author: TYSON, Judge. BOOKOUT, Judge, TYSON, Judge.

text:
    Walter HILL v. STATE.
    6 Div. 670.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Supplemental Opinion May 1, 1979.
   ORDER

TYSON, Judge.

This Court did, by opinion dated October 31, 1978, Hill v. State, Ala.Cr.App., 371 So.2d 60, cert. denied, Alabama Supreme Court, 371 So.2d 64, January 19, 1979, remand this cause with directions to the Circuit Court of Jefferson County, Alabama, Bessemer Division, for a further hearing with instructions to that court to determine the views of two members of the venire; namely, Samuel Ford and Izesh Hatcher, who were called during the week of October 19, 1977, to ascertain the views of the aforesaid two prospective jurors as to their belief in capital punishment, and, having such belief, whether or not they would be irrevocably committed to vote against a conviction and the imposition of the penalty of death, regardless of the facts and circumstances which might emerge during the course of the trial.

The Circuit Court of Jefferson County, Alabama, Bessemer Division, did conduct a hearing as directed and has sent this Court a supplemental transcript containing testimony of the two aforesaid jurors, which supplemental transcript is dated February 22,1979, and certified by the court reporter under date of March 8, 1979. This supplemental transcript also contains an order of the circuit judge, dated February 22, 1979.

Each member of this Court has carefully examined the supplemental transcript, dated February 22, 1979, and the majority is of the opinion that the Circuit Court of Jefferson County, Alabama, Bessemer Division, did fail to carry out the directions and mandate of this Court in its opinion of October 31, 1978, as aforesaid. Therefore, this Court does hereby remand this case with directions to the Circuit Court of Jefferson County, Alabama, Bessemer Division, with specific instructions to hold a new hearing, with the defendant, Walter Hill, and his attorneys present, and the testimony therein taken from the two prospective jurors; namely, Samuel Ford and Izesh Hatcher, and the Circuit Court is specifically directed to ask precisely these questions as hereinafter set forth and to ascertain the proper answers from each of the two jurors, with the appellant, Walter Hill, and his attorneys having full right of cross-examination.

The questions shall read as follows:

“Did you, Samuel Ford (and/or Izesh Hatcher), at the time of the original trial of Walter Hill, in the Circuit Court of Jefferson County, Alabama, Bessemer Division, being the week of to-wit October 19, 1977, believe in or entertain a belief against the use of capital punishment before the trial of Walter Hill had begun?”

An appropriate definite yes or no answer must be ascertained.

If either Samuel Ford and/or Izesh Hatcher should answer question one in the affirmative, then the Circuit Court is directed to ask the following specific question and obtain a definite specific yes or no answer to this question:

“Since you, Samuel Ford (or Izesh Hatch-er), have stated under oath that you do not believe you could impose the death penalty against Walter Hill in the case at bar, would you be irrevokably committed to vote against a conviction of Walter Hill and an imposition of the death penalty as punishment for such conviction, regardless of the facts and circumstances that might emerge during the course of the trial proceedings?”

Again, a definite yes or no answer must be obtained from each of the two, prospective veniremen to the questions as herein-above set forth. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433; Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971); and Mathis v. State, 288 Ala. 464, 262 So.2d 287 (1972).

After conducting the hearing, as herein directed, the Circuit Court is instructed to have a complete supplemental transcript of such hearing transcribed, together with the trial judge’s findings and conclusions on the evidence adduced included therein, and such supplemental transcript of these proceedings, under the seal of the circuit clerk, should be promptly forwarded to this Court.

The Circuit Court is further instructed that such hearing be conducted as speedily as is feasible.

This case is hereby remanded with the foregoing directions to the Circuit Court of Jefferson County, Alabama, Bessemer Division, for further proceedings in accordance with this opinion.

REMANDED WITH DIRECTIONS.

HARRIS, P. J., and DeCARLO, J., concur.

BOOKOUT and BOWEN, JJ., dissent.

BOOKOUT, Judge,

dissenting:

On our original consideration of the instant appeal, we found that prospective jurors Samuel Ford and Izesh Hatcher were excused from the venire for having a fixed opinion against the death penalty. From the record, it was not clear whether the two jurors were irrevocably committed to vote against a conviction and imposition of the death penalty regardless of the facts and circumstances that might arise during the course of the trial pursuant to Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This court, therefore, remanded to the trial court for a hearing to determine whether either of those two prospective jurors in fact held such a fixed opinion. A transcript of those proceedings in the circuit court has been filed with this court in answer to the remand. The majority of this court has now determined that the cause should again be remanded to the trial court.

From my reading of the transcript from the hearing in question, it appears that a second remandment is completely unnecessary. The majority is of the opinion that the two jurors were equivocating in their replies as to whether they would automatically vote against the death penalty regardless of the evidence. I disagree.

The following are excerpts from the testimony of Samuel Ford:

“Q. Let me rephrase it and make myself a little more clear. Under the existing Alabama statute, if a person is tried as in this case for a murder of more than one person, here we had three people. The law is, as I understand the law, is that if the jury is convinced beyond a reasonable doubt and to a moral certainty that he is guilty of that offense, the only alternative they have if they find him guilty, is that he be electrocuted, that his life be taken in the electric chair.
“That was the premise in which I asked that question, knowing that you would be unable — even if you were convinced that he was guilty, be unable to sentence him to die.
“A. If he was guilty, he killed the peoples, my feeling would have to be the electric chair.
“Q. Would, you give him the electric chair?
“A. I would have to.
“Q. Let me ask you this: That would be a difficult decision for you, wouldn’t it?
“A. Yes, it is.
9ft Jf! J(t * * 5}C
“A. It is difficult to do. My opinion, I wouldn’t want to electrocute him. But, if you find him guilty of killing three peoples, well, he has got to be punished one way or another.
“Q. If the only way was the electric chair—
“A. Please, let me explain myself. He has to be punished one way or another. I take myself, if I killed three peoples, and I go to court, and he finds me guilty of killing three peoples, and the Court finds me guilty to go to the electric chair, they are supposed to send me to the electric chair.
“Q. We are not talking about the Court, though. We are talking about the jury,
“A. I said the jury. I said the jury find me guilty of killing three peoples, they are supposed to send me to the electric chair.
“Q. Let me ask you this: Would the difficulty of that decision, would that interfere with you giving the defendant and the State of Alabama a fair trial?
“A. No, sir.
“Q. Would not? Would you put upon the State of Alabama a burden beyond a reasonable doubt and to a moral certainty in finding a man guilty, would you require proof beyond any capricious doubt?
“A. (Witness shakes head as if to indicate the negative manner.)”

It appears from the above testimony that Samuel Ford, contrary to his general opposition to the death penalty, would have voted for the death penalty in the instant case if the State proved that the appellant had killed three people as charged.

The following are excerpts from the testimony of Izesh Hatcher:

“Q. Now, let me ask you this: Has your attitude about capital punishment changed any since October of 1977?
“A. No, sir.
“Q. Now, if you were chosen to be a juror, and you took an oath that you would fairly and truly decide the issue of guilt of a defendant, and you were told by the Court that if he was found guilty that you could only return a verdict of guilty and sentence him to the electric chair, would the fact that you would have to return a verdict of guilty and send him to the electric chair prevent you from finding him guilty?
“A. Well, the way I felt about that, I wouldn’t have no other choice.
“Q. You wouldn’t have any other choice?
“A. No, sir.
“Q. Are you saying then, that if you heard the evidence and you took an oath to fairly weigh the evidence and make a determination of guilty, that you would have no choice except to find him guilty if you believed he was guilty?
“A. Yes, sir.
“Q. Then, if you were selected, and you were instructed by the Court, and you took an oath to fairly and truly determine his guilt or innocence, then you would not automatically vote against a finding of guilty, would you?
“A. No, I wouldn’t do that.
******
“Q. But, if you took that oath, you wouldn’t just automatically disregard your oath, would you?
“A. No.
“Q. You would have to comply with your oath, wouldn’t you?
“A. Yes.
“Q. Regardless of what you opinion about capital punishment was, you would follow your oath?
“A. Yes.
“Q. And let me ask you one more time, you would not automatically vote against a finding of guilty, knowing in your mind he was guilty?
“A. Speak that again, please?
“Q. You would not automatically vote against guilty if you felt in your mind and in your hear that he was guilty?
“A. Well,— •
“Q. You wouldn’t vote against him?
“A. No, not if I knowed he was guilty.” From the above testimony, it is apparent that Izesh Hatcher would have taken his oath as a juror seriously and would have voted for the death penalty if the State had proved its case.

