author: HARRIS, Judge.

text:
    Robert WILLIAMSON v. STATE.
    7 Div. 364.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      Robert L. Rumsey, III, Sylacauga, for appellant.
    William J. Baxley, Atty. Gen.., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment charging murder in the second degree. He was represented at arraignment and trial by Court-appointed counsel. He pleaded not guilty. The jury returned a verdict finding appellant guilty of manslaughter in the first degree and fixed his punishment at ten years’ imprisonment in the penitentiary. He gave notice of appeal. New and employed counsel represents him on this appeal.

The testimony was in sharp conflict. The testimony for the state tended to show that appellant cut or stabbed the deceased, without any provocation, outside a Negro cafe near Lineville, Clay County, Alabama, on the night of August 3, 1974, and that he died later that night as the direct and approximate consequence of the knife wounds. The testimony on behalf of appellant was that he was attacked by the deceased and that he cut the deceased in self-defense.

The sufficiency of the evidence is not presented to this Court for review as there was no motion to exclude the state’s evidence for failure to make out a prima fa-cie case; there was no motion for a new trial; there was no request for the affirmative charge, and no exceptions were reserved to the Court’s oral charge to the jury. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Tally v. State, 54 Ala.App. 34, 304 So.2d 275; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Jackson v. State, 52 Ala.App. 667, 296 So.2d 753; Frazier v. State, 53 Ala.App. 492, 301 So.2d 256.

However, in deference to matters raised in appellant’s brief, we will deal with the pertinent facts in this case.

Willie Clifford Brown testified that he was a double first cousin to appellant and that on the night of August 3, 1974, he went with the deceased, Benny James Tur-man, to Amos Turman’s Cafe arriving there around 9:00 p. m. They had been in the cafe five or ten minutes when appellant came in with his wife and one Bernice Underwood. He further stated that when appellant came in, neither he nor the deceased spoke to him and that he and the deceased walked out of the cafe and went to his car to leave. That when they were standing by his car, appellant came out of the cafe and said, “Wait a minute, Benny, I want to talk to you a minute.” That the deceased turned around to see what he wanted and Brown saw appellant reach toward his back pocket. The deceased had not said anything to appellant and he did not see a weapon of any kind in the possession of Benny, and he made no move in the direction of appellant and did not grab him. When appellant reached for his back pocket, Brown hollered to Benny to watch him, saying, “I knew he had something, but I did not know what he had.” Brown further stated he did not see appellant cut Benny, but the next thing he saw was Benny turned and started running and appellant ran after him. At this time appellant’s wife called him and he stopped. Brown went behind the cafe and into the woods trying to find Benny but he did not locate him. That the next time he saw Benny was at a local hospital.

James A. Wood testified that he was related to Benny Turman by marriage. On the night of August 3, 1974, he was driving his car to the cafe. In the car with him were his brother-in-law and sister-in-law. He first saw the deceased standing against a railing of a bridge on Highway 49 in Lineville with his shirt off; he was holding the shirt over his wound and the shirt was bloody. He stopped his car and told Benny to get in the car and he would take him to a doctor. Benny was too weak to get in the car without help. They finally got him in the car and carried him to the Clay County Hospital in Ashland. Benny was bleeding badly and there was blood in his car. This witness testified that he knew appellant and his nickname was “Goose.”

Mary Wood, the wife of James Wood, testified that they picked up Benny on the overhead bridge on Highway 49 and carried him to the hospital and that she stayed with him at the hospital until he was carried to Birmingham that night. That he was carried to the operating room where the doctors and nurses treated him and then he was brought back into the hallway where she was and also his father had arrived.

From the record:

“The Court: If anything, what did he say, if anything, about dying, at that time and place?
“A. I am going to say the exact words he said, he said, ‘Daddy, help me,’ he said ‘Help me, Daddy, I’m dying,’ and his eyes went up and back and he just went to sleep.”

After Benny told his Daddy he was dying, a nurse asked him who stabbed him and he said, “Robert Williamson.”

