author: BOOKOUT, Judge. BOOKOUT, Judge.

text:
    Olynn Kenneth BURNETT, Jr. v. STATE.
    6 Div. 272.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    After Remandment March 7, 1978.

      Walter Joe James for James & Lowe, Haleyville, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

On January 11, 1976, a Winston County Deputy Sheriff, Dennis Rowe, was shot to death while acting in the line of duty. Officer Chuck Thompson, the slain officer’s partner, and Wendell Selvidge, an apparent bootlegging partner of the appellant, were eyewitnesses to the shooting. They testified that the appellant shot Officer Rowe without warning while Rowe had his hands in his pockets. The appellant took the stand in his own defense and claimed that someone standing behind him fired the shot that killed Rowe. Suffice it to say that the State put on sufficient evidence from which a jury might have found the appellant guilty. Morton v. State, Ala.Cr.App., 338 So.2d 423, cert. denied Ala., 338 So.2d 428 (1976).

The trial began on May 17, 1976, and ended May 20, 1976. The jurors were allowed to go to their respective homes on. the nights of May 17, 18 and 19. The jury was also allowed to separate during recesses of the trial. The trial court’s action in allowing the jury to separate was taken over the timely and proper objections of the appellant.

The rule of law concerning jury separation is set out in Christison v. State, 39 Ala.App. 175, 96 So.2d 701 (1957), as follows:

“The settled rule in this State is that the separation of the jury pending trial for felony cases creates, prima facie, a cause for reversible error. When the fact of the separation is established the burden is on the State to affirmatively show that no injury resulted to defendant from the separation. . ...” (Citations omitted.)

On May 20, 1976, the appellant was convicted and- gave notice of appeal. The appellant did not move for a new trial. In October 1976, approximately five months after the appellant’s conviction, the trial court, sua sponte, ordered a hearing on the jury separation question. At the hearing, the trial court determined that no injury resulted to the appellant from the jury separations. The appellant objected at all appropriate times to the holding of the hearing contending the trial court had no jurisdiction over the appellant’s case at that time.

It is elementary that the trial court erred by allowing the jury to separate without the appellant’s consent. Christison, supra. We have not been cited nor have we found any authority for the hearing held by the trial court in October 1976. The trial court had no jurisdiction to hold such a hearing.

In Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 205 So.2d 222 (1967), the Alabama Supreme Court stated the law in this regard very clearly:

“§ 119, Title 13, Code 1940, provides that after the lapse of thirty days' from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial, has been filed and called to the attention of the court and an order entered continuing the motion for hearing to a future day. . . . ”

No motion for a new trial having been filed, the trial judge had lost all jurisdiction over the case on the date he attempted to correct the previous error. Also see: Title 7, § 252, Code of Alabama 1940; Title 15, § 382, Code of Alabama 1940; Biggs v. State, 46 Ala.App. 585, 246 So.2d 472 (1971); Rule 4(b), A.R.A.P. Jury separation is not a subject covered by Rule 45, A.R.A.P., which deals with error without injury. Payne v. State, 226 Ala. 69, 145 So. 650 (1933); Schofield v. State, 45 Ala.App. 191, 227 So.2d 822 (1969), cert. denied 285 Ala. 756, 229 So.2d 26; Lee v. State, 47 Ala.App. 548, 258 So.2d 743 (1972).

While a motion for a new trial is one proper procedure to raise the question of improper jury separation, it is not the exclusive procedure. The adverse ruling of the trial judge to appellant’s objection to separation is sufficient to preserve error for review on appeal. Title 15, § 389, Code of Alabama 1940.

There is hardly a more serious crime than the murder of a law enforcement officer acting in the line of duty. However, under our system of justice, where one is presumed innocent until proven guilty, even one accused of the murder of a police officer is entitled to a fair trial. Essential to the right to a fair trial is an impartial and unprejudiced jury. In a felony case, the accused’s right to an impartial and unprejudiced jury is strengthened by the requirement that the accused must consent to any separation of the jury during trial.

Occasionally it is helpful to quote at length from another case where the philosophy of the law on a subject is well expressed. In Mitchell v. State, 244 Ala. 503, 14 So.2d 132 (1943) the Alabama Supreme Court (Bouldin, J.) stated:

“Pending a trial for a capital felony, the jury should be kept together. During recesses of the court they should be under the care of a sworn officer. If held overnight, provision should be made in advance for their lodging and meals. They .should not be permitted to separate, each going his own way, and choosing his own contacts. There rules are part of the law of criminal procedure sanctioned by the wisdom and experience of ages; safeguards against the hazards of outside contacts, which may, with no fault of the juror, so enter into his thinking as to influence his verdict unawares.
“We cannot concur in any notion that we live in an enlightened age where human nature has changed, or a higher standard of conduct warrants an abandonment of safeguards written into the law because they are hoary with age.
“In fact, the opportunities for contacts, as well as the means of molding public opinion on mere rumor and propaganda, are enhanced. The passion and ill-feeling among relatives and friends growing out of homicides, rapes, etc., are all here. This is not an age free from guile. Better stay by the ancient landmarks.
“In passing upon the guilt or innocence of a citizen on trial for an offense involving his life of liberty, the juror is faced with a responsibility than which there is no greater among men. Charged with the finding of facts and the application of the law as given in charge by the court, any diversion which would tend to becloud his recollection of the testimony is to be avoided, so far as reasonable and practical.
“Keeping the jurors together accentuates their sense of responsibility. Moreover, keeping them free from contacts which may be harmful makes for public confidence in the administration of justice, a matter not lightly to be regarded at any time.”

The reason for such a rule is even more apparent in a case of this nature, tried in a small community in a volatile atmosphere and accompanied by much publicity. Here the possibility of outside influence on the jury would have been substantial. However, had the trial court held its hearing on the effect of the jury separation before it had lost jurisdiction over the case, we could have considered that testimony. Because the action of the trial court came too late, it was a nullity and the testimony taken and decision rendered thereon cannot be considered as a part of the record on this appeal. Title 13, § 119, supra.

There is an alternative to reversing for a full new trial as the issue is whether or not the jurors were actually subjected to any improper influence during the periods when they separated. By remanding with directions to hold another such hearing, we may reinvest the trial court with jurisdiction to make a valid determination of this issue without the necessity of a retrial of the issue of guilt or innocence. Such a decision on our part may appear to be peculiar in that we would be requiring the trial court to do again that which it had already done, because procedurally we could not take cognizance of its prior hearing. However, it should be noted that the appellant’s attorney took no part in the other hearing, rightfully contending that it was a nullity. In conferring proper legal authority on the trial court to again inquire into this matter, the appellant and his counsel would be afforded full opportunity to present evidence and cross-examine witnesses.

Based upon the authority of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1963); Gutierrez v. State, Ala.Cr.App., 355 So.2d 1160 (1977); Baldwin v. State, Ala.Cr.App., 342 So.2d 940 (1977); and Buttram v. State, 57 Ala.App. 422, 329 So.2d 111, affirmed 57 Ala.App. 425, 329 So.2d 114, cert. denied 295 Ala. 394, 329 So.2d 116, we determine that the instant cause is to be remanded with directions for the trial court to hold an evidentiary hearing on the issue of whether or not any juror was subjected in any manner to outside influence prejudicial to the appellant. A transcript of the testimony of such hearing along with the ruling of the trial court thereon shall be filed with this Court in answer to the remandment for our further consideration.

REMANDED WITH DIRECTIONS.

All the Judges concur, except HARRIS, J., concurs in the result only.

After Remandment

BOOKOUT, Judge.

Due to an impermissible separation of the jury, this court originally remanded this case to the circuit court with directions, “to hold an evidentiary hearing on the issue of whether or not any juror was subjected in any manner to outside influence prejudicial to the appellant.”

In accordance with our directions on remandment, the trial court has filed a certified copy of the transcript of such hearing and its order finding that, “no prejudicial error or injury resulted from the jury being separated during the trial of the case.” We have carefully reviewed the testimony of each and every juror and find the ruling of the trial court to be correct.

On the issue of pretrial publicity, our opinion in Burnett v. State, Ala.Cr.App., 350 So.2d 718 (1977), by Simmons, Retired Circuit Judge, fully covers the issue, and our review of the instant record leads us to the same conclusion reached there.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Melvin HOWARD v. STATE.
    6 Div. 645.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    After Remandment March 7, 1978.
    Richard Jordan, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of burglary in the first degree and the jury fixed his punishment at thirteen years and three months in the penitentiary. He was represented by court-appointed counsel and at arraignment he pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The sufficiency of the evidence is not presented to this Court for review. There was no request for the affirmative charge; there was no motion filed for a new trial; there were no exceptions reserved to the oral charge of the Court, and there were no adverse rulings containing any merit.

At the close of the State’s case appellant moved to exclude the evidence without specifying any grounds. In Turner v. State, 266 Ala. 250, 96 So.2d 303, the Supreme Court held that the trial court will not be put in error in overruling a motion to exclude where the motion is made without setting out the grounds therefor.