The testimony of both potential jurors convinces me that neither had such a fixed opinion against capital punishment as to justify their excusal from the venire pursuant to the criteria set out in Davis and Witherspoon, supra. Even assuming the majority to be correct in finding that the answers of the two jurors were uncertain, it is clear from Davis and Witherspoon that an uncertain answer does not justify the excusal of a juror in such a case. Therefore, even under the finding of the majority, error resulted in the excusal of either one of the two prospective jurors. The law is clear that if a juror is either in favor of the death penalty, or equivocating in his opinion concerning it, he must stay on the venire. He can only be excused if he would automatically vote against the death penalty regardless of what the evidence would show. By remanding this case a second time for another hearing, this court is requiring that the potential jurors have a fixed opinion either for or against the death penalty. That is not the test to be applied in such situations, and I therefore respectfully dissent.

BOWEN, J., joins in the above.

TYSON, Judge.

Pursuant to a second order of remand by this Court, 371 So.2d 65, on March 27, 1979, the Circuit Court of Jefferson County, Alabama, Bessemer Division, did conduct a further hearing to determine the views of two members of the venire who had been called during the week of October 19, 1977, namely, Samuel Ford and Izesh Hatcher, to ascertain the views of the aforesaid prospective jurors as to whether or not they entertained a belief in capital punishment, and, having such belief, whether or not they would be irrevocably committed to vote against a conviction and the imposition of the penalty of death, regardless of the facts and circumstances which might emerge during the course of the trial proceedings.

The Circuit Court did, as directed, conduct such hearing, and has furnished this Court with a second supplemental transcript, which indicates that both of the aforesaid two prospective jurors did entertain a belief against capital punishment, but both indicated they would not vote against such imposition, regardless of the facts and circumstances which might emerge during the course of the trial proceedings.

Inasmuch as both Ford and Hatcher indicated in this supplemental transcript that they would not vote against a conviction and the imposition of the penalty of death, regardless of the facts and circumstances which might emerge during the course of trial, such jurors were erroneously challenged for cause and excused from the venire just prior to the trial proceedings.

For the error shown this cause is reversed and remanded for a new trial. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433; Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971); and Mathis v. State, 288 Ala. 464, 262 So.2d 287 (1972).

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Michael E. DONAHOO, alias v. STATE.
    6 Div. 567.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      Russell T. McDonald, Jr. and Roger A. Brown, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.
   DeCARLO, Judge.

Michael E. Donahoo was tried and convicted for rape by a jury in Jefferson County and sentenced to thirty years imprisonment.

In the early morning hours of December 4, 1975, the victim, having left her job as a part-time waitress, drove to the Raleigh Villa Apartments located in the Homewood section of Jefferson County, Alabama. On her arrival, she went to her sister’s apartment on the second tier of the three tier apartment complex and knocked on the door, but no one answered. As she stood in the hallway, she heard what sounded like the opening and closing of a door on the floor above her. A moment later, she heard something behind her, turned, and saw a man wearing pantyhose over his head running toward her.

According to the victim, the man grabbed her and began choking her. He told her to “shut up” or he would kill her. She was led to her automobile, a 1974 blue Honda, where the man requested her keys. After unlocking the car door, he pushed her into the car and drove to an area in the apartment complex near the tennis courts. The victim testified that he parked the car, “reached over and put his hand down [the] top” of her clothing. She stated that, when she objected, he again grabbed her around the throat and started choking her “real hard,” and told her that, if she did not do what he said, he would kill her.

The victim claimed that her assailant had no weapon other than his hands and described him as being “bigger” than she was. She said she was afraid of him at that time, and that, following his directions, she climbed into the back seat, where he removed her shoes and underclothes. He had sexual intercourse with her without her consent. Subsequently, the assailant returned to the driver’s seat and ordered her to return to the front seat also. Then, as he drove back to the apartment building, he asked her her name and told her, among other things, that “he really didn’t have to do this sort of thing but he was bored . ‘look at it this way, it is better to be raped by me than a pimple face fagot.’ ”

Upon reaching the apartment, the victim remained in her car while her assailant got out and walked away. She got out of the car and looked in the direction her assailant had walked. She saw the man stop, remove the pantyhose from his head and look at her. She told the court, “I stopped momentarily and looked around and he was looking at me and I was looking at him and then I ran up stairs to sister’s apartment.” She stated further that, as she was knocking on her sister’s apartment door, she heard “someone come in the other door that’s on the two-level side, went up the stairs and into their apartment.” When her sister answered the door, she reported what had happened, and the police were called.

During the trial, the prosecution asked the victim whether she recognized the person who had assaulted her. At that point, the court interrupted, removed the jury, and held a hearing on a motion to suppress the in-court identification on the grounds that it was impermissibly suggestive. Testimony was taken from the victim, Lieutenant Thomas A. Jacobs and Sergeant H. M. Wade.

At the conclusion of the hearing, the court overruled the motion, and the victim made a positive in-court identification of the appellant as her assailant.

She stated that, after the police arrived, she gave them a description of her assailant and his clothing. Further, she said that she later identified his voice and some of his clothing as the clothing her assailant was wearing when she was assaulted.

During cross-examination, the victim said that, when she got out of the car and walked toward her sister’s apartment, her assailant had stopped, removed the pantyhose from his head, turned, and looked at her. She also testified that she had noticed the man’s hands and that he did not have on any rings, or a watch. She stated that the color of his shirt had stuck in her mind: “. . . I do remember distinctly the navy blue on the cuffs.”

Harry M. Wade, Jr., a sergeant with the Jefferson County Sheriff’s Department, testified that he investigated the “possible rape” at the Raleigh Villa Apartments, in the early morning hours of December 4, 1975. He stated that he arrived at the apartments about 3:10 A.M., talked with the victim, and then went to an apartment in the same building, occupied by Ms. Vanessa Gant and the appellant. According to Wade, Ms. Gant told him that the appellant had not been in their apartment all night. She stated that he had gone for a walk about 1:00 A.M. and that she did not know when he returned because she was asleep. Wade then advised Ms. Gant that the appellant was a suspect in an assault.

Wade testified that he and Lt. Jacobs were then invited into the apartment and that they advised the appellant, who was sitting in the living room, of his rights. Lt. Jacobs took one of the appellant’s shirts downstairs to the victim, but subsequently returned and got another. Wade stated that Jacobs took the second shirt downstairs and that, when he returned, the appellant was taken into the hallway where Wade engaged him in conversation for approximately ten minutes. Lt. Jacobs then returned from the apartment below and placed the appellant under arrest.

The appellant was escorted downstairs to a patrol car parked in front of the apartment building. Wade recalled that he and Lt. Jacobs then took the victim to a window overlooking the parking lot and she saw the appellant walking toward the patrol car. According to Wade, from that vantage point, she observed the appellant in front of the patrol car, with the headlights from another car shining on him. At that time, the victim identified the appellant as her assailant.

Sgt. Wade also testified that, after the victim was taken to the hospital, he and Deputy James Howell returned to the victim’s car and that Deputy Howell unlocked and examined the inside of the car. Further, Wade stated that a search of the outside area was conducted, but he did not recall “exactly when it took place.”

James H. Howell, a deputy sheriff with the Jefferson County Sheriff’s Department and an evidence technician, testified that, on December 4, 1975, he went to the Raleigh Villa Apartments and lifted “latent prints” from a 1974 Honda. Three latent fingerprints were taken from the steering wheel, one from the left door handle, and two from the left door glass.” Howell testified that these fingerprints were compared with those of the appellant and it was his opinion that they were from the same person. Howell also stated that he had received a pair of pantyhose and one shirt from Lt. Jacobs, two pairs of pants from Sgt. Wade.

At the end of Howell’s testimony, the State completed its case, and the appellant made a motion to exclude the State’s evidence on the grounds that it failed to make out a prima facie case. The motion was overruled and the appellant took the stand in his own behalf.

