author: HARRIS, Judge.

text:
    Oliver Paul SUMMERS, alias v. STATE.
    8 Div. 943.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.

      J. Louis Wilkinson, Birmingham, Joe G. Burnett, Clanton, for appellant.
    William J. Baxley, Atty. Gen., and John A. Yung, IV, and George W. Royer, Jr., Asst. Attys. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 15 years in the penitentiary. He was arraigned in the presence of his retained counsel and interposed a plea of not guilty. After conviction and sentence appellant gave notice of appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment Oliver Paul Summers, alias Paul Summers, alias Frank Summers, whose name to the Grand Jury is otherwise unknown, feloniously took, to-wit: Five Thousand Five Hundred Fifty Nine Dollars in lawful paper currency of the United States of America, the exact denominations of the bills being unknown to the Grand Jury, the property of Marjorie Cherry, from Joseph Cherry and Marjorie Cherry, against their will, by violence to their persons, or by putting them in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

This case was tried on the evidence adduced by the State. Appellant did not testify nor did he offer any evidence in his behalf. When the State rested, appellant made a motion to exclude the State’s evidence on the ground the State’s case was based upon the uncorroborated testimony of accomplices. This motion was overruled and denied.

Mrs. Marjorie Cherry testified that she and her husband lived on the Kilpatrick Highway in Boaz, Alabama, and that she and her husband owned and operated the Sand Mountain Auto Auction located on Highway 431 near Boaz, Marshall County, Alabama. She stated they conducted an automobile auction every Wednesday and at times took in large sums of money. They had an auction on Wednesday, August 20, 1975, and she carried the proceeds from the auction sales to her home and hid the money in a clothes hamper in the bathroom and was going to make a bank deposit the next day.

Mrs. Cherry further testified that she and her husband were in their home on the evening of August 20, 1975. She stated that at approximately 7:30 p. m. she was in the kitchen and heard the doorbell ring. Her husband went to the door and she heard him say, “I’ll get my wife.” A few minutes later her husband walked in the kitchen followed by a man holding a pistol in his hand. The man with the pistol said, “This is a holdup. I am a professional; I’m not working alone. If you do exactly as I say, you’ll not be hurt.”

The man with the gun ordered Mr. and Mrs. Cherry to go into the bedroom and lie face down on the bed. Mrs. Cherry protested that she recently had surgery and could not lie face down and the man said, “That’s all right, Mrs. Cherry, lie on your back.” The man with the pistol ordered Mr. Cherry to lie face down on the bed and he told the man that he had a heart condition and the man told him to lie on his side. The man placed a pillow over Mrs. Cherry’s face and a small rug over Mr. Cherry’s face. He then taped their hands and ankles together.

Mrs. Cherry further stated that besides the man with the gun another man also entered the house and while the man with the gun stood guard over them, she heard the other robber going through the house opening doors and drawers. The robber with the gun kept asking, “Where is the safe?” Mrs. Cherry told him there was no safe in the house. The man then asked about their coin collection and Mrs. Cherry told him it was in the bank. The robbers found two shoe boxes full of coins in one of the closets and took them.

The robbers asked Mrs. Cherry where the money was and she told them she did not bring the money home that day but had given it to her brother to deposit. The man with the gun told her he did not believe that she had given the money to her brother to deposit and that the money was somewhere in the house. The bandit with the gun told Mr. Cherry, “If you don’t make her tell me where the money is, I’m going to have to start working on you.” Mr. Cherry told his wife to please tell the men where the money was and she told the robbers that the money was in the bathroom in the clothes hamper. The bandits found the money in the hamper. This money was the proceeds from the auction sale that day and the amount of it was $5,559.00.

The bandits then took Mr. Cherry’s billfold and watch and they removed all the jewelry Mrs. Cherry was wearing. They also took a jewelry case containing watches, diamond rings, diamond pins, wedding band and other items of jewelry. The bandits were in the Cherry home a total of about 45 minutes and as they were leaving they took the keys to both automobiles but drove away in only one of the cars.

Mrs. Cherry further testified that she had a burglar alarm system installed in her house. She tried to activate the alarm system when she first saw the bandit with the pistol, but the system had been turned off earlier when Mr. Cherry had gone to the back porch. Mr. Cherry stated that in April, 1974, the telephone lines leading to the house had been cut, setting off the burglar alarm and at that time no burglary was committed.

Mrs. Cherry identified an envelope, marked State’s Exhibit 1, containing seven items of jewelry as being a part of the jewelry the bandits took the night of the robbery at the same time they took the money aggregating $5,559.00. State’s Exhibit 1 was admitted into evidence without objection. Mrs. Cherry specifically identified this jewelry as a yellow-gold pin with rhinestones and matching gold earrings, spiral earrings with pearls, a wedding band with a quarter carat solitaire and an engagement ring.

Donald Nissen testified that he had previously entered a plea of guilty to the robbery of Mr. and Mrs. Cherry and had received a sentence of 15 years.

Nissen testified that the robbery had been planned at the home of the defendant Paul Summers in Clanton, Alabama. Nis-sen testified that present at the time were Danny McClellan, Danny Register and Bull Poe. Nissen testified that Danny McClellan is presently doing a natural life sentence in the Florida State Penitentiary. He testified that Bull Poe is currently serving two life sentences in Alabama. And he said that Danny Register is currently in jail waiting to go to the penitentiary. Nissen testified that the discussion concerning robbing the Cherrys took place approximately six weeks to two months before the robbery occurred.

At this meeting at Summers’s house, Summers told the group that he had been up to the Cherrys’ house in Marshall County and “looked at it with the intention of burglarizing the house to rob a safe with someone else.” Summers said that due to the fact there was a burglar alarm on the house they were not able to enter the house and that he wanted the group to go up there and look at the house with him with the thought of robbing Mrs. Cherry at gunpoint. Summers said that there would be no one there but Mrs. Cherry herself.

A few days after this meeting Nissen, Poe, Register, McClellan and the defendant Summers drove to Boaz to rob Mrs. Cherry. When they arrived they found that Mrs. Cherry had remarried and, because they were uncertain as to who her new husband was, and how many people might now be living in the house, plans to rob the house and its inhabitants were postponed.

Nissen testified that some five or six weeks later in August of 1975 a group consisting of himself, Danny McClellan, Bull Poe, Paul Summers, Jimmy Thomas and Rusty Zinghan left for Boaz from the defendant’s ear lot in Clanton early in the morning. McClellan, Poe and Summers were traveling in Summers’s Lincoln Continental. Zinghan, Thomas and Nissen were traveling in a black 1965 Oldsmobile which they got from the defendant Summers’s car lot in Clanton.

On the way to Boaz they stopped just south of Birmingham in the town of Hoover and robbed a family in that community around midmorning. Following this robbery the group traveled to Boaz and arrived there approximately two hours before dusk.

The group assembled in the Holiday Inn parking lot in Boaz and traveled in one car to the Cherrys’ house. The house was pointed out to the group by the defendant Summers. They all then returned to the Holiday Inn. At that time Zinghan, Thomas and Nissen got in the black 1965 Oldsmobile and drove around waiting for nightfall. McClellan, Poe and Summers waited behind for them at the Holiday Inn in Summers’s Lincoln Continental.

After nightfall Nissen, Zinghan and Thomas drove to the Cherry residence and Nissen and Thomas went to the front door. Zinghan waited in the car. After gaining entrance to the house on the ruse that they had some cars to sell, Nissen and Thomas proceeded to tie up and rob Mr. and Mrs. Cherry.

After entering the house Nissen returned to the front door and notified Zinghan, who was waiting outside in the car, to leave. Following the robbery Nissen and Thomas left in one of the Cherrys’ cars. They drove to the Holiday Inn parking lot where they met McClellan, Poe and the defendant Summers.

Nissen had a suitcase he had taken from the Cherrys’ house in which he had placed the guns used in the robbery and the money and jewelry obtained during the robbery he put in an attache case. Nissen gave this suitcase and the other case to Paul Summers. Summers took both cases and threw them in the back of his Lincoln Continental. After hiding the Cherrys’ Oldsmobile in a field, Nissen, Zinghan, Thomas and Poe met with McClellan and the defendant Summers at a truck stop; At that time McClellan counted out $500 each from the proceeds of the robbery to Thomas and Zinghan. Following this, Poe and Nissen took Zinghan and Thomas to Birmingham where Zinghan and Thomas boarded a plane to Tampa, Florida.

After dropping off Zinghan and Thomas at the airport in Birmingham, Nissen and Poe drove to Clanton where they met Summers and McClellan at Summers’s car lot. There they parked the 1965 black Oldsmobile that they had used in the robbery back in the car lot and removed the license plates that had been used in the robbery from it.

The four, Nissen, Poe, McClellan and Summers, then went inside the office of the car lot and divided up the money and jewelry that had been taken in the robbery. Nissen testified that Summers’s share of the money taken in the robbery was approximately eight or nine hundred dollars. All of the silver coins taken from the robbery were left at the office of Summers’s car lot. Summers was supposed to take the silver coins and “turn them into cash.” Part of the jewelry was taken by Danny McClellan and the rest was left in Clanton with the defendant. Nissen got a Longine watch for part of his share of the jewelry.

Nissen then identified several items of jewelry that had been taken in the robbery and previously identified by Mrs. Cherry.