Mr. Joe Hayes, who lives at McDonald’s Chapel, Alabama, testified that on the night of May 25, 1977, he went to bed as usual and that something woke him up later that night. He got out of bed and took a flashlight that his wife handed him. He went in the front room and saw a boy standing there, whom he identified as the appellant. Mr. Hayes said that his wife held the flashlight on the appellant and that he struck the appellant with his fist. The appellant then fled. Mr. Hayes said that he knew the appellant and that he lived in the neighborhood.

On cross-examination, Mr. Hayes said that the appellant had been in his house many times, and that he had never stolen anything before. Mr. Hayes testified that the appellant grabbed him and that is when he hit the appellant.

Mrs. Hayes testified that she and her husband have lived at McDonald’s Chapel, Alabama for approximately fifty years. She said she was eighty-one years old. She said that on the night in question she and her husband had gone to bed and that she woke up about 4 o’clock in the morning because she heard a noise. She called her husband to get up. She held the flashlight on the intruder. Mrs. Hayes identified the appellant as the person whom she saw in her house. She said he lived in the neighborhood and she saw him every day.

Mrs. Hayes said that the glass panes had been removed from the living room window. She said they were not out when she went to bed that night.

On cross-examination, Mrs. Hayes testified that she knew the appellant well. She said he did not have a chance to steal anything because she grabbed him.

Sergeant Harold M. Johnson, a detective with the Jefferson County Sheriff’s Department, testified that he went to the residence of Joe Hayes one morning in May of 1977 at about 9:00 a. m. He said that several window panes had been removed from one of the windows in the house.

Sergeant Johnson said he talked with Mr. and Mrs. Hayes and they gave him the name of someone they identified as the man in their house. Sergeant Johnson said he then brought a group of five photographs to the Hayes’ home. He showed each of them the photographs separately, and each of them picked the photograph of Melvin Howard as the person who broke into their house.

Appellant testified that he lived about a block from the Hayeses and that he had known them about fourteen years. Appellant is seventeen years old. He said he had been inside the Hayes’ house about five or six times and that he passed by quite often and spoke to them. He said he had never stolen anything from them.

On cross-examination, the appellant said that when he was arrested he told the police that he was at home with his family at the time the break-in occurred.

Sergeant Johnson testified in rebuttal that he had a conversation with the appellant shortly after his arrest and that the appellant told him that he did not know anything about the break-in and that he did not remember where he was or what he was doing on the night in question.

The State made out a clear cut case of burglary in the first degree and the evidence fully supported the verdict.

To constitute burglary it is not necessary that a theft be committed. Haynes v. State, 49 Ala.App. 16, 268 So.2d 47; Waid v. State, 39 Ala.App. 255, 97 So.2d 598.

In our review of the record we find that appellant was seventeen years of age at the time of his trial. The record fails to reveal, either before or during the trial, that appellant was ever apprised of the fact that he might be considered for treatment as a Youthful Offender under the provisions of Title 15, Section 266(1), et seq., Code of Alabama 1940, 15-19-1 Code of 1975.

Under Clemmons v. State, 294 Ala. 746, 321 So.2d 238, we must remand this case for such determination.

The trial court is further instructed that the hearing be held speedily, and that a full record be made together with the Court’s determination. A transcript of these proceedings, under the seal of the Clerk, must then be forwarded to this Court for review.

Remanded with Directions.

All the Judges concur.

After Remandment.

This case was remanded to the Circuit Court of Jefferson County, Bessemer Division, so that appellant could be advised of his rights under the Youthful Offender Act.

In strict compliance with our directive the trial court set the case for a hearing at which appellant and counsel were present. The Court advised appellant, age 17, of his rights under the Youthful Offender Act and he indicated that he wished to make application for Youthful Offender treatment.

It developed at this hearing that appellant had pleaded guilty to the offense of assault with intent to murder subsequent to his conviction of burglary in the first degree, and that the sentence in the latter case was to run concurrent with the sentence he received in the present case.

The Court thereupon denied appellant Youthful Offender treatment and we now affirm his conviction of burglary in the first degree for which he was sentenced to thirteen years and three months in the penitentiary.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ralph D. TUCKER v. STATE.
    6 Div. 624.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.
    J. Wilson Dinsmore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of buying, receiving, concealing or aiding in concealing a Lincoln Mark IV automobile of the value of seven thousand three hundred dollars, in violation of Code of Alabama, Recomp.1958, T. 14, § 338. The court fixed his punishment and sentenced defendant to imprisonment in the penitentiary for one year and one day, the minimum prescribed by T. 14, § 331.

Clifford W. Lynch testified that he was the owner of the automobile and that it was stolen on January 28, 1976. On February 22, 1976, he saw the automobile on the south side of Birmingham; he identified the car from burnt marks, a nick on the chrome trim and from the fact that the dealer’s emblem on the automobile was loose, as it was when it was stolen. Mr. Lynch promptly reported to the police the theft of the automobile and promptly reported to them his location thereafter of the automobile. On the same day he went with Officer Cooley of the Mountain Brook Police Department to the place where the automobile was seen, and saw defendant at the house where the automobile was located.

Officer Cooley testified that he went to the house of defendant on February 22, 1976, that defendant was in his house when he first saw him, that he came outside to talk with the witness, and that he had keys that fit the automobile. He also had what purported to be a bill of sale to the automobile with the name of Clifford W. Lynch affixed to it. The purported bill of sale was dated January 29,1976, and indicated a sale price of four thousand two hundred dollars. The evidence is undisputed that the affixation of Mr. Lynch’s name to the document was a forgery.

The testimony of Mr. Lynch and Officer Cooley and the purported bill of sale constituted all of the evidence in the case. After the State rested, the defendant rested without presenting any testimony.

Appellant’s prime contention is that the trial court committed error in overruling objection to a question by the State addressed to Officer Cooley as to the serial number, or identification number, of the automobile. Appellant asserts that such evidence was hearsay upon the part of the witness and for that reason was inadmissible. He relies largely upon Berry v. State, 46 Ala.App. 308, 241 So.2d 336 (1970), in which it was held that in a prosecution for a motorist’s leaving the scene of an automobile accident without giving his name, etc., the testimony of an officer as to what was told him by a witness of the accident as to the tag number of the automobile was inadmissible hearsay.

The particular ruling now complained of is in the record as follows:

“Q Officer Cooley, did you have occasion to investigate a case in which a Lincoln was stolen some time back in January 28, 1976?
“A I didn’t investigate the theft.
“Q Did you make an arrest in that instant?
“A Yes, sir, I did.
“Q And do you have some police records with you?
“A Yes.
“Q What was the date the car was stolen?
“A 1/28/76.
“Q And do you have the serial number of that vehicle?
“A Yes, I do.
“Q What is the serial number or the VIN, vehicle identification number?
“MR. DINSMORE: I object to that as being hearsay unless he read it off the car itself.
“THE COURT: Overruled.
“MR. DINSMORE: We except.
“THE WITNESS: Go ahead?
“THE COURT: Yes, sir.
“A 4YL89A844689.
“Q Now, does each vehicle have a different number to it?
“A Yes, sir.”

Thereafter, the witness testified as to his going to the residence of defendant on February 22, 1976, as follows:

“Q Was that a residence?
“A Yes, sir.
“Q Was that residence located in Jefferson County, Alabama?
“A That is correct.
“Q Did you see a vehicle in the driveway there?
“A Yes, I did.
“Q And could you describe that vehicle? “A Yeah, it was a blue Continental Mark IV.
“Q And did you check the serial number on it?
“A Yes, sir.
“Q Did it match the serial number reported stolen earlier by Mr. Lynch?
“A Yes, sir.”

On cross-examination, the witness testified:

“Q Did you personally look at the vehicle identification number of that car that you saw at Hanover Circle?
“A Yes, sir.
“Q Did you write it down?
“A Yes, sir.
.“Q Is it on your report?
“A Yes, sir. It’s on the report.
“Q Will you show it to me, sir?
“A (Indicating)
“Q This is in your own handwriting? “A Yes, sir.
“Q Was this report in your own handwriting?
“A Yes, sir.
“MR. DINSMORE: That’s all I have.”

Mr. Lynch testified that he did not have in mind the identification number of the automobile, but at the time he reported the theft to the police he gave them the identification number, which he had obtained either from his insurance policy or from the insurance agent.

The context preceding the question addressed by State’s counsel to Officer Cooley, as to the serial number, or identification number, of the automobile indicates that the question was referable to the number as of the time of the theft, January 28, 1976. However, defendant’s objection to the question “as being hearsay unless he read it off the car itself” indicates that the objector considered the question as referable to the number on the automobile the day it was first observed by Officer Cooley, which according to the undisputed evidence was January 28, 1976. The record shows that Officer Cooley personally looked at the identification number of the automobile at that time and wrote it down in his report, and thus satisfied the condition stated by the defendant’s counsel for the admission of the evidence without objection. Furthermore, the record shows, as indicated by the portions thereof quoted above, that defendant did not object to evidence by the witness as to the serial number of the automobile reported by Mr. Lynch soon after the theft.

