text:
    Glen WEST v. STATE.
    1 Div. 598.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      Calvin Clay, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   LEIGH, M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the second degree of Billy Dannelley on an indictment charging him with murder in the first degree. The jury fixed his punishment at twenty-five years imprisonment in the penitentiary, and he was sentenced accordingly.

The single issue between the parties as presented by their briefs on appeal is whether the trial court should be reversed for its submission to the jury of the question of the guilt or innocence of defendant, over defendant’s protest, as made by his motion to exclude the evidence at the conclusion of the evidence for the State and his written request for the affirmative charge in his favor at the conclusion of the evidence for both sides.

The body of Dannelley was found in Carter County, Tennessee, on Friday, March 29, 1974; a bedspread with bloodstains on it was found near the body; the cause of death was determined to be the result of a blow on the head by a blunt instrument, fist, or feet; there were lacerations over the face and other portions of the body.

A witness for the State testified that about 12:15 A.M. Wednesday, March 27, he was awakened by people going in the door of Dannelley’s apartment which adjoined the apartment of the witness. He said he later heard what sounded like a fight and scuffling. He identified two of the participants as Dannelley and James West, Jr., brother of appellant. The witness knew Dannelley and James West, Jr., who were living together at Dannelley’s apartment. He could not identify the third per- . son. The witness said that he heard Dannel-ley say, “Please don’t. Stop him,” and later, “Oh my God.” He said he heard the third person, whom he could not identify, say, “Let him wipe up the blood,” and that later he heard someone say, after the scuffling had stopped, “Well, let me get my car keys,” but that he could not determine who said the last quoted words. Thereafter he heard the people leave the apartment.

Dannelley did not report for work on March 27. He was a teacher in a school of an adjacent county. He lived in Mobile County. Out of concern for him, his apartment was entered by his brother about 10:00 A.M. March 27. His brother testified he saw blood and hair in the kitchen; garbage was turned over in the kitchen; the kitchen window was broken; there was blood in the bathroom and hair in the bedroom ; the bedspread was missing from the bed in the bedroom. The glass of the front door had been broken and four window panes were broken. He testified that his brother, the deceased, was a homosexual. He testified that the bedspread that was missing from his brother’s apartment was like the bedspread that had been found with bloodstains on it near his brother’s body in Tennessee. He further testified that the bedspread that had been on his brother’s bed was not thereafter found in the apartment.

Defendant did not testify, but his father testified that on March 24, 1974, his wife and appellant came to.Mobile from Raeford, North Carolina, where they had been living; that about 7:00 A.M., March 27, appellant and James West, Jr., came to their father to borrow money; that at that time they were in the automobile of Billy Dannelley; that Dannelley’s dogs were in the car; that appellant and his brother, James West, Jr., left after he had cashed a check and given them fifty dollars, that, “My son said he was going home. My son Glen.”

James West, Jr., was the principal witness for defendant. He testified that he and Bill Dannelley had gone to North Carolina in Dannelley’s automobile and brought Glen and his mother to Mobile; that he and Glen and Dannelley were together several times and during the evening of March 26, they went over to the “Goldenrod,” and left there about midnight. He said they took Glen to his dad’s apartment and then he and Dan-nelley went to Dannelley’s apartment. He testified that thereafter while the two were at Dannelley’s apartment an argument ensued between them about some women and ■ Dannelley got mad and swung at him. The witness then hit Dannelley, Dannel-ley stumbled over a trash can and his head hit the window in the door. His nose was bleeding and he went to the bathroom and put some cold rags on it; Dannelley’s nose was bleeding profusely. They then decided to ride around; they went to McNally Park over on Dauphin Island Parkway; they sat out there on rocks and drank beer; they had Dan-nelley’s puppies in the automobile; they were gone three or four hours; he drove Dannelley back to Dannelley’s apartment and then went to his father’s apartment and “woke Glen up.” His father and mother had spent the night with their daughter. He and Glen thereafter went to the paint store where his father worked and borrowed fifty dollars. He and Glen went to McNally Park and drank some beer. Glen had told him that he was going back to North Carolina. He and Glen went to Dannelley’s apartment; Glen stayed in the car. James and Dannelley then took Glen out on the causeway to Buck’s Truck Stop and let him out of the car to catch a ride to North Carolina about 10:00 A.M. James and Dan-nelley then went to Dauphine Island. They “goofed off and drank beer.” They stayed there a couple of hours. They discussed going back to the causeway to see “if Glen caught a ride yet.” They came back to Dannelley’s apartment and James “got some clothes.” He said, “We consequently went to North Carolina,” arriving there about midnight that night. They went into a wooded area and “that is when Dannel-ley became suddenly violent.” They had a fight in which Dannelley was using a knife; he kicked Dannelley under the chin and Dannelley fell against the car bumper; Dannelley appeared to be dead. James loaded Dannelley in the trunk of the car and drove to Carter County, Tennessee, and rolled his body in the ravine where it was afterwards found. He returned to his former home in Raeford, North Carolina. He denied that his brother, Glen West, had had any part in the fight with Dannelley in Dannelley’s apartment or in the fight with Dannelley in North Carolina. He denied that appellant was with the two on either occasion or on any part of the trip from Mobile to North Carolina or therefrom to Tennessee where the body was “rolled out in the ravine” at a “rubbage dump . . . right off the side of the road.” James said that the next time he saw Glen was “when he came hack down here [Mobile] to jail.”

Counsel for appellant has submitted a creditable and comprehensive brief on the subject of the sufficiency of evidence to warrant a verdict of guilty in a criminal case, particularly an unlawful homicide case, and more particularly when such a case is based solely on circumstantial evidence. The authorities cited support and emphasize the position that defendant is entitled to the presumption of innocence and should not be convicted unless the evidence is sufficient to prove his guilt beyond a reasonable doubt and to a moral certainty. To be noted, however, is the difference in the tests of the sufficiency of the evidence at different stages of a prosecution in a criminal case. Proof of guilt beyond a reasonable doubt in the minds of the jury is essential to a conviction. For the submission of the case to a jury, there must be substantial evidence tending to prove all elements of the crime, a mere scintilla not being sufficient. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Moore v. State, 52 Ala.App. 394, 293 So.2d 309 (1974); Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85 (1973); Ford v. State, 50 Ala.App. 343, 279 So.2d 146, cert. denied 291 Ala. 778, 279 So. 2d 149. On a motion for new trial (not involved, however, in this case) properly challenging the verdict as opposed to the weight of the evidence, it should be set aside if it is so decidedly against the weight of the evidence that the court is convinced that it is wrong and unjust. Colvin v. State, 39 Ala.App. 355, 102 So.2d 911, cert. denied 267 Ala. 694, 102 So.2d 913; Lassiter v. State, 38 Ala.App. 287, 83 So.2d 365, cert. denied 263 Ala. 618, 83 So.2d 369. On appeal, an appellate court is not required, and it would be beyond its province, to determine whether there was proof beyond a reasonable doubt of defendant’s guilt. Such a requirement would impair, if not destroy, the jury trial process. If there is substantial evidence to support all of the elements of the crime charged, the trial court is justified in overruling the motion to exclude the evidence and in refusing an affirmative charge in favor of defendant. The area of responsibility of the appellate court on the question of the sufficiency of the evidence is clearly defined by Mr. Justice Merrill in Willcutt v. State, 284 Ala. 547, 9, 226 So.2d 328 (1969) as follows :

“The scintilla rule does not apply in criminal cases. There must be substantial evidence tending to prove all the elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it. Jarrell v. State, 251 Ala. 50, 36 So.2d 336. The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Byrd v. State, 213 Ala. 333, 104 So. 830.
“We cannot say in the instant case that there was not enough evidence to allow the jury to draw the inference that the defendant was the person who committed this robbery. The defendant presented a strong case in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witness. Yet the State’s witness made a positive identification of defendant as the person who robbed and burned him. The State presented substantial evidence and the jury had before it an adequate basis for drawing inferences and conclusions against the defendant. It is for the jury, not the trial court or this court, to find the facts and to determine guilt or innocence. The State presented sufficient evidence upon which the jury could base its verdict.”

The testimony of the witness as to the fight or scuffling of Dannelley was not absolutely conclusive that three persons were in the apartment engaging to some extent in the argument or fight, but it is very persuasive and certainly it constitutes substantial evidence that there were three persons in the apartment at the time, which is contrary to the testimony of James West, Jr., who said that only he and Dannelley were there at the time, that the appellant was not present. James West, Jr., also testified that he and Dannelley left Dannel-ley’s apartment soon after the disturbance. The witness who heard the disturbance testified that he did not know that the parties left the apartment. However, on cross-examination he further testified that on a previous hearing he had said “and then after that it quieted down and they left. I went back to sleep.” He said he did not hear the car and on further cross-examination he said:

“A. It seems — yes, I remember, I remember movements back toward the front. I heard a door shut at one time. It is a very small muffled sound that the door .
“O. Did you in fact testify that they left?
“A. Yes.”