After Benny told his Daddy to “help me, I’m dying,” his Daddy turned and walked out and Mary Wood walked up to the bed and called him and he looked up at her and said, “Goose stab me,” and he never said another word.

Mr. James M. Buttram testified that he was employed by the State Department of Toxicology and Criminal Investigation and that his primary duties are related to investigation of death. After stating his education, experience and qualifications, he was asked how many autopsies he had conducted and he replied, “In excess of two hundred and fifty.”

He further testified that he performed an autopsy on the body of Benny Turman who was identified to him by the Coroner. He stated that there were two stab wounds and that in his opinion death was due to hemorrhage and shock associated with the stab wound which severed major blood vessels within the liver. Mr. Buttram took two photographs of the deceased and they were admitted in evidence without objections. He went into great detail in describing the two stab wounds on the body of the deceased which we do not deem necessary to set forth.

Mr. Michael Harris, a Patrolman for the City of Talladega, and former Police Chief for the town of Lineville, investigated the death of Benny Turman. In the course of the investigation he went to appellant’s home along with Sheriff John Green of Clay County. Appellant was given the Miranda rights and warnings and he signed a waiver of rights form and signed a statement which was witnessed by Harris and Sheriff Green. The pre-Mi-randa predicate was laid and appellant’s statement was introduced in evidence as State’s Exhibit No. 4 and is as follows:

"STATE’S EXHIBIT NO. 4
August 4, 1974
STATEMENT OF ROBERT WILLIAMSON :
“I left my home around 10:00 p. m. and went over to Amos Turman’s Cafe to shoot pool. When I walked into Amos’, Benny Turman was inside at the counter. I stood just inside the door and Benny Turman motioned for me to go outside; he said he was going to get me. He (Benny Turman) went outside and I came out. Benny Turman and I have had trouble in the past. While outside he reached for me and I backed off and got my knife out of my pocket, because he already had his hand in his pocket and I didn’t know if he had a gun or a knife. I hit him with my knife somewhere around his stomach then turned and ran a few feet then got in my car and left with my wife and we went home and went to bed.
“I was awaken at my home around 5:45 a. m. by Sheriff John A. Green and Michael L. Harris, Chief of Lineville Police. Sheriff Green advised me I was under arrest for the killing of Benny Turman. I was advised of my rights and taken to Clay Co. Sheriff’s Office for questioning by Sheriff Green & Chief Harris.
“I voluntarily signed a waiver and gave my statement to them.
/s/ ROBERT WILLIAMSON
/s/ Michael L. Harris
/s/ John A. Green”

While at appellant’s home the knife used to cut the deceased was recovered and was introduced in evidence by stipulation.

Dr. C. P. Horn testified that he practiced medicine in Ashland, Clay County, Alabama, and was called to the hospital to see Benny Turman and found him in a critical condition with blood pressure forty over thirty which is severe shock. It was determined that the patient was in such condition that it was necessary to transfer him to the University Hospital in Birmingham. He was dead on arrival at the University Hospital. The doctor identified State’s Exhibit No. 2 as being Benny Turman.

The evidence adduced on behalf of the accused showed that there were bad feelings between appellant and the deceased. That the deceased had threatened appellant on several occasions over a period of many months. The deceased had shot into appellant’s car and "home on two or more occasions. Their feelings toward each other were such that both were put under peace bonds.

Appellant’s wife corroborated his testimony as to previous trouble and also as to what occurred on the night of August 3, 1974, outside the cafe where the fight took place.

On cross-examination she admitted that she had gone with the deceased.

Appellant was asked if he knew his wife and the deceased had gone together and he said that he knew it and thought that everyone else knew it also.

Appellant claims there was a fatal gap in linking the evidence to show the cause of death. He states there was no evidence of any nature of what transpired at the University. The record does not support this contention. Mr. Aubrey Camp of the Clay County Rescue Squad who drove the ambulance carrying Benny Turman to the University Hospital testified, without objection, that he was announced dead on arrival.