It is difficult to understand just what was meant by the particular objection, or how it was interpreted by the trial court. We realize that at times in a trial a party will make a conditional objection to purported testimony, that there will be an understanding among all concerned that the evidence will be conditionally admitted subject to its being excluded if the condition is not met, or that it will be conditionally rejected until the condition is met, and that in accordance with such an understanding each party is protected, or can protect himself, as to his position on the matter. Even so, in the absence of a clear showing that the objector was in effect requesting, or had the right under the circumstances to expect, the trial court to shepherd the parties through the future course of evidence along the particular line, which showing does not appear here, the trial court should not be put in error for overruling that which is not an unequivocal objection.

“When a party objects to a question, unless other facts are shown, this is but a conditional objection, and for overruling it the trial court cannot be put in error.” Cooper v. Slaughter, 175 Ala. 211, 217, 57 So. 477, 479 (1912)

The circumstances here permit the application of the quoted principle. We find no error in the particular ruling of the court.

There was ample evidence to support the verdict of the jury. From the possession of recently stolen property, the jury can infer the criminal state of mind requisite to the offense of buying, receiving, or aiding in concealing stolen property, in the absence of a reasonably satisfactory explanation of the possession inconsistent with the inference. Hunt v. State, Ala.Cr.App., 331 So.2d 834 (1976); Vines v. State, 57 Ala.App. 117, 326 So.2d 307 (1976); Character v. State, 51 Ala.App. 589, 287 So.2d 916, cert. denied 291 Ala. 775, 287 So.2d 919 (1973); Rhone v. State, 53 Ala. App. 338, 299 So.2d 781 (1974).

Defendant’s only explanation of his continuous possession of an automobile for about a month after it had been unquestionably stolen was to the effect that it had been sold to him by the purported owner as evidenced by a bill of sale that was unquestionably a forgery. This explanation, though conceivably true, has its obvious weakness. Its reasonableness vel non presented a question of fact to be determined by the jury.

The record discloses no error prejudicial to defendant, and the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a Judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Sandra Vinson KING v. STATE.
    7 Div. 554.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Betty C. Love, of Love, Love, Lawrence & Burton, Talladega, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for first degree murder. A jury found her guilty of manslaughter in the first degree and fixed her punishment at seven years’ imprisonment. At trial and on appeal the appellant is represented by retained counsel.

Under the state’s evidence the appellant killed Henry Patterson with a shotgun on Sunday morning, December 5, 1976. The homicide occurred at the home of the appellant and Patterson was found lying within a few feet of the front porch. Though no weapon was found on or near Patterson, a brick was found under the front porch.

In response to the state’s evidence a strong case of self-defense was presented. The appellant had been dating Patterson for the past six to nine months prior to the shooting. Testimony for the defense revealed that Patterson had beaten the appellant on at least three occasions during this time, including earlier on the night of his death. Approximately one month before the homicide, the father of the appellant had shot Patterson in the leg because he was beating on the appellant and her pregnant sister and attempting to take some of their clothes. The appellant testified that, shortly after she was brought home around 2:00 A.M. after a date with Patterson, he returned to her home in an intoxicated condition and demanded to be allowed to enter her house. He threatened to throw a brick through the window over the bed where the appellant and her seven year old son were sleeping and threatened to kill them. The appellant stated that she shot Patterson as he was climbing on her porch with some unidentifiable object in his hand. The defense also presented testimony to show that Patterson had a reputation for “beating on women” and for being a “knife toter”.

The evidence of self-defense, though extensive, presented a question for the jury. Chunn v. State, Ala.Cr.App., 339 So.2d 1100 (1976).

I

Initially, the appellant argues that it was error for the trial court to admit into evidence a tape recording of a statement given by the appellant because the recording did not contain the entire in-custody interview between the interrogating officer and the appellant. It is argued that, because the recording did not contain certain exculpatory statements made by the appellant to the officer before the statement was recorded, the entire statement is inadmissible. The exculpatory statements relate to the facts that the appellant allegedly told the officer in the pre-recording interview that Patterson was standing on the porch when she shot him instead of in the yard as the recording reveals, and that Patterson had beaten her on several occasions including earlier that night.

A confession is not rendered involuntary because it is not verbatim as related by the accused and is admissible if its transcription is substantially as related and affirmed by the accused. Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); Blackburn v. State, 38 Ala.App. 143, 88 So.2d 199, cert. denied, 264 Ala. 694, 88 So.2d 205, vacated on other grounds, 354 U.S. 393, 77 S.Ct. 1098, 1 L.Ed.2d 1423 (1956).

If a part of a conversation is adduced in evidence by the state as proving the defendant’s declarations or confessions of guilt, the defendant has the right to call for the whole of what was said in that conversation relative to the subject matter of the issue. Chambers v. State, 26 Ala. 59 (1855); William v. State, 39 Ala. 532 (1865); Mullis v. State, 258 Ala. 309, 62 So.2d 451 (1953). The accused is entitled, on cross examination, to bring out all that he said, at the same time and on the same subject. Parke v. State, 48 Ala. 266 (1872).

However, the rule which frowns upon incomplete confessions is designed to cover cases where an accused, after admitting commission of the criminal act, is prevented from going further and saying anything which might explain or justify his act. William, supra; United States v. Wenzel, 311 F.2d 164 (2nd Cir. 1962); see generally 29 Am.Jr.2d 586, Evidence, § 535. No such situation exists in this case for the appellant was permitted to examine the officer as to the remainder of the confession which contained exculpatory statements concerning the shooting. See Westbrook v. State, Tex.Cr.App., 522 S.W.2d 912 (1975).

We know of no rule which would require a written or recorded confession or statement to contain the entire conversation between the accused and the person to whom the confession was made. State v. Sheffield, 232 La. 53, 93 So.2d 691 (1957); State v. Lantzer, 55 Wyo. 230, 99 P.2d 73 (1940). A confession should be considered in its entirety. If the state introduced into evidence only a portion of an alleged confession, a defendant is entitled to introduce the remainder of what was said to and by him, including any exculpatory statements which would bear upon the matter in controversy. Furthermore, where an accused has been interrupted or otherwise prevented from completing his confession, that confession is not admissible in evidence. State v. Kearns, 25 N.C.App. 445, 213 S.E.2d 358 (1975).

These rules were not violated in this case. The appellant was permitted to prove the entire conversation and every exculpatory remark made by her at that time both in the cross examination of the state’s witnesses and in her own testimony. For these reasons the admission of the confession was not error. McCray v. State, 37 Ala.App. 661, 74 So.2d 487, reversed on other grounds, 261 Ala. 275, 74 So.2d 491 (1954), provides ample precedent for our decision.

II

The appellant correctly asserts that the prosecution may not take the initiative, in its case in chief, to introduce any kind of evidence as to the accused’s evil character, disposition, or reputation in order to establish probability of guilt. Gamble, McElroy’s Alabama Evidence, 3rd ed., p. 48, § 27.02(1). However in the case under review, the witness only testified that she knew the general reputation of the appellant in the community. There was no testimony of the general bad character of the appellant and the witness was not even asked this specific question.

Moreover, the trial judge indicated that the jury did not understand this matter and ascertained from each juror that they could put the matter “completely our of their mind and not consider this in any way in reaching a verdict”. Because the prosecutor did not attempt to elicit any response from the witness regarding the bad general reputation of the appellant and because of the curative action of the trial judge, we find no cause for error.

III

After the appellant testified, an officer of the Sylacauga Police Department was recalled for cross examination by defense counsel when the following occurred:

“Q. Let me ask you this, do you know or think that you know this ladies, the Defendant’s reputation in which she lived prior to this alleged homicide on the fourth day or fifth day of December, 1976?
“MRS. LOVE: I object to that your Honor.
“Q. Do you know her general reputation prior to this—(interrupted)
“A. I had arrested her.
“Q. Alright.
“MRS. LOVE: I object to that. We have not placed her reputation in issue. That is not proper response to that question but is relating a specific event which is objectionable and we make a motion for a mistrial.
“Q. Well we don’t—(interrupted)
“THE COURT: I didn’t hear his statement.
“MRS. LOVE: I think that the Jury did.
“THE COURT: Okay, when I am talking please don’t interrupt me. I did not hear the response because the lawyer and the Witness were both talking. Now give the attorney the opportunity to make the objection. Now then ask the question again and let’s start over.
“Q. Do you know or think you know Mrs. Sandra Vinson King’s general reputation in the community that she lived prior to this Saturday night going over into Sunday morning the day of this alleged homicide in Sylacauga, Alabama?
“MRS. LOVE: And I renew my objection your Honor.
“Q. That calls for just a yes or no.
“A. No, Sir.
“Q. He does not know it so there is no more questions.
“MRS. LOVE: As far as I am concerned may this Witness be excused, I have no further questions.”

The appellant maintains that the trial court’s failure to rule on the motion for a mistrial constitutes error.

It is apparent from the record that the answer furnishing a basis for the motion for a mistrial was unresponsive and uninvited; that the trial judge did not hear that answer; that defense counsel did not inform the court of what the answer was; and that defense counsel did not request a ruling from the court on her motion for a mistrial. There is no evidence before this court which would support any allegation that the trial judge either refused or declined to rule on the motion. Indeed, when the motion was made, the trial judge, not having heard the answer of the witness, had nothing to rule on. The trial judge could not have made any intelligent ruling on a properly framed question which evoked an unresponsive answer where he did not hear the answer and the objecting party did not make it known to him.

