source: Caselaw Access Project

author: BEATTY, Justice. MADDOX, Justice ALMON, Judge

license: Public Domain

text:
    In re Thomas Warren WHISENHANT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-426.
    Supreme Court of Alabama.
    May 11, 1979.
    Charles A. Graddick, Atty. Gen., James F. Hampton, J. Anthony McLain, Asst. Attys. Gen., for the State, petitioner.
    No brief for respondent.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES, SHORES and EMBRY, JJ., concur.

MADDOX, FAULKNER and ALMON, JJ., dissent.

MADDOX, Justice

(dissenting).

I would grant the writ. The Court of Criminal Appeals, in its opinion, says:

“This is one of the most horrible crimes to reach this court in a long time. We do not know what demonic thoughts passed through the sadistic mind of appellant which compelled him to commit this atrocious rape and murder and the perversities inflicted on his helpless victim.”

Then why is the perpetrator of this crime entitled to a new trial? Because, says a majority of the Court of Criminal Appeals, and a majority of this Court, the district attorney made a prejudicial argument to the jury and the jury verdict did not find Whisenhant guilty of a capital offense. I have read the opinion of the Court of Criminal Appeals and the State’s petition and brief, and I think that the Court of Criminal Appeals may have misapplied the law contained in prior decisions of this Court in reaching the conclusion that the prosecutor’s argument was prejudicial. Judge Bookout, of the Court of Criminal Appeals, was of the opinion that the prosecutor’s comments were “legitimate argument on the issue of the appellant’s sanity and a legitimate reply in kind to arguments made by defense counsel.” I think the State has shown probable merit on its request to review the issue of the prejudicial effect of the prosecutor’s argument; therefore, I would grant the writ on this ground.

I would also grant the writ on the additional ground that it should be clear to anyone, even those not learned in the law, that the jury, by finding the defendant “guilty of capital murder as charged in the indictment and fix his punishment at death by electrocution,” decided the question in issue in such a way that the trial court was able to enter a judgment. That is all that the law requires, at least that is all that the law required until this Court released Clements [v. State Ala., 370 So.2d 723, 1979] one of the cases followed by the Court of Criminal Appeals here. I dissented in Clements and I will respectfully continue to dissent when Clements is cited as authority because I think Clements was incorrectly decided.

There is no question but that Whisenhant was charged with a capital felony, that he was tried on that charge, and that the jury returned a verdict which was responsive to that charge. The law says that if the intention of the jury can be ascertained with reasonable certainty, the verdict should be sustained. The law also says that, in ascertaining that intention, the court should give the verdict a liberal and reasonable construction and should construe it with reference to the pleadings, evidence, instructions, and the entire record. The rule announced in Clements, and required to be followed by the Court of Criminal Appeals here, is exactly opposite to the general rules that have traditionally been used for construing jury verdicts in criminal cases. I would grant the writ and reverse Clements.

FAULKNER, J., concurs.

ALMON, Judge

(dissenting).

I do not agree with this Court in Clements v. State, Ala., 370 So.2d 723 (1979) and Waiters v. State, Ala., 369 So.2d 1272 (1979), with regard to the question of variance between the verdict of the jury and the indictment.

As to the improper argument of the District Attorney issue, I do not, without considering the entire record, conclude that the Court of Criminal Appeals is incorrect, however, I would grant the writ of certiorari and review the record in view of Judge Bookout’s observations in his special concurring opinion.


author: TYSON, Judge.

text:
    Mary Lee DEERMAN, alias v. STATE of Alabama.
    3 Div. 964.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.
    Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

AFFIRMED.

All Justices concur.


author: PER CURIAM.

text:
    In re Mary Lee DEERMAN, alias v. STATE of Alabama. Ex parte Mary Lee Deerman.
    78-428.
    Supreme Court of Alabama.
    May 11, 1979.
    Elno A. Smith, Jr., Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen. and Karen Neal Daniel, Asst. Atty. Gen., for respondent, the State.
   PER CURIAM.

The petition for writ of certiorari to the Court of Criminal Appeals, 370 So.2d 1107, is wholly insufficient in that no grounds for issuance of the writ contained in Rule 39, ARAP, are properly alleged, nor is Rule 39(k), ARAP, utilized in the absence of an opinion by the Court of Criminal Appeals.

Accordingly, the petition is due to be, and is hereby, stricken.

PETITION STRICKEN.

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


author: BOWEN, Judge.

text:
    Carolyn LAFFITTE, alias Carolyn Lafaitte, alias Carolyn Onita Laffitte v. STATE.
    1 Div. 999.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Rehearing Denied April 17, 1979.
    Thomas M. Haas and Neil L. Hanley, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the possession of heroin in violation of Section 401, Acts of Alabama 1971, No. 1407, p. 2378 (now Section 20-2-70, Code of Alabama 1975). Sentence was fixed at three years’ imprisonment. The appellant contends that her conviction is due to be reversed because of the illegal execution of a search warrant and because a proper predicate was not laid for the admission of her confession into evidence.

At approximately 11:50 on the morning of September 28, 1976, six agents of the Narcotics Division of the Mobile Police Department, armed with a search warrant, went to the residence of the appellant and her husband. From their parked automobiles the agents moved “pretty fast” onto the front porch of the residence. Before entering they paused and Officer George Washington announced “police, search warrant”. This was repeated in a loud voice by another officer. The officers were observed by Eddie Laffitte, the appellant’s husband, and his brother-in-law, Nathaniel Davis, who were sitting on a sofa in front of a large picture window. Laffitte grabbed a record album cover which had marijuana on it and ran to the back of the residence. Some of the officers observed this conduct through the picture window before the residence was entered.

Officer Washington testified that when they “stepped on the porch, said police, they (Nathaniel Davis and Eddie Laffitte) was looking out the window and Eddie grabbed it (the marijuana) and jumped and run, they recognized us, they knew us”. The officers then entered the residence by opening an unlocked screen door. The agents had different opinions on whether someone knocked when they announced their presence. Officer Washington, who was the second agent on the porch, testified that they did not knock because Eddie grabbed the marijuana and ran when they “announced” and he saw them. Officer Roderick Roy, called by the defense on the motion to suppress, testified that Officer Havard was knocking on the door “saying the police and all” when he came upon the porch and observed Eddie run from the sofa toward a hallway. Roy, when asked, “Did someone respond to the knock?”, stated, “Yes, sir, they broke and ran.” Roy further stated that “it might have been five or ten seconds there at the time of the knock till looked up and looked out the window and saw us and they broke and ran and at that time we entered the house”.

Officer Havard, also called by the defense, testified that he did not knock because he did not have a chance. He saw Eddie and Davis sitting on the couch; they “had the marijuana in the bag, laid out and was rolling a number (marijuana cigarette)”. Eddie saw Officer Havard, grabbed the bag and ran to the bathroom. All of this happened “instantaneously”. Havard then entered the residence.

At the hearing on the motion to suppress, the testimony was consistent that the screen door was closed but not locked. At trial Officer Washington testified that he and Officer D. Havard were the first agents on the porch, that Officer Havard “hollered police and knocked on the door he hit the door first and it didn’t come open and then I believe he kicked it”.

Davis testified that he was alone in the living room when the officers gave no announcement but just “came on in”. Eddie testified that he was in the bathroom washing his hands when an officer entered and stuck a gun in his side. He admitted that he had the marijuana on an album cover and that he was going to put the marijuana “back in the bag and take it back outside”. The appellant was in a bedroom “in bed” with her young child.

Upon entry the officers found approximately one ounce of heroin on the coffee table in front of the sofa and the marijuana which Eddie had. Other unidentified powders, capsules and tablets were found.

When Officer Roy held up the heroin the appellant came out of her bedroom and spontaneously exclaimed that “that’s mine. You all know I have got a habit and that’s for my own personal use.” The appellant also said that she “snorted it”.

I

The appellant contends that the heroin was obtained by an entry of her residence in violation of Section 15-5-9, Code of Alabama 1975, which provides:

“To execute a search warrant, an officer may break open a door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.”

The appellant argues that the police were never refused admittance before they forcibly entered her residence.

The propriety of the method of entering a premises varies with the exact factual circumstances involved in each particular case. State v. Newman, 12 Or.App. 266, 506 P.2d 523 (1973). In evaluating an officer’s compliance with a “knock-and-announce” statute, the courts look only to the facts and circumstances with which the officer is faced at the time he makes his decision and acts upon it. People v. Schad, 21 Cal.App.3d 301, 98 Cal.Rptr. 439 (1971). If the entry did not comply with the requirements of the statute, the subsequent search was n ot lawful and the evidence obtained thereby not admissible. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). However the statute is subject to exceptions.

“Where it appears from facts adduced that an announcement of the officers’ purpose would frustrate a search, increase the personal peril of the executing officers or cause destruction of the evidence sought, there would be no necessity for compliance with the knock and announce rule, for these exceptions constitute ‘exigent circumstances.’ ”
J. Varón, 1 Searches, Seizures and Immunities, p. 557 (2nd ed. 1974).

See also W. Ringel, Searches, Seizures, Arrests and Confessions, Section 194 (1972).

The particular rule governing the present factual situation is stated in 70 A.L.R.3d 217, 224 (1976).

“(W)here there was some positive conduct on the part of the occupants indicating that they were not going to open the door, it has been held that the officers were justified in assuming that they had been denied admittance and thus in entering the premises.”