Nissen testified that the defendant Summers had provided the license plates that were placed on the automobiles used in the robbery.

On cross-examination Nissen testified that he had also pled guilty to two second-degree burglary charges in Houston County, Alabama and received a 15 year sentence, concurrent with the 15 years he received in the Cherry robbery. Nissen testified that he had an agreement with the State of Alabama whereby he was to receive a total of 15 years imprisonment for the commission of some six robberies and two burglaries.

On redirect Nissen testified that Summers came along on the trip to Boaz “in case we had to open a safe, to open the safe for us at the first place that we had robbed that day,” (the robbery that had occurred in Hoover earlier on the same day as the Cherry robbery). Summers had brought along safe cracking tools on the trip.

Elaine McClellan testified that her husband, Danny McClellan, is presently serving a life sentence in the State of Florida.

Mrs. McClellan identified several items of jewelry that had been previously identified as coming from the Cherry robbery. She testified that she first saw the items of jewelry at the defendant Summers’s car lot in Clanton in late August or early September of 1975. She testified that she and her husband Danny McClellan had driven up to the defendant’s car lot from their home in Dothan.

When they arrived at the car lot they were met by the defendant Paul Summers. The three of them went into the office at Paul Summers’s car lot. Upon entering the office her husband, Danny and the defendant Summers went into a side office. Shortly afterward they returned. As they returned she saw the defendant Summers handing to her husband a small white box. At the time she saw Summers hand the box to her husband she heard Summers say, “This is the rest of the jewelry from the score off the mountain.” She also heard Summers say that the jewelry came from the lady who owned the auction in Boaz.

Later, on the way back to Dothan in the car she looked into the box and saw the items of jewelry which she had previously identified and two wristwatches — a man’s and a woman’s. The man’s wristwatch was given by her husband to her younger brother and the woman’s wristwatch was pawned in a pawnshop in Tampa, Florida. The rest of the jewelry remained at her house until the investigation into this case began and was turned over by her to Lieutenant Stokes of the Dothan Police Department.

Mrs. McClellan also testified that during the time she and her husband were at the defendant’s car lot in Clanton she heard Summers complaining to her husband “that Don (Nissen) had held out some things off the mountain.” Summers also said at the time that it wasn't the first time that Nis-sen had “held out some things from a score that I had set up.”

Mrs. McClellan also testified that Summers was complaining at the time to her husband about Don (Nissen) and Jimmy (Thomas) having screwed up a job in Co-lumbiana the same day.

The witness also testified that a few months preceding the trial she received a telephone call from the defendant Summers at her residence in Dothan. During the conversation the defendant asked her if she had “heard about Wormy (Donald Nissen) being picked up in the blue Mark IV” in Florida. Summers also said that he Summers, had heard that “Don (Nissen) and Danny (McClellan) had gotten together and talked to the big men.” Mrs. McClellan testified that Summers also told her that if Bull (Poe) had done the job right that he would “not be where he is at today.” Summers also said that he was having to send money to Poe to keep his mouth shut.

Mrs. McClellan also testified that just a few weeks prior to the trial she received another telephone call from the defendant Summers at her home in Dothan. During the conversation Summers asked her if she was going to be a State’s witness in the case against him. She testified that he said, “I don’t hurt women or anything, but are you a State’s witness?”

On cross-examination Elaine McClellan testified that she had worn some of the stolen jewelry she had previously identified prior to turning it over to the Dothan Police Department. She stated that she turned the jewelry over to Lieutenant Stokes of the Dothan Police Department when she learned that Donald Nissen had been arrested. She testified that no case was currently pending against her for buying, receiving or concealing stolen property. She testified that she did not have a felony record.

Mrs. McClellan testified that the life sentence her husband Danny McClellan was serving in Florida was a natural life sentence for a murder committed during the course of a robbery. She stated that McClellan would not be eligible for parole for 25 years.

Following the testimony of Elaine Campbell McClellan it was stipulated by the attorneys for the State and for the defense that the case had been brought in the proper venue.

Appellant contends that the indictment in this case is void and would not support the judgment of conviction. We do not agree.

This Court has held many times that there are three essential elements of the crime of robbery. They are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716.

The constitutional right of an accused to demand the nature and cause of the accusation against him is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.

An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.

The indictment in this case practically tracks the form prescribed by the statute for the offense of robbery. Title 15, Section 259, form 95, Code of Alabama 1940.

Appellant claims that the indictment does not sufficiently charge the offense of robbery because it does not contain the formal wording “from the person of or in the presence of” in referring to the taking of the property from the victims.

In Hardis v. State, 28 Ala.App. 524, 189 So. 216, was held good an indictment charging the defendant with “having feloniously taken one automobile truck of the value of $500, and meal of the value of $10, all of the aggregate value of $510, the property of I. N. Stewart, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same.” It will be noted that the words “in the presence of” were omitted from the indictment in Hardis, supra.

Title 15, Section 232, Code of Alabama 1940, provides, in pertinent part, that an “indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; . . ”

The indictment in this case is couched in language so clear that any person of common understanding would know that the crime of robbery was charged against appellant.

Cases in other jurisdiction which have considered this same issue clearly hold that the words “from the person of or in the presence of” are not necessary in an indictment for robbery as long as it can be reasonably inferred that the property in question was taken from the person of, or under the control of, the victim of the robbery. See Salzer v. Maxwell, 173 Ohio St. 573, 184 N.E.2d 396; People v. Franklin, 22 Ill.App.3d 775, 317 N.E.2d 611; State v. Oliver, 32 Ohio St.2d 109, 290 N.E.2d 828; People v. Williams, 403 Ill. 248, 85 N.E.2d 828; Smyth v. White, 195 Va. 169, 77 S.E.2d 454.

In Salzer v. Maxwell, supra, the appellant complained that the indictment did not contain the words “from the person of” and contended that the omission of those words rendered the indictment defective in not alleging an essential element of the crime.

The Ohio Supreme Court specifically upheld the indictment saying:

“All of the provisions of the statute were contained therein except the phrase, ‘from the person of’ and, when the allegation, ‘did steal’ from Chester Schubert, is read in conjunction with the remainder of the indictment, it is clear that the currency was taken from the person of, or that the currency was under his immediate control at the time of the theft.”

Appellant appeared along with his retained counsel at his arraignment approximately one month prior to the date of his trial. At his arraignment appellant received, read and signed a printed copy of his legal rights in the presence of his attorney. This document informed appellant that he was charged with the offense of robbery, and explained the minimum and maximum sentences to him and his legal rights. There was a colloquy between the Court and appellant during the arraignment proceedings in which appellant informed the Court that he had read and understood his legal rights contained in the printed document and that it was not necessary for the Court to explain his rights in more detail. At appellant’s arraignment the Court expressly told appellant, “The Grand Jury of this County has returned an indictment against you; that indictment charges you with robbery.” The indictment was read to appellant in the presence of his attorney and a not guilty plea was entered at that time.

Although appellant was given more than two weeks after his arraignment to file any pleas or motions, no demurrer to the indictment or any motions challenging the sufficiency of the indictment were ever filed by appellant. At the time appellant made a motion to exclude the State’s evidence he did not question the sufficiency of the indictment in any form or fashion. The sufficiency of the indictment was raised for the first time on this appeal.

We hold the indictment is sufficient to support the judgment of conviction.

Appellant contends that the trial court committed reversible error in denying his motion to exclude the State’s evidence. The basis of this motion was that Mrs. McClellan was an accomplice in the robbery and there was no legal evidence to corroborate the testimony of Donald Nissen who was an admitted accomplice. The trial court charged the jury that Nissen was an accomplice as a matter of law and that the jury could not convict appellant on the uncorroborated testimony of Nissen. The Court further charged the jury that after considering all of the evidence in this case, “you determine that Elaine Campbell McClellan, that particular witness, was also an accomplice then you cannot convict the defendant in this case.”

The testimony of Mrs. McClellan shows beyond any question that she was not an accomplice in the robbery of Mr. and Mrs. Cherry. She testified that she had seen appellant in his office hand a small white box to her common-law husband, Danny McClellan, and heard him state to her husband, “This is the rest of the jewelry from the score off the mountain.” After leaving appellant’s place with her husband she opened the box and found jewelry in it. She wore the jewelry for six to nine months, knowing it was stolen, but without ever knowing from whom it had been stolen. She heard appellant say that the jewelry came from the lady who owned the auction in Boaz, but she did not know the name of that lady. It is clear that Mrs. McClellan had no prior knowledge of the robbery of Mr. and Mrs. Cherry and had no knowledge where the stolen jewelry had come from other than hearing what appellant told her husband at the time appellant gave the box to her husband.

The following cases demonstrate that Mrs. McClellan was not an accomplice in the robbery of Mr. and Mrs. Cherry: Childs v. State, 43 Ala.App. 529, 194 So.2d 861; Dye v. State, 25 Ala.App. 138, 142 So. 111; Belser v. State, 16 Ala.App. 504, 79 So. 265.

The testimony of Mrs. McClellan was more than ample and sufficient legal corroboration of the testimony of Donald Nis-sen, an admitted accomplice.

Next appellant contends that the trial court committed reversible error in allowing testimony concerning the robbery in the Hoover-Columbiana area on the same day and date and by the same parties who robbed the Cherrys at Boaz, Alabama.