Because the function of a reviewing court is to review only rulings made by the trial court on questions brought to its attention and passed on by it, the absence of an adverse ruling precludes review by this court in the absence of a refusal or denial by the trial judge to rule on the objection. 7 Alabama Digest, Criminal Law, &wkey;1045.

IV

The appellant testified that she knew that Patterson, the deceased, was in the habit of carrying a knife. However when defense counsel attempted to elicit the general reputation of the deceased for being a “knife toter”, the trial judge sustained the objection of the state. This was error, for the appellant having testified that she knew the habit of the deceased was entitled to show that the deceased was in the habit of carrying weapons. Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971); Frazier v. State, 48 Ala.App. 210, 263 So.2d 511, cert. denied, 288 Ala. 743, 263 So.2d 516 (1972).

However, in view of the fact that defense counsel elicited this same testimony from another witness, we find that the error was harmless. Bankhead v. State, 33 Ala.App. 269, 32 So.2d 814 (1948), established the rule that in a prosecution for homicide where the defendant pleads self-defense, the early refusal to admit proof of the deceased’s reputation for carrying a deadly weapon constitutes harmless error where such proof is later permitted.

V

In charging the jury the trial judge used the terms “confession” and “alleged confession” four times in one sentence. Defense counsel excepted to the charge and moved for a mistrial on this ground. The trial judge then promptly brought the jury back in the courtroom; instructed them to disregard his prior statement using the words “alleged confession”; gave them a new charge using the words “alleged statement”; and polled each member of the jury as to whether he could disregard his prior statement. This cured any defect which could have possibly prejudiced the appellant. Gavin v. State, 52 Ala.App. 469, 294 So.2d 169, cert. denied, 292 Ala. 722, 294 So.2d 170 (1974); Woods v. State, Ala.Cr. App., 344 So.2d 1225 (1976), cert. denied, Ala., 344 So.2d 1230 (1977).

We have reviewed the record in this case and it is our opinion that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Julian Allen MURPHY v. STATE.
    3 Div. 769.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.

      C. Collier Carlton, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of carnal knowledge of a girl under twelve years of age, for which the jury fixed defendant’s punishment at imprisonment for ten years, the minimum provided by the applicable statute. Code of Alabama Recompiled 1958, Tit. 14, § 398.

The victim testified that defendant, her father, had had sexual relations with her at numerous times commencing when she was eight or nine years of age and continuing to a day in the first week of December, 1976, which last incident occurred when she was nearly thirteen years of age and which incident she reported to the police within a day or two after its occurrence.

The indictment followed the Code form and did not specify the time of the crime charged. The State made no effort to confine its proof to a specific time or to point out the particular separate offense for which it sought a conviction. Under these circumstances, it should be noted that if defendant’s conviction stands, the principles of former jeopardy will preclude any other prosecutions of appellant under Tit. 14, § 398 as to the same girl. Eastep v. State, 25 Ala.App. 593, 151 So. 616 (1933); 22 C.J.S. Criminal Law § 280. This probably explains the handling of the defendant’s case and sets at naught any possible contention that he should have insisted that the State point out specifically the separate crime for which defendant was being tried.

Appellant’s principal contention for a reversal is that the trial court erred in overruling defendant’s motion to suppress certain evidence which defendant urges was obtained by an unreasonable search and seizure of defendant’s property. It consisted of three T-shirts and a pair of corduroy pants of defendant taken by the officers from the house where defendant lived, 404 Fourth Street in Boylston, which they entered without his consent and without a search warrant.

Prior to obtaining the evidence sought to be suppressed by defendant, officers had arrested and imprisoned him on a warrant sworn to by his daughter Mary Lula, the alleged victim, who, accompanied by an older sister, reported the crime to the police. Mary Lula had been taken by juvenile authorities to the Jackson Hospital for a gynecological examination by Dr. Michael H. McCallum who testified as to physical findings indicative of a crime of the nature of that charged in the indictment.

About the middle of the afternoon of December 4,1976, officers investigating the case obtained a written consent to search the house in which defendant lived, as the tenant thereof, for clothing “that might contain some stains” and other items. Consent was obtained from Julian Randy Murphy, twenty-two-year-old son of appellant, who also had been arrested and confined to jail on a warrant sworn to by Mary Lula charging him with carnal knowledge of her. Mary Lula met the officers at the house, opened the door for them and showed them the T-shirts and corduroy pants. The pants were in the “first bedroom to the right,” where Mary Lula said the last crime was committed, and the T-shirts were in the back part of the house in a pile of dirty laundry.

A witness from the State Department of Toxicology and Criminal Investigation, whose qualifications as an expert were admitted by defendant, testified that upon chemical and physical analysis of the clothing, seminal fluid and sperm were detected on one of the shirts, and seminal fluid was detected on another of the shirts, but the chemical analysis of the other two items of clothing was negative though they did contain suspicious stains.

No effort was made to obtain a consent from the defendant to conduct a search; no effort was taken to obtain a search warrant.

The parties are in disagreement on the question whether the evidence on the motion to suppress shows that Randy had “common authority over or other sufficient relationship to the premises or effects sought to be inspected,” declared to be a determinant as to a valid third party consent in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974). See also, Scott v. State, Ala.Cr.App., 337 So.2d 1342, 1346 (1976); Hawkins v. State, Ala.Cr.App., 333 So.2d 846 (1976); Myers v. State, 55 Ala.App. 404, 316 So.2d 235 (1975).

Randy took the stand on behalf of defendant on the hearing on the motion and testified that he did not live at 404 4th St. in Boylston, but that he stayed there at times and some times he stayed at other places. Other witnesses for defendant, including defendant himself, testified in a similar vein. However, there was evidence that at the time officers entered the house, recent mail was found therein addressed to Randy at that address. Furthermore; his then current automobile driver’s license gave the place as his address. According to testimony of the officers, Randy told them he lived there; he gave them no other address; upon being brought to the municipal jail he signed a card showing he lived at the same address and signed his name on an envelope bearing the same address, which envelope contained his personal property turned over to the warden; at the county jail he gave the same address, which appears on his fingerprint card. Randy was at that address at or about the time of his arrest and a day or two before. In his testimony on the hearing, Randy admitted living there until he was married; at the time he had been divorced about a year.

Mary Lula had five brothers and one sister, all children of appellant and of the mother of Mary Lula, who died in 1975. Mary Lula had a half-brother, the son of appellant by a previous marriage, who had a family of his own, and there is no claim by anyone that he lived at the same place as his father.

There is a conflict in the evidence as to where the sister of Mary Lula was living in the early part of December, 1976, but she was staying with her father párt of the time. The evidence is without dispute that Mary Lula, her brother fourteen years of age and another brother a few years older had been living with their father since they were born.

We find it unnecessary to make detailed comparisons, contrasts or distinctions between or among the several cases involving third party consent to a warrantless search, or the like, some of them holding the search reasonable and others holding to the contrary, for we find in none of them circumstances so similar to those presented here as to be controlling. We find little difficulty, however, in determining whether the circumstances here meet the established criterion of showing “common authority over or other sufficient relationship to the premises or effects sought to be inspected” so as to justify a warrantless search. Authorities supra. An accused is not protected by the Constitution against all warrant-less searches and seizures, but only against unreasonable warrantless searches and seizures. The validity of the conduct of the officers hinges on the reasonableness vel non thereof.

As to the argument of appellant that Mary Lula was too young to have given consent to the conduct of the officers in entering the house and taking therefrom the items of clothing mentioned, reference is made to Palmore v. State, 283 Ala. 501, 506, 218 So.2d 830, 834 (1969), wherein it is stated:

“We recognize the holding in Mapp that testimony unlawfully obtained is not admissible. We do not believe, however, that an officer is making an unreasonable or unlawful search when he enters a home [the defendant’s] to which he has gone in response to a phone call, and, on his arrival has been told by a child, apparently the oldest member of the family present, that her mother is in the kitchen dead. Under the circumstances of this case, we are of the opinion that his going into the kitchen was reasonable and that it would be unreasonable to require the officer to go first to a magistrate and obtain a search warrant before entering the house. Being of opinion that the testimony of the officer and toxicologist, as to the condition of the body, was not the fruit of an unreasonable or unlawful search, we hold that it was not error to admit the testimony.”

The officers knew, or should have known, that they did not have to obtain the consent of every person that might have had some interest in the house and contents of the house in order to enter it lawfully in quest of demonstrative evidence of the crimes against Mary Lula charged against appellant and Randy. The first and only one of the two they asked readily gave his consent. There is no contention that they first asked Randy in a belief that he would give consent, but that appellant would not do so, and certainly there is no evidence to support any such contention.

The entry was made before dark on a Saturday afternoon. Mary Lula was in protective custody of the Montgomery County Department of Pensions and Securities by an order of the Montgomery County Circuit Court, which appointed a guardian ad litem for her, all pursuant to Acts 1975, No. 1124, § 1. According to the undisputed evidence, she volunteered to go with the officers to the house and open the house for them and show them the clothing that became the target of defendant’s motion to suppress.

Guided by the light of hindsight, it may well be argued that the officers before entering the house should have either attempted to obtain the consent of the defendant or obtained a search warrant, if they thought they had time to do so, and thereby preserve the evidence they were seeking; but judging them by all the circumstances existing at the time they entered the house and found the clothing, we must hold that their conduct was not unreasonable and that the overruling of defendant’s motion to suppress was not erroneous.