Michael Donahoo testified that on the date in question he was living at the Raleigh Villa Apartments with Vanessa Gant, who was his wife at the time of the trial. He stated that on the night in question they had had some visitors, and that, about “twenty minutes til one,” he and Ms. Gant had driven to a gas station on the Green Springs Highway to buy cigarettes. According to the appellant, the gas station was approximately “a mile and a half” away. When they returned, he stated that he took a walk, because “my sinuses [were] bothering me.” He described the clothing he was wearing that night and denied seeing the victim on that occasion, being in her car, or raping her.

During cross-examination, the appellant stated that he had not seen the victim on the night in question and had not seen her automobile. Further, he denied touching the car, sitting inside it, turning the steering wheel, or driving it. He also denied telling Ms. Gant, prior to taking a walk, that the reason he was going was that he was bored.

Vanessa Gant Donahoo, the wife of the appellant, testified that, on December 4, 1975, she was living with the appellant at the Raleigh Villa Apartments. She stated that, on the night in question, they had had visitors who had remained until about 11:00 P.M. She also stated that, after she and the appellant returned from buying cigarettes, the appellant had left the apartment about “five ’til one.” She described the clothing that the appellant was wearing that night.

During cross-examination, Mrs. Donahoo denied telling the two police officers that the appellant had left about 1:30 or 2:00 A.M. to go for a walk because he was bored. She also denied telling the police officers that she had been asleep and did not know when he returned.

Lt. Jacobs, recalled in rebuttal, testified that Vanessa Gant had stated on the night in question, in the accused’s presence, that: “Her boyfriend, Michael Donahoo, left her apartment at approximately 1:30 and he had gone for a walk because he was bored.” Also, she had said “that she had been asleep when he returned and she did not know what time he came back.”

I

Counsel for the appellant contends that the trial court committed reversible error in overruling his motion to suppress the in-court identification of the appellant. He maintains that evidence of the victim’s identification of the appellant in the “one-man show-up” on the morning of the offense should have been suppressed and that evidence concerning the victim’s identification of the appellant’s voice was also improperly admitted. The appellant argues that the procedures used were impermissi-bly suggestive and were in violation of the appellant’s constitutional rights.

A one-man show-up is not inherently unfair, and it is settled law that prompt, on-the-scene confrontations are not constitutionally impermissible, but are consistent with good police work. Robinson v. State, 55 Ala.App. 658, 318 So.2d 354; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623.

Whether there has been a violation of due process in the conduct of a confrontation depends on the totality of the circumstances surrounding it. Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Also, whether the identification testimony is admissible is to be determined by the procedure used in obtaining the identification. If that procedure is so impermissibly suggestive as to create a substantial likelihood of irreparable mis-identi-fication, the evidence is not admissible. Robinson v. State, supra; Denson v. State, Ala.Cr.App., 348 So.2d 1139.

The confrontation in the present case occurred within two hours of the commission of the assault and afforded an opportunity for the appellant to gain his release should the victim have been unable to identify him. When the victim of the assault viewed the appellant in the parking lot, he was the only suspect present. However, there was no suggestion by the police that he was her assailant.

In addition to the description given by the victim at the time she reported the offense, the following factors present in this case have a bearing on the reliability of her identification: (1) The length of time she had been with her assailant, (2) the opportunity she had to view him when he uncovered his face, (3) the reasonably good lighting in the area, (4) her description of the clothing her assailant was wearing at the time of the assault, (5) the fact that she had noticed the opening of the door to the apartment above both before and after the assault, and (6) her identification of the appellant’s voice. These factors are relevant to the totality of the circumstances to be considered in a determination of whether the victim’s in-court identification was properly admitted at trial. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.

We distinguish Saltys v. Adams, 465 F.2d 1023 (2nd Cir. 1972) and Thomas v. Leeke, 393 F.Supp. 282 (1975), cited by the appellant in support of his contention. In both Saltys and Thomas, the petitioner was incarcerated on another charge at the time the identification was made. The identification in the present case was made not at the jail sometime later, but at the scene and within two hours of the assault.

In our judgment, the “one-man show-up” confrontation is not an unwarranted practice under the facts of this case. The confrontation occurring, as it did, near the time of the criminal act tended to insure the accuracy of the identification. Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104; Douglas v. State, Ala.Cr.App., 366 So.2d 373; Carter v. State, Ala.Cr.App., 340 So.2d 94; Denson v. State, supra.

Under the circumstances of this case, the victim’s identification was only a confirmation of the strong evidence implicating this appellant. The confrontation was added assurance that an innocent person had not been arrested.

Therefore, under the totality of the circumstances, we conclude that there was no substantial likelihood that mis-identification resulted from the identification procedures employed here.

The voice identification of the appellant by the victim in no way infringed upon the appellant’s constitutional rights. Evidence of the appellant’s voice is not “testimonial or communicative in nature.” Wilson v. State, 57 Ala.App. 125, 326 So.2d 316. As the court stated in Wilson :

“A person’s voice is a ‘physical characteristic,’ subject to be compelled to disclose to identifying witnesses.”

Under these facts, it is our judgment that there was no error by the trial court in overruling appellant’s motion to suppress the voice identification.

II

The appellant insists that, because of the improper and prejudicial comments by the district attorney, he was denied a fair trial and that the court was in error when it overruled several motions for a mistrial. He maintains that the cumulative nature of these improper remarks created an unfair atmosphere of prejudice.

We have searched the transcript of evidence for rulings adverse to this appellant. We also have examined the one dozen or more instances of alleged misconduct by the prosecution specifically pointed out by appellant in his brief. Several motions for mistrial were made by defense counsel during the course of the trial on the grounds of misconduct by the district attorney and on the grounds that the district attorney’s remarks placed a burden on the defense either to introduce items of evidence or to leave the appearance with the jury that the defense did not want those particular items introduced into evidence. We find no error in the court’s actions overruling the motions for mistrial.

The granting of a mistrial is directed to the sound discretion of the trial court. Shadle v. State, 280 Ala. 379, 194 So.2d 538. We have considered the individual and cumulative effect of each incident cited to us, as well as other rulings adverse to the appellant. Our examination of these incidents leads us to the conclusion that an atmosphere of bias on the part of the trial court, prejudicial to this appellant, was not shown.

Each of the rulings of the trial court, in our judgment, was proper under the laws of this State. Scott v. State, 47 Ala.App. 509, 257 So.2d 369.

The defendant’s objections were sustained in all except one of the occasions cited. These occurrences were not overwhelming in number. They did not evidence a “persistence” on the part of the prosecution to present illegal facts prejudicial to the defendant, nor did they indicate a general course of prejudicial appeal to the jury. In our judgment, they did not give the appearance of argument so grossly improper and highly prejudicial that it was ineradicable by proper ruling of the trial court. Scott v. State, supra. The motions for mistrial were therefore properly overruled.

Ill

The appellant asserts that it was error to allow the State to impeach a defense witness by contradictory statements of rebuttal witness. In particular, he complains that the State was permitted to impeach the testimony of the appellant’s wife through the testimony of a deputy sheriff to the effect that she had told the officer that the appellant had gone for a walk because he was bored. The appellant insists that this statement dealt with an immaterial matter and was, therefore, not the subject of impeachment.

From the record, we find the following exchange:

By the district attorney:

“Q. I believe you said Mike left to go for a walk about five ’til one, is that right?
“A. Yes, sir.
“Q. He told you he was taking a walk at that time because he was bored, isn’t that right?
“A. No, sir.
“Q. Did he tell you anything at that time?
“A. No, sir, just said he was going out for a walk.
“Q. Well do you remember having a conversation out there on the night this happened with Lieutenant Jacobs and Sergeant Wade when they were present there, do you remember talking with them?
“A. Yes, sir.”

The rebuttal testimony by Lt. Jacobs of the sheriff’s department, reads as follows:

By the district attorney:

“Q. Did you have a conversation with Miss Gant?
“A. I did.
“Q. And who was present?
“A. Sergeant Wade, Deputy Murray, the defendant was immediately to my right inside the living room, Deputy Moore and the resident manager of the apartment complex, I do not recall his name.
“Q. Did Miss Gant say this or this in substance to you at that time, that her boyfriend, Michael Donahoo left her apartment at approximately 1:30 and that he had gone for a walk because he was bored?
“MR. McDONALD: We object, may it please the Court.
“THE COURT: Overrule.
“MR. McDONALD: We except.
“A. Yes, she did.”