“The refusal of admittance contemplated by the statute will rarely be affirmative, but will oftentimes be present only by implication.” McClure v. United States, 332 F.2d 19, 22 (9th Cir. 1964). It is not required that the occupants of the house verbally or affirmatively refuse to respond to the officer’s demand. “Failure to respond within a reasonable time was tantamount to a refusal.” United States v. James, 528 F.2d 999, 1017 (5th Cir. 1976).

The circumstances of this case are such as would convince a reasonable man that permission to enter had been refused and that the occupants of the residence were in the process of attempting to destroy the evidence sought. Any further announcement and delay than that which the officers observed would have frustrated the search. We conclude that the search was executed in a lawful and proper manner despite the fact that there was no affirmative refusal of admittance.

II

The appellant also contends that the incriminating statements she made when she viewed the heroin were inadmissible because the State (1) did not show that the statements were not improperly induced or coerced and (2) did not prove the corpus delicti before the statements were introduced.

The rule is that “when the circumstances indicate that, according to the common probabilities of experience, the confession was not improperly induced, then no formal predicate is required”. C. Gamble, McElroy’s Alabama Evidence, Section 200.-02(4)(a) (3rd ed. 1977). “A confessory statement, which is a spontaneous exclamation, is admissible without proof that it was not obtained by improper inducements.” McEl-roy, Section 200.02(4)(d). The statements were volunteered by the appellant and were not made in response to any interrogation. Thus the Miranda warnings were not required. Roberts v. State, 349 So.2d 89, 94, (Ala.Cr.App.), cert. denied, 349 So.2d 94 (1977).

A showing that there is a reasonable probability of unlawful possession of narcotics or dangerous drugs by someone is sufficient to establish the corpus delicti of the crime of possession. It is not necessary to prove the accused’s connection with the drugs to prove the corpus delicti. Reynolds v. State, 346 So.2d 979 (Ala.Cr.App.), cert. denied, 346 So.2d 986 (Ala.1977); 28 C.J.S. Supp. Drugs and Narcotics § 209. Thus the fact that the heroin was found in plain view on a coffee table in the living room of an inhabited apartment constituted sufficient proof of the crime of possession.

It makes no difference, as concerns reversible error, whether the corpus delicti be proved before or after the admission of the confession so long as it is proved at sometime during the trial. Cooley v. State, 233 Ala. 407, 409, 171 So. 725 (1936).

We have searched the record and found no error prejudicial to the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.

      . There was testimony that the marijuana is poured on an album cover so that the seeds can be removed.


author: MADDOX, Justice.

text:
    Ex parte Carolyn LAFFITTE.
    78-506.
    Supreme Court of Alabama.
    May 25, 1979.
   MADDOX, Justice.

Writ denied.

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


author: HARRIS, Presiding Judge.

text:
    Lincoln R. MADDOX v. STATE.
    6 Div. 870.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Rehearing Denied April 17, 1979.

      Robert B. Bryan and Roger C. Appell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree appellant was convicted of murder in the second degree and the jury fixed his punishment at thirty years in the penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty. After sentence was imposed, appellant gave notice of appeal. He was found to be indigent and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The sufficiency of the evidence was raised by motion for a new trial on the ground that the State presented no evidence going to show that appellant intentionally killed Arthur Gaines who was seventeen years of age at the time of his death. Appellant conceded that the evidence adduced by the State would support a conviction of manslaughter but not murder in the second degree.

The State’s evidence proved that Arthur Gaines died as the result of a gunshot wound to the head and that the fatal shot was fired by appellant. The testimony of two eyewitnesses, however, was in conflict as to whether appellant aimed and fired or whether the gun went off as appellant was swinging it at the deceased. The evidence presented on behalf of the appellant tended to show the shooting was accidental. This evidence consisted primarily of the testimony of a psychologist that appellant suffered varying degrees of impairment in the use of both his left and right hands and appellant’s own testimony that the gun went off accidentally.

Juanita Gaines, mother of the deceased, Arthur Gaines, testified that, on Sunday, September 11, 1977, she last saw her son alive at 9:30 a. m., and that he was seventeen years old at the time of his death.

The deputy coroner of Jefferson County testified that, on September 11, 1977, he examined the body of a black male identified as Arthur Ticking Gaines at Carraway Hospital. He testified that at the autopsy performed later the cause of death was determined to be a gunshot wound to the head and that the wound was not a contact wound. The point of entry was the left eyebrow.

On cross-examination the coroner testified that in his opinion the wound was not consistent with the type of wound made by the accidental discharge of a gun being swung in the air.

Shirley Roper testified that, on September 11, 1977, at approximately 10:30 a. m., she drove into the Citgo Service Station managed by appellant to get gas and transmission fluid. She testified that while appellant was in the station office getting change for her, a little boy pulled up on a bicycle and went to a telephone booth on the wall outside the service station;» She was getting out of her car when she saw appellant talking to the little boy. She testified that appellant said, “You black S.O.B., you’re the same one who stole my money last Sunday, but you won’t get a chance to do it this time,” and that he then raised his gun and shot him. At the time of the shooting appellant was standing in the doorway of the service station and the deceased was standing a few feet away straddling his bicycle.

After the deceased was shot he fell off his bicycle and Shirley Roper told appellant to call an ambulance saying, “the boy is dying.” Appellant responded by saying, “he ought to die.”

On cross-examination Ms. Roper testified that appellant was not swinging the gun when it went off but that he aimed it and fired it. Inconsistencies were brought out between her testimony at trial and her earlier statement given to police regarding details of the incident. Ms. Roper admitted that she had a prior petty larceny conviction as well as federal convictions for mail theft and cheek forgery. She denied that her testimony against appellant was influenced by charges of grand larceny pending against her at the time.

Walter Burton testified that, at approximately 10:30 a. m., on September 11, 1977, he went to appellant’s service station to get a pack of cigarettes. He substantiated Ms. Roper’s testimony that appellant accused the deceased of having stolen forty dollars from him previously and testified that the boy stated, “I didn’t get your money. You have got me wrong, Mister.” Appellant then turned to go to the cash register and came out with a pistol. This witness testified that appellant came out closer to the deceased, swung at him and all at once he heard the pistol fire.

Officer Fred R. Hedgeteth of the Birmingham Police Department testified that he recovered a .22 caliber revolver at the scene which he turned over to the evidence technician of the Birmingham Police Department. On cross-examination he testified that appellant never tried to leave the scene and that appellant told him where the weapon could be found.

Officer Leonard M. Robbins, evidence technician, testified that he received a .22 caliber revolver from Officer Hedgeteth and the weapon was admitted into evidence.

Daño Leli, clinical psychology intern, testified on behalf of appellant that he had administered a neuro-psychological test battery to appellant. His clinical findings were that as a result of a stroke appellant suffered from kinestesis due to severe impairment in functioning of the left hand and mild impairment in functioning of the right hand. Mr. Leli testified that the effect of this condition is that appellant has very little coordination in his arms and hands and that he is unable to know what his arms and hands are doing when he is not looking at them. On cross-examination he testified that it would be possible for a person suffering from such a condition to be unable to control a gun held in his hand and that if he was not watching the pistol, it could accidentally go off.

Appellant Lincoln Maddox testified in his own behalf. He admitted shooting Arthur Gaines but testified that he had not intended to shoot him. It was appellant’s testimony that two weeks prior to the shooting the deceased had taken over forty dollars from the cash register at the service station. When the deceased returned to the station on the day of the shooting, appellant confronted him and accused him of having taken the money earlier. He got out his gun, which was already cocked due to appellant’s inability to cock it himself. He testified that he reached at the deceased with his hand trying to hold him but Gaines resisted him, pulling back. Appellant testified that he swung the gun trying to get the deceased into the station and that it was his intention to lock him in the station until he could call the police. While he was swinging his hand out with the gun in it, the gun went off.

Appellant testified that when he realized he had shot the boy he called for police and an ambulance, and then waited until the police arrived. Appellant testified to disability in his left side and right hand due to a stroke which had left him partially paralyzed.

On cross-examination appellant testified that when the deceased came to the station on the day of the shooting he recognized him as the person who had taken the money two weeks before. Appellant admitted that he had not called the police when the money was taken, because at the time the telephone was out of order and he was unable to leave the station to get to a telephone. The earlier incident was never reported to the police.

The evidence was uncontroverted that appellant, Lincoln Maddox, shot and killed Arthur Ticking Gaines. There was conflicting evidence on the question of whether the killing was accidental or intentional. This presented a question for the jury to resolve and the verdict rendered thereon will not be disturbed on appeal. Young v. State, Ala.Cr.App., 346 So.2d 509.

In a prosecution for murder it is for the jury to determine the claim of the accused that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805; Powell v. State, 219 Ala. 557, 123 So. 34; Macon v. State, 36 Ala.App. 651, 63 So.2d 32; McMillan v. State, 44 Ala.App. 216, 205 So.2d 603; Smith v. State, 54 Ala.App. 96, 304 So.2d 914.

Appellant urges on appeal that this court find reversible error in the trial court’s refusal to give appellant’s requested charge number 6 as follows:

“An unintentional killing of a human being arising from a wanton, or reckless use' of firearms, in absence of intent to discharge the weapon and under circumstances not evidencing a heart devoid of sense of social duty, is manslaughter, and may be classified as voluntary or involuntary as circumstances of the case dictate.”

