which provides:

“Rights of accused. — In all criminal prosecutions the accused shall have a speedy and public trial by impartial jury in the county where the crime was committed. . . .”

It is very similar to the jury trial requirement in the United States Constitution.

For a long time, it was generally recognized that all courts had the inherent power to punish any contempt without the need for a jury trial. The United States Supreme Court recognized this common law power to punish for contempt without the necessity of a jury trial continuously since the early days of this country. See Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954); Fisher v. Pace, 336 U.S. 155, 159-160, 69 S.Ct. 425, 93 L.Ed. 569 (1949); Ex parte Grossman, 267 U.S. 87, 117-118, 45 S.Ct. 332, 69 L.Ed. 527 (1925); Michaelson v. United States, etc., 266 U.S. 42, 67, 45 S.Ct. 18, 69 L.Ed. 162 (1924); Myers v. United States, 264 U.S. 95, 104-105, 44 S.Ct. 272, 68 L.Ed. 577 (1924); Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 58 L.Ed. 1115 (1914); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Bessette v. W. B. Conkey Co., 194 U.S. 324, 337, 24 S.Ct. 665, 48 L.Ed. 997 (1904); Interstate Commerce Comm’n v. Brimson, 154 U.S. 447, 489, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894); Eilenbecker v. Plymouth County, 134 U.S. 31, 36, 10 S.Ct. 424, 33 L.Ed. 801 (1890); Savin, Petitioner, 131 U.S. 267, 277, 9 S.Ct. 699, 33 L.Ed. 150 (1889); Ex parte Terry, 128 U.S. 289, 312-313, 9 S.Ct. 77, 32 L.Ed. 405 (1888). The statutory authority contained in Section 38.22, Florida Statutes, recognizes and is a restatement of this common law power and was first adopted by statute in this state in 1828. The purpose of the contempt power is to provide the trial court with the authority to enforce its orders expeditiously and efficiently, to maintain order and dignity in court proceedings, and to punish acts which obstruct the administration of justice.

To adopt fully the position of appellant Aaron and require a jury trial for all criminal contempts would eliminate for practical purposes much of the contempt authority of a trial judge. It would bring the right of a jury trial into contempt proceedings in domestic relation matters, trial disruption incidents, violations of injunctive orders, and conduct which interferes with jurors and witnesses and the summary discipline of attorneys. Further, the contention of the appellant that he is entitled to a jury trial under circumstances where the punishment is four months imprisonment' exceeds the holdings of recent decisions of the United States Supreme Court. See Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). There was no right to a jury trial for criminal contempt until Cheff v. Schnackenberg, supra, was decided, and was applied to the states in Bloom v. Illinois, supra. In Cheff, the right to a jury trial was the principal issue. The defendant had been sentenced to six months imprisonment. The majority opinion upheld the contempt sentence, and denied the defendant a right to a jury trial. In affirming the trial court four Justices expressed the view that when imprisonment was for more than six months it in effect constituted a serious crime and a jury trial was required, but when imprisonment was for not more than six months the judge could try the contempt, without a jury. Two Justices concurred in the result that no jury trial was required, adhering to the common law view that there was no right to a jury trial in any circumstance. Two Justices were of the view that the right to a jury trial applied in any criminal contempt proceeding irrespective of the length of the punishment. One Justice did not participate. In Bloom v. Illinois, supra, seven Justices applied the six-month rule to state court contempt proceedings, and two Justices held to their view that no jury trial was necessary.

In summary, the recent United States Supreme Court cases have now recognized a right to a jury trial for criminal contempt when imprisonment of more than six months is to be imposed, Bloom v. Illinois, supra, but they have denied the right to a jury trial when punishment is for no more than six months imprisonment, Cheff v. Schnackenberg, supra, or where the defendant is placed on probation, even if the probation period exceeds six months, see Frank v. United States, supra.

These recent holdings by the United States Supreme Court represent a moderate compromise solution which places a limitation on the common law inherent power of the trial judge but reserves to him sufficient authority to assure the proper administration of justice. Many views have been expressed recently because of these decisions and a substantial increase in trial disruption incidents. In addition criminal justice standards have been adopted which recognize the summary six-month contempt power of the trial court.

We accept and adhere to the rule adopted by the United States Supreme Court and decline to extend a jury trial right to all criminal contempts. No further limitation upon the action of the trial judge is required constitutionally or otherwise.

The second error asserted by the appellant concerns the exclusion of certain grand jury testimony.