To some extent the witness’ testimony was corroborative of the testimony of James West, Jr., that he and Dannelley left the apartment for the rest of the night, but it is weak in that respect, and on the whole, we think, the jury could have reasonably viewed his testimony as in conflict with the testimony of James West, Jr., on the point. The witness did not hear the car leave the apartment, and it appears that the only thing he did hear that could have been considered a departure from the apartment was the shutting of a door at one time after the disturbance.

The question of the reasonableness or unreasonableness of the narrative of James West, Jr., was a matter for the determination of the jury. The verdict of the jury shows unmistakably that they did not believe James West, Jr. Unanswered by that testimony was the serious question, Why did Dannelley not notify the school where he taught that he would be absent from school? That his failure to do so, if he had been alive, was not habitual it seems, in view of the concern manifested when he did not appear for duty that day and sent no word that he would be absent. No reasonable explanation is given for his decision to return to North Carolina where he had been the week before. The jury well could have questioned the reasonableness of the testimony of James that James and Dannel-ley took Glen to the causeway east of Mobile to hitchhike a ride back to North Carolina and several hours thereafter decide to go and see if he had caught a ride and then proceed to North Carolina themselves. No explanation was given, consistent with the theory that Dannelley was not killed in his apartment, for the presence at the place where his body was dumped in Tennessee of the bedspread with bloodstains on it that had been in, and was missing from, Dannelley’s apartment. Taking all the evidence into consideration, there was sufficient basis for a determination by the jury that appellant was the third party in the apartment on the early morning of March 27, 1974, that a fight ensued in which appellant was a participant and Dannelley was killed, that sometime before 10:00 A.M. that day his body was placed in the bedspread of his bed, removed from Mobile and taken in Dannelley’s car by James West, Jr., or by James West, Jr. and appellant, and thrown into a rubbish dump in Tennessee. As to the crime, James West, Jr. has been tried by a jury in Mobile County and found guilty of murder in the first degree. The verdict of the jury in this case is consistent with credible, substantial evidence which the jury had a right to believe, even though it is inconsistent with substantial evidence, which the jury did not believe.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.

      . According to James West, Jr., the three had spent the night in the apartment on each of the two immediately preceding nights.


source: Caselaw Access Project

author: MERRILL, Justice.

license: Public Domain

text:
    In re Glenn WEST v. STATE of Alabama. Ex parte Glenn West.
    SC 1723.
    Supreme Court of Alabama.
    April 16, 1976.
    Calvin Clay, Mobile, for petitioner.
   MERRILL, Justice.

Petition of Glenn West for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in West v. State, 57 Ala. App. — 329 So.2d 653.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Donald MITCHELL v. STATE.
    6 Div. 53.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Rehearing Denied March 16, 1976.

      J. Mark White, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Mitchell was convicted of robbery, and the jury fixed his punishment at fifteen years in the penitentiary. He was represented at arraignment and trial by court-appointed counsel. He pleaded not guilty. At the time sentence was imposed, he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, DONALD MITCHELL, whose name is to the Grand Jury otherwise unknown, feloniously took FIVE THOUSAND DOLLARS of the lawful ■currency of the United States of America, a more particular description and denomination of which is otherwise unknown to the Grand Jury, and one four door Chevrolet automobile of the value of FIVE THOUSAND DOLLARS, the personal property of Helen Marie Baker, from her person and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

On December 11, 1974, Ireland’s Restaurant located in the Brookwood Shopping Center in Homewood, Jefferson County, Alabama, was' robbed by two black men, one of them carrying a pistol.

Miss Helen Marie Baker testified that she was Assistant Manager of the restaurant and that it was her job to open the restaurant every morning; that on the morning of the robbery she drove her car to the restaurant arriving at 6:40 A. M. She cut on all the lights and made a pot of coffee as breakfast was served at 7:00 A. M. The cook was with her when she opened the restaurant and went directly to the kitchen area. At approximately 6:50, a waitress named Cindy Johnson arrived. Miss Baker checked the dining room to see if it was presentable for customers and then went to the office and opened the floor safe to get out enough money to be used in the dining room and the bar for the day.

Miss Baker testified that she was sitting in a chair with her back to the office door which was locked. She heard the doorknob to the locked office door rattling. She stated that someone began shaking and kicking the door; that she jumped up from the chair and about this time a shot was fired through the door and it went through the back of the chair that she had vacated a second before and lodged in the seat of the chair. That she opened the office door and two black males came charging in and one had a pistol pointed in her face and said, “Give me all the money you have.” The man without the pistol backed into the office in a squatting position and reached his hands in the safe and started getting the money out and Miss Baker testified that she recognized this man as appellant. She stated that appellant had previously worked for the restaurant as a busboy but had not worked there for several months.

The witness further testified that both men had on toboggans and the man with the pistol had his face completely covered with a nylon stocking mask with holes cut out in the eye area. She stated that appellant had on a nylon stocking mask, with eye holes but it only covered his face from the nose up. That both men had on bluejeans and appellant wore white looking tennis shoes. That appellant’s entire mouth area was exposed and she recognized him immediately as he had a very unusual mouth with big lips. She said appellant turned his face to her when he was getting the money from the same and she got a good look at his mouth area. They asked for a box to put the money in and she supplied them with a box. That as the robbers started to leave appellant looked her directly in the face and demanded the keys to the car she drove to the restaurant in, and she got another good look at him. That appellant reached over and took her car keys out of her hand, and they ran out of the restaurant. She stated that when appellant worked there, he had been in the office with her many times and that when he backed in the office, he put his hand on the floor safe and started taking the money out.

Miss Baker further testified the robbery was completed in about three minutes and the amount of money they took was $5,000.-00, and that they took her Impala, four-door Chevrolet, which she had only a week and which was worth about $5,000.00. Her automobile was later found and returned to her.

On cross-examination Miss Baker repeated her description of the way the robbers were dressed. She stated she could and did recognize Donald Mitchell from the area of his face that was not covered since she had seen him many times. She made a positive in-court identification of appellant as one of the robbers. Though Miss Baker was subjected to a vigorous cross-examination, her identification of appellant as one of the robbers was not shaken in the least.

She stated that after the robbery she locked the office door and called the Police Department and reported the robbery. She then went to check on her car and it was gone.

Miss Cindy Johnson testified that she was a waitress at Ireland’s Restaurant on December 11, 1974. She stated that she arrived at 6:55 A.M. and went to the kitchen and had returned to the game room when she saw a black man standing at the office door. That she observed him kicking the office door and then saw a gun in his hand. She turned and ran to the kitchen and as she was running, she heard a shot. She remained in the kitchen with the cook until Miss Baker came back to let them know she was all right. She said she only saw one man and he had a gun, but she did not get close enough to recognize him.

Mr. Roy Olney was employed by the Homewood Police Department on December 11, 1974. He testified that he received a call to investigate a robbery at Ireland’s Restaurant and that during the investigation he found what he thought was a .22 caliber bullet lodged in a chair in the office of the restaurant. He removed the bullet and kept it in his possession until it was placed in possession of Sergeant James A. Barker. It was introduced in evidence but not as a .22 caliber bullet because Olney could not say positively that it was a .22 caliber bullet.

On cross-examination this witness stated that he could not say positively when the bullet was fired into the chair.

Sergeant James A. Barker testified that he was employed by the Homewood Police Department and that on December 11, 1974, he went to Ireland’s Restaurant following a robbery call. He stated he talked to Miss Baker and received a bullet from Officer Olney which he sealed in an evidence envelope and placed in the evidence file. This bullet was offered and admitted in evidence with the Court instructing the jury there was only an opinion as to its caliber.

Sergeant Barker further testified that he had occasion to later see an automobile at the City Hall in Homewood which was identified as belonging to Miss Baker and the car was later returned to her. He stated that in the car, in plain view, he found a stocking hose, two nickels, and a lady’s ring. He placed these items in an evidence envelope and put it in the evidence safe where the items remained until he brought the envelope to Court during appellant’s trial. During trial the envelope was opened and he identified the items which he had put in the envelope. The stocking, nickels and ring were offered and admitted in evidence.

Mr. James A. Atkinson was employed by the Homewood Police Department on December 11, 1974. He testified that on December 12, 1974, he had occasion to see a car identified as belonging to Miss Baker. He processed the car for fingerprints and did not find any, but that the three items testified to by Sergeant Barker were in the car.

The State rested at this point and the defense moved for a directed verdict on the grounds that there was a fatal variance between the allegations in the indictment and the proof, and no evidence was presented linking the defendant to the crime. Specifically, the defense contended the variance was predicated on the fact that the indictment alleged the money was the property of Miss Baker while the proof showed the money was the property of the restaurant and further the indictment charged that Miss Baker was robbed of her automobile while the proof showed she was only robbed of the key to her automobile. The motion was overruled.

Appellant did not testify but offered alibi testimony. Hazel Jones testified that she was the common law wife of the defendant and that she had lived with him for 13 months and was living with him on December 11, 1974. She- stated that she was in his presence on the morning of December 11, 1974, when a cousin picked him up at the house at either 8:45 or 9:00 A.M. and that he was dressed in his work clothes. She said that when he returned from work she could tell he had been working by the tar on his clothes. She further stated that appellant had a scar on his lip and nose and he had these scars as long as she had known him.