Three grounds are set forth in support of this contention: (1) The charge was a correct statement of the law, (2) It was not substantially covered by the Court’s oral charge, and (3) Refusal of the correct charge as applied to a particular phase of the evidence is error, even though covered by general charges based on general principles.

The precise language of requested charge number 6 was held to correctly state the law as applied to a jury charge on the phase of evidence tending to show accidental discharge of a gun in a homicide prosecution. Garrett v. State, 268 Ala. 299, 105 So.2d 541. While a requested charge must of course correctly state the law in order to be given, refusal will not warrant reversal on that basis alone.

The rule of law governing reversal for refusal of a charge which correctly states the law is statutory and is found under Code of Alabama 1975, § 12-16-13, as follows:

“. . . The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties.

It is appellant’s contention that this statutory requirement was not met in the case at bar. We disagree. The cases are legion in this state which hold that refusal of a correct charge is not error if the same rule of law was substantially and fairly covered in the court’s oral charge. See Annotation to § 12-16-13, supra, and cases cited therein.

In its oral charge the trial court below charged the jury on all degrees of homicide. Included in the charge on manslaughter in the second degree was the following:

“The intention to take life is not necessary in the prosecution for this offense. Manslaughter in the second degree is the unlawful killing of a human being where neither death nor bodily harm was intended but death is accidentally caused by some unlawful act or an act strictly lawful in itself but done in an unlawful manner and without due caution. And without due caution means without due care.”

Requested charge number six was intended to put before the jury the rule of law that an unintentional killing resulting from the accidental, albeit reckless, use of firearms is manslaughter. This rule was amply covered by the court’s oral charge, set out above, and error cannot be predicated upon the refusal to give the requested charge. Furthermore, as the court’s oral charge fully and specifically covered the rule of law embodied in appellant’s requested charge, refusal of charge number six is not error under the rule of McKenzie v. State, 19 Ala.App. 319, 97 So. 155, cited by appellant. In McKenzie, supra, refusal of a charge termed to embrace a correct principle as applied to a particular phase of the evidence was held to be error where the court’s charge was given in general terms and based upon general principles. The court here specifically charged the jury on death accidentally caused by some unlawful act or a lawful act done without due caution. McKenzie, supra, therefore has no application in this case.

This was a senseless killing of an unarmed youth who was still on his bicycle and had not provoked any difficulty by word or deed at the time appellant gunned him down.

A careful search of the record reveals no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Lincoln R. MADDOX.
    78-494.
    Supreme Court of Alabama.
    May 25, 1979.
   SHORES, Justice.

Writ denied.

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


text:
    Charles Ray NIX v. STATE.
    8 Div. 139.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Dan F. Nelson, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the first degree murder of Harris Lee Parcus, Jr. by shooting him with a pistol. In accordance with the verdict of the jury, the trial court imposed a sentence of life imprisonment. The appellant argues that his conviction should be overturned because of the allegedly prejudicial remarks of the District Attorney in his closing argument to the jury.

I

Initially it is argued that the District Attorney directly commented on the appellant’s failure to testify. At trial the defense rested immediately after the State presented its case and the appellant did not testify or present any evidence in his behalf.

The objectionable remarks by the District Attorney appear in the record as follows:

“I am going to talk about that — this good old country boy from Decatur has given you all of these facts for you to decide this case on. Just where is the evidence? What evidence has he put before you? And I ask you, show it to me.”

Defense counsel objected, requested the court to instruct the jury to disregard, and moved for a mistrial. The trial court sustained the objection and instructed the jury that “you must disregard that statement”. He then polled each member of the jury asking each juror separately if he or she could disregard the statement. Each juror responded that he or she could. The court then asked the jury as a body “Will each of you disregard it as you have stated to me?” and received an affirmative response. Next the court instructed “counsel for the State to make no further reference of that nature”. The motion for a mistrial was denied.

The next day after this remark was made, the court, in charging the jury, instructed that the defendant had a “perfect right” not to testify.

“You are instructed that that is a fact from which you may draw no inference. You may not consider that fact in the defendant's favor or to his detriment. It is just a matter to be put out of your mind and not consider it at all. You may not draw conclusions of any sort from the fact that the defendant did not testify in this case.”

The rule in Alabama is that:

“Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: ‘There has been no refutation of any of the evidence presented by the State,’ or more simply, ‘The State’s evidence stands uncontradicted,’ or other appropriate comment to like effect.
“But it is concomitantly the duty of the prosecutor not to, in any manner, comment on the failure of the defendant to testify. Thus if there exists the possibility that the prosecutor has commented in such a manner that the jury may understand it as a comment on the defendant’s failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), and cases cited therein. In this regard we note that some comments can be so prejudicial as to be ineradicable. Stain v. State, 273 Ala. 262, 138 So.2d 703 (1961); McLemore v. International Union, 264 Ala. 538, 88 So.2d 170 (1956) (noncriminal case).” Beecher v. State, 294 Ala. 674, 682-683, 320 So.2d 727, 734 (1975).

Here the prosecutor’s comment went further than a mere remark that the State’s evidence was uncontradicted. The comment focused on the defendant’s failure to put evidence before the jury. Such comment was improper as there is the reasonable possibility that it could be understood by the jury as a reference to the failure of the defendant to testify. Beecher, 294 Ala. at 682, 320 So.2d 727. However, the comment was not so prejudicial as to be ineradicable.

Where the trial court immediately charges the jury to disregard the prosecutor’s improper remarks, there is a prima facie presumption against error. Tillis v. State, 292 Ala. 521, 523, 296 So.2d 892 (1974); Davis v. State, 259 Ala. 212, 217, 66 So.2d 714 (1953); Williams v. State, 43 Ala. App. 343, 346, 190 So.2d 556 (1966). In Beecher, the Supreme Court indicated that the trial court’s prompt and vigorous instructions to the jury should inform them of the defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify. 294 Ala. at 683, 320 So.2d 727. However an improper remark may be rendered “innocuous” where the thrust of the remark is indirect and the trial court sustains the objection of defense counsel and merely instructs the jury not to consider the remark. Tillis v. State, 292 Ala. at 523, 296 So.2d at 894 (where the instructions were, “Gentlemen you will not consider that. This is not evidence . . . ”) In the instant case we need indulge no presumption against error as the trial judge wisely ascertained from each individual juror that the remark could not and would not be considered. The action of the court in determining that the prosecutor’s remark would be disregarded by each juror and his instructions to the jury support the finding that any harmful or prejudicial taint or effect was cured.

The granting of a mistrial is an extreme measure and should be exercised only when manifestly necessary or when the ends of justice would otherwise be defeated. Section 12-16-233, Code 1975. A motion for a mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court. Stennett v. State, 340 So.2d 67 (Ala.Cr.App.), cert. denied, 340 So.2d 68 (Ala.1976). Under these circumstances the action of the trial court cured any prejudice to the appellant resulting from the prosecutor’s remarks.

II

The appellant’s argument that Section 12-21 — 220, Code of Alabama 1975, requires the trial court to automatically grant a new trial if the District Attorney makes any comment on the defendant’s failure to testify is without merit. In Broadway v. State, 257 Ala. 414, 418, 60 So.2d 701 (1952), it was held that such argument is constitutionally unsound as it is premised on an infringement of legislative power upon judicial discretion and violates Section 43 of the Alabama Constitution of 1901 providing for the separation of powers.

III

We have carefully reviewed the three other comments by the prosecutor which the appellant finds objectionable. To each argument the trial judge sustained defense counsel’s objection, instructed the jury to disregard, and denied the motion for a mistrial.

“A mistrial will not be granted on motion of defendant where the court has sustained his objections to alleged improper argument and excluded it from the jury’s consideration, unless it clearly appears that the defendant’s rights have been so prejudiced as to render a fair trial a matter of grave doubt.”
Watson v. State, 266 Ala. 41, 44, 93 So.2d 750, 752 (1957).

In ruling on the motion for new trial the trial judge specifically addressed the issue of the prosecutor’s comments.

“THE COURT: Well, it is the judgment of the Court that the arguments that you allude to as being prejudicial in the case were not so and if they were in fact, any error that was committed by the District Attorney was eradicated. I had opportunity to observe the jurors, their studious observance of the evidence and the witnesses, their response to the Court and it was my judgment under the circumstances that they did indeed disregard what they were instructed to disregard and therefore, there was no accumulative effect leading to error.”

The arguments of each party are reported in full in the record. Considering the context of each comment, the cumulative effect of all the comments, the action of the trial court and the findings of the trial judge in denying the motion for new trial, we cannot say that the statements in the instant case were so injurious as to deprive the appellant of a fair trial. Indeed, the record reveals that the experienced trial judge faithfully and commendably did his upmost to insure the appellant a fair trial.

We have searched the record and find no reversible error. The verdict is amply supported by the evidence. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . “We tried to put the witnesses up there, all of them I could vouch for. I won’t put convicted criminals on the stand and people that 1 have to vouch for_”
      ******
      “All of these kinfolks _ all of these with kinfolks that told you this story — kinfolks — his sister-in-law testified up here, didn’t she? His sister-in-law. And his wife’s uncle was shot and testified for you, his wife’s uncle and his own sister-in-law and he must be getting along all right, his wife refused to testify. So the Defendant must be getting along all right.” * * * * * *
      “If not, as Decatur says, give Sid a license and give all of these nineteen year old boys in a dry county license to come over here. You are paying right now for the clubs in Huntsville, Alabama. They collect taxes and build the Civic Art Center and you just imagine what this trial has cost because the people from the dry Counties coming over here to these clubs_”


author: BEATTY, Justice.

text:
    Ex parte Charles Ray NIX.
    78-508.
    Supreme Court of Alabama.
    May 25, 1979.
   BEATTY, Justice.