On retrial of the contempt, appellant sought to impeach the credibility of thé grand juror Jenny Finman who was the State’s key witness against him by asserting she had told him certain grand jury testimony. The grand juror Finman denied any such disclosure. It is unrefuted or established by the appellant Aaron’s own testimony that he went to the grand juror Finman’s home while the grand jury was in session, that he was at the time a deputy sheriff of the sheriff who was being investigated, and that he went there allegedly to tell her that an investigation concerning her deceased father was being terminated. Further, appellant Aaron during the course of .the contempt proceedings attempted to state the substance of the testimony of a witness before the grand jury in order to show that the grand juror Finman had been his informant, but the trial judge disallowed the testimony. Appellant’s counsel also requested the court to place parts of the transcript of grand jury testimony in evidence in the retrial to corroborate the proffered testimony of the appellant concerning the testimony of grand jury witnesses before the grand jury. The court allowed the appellant Aaron to identify witnesses who testified before the grand jury, but refused to allow the transcript of grand jury testimony to be placed in evidence. The judge assigned as a reason the need to protect the secrecy of these grand jury proceedings. Appellant contends the failure to admit this transcript in evidence was reversible error. We find no error. This was a sensitive grand jury investigation of a sheriff. Appellant in this case was charged with attempting to influence the vote of grand juror Finman. He in effect contends her asserted revelations to him reflect on her credibility, and impliedly suggests he, therefore, is guiltless on the charge of trying to influence this grand juror.

Assuming the proffered evidence of the grand jury was admitted and coincided with the information known by the appellant, such would not compel a finding that the grand juror Finman lied in her statement of nondisclosure. Nor would it, therefore, support an inference that she likely had lied concerning the statements of appellant’s attempts at influencing her. To so find, the court would had to have concluded that the appellant deputy sheriff could not have learned of the testimony from other sources.

On the facts of this case, appellant’s allegation that grand juror Finman breached her duty only collaterally relates to his denial of attempted corruption and would require an inference to be placed on an inference. Accordingly, the trial court was well within its discretion to refuse to admit the evidence. See 3A Wigmore, Evidence § 983 at 850 (Chadbourn rev. 1970); McCormick on Evidence § 42 (2d ed. 1972).

The finding of contempt by the trial judge that the appellant attempted to influence the grand juror is fully supported by this record. Clearly the act of attempting to influence a juror constitutes contempt of court. See State ex rel. Franks v. Clark, 46 So.2d 488 (Fla.1950).

There being no other meritorious allegations of error, the judgment and sentence are affirmed.

ADKINS, BOYD, ENGLAND, SUND-BERG, HATCHETT and ROBERTS (Retired), JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.

      . The third paragraph of Article III, Section 2, of the United States Constitution, reads:
      “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

      . Chief Justice Warren, Justices Clark, Brennan and Fortas.

      . Justices Harlan and Stewart,

      . Justices Douglas and Black.

      . Justice White.

      . For articles collecting such authority on contempt, see Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183 (1971); Patterson, Criminal Contempt: A Proposal for Reform Providing “The Least Possible Power Adequate to the End Proposed,” 17 S.Dak.L.Rev. 41 (1972).

      . The contempt power of the trial court has been recognized recently in ABA Standards for the Administration of Criminal Justice, The Function of the Trial Judge, Section 7.1 (1974), which prescribes:
      “Inherent power of the court.
      “The court has the inherent power to punish any contempt in order to protect the rights of the defendant and the interests of the public by assuring that the administration, of criminal justice shall not be thwarted. The trial judge has the power to cite and, if necessary, punish summarily anyone who, in his presence in open court, willfully obstructs the course of criminal proceedings.”

      . We note that a defendant is not absolutely entitled to a transcript of the grand jury testimony of a victim for use for impeachment at the trial unless there is a showing of evidence favorable to the defendant in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Minton v. State, 113 So.2d 361 (Fla.1959); State v. Drayton, 226 So.2d 469 (Fla.2d DCA 1969); Walker v. State, 330 So.2d 110 (Fla.3d DCA 1976).

      . Generally, a witness may not be impeached by evidence of prior acts of misconduct where there has been no conviction. Roberson v. State, 40 Fla. 509, 24 So. 474 (1898). See also Hubbard v. State, 37 Fla. 156, 20 So. 235 (1896).


text:
    Dorothy JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 48955.
    Supreme Court of Florida.
    Feb. 25, 1977.
    Judith Petersen, Zephyrhills, for appel-'•ant.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellee.
   OVERTON, Chief Justice.

We review this conviction for criminal contempt on direct appeal from a decision of the Hillsborough County Circuit Court upholding the constitutionality of Section 38.22, Florida Statutes. We have jurisdiction.

Contrary to the instructions of the trial judge the appellant brought into petit jury deliberations in a criminal case two newspaper clippings containing information relevant to the case before it. She showed these clippings to other members of the jury. One of the jury members reported the incident to the court. Following a petition by the prosecutor, the court ordered appellant to show cause why she should not be held in contempt of court for violation of its admonition.

After hearing the matter, the court found her in criminal contempt of court, sentenced her to ninety days in jail, and suspended the sentence in its entirety.

Appellant contends she was entitled to a trial by jury. That issue has been answered in Aaron v. State, 345 So.2d 641 (Fla.1977). Appellant was not entitled to a jury trial, and Section 38.22, Florida Statutes, and Florida Rule of Criminal Procedure 3.840, under which her contempt hearing proceeded, were constitutionally applied. Aaron v. State, supra.

Appellant’s remaining allegations are without merit.

Affirmed.

ADKINS, BOYD, ENGLAND, SUND-BERG, HATCHETT and ROBERTS (Retired), JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.