In Jackson v. State, 229 Ala. 48, 155 So. 581, the Supreme Court held:

“Evidence of other and distinct criminal offenses, at other times and places, is admitted in evidence only in exceptional cases and for limited purposes. Among these are cases where such evidence may throw light on the motive, intent, scien-ter, or identity, and so tend to establish the guilt of the party of the offense for which he is being tried. The details of such other crimes are not admissible, except in so far as essential to disclose the motive or other matter for which it is admitted. Gassenheimer v. State, 52 Ala. 313; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782; Moore v. State, 10 Ala.App. 179, 64 So. 520; Davis v. State, 213 Ala. 541, 105 So. 677.
“But this case is governed by another and different principle. Everything constituting the one continuous transaction is admissible as of the res gestae. No matter how many distinct crimes may be involved, all the details of the 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. In cases of robbery the jury is given a wide range of discretion in fixing the punishment. They may look to all the circumstances constituting part of the res gestae in meting out punishment within the limits prescribed by law. It follows all these circumstances are the subject of legitimate argument on the part of the solicitor. Ingram v. State, supra; Kennedy v. State, 182 Ala. 10, 62 So. 49; Smith v. State, 88 Ala. 73, 7 So. 52; 16 C.J. Section 1115.”

The case of Lowe v. State, 134 Ala. 154, 32 So. 273, dealt with the prosecution for larceny of 18 head of cattle from a farm in Macon County. While the defendants were driving away with the 18 head of cattle they stopped and picked up a bull that belonged to another person and carried the cattle and the bull to Montgomery. The Supreme Court held that everything that happened on the drive from the first farm to the second farm and then on to Montgomery was part of the same transaction and admissible against the defendants.

In Parsons v. State, 251 Ala. 467, 38 So.2d 209, the defendant was tried for robbing a man at his home, of a set of car keys. The State was permitted to prove, over objections, that the automobile to which the keys belonged was then used by the thief in committing a burglary. The Supreme Court said:

“But the rule is that if several crimes in fact constitute one criminal transaction, evidence of all such crimes may be given as part of the res gestae of the offense with which defendant is charged.”

Numerous cases to the same effect are collected in Ala.Dig.Crim.Law &wkey;365(l).

We hold that evidence of the robbery in the Hoover-Columbiana area which was committed by the same parties and on the same day and date as the robbery of Mr. and Mrs. Cherry at Boaz was properly admissible as of the res gestae and constituted one continuous criminal occurrence or adventure.

Finally appellant contends that the prosecuting attorneys committed reversible error during their closing arguments to the jury wherein the prosecutors referred to appellant as (1) a “safe specialist”; (2) asked the jury to “put the defendant out of circulation for a substantial time to make sure that he will have reached the age of maturity by the time he walks the streets again, and that he will be mature enough not to go back on the job of setting up robberies all over the state”; and (3) because the prosecuting attorney charged the defendant with threatening a witness for the State.

It is settled law that counsel both for the State and the defendant are allowed wide latitude in drawing their deductions from the evidence in argument to the jury. Johnson v. State, Ala.Cr.App., 335 So.2d 663; Colston v. State, Ala.Cr.App., 325 So.2d 520; Edson v. State, 53 Ala.App. 460, 301 So.2d 226.

In Edson v. State, supra, this Court said:

“Every fact the testimony tends to prove, every inference counsel may think arises out of the testimony, the credibility of the witnesses, as shown by their manner, the reasonableness of their story, their intelligence, means of knowledge, and many other considerations, are legitimate subjects of criticism and discussion. So, the conduct of the accused, his conversation (if in evidence), may be made the predicate of inferences, favorable or unfavorable.”

In Johnson v. State, supra, it was recognized that “comments, even though hard hitting, which may arise from reasonable inferences from the evidence are permissible.”

In Colston v. State, supra, this Court held:

“There is no legal standard by which the prejudicial qualities of improper remarks of a District Attorney in the trial of a case can be gauged. Each case must be determined on its own merits.”

In Edson v. State, supra, we further observed:

“It is both the duty and the right of counsel to present the case of his client, whether it be the State or a defendant, as fully and forcibly as the evidence, its tendencies and the inferences therefrom may justify. Within these limits, the widest range of discussion should be accorded.”
“The rule in this State is well established and has often been cited. It is as follows: ‘The statement must be made as a fact; the fact stated must be unsupported by any evidence, must be pertinent to the issue or its natural tendency must be to influence the finding of the jury . . ”

(Emphasis in the original).

The evidence adduced was crystal clear that on the day in question, the appellant and five associates left from appellant’s car lot in Clanton, Alabama, for the express purpose of committing two robberies that same day—one in the Hoover-Co-lumbiana area south of Birmingham and the other in Boaz, Alabama, at the home of Mr. and Mrs. Joseph Cherry. The evidence showed that in addition to providing the information concerning the places to be robbed the appellant furnished the vehicles with false license plates to be used as transportation to the designated places. Appellant went along with a set of burglary tools or safe cracking tools, to open safes in the event his services were needed or required.

In the light of this evidence reference to appellant as a “safe specialist” was a legitimate inference to be drawn by the prosecuting attorney in his argument to the jury.

For analogous authorities see the cases of Jeter v. State, Ala.Cr.App., 339 So.2d 91, a worthless check ease where the prosecutor referred to the defendant as a “flim flam artist”, and Matthews v. State, 42 Ala.App. 406, 166 So.2d 883, a stolen property case where the prosecutor referred to the defendant as a “fence.” This Court held that the argument of the prosecutor in both of these eases “falls in the scope of proper argument as being a reasonable inference from the evidence as presented.”

With reference to the argument of the prosecuting attorney in requesting the jury to put appellant out of circulation for a substantial time to keep him from setting up robberies all over this State we think this argument was no more than an appeal to the jury to convict appellant and, thus, protect society from the commission of similar crimes. Witt v. State, 27 Ala.App. 409, 174 So. 794; Hawes v. State, 48 Ala.App. 565, 266 So.2d 652; Barnett v. State, 52 Ala.App. 260, 291 So.2d 353.

It can be fairly said that the testimony showed that appellant “set up”, conceived, planned and participated in the robbery of the Cherrys’ home in Boaz. Added to this is the testimony of Mrs. McClellan that appellant said that it “wasn’t the first time that Nissen held out some things from a score that I had set up.”

The argument with reference to appellant threatening a State witness is fully supported by the record. Mrs. McClellan testified that appellant called her on the telephone and stated, “I don’t hurt women or anything, but are you a State’s witness?” The clear implication of this testimony was a warning to Mrs. McClellan that she would be in danger if she showed up at appellant’s trial and testified against him. This was a proper subject of comment by the prosecutor.

Appellant filed interrogatories to two witnesses who were either in jail in Alabama or in prison in Florida. These interrogatories were filed the day before appellant moved for a continuance so that these witnesses would have time to answer these interrogatories. There was absolutely no showing what the testimony of these witnesses would be. The trial court did not abuse his discretion in denying appellant’s request for a continuance under the circumstances of this case. Brown v. State, 247 Ala. 288, 24 So.2d 223; Sparks v. State, 46 Ala.App. 357, 242 So.2d 403.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Oliver Paul SUMMERS.
    SC 2691.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Larry Glenn BRYANT v. STATE.
    1 Div. 721.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      M. A. Marsal and Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant, Larry Glenn Bryant, with murder in the second degree. The jury found the appellant guilty of manslaughter in the first degree and fixed punishment at seven years imprisonment. The trial court then entered judgment in accordance with this verdict.

Anitra Steel testified that on the night of June 25, 1975, around 12:15 a. m., she met Ricky Deakle and Alvin Bryan, the deceased, at the post office in Coden, Alabama. Steel stated that she asked Deakle and Bryan to take her to the appellant’s house. The three of them parked in front of the appellant’s house, according to Steel, and Bryan and Steel got out of the car. Steel testified that she called the appellant’s name while standing along with Bryan on the street in front of appellant’s house. Deakle testified that he saw the appellant come to the window and that he told Steel and Bryan, “You all get in the car” (R. 134). Steel testified that she saw the appellant come out of the house with a gun, and that she and Bryan got in the car. After Steel and Bryan got in the car, a shotgun blast hit the passenger’s side of the car where Bryan was sitting.

Dr. David Franklin Dean, Associate Professor at the College of Medicine at the University of South Alabama, testified that he operated on Bryan June 25, 1975. Dr. Dean testified that Bryan died a few days later of gunshot wounds to the brain (R. 106).

Marion Bryant, mother of the appellant, testified that about 12:30 a. m. on the morning of the shooting, she heard her son in the kitchen fixing something to eat. Bryant testified that she also heard a car motor running and several voices (R. 194). She stated she heard someone outside say, “Get his car” (R. 194). Bryant ran to the back door of the house and out to the carport where she heard a gun go off. Bryant told the appellant, standing with a shotgun, that he should not have shot a gun in the city limits (R. 204). The appellant, according to Bryant, replied, “Well, mother, I shot up over his head” (R. 204). The appellant, Bryant testified, then drove his car to the side of the house and came back inside. The appellant, according to Bryant, stayed up a few minutes to see if they would return. Both Bryant and the appellant went to sleep, but were awakened later by the police knocking on the door.