Writ denied.

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


author: DeCARLO, Judge.

text:
    Jerry Russell ALDERSON, alias v. STATE.
    7 Div. 620.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Leon Garmon, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., Montgomery, for the State, appellee.
   DeCARLO, Judge.

In the fall term of 1977, the Etowah County Grand Jury indicated the appellant for first degree murder and robbery. He was arraigned on these charges and entered a plea of not guilty, and not guilty by reason of insanity.

Upon motion of defense counsel, the appellant was referred to Bryce State Hospital for psychiatric evaluation. In a letter from the hospital, dated June 14, 1978, the appellant was certified mentally competent to stand trial.

On June 19th and 20th of 1978, the appellant was tried on the above charges before a jury in the Etowah Circuit Court. On June 21, 1978, he was found guilty of murder and sentenced to life imprisonment. On the same date, the jury also found him guilty of robbery and sentenced the appellant to twenty years imprisonment.

Jerry Russell Alderson and two juveniles, Ricky Rawlinson and Charles Alexander, were employed at Judy’s Oyster Bar near Jacksonville, Alabama, on the evening of October 8, 1977. According to Ricky Raw-linson, at approximately 11:00 P.M., the three young men left the establishment, accompanied by Ricky’s mother, who was also employed at the oyster bar. After taking Mrs. Rawlinson to her home, the three companions then drove Mrs. Rawlin-son’s blue Chevrolet in search of some friends. After some ten to twenty minutes, they drove to Gadsden, Alabama, and then toward Attalla.

About 1:30 A.M., at the intersection of Alabama Highways 278 and 77, north of Attalla the three companions picked up a hitch-hiker. Ricky Rawlinson and the appellant, who was driving the automobile, were in the front seat, and Charles Alexander and the hitch-hiker rode in the back seat. The hitch-hiker asked to be taken to Attalla and the appellant began to drive. Subsequently, however, the appellant stopped the car and pulled off the road, saying he had to use the “bathroom.” At that time, all four people left the car.

Rawlinson noticed that, when he got out, the appellant got a tire tool from under the front seat of the car and placed it on the trunk of the automobile. Rawlinson and Alexander started to get into the car, the appellant delayed and Rawlinson turned and saw the appellant raise the tire tool and strike the hitch-hiker on the head.

In Rawlinson’s words, “. . .1 seen him raise the tire tool in his hand and I poked Eddie on the back and told him to find out what Jerre was doing and then we seen him hit him.”

The victim, Harold Coffelt, fell to the ground, into a drainage ditch. The appellant dragged Coffelt from the ditch and raised his shirt to check for a heartbeat. Next he searched the victim’s pockets and took a watch, a key, a wallet and some change.

Rawlinson testified that the appellant then stated that he thought he saw the victim’s arm move, at which time the appellant stated, “Well I’ll fix that now. ...” The appellant then hit the victim on the head again and pushed him into a drainage ditch flowing with water.

At that point, Rawlinson said he told the appellant, “I’m going to leave,” and he and Alexander got into the car. The appellant entered the car and Rawlinson started driving toward Anniston, Alabama. The appellant, during that time, went through the victim’s wallet and threw everything out the car window except the money ($10.22) and the victim’s watch.

According to Rawlinson, the appellant “asked us ain’t we ever seen anybody be killed before,” and said, “I’ve done this plenty of times before.”

Further, Rawlinson stated that, on the way to Anniston, they gave another hitchhiker a ride that evening, but took him to his requested destination without harming him.

During cross-examination, Rawlinson testified that he was “picked up” by the police in Anniston on October 24, 1977, along with Alexander and the appellant, on a charge of “Auto Grand Theft.” He also stated that he had a juvenile petition pending in Eto-wah County at the time of the present trial. Further, he said that after two weeks in custody at the Coosa Valley Regional Juvenile Center, he and Alexander volunteered statements about Coffelt's murder while being questioned about other crimes at the Anniston Police Station.

Charles Alexander, one of the three present when the victim was killed, gave substantially the same testimony as that of Ricky Rawlinson. However, Alexander did state that, when the appellant went through the victim’s wallet he told them that the victim had ten dollars and twenty-two cents. Further, Alexander said that the appellant did not give any of the money to him or Rawlinson. He also testified that, on their way to Anniston from Altoona, where the murder occurred, the appellant said that, “I’d better not ever tell nobody about this thing, and then put a knife in my throat and said if I did he’d kill me.”

James Buttram, State Toxicologist, testified that, on October 12,1977, he performed a post-mortem examination on the body of the victim, Harold Coffelt. He said that the examination revealed evidence of what appeared to be “blunt force damage to the body at the surface of the right temple and underneath.” Underneath this penetrating wound was a “depressed fracture of the skull. . . . there was a bruising of the brain damage underneath that location.”

Further, the toxicologist stated that other portions of the body showed evidence of abrasions or “scraping type” wounds. He stated also that, “[t]here was evidence of fluid accumulation in both of the plural cavities, the lung cavities of the chest, and . about one-third of a pint of watery fluid in the stomach.”

He stated that, in his opinion, the death was a “result of asphyxia or interference with the air supply to the body as a result of drowning.” Regarding the severity of the “blunt force trauma” on the head, But-tram stated that, in his judgment, “that wound would probably have produced incapacitation, probably a period — I don’t know how long of unconsciousness.”

During cross-examination, Buttram stated that there was .02 percent ethyl alcohol in the blood of the victim, but that this amount of alcohol would not permit him to give an opinion regarding the amount of alcoholic beverages the victim had consumed prior to his death.

During the trial, the State introduced separate written statements by Rawlinson and Alexander, which corroborated their testimony at trial. Also admitted into evidence was the appellant’s written statement, which was similar in nature to the story told by Rawlinson and Alexander.

In the appellant’s version, however, he stated that Rawlinson and Alexander had struck the victim with the tire tool. According to the appellant, he struck the victim with his fist only after which, the three left the scene. The appellant stated that they returned to the scene later that night, at which time the victim still had a heartbeat. At that point, the appellant said that Alexander struck the victim with a “jack arm.” Further, he said that the three returned still another time, at which point, Rawlinson then struck the victim with a lug wrench.

I

Appellant contends that he was deprived of his constitutional right to confront the witnesses against him, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, when the trial court refused to allow him to cross-examine the State’s juvenile witnesses as to their prior criminal records, in order to impeach their credibility.

In support of this contention, appellant cites as authority, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347.

The facts in Davis are that, in the early morning hours of February, 1970, a safe was stolen in Anchorage, Alaska, and later found near a road outside Anchorage. Green, a juvenile on probation for burglary, was questioned by State troopers and said that he had seen two men standing beside a car near where the safe was found.

Green made a photographic identification of Davis but, prior to trial, the prosecution moved for a “protective order” to prevent any references to Green’s juvenile record at trial. Counsel for the defense opposed the motion, maintaining that Green’s delinquency would only be used to show that, when aiding State investigators, Green was on probation, and therefore biased. The trial court allowed the protective order, relying on Alaska’s juvenile statute, which barred evidence of a juvenile’s adjudicated delinquency from being used in subsequent proceedings against the child in any court.

During the trial, defense counsel attempted to expose Green’s state of mind at the time he was being questioned by the State’s investigator. Defense counsel asked Green whether he had ever been interrogated in that manner by the police and Green responded with a curt “no.” At that point, the prosecution objected and was sustained, thereby preventing further inquiry into Green’s state of mind.

The Alaska Supreme Court affirmed Davis’ conviction, stating that he had adequate opportunity to probe Green’s possible bias of motive. The United States Supreme Court did not accept the Alaska Supreme Court’s conclusion, stating:

“. . . [W]e conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.”

Although the language in Davis seems to suggest that bias is more protected than some other form of impeachment by way of cross-examination, we believe this is an unwarranted interpretation of the case.

However, we believe that the holding in Davis was limited, and was not meant to be a general license to impeach a witness by past juvenile delinquency adjudication in all situations. Justice Stewart addressed this question in his concurring opinion, by emphasizing:

“. . [T]hat the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.”

Under § 12-15-72, Code of Alabama 1975, proceedings in juvenile court and adjudications of delinquency do not result in criminal convictions or criminal records for youthful offenders.

Impeachment of one’s credibility by evidence of a former conviction must be based upon (1) conviction of a crime (2) involving moral turpitude. § 12-21-162, Code of Alabama 1975.

Because § 12-15-72, supra, precludes adjudications of delinquency from being considered criminal convictions, our courts have held that such an adjudication cannot be introduced to impeach a juvenile witness even where the crime serving as the catalyst for the adjudication involves moral turpitude. McElroy, Alabama Evidence, 3rd Ed. § 145.01(4).

The appellant insists that this reasoning is no longer justified under the rationale of the Davis decision. Whether or not the offenses are denominated as criminal convictions by the Alabama statute, the appellant argues that Davis, supra, requires the admission of a juvenile witness’ prior “criminal convictions,” under the circumstances of the instant case.

The primary thrust of Davis was to secure for the defendant in a criminal case the right to inquire, within bounds, into the biases and prejudices of those prosecution witnesses testifying against him. Under Davis, this is a requirement that must be done even at the cost of violating the State’s policy of protecting a juvenile offender’s anonymity.