To eminent critics, such as Lord Macaulay, of various provisions of our Constitution as to individuals’ rights, on the ground that, in the absence of express governors therein against excesses, the plenary language thereof is adaptable to destructive abuse, it can be answered that such criticism cannot properly be directed at the Fourth Amendment to the Constitution of the United States. With significant uniqueness, the right safeguarded thereby, and by Art. 1, § 5 of the Constitution of Alabama of 1901, that is, the right to security of people “in their persons, houses, papers, and effects,” against intrusion by agents of sovereign power, is expressly limited to the right of security against unreasonable action in the respect stated. It has an anchor, as well as a sail; it is balanced by the built-in ballast of reasonableness.

After the hearing on the motion to suppress and a resumption of the trial before the jury, the case in some respects developed into a swearing match, replete with conflicts and impeachment. It was shown that Mary Lula had retracted her accusations a short time after her father was placed in jail. This was definitely proved by a tape recording of her retraction, which she admitted in her testimony, but she was steadfast in her testimony that her retraction was false and that her original charge against defendant was true. She was otherwise impeached by members of her family as witnesses. Some of them were impeached by witnesses who said that they had made statements contrary to their testimony. All in all, the case was one of sordid details, but which contained substantial evidence of defendant’s guilt and a solid base for the jury’s verdict.

Mary Nell Barnes, the twenty-year-old daughter of defendant, testified in his behalf on the trial that she, in a drunken or druggy rage, had conspired with Mary Lula to charge their father with having sex with each of them, but that such charge was not true. On cross-examination, she was asked whether she had made statements to others that she, on numerous occasions, had had sex relations with him. This was followed by testimony of witnesses for the State in rebuttal to the. effect that she had made such statements to them. Appellant takes the position that such evidence lacks the usual admissibility of generally recognized admissible testimony for impeachment purposes in showing that a witness has made statements contrary to their testimony for the reason, appellant asserts, that the testimony was not material.

The defendant first injected into the case the question whether Mary Lula Barnes had had sexual relations with her father. A party is not allowed to blow hot and cold as to the materiality of particular evidence; he cannot impliedly claim and expressly disclaim its materiality; as defendant deliberately made the question of any illegal relationship between defendant and the witness an issue in the case and presented evidence by the witness substantially favorable to defendant on the issue, defendant should be precluded from effectively contending that evidence unquestionably bearing upon the issue is not material. In Madison v. State, 25 Ala.App. 50, 140 So. 623 (1932), it was said:

“It is the law that a witness may not be impeached on immaterial matter, but, where one party has brought immaterial matter in the direct examination, the court will not be put in error for allowing the opposite party to impeach such statement.”

We are not here concerned with a situation wherein the witness on direct examination testified as to facts “wholly collateral to the issue” and which “obviously could not, even if true, exert any influence upon the minds of the jury,” as to which the impeachment of the witness by showing contradictory statements was held to have been improper in Blakey v. Blakey, 33 Ala. 611, 622, (1859). See Gamble, McElroy’s Alabama Evidence, (3d Ed.1977).

After Mary Lula, the complaining witness, had testified as to the crime by defendant and after she had been allowed to be impeached by defendant by showing a contradictory statement by her, the State was allowed to prove prior consistent statements by her, that is, statements consisting of complaints that defendant had had carnal knowledge with her. Appellant cites Gamble, McElroy’s Alabama Evidence, § 177.01(2), (3d Ed.1977), where in it is stated that impeachment of a witness by the introduction of evidence of a statement inconsistent with his testimony “does not authorize the proponent of the witness to support his credibility by evidence that the witness has made a statement on another occasion of the tenor as his present testimony.” However, as shown by Gamble, McElroy’s Alabama Evidence, § 178.01 (3d Ed. 1977), there is an exception to the principle, to be found in “prior” consistent statements by victims of rape or other sex offenses. It is there stated:

“ . . . Where the testimony of the prosecutrix is impeached by proof of self-contradictory statements, for example, the prosecution may prove her complaints in detail.”

Appellant complains of the refusal by the trial court of charges 15 and 16 as follows:

“15. I charge you that the failure of the prosecutrix to make complaint recently after assault casts suspicion on the charge of carnal knowledge.”
“16. I charge you that the prosecutrix in this case has testified that the acts complained of occurred over a period of time and further that she made no complaint. This casts suspicion on the charge of carnal knowledge.”

Appellant cites no authority in support of the contention. Aside from probable infirmities of the instructions as urged by the State, we find that Reedy v. State, 246 Ala. 363, 369, 20 So.2d 528, 532, (1945), is applicable and controlling. There in dealing with two charges similar to charges 15 and 16 in instant case, the court said:

“Charges 1 and 2 were argumentative and invaded the province of the jury in pretermitting a discretion in the jury of weighing the fact hypothesized in the charges. The two cases (Clark v. State, 28 Ala.App. 448, 186 So. 778; Stewart v. State, 25 Ala.App. 266, 145 So. 162) cited as a basis for the argument for error, while stating the proposition embraced in the charges, were dealing with matters of evidence. Abstract statements of law from judicial opinions do not always justify their correctness when embraced in charges to the jury. Southern R. Co. v. Hayes, 198 Ala. 601, 73 So. 945; Torian v. Ashford, 216 Ala. 85, 112 So. 418.”

The record discloses no error prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . The other items, including those looked for as “instruments used in abortions,” were not offered in evidence. There was no contention that they were referable to this case; they were obtained in connection with a charge that defendant had performed abortions on the mentioned older sister of Mary Lula.

      . “Your Constitution is all sail and no anchor.” Letter from Thomas Babington Macaulay (May 23, 1857) to H. S. Randall, author of a Life of Thomas Jefferson.


text:
    Richard HALE, Jr. v. STATE.
    3 Div. 797.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.

      Howard F. Bryan, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and James Hampton, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the rape of a sixteen year old Robert E. Lee High School student in Montgomery, Alabama. The jury which adjudged the appellant guilty fixed his punishment at ninety-nine years and one day imprisonment. Both at trial and on appeal, the appellant is represented by court appointed counsel.

The appellant has presented two issues for review: (1) Whether § 15-11-1, Code of Alabama 1975, (Acts of Alabama 1975, No. 1205, § 4-106), gives the accused an absolute right to a preliminary hearing even after indictment, and (2) whether a pretrial lineup procedure so tainted an in-court identification of the appellant as to make it inadmissible.

The facts of this case reveal a deliberately vicious and shocking account of abduction and rape. It would constitute no benefit to examine the details other than to comment that they are utterly revolting and almost satanic in nature.

The evidence conclusively shows that on the morning of Friday, April 1, 1977, at approximately nine-thirty, the prosecutrix, while going from one class to another, was forcibly abducted from the halls of Robert E. Lee High School in Montgomery, Alabama, by the appellant. She was forced and pulled into a Chevrolet Malibu automobile and made to place her head in the appellant’s lap. The appellant struck her repeatedly about the head and shoulders in an effort to subdue her.

The prosecutrix was driven to a gravel pit in north Montgomery where she was forced to undress and repeatedly raped by the appellant. The appellant then let her out of the automobile after taking her two jade rings and drove away leaving the pros-ecutrix clad in only her sandals, panties and bra.

The prosecutrix stopped the first automobile she encountered and was aided by a minister and his wife who notified the police.

Based on a detailed description of the rapist furnished by the prosecutrix, the appellant was apprehended at approximately four-thirty that afternoon. A wealth of physical and identifying evidence revealed the appellant to be the rapist described by the prosecutrix.

At police headquarters the appellant voluntarily confessed to the abduction, rape and robbery of the prosecutrix. Immediately upon learning of the theft of the two rings the officers searched the patrol car which transported the appellant to police headquarters and found the rings in the back seat of that vehicle.

The appellant maintained that he had begun drinking and smoking marijuana the day before the rape and simply did not remember anything concerning the prosecu-trix or the crime.

The evidence against the appellant is overwhelming and leaves no doubt that the appellant is in fact guilty as charged.

I

Initially the appellant argues that he was absolutely entitled to a preliminary hearing.

The appellant was arrested on April 1, 1977. The motion to quash the indictment alleged that on April 5, 1977, defense counsel was appointed to represent the appellant at trial; that the appointment specified that the appellant would receive a preliminary hearing on April 11, 1977; that on April 11th, defense counsel was notified by the District Attorney’s Office that the appellant had been indicted by the Montgomery County Grand Jury during the week beginning April 4, 1977.

At the hearing on the motion to quash, defense counsel argued these alleged facts but did not place in evidence any supporting document or order of the lower court ordering that the appellant receive a preliminary hearing. We have carefully searched the record on appeal and find nothing to support the grounds of the motion to quash and the argument of counsel.

Statements made by counsel are not evidence. Where the appellant moves to quash the indictment upon grounds which involve matters outside the record, there is nothing presented to this court for review. Beal v. State, 138 Ala. 94, 35 So. 58 (1903); Jordan v. State, 165 Ala. 114, 51 So. 620 (1910); Andrews v. State, 152 Ala. 16, 44 So. 696 (1907); Smith v. State, 165 Ala. 74, 51 So. 632 (1910); Franklin v. State, 233 Ala. 203, 171 So. 245 (1937).