Appellant contends that the trial court erred in admitting the dying declaration made by the deceased to his father while he was still in the hospital before he was put in the ambulance to be transported to Birmingham. We disagree with this contention. The rule is best stated in Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, wherein the Court held:

“No hard and fast general rule can be laid down to control the admissibility of dying declarations. The circumstances of each case must be considered — the condition of the person, as well as what he says in regard to approaching dissolution. Lewis v. State, 231 Ala. 211, 164 So. 92; Parker v. State, 165 Ala. 1, 8, 51 So. 260, 262. The Parker case approvingly quotes Professor Wigmore on the subject: ‘No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.’ 2 Wigmore on Evidence, p. 1809, § 1442.
Nor is it an indispensable prerequisite to admissibility that declarant should state in haec verba that he is in extremis, that there is no hope of life, and that death is imminent, just so the judicial mind is fairly convinced by legally sufficient evidence after a careful consideration of all the circumstances that at the time such declarations were made such was the conviction of deceased. Lewis v. State, supra; Collins v. State, 27 Ala.App. 499, 176 So. 219.
All the attendant circumstances tending to show the declarant’s state of mind, as his statements, nature of the wounds, his weakness, etc., may be looked to by the trial court in considering the predicate for admissibility. Ragland v. State, 238 Ala. 587, 192 So. 498. And that declar-ant was under a sense of impending dissolution may be inferred from his apparent condition, such as the nature of his injuries and evident danger. Wilson v. State, 28 Ala.App. 496, 188 So. 274.
Nor is admissibility controlled by the length of the interval between the declarations and death, but by the declarant’s state of mind and his conviction that death is imminent. Titus v. State, 117 Ala. 16, 23 So. 77; Sowell v. State, 30 Ala.App. 18, 199 So. 900.”

The trial court is vested with discretion in the conduct of a trial and appellate courts will not interfere therewith unless it clearly appears that there has been an abuse of discretion. Townsell v. State, 255 Ala. 495, 52 So.2d 186; Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250; Carson v. State, 49 Ala.App. 413, 272 So.2d 619.

There is nothing in the record before us even tending to show that the trial court transcended his authority or abused his discretion in propounding questions to the various witnesses to elicit relevant and material evidence. Brandes v. State, 17 Ala.App. 390, 85 So. 824.

Conflicting testimony is for the jury, and a verdict rendered thereon will not be disturbed on appeal. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Donnie VINES, alias v. STATE.
    6 Div. 896.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      James R. Shaw, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was put to trial upon a three-count indictment charging, (1) burglary, (2) grand larceny, and (3) buying, receiving, concealing, etc. Omitting the formal parts, the indictment reads as follows:

“1. The Grand Jury of said County, charges that before finding of this indictment Donnie Vines, alias Donald H. Vines, whose name to the Grand Jury is otherwise unknown, did, with intent to steal, break into and enter a shop,.store, warehouse, or other building of R. V. Hubbard, Oddie Hubbard, George Wood and Millard McConnell, a partnership, d/b/a Cherry Tree Apartments, in which goods, wares, or merchandise was kept for use, sale or deposit;
2. The Grand Jury of said County further charge that, before the finding of this indictment, Donnie Vines, alias Donald H. Vines, whose name to the Grand Jury is otherwise unknown, feloniously took and carried away 3 rolls of green shag carpet, of the value of $400.00; one roll vinyl floor covering, of the value of $50.00; and one General Electric refrigerator, of the value of $228.00, all in the total value of $678.00, the personal property of R. V. Hubbard, Oddie Hubbard, George Wood and Millard McConnell, a partnership, d/b/a Cherry Tree Apartments ;
3. The Grand Jury of said County further charge that, before the finding of this indictment, Donnie Vines, alias Donald H. Vines, whose name to the Grand Jury is otherwise unknown, did buy, receive, conceal, or aid in concealing, 3 rolls of green shag carpet, of the value of $400.00; one roll vinyl floor covering, of the value of $50.00; and one General Electric refrigerator, of the value of $228.00; all of the total value of $678.00, the personal property of R. V. Hubbard, Oddie Hubbard, George Wood and Millard McDonnell, a partnership, d/b/a Cherry Tree Apartments, knowing that they were stolen, or having reasonable grounds for believing they were stolen, and not having the intent to restore them to the owner, against the peace and dignity of the State of Alabama.”