In the case under consideration, it is our judgment that the trial judge, by a careful exercise of his discretion and judicious rulings, complied with the standards required by Davis. At the same time, he maintained the integrity of Alabama’s statutory provision protecting juvenile offenders.

The facts in Davis differ from the case before us. In Davis, a “protective order,” prohibiting any reference by the defense during cross-examination, to the witness’ prior adjudication was granted to the prosecution prior to trial. This was not the case in the present trial.

Further, in Davis, the juvenile witness, [Green] was questioned as to his feelings concerning possible police suspicion that he may have burglarized the safe and flatly denied such feelings. Over defense objection, he also denied ever being subjected to any similar such police interrogation. Hence, the jury in Davis was left to make its decision with these unchallenged misleading statements by a key prosecution witness.

In the instant case, both juvenile witnesses had been granted probation for juvenile offenses in conjunction with their statements against the appellant. Also, both of the young men were awaiting adjudication of juvenile proceedings against them, arising from the same criminal acts for which the appellant was being tried.

Unlike Davis, however, the trial court allowed all of this information to go to the jury and much more, thus making the jury fully aware of any possible bias or motive in testifying that these witnesses might have had, prejudicial to the appellant. This is revealed in the record during the testimony of the witness, Ricky Rawlinson, which reads, in pertinent part, as follows:

“Q. Do you have a juvenile delinquency petition pending here in Etowah County?
“A. [Rawlinson] Yes, sir.
“MR. MOORE: That’s all.
“Q. When you were picked up on the 24th of October beside the Anniston Police Department would you tell me in relation to what charge that was on?
“A. [Rawlinson] Grand Theft.
“Q. Grand Theft”
“A. Auto.
“Q. Had you ever been in trouble before?
“A. [Rawlinson] Yes, sir.
“Q. How many times before this particular auto theft?
“A. Twice.
“Q. Twice before. So, this is the third time?
“A. Yes, sir.
“Q. You were a three time loser—
“MR. MOORE: Your Honor, we object to this line of argument.
“MR. GARMON: Your Honor, I’d like to finish my question.
“Q. You’re saying after three times in the juvenile detention center you were not worried about this possible homicide and you didn’t discuss what you and Mr. Alexander were going to say and implicate the Defendant?
“A. [Rawlinson] No, sir.
“Q. And you’re how old?
“A. Sixteen.
“Q. Sixteen years old?
“A. Yes, sir.
“Q. You’ve been charged three time?
“A. Yes, sir.
“Q. With different offenses?
“A. Yes, sir.
“Q. What was the age of the first offense you were charged with?
“A. Fourteen.
“Q. So, at age fourteen you had your first criminal rap?
“A. Yes, sir.
“Q. What, if anything, did you do when you got inside the police department?
“A. [Rawlinson] Well, they started — We went to court about the Grand Theft, Auto.
“Q. You went to court about the Grand Theft, Auto?
“A. Yes, sir.
“Q. You went before a judge?
“A. Yes, sir.
“Q. Did you receive a sentence?
“A. No, sir.
“Q. After you had gone before the court, then you went to the police officers or you went into a room to talk with the police officers and make your statement?
“A. [Rawlinson] Well, see, after the court was over they took us in there. They wanted to find out some things, if we had anything to do with them.
“Q. Some other stealing?
“A. Yeah.
“Q. And you — Did you tell them that you had?
“A. Yes, sir.
“Q. And you had?
“A. We had been involved in one other item.
“Q. Okay. And after telling them that you had been involved in some other stealing — By the way, were you ever charged on that?
“A. No, sir.
“Q. Did they offer you any immunity or tell you, say, ‘If you help us out here and hang Alderson we’ll take care of you. We’ll make sure that you don’t serve any time on this murder rap or that you don’t serve any time on any other raps.’?
“A. [Rawlinson] They said if we testified that we, you know, get off pretty easy.
“Q. If you testified you could get off pretty easy?
“A. Yeah.
“Q. Have you been charged in that other stealing case that you told the Anniston Police about?
“A. We was charged and they put us on probation.
“Q. Are you in jail now?
“A. No, sir.
“Q. You’re not in Coosa Valey Detention Center?
“A. No, sir.
“Q. When were you put on probation?
“A. December the 6th, I believe.
“Q. Did you stay in the Coosa Valley Detention Center until then?
“A. Yes, sir.
“Q. So, after you cooperated with them, then you got out on probation on December 6th?
“A. Yes, sir.
“Q. These juvenile delinquency charges you have pending in Etowah County here, do they concern murder and robbery arising out of this incident with Mr. Coffelt?
“A. [Rawlinson] I don’t think so.
“Q. The juvenile delinquency petition that you have here pending in this county, does that concern this incident?
“A. Yes, sir.
“Q. And you are now on probation?
“A. Yes, sir.
“Q. You were put on probation December 6, 1977?
“A. Yes, sir.
“Q. And you were promised easy treatment or you would be taken care of if you made your statement against the defendant as far as your part in that crime?
“A. Yes sir.”
During the testimony of Charles Alexander, we find that the appellant was again allowed to show the jury any potential bias of the witness. From the record, we find the following:
“Q. Have you ever told the police about what happened here?
“A. [Alexander] Yes, sir.
“Q. When?
“A. Let’s see, we got put in the center when they picked us up for the grand theft auto and it was two days after we was in the center. We went back down to the courthouse and they was going to see if they was going to let us go home, you know, until Court day on grand theft auto and stuff, and they decided not to let us go home. So Forsythe and Mr. Ledbetter took us over there and started talking to us, and me and Ricky turned ourselves in on that right there. We told everything we did there in Anniston and we told what happened in Etowah.
“Q. And is what you told the police then the same thing you are saying now?
“A. Yes, sir.
“Q. Did you tell them the truth then?
“A. Yes, sir.
“Q. Are you telling the truth now?
“A. Yes, sir.
“Q. You stated that you were picked up on Grand Larceny and Auto Theft?
“A. Yes, sir.
“Q. You were put in the Coosa Valley Detention Center?
“A. Yes, sir.
“Q. How long were you in the Detention Center?
“A. Forty something days. I think it was 49 days.
“A. All right. How long were you in the Detention Center before you gave your statement to the police about Mr. Coffelt’s killing?
“A. Two days.
“Q. Was there any statement by the police officers if you helped them and cooperated and fingered Alderson that they would help take care of you and make sure you didn’t serve any time on this charge?
“A. [Alexander] Yes, sir.
“Q. All right. What did they say to you?
“A. They told me that — Forsythe and them, that’s the way they do everbody. They say, you know, if you will help them they will help you. You know, they will cut the strings loose, you know.
“Q. They told you they would go ahead and get you out as soon as they can? “A. Yes, sir. He said that — You know, he talks like he can get you out of anything, you know, so you will tell. But it was getting on me anyway so I went ahead and told.
“Q. So he told you that if you would help them out that he would help you out?
“A. Yes, sir.
“Q. And you had just been there in the Detention Center a couple of days when you gave your statement?
“A. Uh-huh.
“Q. What happened to that charge you were picked up on originally which led to your giving your statement?
“A. [Alexander] The Grand Theft Auto?
“Q. Right.
"MR. MOORE: Your Honor, we object to any disposition on that charge as earlier objected to. We renew our objection.
“THE COURT: Overrule.
“Q. You may answer.
“A. Sir?
“Q. You may answer.
“A. They put it aside and they was going to find out what happened down here and then we was going to have another trial down there in Anniston and see what they were going to do with those charges. They put us on probation for those charges.
“Q. They put you on probation. Those charges have been disposed of then if you were put on probation.
“A. Sir?
“Q. They have been disposed of if you were put on probation.
“A. No, sir.
“Q. How many weeks or months were you put on probation?
“A. They didn’t say. Yes, six months. “Q. Six months probation?
“A. In Anniston, yes, sir.
“Q. Pending you coming down here and telling your story?
“A. Yes, sir.
“Q. Has anyone mentioned to you that how you tell your story will depend on how the case might come out later on after this six months period is over with?
“A. Sir?
“Q. Have you been told that if you cooperate after your probation period is over with that will be it?
“A. I don’t understand what you are talking about.
“Q. All right, now, if you cooperate and let’s say tell your story, in other words, you and Mr. Alexander and Mr. Rawlinson tell your stories and finger the defendant that that will more or less take care of those charges, that you won’t have to serve any time. Have you been told that?
“A. No, sir.
“Q. There has been no promises that they will take care of you?
"A. No, sir.
“Q. For telling your story?
"A. No promises.
“Q. But you told your story implicating the defendant based on the promises of the officers and the authorities that if you would tell your story they would take care of you?
“A. [Alexander] That’s what they said.
“Q. Okay. Who is they?
“A. Forsythe and Ledbetter. And there was people from Etowah in the room when they said that.
“Q. There were people there from Etowah when they said that?
“A. Yes, there were.
“Q. But you were promised immunity when you made your statements if you would cooperate with the police and lay the rap on the Defendant, you’d be given immunity?
“MR. CARNES: We object. Assuming this man knows what immunity is.
“THE COURT: Sustained.
“Q. Were you told that you would be taken care of? Lighter sentence or probation would be given to you if you would cooperate against Mr. Alderson?
“A. [Alexander] By the Anniston Police, but he did not lay it on nobody.”