II

After carefully reviewing all the testimony, we are of the opinion that there was no taint or hint of suggestiveness in the pretrial lineup which would vitiate the eyewitnesses’ in-court identification of the appellant. The facts simply do not lend themselves to such an interpretation. Schillaci v. State, Ala.Cr.App., 347 So.2d 552, cert. denied, Ala., 347 So.2d 551 (1977); Fletcher v. State, Ala.Cr.App., 337 So.2d 58 (1976); Impson v. State, Ala.Cr.App., 331 So.2d 837 (1976); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976); Jackson v. State, 56 Ala.App. 276, 321 So.2d 243 (1975); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). As the corporeal identification of the appellant was conducted before the initiation of any adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment or arraignment, the right to counsel at the lineup had not attached. Moore v. Illinois, United States Supreme Court,U.S. -, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

We have carefully and conscientiously searched the record for error and have found none. It is therefore the order of this court that the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Leander Lee JOHNSON, alias v. STATE.
    6 Div. 523.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.

      Charles W. Shults, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry ■V. Hutner, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The grand jury of Jefferson County indicted Leander Lee Johnson for the robbery of Susan Richardson by taking some $350.00, wine and beer from her person and by putting her in fear, etc. The jury returned a verdict of guilty as charged and fixed punishment at forty years imprisonment. The trial court then set sentence accordingly.

Mrs. Susan Richardson testified that she was working at the Road Runner Convenience Store # 2, located at 1725 18th Street, South, in Homewood, Alabama, between the hours of 3:00 p. m. and 11:00 p. m. on October 27, 1976. Shortly after 7:00 p. m. that night, while Mrs. Richardson was on duty, two black males entered the store, selected two packages of beer and a half-gallon of wine from the cooler, and walked to her location at the cash register. At this point, one of the men pointed a gun at her and demanded the money from the cash register and from the safe in the back of the store. Mrs. Richardson stated that, in response to their demands, she opened the cash register, stepped back from it, and told the men they could have what they wanted. The man with the gun came around the counter and told the witness that he wanted the money kept in the back of the store. Mrs. Richardson testified that she and the man with the gun went to the back room of the store where he obtained from her approximately $50.00 in coins which was customarily kept in a small floor safe. The man with the gun first told Mrs. Richardson to lie down in the back room, but then summoned her to the counter to package the beer and wine. Upon returning to the cash register, Mrs. Richardson noticed that all of the twenty dollar bills and the ten dollar bills had been removed from the cash register, while the five dollar bills and one dollar bills remained therein. Having packaged the merchandise, Mrs. Richardson then took the remaining currency from the drawer and, pursuant to instructions, placed it in the sack with the beer and wine. Mrs. Richardson explained that in removing the currency from the cash register, she activated a silent police alarm located in the drawer.

Sometime during the occurrence of these events, Mr. Avinger, a regular customer, entered the store to make a purchase. Unaware that a robbery was in progress, Mr. Avinger went to the back of the store, selected a carton of milk and walked to the cash register, stopping approximately three or four feet from it. He did not move from there until the robbers had exited. Mrs. Richardson further testified that the two men instructed her to return to the back room and lie down on the floor.

Mrs. Richardson positively identified the appellant as one of the two men who perpetrated the robbery. She noted that the appellant stood off to the side during the robbery, functioning primarily as a “lookout.” The other robber held the pistol, a chrome revolver. Mrs. Richardson never saw the appellant with a gun.

Shortly after the two men left the store, Mrs. Richardson heard eight to ten gunshots outside the store. Thereafter, a wounded police officer stumbled into the store. Mrs. Richardson observed that the officer was bleeding from his head and shoulder. She estimated that the entire sequence of events lasted about five minutes.

Mr. James Franklin Avinger then testified that he entered the convenience store on the night in question to purchase some milk. As he approached the cash register, he heard one of the two black males, standing in front of him at the counter, say, “Put it all in a sack” (R. p. 19). Mr. Avinger was unable to identify the appellant positively as one of the two robbers because his view of him was a profile view. Mr. Avinger’s testimony confirmed that of Mrs. Richardson relating to the gunshots outside the store immediately after the two men exited. Upon seeing the wounded police officer enter the store, Mr. Avinger testified that he grabbed the officer and helped him sit down. Mr. Avinger stated that there was blood on the officer’s face.

Officer Elbert Brooks testified that he was employed by the City of Homewood as a police patrolman and was on duty on October 27, 1976. He received a message that night at City Hall to proceed to the location of the Road Runner Convenience Store # 2. In accordance with standard procedures, Officer Brooks, upon arriving at the convenience store, turned off his headlights and waited outside the store in his patrol car while his partner covered the rear of the store. He observed two black males as they came out of the store, one of them carrying a grocery sack. As they walked from the store, Officer Brooks pulled up to them in his car so that when he stopped and got out of the car, the two men were directly in front of the patrol car. As he got out of his car, Officer Brooks drew his service revolver and shouted, “Hold it.” In response, the man with the grocery sack (Johnson) attempted to flee while the other suspect remained in front of the patrol car. Again, Officer Brooks shouted, this time saying, “Halt, and I mean stop now” (R. p. 26). At this point the fleeing suspect, subsequently identified by Officer Brooks as the appellant, Leander Lee Johnson, turned and fired at him with a nickel-plated revolver. Simultaneously, the other suspect, also identified by Officer Brooks as Charles Leon Chambers, opened fire on him from his location in front of the patrol car. Officer Brooks testified that he fired five shots at the appellant, who fell saying, “I’m hit” (R. p. 27). Then Officer Brooks turned and fired one shot at Chambers. Officer Brooks stated that the appellant fired at him at least twice, missing both times. Chambers’ gunfire wounded Officer Brooks in the shoulder, left arm, and above his eye. On hearing the gunshots, Officer Brooks’ partner came from behind the store to give assistance. By this time the robbers had made their escape. Officer Brooks stated that he stumbled into the store after being shot and told Mrs. Richardson to call the paramedical squad. On cross-examination, Officer Brooks testified that, although it was dark outside at the time of the incident, the lighting from flourescent street lights was good.

Detective Sergeant Edward Allen McKenzie testified that he was employed by the City of Homewood and was assigned to investigate the robbery in question. His investigation ultimately resulted in the arrest of the appellant, Leander Lee Johnson, and of Charles Leon Chambers in the City of Mobile, Alabama, on November 4, 1976. The suspects had been taken into custody by the Mobile police. Sergeant McKenzie and Sergeant West subsequently transported the appellant and Chambers to Home-wood by car on November 6,1976. According to standard police procedures, the suspects were handcuffed and secured together in the back seat of the car which did not have a screen petition between the front and back seats. The officers were armed with their service revolvers and a shotgun which was held by Sergeant McKenzie during the trip. When the suspects were placed in the car to be transported to Homewood, Sergeant McKenzie advised them orally of their “Miranda rights.” During the drive back to Homewood, the two suspects, without any threat, intimidation, coercion, or inducement, initiated a conversation with Sergeant McKenzie by inquiring of Sergeant McKenzie about the wounded officer. This conversation took place in the early part of the trip and lasted about ten to fifteen minutes. In this conversation, the appellant and his companion, Chambers, after being told that Officer Brooks was alive, stated, “Well, we did it in that case” (R. p. 51).

Chambers and Johnson were booked at the Homewood City Jail, on November 6, 1976, following their arrival from Mobile.

Two days later, November 8, 1976, Sergeant McKenzie had a second conversation with the appellant, Johnson. This took place at Police Headquarters with only Officer Huey being present with Sergeant McKenzie during the questioning. Prior to the initiation of any questioning, the appellant was read his “Miranda rights,” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and without any threat, intimidation, coercion, or inducement, being made or offered, the appellant gave a full confession concerning the robbery of the Road Runner Convenience Store on October 27, 1976, in Homewood, Alabama. This confession was dictated on tape in response to questions, then typed, and read over by the appellant, who then signed it in the presence of the two officers at 1610 hours, November 8, 1976.

Prior to its admission into evidence, the trial court excused the jury during the voir dire questioning while a proper predicate was laid. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Duncan v. State, 278 Ala. 145, 176 So.2d 840. The Miranda waiver form and the statement itself were designated as Exhibit 1, and then admitted into evidence.

Sergeant McKenzie also testified that the day after the robbery, Officer Brooks informed him that he had recognized Charles Leon Chambers at the time of the encounter outside the convenience store as the two men were leaving and that he gave him his name, and he selected the appellant’s, Johnson’s, photograph as being the other person involved in the robbery.

Sergeant McKenzie also stated that Mrs. Richardson identified Johnson from the photographs shown to her the next morning following the robbery.

George R. Carr, III, stated that he was Evidence Technician with the Homewood Police Department. Carr indicated that shortly after 7:00 p. m. on the night of October 27, 1976, he went to the Road Runner Convenience Store # 2 on 18th Street and there received a .38 caliber pistol, which contained four spent hulls, and that two of the chambers were empty. Mr. Carr indicated he received this pistol at the scene from one Walter Blocker, and that it had been in his care and custody since that time.