On cross-examination she testified that when she first met appellant, he was working at Ireland’s Restaurant and that they lived at her house. She denied that appellant was away from the house on the night of December 10, 1974, and that she didn’t know where he was at 7:00 A.M. on December 11, 1974.

On rebuttal the State called Helen Marie Baker. She was shown the ring found in her car by Sergeant Barker and asked if she recognized it. She stated that it was a ring lost by a customer at Ireland’s Restaurant which had been put in the cash register in the event someone returned to claim it. She further stated the ring was in the register the morning of the robbery.

On cross-examination she was shown the stocking mask found in her car and stated it was similar to the ones worn by the robbers but could not say that it was definitely the mask worn by one of the robbers.

To sustain a charge of robbery it is not essential that the stolen property be in actual physical contact with the person of the victim. It is sufficient if the property is taken from his presence or personal protection. Bray v. State, 47 Ala.App. 308, 253 So.2d 531; DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125.

In Bray v. State, supra, the Court said:
“The testimony of the victim, if believed to the required degree, is sufficient to sustain a conviction of robbery. To sustain such a charge it is not necessary that the stolen property be in actual physical contact with the person of the victim, but it is sufficient if the property is taken from his presence or personal protection. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Further, in an indictment for robbery, ownership of stolen property is properly laid in the party in possession, either as owner conditional, or bailee, or agent. Howell v. State, 26 Ala.App. 612, 164 So. 764.”

In Cobern v. State, 273 Ala. 547, 142 So. 2d 869, the Supreme Court held:

, ,, , Nor, on a charge of robbery, must the stolen property be in the manucaption or on the person of the victim. It is sufficient if the property was taken from the victim’s presence or personal protection. Hill v. State, 145 Ala. 58, 40 So. 654. Other states have held similarly :
“ ‘Where the property was in the control, custody, and protection of the person from whom it is alleged to have been taken, it is not necessary to sustain a conviction of robbery, that it should have been in actual physical contact with his person. Jenkins v. State (1917) 131 Ark. 312, 198 S.W. 877; Wood v. State (1929), 98 Fla. 703, 124 So. 44; O’Donnell v. People (1906) 224 Ill. 218, 79 N.E. 639, 8 Ann.Cas. 123; People v. Stathas (1934) 356 Ill. 313, 190 N.E. 661; State v. Calhoun (1887) 72 Iowa, 432, 34 N.W. 194, 2 Am.St.Rep. 252; Briggs v. State (1928) 108 Tex.Cr.R. 544, 2 S.W.2d 238; Ibeck v. State (1929) 112 Tex.Cr.R. 288, 16 S.W.2d 232.’ ” 123 A.L.R. 1100.
“In line, therefore, with these well reasoned authorities we entertain the view that the car stolen from Mamie Belle’s yard was taken from her presence within the meaning of that phrase as defined in the authorities.”

The evidence clearly shows that after taking the $5,000.00, appellant took Miss Baker’s automobile key out of her hand and in a matter of minutes her car was missing from the place where she parked it at the restaurant. The short time intervening from the time of the robbery, including the car keys, formed a continuous chain of events. This was one continuous transaction or one continuous occurrence, and everything that was done was admissible as of the res gestae. Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Jackson v. State, 229 Ala. 48, 155 So. 581.

We hold there was no variance between the allegations of the indictment and the proof offered in support therof.

Appellant claims that the trial judge committed reversible error in propounding questions to certain witnesses during the trial of this case.

It was not only within the power of the Court to propound questions to witnesses, but if justice required, or if it appeared necessary, it was the duty of the Court to do so, and such action upon the part of the Court cannot be construed as an aid to the prosecution or as being prejudicial to the substantial rights of the defendant. Brown v. State, 33 Ala.App. 97, 31 So.2d 670; Patrick v. State, 43 Ala.App. 338, 190 So.2d 551; Register v. State, 19 Ala.App. 11, 94 So. 778.

The trial court’s statement during the rebuttal testimony of the victim of the robbery, “Let me say this: This is repetitious. This witness has been over it two, or three times. In fact she has identified this man, the lips and all the rest of it. I am going to sustain the objection as being repetitious,” did not reflect partiality against the accused but was directed toward eliminating unnecessary repetition on rebuttal. Burke v. State, 44 Ala.App. 379, 209 So.2d 859.

There were several other instances in which the Court asked witnesses questions in order to clear up the issues and expedite the trial of the case. This action on the part of the Court finds support in numerous cases rendered by this Court and the Supreme Court. For a collection of these cases see Butler v. State, 55 Ala.App. 421, 316 So.2d 348.

Liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury whether they are truly drawn or not. Alexander v. State, 37 Ala.App. 533, 71 So.2d 520; Cazalas v. State, 43 Ala.App. 6, 178 So.2d 562; Beaird v. State, 219 Ala. 46, 121 So. 38.

Several statements made by the prosecuting attorney were sustained but there was no request that these statements be excluded from the jury’s consideration. Such a motion is proper for review by this Court. Hipp v. State, 47 Ala.App. 580, 258 So.2d 920.

Appellant complains that the trial court was in error in charging the jury as to the law on reasonable doubt of the defendant’s guilt, but no exceptions were reserved thereto. It is settled law that the correctness of the trial court’s oral charge cannot be raised for the first time on appeal. Segers v. State, 283 Ala. 682, 220 So.2d 848; Cox v. State, 280 Ala. 318, 193 So.2d 759; Cronnon v. State, 46 Ala.App. 632, 247 So.2d 387; Eady v. State, 48 Ala. App. 726, 267 So.2d 516.

We have carefully searched the record for errors affecting the substantial rights of appellant and have found none.

The judgement of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    In re Donald MITCHELL v. STATE of Alabama. Ex parte Donald Mitchell.
    SC 1781.
    Supreme Court of Alabama.
    April 16, 1976.
    J. Mark White, Birmingham, for petitioner.
   MERRILL, Justice.

Petition of Donald Mitchell for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mitchell v. State, 57 Ala. App.-, 329 So.2d 658.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Francis THOMPSON v. CITY OF HUNTSVILLE.
    8 Div. 719.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.
    Robert M. Shipman and John S. Somerset, Huntsville, for appellant.
    David C. Craddock, Huntsville, for ap-pellee.
   TYSON, Judge.

This is an appeal from a judgment of conviction under Section 13 of Huntsville’s “Massage Parlor” Ordinance (City of Huntsville, Alabama, Ordinance No. 74 — 76). The jury found the appellant “guilty” and the trial court entered judgment, setting sentence at thirty days imprisonment in the City Jail.

Succinctly stated, Section 13 makes it unlawful for any masseur or masseuse to-massage or touch the genital organs of another in connection with a massage.

Ruby Neeley, Clerk-Treasurer of the City of Huntsville, testified that the ordinance in question was in full force and effect on May 2, 1974, the date of appellant’s arrest. A copy of such ordinance was admitted into evidence.

Huntsville Police Officer Roger Taylor testified that on the night of May 2, 1974, he entered the Magic Touch Massage Parlor at 898 Church Street, in Huntsville, alone. He testified that he requested a massage. He stated that he was quoted several prices at the front desk, the prices depending upon the amount of clothing to be worn, by the customer during the massage. He testified that he paid $35.00 and that it was understood ■ tha't he would be completely naked and was to be massaged by an equally bare masseuse. He was then placed in a room, instructed to remove his clothing and lie on a waterbed. Shortly thereafter, a female identifying herself as “Angel” entered the room, and she, too was completely naked. She began the massage, and then began massaging his testicles and penis. She advised the officer that for $25.00 more he could have sexual intercourse. The officer, on the pretext that that he had a cramp in his leg, got up, produced his badge from his pants pocket, and identified himself as a police officer, and placed the appellant under arrest. Officer Taylor then signalled for two other police officers, who were sitting outside, to come in, and 'they took the appellant to the City Jail.

The appellant offered no testimony at trial nor were the above facts controverted.

I

Appellant asserts that the record in this cause fails to show that her appeal was timely docketed in the Circuit Court from the appeal taken from Recorder’s Court, as is required by Title 37, Section 587, Code of Alabama 1940.

A corrected supplemental transcript filed in this Court on December 15, 1975, pursuant to the provisions of Rule 10(f), Alabama Rules of Appellate Procedure, adopted June 17, 1975, by the Supreme Court of Alabama, clearly established that the complete transcript of the proceedings in the Recorder’s Court was filed in the Circuit Court of Madison County, Alabama, on June 13, 1974, which is well within the sixty day period proscribed by Title 37, Section 587, Code of Alabama 1940.

Moreover, this record shows that notice of appeal and appeal bond were posted on May 10, 1974 (the date of appellant’s conviction in Recorder’s Court). Further the recitation of the appeal bond, as shown in the record, in usual form and timely made, in and of itself is sufficient to establish compliance with the statute even though here the entire record was timely filed. Ex parte State, ex rel. Attorney General, 210 Ala. 458, 98 So. 708.