Although we find that the appellant was prevented from presenting the criminal records, per se, of the two juvenile witnesses to the jury, we also find that appellant’s counsel was given every opportunity to acquaint the jury with any possible potential for bias on the part of each of these witnesses. Although the specific question concerning their criminal record was not allowed by the trial court, as can be seen from the foregoing portions of the record, evidence possessing the same probative force was, in fact, allowed. In view of the foregoing facts, we believe that the appellant’s right to confrontation was not diminished to the extent that would cause it to be constitutionally impermissible under the mandates of Davis.

II

The appellant insists that the State failed to prove a prima facie case of murder in the first degree. He argues that the necessary elements to support his conviction on a charge of first degree murder were not shown and that statements by the State Toxicologist and County Coroner showed that the deceased drowned. Appellant maintains that the drowning was not a foreseeable result of any act of the appellant.

The indictment in the instant case, in pertinent part, reads as follows:

“The Grand Jury of said County charges that before the finding of this Indictment Jerry Russell Alderson . . whose name to the Grand Jury is otherwise unknown than as stated, unlawfully, and with malice aforethought, killed Harold Coffelt, by striking him with some instrument, a further description of which is unknown to the Grand Jury, and by pushing or rolling his body into a concrete culvert whereby he was drowned, contrary to law and against the peace and dignity of the State of Alabama.”

In Huckabee v. State, 159 Ala. 45, 48 So. 796, 798, the Alabama Supreme Court stated:

“To render a defendant guilty of homicide, it is not necessary that the blow given by him, or that the agency or means used by him, or that his wrongful act, should be the sole or necessary cause of death complained of. If his wrongful act, agency, means, blow, or the like, accelerates or contributes to the death, he may be responsible, according to the circumstances of the particular case.”

This court, in Smith v. State, Ala.Cr.App., 354 So.2d 1167, also set down the standards for determining cause of death by stating:

“Where, as here, the wound inflicted by defendant upon the victim is dangerous to life, the fact that there are other contributing causes of death does not prevent such a wound from being the legal cause of death. It does not have to be the sole cause. This is true whether (1) the other cause precedes, (2) the other cause is synchronous with, or (3) the other cause follows, commission of the felonious act charged.”

The evidence presented by the State at trial revealed that the appellant struck the victim on the head twice with a tire tool, rendering him unconscious. The appellant then placed the victim in a drainage ditch which was flowing with water. The coroner testified that: [T]he blow to the head would have caused unconsciousness. It was sufficiently severe to produce incapacitation of that human being and thereby being placed in the drainage ditch which did cause drowning.”

The State Toxicologist, James Buttram, testified that death resulted from “. . . asphyxia or interference with the air supply to the body as a result of drowning.”

It is clear that the State offered sufficient proof to permit the jury to reach the determination that the victim drowned, after the appellant purposely rendered him unconscious and placed him in the water-filled drainage ditch.

Although the head wound alone may not have caused death, it was certainly appellant’s overt and purposeful act of placing him in the water-filled drainage ditch, which ultimately “accelerated, contributed, or caused the victim’s death.” Smith v. State, supra. In any event, whether the appellant’s acts caused Mr. Coffelt’s death is a question to be determined by the jury. Wiggins v. State, Ala.Cr.App., 354 So.2d 340.

It is our judgment that the evidence presented by the State raised questions of fact for the jury and the evidence was sufficient to sustain the conviction of murder and robbery. Therefore, the denial of the motion to exclude the State’s evidence did not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have examined the entire record in the present case and have found no error prejudicial to this appellant. Therefore, the judgment of conviction by the Etowah Circuit Court is affirmed.

AFFIRMED.

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

BOOKOUT, J., concurs in result.


author: SUNDBERG, Justice.

text:
    EXXON COMPANY, U. S. A., Petitioner, v. Paul ALEXIS and Industrial Relations Commission, Respondents.
    No. 52556.
    Supreme Court of Florida.
    Dec. 7, 1978.
    Barry A. Pemsler, of Jabara & Richard, Coral Gables, for petitioner.
    John G. Tomlinson, Jr., of Williams, Tom-linson & duFresne, Coral Gables, for respondents.
   SUNDBERG, Justice.

By petition for writ of certiorari we are asked to review an order of the Industrial Relations Commission affirming an order of the Judge of Industrial Claims which found, inter alia, that respondent/claimant sustained a forty percent loss of wage-earning capacity, despite claimant’s failure to attempt to obtain employment after having reached maximum medical improvement. We have jurisdiction pursuant to Article Y, Section 3(b)(3), Florida Constitution, and Section 440.27, Florida Statutes (1975). In accordance with Florida Appellate Rule 3.10 e. we have dispensed with oral argument.

The claimant, Paul Alexis, was employed by petitioner, Exxon Company, U.S.A., as an automobile mechanic. On May 8, 1974, during the course and in the scope of his employment, claimant suffered injuries when a tire rack collapsed. Petitioner accepted the accident as compensable, furnishing medical treatment and temporary total disability compensation benefits for the period from May 9, 1974, through November 13, 1974.

The claimant was initially treated by Dr. Sarnow on May 10, 1974, for a lumbo sacral sprain and aggravation and acceleration of a preexisting degenerative spondylosis and dextroscoliosis. Dr. Sarnow admitted claimant to the hospital where he remained from May 11, 1974 to May 15, 1974. Following his discharge from this initial hospitalization, claimant was reemployed by petitioner in a supervisory position. After a short period, however, petitioner terminated claimant’s employment. Claimant continued under the sole care of Dr. Sarnow until July 9, 1974, approximately two months after the accident. On that date, Dr. Sarnow diagnosed a right inguinal hernia which, he opined, was causally related to the accident. Dr. Sarnow immediately referred claimant to Drs. Cantwell and Grovestein for treatment of the hernia. On August 28, 1974, Dr. Sarnow concluded that claimant had reached maximum medical improvement with regard to the lumbo sacral sprain and aggravation of the preexisting injuries, and discharged the patient from treatment. However, from October 3, 1974, to October 9, 1974, claimant was again hospitalized and surgery was performed for repair of the right inguinal hernia by the referral physician, Dr. Cantwell.

Claimant thereafter filed a claim for, inter alia : (1) temporary total benefits from May 8, 1974, the date of the accident, to the date of maximum medical improvement; (2) six weeks statutory hernia benefits pursuant to Section 440.15(6), Florida Statutes (1973); (3) a permanent partial disability of the body as a whole rating, based upon a permanent physical impairment and/or diminution in wage-earning capacity; and (4) payment of outstanding medical and hospital bills incurred for surgical repair of his right inguinal hernia. In response to this claim petitioner posited, in relevant part, that: (1) claimant had reached maximum medical improvement on August 28, 1974, and, therefore, an overpayment of temporary total disability compensation benefits, which were paid until November 13,1974, had occurred; (2) claimant’s hernia was not causally related to the accident of May 8, 1974; (3) claimant had not sustained permanent physical impairment or a loss of wage-earning capacity as a result of the accident; (4) the outstanding medical bills were not authorized pursuant to Section 440.13, Florida Statutes (1973).

Pertinent to our review are the following portions of the order of the Judge of Industrial Claims:

6. I find, based upon the testimony of Dr. Melvin Sarnow, the claimant’s attending and treating physician, that as a result of his industrial injury of May 8, 1974, the claimant suffered a lumbo sacral sprain; an aggravation and acceleration of a pre-existing degenerative spon-dylosis and dextroscoliosis, an abnormal rotation of the lumbar spine; and a right inguinal hernia. I find that as a result of the acute low back injury, as well as the aggravation and acceleration of the preexisting diseases of the lumbar spine, that the claimant was temporarily totally disabled from May 9, 1974, to August 28, 1974, the date I find he reached maximum medical improvement, pursuant to the testimony of Dr. Melvin Sarnow. Since the claimant was paid temporary total disability benefits through November 13, 1974, pursuant to the stipulation entered into between the parties, I find that he is not entitled to additional benefits for this class of disability.
7. I find that on October 3, 1975, the claimant underwent surgical repair of a right inguinal hernia at Miami Dade General Hospital by Dr. William H. Cantwell. I find, based upon the testimony of Dr. Melvin Sarnow, the claimant’s authorized attending and treating physician, that the hernia necessitating this hospitalization and surgical repair was causally related to and a direct result of the claimant’s industrial injury of May 8, 1974. Accordingly, I find that the employer is responsible for payment of the hospital and medical bills occasioned by this surgery, including the charges for the claimant’s confinement at Miami Dade General Hospital from October 4, 1974 to October 9, 1974; the surgical bill of Dr. William Cantwell; and the bill of the anesthetist, Dr. Larry Morehead. In making my findings of fact in this regard I am not unmindful of the fact that the claimant’s hernia was not clinically demonstrated until July 9, 1974, approximately two months after the accident. Although the statute requires the overt manifestations of a hernia to appear suddenly, I find, based upon the explanation and testimony of Dr. Sarnow, that the presence of the claimant’s hernia was masked by the severity of his low back pain and it was not until this condition started to improve, following two months of intensive therapy and treatment, that the claimant was able for the first time to focus his attention to a localized area of pain in his right inguinal region. It was at this point that clinical examination revealed the presence of the hernia and Dr. Sar-now referred him to Drs. Grovestein and Cantwell for the necessary surgical repair. Accordingly, I find that the claimant suffered a compensable hernia on May 8,1974, and is entitled to payment of hospital and medical bills incurred for treatment of the hernia plus six weeks specific compensation benefits. I find, however, that since the employer paid temporary total disability benefits past the date of maximum medical improvement that they are entitled to a credit for this overpayment against statutory hernia benefits due and owing the claimant.
8. I find, based upon the testimony of Dr. Melvin Sarnow, that as a result of the acute lumbo sacral sprain and aggravation and acceleration of the pre-existing degenerative spondylosis and dextrosco-liosis suffered by the claimant in his industrial accident, that he reached maximum medical improvement on August 28, 1974, suffering a 10% permanent physical impairment of the body as a whole. I find that as a result of this physical impairment the claimant will be limited in the future from engaging in activities requiring excessive bending or stooping, or lifting in excess of fifteen to twenty pounds. Based upon the nature of his injury, and the attendant physical limitations placed upon his activities as a result thereof, as well as my consideration of his age of 63 years; lack of formal education; prior work history, which has been singularly limited to employment as an automobile mechanic, as well as my consideration and evaluation to a lesser degree of the other factors to be taken into consideration when determining wage earning capacity loss, I find that the claimant will be limited in the future to work activities which are light and/or sedentary in nature, and suitable and compatible with his physical limitations and restrictions, and that as^a result thereof has suffered a 40% diminution in wage earning capacity.
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10. Subsequent to the initial final hearing held before me on July 8, 1975, the claimant filed a Motion for Substitution of counsel, which came on to be heard by me on August 12, 1975. During the course of the motion proceedings, there being no official court reporter present, claimant’s new counsel, Mr. William duFresne, orally moved the court to allow the claimant to present further testimony at a subsequent hearing, notwithstanding the fact that at the conclusion of the initial hearing held on July 8, 1975, both parties announced they were prepared to rest their case, subject to the taking of post hearing depositions. After hearing extensive argument I granted the oral motion, primarily because the claimant was not presently able to work; had not been able to work since his industrial accident; and presented no evidence or testimony at the final hearing bearing on the question of wage earning capacity, one of the primary issues to be ultimately determined by me, as evidenced by the claimant’s age of 63, and physical inability at that time to return to work.
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I find that pursuant to the statutory powers vested in a Judge of Industrial Claims that I have not only the right but when warranted, the duty to take additional testimony, obtain examining physicians and conduct whatever proceedings are necessary to properly serve the ends of justice, at any time prior to the entry of a Final Order on the merits, absent the application or operation of any time limiting provision of the statute, such as Rules 8 and 30. Since neither rule was raised nor applicable to the employer’s objection to my hearing further testimony, the employer’s motion was denied as I find that by virtue of my statutory powers and duties that in the interests of justice and in fairness to all parties, the claimant should have an opportunity to fully present his position, there being no prejudice to the employer as they were granted the opportunity at such future hearing to present any witnesses or evidence that they wished in rebuttal of any testimony presented or offered by the claimant.

On review by the Industrial Relations Commission, the following relevant points were raised by petitioner:

1) Whether there was competent substantial evidence to support the finding of the Judge of Industrial Claims that claimant suffered a compensable hernia.
2) Whether the Judge of Industrial Claims erred in allowing the claimant to reopen his case and take additional testimony on the issue of loss of wage earning capacity after all parties had rested.
3) Whether there was competent, substantial evidence to support the finding of the Judge of Industrial Claims that claimant suffered a 40% loss of wage earning capacity due to the lumbo sacral sprain and aggravation of the pre-exist-ing injuries, when claimant made no effort to test his employability in the open labor market after having reached maximum medical improvement.

The Industrial Relations Commission dispensed with oral argument on review and, finding no reversible error to have been demonstrated, affirmed the order of the Judge of Industrial Claims.

With respect to point (1), it is apparent that there is competent, substantial evidence in the record, which comports with logic and reason, to support the finding of the Judge of Industrial Claims. See Brown v. S. S. Kresge Company, Inc., 305 So.2d 191 (Fla.1974); Dillow v. Florida Portland Cement Plant, 258 So.2d 266 (Fla.1972); United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951). Further, we find that the Judge of Industrial Claims did not depart from the essential requirements of law in permitting claimant to reopen his case and present additional testimony after he and petitioner had rested their respective cases. It is well established that the decision of a trial judge to allow a party to reopen his case will not be reversed unless the opposing party was prejudiced thereby. Considerable latitude and discretion is afforded the trial judge in these matters. See Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951); Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975); King v. State, 272 So.2d 821 (Fla. 3d DCA 1973). Similar discretion reposes with the Judge of Industrial Claims. In the case before us, we are not persuaded that the Industrial Relations Commission erred in failing to find that petitioner was prejudiced by the reopening of claimant’s case. This is so because petitioner was permitted to present evidence in rebuttal of any additional testimony presented by claimant. Accordingly, we find petitioner’s second point to be without merit.

As to petitioner’s third point, however, we conclude that the record is devoid of competent, substantial evidence to support the determination of the Judge of Industrial Claims that claimant suffered a forty percent loss of wage-earning capacity as result of the lumbo sacral sprain and aggravation of his preexisting injuries. This is so because claimant failed to establish that he sought employment after August 28, 1974, the date when he reached maximum medical improvement with respect to these injuries. The only evidence contained in the record reflects that claimant was reemployed by petitioner shortly after his first hospitalization of May 11, 1974 through May 15, 1974. However, claimant was terminated shortly thereafter and made no further efforts to seek employment. It is well established that in order to justify an award of compensation based upon a diminution of wage-earning capacity, a claimant must show that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement. See Clark v. Western Knapp Engineering Company, 190 So.2d 334 (Fla.1966); Montgomery Ward and Company, Inc. v. Hayes, 172 So.2d 581 (Fla.1965); Trieste v. Anchell, 143 So.2d 673 (Fla.1962). Because claimant in the case before us failed to make such a showing, the Judge of Industrial Claims improperly concluded that he suffered a forty percent loss of wage-earning capacity.

Based upon our finding of error with respect to petitioner’s third point on review, the petition for writ of certiorari is granted and that part of the order of the Industrial Relations Commission affirming the finding that claimant suffered a forty percent diminution of wage-earning capacity is quashed. The cause is remanded to the Industrial Relations Commission with directions to vacate the relevant portion of the order of the Judge of Industrial Claims and to remand the cause to that Judge for proceedings not inconsistent with this decision. The remainder of the order of the Industrial Relations Commission is hereby approved.

It is so ordered.

ENGLAND, C. J., and OVERTON and ALDERMAN, JJ., concur.

ADKINS, BOYD and HATCHETT, JJ., dissent.


author: BOYD, Justice.

text:
    DEPARTMENT OF BUSINESS REGULATION et al., Appellants, v. NATIONAL MANUFACTURED HOUSING FEDERATION, INC., etc., et al., Appellees.
    No. 53065.
    Supreme Court of Florida.
    April 26, 1979.

      Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., and Dennis La-Rosa, Staff Counsel Department of Business Regulation, Tallahassee, for appellants.
    Edward S. Jaffry, of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for appellees.
    Wilbur E. Brewton, of Taylor, Brion, Buker & Greene, Tallahassee, for James A. Glisson; and Chester E. Clem, Jr., Law Offices of Jackson & Clem, Vero Beach, for Federation of Mobile Home Owners of Florida, Inc., intervenors/appellants.
    Steven A. Anderson, of Anderson, Thorn, Grose & Quesada, Tampa, as a member for the State Mobile Home Tenant-Landlord Commission; and Jack M. Skelding, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Mobile-home and Recreational Vehicle Ass’n, amici curiae.
   BOYD, Justice.

This appeal is from a judgment of the Circuit Court of the Second Judicial Circuit, in and for Leon County. It comes directly to us because the trial court, in announcing its judgment, declared a state law invalid. Art. V, § 3(b)(1), Fla.Const. The proceeding was begun when the appellees sought declaratory and injunctive relief from the effect of chapter 77-49, Laws of Florida. The action was defended by the governor, the attorney general, and the Department of Business Regulation. The plaintiffs based their claim for relief upon three grounds: that the statute unlawfully delegates legislative authority; that it deprives mobile home park owners of property without due process of law; and that it constitutes a denial of equal protection of the laws. In its order enjoining implementation of the statute, the court declared it unconstitutional on the first two grounds stated. The court did not address the equal protection argument.

Section 1 of the act contains a recitation of legislative findings and a statement of the purposes of the enactment:

The Legislature finds that there exists an emergency in rental accommodations in mobile home parks. The Legislature further finds that this condition, coupled with the inordinate expense of relocating a mobile home causes tenants in such parks to be placed in an unequal bargaining position with respect to increases in charges imposed by the owners or managers of such parks. The Legislature further finds that this inequality can only be alleviated by the enactment of reasonable legislative restraints which provide both a reasonable return [on] a park owner’s investment and a safeguard to tenants against exorbitant rental or service charges.

To accomplish this purpose, section 4 of the act creates the State Mobile Home Tenant — Landlord Commission to regulate rental increases in mobile home parks. The commission is placed within the Department of Business Regulation.