Walter Blocker stated he was Deputy District Attorney for Jefferson County and was in Homewood, Alabama, on the night of October 27,1976. Blocker stated that he heard a noise of some tires squealing, some words spoken, and some pistol shots, and that he drove immediately to the Road Runner Convenience Store # 2 in Homewood. Blocker advised that he found a .38 caliber pistol and two six-packs of beer in a sack in an alley immediately across the street from the Road Runner Convenience Store. Blocker then identified the pistol from his initials on a marker and stated that he had delivered it to Officer Carr at the scene of the robbery. The pistol in question was then admitted into evidence.

The appellant did not testify, nor did he present any evidence at trial.

I

Shortly before trial commenced, on April 19, 1977, appellant’s counsel asked for a continuance, based on “pretrial publicity,” which was denied. The colloquy is as follows (R. p. 5):

“MR. SHULTS: Your Honor, we would like to move at this time for a continuance based on the pretrial publicity, I guess, concerning the other case in the newspaper.
“THE COURT: Okay. That’s denied. I would like to state that the publication was on about Page 40.
“MR. SHULTS: I’m not sure.
“MR. RUSSELL: Back in the back area.
“THE COURT: I don’t think this Defendant’s name was mentioned.
“MR. SHULTS: No, sir, his name was not.
“(Whereupon, proceedings were in. recess until 4:10 P.M., at which time the following proceedings were had and done:)”

The granting or refusal of a continuance because of pretrial publicity is a matter within the sound discretion of the trial court. Nickerson v. State, 283 Ala. 387, 217 So.2d 536, and Bosarge v. State, 273 Ala. 329, 139 So.2d 302.

The burden is on the movant to reasonably satisfy the trial court that an impartial jury cannot be had in the circuit court to which the indictment is returnable. Tiner v. State, 271 Ala. 254, 122 So.2d 738, and Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert. denied, 287 Ala. 729, 254 So.2d 443.

As noted in Dannelly,, supra, “The passage of time cannot be ignored as a factor in bringing of objectivity to the trial.”

Moreover, the record here fails to show any prejudicial influence on the venire here selected for trial. Turk v. State, Ala. Cr.App., 348 So.2d 878, and cases therein cited.

As shown by the colloquy, little pretrial publicity was given to this cause, and, in fact, the appellant’s name was not mentioned. Clearly, the trial court’s ruling was correct.

II

The appellant contends that the trial court erroneously allowed Officer Brooks to testify concerning the shooting, which took place outside the Road Runner Convenience Store # 2 immediately following the robbery, as being evidence of an offense not involved in the robbery.

As shown by Mrs. Richardson’s testimony, when she removed the several bills from the cash register, a silent alarm system was activated in the Homewood Police Department. Officer Brooks and his companion officer went to the scene where Officer Brooks remained outside the store and observed the men walking out with the package in hand. He then directed the two men to halt. He gave this command twice before the ensuing gunfire took place. We are of the opinion that Officer Brooks’ testimony concerning the shooting outside the convenience store was properly admitted into evidence as being a part of one continuous criminal transaction, which commenced with the robbery inside the store. Parsons v. State, 251 Ala. 467, 38 So.2d 209.

In cases of robbery, the jury is given a wide range of discretion in fixing the punishment. All of the details of one continuous criminal occurrence or adventure may be considered by the jury in passing upon the culpability, the wickedness, and depravity of the crime for which the party is being tried. This evidence was properly admitted. Jackson v. State, 229 Ala. 48, 155 So. 581, and Witherspoon v. State, Ala. Cr.App., 356 So.2d 743, 6 Div. 603, Feb. 21, 1978.

III

The appellant finally contends that the trial court erred in allowing the custodial statement of the appellant to be admitted in evidence and read to the jury, asserting that same was coerced.

The record here does not support such an assertion. To the contrary, the appellant and his companion, Chambers, were given a “Miranda warning,” first, by the two officers before being placed in their vehicle in Mobile, Alabama, before the return trip to Homewood. Shortly after leaving Mobile, a brief conversation took place wherein Johnson and Chambers admitted their participation orally after inquiring about Officer Brooks’ condition (R. p. 51).

The two men were delivered to the Homewood City Jail on November 6, 1976, following a nonstop trip from Mobile. Johnson was not interrogated until two days later, following a brief conversation with Sergeant McKenzie and Officer Huey in the office of the Homewood Police Department. This occurred following a full, second “Miranda warning,” and, without any threats, intimidation, coercion, or inducement, the appellant gave a full statement, admitting his participation in the robbery in question. There is no contention here that the appellant was denied either food or rest. This is not a case of a long or protracted examination of an accused being held incommunicado and subject to threats or abuse. The record in this cause is entirely to the contrary. The trial court so understood and determined, and such is borne out by the record itself. We are of the opinion that the trial court’s determination as to the voluntariness of the appellant’s statement was correct. Luschen v. State, 51 Ala.App. 255, 284 So.2d 282; Crowe v. State, 54 Ala.App. 121, 305 So.2d 396, and Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

Our careful review indicates that confession here admitted into evidence was not induced by any type of threat or promise, express or implied, nor was there any inducement which would operate to produce hope or favor, or coercion which would render such confession inadmissible. See Guenther v. State, 282 Ala. 620, 213 So.2d 679, and Gamble v. State, 48 Ala.App. 605, 266 So.2d 817.

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

AFFIRMED.

All the Judges concur.


author: ENGLAND, Justice.

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. Virginia G. McCOOK, Employee, and Florida Industrial Relations Commission, Respondents.
    No. 49837.
    Supreme Court of Florida.
    Aug. 31, 1977.
    Rehearing Denied April 5, 1978.

      Peter L. Dearing of Mahoney, Hadlow & Adams, Jacksonville, for petitioner.
    C. Wayne Alford of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for respondents.
   ENGLAND, Justice.

By petition for a writ of certiorari we are asked to review a decision of the Industrial Relations Commission which approves an award of workmen’s compensation benefits. We have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution pursuant to Section 440.27, Florida Statutes (1975). It is our conclusion that the Commission’s decision departs from the essential requirements of law in that it violates fundamental principles underlying Florida’s workmen’s compensation statute, and that the decision must be quashed.

The facts of this case are undisputed. Virginia McCook had been an employee of Southern Bell Telephone and Telegraph Company for many years without accident or injury. In November 1974, she had occasion to use the restroom during a regularly scheduled break. When she attempted to use the toilet tissue, it fell to the floor. While seated, she reached over to pick up the tissue and suddenly experienced a sharp pain across her back which caused a grabbing sensation. After a few minutes she was able to return to her work, and she was able to finish the day on the job. That evening, while at home, the pain returned and she became disabled.

Later diagnosis and treatment established conclusively that McCook had a congenital abnormality in her lower back consisting of an extra vertebra and one large nerve root where there should have been two smaller nerve roots. The pain initially felt at work and later experienced at home was diagnosed to have resulted from pressure on the nerve root in the area of the extra vertebra, “triggered” by Mrs. McCook’s movement in bending over while seated. It is conceded by all parties that the same occurrence could have taken place at any time or place she might have made a similar movement, or one having the same effect on the nerve root, and that the manifestation of pain would have been identical.

When the claim for benefits was presented to the judge of industrial claims, Southern Bell conceded that the episode of pain occurred during the course of employment, and McCook conceded that there was no external trauma or injury which precipitated the pain. On these facts the judge held that McCook’s act of bending to pick up toilet tissue during working hours constituted an “accident arising out of and during the course of employment”, and awarded benefits. On review the Commission affirmed the award in a form order.

The only legal issue in this case is whether McCook suffered an “injury”, which is defined by Section 440.02(6), Florida Statutes (1975), as “personal injury or death by accident arising out of and in the course of employment . . . There are three separate elements to this definition, each of which must be proved before a compensable injury can be found to exist. For the purposes of this case, we assume that McCook suffered an “accident” which occurred “in the course of employment.” The accident to McCook, however, is simply not one “arising out of employment”, and we refuse to accept McCook’s implied invitation to repeal judicially this latter requirement.

In Bituminous Casualty Corp. v. Richardson, 148 Fla. 323, 4 So.2d 378 (1941), we adopted the following language from the Illinois Supreme Court’s decision in Scholl v. Industrial Commission, 366 Ill. 588, 591, 10 N.E.2d 360, 362 (1937):

“The phrases ‘arising out of’ and ‘in the course of employment’ are used conjunc-tively. The words ‘arising out of’ refer to the origin or the cause of the accident while the words ‘in the course of employment’ refer to the time, place, and circumstances under which the accident occurs.”

We elaborated on the “arising out of” requirement in Suniland Toys & Juvenile Furniture, Inc. v. Karns, 148 So.2d 523, 524 (Fla.1963), where we said that a compensa-ble injury

“must have originated in some risk connected with the employment or flowing as a natural consequence from the employment.”

These holdings recognize the universal principle of workmen’s compensation law that an idiopathic condition which results in injury to the worker does not “arise out of” employment unless the employment in some way contributes to the risk or aggravates the injury.