We are therefore of the opinion that the record of the proceedings below was properly established in the Circuit Court, and is therefore properly established in this Court since such supplemental transcript was established in this Court more than three weeks prior to oral argument and submission of this cause in this Court.

II

Appellant asserts that the Massage Parlor Ordinance in question is violative of both the due process, and equal protection clause of the Fourteenth Amendment of the United States Constitution. The thrust of appellant’s argument in this respect is directed to Section 12 of the Ordinance in question, which prohibits bisexual massage, when in fact the appellant’s conviction is for violation of Section 13 of the Ordinance, which prohibits the massaging of the genitals of another without reference to either sex.

We note, in passing that the constitutionality of such ordinances has been specifically upheld by three of our sister states. (See Kisley v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168; Smith v. Keator, 21 N.C.App. 102, 203 S.E.2d 411; Rubenstien v. Cherry Hill, Unreported Afirmance, N.J.Super.Ct., Appellate Div.)

Each of these decisions was dismissed from the Supreme Court of the United States for want of a substantial Federal question. (See 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169; 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636; 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 136, respectively.)

More recently, the United States Court of Appeals for the Third Circuit in Colorado Springs Amusement, LTD. v. Rizzo, 524 F.2d 571 (1975), reached the same result, as has the United States Court of Appeals for the Fourth Circuit in Hogge v. Johnson, 526 F.2d 833 (1975).

Similarly, the very ordinance here in question has been determined to be constitutional by the Honorable Seyborne H. Lynne, United States District Judge for the Northern District of Alabama, in Rasnake, et al. v. City of Huntsville, C.A. No. 74 — L-292, N.E.

We are of the opinion that the ordinance here in question was a valid exercise of the police power granted to the City of Huntsville, Alabama, under the provisions of Title 37, Section 455, Code of Alabama 1940, as amended 1971.

We have carefully examined this record, as required by law, and find no error therein. The judgment is therefore due to be and the same is hereby

Affirmed.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Francis THOMPSON v. CITY OF HUNTSVILLE. Ex parte Francis Thompson.
    SC 1729.
    Supreme Court of Alabama.
    April 16, 1976.
    Robert M. Shipman and John S. Somerset, Huntsville, for petitioner.
   SHORES, Justice.

Petition of Francis Thompson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Thompson v. City of Hrmtsville, 57 Ala.App.-, 329 So.2d 664.

WRIT DENIED.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: WALKER, Justice: SUGG, Justice

text:
    Barbara A. (Crumpton) HODUM v. Leonard CRUMPTON.
    No. 48522.
    Supreme Court of Mississippi.
    March 23, 1976.
    Rehearing Denied April 27, 1976.
    Farese, Farese, Jones & Farese, Ash-land, for appellant.
    B. N. Knox, Jr., New Albany, for appel-lee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   WALKER, Justice:

This is an appeal from the Chancery Court of Union County, Mississippi, which dismissed appellant’s petition for modification of a prior decree awarding custody of a two and one-half year old female child to her father, the appellee here.

The essential facts which have brought this litigation to this stage are as follows:

On or about April 19, 1973, appellant and her husband separated. On May 22, 1973, appellant filed for divorce against her husband. The precise ground for the divorce was habitual, cruel and inhuman treatment. Appellee filed a cross-bill, charging appellant with adultery.

One child, Donna Crumpton, was born of this union. At the time of the divorce, the child was one and one-half years of age. The proceedings upon the original bill and cross-bill for divorce were uncontested. In due course, on June 28, 1973, upon the uncontested evidence of the husband, the divorce was granted to him, along with custody of the minor child. Appellant was granted specific visitation privileges from Friday to Sunday on each third weekend.

On December 31, 1973, appellant filed her petition seeking modification of the original decree so as to obtain custody of the child.

The decree granting appellee a divorce and custody of the minor child was based on a charge of adultery but made no finding with reference to the fitness or unfitness of appellant to have the minor child.

At the time of her divorce, appellant was working full time. After the divorce, she married Billy R. Hodum and the couple now reside in Memphis, Tennessee, where Billy Hodum is General Manager of a builders supply company. The Hodums’ current income is approximately $1,200 per month. Mrs. Hodum does not work and remains in the home as a housewife. The home, which they own, is a modern home with three bedrooms, one and one-half baths, breakfast room, kitchen, living room, dining room, family room and double carport. The home is located in a residential area near a school and church. Mr. and Mrs. Hodum are the only occupants of the home.

After the Crumptons’ divorce in Union County, Mr. Crumpton, the appellee, sold the three bedroom home which he and appellant had built prior to their divorce. He then moved, with the child, into a mobile home trailer, which he purchased. Mr. Crumpton, the minor child, Mr. Crumpton’s mother and father, and a nephew, thirteen years of age and who does not go to school, all live in the trailer. The trailer is twelve , feet wide., and sixty-five feet long, consisting of three bedrooms, two baths, a living room and a kitchen. Mr. .Crumpton’s parents use one bedroom and the nephew uses one. The third bedroom is occupied by Mr. Crumpton and the minor child here involved. Mr. Crumpton is employed as a factory worker at Futorian Manufacturing Company, earning $115 per week. Mr. Crumpton’s mother cares for the child while Mr. Crumpton is at work. The child is now four years of age.

We are of the opinion that the chancellor erred in dismissing appellant’s petition to modify the divorce decree granting custody of this minor child to the appellee. Here, as in Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952), the issues are two in number: (a) Whether there had been a material change in circumstances to warrant a modification or change of the custody decree; and (b) If such material change had occurred, what is for the best interest and welfare of the child.

The appellee’s circumstances have changed since the former divorce decree. He has sold the home in which he and the appellant and child lived, and is now residing in a trailer, which he owns, with his mother, father, and a thirteen-year-old nephew who does not attend school. Due to the number of people in the three bedroom trailer, the appellee and the child share a bedroom. As was the case at the time of the former decree, the child is cared for by appellee’s mother while he works.

The appellant’s circumstances have also changed since the former decree. She has remarried and the couple have a home of their own. Furthermore, appellant is no longer working and is now able to devote her full time to the child and being a housewife. Appellant’s husband is financially able and willing to support the child.

The paramount consideration in this case is the child’s welfare. The general rule is that a child of such tender years and especially a female child should be with her mother, unless the mother is an unfit person to have the child’s care and custody. Sistrunk v. Sistrunk, 245 So.2d 845 (Miss. 1971).

In Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443 (1948), it was said:

When a divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children, save temporarily as to an infant so young as not to permit separation from its mother, and save as to some exceptional circumstances, none of which are here present. (Emphasis added). (203 Miss, at 395, 35 So.2d at 444).

What was said in Bassett v. Sims, 220 Miss. 210, 70 So.2d 530 (1954), quoting Amis, Divorce and Separation in Mississippi, section 214, p. 289 (1935) is pertinent here. There it was said:

“Because since the good of the child is the chief concérn of the court, no award will be made to one party merely as a reward for former virtuous conduct, nor denied to the other as a punishment for past misdeeds. For it sometimes happens that one who, under the lure of strong temptation, has grievously sinned, has yet repented and reformed and would train a child as wisely and well as if no such transgression had ever occurred. Nor should a parent be denied the custody merely because of adverse rumors of reputation without any proof of immoral acts, or of conduct which would reasonably indicate it.” (220 Miss, at 218-19, 70 So.2d at 534).

See Case v. Stolpe, 300 So.2d 802, 805 (Miss.1974).

The appellant has not only made out a strong case of a material change in circumstances since the original divorce decree, but she has also made out a strong case that the best interest and welfare of this four-year-old child would be best served by awarding its custody to her.

In Boswell v. Pope, supra, this Court said that discretion with respect to the custody of a minor should be exercised in the light of a well established rule of this and other courts that: “In all cases where any child is of such tender age as to require the mother’s care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.” (213 Miss, at 37-38, 56 So.2d at 3).

After a careful and meticulous review of this record, we have reached the inescapable conclusion that due to the tender age of this little four-year-old female child and the circumstances under which she is now being cared for, it would be in her best interest and welfare to be placed in the care, custody and control of her mother, with reasonable visitation rights to the father.

We, therefore, reverse the order of the lower court dismissing the petition to modify the former decree with respect to the custody of this child and remand this case to the lower court for a determination as to the visiting rights to be accorded the ap-pellee and for such further orders with respect to said child not inconsistent with this opinion.

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

Reversed and remanded for further proceedings consistent with this opinion.

GILLESPIE, C. J., and SMITH, ROBERTSON and LEE, JJ., concur.

PATTERSON and INZER, P. JJ., and SUGG and BROOM, JJ., dissent.

SUGG, Justice

(dissenting):

The majority opinion substitutes its judgment for the judgment of the chancellor on a question of fact. A fundamental rule of appellate review is that a chancellor will not be reversed on a finding of fact unless he is manifestly wrong.