From the foregoing, it is clear that the prosecution was asking the witness if the appellant had made such a statement to her and that she made a negative response repudiating her prior statement to the officer. Under these facts, the prosecution was then entitled to call Lt. Jacobs to contradict her testimony. The statement made by appellant was material as to the whereabouts of the accused at the time of the rape and his intent. Under these circumstances, we believe the inquiry was material and that the repudiation of the witness’ prior statement was the proper subject of impeachment. J. McElroy, Alabama Evidence, § 156.01(6) (3rd Ed. 1977).

We have examined this record for error and have found none. Therefore, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Michael E. DONAHOO.
    78-431.
    Supreme Court of Alabama.
    May 25, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Michael E. DONAHOO v. STATE.
    6 Div. 647.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Rehearing Denied March 27, 1979.

      Russell T. McDonald, Jr. and Roger A. Brown, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Michael E. Donahoo was tried by a jury in Jefferson County, Alabama, on a charge of rape, found guilty and sentenced to life imprisonment. On conviction, appellant immediately gave notice of appeal and filed a motion for new trial. A hearing on the motion was held and the motion was denied.

The sufficiency of the evidence was not raised by a motion to exclude the State’s evidence, but was mentioned as grounds for a new trial in appellant’s motion for new trial.

Sufficiency of the evidence was not insisted on at the hearing on the motion, and the only issue raised at the hearing, and on appeal, concerns the conduct of the trial court’s bailiff after the trial, while the jury was deliberating.

Suffice it is to say that the following recitation of facts is sufficient to support appellant’s conviction: The prosecutrix, a waitress at T. P. Crockmire’s Restaurant and Lounge, walked to the employee’s parking lot at approximately 6:30 P.M. on October 25, 1976, and got into her car. As she was leaving the parking lot, the man she identified as the appellant forced his way into her car by threatening her with a broken drinking glass. The appellant told her that if she “screamed or hollered, or anything he would cut her.”

The prosecutrix testified that she and the appellant rode around in her Volkswagen for approximately forty-five minutes and that, during that time, he hit her in the face and told her to perform various sexual acts while he drove. She said that he told her that he “was going to cut me going to kill me.”

According to the prosecutrix, while appellant was driving they passed Brookwood Village, drove some two miles further to a dead-end street, and got out of the car. At that time, the appellant told her that “he had problems . . [and] that he had been accused of rape before.” She said that he then hit her again and knocked her against the car and told her take off her clothes. After she had removed all of her clothes, she tried to run away down the road, but the defendant grabbed her by the hair, dragged her back to the car, and had sexual intercourse with her.

She testified that afterwards, the appellant let her put her clothes on.

Appellant then drove to the Woodland Hill Apartments where he took an apron, which was part of her uniform, and wiped the steering wheel, the gear shift and the door. He then got out and walked toward the tennis courts. The prosecutrix stated that she immediately drove across the street to a service station where she called the Birmingham Police Department.

During the trial, she identified the appellant as her assailant and said that she particularly “noticed his buck teeth.”

I

The appellant contends that he was denied a fair trial “by improper communications between the jury and a court officer during the deliberations of the jury.” He complained that when the court officer, Bailiff Joe D. Newton, was presented with the jury’s written question inquiring as to the “minimum times of service for sentences of varying lengths,” he presumed to inform the jury, not only that the question could not be answered by the court, but further, that the court “ . . . could only answer questions of law,, this was a question which came under the Executive Department of the State. . . . ”

In support of this contention, the appellant has cited Leith v. State, 206 Ala. 439, 90 So. 687, and Roberts v. State, 26 Ala.App. 331, 159 So. 373, which we find are not directly applicable to the case at bar.

Leith v. State, supra, does not support the appellant’s contentions that such communications would deny him a fair trial. That ease concerned extrinsic physical material, in the form of an opinion by the trial judge dealing with an application for habe-as corpus by the accused, which was inadvertently left in the jury room. This material came to the attention of a few but not all, of the jurors during their deliberations.

In Leith, supra, after considering the affidavits of all the jurors, the court stated that it affirmatively appears that the document did not influence the verdict of the jurors.

In Roberts v. State, supra, the court was primarily concerned with the quotient verdict submitted by the jury. The court stated that, due to the deputy sheriff’s refusal to allow the jury to see or question the judge regarding the punishment to be fixed, the conduct of the deputy “may have influenced the jury to have resorted to a quotient verdict.”

In the case at bar, there was no refusal by the bailiff to allow the jury to see or question the judge. Instead, there was a communication which, although admittedly improper, did not serve to influence the verdict arrived at by the jury.

Appellant has also cited to us many cases prohibiting any comment by a trial judge, to a jury trying an accused’s case, concerning the possibility of parole. In our examination of the transcript, we did not find any evidence that the judge had made any reference to parole.

At the hearing on the motion for new trial, it was shown that, after the jury had retired to deliberate, one member knocked on the door of the jury room and told the bailiff that they had a question. Newton then instructed them “to put it in writing.” According to Newton, the jury then knocked on the door again and presented him with the written inquiry, which reads as follows (from the court’s Exhibit No. 1, on motion for new trial):

“JUDGE
“Can you answer this question for us.
“What are the minimum times of service for this crime.
“for 20 Sentence
“30
“40
“50
“Life . . . .”

Newton testified that he then stated, in substance:

“The judge had told you in his charge he could only answer questions of law. This was a question which came under the Executive Department of the State and could not be answered by the Judge.”

Newton went on to say that it was his impression that it was the standing instruction of the trial judge, in the past, on the numerous occasions when similar questions had been asked, to give substantially the same answer he had given to this jury.

According to Newton, immediately after the question was handed to him, he took the written question and showed it to the judge. Newton said that the defense attorney and the district attorney were with the judge at the time he informed him (the judge) of what he had said to the jury. Newton testified that the defense attorney did not raise any questions, ask for any instructions, or make any comment in particular about the incident, at that time.

Following the bailiff’s testimony, ten jurors were called who had served on the panel in the accused’s case. Their testimony reflected that the question had been asked among the jurors before they had submitted it to the judge, but that none of them had known the answer.

Several of the jurors commented that, when the bailiff told them that the judge could not instruct them on the subject, they “did not pay any more attention” to it, “threw it out,” and that “it was dropped.” One juror stated:

“Our deliberations were that the crime deserved the sentence of life because in the opinion of the jury, anything less than that he wouldn’t serve any time at all, that he wouldn’t probably serve any time for that crime if it were less than that.”

Thus, the consensus of the jurors was that punishment of life imprisonment fit the crime.

The Supreme Court of Alabama affirmed Satterfield v. State, 212 Ala. 349, 102 So. 691, in which one or more of the jurors had asked the bailiff, “whether or not second degree murder would carry 25 years?” Another juror stated that the bailiff had also answered questions concerning the number of years fixed as punishment for manslaughter in the first degree and murder in the second degree.

In that case, the evidence showed at the time of the bailiff’s conversation with the jury, that the verdict of guilt had already been agreed upon and, in fact, had been written out. It was learned that the extent of the conversation was only to confirm the jurors’ first impression that, “as to the form of the verdict, second degree murder ‘would carry 25 years.’ ” The Supreme Court stated:

“While all of this was very irregular and improper, and to be condemned, yet, when it affirmatively appears the irregularity was without injury or prejudicial effect upon the defendant’s cause, a reversal cannot be rested upon the action of the court in overruling the motion for a new trial upon this ground.”

Under the rationale of Satterfield v. State, supra, this court will not set aside a verdict because of comments between jurors and the bailiff, which, even though improper, were not calculated to prejudice the accused or to influence the verdict.

All conversation between jurors and officers of the court does not amount to misconduct, per se, and a showing of such communication does not raise the presumption that it improperly influenced the jury.

The irregularity here did not constitute reversible error. Under the circumstances surrounding this incident, the unauthorized communication was fully explained, as can be seen from the transcript of testimony during the hearing on the motion for new trial. It affirmatively appears that the jury was in no way influenced by the communication with the bailiff.

No issue can be raised that the bailiff made any prejudicial comments regarding the possibility of appellant’s parole. There was no testimony at the hearing to support such a conclusion.

We also note that it is impossible to prevent jurors, during their secret deliberations, from discussing matters such as parole, or any other subject of which they have common knowledge. It is only when extraneous matter is injected by the court or its personnel, beyond the walls of the open courtroom, that it is error.