The appellant testified that he had known the deceased, Alvin Bryan, almost all his life. The appellant stated that he heard someone scream, “Get his car” (R. 222), so he ran to the front window and saw two figures standing outside, alongside a car parked in front of his house. He then got his father’s shotgun, loaded it, and ran out the back door. Appellant testified that he raised the shotgun up to shoot above the car so they would leave. Appellant stated that he never pointed the gun at the automobile, and that he did not even know that Alvin Bryan was in the car. All he wanted to do, appellant testified, was to scare them away because he was afraid someone was trying to steal his car.

Warren Cornelius testified that he had been a gunsmith for thirty-five years and was certified as such by Browning and Savage (R. 239). Cornelius stated that State’s Exhibit 12, the Winchester automatic, was chambered for a two and three quarters type of shell. The expended shotgun shell (Exhibit No. 14), according to Cornelius, was a three inch shell. Cornelius testified that when a three inch shell is fired in a three quarter inch chamber, “[I]t leaves the end of the barrel, these flat shots have a tendency to sail, giving a wide pattern there” (R. 243).

I

Appellant contends that the trial court committed reversible error in charging the jury that a reasonable doubt means, among other things, “a real and substantial doubt after considering the evidence” (R. 268). The appellant, at the close of the oral charge, properly excepted to that portion of the oral charge.

In Hall v. State, 54 Ala.App. 198, 306 So.2d 290, cert. denied 293 Ala. 757, 306 So.2d 294, this Court approved a definition of reasonable doubt in almost the same language used in this case. In Hall, the trial court charged the jury that, “A reasonable doubt means a real doubt or a substantial doubt growing out of the evidence. It is a doubt for which a reason can be given” (Emphasis supplied).

The trial court did not err in its definition of a reasonable doubt.

II

Appellant contends that the trial court committed reversible error in refusing to give requested charges 5, 14, 16 and 17, all of which stated, in essence, that the legal presumption of innocence was to be regarded as a matter of evidence in behalf of the appellant.

These refused charges were not covered by the trial court’s oral charge. Such constitutes reversible error. Denson v. State, 50 Ala.App. 409, 279 So.2d 580; Davis v. State, 284 Ala. 135, 222 So.2d 719; Guenther v. State, 282 Ala. 620, 213 So.2d 679; Gordon v. State, 40 Ala.App. 214, 110 So.2d 329, cert. granted 268 Ala. 517, 110 So.2d 334.

III

Appellant contends that the trial court committed reversible error in refusing to give the following requested charge: “Defendant’s Requested Jury Charge No. 13. If you have a reasonable doubt of defendant’s guilt growing out of the evidence or any part of it, you must acquit him” (Emphasis supplied).

The trial court did not instruct the jury in its oral charge that a reasonable doubt might arise from only a part of the evidence, nor was such covered by any given charges. The refusal of this charge also constitutes reversible error. Smith v. State, 51 Ala.App. 527, 287 So.2d 238, cert. denied 292 Ala. 750, 289 So.2d 808; Tidwell v. State, 40 Ala.App. 580, 118 So.2d 292; Lockett v. State, 40 Ala.App. 427, 117 So.2d 155.

IV

Refused charges 3, 6, 7, and 20 deal with the law of reasonable doubt and the measure of proof required of the State. The principles set out in these refused charges were covered by the oral charge. Error does not appear in their refusal. Title 7, Section 273, Code of Alabama 1940.

For the errors shown in refusing the aforementioned charges, the judgment of the trial court is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2743.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    Gary Ernell DENSON v. STATE.
    6 Div. 115.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.
    Arthur Parker for Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant, Gary Ernell Denson, with the robbery of Pauline Mildred Moore by taking $85.00 in currency from her person. The jury found the appellant “guilty as charged” and fixed punishment at ten years imprisonment. The trial court then entered judgment in accordance with this verdict.

Pauline Mildred Moore testified that on April 19, 1975, around 4:00 p.m., a young black male wearing blue jean pants and a blue jean cap came in the cleaners where she was employed. According to Moore, the young male pulled a gun and demanded all the money in the cash register. After the young male left with some $85.00 from the cash register, Moore telephone the police. Within thirty to forty-five minutes after Moore notified the police, two officers came to the cleaners with the appellant in custody. Moore identified the appellant as the robber.

Officer Daniel R. Teem testified that on April 19,1975, while working as an observer in the police helicopter, he saw a black male running down an alley in close proximity to where the robbery occurred. Teem kept the suspect under surveillance until Officer Watkins arrived in a patrol car and placed the appellant under arrest.

The appellant called seven witnesses, all of whom testified that they either saw the appellant or had talked with him over the telephone between noon and 4:00 p.m. the day of the robbery.

I

Appellant contends that the trial court erred in not allowing appellant to present testimony outside the presence of the jury to determine if an in-court identification was tainted by pretrial procedures.

When an identification procedure is “so unnecessarily suggestive and conducive to irreparable mistaken identification” it may deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, at 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199. In this case the appellant was identified by Moore in a one-man showup within forty-five minutes after the criminal act. In Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, Judge Burger, now Chief Justice of the Supreme Court of the United States, stated:

“There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule, allowing spontaneous utterances a standing which they would not be given if uttered at a later point in time. An early identification is not error. Of course, proof of infirmities and subjective factors, such as hysteria of a witness, can be explored on cross-examination and in argument. Prudent police work would confine these on-the-spot identifications to situations in which possible doubts as to identification needed to be resolved promptly; absent such need the conventional line-up viewing is the appropriate procedure.”

In United States ex rel. Cummings v. Zelker, 2 Cir., 455 F.2d 714, the Court of Appeals for the Second Circuit stated:

“The crime was committed in broad daylight, and Mrs. Camardella testified she was able to get a good look at the petitioner’s face. The identification procedures took place within an hour after the crime, and thus it can fairly be assumed that her recollection was fresh. United States ex rel. Anderson v. Mancusi, 413 F.2d 1012, 1013 (2 Cir. 1969). ...”

The record discloses that Moore’s identification of appellant was based on her observations of appellant during the robbery (R. pp. 10, 11) which took place in broad daylight, inside a well lighted business establishment. The subsequent one-man showup within forty-five minutes of the criminal act indicates good police work. Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100; Cole v. State, 52 Ala.App. 447, 293 So.2d 871; Taylor v. State, 55 Ala.App. 184, 314 So.2d 104. Claim of denial of due process is without merit. Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623; Cole v. State, supra.

II

Appellant contends that the trial court made prejudicial remarks about the appellant and that subsequent curative instructions were inadequate.

During the trial the following occurred (R. p. 59):

“THE COURT: Sustained. I think he is. I don’t understand the time you saw the hat in the presence of Sgt. Cousins or around him. Is that the date of the robbery or the next day?
“A. No, sir, it was the next day, on Sunday.
“MR. PARKER: I would at this time ask for a mistrial because Your Honor had said that this was a robbery and that is the ultimate question to be decided.
“THE COURT: Well, overruled.
“MR. PARKER: We except.
“Q. So that I can understand, was there a date in the hat?
“A. I don’t know.
“THE COURT: Needless to say I will just say this. The fact that I called this a robbery that this lady has testified to doesn’t in anywise indicate that the — that this defendant was involved from this Court’s point of view. That is what we are trying. It should not be and I assume that the jury would not take it as any indication that I am indicating that the defendant was there or not there or guilty or not guilty.”

The record discloses that the trial judge in an emphatic manner told the jury that the fact that he had referred to this as a robbery in no way indicated that the appellant was involved. In Shadle v. State, 280 Ala. 379, 194 So.2d 538, the Alabama Supreme Court stated:

“ . . . [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion. . . . ”

Here, the trial judge took the necessary steps to remove any possible prejudicial effect his statement may have had. Thus, no error is shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State (Ala.Cr.App.), 333 So.2d 193; Napier v. State (Ala.Cr.App.), 337 So.2d 62.

III

Appellant contends the trial court erred in not allowing testimony of an unexpressed mental operation.

During cross-examination of Moore, the following occurred (R. p. 81):

“Q. (BY MR. PARKER) Mrs. Moore, now you have said previously that you changed your testimony about the hair on the chin. Why have you changed your testimony about that?
“MR. HUFFSTUTLER: I object to the form of the question.
“THE COURT: Sustained.
“MR. PARKER: Under the Stark case, I am saying she could answer this.
“THE COURT: I am not sure— Stark — I don’t think that covers this situation. I don’t think that case and the criminal case which follows it covers this situation. I am going to sustain the objection to it.
“MR. PARKER: All right. We except.”

In Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), upon which appellant relies, the Supreme Court of Alabama said (at page 210, 301 So.2d at page 83):

“ . . .We now hold that a witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in the case. This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse. . . . ” [Emphasis supplied]

The record discloses that the appellant was allowed to go into Moore’s identification of appellant in detail. In light of appellant’s thorough cross-examination of Moore, we find no abuse in the trial court’s ruling on this matter.

We have carefully examined the record, as required by law, and find the same to be free from error. The judgment of the trial court is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., concurs in result only.


author: BEATTY, Justice.

text:
    Ex parte Gary Ernell DENSON.
    SC 2767.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Sherman J. WILLIAMS v. STATE.
    3 Div. 731.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Aug. 16, 1977.