When a chancellor is called on to make a choice between the parents of children, the pole star is the best interest of the child. In considering the best interest of a child, the chancellor must project into the future the probable effect the award of custody will have on the child. When predicting the probability of the behavior of parties there is no more accurate guide than considering their past behavior. In this case the chancellor was entitled to, and obviously took into consideration, the fact that the appellant married her paramour, Billy Hodum shortly after her husband divorced her for adultery; that Hod-um had previously run away with appellant’s aunt; that Hodum was divorced from a former wife, and the two children of that marriage were in custody of the former wife. It is apparent that the chancellor took into consideration the past performance of appellant and her present husband and came to the conclusion that they would not furnish a stable home for the child. With this conclusion of the chancellor I agree; at least, he was not manifestly wrong.

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


text:
    UNITED INSURANCE COMPANY OF AMERICA v. Willie Mae MIXON.
    No. 48570.
    Supreme Court of Mississippi.
    March 30, 1976.
    Rehearing Denied April 27, 1976.
    Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellant.
    Robert E. Arrington, Hattiesburg, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Affirmed.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concurring.


author: INZER, Presiding Justice:

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Mrs. Huett E. BISHOP.
    No. 48627.
    Supreme Court of Mississippi.
    April 13, 1976.

      Bryan, Nelson, Allen & Schroeder, James W. Backstrom, Pascagoula, for appellant.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
    Before INZER, SUGG and WALKER, JJ. '
   INZER, Presiding Justice:

Appellee, Mrs. Bishop, brought this suit in the Circuit Court of Jackson County against appellant State Farm Mutual Automobile Insurance Company alleging that she was an insured under two policies of insurance issued by the defendant insurance company and that under the provisions of the insurance policies each policy provided for $10,000 per person and $20,000 for each accident for bodily injury and for damages caused by an uninsured motorist.

It was further alleged that on May 20, 1973, while a passenger in one of the automobiles insured by State Farm, she was severely injured in an accident caused by the negligence of an uninsured motorist and as a result thereof she suffered permanent injuries and in addition medical, hospital, and drug bills in excess of $6,500. It was alleged that one of the policies provided for medical benefits which the insurance company refused to pay.

It was also alleged that although the insurance company admitted that it was liable for $10,000 coverage under the terms of one policy, it refused to pay any amount unless the plaintiff would sign a complete release as to both policies and that this action on the part of the insurance company was a willful, obstinate and gross breach of said contracts so as to impute malice and to show a willful disregard for the rights of the plaintiff. As a proximate result of this action, plaintiff suffered embarrassment, emotional and mental distress and financial hardship. A demand was made for $20,000 due under the policies, plus medical benefits, actual and punitive damages, together with interest.

The defendant answered and admitted that its total liability would be $10,000 but denied that it was liable for any coverage for the policy covering an automobile not involved in the accident. It denied that it was liable for $6,500 medical expenses but admitted that certain medical expenses would be due the plaintiff. It alleged that it made a good faith effort to settle the case within the limits of its liability under the policies of insurance, but the plaintiff refused to accept the same and was then demanding more than was due.

The case was tried before the circuit judge without the intervention of a jury. At the trial it was stipulated that Mrs. Bishop was seriously injured on May 20, 1973, in an automobile accident caused by the negligence of an uninsured motorist. It was also stipulated that her damages would support a verdict in excess of $20,000 and that at the time of the accident Mrs. Bishop was an insured under two separate policies on automobiles owned by the husband of Mrs. Bishop. One policy covered a Plymouth automobile in which Mrs. Bishop was riding at the time of the accident and the other an Opel. Each policy provided for $10,000 for bodily injuries or death of one person and $20,000 for bodily injuries or death of two or more persons. One of the policies provided for up to $1,000 for medical benefits. It was further stipulated that these policies were in full force and effect at the time of the accident and that separate premiums were paid and charged for each policy.

The trial judge held that our decision in Harthcock i). State Farm Mutual Automobile Insurance Co., 248 So.2d 456 (Miss.1971), was controlling as to allow Mrs. Bishop to recover $10,000 under each policy for an aggregate of $20,000 for bodily injury and $1,000, less $399 previously paid by the insurance company under the medical pay provision of one policy. The trial court also held that the insurance company was liable for interest from ninety days after the accident but denied any further actual or punitive damages.

On appeal State Farm first contends that the trial court was in error in holding that the two separate policies could be aggregated or stacked to cover damages for bodily injuries suffered by Mrs. Bishop as a proximate result of the negligence of an uninsured motorist.

While this case was on appeal we decided Southern Farm Bureau Casualty Insurance Co. v. Roberts, 323 So.2d 536 (Miss. 1975), which is decisive of the appellant’s contention in this regard. That case involved three separate insurance policies issued by the same insurance company containing as required by statute an uninsured motorist endorsement under each policy. We held in that case that they could be aggregated or stacked to cover damages resulting from the negligence of an uninsured motorist, and in so doing, we followed our decision in Harthcock, supra, relied upon by the trial judge. However, the appellant argues that Roberts is not controlling here because of the difference of the wording of the policies. It is contended that since its policy specifically states, “The limits of liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person in any one accident,” that its total liability is limited to $10,000 under both policies. We find no merit in this contention. In Roberts, supra, we stated:

It is clear to us under the specific language of each endorsement to each separate policy and under the specific requirement of the statute, as to what each “automobile liability insurance policy or contract” shall contain, that the appellee can aggregate the $10,000 coverage under each endorsement until her ward and son, Drexell, has recovered “all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle.”
As’ mandatorily required by statute, each policy of insurance contained the uninsured motorist endorsement and each policy was complete within itself. (323 So.2d at 537, 538).

An insurance company cannot by the provisions in one uninsured motorist endorsement limit its liability and endorsement in a separate policy and defeat the mandatory provisions of the statute.

Appellant also contends that the trial court was in error in granting interest prior to judgment in circuit court because its liability was unliquidated. It is a general rule that in actions for a breach of contract of insurance, when the amount which the insured is entitled to under the contract is withheld after payment is due, interest on such amount can be allowed as damages. However, an -exception to this rule is sometimes made when the amount due is uncertain or unliquidated. We held in Commercial Union Insurance Co. v. Byrne, 248 So.2d 777 (Miss.1971) that when there is a justifiable dispute as to the amount due, an insured is not entitled • to interest until the amount due under the contract is made certain or liquidated unless the trial court in its 'discretion finds that' the facts and circumstances of the particular case justify the allowance of interest prior to the judgment. Therefore, the question in this case is whether the trial court abused its discretion in allowing interest in this case prior to judgment. After a careful review of the evidence we cannot say that it did. The facts show that within a short time' after the accident, the insurance company knew that the motorist whose negligence caused the accident was uninsured. They also knew that Mrs. Bishop had suffered severe and permanent injuries to the extent that they agreed to pay her $10,000 if she would give them a full release. They knew that this offer was refused because Mrs. Bishop was claiming that she was entitled to recover under both policies. After Mrs. Bishop employed counsel, her attorney tried to get the insurance company to pay the coverage under the policy on the automobile involved in the accident and take a release as to that policy and then litigate as to whether the other policy afforded coverage. This the company refused to do. It refused to pay her medical benefits or any amount unless she would execute a full release as to both policies, although it knew that Mrs. Bishop was in a financial bind as a result of the accident. Under the facts and circumstances of this case the trial court could find that the actions of the insurance company were arbitrary and they did not deal with the insured in good faith and fairness.

For the reasons stated, we are of the opinion that this case should be and it is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    G & O MANUFACTURING COMPANY and Hartford Accident & Indemnity Company v. Vernell C. WILLIAMS.
    No. 48608.
    Supreme Court of Mississippi.
    April 13, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellant.
    Anderson, Banks, Nichols & Stewart, Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Ann Laird WELCH v. J. O. LAIRD and Norma Lee Laird.
    No. 48604.
    Supreme Court of Mississippi.
    April 13, 1976.
    Raymond Swartzfager, Jr., Laurel, for appellant.
    Paul G. Swartzfager, Laurel, for appel-lee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


author: LEE, Justice:

text:
    MARYLAND CASUALTY COMPANY v. TRUCKERS EXCHANGE, INC.
    No. 48592.
    Supreme Court of Mississippi.
    April 6, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellant.
    H. A. Courtney, Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice:

Appellee, Truckers Exchange, Inc., filed suit in the Circuit Court of Rankin County, Mississippi, against appellant, Maryland Casualty Company, to recover the sum of six thousand forty-seven dollars and twenty cents ($6,047.20) representing the value of one hundred seventy-six (176) cartons of boneless beef which appellee claimed were stolen. The action was upon an insurance policy issued by appellant. There was a jury verdict in the sum of four thousand five hundred dollars ($4,500.00), the maximum coverage under the policy, and judgment was entered for that amount.

The declaration charged (1) that the policy of insurance covered the load of boneless beef, (2) that the truck picked up five hundred fifty-three (553) cartons of beef but delivered only three hundred fifty-seven (357) cartons to Atlanta, (3) that during the trip one hundred seventy-six (176) cartons of beef were stolen and not delivered after they had been loaded for shipment and were being transported on a vehicle brokered through the insured, and (4) that the loss was reported to appellant and proof of loss was made, but appellant refused to pay the claim.