We have no alternative, under the rationale of Satterfield v. State, supra, than to affirm this case. We are constrained to say that every accused has the lawful right to have his cause tried in open court, and to have an opportunity to be present and heard in respect to every transaction concerning his case. It is his right to be present and attended by counsel when the court communicates with the jury.

The bailiff is an officer of the court and is the guardian of the jury room. It is his responsibility to see that no one intrudes on the jury’s deliberations. At no time is the bailiff justified in communicating with the jury in any manner, concerning the accused’s case, except in his capacity as a messenger between the jury and the court.

No communication, whatever, should take place between the judge and the jury after the cause has been submitted to them, unless in open court with all the parties and their attorneys present. The sanctity • of the jury room must remain inviolate, and it is the trial judge’s responsibility to maintain that sanctity. Anything less is an abdication of his judicial responsibility. Leith v. State, supra.

II

The record reflects that, at the time the bailiff made his improper communication with the jury known to the court, the defense attorney was present and heard what had transpired. He made no objection and did not request any curative instructions, nor did he make a motion for a mistrial at that time. In fact, based on the record, this matter was raised for the first time on motion for new trial. Under these circumstances, the error was not preserved and reveals a “waiver.” Fuller v. State, Ala.Cr.App., 365 So.2d 1010.

The facts in Fuller, supra, are very similar to those in the case at bar. There, the jurors, after having returned from a luncheon recess, questioned the bailiff about whether they would have to remain overnight. In response to a female juror’s question, the bailiff said:

“[Wjhen they went in to reach a verdict, they would be kept together at the request of the Defendant.”

The comment was called to the bailiff’s attention immediately afterwards by the defense attorney, and, at that point, the bailiff admitted that he had made a mistake.

However, this court stated that, though the improper communication occurred prior to the jury’s deliberations, no objection had been made and the error was not timely preserved.

The court also observed that the motion for new trial is usually “the initial and only way in which an accused may raise an objection” when an improper communication comes to the attention of the accused or his counsel after the verdict has been rendered. Further, the court stated that “the grounds urged for a new trial must ordinarily have been preserved at the trial by timely and sufficient objections.” Fuller v. State, supra. In closing, the court indicated that citing Vinet v. State, 38 Ala.App. 299, 83 So.2d 357, in the absence of timely objections, any grounds which would have supported the motion for a new trial were presumed to have been waived. See also Cardwell v. State, 1 Ala.App. 15, 56 So. 12.

After reviewing the transcript of evidence and the law applicable to the facts, we are of the opinion that the judgment of conviction should be affirmed.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Michael E. DONAHOO.
    78-430.
    Supreme Court of Alabama.
    May 25, 1979.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: BOWEN, Judge.

text:
    Jerry W. BAGONY v. The CITY OF BIRMINGHAM.
    6 Div. 804.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Jesse W. Shotts, Birmingham, for appellant.
    W. O. MacMahon, III, Birmingham, for appellee.
   BOWEN, Judge.

The defendant was convicted for carrying a concealed pistol in violation of Section 36-56 of the General Code of the City of Birmingham, Alabama, 1964, as it adopts the words, language, and meaning of Alabama Code Section 13-6-153 (1975). Brooks v. City of Birmingham, 31 Ala.App. 496, 498, 19 So.2d 74 (1944). The jury assessed a fine of $500.00 and the trial judge imposed a sentence of 150 days hard labor. A violation of Section 13-6-153 constitutes a misdemeanor. Sheridan v. State, 43 Ala. App. 239, 248, 187 So.2d 294 (1966).

On appeal three questions are presented: (1) The sufficiency of the complaint, (2) the legality of the search, and (3) the sufficiency of the evidence.

I

The complaint reads as follows:

“Comes the City of Birmingham, a municipal corporation and complains that Jerry Bagony, within twelve months before the beginning of this prosecution, on to-wit: January 1, 1978 and within the City of Birmingham, or the police jurisdiction thereof, at to-wit: 7500 Block of 1st Avenue North, unlawfully carried a pistol in a place not his land or abode, or fixed place of business and without a license issued by the Sheriff of Jefferson County, Alabama, contrary to and in violation of Section 36-56 of the General Code of the City of Birmingham, Alabama, 1964, as amended, as it adopts the words, language and meaning of Section 13-6-153 of the Code of Alabama, 1975.”

This complaint is sufficient in all respects to allege the violation of the statutory requirements of Alabama Code Section 13-6-153 (1975).

The fact that the complaint charged the defendant with carrying a concealed pistol without a license “issued by the Sheriff of Jefferson County” did not render the complaint “more restrictive” than the State law which the City had adopted. Under State law a license to carry a pistol may only be issued by the Sheriff of the county in which the applicant for the license resides. Alabama Code Section 13-6-155 (1975).

Where the form of an indictment or complaint has not been prescribed by the legislature the indictment or complaint is sufficient where it follows the wording of the statute alleged to have been violated with sufficient certainty to protect the accused against double jeopardy. Langford v. State, 45 Ala. 26 (1871); Stinson v. State, 28 Ala.App. 559, 560, 190 So. 303 (1939).

II

The defendant next contends that the search of his person and subsequent seizure of the pistol by Birmingham Police Officers were unlawful because the officers had no probable cause to conduct the stop and frisk. The defendant maintains that the pistol should have been suppressed from evidence.

At approximately 2:10 on the morning of January 1, 1978, Officers Courthers and Buntin of the Birmingham Police Department received a radio communication directing them to the Pit Grill Restaurant located in the 7500 block of First Avenue North in Birmingham. On voir dire examination Officer Courthers testified that the radio dispatch had informed them that a “white male wearing a blue T-shirt or blue jeans and brown hair with a beard” had a gun inside the restaurant. On arrival the officers were met outside by Mrs. JoAnn Dunn who told them that the defendant had a weapon and had threatened her with it.

The officers went inside, spotted the defendant, and followed him to the rear of the restaurant. The defendant was not causing any disturbance at this time. The defendant entered the men’s restroom. When he came out the officers stopped and frisked him for weapons. The pat down revealed a fully loaded .38 caliber Smith and Wesson revolver concealed in the defendant’s right boot. The defendant was then placed under arrest and charged as appears in the complaint.

Under these circumstances the officers were justified in stopping and frisking the defendant. Deloach v. State, 356 So.2d 222 (Ala.Cr.App.), cert. denied, 356 So.2d 230 (Ala.1978); Pruitt v. State, 337 So.2d 50 (Ala.Cr.App.1976); Kimbrough v. State, 352 So.2d 512 (Ala.Cr.App.), cert. denied, 352 So.2d 516 (Ala.1977). An investigatory detention may be based upon circumstances falling short of probable cause to arrest. Racine v. State, 51 Ala.App. 484, 286 So.2d 890, cert. denied, 291 Ala. 684, 286 So.2d 896 (1973). A radio dispatch may justify a pat down. McClendon v. State, 341 So.2d 174 (Ala.Cr.App.1976), cert. quashed, 341 So.2d 178 (Ala.1977); Bates v. State, 48 Ala.App. 489, 266 So.2d 155 (1972). Upon finding the pistol on the defendant the officers then had probable cause to arrest him for carrying a concealed pistol. Campbell v. State, 354 So.2d 325 (Ala.Cr.App.1977).

Ill

The trial court properly denied the defendant’s motion to suppress the State’s evidence and request for a directed verdict of not guilty since the evidence was sufficient to support the conviction.

The State proved (1) that the defendant’s address was in Birmingham, Alabama, (2) that he did not have a license to carry a pistol issued by the Sheriff of Jefferson County, and (3) that he was carrying a pistol (4) concealed on his person. This was sufficient to support the conviction pursuant to Section 13-6-153. In this case the Sheriff of Jefferson County was the only designated official who could issue a license to the defendant. In prosecutions under Section 13-6-153 the State is not required to submit proof from the State Director of Public Safety that the defendant has not been issued a license by every county in the State.

We have searched the record and found no error prejudicial to the defendant. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Marvin BORDEN v. STATE.
    8 Div. 186.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    James K. Davis, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant was convicted for burglary second degree and sentenced to six years imprisonment.

The appellant contends that his motion for mistrial should have been granted because state’s counsel asked improper questions regarding a lie detector test during the trial.