He was represented by retained counsel at arraignment and trial. He pleaded not guilty. Trial counsel represents him on this appeal.

The evidence for the state and appellant is in hopeless conflict. Only a jury could unravel these conflicts and arrive at a verdict. At the conclusion of the state’s case the trial court on motion of appellant dismissed the burglary count and submitted the case to the jury on the two remaining counts. The jury returned a verdict in the following language:

“We, the jury, find the defendent guilty of buying, receiving and concealing stolen property as charged in the indictment and fix the value of the stolen property at $700.00. Norris L. Headley, Foreman.”

Appellant was sentenced to six years imprisonment in the penitentiary.

Mr. R. V. Hubbard was the first witness called by the state. He testified that he and three other men formed a partnership and had built the Cherry Tree Apartments located on Cherry Court in Hueytown, Jefferson County, Alabama. He stated that he knew appellant and that they graduated from high school together. He further said that appellant did not have a lease in the apartment complex but indicated he thought he stayed there with a woman sometimes.

Hubbard further testified there was a rather large storage room under one of the apartments for the common use of the tenants. That he was in the business of constructing apartments and with the help of some employees he had stored in the storage room a new General Electric refrigerator (still in the crate), some vinyl flooring and some green shag carpet. That around 7:00 p. m., on April 16, 1974, he received a telephone call and as a result of that call he went to the storage room of the Cherry Tree Apartments and found the above listed items missing. He stated that the refrigerator was valued at $228.00, the green carpet was worth $400.00, and the vinyl floor covering was worth $150.00. He said he had put blue ink circles on the back of the carpet so that he could identify it.

Hubbard further testified that on April 18, 1974, he reported the theft of these items to a Sergeant Nichols of the Huey-town Police Department and that an investigation got under way to try to locate this property. He gave Sergeant Nichols the serial number of the refrigerator and a description of the other missing property. He stated that these missing items of personal property were returned to him on May 25, 1974, and that he got a release for them on that date from the Hueytown Police Department.

On cross-examination Mr. Hubbard testified there were two doors to this storage room and they were kept locked. That there were only two keys to this storage room. That he had one key and the resident manager, Jackie Greer, had the other key. That if any of the tenants wanted to use the storage room, they had to contact the resident manager. That on the night of April 16, 1973, he contacted the resident manager and asked him if saw anyone move this property from the storage basement and he said he did not.

On redirect examination Mr. Hubbard testified that on the night of April 16, 1973, the basement doors were locked as well as the windows. He stated that the top pane next to the door was broke “so that you could put your hand in and unlock it.” The trial court excluded this last statement from the jury.

On recross examination this witness testified that one Marsha Glover was a tenant at the Cherry Tree Apartments but that according to his records, she moved out on March 30, 1974.

Mr. Michael L. McLaughlin testified that in 1974 he lived at the Cherry Tree Apartments for about five months and was living there during the month of April when appellant came to his apartment and asked him and his roommate, Larry Hanna, to help him move some furniture. He said they went down to the storage room and helped appellant put some carpet, a roll of linoleum and a crated refrigerator on the back of a pickup truck. That appellant paid each of them twenty dollars for their help.

On cross-examination he testified that he was never indebted to appellant. That he thought it was on April 16, 1974, that they helped appellant load the pickup truck and it was after dark. He denied that he took this property and sold it for $200.00, and he denied telling a person by the name of Coston that he took this property and sold it and hung the whole thing on appellant.

On redirect examination he stated that appellant was alone with the pickup truck when he helped him load it.