Appellant admitted the alleged loss was reported to it, that proof of loss was made, and that it refused to pay the claim for the reason that it was not covered under the policy. Appellant denied that the 176 cartons of beef were stolen. Eight affirmative defenses were filed, all being policy defenses.

The sole question presented to this Court is whether or not the trial court erred in denying appellant’s motion to exclude the evidence on behalf of appellee and to direct a verdict in its favor and in denying appellant’s requested peremptory instruction.

We are of the opinion that the question must be answered in the affirmative and that the case must be reversed.

The only witness introduced by appellee was Wayne Miller who lived in Pearl, Mississippi, and who operated a truck brokerage business at the 1-20 & 49 Truck Plaza south of Jackson. He testified that the beef was loaded out of Philadelphia and Virginia on a Grantham Transfer truck. Its first destination was Raleigh, North Carolina.

Miller attempted to testify about pilferage and theft of the beef, but objections by appellant were properly sustained by the trial court on the ground that the testimony was hearsay. The only knowledge Miller had about the matter was obtained through telephone calls, bills and receipts. No person testified and no competent evidence was introduced to show the loading of the beef, the quantity missing, if any, or that a theft had occurred. It was essential to the plaintiff’s case that proof of theft of the beef be made by a preponderance of the evidence.

The case of Coahoma County Bank & Trust Company v. Feinberg, 241 Miss. 381, 128 So.2d 562 (1961) is authority for the Court’s decision here. In that case no direct testimony was introduced from any witness who had personal knowledge of the facts. Testimony as to what other persons said was held not admissible against the insurance company for the purpose of showing a loss under the policy. The Court said:

“Was the ‘fact of the loss’, required by the foregoing authority, proven? The complainant offered testimony by the agent of the appellee insurance company to show that the insured Feinberg told him that his automobile was stolen, and appellant introduced letters stating that Feinberg told other people that his automobile was stolen, but there is no direct testimony in this record from a witness who knew the facts, that Feinberg ever had his automobile stolen from him. The testimony as to what insured Fein-berg said would be admissible against Feinberg, as a declaration against interest, but it was not admissible against the appellee insurance company for the purpose of showing loss under the policy. The burden of proof is upon the complainant who alleges that there is a liability due him upon the part of the defendant. 20 Am.Jur., Evidence, Section 136, p. 141. The party who has the burden of proof may be determined by considering wliich would succeed if no evidence was ' offered, and by examining what would be the effect of striking out of the record the allegations to be proved. The onus must be on the party who, under such test, would fail. . . .” 241 Miss, at 388, 128 So.2d at 565.

See also State Farm Mutual Automobile Insurance Company v. Stewart, 288 So.2d 723 (Miss.1974).

Since the evidence was insufficient to establish a theft of the beef which disposes of the case, it is not necessary for the Court to consider any other matter raised by the affirmative defenses.

REVERSED AND JUDGMENT ENTERED HERE FOR APPELLANT.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Robert Wayne McCLINTON.
    No. 57175.
    Supreme Court of Louisiana.
    March 29, 1976.
    Paul W. Cary, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Paul J. Car-mouche, Asst. Dist. Atty., for plaintiff-ap-pellee.
   CALOGERO, Justice.

Defendant Robert Wayne McClinton was charged by bill of information with armed robbery in violation of La.R.S. 14:64. On June 5, 1975, defendant withdrew his original plea of not guilty and entered a plea of guilty of attempted armed robbery. Following a pre-sentence investigation, defendant was sentenced to nine and one-half years at hard labor with credit for time served, without benefit of parole, probation or suspension of sentence. From this sentence defendant appeals, raising three assignments of error.

The basic facts of the case are as follows: On January 4, 1975 a man with a “gun” robbed a convenience store in Shreveport, Louisiana. Some of the money placed in a paper bag by the store attendant contained a tracking device. By means of this device, the police located defendant, the money that was taken in the robbery, and the gun apparently used in the commission of the robbery at the home of defendant’s father. At the time defendant changed his plea to guilty of attempted armed robbery, he stated that these facts were substantially correct, but asserted that he did not point the gun at the store attendant and stated that the gun itself was actually a blank, or starter’s, pistol. This quality of the weapon was admitted by the state.

By assignment of error number one, defendant argues that his sentence of nine and one-half years at hard labor, without benefit of parole, probation or suspension of sentence is unconstitutionally cruel and excess. Article I, Section 20 of the Louisiana Constitution of 1974 provides that “[n]o law shall subject any person ... to cruel, excessive or unusual punishment.”

The armed robbery statute in this State provides for a penalty of imprisonment at hard labor for not less than five and not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. La.R.S. 14:64. As set forth in La.R.S. 14:27, the penalty for an attempt to commit armed robbery must not exceed one-half of the longest term of imprisonment prescribed for armed robbery. Thus in the instant case, while defendant was sentenced to serve nine and one-half years, the trial court was authorized by law to impose a maximum sentence of forty-nine and one-half years.

Louisiana jurisprudence has consistently held that the penalty provision of the armed robbery statute does not violate the United States or Louisiana constitutional prohibitions against cruel and unusual punishment. State v. Stewart, 325 So.2d 828 (La.1976) (decided January 19, 1976); State v. Pierce, 321 So.2d 523 (La.1975); State v. Howard, 262 La. 270, 263 So.2d 32 (1972). Logic dictates that the same reasoning applies to the penalty provisions applicable to attempted armed robbery and that the sentence in this case is not cruel, and unusual.

Defendant argues, however, that the sentence is not only cruel but also “excessive.” While the Louisiana Constitution of 1921 merely prohibited “cruel and unusual punishment,” Louisiana Constitution (1921), Art. I, § 12, the new Louisiana Constitution of 1974 bars “cruel, excessive or unusual punishment” (emphasis added). Louisiana Constitution (1974), Art. I, § 20. The addition of the word “excessive” possibly adds a new dimension to the constitutional prohibition. State v. Whitehurst, 319 So.2d 907 (La.1975). See State v. Bryant (on rehearing), 325 So.2d 255 (La. 1976) (concurring opinion by Tate, J.) (decided January 19, 1976); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 63 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev.9, 39 (1975). However, in this case we need not directly confront this issue. Under the facts of the instant case and on the record before us, the nine and one-half year sentence imposed clearly was not an excessive penalty for attempted armed robbery.

By assignments of error numbers two and three, defendant argues that his constitutional rights were violated by the refusal of the trial court to make a part of the record the District Attorney’s file on the case and the pre-sentence investigation report, which, according to defense counsel, contained different versions of the facts of the case. Article I, § 19 of the Louisiana Constitution provides as follows:

“Section 19. No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

The record referred to in Article I, § 19 of the Louisiana Constitution of 1974 is the “complete record of all evidence upon which pidgment is based” (emphasis added). This clearly was not intended to include statements by witnesses contained in the district attorney’s file, which generally are used by that office to determine whether to charge an accused, and to prepare the prosecution after an individual has been duly charged with an offense. Nor is this constitutional provision intended to reach pre-sentence investigation reports ordered after verdict or guilty plea. A pre-sentence report, which usually contains a great many hearsay statements, is clearly not “evidence upon which judgment is based” but rather is an aid ,to the trial judge in the exercise of the frequently extensive sentencing discretion given to him by the legislature. See La.C.Cr.P. art. 875, La.R.S. 15:1132.

The trial court did not commit reversible error by refusing to make the district attorney’s file and the pre-sentence report a part of the record.

For the reasons assigned, the conviction and sentence of defendant is affirmed.

SANDERS, C. J., concurs.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I do not consider that the addition of the word “excessive” in article 1, section 20 of the Louisiana Constitution of 1974 adds a “new dimension” to the prohibition against “cruel and unusual punishment” contained in article 1, section 12 of the Louisiana Constitution of 1921. Accordingly, I respectfully concur.

      . As noted by the trial judge, a person may be convicted of robbery with a dangerous weapon even though the gun used is unloaded and/or unworkable. State v. Elam, 312 So. 2d 318 (La.1975) ; State v. Levi, 259 La. 591, 250 So.2d 751 (1971).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Shedrick MATTHEWS.
    No. 57114.
    Supreme Court of Louisiana.
    March 29, 1976.
    Walter C. Dumas, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

From a conviction of attempted simple burglary and a sentence of three years in custody of the Louisiana Department of Corrections, defendant appeals, perfecting a single assignment of error, contending that his motion for a directed verdict was erroneously denied.

The evidence adduced at trial and upon which the trial court made his ruling is summarized as follows:

Officer FT. B. Billingsley of the K-9 Division of the Baton Rouge City Police Department was on his routine patrol the night of June 14, 1974 when he noticed a colored male juvenile standing and making a prying motion at a window of the Greeenville Elementary School. Because the lighting about the school building was adequate, Billingsley recognized the defendant, whom he knew from prior conversations. Circling back to an entrance of the school grounds, Billingsley radioed for help, which was nearby; the other unit “sealed off” the area. With his dog, Bil-lingsley proceeded to the school window at which he had earlier seen defendant, and his dog picked up a scent. They followed this scent toward the rear of the school grounds until they intercepted the other police unit which had by this time taken defendant and another individual into custody.