      Randolph P. Reaves, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial on a two-count indictment charging grand larceny, and buying, receiving, concealing, or aiding in concealing, one Midland CB radio, of the value of $130.00, the personal property of Joe Tisdale. In the presence of court-appointed counsel at arraignment, appellant pleaded not guilty and not guilty by reason of insanity. The jury returned a general verdict of guilty as charged. The Court sentenced appellant to imprisonment in the penitentiary for a term of two years. He is in this Court with a free transcript and trial counsel was appointed to represent him on this appeal.

Mrs. Twyla B. Tisdale testified that she took her automobile to Capitol Motor Company on the morning of July 9, 1976, to be serviced. She told the man who wrote the work order there was a CB radio in the car and this was noted on the work order sheet. She stated that the CB radio was a gift from her to her husband and that she paid approximately $120.00 for it. She got off work at 4:30 on the afternoon of the same day she took her car to be serviced and when she went to pick up her car, she found the radio missing. She returned to the service department and reported the CB radio was not in her car. She was informed that Capitol Motor Company was not responsible for the theft of the radio. Mrs. Tisdale further testified that later she went to the Montgomery County Sheriff’s Office where she identified the CB radio. She said she knew it was the one that was taken from her car because her husband had engraved his name and Social Security number on the radio in her presence. She stated her husband’s name had been put on the CB radio in two places, but that in one place his name had been painted over.

On cross-examination Mrs. Tisdale testified that the radio was used both in her car and in her husband’s pickup truck. She said that her husband used the radio on the weekends and she used it during the week; that after recovering the radio from the Sheriff’s Department they put a slide-in bracket on it so that they could take it in and out of their vehicles.

She further testified that when she went to get her car she was not told whether it was locked or unlocked, that she was just given the keys. When she went to get her car she found both doors were unlocked, and no one was in the area of the car when she went to get it.

At the conclusion of Mrs. Tisdale’s testimony appellant moved to exclude the CB radio as evidence on the ground that the chain of custody had not been sufficiently established. This motion was overruled and the CB radio was admitted into evidence as State’s Exhibit No. 2.

Clarence Miller, an employee of Brewbaker Buick, testified that he knew appellant. He stated that in July, 1976, appellant came to see him a couple of times at the Buick place; on one of the occasions appellant asked Miller if he had a CB and he told him no. Appellant told Miller he had a CB radio and he would sell it to him. Appellant opened the trunk of a car he was driving and took out a paper bag and showed a CB radio to him. Appellant told Miller that the CB was his brother’s, but his brother had wrecked his car and did not have another car to put the radio in. Miller said he paid appellant $40.00 for the CB. Miller was shown State’s Exhibit No. 2 and positively identified it as the CB radio he bought from appellant for $40.00. He stated that he knew it was the same radio because it had the name “Tisdale” on it and that name was on it when he bought it from the appellant.

Miller further testified that Deputy Sheriff Duke came and got the CB from him five or six days after he bought it from appellant. Miller stated that he had not talked with appellant about the CB since he bought it from him and that he had not gotten his money back.

On cross-examination Miller testified that he was told that he might have to testify about purchasing the CB radio. He again stated that he saw the name “Tisdale” on the radio when he first got it. He said he first saw the CB at the Brewbaker Buick lot where appellant had it in the trunk of his car wrapped in a brown, rumpled paper bag. He stated that the CB had the same appearance then as it did at the trial and that it was not dusty. He said no one told him that he would get into trouble if he did not testify and that he did not have any interest in the outcome of the case.

Montgomery County Deputy Sheriff Fletcher Duke testified that he and another Deputy investigated the theft of the Tis-dales’ CB radio. They went to Clarence Miller’s home in Greenville, Alabama, on July 26, 1976, to pick up the radio. Duke further testified that he arrested appellant on a warrant signed by Mrs. Tisdale. He brought appellant to the Sheriff’s Office and read him the Miranda rights and warnings. He further testified that appellant said he understood his rights and signed a waiver of rights form. Appellant told the officer that he would make a statement. The statement was signed by appellant on July 31, 1976, and is as follows:

“I first saw the CB in the basement. At first I did not know what was in the paper bag. Then I went and looked in the paper bag and I saw a CB Radio. I left it there for about two weeks. On Friday, 16 July, I took it over to Brew-baker Used Car Lot and sold it to a boy named Clarence. Clarence gave me twenty dollars for it. At the time I sold the CB I had been working at Capitol Olds Motor Company for two and a half months. The next Friday, July 23, 1976, I was fired from Capitol Olds Motor Company.”

The waiver of rights form signed by the appellant was introduced into evidence as State’s Exhibit No. 1, and the signed statement was introduced into evidence as State’s Exhibit No. 3, all over appellant’s objections.

At the conclusion of the State’s evidence appellant moved to exclude the evidence and discharge the defendant on the grounds that the State had failed to show a taking and carrying away to make out any charge against the defendant. Further, that there was no evidence that appellant had any connection with the theft of the CB radio that belonged to Tisdale as alleged in the indictment, and further, that the State had failed to prove any evidence showing aiding and abetting in any way as to the stolen property. The motion was overruled.

The defense then called James Stubbs who was employed at Capitol Motor Company as Service and Parts Director. Mr. Stubbs testified that the appellant worked at Capitol Motor Company from June to July, 1976, as a clean-up man, and that he was discharged from this job. Mr. Stubbs said that the discharge was not related to the theft of the CB radio. The witness testified that at the time of the theft, he had approximately 15 or 20 people working as servicemen and that any of them would have access to customers’ vehicles. He said that keys to customers’ cars were hung on a board at the service shop behind the service writer’s desk, and that this was an open area. He said that anyone who worked in the shop had access to this area. Mr. Stubbs said that after a car is repaired it is parked back on the lot and it may be unlocked or locked, depending on whether they have the keys to unlock the door. Mr. Stubbs did not know who stole the CB radio.

On cross-examination Mr. Stubbs said that Sherman Williams was discharged because he stayed out from work sometimes without calling in and that on several occasions he could not be located during working hours. Mr. Stubbs said that the basement area was the bottom floor of the parking area where the automobiles were stored and also where parts were stored. He said that no CB radios were kept down there. He also said that after finding out that a CB radio had been taken from Mrs. Tisdale’s ear, he did not look for the CB radio, nor did he find it.

Mrs. Martha Williams, the mother of the defendant, testified that on the night he was arrested, he told the police officers that he did not steal the CB radio.

The appellant, Sherman Williams, took the stand and testified that he did not steal a CB radio out of any car at Capitol Oldsmobile, but that he did find a CB radio while working there. He said that he found the radio in the lower ramp area over in a corner in a paper bag. He admitted that the corner was in an area that is well traveled. He said he was goofing off in that area when he found the radio, and that it was in a brown paper bag. He said that he saw the paper bag and went over and looked in it and saw a CB, but that he did not take it at that time. He let it stay there for about two weeks and during that period he did not take it out or examine it. He said he told a friend of his, Fleming Flowers, about the radio. He took the radio to Clarence Miller and he said that Clarence Miller offered him $40 and a tape player for the radio and that he gave him $20 at the time in return for the radio. Appellant said that he never took the radio out of the bag or touched it. He said that he never saw any initials, names or numbers on the radio. He said that he had no reason to believe that the radio might be stolen.

On cross-examination appellant said that he did give a statement to Sheriff Duke and that he remembered his rights being read to him prior to giving the statement. He said that the statement given by Sheriff Duke in court was substantially the same as the statement he had made. The appellant said that Clarence Miller bought the radio without even taking it out of the bag, and that he did not know whether it would work or not. Appellant admitted that on May 28, 1976, he was convicted of buying, receiving and concealing stolen property, a TV set, and that he was given a year in the county jail. The appellant repeated that he did not steal the radio but simply took it out of the basement. He said he did not put the radio there and he did not hide it in the basement.

On recross-examination appellant said that for the two weeks the radio was in the basement, he did not in any way attempt to conceal it or move it or cover it up.

Fleming Flowers testified that he knew the appellant and that during July, 1976, appellant told him about a CB radio that was in a brown paper bag and said that if nobody claimed it, he was going to get it. He said that later appellant came by with the brown paper bag, but he did not take the radio out of the bag.

Appellant filed a motion for a new trial raising the sufficiency of the evidence. No testimony was presented at this hearing and motion was overruled and denied.

The State relied on circumstantial evidence for a conviction. Where the prosecution relies upon circumstantial evidence for a conviction, a very wide latitude is allowed in making proof. Hollenquest v. State, 53 Ala.App. 501, 301 So.2d 264.

Circumstantial evidence will support a criminal conviction if it is so strong and cogent as to show the defendant’s guilt to a moral certainty. Tanner v. State, 291 Ala. 70, 277 So.2d 885; Locke v. State, Ala.Cr.App., 338 So.2d 488. Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Locke, supra; Lewis v. State, Ala.Cr.App., 337 So.2d 108; Jones v. State, Ala.Cr.App., 337 So.2d 116; 6 Alabama Digest, Criminal Law, Sections 552(3), 552(4).

The corpus delicti was proven in this case by the testimony of Mrs. Tisdale, and the officers connected appellant with the crime. Appellant’s possession of the CB radio was shown by the testimony of Clarence Miller. He identified the CB radio as the one he bought from appellant because it had the name “Tisdale” engraved on it.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; 7 Alabama Digest, Criminal Law, Section 1159.2(8).

It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413; Williamson v. State, 57 Ala.App. 113, 326 So.2d 303; Stuckey v. State, 57 Ala.App. 85, 326 So.2d 150.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error.”