In applying this principle to date, this Court has been careful to distinguish between physical damage suffered solely as a result of an idiopathic condition, and that suffered because of the combination of an idiopathic condition and the work place. We have held, for example, that the mere showing of an epileptic seizure, without more, does not prove a causal connection with the employment, although hot and strenuous working conditions which induce an epileptic seizure do create a right to recovery. Similarly, we have held that where an employee collapses solely due to an internal physical malfunction, the resulting physical damage does not arise out of the employment.

Although research has revealed no decision of this Court identical to this case on its facts, an Arizona decision may be as close as it is possible to get. In Sacks v. Industrial Commission, 13 Ariz.App. 83, 474 P.2d 442 (1970), the worker suffered from a pre-existing lower back instability which was aggravated into a herniation of her lumbar discs when she arose from a toilet during a work break. The Arizona Court of Appeals held that there had been an “accident” which occurred “in the course of employment”, but that since the risk of disc herniation was one peculiar to the worker and there was no basis to find that the structure or conditions of the place of employment contributed to the risk, the physical damage did not “arise out of the employment”.

We believe the Sacks decision should be followed in Florida. McCook suffered from an idiopathic condition which manifested itself for the first time during the course of employment, for reasons entirely extraneous to her job conditions or duties. There was no causal connection whatsoever between the employment and the aggravation. She simply made a normal movement which, due solely to her idiopathic condition, produced disability. We cannot permit the Commission to convert the workmen’s compensation statute into a mandatory general health insurance policy which does not limit the burden on industry to those ailments produced even remotely by the hazards of industry. We have previously indicated that the Commission has no such authority. A transformation of this magnitude must be made by the Legislature.

The petition for the writ of certiorari is granted and the order of the Commission is quashed. This case is remanded with directions to dismiss the claim.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., concur.

ADKINS, J., dissents.

      .The term “accident” is defined by Section 440.02(18) as any “unexpected or unusual event or result, happening suddenly.” The leading decision of this Court explaining the definition of “accident” is Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 588 (Fla.1962), where we stated that
      “an internal failure, such as a strained muscle, ruptured disc, ‘snapped’ knee-cap, and the like, brought about by exertion in the performance of the regular or usual duties of the employment, may be found to be an injury ‘by accident,’ without the necessity of showing that such injury was preceded by some incident, such as a slip, fall or blow.”
      The fact that McCook’s condition was sudden and unexpected distinguishes this case from Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961), and City of Tallahassee v. Roberts, 155 Fla. 815, 21 So.2d 712 (1945), in both of which cases the employee’s painful condition had been a known and continuing fact. This case is more like Simmons v. City of Coral Gables, 186 So.2d 493 (Fla.1966), where it was shown that a pre-existing knee condition suddenly became disabling as a result of rigorous police academy training. These and other “internal failure” cases have generally required an exertion or strain beyond the normal rigors associated with the tasks required of the employee. See, for example, Gateway Sporting Goods Co. v. Lutz, 328 So.2d 427 (Fla.1976). Though on careful analysis our decisions to date are relatively consistent, the Court’s opinions are at times confusing because there has been a general failure to articulate with care the distinctions between the statutory requirements of “accident” and “arising out of” employment.

      . The fact that McCook was attending to a personal matter at the time of the accident is irrelevant, since it was incidental to employment and therefore a matter within the “personal comfort doctrine”. See 1 A. Larson, The Law of Workmen’s Compensation §§ 21.00, and 21.53 (1972).

      . During oral argument, McCook’s counsel acknowledged that the position he has argued would require an employer to compensate an employee for a manifestation of a congenital defect occurring as a result of the employee’s reaching for a water cup at a water cooler on the employer’s premises, or any other wholly normal motion fortuitously occurring during the workday. He also conceded that the same physical motion or activity might give rise to the same manifestation of pain if it occurred after work-hours, though in that case there would be no recovery against the employer and probably no personal injury claim against anyone else. In short, he requested this Court to construe the “arising out of” requirement out of the statute, for all practical purposes.

      . See 1 A. Larson, The Law of Workmen’s Compensation § 12.00 (1972).

      . Reed v. Brinson Elec. Co., 50 So.2d 877 (Fla.1951).

      . Diamelio v. Royal Castle, 148 So.2d 8 (Fla.1962).

      . Federal Elec. Corp. v. Best, 274 So.2d 886 (Fla.1973). See also Damon v. Central Hotel, 135 So.2d 204 (Fla.1961), concerning sufficiency of evidence showing a fall was not idiopathic.

      .See General Properties Co. v. Greening, 154 Fla. 814, 820, 18 So.2d 908, 911 (1944).


author: BOYD, Justice.

text:
    Gerald A. LEWIS, etc., Appellant, v. INCOME DEVELOPMENT CORPORATION et al., Appellees.
    No. 50382.
    Supreme Court of Florida.
    Nov. 10, 1977.
    As Corrected On Denial of Rehearing Jan. 26, 1978.

      William B. Corbett, Jr. and Richard E. Gentry, Asst. Gen. Counsels, Tallahassee, for appellant.
    John W. McWhirter, Jr., of Cason, McWhirter, Henderson & Stokes, Tampa, for appellees.
   BOYD, Justice.

In a certiorari proceeding before the District Court of Appeal, Second District, the constitutional validity of a statute was directly passed upon for the first time in this cause. We have jurisdiction of this appeal. Article V, Section 3(b)(1), Florida Constitution.

Subsection (3) of Section 494.08, Florida Statutes, was declared unconstitutional by the District Court. We agree and, because the opinion of the District Court is so well written and reasoned, we adopt it as our own.

We hereby declare subsection (3) of Section 494.08, Florida Statutes, unconstitutional. The cause is remanded for proceedings consistent with this opinion. We approve the District Court’s remand for reconsideration of a lesser penalty appropriate for guilt of the remaining two specifications.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, Jj., concur.

      . Income Development Corp. v. Lewis, 336 So.2d 440 (Fla. 2d DCA 1976).

      . The Legislature may regulate mortgage broker fees and commissions, but it must be done in a way that will give mortgage brokers better notice of what fees and commissions are excessive.


author: KARL, Justice.

text:
    Robert REVITZ, Petitioner, v. George J. BAYA and Mary Phillips Baya, Respondents.
    No. 51789.
    Supreme Court of Florida.
    Nov. 10, 1977.
    Rehearing Denied April 5, 1978.

      Richard L. Lapidus, of Lapidus & Hollander, Miami, for petitioner.
    L. J. Cushman, Miami, for respondents.

      . In Duggan v. Tomlinson, 174 So.2d 393 (Fla.1965), this Court observed:
      “The constitutional provision just quoted limits our certiorari review in these instances to those decisions of such district courts which pass upon a question certified by such courts to be of great public interest.”
      Cf. Cleveland v. City of Miami, 263 So.2d 573 (Fla.1972).

   KARL, Justice.

This cause is before us on petition for writ of certiorari to the District Court of Appeal, Third District, to review its decision in Baya v. Revitz, reported at 345 So.2d 340 (Fla. 3rd DCA 1977). The District Court of Appeal has certified the following question to this Court:

“Will a separate action for abuse of process lie for the taking of an appeal from a nonappealable consent judgment?”

However, in the decision of the District Court under review, that court expressly stated:

“We reverse upon a holding that the question of whether the partition judgment was, in fact, a consent judgment was a proper basis for appeal. We, therefore, do not reach the question of whether it is an abuse of process to appeal any consent judgment, nor do we discuss the damage issue.
“The appeal from the final judgment in partition presented two issues. The first was whether partition was a lawful remedy under the facts in that record. This was a justiciable issue properly raised in the trial court and determined in an opinion written by this court. In addition, the record of that appeal, as well as the present record, show that a motion to quash the appeal was filed by the appel-lee. This court, upon a consideration of the motion and upon examining the record and the briefs, found that a proper issue for determination on appeal existed and denied the motion to quash, then set the cause for hearing before the court and, after a full consideration of the briefs, oral argument and record, determined that issue. The second question presented on the appeal from the partition judgment was whether or not a certain stipulation entered into in the trial court after the denial of the defendant’s motion to dismiss was a stipulation rendering the judgment thereafter entered a consent judgment. The issue was one this court found arguable and, upon consideration of the argument, the court found that the stipulation did, in fact, render the judgment a consent judgment. Nevertheless, the question of whether a consent judgment existed was such that the appellee’s contentions required the consideration of this court and the question was finally determined only after the holding of this court and the denial of certiorari by the Supreme Court of Florida.
“We hold, therefore, that the taking of an appeal which presents to the appellate court justiciable issues decided after a full consideration hereof upon the briefs, oral argument and record, as a matter of law is not an abuse of process under the elements of the common law action as they exist in the State of Florida. . . ” (Emphasis supplied.)

Article V, Section 3(b)(3), Florida Constitution, provides,-in pertinent part, that the Supreme Court “[m]ay review by certiorari any decision of a district court of appeal . that passes upon a question certified by a district court of appeal to be of great public interest . . . .” (Emphasis supplied.)

Since, sub judice, the District Court specifically found it unnecessary to pass upon the question now certified to this Court, we are without jurisdiction to consider and decide the question.

Accordingly, the writ of certiorari is hereby discharged.

It is so ordered.

ADKINS, Acting C.. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.