During the cross-examination of the sheriff, appellant’s counsel brought out the fact that the appellant had volunteered to go take a lie detector test, and in fact had taken two lie detector tests. Before this was brought out, the subject of lie detector test had not been mentioned. Later on, during the redirect examination of the sheriff by state’s counsel, it was brought out that Mr. Leon Green had administered the lie detector test to the appellant. State’s counsel then asked the sheriff what did Mr. Green tell the appellant. The appellant’s counsel objected, the- court sustained his objection, and the appellant then moved for a mistrial, and the court overruled appellant’s motion.

The next time the subject of a lie detector test was mentioned was after the state had rested its case and during the direct examination of the appellant by his counsel. Appellant testified that the sheriff wanted him to take a lie detector test and a blood test, and that appellant told the sheriff he would. The appellant took two lie detector tests and a blood test. During the cross-examination of the appellant by state’s counsel, appellant testified that he voluntarily took two lie detector tests, whereupon state’s counsel asked appellant if he passed the tests. Appellant’s counsel objected and the court sustained the objection. Whereupon state’s counsel asked appellant if he was telling this jury that he went voluntarily and took two lie detector tests and the sheriff is still prosecuting him for the breaking in at the courthouse. Whereupon appellant’s counsel objected to the question and moved for a mistrial. The court sustained appellant’s objection to the question and overruled his motion for a mistrial.

The trial court sustained appellant’s objections to each of the three foregoing questions by state’s counsel. The statements objected to by appellant were questions. The questions were not answered.

The appellant had first introduced the subject of lie detector test in the trial. Assuming without deciding the questions were improper, they were not answered, therefore harmless.

We hold that the trial court did not err to the prejudice of the appellant when it overruled appellant’s motions for a mistrial. Kemp v. State, 278 Ala. 637, 179 So.2d 762; Gosa v. State, 273 Ala. 346, 139 So.2d 321; Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, certiorari denied, Ala., 358 So.2d 791; Jones v. State, Ala.Cr.App., 356 So.2d 728, certiorari denied, Ala., 356 So.2d 735.

We have carefully searched the entire record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    FLORIDA REAL ESTATE COMMISSION, etc., et al., Appellants, v. SUN OIL COMPANY, etc., et al., Appellees.
    No. 54320.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Rehearing Denied June 18, 1979.
    Howard Hadley and Frederick H. Wilsen, Orlando, for appellants.
    James E. Cobb and Julie H. Kuntz of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellees.
   PER CURIAM.

Affirmed. Florida Real Estate Commission v. Johnson, 362 So.2d 674 (Fla.1978).

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


text:
    Jerome BOZEMAN, Appellant, v. STATE of Florida, Appellee. James JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 53569, 53570.
    Supreme Court of Florida.
    May 3, 1979.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellants.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

The order of the trial court denying the motion to dismiss is affirmed. See State v. Allen, 362 So.2d 10 (Fla. 1978); State v. Belgrave, 364 So.2d 1225 (Fla. 1978). In so ruling, however, the trial judge erroneously concluded that the theft statute does not require proof of scienter for a conviction and thus precluded appellants from offering evidence tending to negate any guilty knowledge on their part. Accordingly, this ease is remanded to the trial court so that appellants may be provided an opportunity to withdraw their no contest pleas and proceed in a manner consistent with this opinion.

It is so ordered.

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


author: ALDERMAN, Justice.

text:
    Kenneth OLSON, Jr., Petitioner, v. FLORIDA REAL ESTATE COMMISSION and Robert J. Corda, Respondents.
    No. 53910.
    Supreme Court of Florida.
    May 3, 1979.
    Seymour A. Gordon, of Gay & Gordon, St. Petersburg, for petitioner.

      Howard Hadley and Frederick H. Wilsen, Orlando, for respondents.
   ALDERMAN, Justice.

The petition for writ of certiorari was granted in this cause because of direct conflict with Webb v. Florida Real Estate Commission, 351 So.2d 71 (Fla. 3d DCA 1977). The decision of the District Court of Appeal, Third District, in Webb was quashed by this Court in Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978). The decision of the District Court of Appeal, Second District, in Olson v. Florida Real Estate Commission, 357 So.2d 191 (Fla. 2d DCA 1978), presently before us for review is consistent with our recent decision in Webb, Accordingly, the writ heretofore issued is discharged.

It is so ordered.

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


text:
    Albert J. BLANEY, Appellant, v. STATE of Florida, Appellee.
    No. 54078.
    Supreme Court of Florida.
    May 3, 1979.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

The order of the trial court denying the motion to dismiss is affirmed. See State v. Allen, 362 So.2d 10 (Fla. 1978); State v. Belgrave, 364 So.2d 1225 (Fla. 1978). In so ruling, however, the trial judge erroneously concluded that the theft statute does not require proof of scienter for a conviction and thus precluded appellant from offering evidence tending, to negate any guilty knowledge on his part. Accordingly, this case is remanded to the trial court so that appellant may be provided an opportunity to withdraw his no contest plea and proceed in a manner consistent with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Joan BECHER et al., Appellees.
    No. 54617.
    Supreme Court of Florida.
    May 3, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Glen E. Greenfelder, Dade City, for ap-pellees.
   PER CURIAM.

Reversed. See State v. Allen, 362 So.2d 10 (Fla. 1978); State v. Belgrave, 364 So.2d 1225 (Fla. 1978); State v. Lewis, 364 So.2d 1223 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217 (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Donald BEDGOOD, Appellee.
    No. 54656.
    Supreme Court of Florida.
    May 3, 1979.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, for appellee.
   PER CURIAM.

Reversed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    Samuel T. SLOAN, Appellant, v. STATE of Florida, Appellee.
    No. 54805.
    Supreme Court of Florida.
    May 3, 1979.
    Jack 0. Johnson, Public Defender, and David Wm. Boone, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. State v. Allen, 362 So.2d 10 (Fla.1978).

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


author: SUNDBERG, Justice. ADKINS, Justice, BOYD, Justice,

text:
    STATE of Florida, Appellant, v. Scotty KEATON, Appellee.
    No. 54359.
    Supreme Court of Florida.
    May 10, 1979.

      Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Steven G. Brady, Fort Pierce, for appel-lee.
   SUNDBERG, Justice.

Appellee was charged by information under section 365.16(1)(a), Florida Statutes (1977), with making a “comment or suggestion which is obscene, lewd, lascivious, filthy, or indecent” to another by means of telephone communication. Appel-lee filed a motion to dismiss the information in the County Court for Okeechobee County, alleging that the charging statute is overbroad and violative of his right to free speech. The county court granted appel-lee’s motion to dismiss and this appeal followed. Because the lower court initially and directly passed upon the validity of a state statute, we have jurisdiction. Art. V, *§ 3(b)(1), Fla.Const. The issue before us is whether section 365.16(l)(a), Florida Statutes (1977), suffers from the infirmity of overbreadth under both the Florida and federal constitutions.

Appellee argues that section 365.16(l)(a) is not limited to language which is “obscene” as defined by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) — language which, taken as a whole, appeals to one’s prurient interest, portrays sexual conduct in a patently offensive way, and lacks serious literary, artistic, scientific, or political value. Rather, appellee submits that the enactment proscribes the mere use of distasteful language over the telephone. This is so because an expression may be obscene according to the dictionary definition without appealing to the prurient interest and, thus, without falling within the legal definition of “obscenity” enunciated in Miller. See Hess v. Indiana, 414 U.S. 105, 107, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973). Because the first amendment does not permit the state to prohibit the use of vulgar language without more, subsection (1)(a) is impermissibly overbroad. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Brown v. State, 358 So.2d 16 (Fla.1978); Spears v. State, 337 So.2d 977 (Fla.1976). Appellee argues further that if the enactment is directed solely to language defined as obscene under Miller, it is over-broad because its proscriptions are not limited to nonconsensual telephone calls— where the listener has been subjected to the uninvited use of such language. To outlaw obscene language where both the caller and listener have consented to its use constitutes an invasion of the parties’ right to free speech.

Appellant argues that although the express terms of subsection (l)(a) proscribe only obscene comments in a telephone conversation, we should read that provision in pari materia with parts (b) through (d) of the statute. When read in conjunction with the remainder of the enactment, posits appellant, it is clear that subsection (l)(a) is intended to prohibit the use of obscene language with the intent to harass the listener. In support of its construction of subsection (l)(a), appellant points to the title of chapter 69-25, Laws of Florida, enacted as section 365.16, which reads: “AN ACT relating to obscene, harassing and threatening telephone calls . . (e.s.) Because section 365.16(l)(a) is directed to conduct — obscene phone calls which are harassing— rather than at pure speech, submits appellant, the provision is not violative of appel-lee’s first amendment freedom of speech. Further, because subsection (l)(a) is limited to nonconsensual telephone calls, it constitutes a valid legislative attempt to protect the substantial privacy interests of the listener, whether it proscribes only language defined as obscene under Miller or encompasses vulgar language as well.