The testimony of both Mrs. Tisdale and Clarence Miller sufficiently identified the CB radio which tended to show the commission of the crime, and was properly admitted into evidence, as against appellant’s contention there was a missing link in the chain of custody. Franks v. State, 45 Ala.App. 88, 224 So.2d 924; Lackey v. State, 41 Ala.App. 46, 123 So.2d 186.

In Blakely v. State, Ala.Cr.App., 344 So.2d 812 (released by this Court on March 8, 1977), it was said:

“. . .To warrant the reception of an object in evidence against an objection that an unbroken chain of [evidence] has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”

The evidence in this case clearly shows the CB radio was the property of Joe Tis-dale as laid in the indictment.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ENGLAND, Justice,

text:
    Alex P. COURTELIS et al., as and constituting the Directors and Subscribers of, and on behalf of, the Gold Coast State Bank of Miami Beach, Petitioners, v. Honorable Gerald A. LEWIS, Comptroller and Banking Commissioner, as Head of the State of Florida Department of Banking and Finance, Respondent.
    No. 48902.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Rehearing Denied July 29, 1977.
    Paul B. Steinberg, Miami Beach, and Stephen Marc Slepin, Slepin & Schwartz, Tallahassee, for petitioners.
    Edward E. Kuhnel, Gen. Counsel, William B. Corbett, Jr. and Fred 0. Drake, III, Asst. Gen. Counsels, and George E. Lewis, II, Tallahassee, for respondent.
   The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., and DREW, Ret. J., concur.

ENGLAND, J., concurs specially with opinion with which OVERTON, C. J., and SUNDBERG, J., concur.

ENGLAND, Justice,

concurring.

I agree with the Court’s decision to discharge the writ of certiorari in this case as having been improvidently granted, but I deem it important to express my reasons more fully.

Petitioner had alleged direct conflict between the decision of the First District Court of Appeal below and this Court’s opinion in Lewis v. Judges of District Court, 322 So.2d 16 (Fla.1975). The alleged conflict stems from a factual background in this proceeding said to be identical to the facts in Lewis.

In 1973 Courtelis and others applied to the Comptroller of Florida, acting as Commissioner of Banking, for a bank charter. A conditional approval order was granted in late 1974 but rescinded in early 1975. Following receipt of the notice of revocation, Courtelis’ group apparently received communications from the Commissioner indicating that their application could be processed under Florida’s Administrative Procedure Act which became effective on January 1, 1975, and stating that if they still desired to process their bank charter application they need not refile the original application but could merely file a statement showing the continued validity of data which had been submitted originally. They were also advised that a conference would be held on their application. Apparently, the requisite filing was made to continue the application, as an informal hearing was later held. In due course the Commissioner denied the requested bank charter, and after Courtelis’ group requested reconsideration, a second letter was sent by the Commissioner confirming the denial and presumptively putting the matter to an end.

Courtelis’ group filed a petition with the First District Court of Appeal seeking a review of the Commissioner’s action. The Commissioner responded with a motion to dismiss for lack of jurisdiction, which the district court granted in an order which recites in relevant part:

“It is ordered that the motion is granted. (See Lewis vs. Judges, [322 So.2d 16 (Fla.1975).])”

A request for rehearing was denied and review was sought here.

The basis upon which the district court ruled, judging from its reference to Lewis, appears to be that the bank application of Courtelis’ group was “an administrative adjudicative proceeding” under the old Administrative Procedure Act since the proceeding had begun before the effective date of the new Act. Given the factual parallel with Lewis, such a decision does not conflict with Lewis so as to confer jurisdiction for review here. But, Courtelis asserts, the documents which are in the record show that the district court erroneously rejected his assertion that the new Act should apply either by reason of all parties’ “consent” under Section 120.72(2) or because the proceeding was legally “commenced” in 1975 by reason of the Commissioner’s acts with respect to the original application. The district court did not accept either construction of the record in this case, and it would require a review of the entire record of the proceeding to determine if the facts are at odds with the district court’s summary decision order. As I indicated in AB CTC v. Morejon, 324 So.2d 625, 628 (Fla.1975), it is not our constitutional privilege to search the record of district court proceedings resolved without opinions in order to locate alleged decisional conflicts.

OVERTON, C. J., and SUNDBERG, J., concur.

      . Apparently the Courtelis group’s bank application was one of the 33 pending in the office of the Commissioner when the present Commissioner took office in January 1975. See Lewis v. Judges of District Court, 322 So.2d 16, 18 at n. 2 (Fla.1975).

      . The record on review here does not contain the Commissioner’s motion.


author: ENGLAND, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee, v. AVIS RENT-A-CAR SYSTEM, INC., Defendants-Appellants.
    No. 49795.
    Supreme Court of Florida.
    May 12, 1977.
    Rehearing Denied July 29, 1977.

      John G. Poole, Jr. of the Law Offices of Charles C. Papy, Jr., Coral Gables, and Jeanne Heyward, Miami, for plaintiff/ap-pellee.
    James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for defendants/appellants.
   ENGLAND, Justice.

Pursuant to Florida Appellate Rule 4.61, the United States Court of Appeals for the Fifth Circuit, has certified to us a question of law concerning indemnification as between insurance companies for the financial loss resulting from the negligent operation of a rented motor vehicle. This case arose after two insurance carriers, Liberty Mutual Insurance Company, for Avis Rent-A-Car System, Inc., and Insurance Company of North America (INA), for the lessee, had settled for $350,000 the liability of their insureds to the estate of an individual who had been killed as a result of the negligent operation of a vehicle owned by Avis. This lawsuit began in the United States District Court for the Southern District of Florida, where Avis’ carrier was found to be responsible for the full $350,000 payment under applicable Florida law. On appeal the Court of Appeals certified to us the following relevant facts (some of which were stipulated) and question:

“‘On June 27, 1969, AVIS . . . leased a 1969 Chevrolet Station Wagon owned by AVIS to Camp Ocala, Inc. On July 26, 1969, during the time of the lease, . . . [the] Wagon was being operated by one Jane C. Spit-zer with the consent and permission of Camp Ocala, Inc. Jane C. Spitzer was an employee of Camp Ocala, Inc., and was operating the . . . Wagon within the course and scope of her employment with Camp Ocala, Inc.
‘On July 26, 1969, Jane C. Spitzer . collided with another vehicle resulting in serious personal injury to Martha L. Ru-benstein, a minor, who was riding as a passenger in the Chevrolet Station Wagon being operated by Jane C. Spitzer. Martha Rubenstein was a camper at Camp Ocala, Inc.
‘Subsequently, Martha L. Rubenstein and her father, Arthur Rubenstein, brought suit . . . against Camp Ocala, Inc., and AVIS ....
‘At the time of the accident, the Defendant LIBERTY MUTUAL ... insured AVIS under a liability insurance policy . . .. [INA] insured Camp Ocala, Inc., under a liability insurance policy. . .
‘LIBERTY MUTUAL defended both AVIS and Camp Ocala. .
‘Just prior to the Rubenstein case coming to trial, a settlement of that action was reached for the sum of $350,000.00. The settlement sum was agreed to by both LIBERTY MUTUAL and INA without prejudice to either company litigating their respective rights under the policies at a later time. . . . ’
LIBERTY MUTUAL and INA contributed to the $350,000.00 Rubenstein settlement as follows:
LIBERTY MUTUAL paid the first $100,000.00 $100,000.00
INA paid the next $200,000.00 200,000.00
LIBERTY MUTUAL paid the next $50,000.00 50.000.00
$350,000.00
‘INA in the present action now seeks to recover back the $200,000.00. . . . ’
AVIS is provided with general bodily injury liability coverage in the amounts of $500,000/$l,000,000. By way of endorsement to said policy, any rentee is provided with reduced limits of liability protection to coincide with the specific terms of the standard rental agreement. These limits are $100,000/$300,000.
On the basis of these facts, the [trial] Court framed the issue as follows:
‘Would AVIS (and hence its insurer, LIBERTY MUTUAL) have been entitled to maintain an action for indemnity against Camp Ocala (and hence its insurer, INA) for all sums which AVIS would have been liable to pay to the Rubensteins, in excess of $100,000.00?’
In answering this question in the negative, the [trial] Court viewed Florida law as establishing the principle that the carrier for the owner is primarily liable and has no right of indemnification from the driver of the vehicle or its carrier. The Court based this view on Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972), which, the [trial] Court believed, had derogated the authority of the line of Florida cases which this Court had relied on in Hertz Corporation v. Ralph M. Parsons Co., 419 F.2d 783 (5th Cir. 1969).”

At the outset we are urged by Avis to rephrase the question certified to us, but we do not find that essential to our determinations as to the right of indemnification or the legal limitations on Avis’ attempt to restrict its tort liability. We would answer the question posed in the affirmative, with the obvious limitation that Avis could not recover from Camp Ocala’s insurer more than the policy limit set in the contract between Camp Ocala and INA. • Our reasons follow.