Gwenda Shope testified that in April of 1974 she lived at 805 Third Avenue, Midfield, Alabama. At that time she was in the market for a refrigerator and carpet and had been shopping all day with one Wayne Coates. That on Saturday, April 13, 1974, she and Coates went to a place called Dan’s Tavern on Third Avenue in Central Park. The place was full of people and they sat in a booth with three or four other people. She mentioned that she was interested in buying some carpet and a refrigerator. She was introduced to a man whose nickname was “Dog man” who told her he thought he could get these items for her. She found out later that “Dog man” was the appellant. She signed a check in blank and gave it to Wayne Coates to pay for these items. She further stated that a refrigerator, in a crate or box, some green shag carpet, and a roll of vinyl floor covering were delivered to her house. She was not present when these items were delivered to her home. She wanted an 18 foot refrigerator but a 16 foot refrigerator was delivered along with the other items. After the delivery was made, she called appellant’s residence and a woman answered the phone and she asked her to have Mr. Vines return 'her call. She stated that she got appellant’s telephone number from Wayne Coates as Mr. Vines’ telephone number was not listed in the directory. She stated the purpose in calling Mr. Vines was to tell him she wanted an 18 foot refrigerator. She said she received a telephone call from a man who identified himself as Mr. Vines. The court, upon objection, would not permit her to relate their conversation.

This witness was shown State’s Exhibit No. 1, and she identified the exhibit as the check she had signed in blank and given to Wayne Coates. This check had the name “Gwenda H. Shope” printed in the left upper corner and was signed “Gwenda H. Shope,” and under her signature was her address and her telephone number in Midfield, Alabama. The check was drawn on her checking account in The First National Bank of Birmingham — Valley Road Branch — and was dated “4/17/1974,” and it was payable to “Donnie Vines in the amount of $360.00.” The original check is before us and shows that it was endorsed by “Donnie Vines.” This witness further testified that after signing this check in blank and giving it to Coates, she did not see it again until after it had cleared her bank. She also testified that she sold the refrigerator to a man named “Letson.”

Sergeant David A. Nichols of the Huey-town Police Department was put in charge of investigating the stolen property. He contacted Mr. R. V. Hubbard who told him the missing property was three rolls of green shag carpet, one roll of vinyl floor covering and one G. E. Refrigerator, gold in color, serial number FP 643547. In the course of his investigation he went to the residence of Gwenda Shope in company with Mr. Hubbard and Sergeant Eddings of the Bessemer Sheriff’s Office. He testified that they walked up the driveway to the house and saw three rolls of carpet in the carport. Mr. Hubbard looked at the rolls of carpet and stated it was his carpet. He knocked on the door, and had a conversation with Mr. Shope. As a result of that conversation Mr. and Mrs. Letson were contacted at 29th Avenue, Hueytown. The Letsons brought a G. E. Refrigerator to Police Headquarters and the serial number was checked, and it was the same number that Mr. Hubbard had given to Sergeant Nichols. All of the stolen property was recovered and it was released to Mr. Hubbard on May 25, 1974.

Mr. Wayne Coates testified that he rented an apartment from Mrs. Shope at 805 Third Avenue, Fairfield Highlands, in Midfield. He stated that he had known appellant four or five years and that on or about April 17, 1974, appellant came to the home of Mrs. Shope and he thought he came in a truck. He said two men delivered some carpet and a refrigerator and he gave the check signed in blank to appellant on that occasion. He identified State’s Exhibit No. 1 as the check he gave appellant at the time the property was unloaded.

On cross-examination he testified that a pickup truck was there when the property was unloaded but could not be positive whether appellant drove the pickup truck' or whether he came in another vehicle, He further testified that he gave Mrs. Shope’s check in the amount of $360.00 to appellant in payment of some property that she was supposed to be getting.

Mrs. Marsha Glover testified that at one time she was married to appellant. She married him in March of 1974 and soon divorced him. She thought the divorce became final in June of that year. She stated while they were married, she lived in the Cherry Tree Apartments. She further testified that around April 15, 1974, she and appellant went to the Long Lewis Ford Place in Bessemer and rented a truck. That they were going to use the truck for her to move. She said she was employed as a nurse at a local hospital and her hours of employment were from 2:30 to 10:30 p. m. She further stated that appellant called her at work on April 16, 1974, around 7:00 and told her he still had the truck and that he was at the Cherry Tree Apartments when he called her. She further testified that appellant in that telephone conversation told her he was going to take some carpet and a refrigerator out of the basement of the apartments at Cherry Tree. She told him she didn’t want any of this property at her house in Hueytown.