For the following reasons we conclude that section 365.16(l)(a), Florida Statutes (1977), is unconstitutionally overbroad and, therefore, the county court properly granted appellee’s motion to dismiss.

Fundamental principles of statutory construction dictate that an enactment should be interpreted to render it constitutional if possible. However, the courts may not vary the intent of the legislature with respect to the meaning of the statute in order to effect this result. See Deltona Corp. v. Florida Public Service Commission, 220 So.2d 905 (Fla.1969); Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958); Dade Federal Savings & Loan Association v. Miami Title & Abstract Division, 217 So.2d 873 (Fla.3d DCA 1969). The intent of the legislature with regard to the scope of section 365.16(l)(a) is arguably unclear. As noted by appellant, the title of the act is cast in the conjunctive — “obscene, harassing and threatening telephone calls” (e. s.) — which lends support to its contention that subsection (l)(a) is intended to proscribe obscene telephone calls which are also harassing. However, the legislatively supplied heading for section 365.16 is cast in the disjunctive and reads: “obscene or harassing telephone calls.” (e. s.) Further, subsection (1) is divided into four distinct parts, each of which is also expressed in the disjunctive. Finally, the express terms of (l)(a) are directed solely to obscene comments, while parts (b) through (d) relate to harassing calls with no mention of the use of obscene language. Both the heading of section 365.16 and its composition, therefore, indicate that the legislature intended that it cover two distinct areas — the making of obscene comments on the one hand, and the specified use of the telephone to annoy, abuse, threaten, or harass the person called, on the other.

In order to construe subsection (l)(a) as suggested by appellant, it would be necessary to read the term “or” in the heading of section 365.16 as “and.” Furthermore, we would have to find that the element of intent- to harass contained in parts (b) through (d) is, by implication, an element of part (a). Our courts have engaged in such an interpretation only when necessary to effectuate the clear intent of the legislature; when, for example, a literal reading of the statute would render it meaningless. Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (1927); Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967); Pinellas County v. Woolley, 189 So.2d 217 (Fla.2d DCA 1966). Because appellant’s tendered construction of section 365.16(1)(a) is contrary to the intent of our lawmakers, however, we cannot engage in the suggested rewriting of terms. Moreover, a reading of parts (a) through (d) of subsection (1) as distinct provisions does not render the statute meaningless. In McCall v. State, 354 So.2d 869 (Fla.1978), we declined a similar invitation to read an element of one part of a statute into another portion of the enactment when the two parts were separated by the disjunctive “or.” We considered whether section 231.07, Florida Statutes (1975), infringes upon the first amendment right of free speech. That statute provides:

Any person who upbraids, abuses or insults any member of the instructional staff on school property or in the presence of the pupils at a school activity, or any person not otherwise subject to the rules and regulations of the school who creates a disturbance on the property or grounds of any school, who commits any act that interrupts the orderly conduct of a school or any activity thereof shall be guilty of a misdemeanor of the second degree, punishable as provided by law. This section shall not apply to any pupil in or subject to the discipline of a school.

[Emphasis supplied.]

After acknowledging the constitutional directive that speech may not be prohibited unless the manner of its expression is incompatible with the normal activity of a particular place at a particular time, we noted that the enactment contained two distinct parts, one of which violated this directive:

The first portion of Section 231.07, under which the appellant was convicted, requires proof that a member of the instructional staff was upbraided, abused, or insulted, on school property, or in the presence of pupils at a school activity.
There is no language tying the prohibited expression to disruption of normal school activities at specific fixed times.
. We note that all other provisions of this statute require expressive activity designed to disturb the school atmosphere.

354 So.2d at 872 (emphasis supplied). Thus, because the first and second portions of section 231.07 were separated by the disjunctive “or,” we could not read the element of disruption contained in the second part into the preceding provision in order to render it constitutional. The composition of the statute before us even more strongly militates against reading the element of “intent to harass” in subsection (l)(b) through (d) into subsection (l)(a). Not only did the legislature use the disjunctive “or” in section 365.16, as it did with the statute in McCall, but it also separated subsection (1) of the enactment into four distinct, lettered provisions.

Because the scope of section 365.16(l)(a) is not limited to cases where the listener does not consent to use of the proscribed language, a citizen reading the provision might reasonably believe that it criminalizes telling an “off-color joke” to a willing listener or forbids a sexually oriented conversation between lovers. Such a prohibition constitutes a violation of the first amendment freedom of speech. Even if subsection (l)(a) is construed to encompass only language defined as obscene under Miller v. California, the enactment is nevertheless violative of this first amendment right because it does not contain the essential qualifying element — an unwilling listener. Our conclusion in this regard is grounded upon the decision of the United States Supreme Court in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

In Stanley v. Georgia, the Supreme Court held that the mere private possession of materials defined as obscene under Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), could not constitutionally be made a crime. The majority rejected the contention that a state may regulate obscenity without regard to the context within which the issue arises. The Court noted that cases in which obscenity was found not to be protected by the first amendment dealt generally with use of the mails to distribute obscene materials, the sale of obscene materials, or possession with intent to sell or distribute. Although these cases acknowledged an important governmental interest in regulating commercial distribution of obscene materials, the Court concluded that the first amendment interests of the individual prevailed in the context of private possession of obscene materials:

[T]he Constitution protects the right to receive information and ideas. “This freedom [of speech and press] * * * necessarily protects the right to receive * * *.” This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case — a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home — -that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy-
[M]ere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

394 U.S. at 564-65, 89 S.Ct. at 1247-1248 (emphasis supplied) (citations omitted).

Just as the first amendment freedom of speech protects the right of an individual to possess obscene matter in his own home, this freedom also prohibits the punishment of the mere use of obscene language in a telephone communication. We recognize that a prosecution for an obscene telephone call to which the listener does not object would rarely occur, for absent an offended party to report the incident, it would generally not come to the attention of law enforcement officials. However, the danger of an overbroad statute lies in its possible chilling effect upon the exercise of a precious first amendment right by those who read its provisions. In invalidating the “public obscenity” statutes in Spears v. State, 337 So.2d 977, we acknowledged this risk:

Overbroad statutes create the danger that a citizen will be punished as a criminal for exercising his right of free speech. If this possibility were the only evil of overbroad statutes, it might suffice to review convictions on a ease by case basis. But the mere existence of statutes and ordinances purporting to criminalize protected expression operates as a deterrent to the exercise of the rights of free expression, and deters most effectively the prudent, the cautious and the circumspect, the very persons whose advice we seem generally to be most in need of.

Id. at 980.

We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(l)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as the home) which calls are intended to harass the listener, the enactment would pass constitutional muster. Because such a statute would assume the existence of a listener who is unwillingly subjected to vulgar or obscene epithets, it would constitute a valid legislative attempt to protect the substantial privacy interests of the listener. “Time, place and manner” limitations upon the exercise of speech have been recognized by decisions of this Court and the United States Supreme Court where they are in furtherance of legitimate state interests. Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Rowan v. United States Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); McCall v. State, 354 So.2d 869. The state has a legitimate concern with protecting substantial privacy interests of its citizens from being invaded in an essentially intolerable manner. Cohen v. California, 403 U.S. at 21, 91 S.Ct. 1780. Further, the constitutionality of this statute would not hinge upon whether it prohibited merely filthy or vulgar words or only language characterized as “obscene” under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419.