Section 8 sets out the essence of the regulatory scheme. Subsection (1) provides that if a park owner proposes a charge increase, in the form of an increase in rent or service charges or a decrease in service, “in any calendar year in excess of the net United States Department of Labor Consumer Price Index increases since the last rental increase,” then, upon petition of fifty-one percent of the park tenants the commission is required to act. It is to hold a hearing to determine whether the charge increase is “unconscionable or not justified under the facts and circumstances of the particular situation.” Subsection (2) provides a list of certain costs that may be passed on to the tenants if they are reasonable and justified. Subsection (3) provides that by November 1 of the year preceding a charge increase, the park owner must notify the tenants of the proposed amount of any increase. Without notice no increase is to be allowed.

Section 9, subsection (l), requires that the hearings be held in accordance with chapter 120, Florida Statutes (1977), the Administrative Procedure Act, and gives the commission the power to rule on a contested charge increase in one of four ways. It shall require the owner “to either reduce the rental or service charges to a rate set by the commission, to continue rental or service charges as they existed under the former lease or agreement, to increase the rental or service charges to a rate set by the commission or to increase the rental or service charges” to the rate proposed by the owner.

Section 9, subsection (2), gives the commission power to adopt rules governing its proceedings and directs the commission to adopt rules providing that increases collected but subsequently held to be unauthorized “shall be either returned to the tenants or credited toward future rental charges.”

Section 11 permits appeal of the decisions of the commission to circuit court. An increase approved by the commission, however, is to be paid by the tenant. If the increase is overturned on appeal, it is to be returned or credited. If the park owner appeals, then the proposed charge, even if disapproved by the commission, must be paid but is to be deposited in the court registry. The court is authorized to make disbursements of such funds to the park owner pending the appeal if the owner is in danger of suffering hardship, such as losing the premises.

The commission, under the legislative plan, is to be composed of seven members, including two mobile home park owners or operators, two mobile home park tenants, and three members of the general public.

For the following two reasons, we hold that the circuit court was correct in ruling that chapter 77-49 is unconstitutional.

The court held that subsections (l)(a) and (2)(a) of section 83.784, Florida Statutes (1977), unlawfully delegate legislative power to an administrative body. As was made abundantly clear by our decision in Askew v. Cross Key Waterways, Nos. 52,251-52,252 (Fla. Nov. 22, 1978), announced in an opinion by Justice Sundberg, the doctrine against delegation of legislative power is of continuing vitality in Florida. We held that the legislature must take heed of article II, section 3, Florida Constitution, which provides: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other two branches unless expressly provided herein.” The opinion explained why strict adherence to the above constitutional admonition is imperative:

A corollary of the doctrine of unlawful delegation is the availability of judicial review. In the final analysis it is the courts, upon a challenge to the exercise or nonexercise of administrative action, which must determine whether the administrative agency has performed consistently with the mandate of the legislature. When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law.

Askew v. Cross Key Waterways, slip. op. at 9-10.

The interests of a mobile home park owner and a mobile home park tenant necessarily compete. Similar to the posture of a buyer and seller in the commercial arena, a mobile home park tenant has as his goal affordable living accommodations, while a park owner endeavors to maximize his profits. Rent control legislation seeks a balance between these competing interests by stabilizing rentals under emergency conditions in order to prevent extortionate increases in rent resulting from housing shortages, while at the same time allowing landlords a fair and equitable return upon their investments. City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764, 767 (Fla.1974) (De-kle, J., concurring specially). Because of the fundamental nature of these concerns and the pervasiveness of mobile home living in Florida, the point where rent control legislation strikes this balance is undoubtedly of great public moment.

The criteria for determining the validity of rental or service charge increases in subsections (l)(a) and (2)(a) of section 83.784 are constitutionally defective because they charge the commission with the fundamental legislative task of striking this balance between mobile home park owner and mobile home park tenant, without any meaningful guidance. See Askew v. Cross Key Waterways, slip op. at 10. The subsections provide:

(1)(a) Upon petition of 51 percent of the tenants of any dwelling units in a mobile home park who will be subject to a rental or service charge increase or a decrease in services in any calendar year in excess of the net United States Department of Labor Consumer Price Index increases since the last rental increase, the commission shall hold a hearing at the mobile home park or at such other facility selected by the commission, so long as it is reasonably accessible to all parties, at a date to be set by the commission, to determine whether or not the rental or service charge increase or a decrease in services is so great as to be unconscionable or not justified under the facts and circumstances of the particular situation.
(2)(a) The increased costs to the owner of a mobile home park attributable to:
1. Increases in utility rates;
2. Property taxes;
3. Fluctation [sic] in property value;
4. Governmental assessments;
5. Cost of living increases attributable to and relevant to incidental services, normal repair, and maintenance; and
6. Capital improvements not otherwise promised or contracted for may be passed on to the tenants or prospective tenants in the form of increased rental or service charges if such increases are reasonable and justified under the facts and circumstances of the particular case.

The terms “unconscionable or not justified under the facts and circumstances” in (l)(a), and the terms “reasonable and justified under the facts and circumstances of the particular case” in (2)(a), are not accompanied by any standards or guidelines to aid a court or administrative agency in ascertaining the true legislative intent underlying the act. The legislature may have wanted to afford the word “unconscionable” in (l)(a) a liberal construction, so as to circumscribe narrowly a park owner’s ability to pass on costs to tenants beset by inflation. As written, the act gives no hint whether this is a correct interpretation. It is thus left to the “unbridled discretion or whim” of the commission to formulate basic legislative policy. See D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla. 1977); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); State v. Atlantic Coast Line R.R., 56 Fla. 617, 47 So. 969 (1908).

Moreover, “unconscionability” is a term which has meaning in the context of an equitable proceeding in our courts between two adverse parties. A chancellor sitting in equity is guided in the exercise of his discretion in this regard by sound principles of law which have been articulated and applied on a case-by-case basis over a long period of time during the development of our rich common law heritage. See, e. g., Peacock Hotel, Inc. v. Shipman, 103 Fla. 633, 138 So. 44 (1931); Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32 (Fla. 3d DCA 1977); cf. Osceola Groves, Inc. v. Wiley, 78 So.2d 700 (Fla.1955) (class action unavailable because of no community of interests). No such guiding principles are supplied by the legislature here. Furthermore, the joining of that term with the phrase “or not justified under the facts and circumstances of the particular situation” makes the legislative standard even more nebulous.

In Sarasota County v. Barg, this Court invalidated portions of the act creating the Manasota Key Conservation District. Employing language similar to that contained in section 83.784, the act prohibited “undue or unreasonable dredging, filling or disturbance of submerged bottoms,” as well as “unreasonable destruction of natural vega-tation.” In finding the above provisions violative of article II, section 3, Florida Constitution, the Court stated:

The Act does not contain any standards or guidelines to aid any court or administrative body in interpreting these terms. The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority .

302 So.2d at 742. See also City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972).

We further decide that chapter 77-49, Laws of Florida, is unconstitutional because it exceeds the authority ordinarily granted by rent control legislation. When such legislation is enacted, various constitutionally protected rights are put in jeopardy. City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d at804. Among these are a person’s right to contract and the right to pursue a lawful business, both recognized under the fifth and fourteenth amendments to the United States Constitution and under article I, section 2 of the Florida Constitution. Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881, 884 (Fla.1974). These are not, of course, absolute rights. They are subject to reasonable restraint in the interest of the public welfare. Id. Legislative limitations upon the exercise of these liberties are constitutional if they rationally relate to a valid state objective. Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 198 So. 819 (1940).

The authority of the state under its police power to impose reasonable regulations upon mobile homes and mobile home parks is unquestioned. Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d at 884. To this end, the state has a permissible interest in ameliorating the scourge of exorbitant rentals caused by housing shortages. During lean years, the poor are hard pressed to find adequate, affordable housing. Their frustrated efforts exacerbate already widespread social problems.

What tips the scales against chapter 77-49 is its open-ended nature. Rent control laws are restricted in scope and duration to instances constituting an emergency. City of Miami Beach v. Forte Towers, Inc.; City of Miami Beach v. Fleetwood Hotel, Inc. While we make no attempt here to delimit the term “emergency,” it bears noting that prior decisions have defined it narrowly. Chapter 77-49 is not so restricted; it may continue forever without any required reassessment of circumstances, thereby permanently impairing constitutional rights. In view of the severe limitations placed upon this type of legislation, and absent a specific time frame circumscribing its operation, chapter 77-49, Laws of Florida, exceeds the permissible scope of state authority to regulate rental charges.

The judgment of the circuit court is affirmed.

ADKINS, OVERTON, SUNDBERT and ALDERMAN, JJ., concur.

ENGLAND, C. J., concurs in result only.

HATCHETT, J., dissents.

      . The appellees are National Manufactured Housing Federation, Inc., a nonprofit corporation, and De Anza National Mobile Estates, Ltd., a California limited partnership authorized to do business in Florida.

      . The act is codified as sections 83.770-.794, Florida Statutes (1977).

      . The Federation of Mobile Home Owners of Florida, Inc. and James Glisson, a member of the State Mobile Home Tenant — Landlord Commission, intervened in support of the defendants.

      . § 83.770, Fla.Stat. (1977).

      . Id. § 83.776.

      . Id. § 83.784.

      . There is apparent confusion as to the interrelationship between subsections (1) and (2) of section 83.784 and the scope of the commission’s authority to approve or disapprove the cost items delineated under subsection (2). However, because of our decision today we need not deal with this issue.

      . § 83.786, Fla.Stat. (1977).

      . Id. § 83.790.

      . Id. § 83.763(3).

      . Id. § 83.776(1).

      . Dickinson v. State, 227 So.2d 36, 37 (Fla. 1969).