Billingsley returned to search the area around the school window, finding pry marks around the edge of the window and a bent knife in nearby bushes.

Edna Breaux, principal of the Greenville Elementary School, testified she did not give defendant authority to enter the school at any time, particularly on the night of the attempted entry.

The trial court overruled defendant’s motion because the State had introduced “some” evidence of each essential element of the crime. We affirm.

The relevant portion of R.S. 14:62 provides :

“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Article 60.”

The relevant portion of R.S. 14:27 provides :

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
“B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.”

The record before us includes direct evidence that an entry of the school building was essayed and that no such entry was authorized. The record further includes circumstantial evidence from which the intent to commit a felony or theft therein may reasonably be inferred. Hence a directed verdict is unavailable. State v. Douglas, 278 So.2d 485 (La.1973).

This assignment has no merit.

The record contains an additional assignment of error which defendant neither briefs nor argues to this court; hence it is waived. State v. Richmond, 284 So.2d 317 (La.1973).

For the reasons expressed, defendant’s conviction and sentence are affirmed.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Albert L. WILSON and Gary Francis.
    No. 57183.
    Supreme Court of Louisiana.
    March 29, 1976.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendants, Wilson and Francis, were convicted of armed robbery, a violation of La.R.S. 14:64, and sentenced to serve twenty years at hard labor. Defendant Wilson alone appeals from the conviction and sentence and relies upon one assignment of error for reversal. We affirm.

During the trial, a witness testified that she had seen two men emerge from the store in which the robbery occurred and depart in a car driven by a third person known to her by the nickname of “Fat Man”. She stated that she had grown up in the same neighborhood with him, but she did not know why he was called “Fat Man”. She identified the defendant at the trial as the driver of the car and the person she knew as “Fat Man”.

Following this testimony, the State moved to compel the defendant to exhibit his left arm to the jury. The motion was granted with the defense objecting and assigning error. On the defendant’s left arm was tattooed “Fat Man”.

Defendant argues that the exhibition of the tattoo to the jury was in the nature of a forced confession by the defendant of his involvement in the crime. Furthermore, defendant complains that a proper predicate for the evidence was not laid in that he was not advised in writing of the State’s intent to introduce a confession or inculpatory statement prior to the beginning of the State’s opening statement as required by La. Code of Criminal Procedure article 768.

Defendant’s arguments are without merit. The privilege against compulsory self-incrimination relates only to testimonial compulsion. It protects the accused’s communications, whatever form they might take, and prevents the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. However, the privilege does not require an exclusion of the accused’s body as evidence when it may be material. Schmerber v. State of California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). Generally, compulsion which makes the accused the source of real or physical evidence does not violate the privilege against self-incrimination:

“ * * * [B]oth federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber v. State of California, 86 S.Ct. 1826, 1832.

The objection urged by defendanl would “in principle . . . forbid a jury to look at a prisoner and compare his features with a photograph in proof.” Holt v. United States, 218 U.S. 245, 252-53, 31 S. Ct. 2, 6, 54 L.Ed. 1021 (1910). We find this case virtually indistinguishable from State v. Junius, 257 La. 331, 242 So.2d 533 (1971), where we held that the accused’s privilege against self-incrimination was not violated when he was compelled to exhibit an identifying scar to a witness at trial. See also, State v. O’Conner, 320 So.2d 188 (La.1975), and cases cited therein.

Since we hold that the action required of defendant was not in the nature of a confession, no notice was necessary under La. Code of Criminal Procedure article 768.

For the reasons stated above, defendant’s conviction and sentence are affirmed.


author: SANDERS, Chief Justice.

text:
    CITY OF NEW ORLEANS v. Glendora HOLLIS.
    No. 57132.
    Supreme Court of Louisiana.
    March 29, 1976.

      Anthony R. Frey, III, Frey & Wheela-han, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Philip S. Brooks, City Atty., Robert H. Belknap, Asst. City Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

On May 23, 1975, Glendora Hollis was arrested and charged by affidavit with “loitering with intent to commit a lewd or indecent act” under City of New Orleans Municipal Ordinance 828, Section 42-62, Paragraph 3.

On July 24, 1975, defendant was tried in Municipal Court for the City of New Orleans. The trial judge rendered the following judgment:

“I find the defendant, Glendora Hollis, guilty of violating Ordinance 828 MCS, Section 42-62, paragraph 3, loitering with the intent to commit a lewd and indecent act and sentence her to serve 90 days in the House of Detention, double time not permitted.”

Defendant appealed to the Criminal District Court for the Parish of Orleans. Her conviction and sentence were affirmed.

Defendant then applied for writs of cer-tiorari or review to this Court. We granted writs to review her conviction and sentence. La., 323 So.2d 139 (1975).

Defendant relies upon four assignments of error. Finding merit in her contention that the charge is legally insufficient, we do not reach the other issues.

These are the facts upon which the defendant’s arrest is based: On May 23, 1975, two New Orleans policemen observed defendant, a twenty-three year old woman, in the 200 block of Bourbon Street, at approximately 1:10 o’clock in the morning. The officers observed her for approximately one hour. During that time, she approached several men, placed her arm around them, and attempted to engage them in conversation. The policemen arrested the defendant and charged her with “loitering with intent to commit a lewd or indecent act.”

New Orleans Municipal Ordinance 828 M.C.S. 42-62(3) provides:

“The following persons are deemed to be vagrants in the city.
* ‡ 5}s % s|i if;
“(3) One who loiters in or near any thoroughfare or public or private place for the purpose of inducing, enticing or procuring another to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act

Because of the variance between the affidavit and the ordinance under which she is charged, defendant contends that her charge was legally insufficient. Although defendant was charged under 828 M.C.S. 42-62(3), she was not charged with loitering with the intent to induce another to commit a lewd or indecent act. Instead, she was charged with loitering with the intent to commit a lewd or indecent act, conduct not criminalized by the ordinance.

Louisiana Code of Criminal Procedure Article 464, dealing with the nature and content of indictments, provides in pertinent part:

“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

While it is unnecessary to track the language of the ordinance, the affidavit must charge the conduct proscribed by the ordinance. In State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970), this Court overturned a conviction for indecent exposure where the bill of information omitted an allegation that the act was committed with the requisite “intent of arousing sexual desire,” stating:

“Basic law in our state and throughout this nation requires that the facts which constitute each and every essential element of the crime charged must be set forth with certainty, clarity, particularity, and precision, so as to inform the accused of the nature and cause of the accusation.”

Since the ordinance is penal in nature, it cannot be extended by analogy so as to create crimes not provided for therein. See State v. Heymann, 256 La. 18, 235 So.2d 78 (1970); State v. Adams, 210 La. 782, 28 So.2d 269 (1946).

We conclude that, because of the omission of an essential element, the affidavit fails to charge the offense defined in Paragraph 3 of the ordinance. Hence, the affidavit must be quashed.

For the reasons assigned, the affidavit is quashed, the conviction and sentence are annulled and set aside, and the defendant is discharged.

“ ‘Indictment’ includes affidavit and information, unless it is the clear intent to restrict that word to. the finding of a grand jury.”

      . Code of Criminal Procedure Article 461 provides in pertinent part:


text:
    STATE of Louisiana v. Larry WILEY.
    No. 57879.
    Supreme Court of Louisiana.
    April 14, 1976.
   In re William J. Guste, Jr., Attorney General and Harry F. Connick, District. Attorney, applying for writs of Mandamus, Cer-tiorari, Prohibition and for Stay Order.

Writ refused. We find no error in the ruling of the trial judge.

SUMMERS, J., is of the opinion that the writ should be granted.


text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 57847.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: Louisiana Public Service Commission, applying for writ of review/cer-tiorari.

Granted. Assigned for last case on next docket (May) (See Order Attached).

SANDERS, Chief Justice.

The petition of the relator _ in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Julian E. Bailes Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 30th day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator— herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of May, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

EXECUTION OF THE JUDGMENT OF THE DISTRICT COURT IS STAYED, WITHOUT PREJUDICE TO THE RIGHT OF THE LOUISIANA PUBLIC SERVICE COMMISSION TO PROCEED WITH THE RATE CASE NOW PENDING BEFORE IT.

SUMMERS, J., dissents from the granting of the stay order.


text:
    STATE of Louisiana v. Lloyd Henry RICKS.
    No. 57153.
    Supreme Court of Louisiana.
    March 29, 1976.
    Stephen E. Everett, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On July 22, 1975, after trial by jury, defendant Lloyd Henry Ricks was found guilty of simple burglary in violation of La.R.S. 14:62. Prior to sentencing on this simple burglary conviction, the district attorney filed a bill of information pursuant to La.R.S. 15:529.1 charging defendant as a multiple offender. Upon defendant’s admission of the charges included in this multiple bill, the trial court sentenced him to fifteen years at hard labor.