Our recent decision in Spears v. State does not contradict the conclusion that the state may prohibit the use of “obscene” and harassing telephone communications regardless of whether the Miller test is utilized. In Spears we held that section 847.05, Florida Statutes (1975), which proscribed the public use of indecent or obscene language, was an unconstitutional encroachment upon the first amendment freedom of speech. Our holding was grounded upon the fact that section 847.05 was not limited to words defined as obscene under the Roth (now Miller) test or to “fighting words.” These limitations expressed in Spears, however, do not necessarily apply within the context of private telephone communications. Spears dealt with statutory restrictions upon public speech. Here, as we have recognized, section 365.16(l)(a) could be couched in appropriate terms so as to regulate certain types of harassing speech foisted upon a listener in a place where he might reasonably expect privacy. An important interest is present in this context which held lesser importance in Spears —the privacy interests of the listener, which constitutionally entitle the state to protect him from unwilling subjection to verbal abuse. This interest is afforded more constitutional protection within the sanctum of a home than in a public forum. In Cohen v. California, the Supreme Court elucidated the varying constitutional protection afforded this privacy interest, depending upon the public or private context within which it arises:

[M]uch has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers [in the corridor of a courthouse], and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e. g., Organization for a Better Austin v. Keefe, 402 U.S. 415, [91 S.Ct. 1575, 29 L.Ed.2d 1] (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e. g., Rowan v. Post Office Dept., 397 U.S. 728, [90 S.Ct. 1484, 25 L.Ed.2d 736] (1970), we have at the same time consistently stressed that “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.” Id., at 738, [90 S.Ct. 1484, 1491]. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

403 U.S. at 21, 91 S.Ct. at 1786 (emphasis supplied). Consequently, where the substantial privacy interests of a listener in a telephone conversation are involved, the Constitution will tolerate greater limits upon the dialogue of a speaker in order to prevent a nonconsensual intrusion upon these interests. In contrast, the constitutionally permissible restrictions upon the language which an individual may use in a public forum are more narrow.

We therefore hold that section 365.-16(l)(a), Florida Statutes (1977), is imper-missibly overbroad in violation of the first amendment freedom of speech under the Florida and federal constitutions.

Accordingly, the order of the County Court of Okeechobee County, Florida, granting appellee’s motion to dismiss is hereby affirmed.

It is so ordered.

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

HATCHETT, J., concurs in result only.

ADKINS, J., dissents with an opinion with which BOYD, J., concurs.

BOYD, J., dissents with an opinion with which ADKINS, J., concurs.

ADKINS, Justice,

dissenting.

I dissent.

The legislature has attempted to prevent the use of the telephone by a person when he attempts to terrify, intimidate, threaten, harass, annoy, or offend people by the use of certain language. I recognize that freedom of speech is among the fundamental personal rights and liberties which are protected by the fourteenth amendment to the United States Constitution from invasion by state action. However, government may prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

The use of one’s telephone clearly involves substantial privacy interests which the state may recognize and protect. The defendant’s right to freedom of speech ended when he attempted to invade, by the use of a telephone, the substantial privacy interests of another in an intolerable manner.

The statute under attack was geared toward conduct, i. e., use of the telephone, not speech. I would uphold the constitutionality and protect the privacy of the individual in his own home.

BOYD, J., concurs.

BOYD, Justice,

dissenting.

I respectfully dissent from the majority opinion holding that section 365.16(l)(a), Florida Statutes (1977), is impermissibly overbroad in violation of freedom of speech protected by the United States and Florida constitutions. The majority’s objection is that paragraph (l)(a) is susceptible of application to consensual telephone conversations where, because of the privacy interests involved, state power to regulate speech must be denied. My examination of the legislation leads me to conclude that the intent of the provision is to proscribe harassment through the use of obscene telephone calls. Thus, the privacy interests of the individual and the home are protected, rather than endangered, by the enactment.

We should construe the statute, based on the apparent legislative intent, to be intended to punish those who make obscene or indecent statements or suggestions, through the medium of the telephone, to harass, annoy, or abuse an unwilling listener. We should uphold the validity of the statute as so construed.

My principal objection to the majority opinion is that it places great emphasis on freedom of speech while giving too little emphasis to the rights of citizens to live and work privately in their homes and places of business without being annoyed, against their will, by unsolicited gutter language from strangers. The statute is not intended to curb constitutionally guaranteed freedom of speech but to prevent intentional, detrimental conduct that annoys the recipients of such calls.

The issue is not protected speech but unprotected misconduct.

ADKINS, J., concurs.

      . The portions of section 365.16, Florida Statutes (1977), which are relevant to this appeal are as follows:
      Obscene or harassing telephone calls.
      (1) Whoever by means of telephone communication:
      (a) Makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent; or

        (b) Makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number; or
      (c) Makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
      (d) Makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number
      shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

      . The record does not reflect the substance of appellee’s alleged statements. It is clear, nonetheless, that appellee has standing to challenge section 365.16(1)(a) as overbroad. This is so because one may attack an enactment which seeks to restrict first amendment freedoms on this ground without having to show “that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965); accord, Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Thornhill v. Alabama, 310 U.S. 88, 98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

      . Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965); Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735 (Fla.1961); City of Dunedin v. Bense, 90 So.2d 300 (Fla.1956).

        This portion of the statute is joined to the remaining portions by the disjunctive “or” and must therefore be treated separately.

      . 354 So.2d 869, 870 (citing Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

      . In the subsequent case of Miller v. California a majority of the Court modified the test for the determination of obscenity enunciated in Roth. The Miller test remains the current standard against which allegedly obscene materials must be measured. However, the modification of this test does not alter the result here.

      . See, e. g., Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Book Named Memoirs v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

      . If such a conversation were unlawfully intercepted by an eavesdropper or a bugging device, it would be inadmissible as evidence in a trial, hearing before a grand jury, and other proceedings designated by statute. § 934.06, Fla.Stat. (1977). The only apparent situation in which a prosecution might be based upon the report of one who is not a party to such a conversation is when the complainant has “listened in” in the ordinary course of business. In such a case, section 934.02(4)(a) provides that the contents of the call are exempted from the exclusion of section 934.06. State v. Nova, 361 So.2d 411 (Fla.1978), is illustrative of such a situation. There, the defendant Nova was convicted of the murder of his girlfriend, Revel. On the morning of her murder, Revel received a call at work from the defendant which left her visibly upset. When the decedent received a second call from the defendant, her supervisor, Ms. Bentley, listened to the conversation on an extension phone. Nova’s subsequent conviction was based in part upon the supervisor’s testimony as to threats made by Nova during this second call. In affirming the trial court’s ruling that the exclusion provided by section 934.02(4)(a) was applicable, we noted:
      The trial judge found that it was reasonable for Bentley, as Revel’s supervisor, to listen on the phone in order to find out why Revel was so upset. He concluded that Bentley’s use of the telephone in this instance was for the benefit of her employer and was in the ordinary course of business .
      361 So.2d at 413.

      . The United States Supreme Court has sustained a prohibition against the public use of “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and has strongly suggested that a ban on the use in a public forum of words which are obscene under Roth (now Miller) would pass constitutional scrutiny. Cohen v. California, 403 U.S. at 20, 91 S.Ct. 1780.


text:
    The MAINLANDS OF TAMARAC, NINTH SECTION, INC., a Florida Corporation not for profit, Appellant, v. Ernest WEIDMAIER and Elizabeth Weidmaier, his wife, et al., Appellees.
    No. 75-875.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Jeffrey E. Streitfeld, of Becker & Polia-koff, Miami Beach, for appellant.
    Alcee L. Hastings, of Hastings & Wright, Fort Lauderdale, for appellees.
   PER CURIAM.

Upon review and consideration of the briefs, record on appeal and oral argument we are of the opinion that plaintiff established a prima facie case sufficient to withstand the entry of a final judgment based upon defendants’ motion for directed verdict (involuntary dismissal). Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Preisner v. Cropf, 278 So.2d 295 (Fla. 4th DCA 1973). Accordingly, the judgment is reversed and the cause is remanded for a new trial. Nothing contained herein shall be construed as constituting any determination whatsoever on the relative merits of the respective parties’ claims and defenses.

REVERSED AND REMANDED.

MAGER, C. J., ALDERMAN, J., and WEAVER, SIDNEY M., Associate Judge, concur.


text:
    Kenneth Dale ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 76-628.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Cottle v. Wainwright, All F.2d 269 (5th Cir. 1973).

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


text:
    Raymond MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 76-782.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Richard L. Jorandby, Public Defender, and J. Laurence Eisenberg and Richard S. Power, Asst. Public Defenders, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Copeland v. State, 336 So.2d 653 (Fla.2d DCA 1976). Cf., Slater v. State, 316 So.2d 539 (Fla.1975); State v. Ray, 331 So.2d 316 (Fla.1976), and McCloud v. State, 335 So.2d 257 (Fla.1976).

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.