In Hertz Corp. v. Ralph M. Parsons Co., 419 F.2d 783 (5th Cir. 1969), the court applied Florida law to hold that the lessor-owner of a motor vehicle may obtain indemnification from a lessee who employed the negligent driver, on the ground that the vicarious liability of the employer is primary, and that of the owner secondary, for damages in excess of the insurance protection afforded the lessee-driver by the terms of the parties’ rental contract. The financial effect of that decision was to charge to the lessor-owner’s carrier the full amount due as a result of a driver’s negligence up to the limit of the policy provided the driver in the rental contract, and to charge all in excess of that limit to the negligent lessee’s carrier (the carrier for the negligent driver’s employer) up to the policy limits of the lessee’s insurance contract. Presumably, although the point is not discussed in the Hertz case, any amount paid by the lessor-owner’s carrier which is not indemnified by the driver’s (or his employer’s) carrier could be collected from the driver (or his employer) personally.

Hertz, it will be noted, involved multiple layers of insurance for a driver’s negligence, just as were available in this case. One layer is provided under the rental agreement to the lessee from the owner’s carrier ($300,000 in the Hertz case and $100,000 here); another layer is provided to the lessee-employer from .its own carrier (an unstated amount above $25,000 in the Hertz case and $200,000 here); a third layer is provided to the owner from its carrier ($950,000 in the Hertz case and $500,000 here); and a fourth layer is provided to the individual driver from his or her carrier ($20,000 in the Hertz case and an unknown or nonexistent amount here).

Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972), involved an indemnification claim between insurance carriers similar to the one now before us. This Court there held that insurance provided to the lessee as a part of the rental agreement with the owner places primary financial responsibility on the owner’s carrier and bars indemnification from the negligent driver to that extent. The feature of Roth which distinguished it from prior cases saying the same thing was the fact that the negligent driver in Roth was not the lessee and under the rental agreement had no permission from the owner to operate the vehicle. The decision in Roth is simply a re-affirmation of the principal that, because of our financial responsibility law and without regard to the procedural posture of the lawsuit, the owner’s carrier is liable for the damages caused by the vehicle in the course of its intended use, in accordance with the agreement to insure made a .part of the rental contract, no matter who happens to be driving the vehicle.

Roth, it will be noted, did not involve multiple layers of insurance coverage. The insurance coverage provided to the lessee by the owner’s carrier as part of the car rental contract was apparently greater than the loss for which the owner was held responsible.

Against this background we turn to the contentions of the parties in this case. Liberty Mutual argues that the financial responsibility laws of the state were designed to protect members of the public from losses resulting from the ownership and operation of motor vehicles, up to specified minimum amounts per person and per accident. It contends that the policy which it sold to Avis, providing for primary coverage for a lessee’s negligence up to $100,000 per person and for alternate or overlapping coverage for Avis’s negligence up to $500,-000 per person, protected the public well beyond the minimum limits of the statute. Liberty Mutual argues that, since it would be responsible to the full extent of $500,000 per person for Avis’ negligence or for Avis’ responsibility under the dangerous instrumentality doctrine for the negligent operation of a rented vehicle, more than adequate protection is provided to the public. It contends that its indemnification rights for payments in excess of coverage furnished to lessees in no way derogates the public policy served by the statute, so that a $100,000 primary coverage for lessees (or any other amount not less than statutory minimums) is and ought to be contractually permissible. In other words, Liberty Mutual suggests that nothing in Roth or any other Florida precedent bars its right to obtain indemnification from the negligent driver of a motor vehicle or the driver’s employer (or their insurers) to the extent of amounts paid out in excess of the primary $100,000 coverage furnished by the express terms of the rental contract, since that business arrangement in no way affects either the statutes or common law of this state. In essence Liberty Mutual argues for freedom of contract between lessors and lessees of motor vehicles, so long as the public policy of the state with respect to financial protection from motor vehicle mishaps is not impugned. In this vein Liberty Mutual contends that the Roth case, which did not involve multiple layers of coverage, has no bearing on this case at all.

INA contends that Roth directly applies here in two major respects. First, INA contends that Roth'stands for the proposition that rental fees paid to a car rental company pass on the cost of the insurance provided to the owner, so that the lessee is to be viewed as indirectly paying for the coverage provided by the owner’s insurer. That being so, INA argues, it is unfair for Avis’ customers to pay indirectly for $500,-000 of insurance which benefits only Avis, and Avis should be prohibited as a matter of law from providing an insurance contract which does not give coverage to lessees which is co-extensive with the policy limits it obtains for itself. INA also contends that Roth, coupled with Susco Car Renta] System of Florida v. Leonard and the statute, have abolished the former right of indemnification available to an owner against a negligent driver.

In our view, the financial responsibility law is only relevant to situations such as this insofar as it is necessary to protect the public from uncompensated losses arising from the use of motor vehicles. To this end the law requires motor vehicle owners to provide liability insurance coverage for the operation of their motor vehicles on the highways of this state. Independent of this insurance requirement is the common law obligation of vehicle owners under the dangerous instrumentality doctrine. But neither of these financial responsibility principles bear on the allocation of risk between owners and operators in excess of minimum statutory coverage, or on the right of indemnification which derives from the common law principle that fault attracts primary responsibility.

We see nothing in the statute or in the public policy of the state which would require the purchase of co-extensive coverage for lessees (or other operators) and their lessors, or which would prohibit an owner from insuring only itself against economic loss in excess of statutory mínimums and the amounts available to others. The underlying policy of the statute is satisfied once the law’s minimum financial protection is provided to injured members of the public. Neither this statute nor the dangerous instrumentality doctrine asserts any interest of the state with respect to the allocation of risk among commercial enterprises or the responsibility of commercial enterprises to furnish more than minimal statutory coverage to their customers.

We hold that the public policy of the state was satisfied in this case when the injured’s beneficiaries were compensated by the vehicle’s owner for the negligent operation of a rented vehicle. The parties were free to contract between themselves to shift the burden of loss so long as they met the requirements of law, and in this case there is no suggestion that those requirements were not met.

With the public policy questions resolved, we turn to the contracts of insurance on which indemnification is sought and refused. The terms of the policy written by Liberty Mutual to Avis clearly provide that $100,000 is to be the per person primary coverage, but that a $500,000 per person limit was available to Avis for its negligence or its responsibility as owner in the event any lessee did not carry adequate insurance of its own to compensate for the negligent operation of the vehicle. INA’s policy clearly provided that it was not to be responsible for any primary coverage made available from a rental car company, which in this case meant that INA was relieved of responsibility for the first $100,000 of damages caused by its negligent insured. The provisions in these policies mesh perfectly to require payment from the respective companies in precisely the proportions on which they agreed in settling their respective liabilities for the first $300,000 of damages caused by the accident.

Going beyond INA’s liability to that of Camp Ocala, we hold that nothing in the present financial responsibility statute or in the common law of this state would bar Liberty Mutual from bringing suit for indemnification against the negligent driver or the lessee of the car, or their carriers, for the $50,000 it was obliged to pay after the lessee’s insurance had been exhausted. Neither Roth nor Suseo dictates that the owner of an automobile may not be indemnified by the negligent operator or lessee of a vehicle for liability beyond the contract insurance provided to the lessee, so long as the contract provides at least the statutory minimum of coverage. Although Avis and Liberty Mutual are prohibited from seeking indemnification for the first $100,000 of insurance provided through the rental agreement, the public policy which bars indemnification to that extent has no effect on the traditional tort doctrine of indemnification by the wrongdoer.

The question certified by the United States Circuit Court of Appeals is answered in the affirmative, with the obvious clarification that INA cannot be liable for sums in excess of the limits set in its contract with Camp Ocala. The case is returned to that court for further disposition of the appeal in accordance with this advice.

It is so ordered.

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

ADKINS, J., dissents.

      . The lessee in Hertz was the corporate employer of the driver. Liability arose by application of the doctrine of respondeat superior. The same situation pertains in the present case since Spitzer was an employee of Camp Ocala driving in the course of her employment.

      . Camp Ocala paid a separate insurance premium for its coverage limit, and the terms of Liberty Mutual’s primary coverage appeared on a typed attachment to its standard policy.

      . The question of Spitzer’s personal liability, or that of her insurer, has not been raised before us. In Hertz, the driver-employee’s insurance company paid its full policy amount to Hertz as indemnification.

      . See Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla.3d DCA 1964).

      . At least one of the three dissenting justices considered the procedural difference between Roth and Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959), to be a bar to the Court’s authority to review the district court’s Roth decision.

      . This point had already been established in the Susco case.

      . This conclusion is discerned from the district court decision which the Court in Roth reviewed. See Roth v. Cannel, 242 So.2d 491, 492-93 (Fla.3d DCA 1970).

      . § 324.151(l)(a), Fla.Stat. (1975) provides:
      “An owner’s liability insurance policy shall . insure the owner named therein and any other person as operator using such motor vehicle or motor vehicles with the express or implied permission of such owner, against loss from the liability imposed by law for damage arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles . . . subject to [statutory] limits . . .

      . Liberty Mutual states that, in the event it prevails in this lawsuit, it will have a right of indemnification against the negligent driver of the motor vehicle, her carrier or her employer, to the extent of $50,000, the excess over its responsibility for $100,000 of primary coverage and the amount paid by INA under its excess insurance contract with Camp Ocala.

      . INA argues that the financial responsibility law requires co-extensive coverage since Section 324.151(l)(a) directs that “a policy” shall cover both an owner and operator. The suggestion is made that the lack of any reference to an allocation between carriers is ambiguous and that the ambiguity should be resolved in a manner consistent with the highest possible protection to the public.

      . 112 So.2d 832 (Fla.1959).