At the outset, we note that while defendant was sentenced on August 12, 1975, defense counsel did not move for appeal until September 3, 1975. Since the record does not reveal a motion for appeal filed within the fifteen day period from rendition of judgment as required by Louisiana Code of Criminal Procedure article 914, it is within our authority to dismiss the appeal as untimely. Furthermore, there is some question as to the timeliness of the filing of the assignments of error. However, defense counsel in this case was appointed by the court. Since at some future date defendant could possibly come before this Court by means of an application for habeas corpus and probably se.cure an out of time appeal, based on the failure of court appointed counsel to preserve his right to appeal, we deem it preferable to entertain the appeal at this time.

Defendant assigns as error the overruling by the trial court of defense counsel’s objection entered at the multiple offender proceeding. The essence of defendant’s argument is that the state should be required to charge an accused under the multiple offender statute, La.R.S. 15:529.1, in the same bill of indictment or bill of information charging him with the latest substantive offense. He contends that failure to so include the multiple offender charge deprives him and the jury of- critical information as to the nature of the charges against him. We find this assignment of error to be without merit.

La.R.S. 15:529.1 provides that “after conviction or sentence” (emphasis added) on the substantive charge, the district attorney may file a bill of information alleging that the defendant is a multiple offender and setting forth his previous convictions. This statute does not make it a crime to be a multiple offender, but rather provides for an enhancement of penalty against a multiple offender, for the substantive crime of which he has just been convicted. State v. Davalie, 313 So.2d 587 (La.1975); State v. Jackson, 298 So.2d 777 (La.1974); State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). The prior felony or felonies for which the defendant was previously convicted form no element of the most recently committed offense. See State v. Bouzigard, 286 So.2d 633, 636 (La. 1973). As provided in Louisiana Code of Criminal Procedure article 483, a bill of indictment or information “shall not contain an allegation of a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.” Additionally, in a case involving an earlier version of the multiple offender statute, this Court held that it was reversible error to inform the jury of previous convictions in the bill of information charging the defendant with the latest substantive offense because such a procedure resulted in prejudice to the defendant and put his character at issue without his having taken the stand on his own behalf. State v. Jones, 209 La. 394, 24 So.2d 627 (1945).

Based on the fact that procedure set forth in La.R.S. 15:529.1 specifically instructs the state to file the multiple offender bill of information after conviction or sentence and that prior convictions are not elements of the latest substantive offense, we conclude it was not error, but rather the appropriate procedure, for the district attorney to wait until after conviction before filing the multiple offender bill of information against defendant. Although defendant apparently thought that it would be to his advantage to have the jury informed that if convicted on this charge he faced an enhanced penalty as a multiple offender, we find no legal support for his request.

It should be noted that La.R.S. 15:529.1 is distinguishable from other provisions of Louisiana law which provide for enhanced penalties for “repeat” offenders. See La. R.S. 14:67 Theft, La.R.S. 14:98 Operating a Vehicle While Intoxicated,'La.R.S. 14:99 Reckless Operation of A Vehicle, and La. R.S. 40:966 Possession of Marijuana. These statutes do not specify that the district attorney wait until after a defendant has been convicted of the present offense before informing him that lie is to be sentenced as a repeat offender. Therefore, we have held that in order to be convicted as a repeat offender, and thereafter sentenced accordingly, the prior convictions must be appropriately alleged in the initial bill of information. State v. Bouzigard, 286 So.2d 633 (La.1973); State v. Montgomery, 250 La. 326, 195 So.2d 285 (1967). See La.Code of Criminal Procedure Art. 483, including official revision comment (a). In contrast to these repeat offender statutes which provide for an enhanced penalty because the accused has committed the same offense more than once, the multiple offender statute involves enhancement of penalty because of prior, possibly unrelated, felony convictions. Furthermore, as previously noted, La.R.S. 15:529.1 specifically provides that the multiple offender bill of information be filed after conviction or sentence.

For the reasons assigned, the conviction and sentence are affirmed.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

Article 914 of the Code of Criminal Procedure provides that a motion for an appeal, whether oral or written, “must be made no later than fifteen days after rendition of the judgment or ruling from which the appeal is taken.” Hence, the appeal herein was not timely filed and should be dismissed. The proper remedy for defendant is to seek habeas relief in the district court for a determination as to whether defendant waived his right of appeal. Accordingly, I respectfully concur.

      . Defendant was charged as a second offender. Under the provisions of La.R.S. 15 ¡529.1A (1), defendant could be sentenced to a “determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.” Since the penalty provided in La. R.S. 14:62 for simple burglary is “not more than nine years,” the sentence imposed is within the limits.


text:
    STATE of Louisiana v. Wayne MIMS, Jr.
    No. 57128.
    Supreme Court of Louisiana.
    March 29, 1976.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Joseph A. Mengacci, Student Practitioner, Loyola Law School Clinic, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, James W. Brodtmann, Asst. Dist. Attys., for plaintiff-relator.
   DENNIS, Justice.

Defendant, Wayne Mims, Jr., was charged by bill of information with receiving stolen things, a violation of La.R.S. 14:-69. Trial was initially set for August 7, 1975. Defendant requested a two week continuance by proper written motion which was granted. Subsequently, upon joint motion of the State and defendant, a second continuance was granted until October 9, 1975. On this date, defendant failed to appear and an alias capias was issued. Defendant was apprehended and trial was reset for November 13, 1975.

At approximately 8:30 A.M. on the morning of November 13, the assistant district attorney assigned to this case and the trial judge met to discuss the day’s docket. The district attorney requested the court’s permission to try two cases on that day, the instant case and another. He gave the court firm assurances that the State was ready for trial in both cases and that all the State’s witnesses were available. The judge gave his assent, provided that the first trial would be conducted expeditiously.

Court convened promptly at 9:00 A.M. and the district attorney called the case of State of Louisiana v. Wayne Mims, Jr. for trial. There was some confusion as to who was to represent defendant, and while this matter was being resolved the court diverted its attention to a motion to suppress in another case. The hearing was concluded in approximately one-half hour and the court returned to the instant case. Defendant, now represented by counsel, announced his readiness to proceed and waived his right to a trial by jury. The State’s witnesses were then called, and it was discovered that two crucial witnesses were absent. The district attorney informed the court that he would be unable to proceed without them. Nevertheless, the trial judge ordered him to proceed, and twice requested that he put on his available witnesses. Long pauses intervened, during which the district attorney neither responded to the judge’s demands nor suggested an alternative route. Finally, the State requested a brief recess which was denied, and the court adjudged defendant not guilty of the crime charged. On application by the State, this Court granted writs in order to review the trial court’s ruling. We find that the trial judge had no authority to enter a verdict of not guilty under the circumstances presented here and remand the case for further proceedings consistent with this opinion.

In some extraordinary instances a defendant may be acquitted without having actually been tried. For example, the law requires a final dismissal where the defendant’s right to a speedy trial has been abridged, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 27 L.Ed.2d 56 (1973), or where trial has not been commenced within the statutory time limitations, La.C.Cr.P. art. 581.

A verdict of not guilty, on the other hand, presupposes a trial in which the facts have been put at issue and determined in the defendant’s favor. La.Code of Criminal Procedure authorizes the court in a bench trial to enter a judgment of acquittal on its own motion after the close of the State’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction, La.C.Cr.P. art. 778, as amended by Act 527, 1975. The article recognizes the fact that where the State’s case is obviously deficient, to complete the trial would merely subject the defendant to unnecessary hardship and waste judicial resources. However, to render a verdict of not guilty at any time prior to the. close of the State’s evidence is to act prematurely and therefore arbitrarily.

In the instant case, trial had not yet commenced when the court ruled that defendant was not guilty. A trial by judge commences when the first witness is sworn. La.C.Cr.P. art. 761. Here, the district attorney had proceeded no further than to call the case for trial, and at this stage of the proceedings the court’s action was clearly inappropriate. This is not to suggest, however, that the trial judge was powerless to act in the face of the State’s stubborn resistance to his demands. Some action was required to break the stalemate; but we find that there were other alternatives available and that the facts warranted a less radical solution.

Where the law is silent, it is within the inherent authority of the court to fashion a remedy which will promote the orderly and expeditious administration of justice. La.C.Cr.P. art. 17; State v. Edwards, 287 So.2d 518 (La.1973). The court was not required to hold its business in abeyance on the chance that the missing witnesses would appear without further delay while two cases remained on the trial docket wherein the witnesses were available for trial. The court could have: ordered a continuance on its own motion; cited the recalcitrant assistant district attorney for contempt; or 'dismissed the .prosecution without prejudice. We reach no conclusion as to the relative merits of these solutions, but find that any of them would have been preferable over the course of action chosen by the trial judge.

Further proceedings in this case will not impinge upon the guarantee against double jeopardy, because jeopardy has never attached. La.Code of Criminal Procedure article 592 provides in pertinent part: “When a defendant pleads not guilty, jeopardy begins when the first witness is sworn at the trial on the merits. * * * ” No witness was sworn here; the trial was never begun. The fact that defendant was acquitted without having ever been subjected to jeopardy serves only to emphasize the impropriety of the trial judge’s action rather than to foreclose its correction.

For the reasons stated above, the decision of the trial court is reversed and the case is remanded.

SANDERS, C. J., concurs in the decree.