      . INA suggests that standard rental agreements sold by rental car companies mislead the public and constitute adhesion contracts to be strictly construed against the companies. These issues have not been certified to us for decision by the United States Circuit Court of Appeals. Whether they have been or could be properly made issues in this lawsuit are questions for that court to determine.

      . See the dissent of Mr. Justice Dekle in Roth, 269 So.2d at 7.

      . Had Camp Ocala insured to a higher limit with INA there would be no need for Avis to seek indemnification. Similarly, had Camp Ocala carried less than the $200,000 per person limitation its exposure to liability would have been correspondingly greater.

      . See Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla.3d DCA 1964).


author: BY THE COURT.

text:
    DIVERSIFIED SERVICES, INC., etc., et al., Petitioners, v. Elizabeth JACKSON et al., Respondents.
    No. 49563.
    Supreme Court of Florida.
    May 12, 1977.
    Sam Daniels, Miami, for petitioners.
    W. Thomas Spencer, of Spencer & Taylor, Miami, for respondents.
   BY THE COURT.

The petition for the writ of certiorari is granted. The decision of the Third District Court of Appeal reported at 330 So.2d 830 is vacated and the case is remanded for further proceedings consistent with our decision filed today in Insurance Co. of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977).

It is so ordered.

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

ADKINS, J., dissents.


author: KARL, Justice.

text:
    In the Interest of D. T. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 50578.
    Supreme Court of Florida.
    July 28, 1977.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
   KARL, Justice.

This cause is before us on direct appeal to review an order of the Circuit Court, in and for Orange County, upholding the constitutional validity of Section 39.01(11), Florida Statutes, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

R. M. Highsmith, an official at Great Oaks Village, filed a petition with the Circuit Court on May 19,1976, alleging that D. T. H., thirteen years of age, is a dependent/ungovernable child, that he had been placed in the custody of Great Oaks Village by order of the court dated February 27, 1976, to complete the program of remediation at the Remedial Behavior Center, and that he has not successfully completed the program of remediation since he has left the grounds on several occasions without permission, has disobeyed the staff and has been profane, defiant, disrespectful and argumentative.

The public defender appointed to represent him filed a motion to dismiss the petition wherein he alleged, inter alia, that Section 39.01(11) is unconstitutionally vague, indefinite and overbroad, that the petition was filed and initiated by Mr. High-smith rather than the State Attorney and that the petition failed to allege that D. T. H. had previously been adjudicated ungovernable. This motion was denied and order of commitment to the Division of Youth Services was entered by the trial court. The trial court found D. T. H. to be dependent by reason of ungovernability for the second time within the intent and meaning of Section 39.10, Florida Statutes.

On appeal, appellant first contends that Section 39.01(11) is unconstitutionally vague. We have recently resolved that point against appellant in In Interest of Hutchins, 345 So.2d 703 (Fla.1977), wherein this Court determined that Section 39.-01(11), Florida Statutes, is not unconstitutionally vague.

Appellant next contends that the trial judge erred in adjudicating him delinquent on the basis of a petition which was not filed by a State Attorney and did not contain an allegation that appellant had previously been adjudicated ungovernable. In response, the state submits that appellant was not adjudged delinquent nor did the petition seek an adjudication of delinquency-

There was no adjudication of delinquency sub judice. There was an attempt to define and treat the child as a delinquent after a second hearing based on allegations of un-governability under the provisions of Section 39.01(H).

There is no reference to ungovernability in Chapter 39, except in Section 39.01(11). That section permits a juvenile to be defined and treated as a dependent when adjudicated as an ungovernable child the first time. If the trial judge opts so to define and to treat the child, all of the provisions of Chapter 39 relating to dependency shall be applicable. Similarly, for the second and subsequent adjudications for un-governability, the child may be defined and treated as a delinquent. The definition and treatment as a delinquent does not necessarily follow any particular adjudication of ungovernability but may occur at the second or any subsequent such adjudication. If the trial judge exercises his option to define and treat the child as a delinquent, all the provisions of Chapter 39 relating to delinquency are applicable.

In the case before us, the trial judge attempted to define and treat D. T. H. as a delinquent by committing him to the Division of Youth Services. We hold that he could not do so on the record before him.

The portion of Section 39.01(11) that permits the court to define and treat the child as a delinquent effectually establishes a basis additional to that contained in Section 39.01(12) to attain the status of delinquency. In Interest of Hutchins, supra. No child can be placed in the status of a delinquent unless all provisions relating to delinquency are followed and all required due process rights are accorded.

The appellant’s position with respect to the filing of the petition by a State Attorney is, therefore, well taken. Section 39.-05(1) provides, “All proceedings seeking an adjudication that a child is delinquent shall be initiated by the state by the filing of a petition by the State Attorney.” Since the petition sub judice was not filed by a State Attorney, it is defective and cannot be the basis for an adjudication of delinquency or an order treating a child as a delinquent.

The petition is also insufficient to support the order treating D. T. H. as a delinquent because it fails to allege that he had been previously adjudicated an ungovernable child and that this proceeding could result in his attaining the status of a delinquent.

Although, as we have noted above, in a second adjudication of ungovernability, a child may be treated and defined as a delinquent so long as the due process requisites relative to delinquency, including those delineated in Hutchins, supra, have been complied with, it does not necessarily follow that the court or the authorities will automatically treat him as a delinquent. A second adjudication of ungovernability is not necessarily synonymous with delinquency, even if due process was accorded the juvenile. Therefore, if the authorities choose to have the child adjudicated delinquent through a second ungovernability proceeding, he should be notified of the same in the petition. Here, the charging petition merely alleged that D. T. H. is a dependent/ungovernable child.

While it is not material to the disposition of this appeal, we observe that, if the requirements of Hutchins, supra, were not met in the first ungovernability hearing, then in the second ungovernability proceeding, the child may not be defined or treated as a delinquent child pursuant to Section 39.01(11).

We note that the adjudicatory order includes a finding that the child violated the law as alleged in the petition. The petition does not charge a violation of the law unless the general statement contained in the petition, to the effect that “[said] child has been profane, defiant, disrespectful, and argumentative,” was meant to charge him with profanity under Section 847.05, Florida Statutes. If this be the case, and if the trial court relied on that charge for its order of commitment, then the order would have to be reversed on the authority of Spears v. State, 337 So.2d 977 (Fla.1976). Cf. R. R. C. v. State, 346 So.2d 68 (Fla.1977).

Because of the defects, the record before us cannot support an adjudication of delinquency nor the commitment of appellant to the Division of Youth Services. The most the record before us can support is a second finding of ungovernability and an order defining and treating D. T. H. as a dependent child.

Accordingly, the order of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

It is so ordered.

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

SUNDBERG, J., concurs in result only.

      .Section 39.01(11), F.S., provides:
      “ ‘Ungovernable child’ means a child who persistently disobeys the reasonable and lawful demands of his parents or other legal custodians and is beyond their control. For the purposes of this act, the first time a child is adjudicated as ungovernable, he may be defined and treated as a dependent child, and all of the provisions of this act relating to dependency shall be applicable. For the second and subsequent adjudications for ungov-ernability, the child may be defined and treated as a delinquent child, and all the provisions of this act relating to delinquency shall be applicable. If necessary the court may order placement of the child in secure shelter care pending disposition.”

      . Chapter 39, Florida Statutes, provides that only delinquent children may be committed to the Division of Youth Services for custody, care, training and treatment. Dependent children are supervised by the Division of Family Services.

      . In Hutchins, supra, we said:
      “The first hearing on ungovernability is not necessarily a first step in the adjudication of delinquency. The hearing and the resulting care, custody or supervision by the Division of Family Services may correct any existing problems the child may have and be the last of the child’s experiences with the juvenile authorities. In such cases, the constitutional right to counsel is not mandatory. Potvin v. Keller, supra [Fla., 313 So.2d 703]; Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974).
      “If, however, the first ungovernability adjudication is to be used in a subsequent proceeding in which the child’s status may change from dependency to delinquency because of two or more adjudications of ungovernability, the first such adjudicatory hearing is a critical first step in the delinquency determination and the child is entitled to all due process rights at each step in the procedure.

      “We conclude that it is unconstitutionally impermissible to base an adjudication of ungov-ernability for the second time on a previously conducted hearing in which the child was not instructed as to his right to counsel or provided counsel if an indigent.
      “We reject the argument that such a requirement will convert all of the proceedings to determine ungovernability into criminal type proceedings with both state attorney and defense counsel present in an adversary atmosphere. If the appropriate authority believes that the ungovernability hearing will suffice, there is no reason why it cannot be held as any other dependency proceeding. But if the conduct of a child is such that there is doubt about the effectiveness of the proceeding and that such proceeding will likely mature into a delinquency proceeding, the child must be given the opportunity to have counsel. If this right is not afforded the juvenile, the first adjudication may not be used in the delinquency hearing.”


author: PER CURIAM.

text:
    Thomas W. JEFFERSON, etc., et al., Appellants, v. Thomas Herbert SMITH et al., Appellees.
    No. 76-458.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 1976.
    Welsh & Carroll, Miami, Swope & Stobs, Miami Shores, Podhurst, Orseck & Parks, Miami, for appellants.
    Adams, George, Wood, Lee, Schulte & Thompson, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed on the authority of Hanley v. Liberty Mutual Insurance Company, Fla.1976, 334 So.2d 11.