On cross-examination she denied that she had cohabitated with appellant and held herself out as his wife a year before their formal marriage. She further denied having stayed with appellant on several occasions since they were divorced. She admitted knowing one Hank Johnson but denied that she had lived with him. She also admitted knowing two other men but when she was asked if she had lived with them, the state objected and the objection was sustained.

From the record:

“Q. Mrs. Glover, you want to see Donnie go to jail, don’t you ?
“Mr. Reynolds: I object to that.
“A. No, sir.
“The Court: Sustained.
“Mr. Shaw: No further questions, Judge.”

Bob Coston testified in behalf of the defense. According to his testimony he lived at the Cherry Tree Apartments and knew Mike McLaughlin. He stated that some time after April 16, 1974, McLaughlin told him that “They’ve got Donnie for something he didn’t do.”

Appellant testified and admitted having received the check for $360.00 from Wayne Coates. He stated he had been at the Shope residence for about five minutes when McLaughlin arrived. Appellant claimed he went there to collect $165.00 that Coates owed him and he allowed Coates to write him a check (signed by Mrs. Shope) for $360.00 and that he gave Coates cash in the amount of $200.00 to pay McLaughlin for some material that Coates said McLaughlin was delivering to' him.

He denied that he had ever gone to McLaughlin’s apartment and asked McLaughlin to help him load any items into a pickup truck. He further testified that he did riot steal or participate in the theft of the items listed in the indictment from the Cherry Tree Apartments.

On cross-examination he explained that the debt of a $165.00 owed him by Coates was a bet on a football game. He stated that he saw McLaughlin when he came to the Shope residence but he did not see him deliver a refrigerator or any carpet and that he did not help him unload any of these items. He did say that he saw a crate McLaughlin had there which was approximately the size of a refrigerator crate.

Appellant admitted that he had been convicted'of five cases of forgery.

Larry Hanna testified for the defense. He said he was McLaughlin’s roommate for several months. That he did not have an apartment leased in his name but he paid Mike his share of the rent. He denied that appellant had asked him and McLaughlin to help him move any items out of the basement of the Cherry Tree Apartments and that they were never paid any money for assisting appellant to move a refrigerator and any carpets.

Hanna further testified that he knew McLauglin’s general reputation in the community and that it was bad and that his reputation for truth and veracity was bad and that he would not believe him on oath.

On rebuttal the state recalled Sergeant David A. Nichols who testified that he knew appellant’s general reputation in the community in which he lived and that it was bad. He further testified that appellant’s reputation for truth and veracity was bad and that he would not believe him on oath.

Wayne Coates did not testify that appellant gave him $200.00 cash in exchange for the $360.00 check he gave appellant the time the property belonging to Mr. Hubbard was delivered to the home of Mrs. Shope. He testified he made the check payable to Donnie Vines in the amount of $360.00 for the property that was delivered that night as he understood that was the amount agreed upon.

Appellant admitted that his nickname was “Dog man” or “Dog Meat” as testified to by Mrs. Shope when she was introduced to him in Dan’s Tavern when there was a discussion about some carpet and a refrigerator. It was at this meeting that appellant made the statement that he thought he could get these items for her.

Scienter is an element of proof necessary to sustain a conviction of receiving stolen property, but scienter may be inferred by the jury from the facts and circumstances of the entire transaction. Bills v. State, 49 Ala.App. 726, 275 So.2d 706; Paul v. State, 48 Ala.App. 396, 265 So.2d 180.

The possession of property recently stolen does not raise a presumption or inference, as a matter of law, of the guilt of the possessor, but the presumption arising from such possession is a matter of fact to be passed upon by the jury. Milligan v. State, 45 Ala.App. 112, 226 So.2d 172.

The corpus delicti may be proven by circumstantial evidence as well as by direct proof. Johnson v. State, 41 Ala.App. 351, 132 So.2d 485; Matthews v. State, 42 Ala.App. 406, 166 So.2d 883.

In Character v. State, 51 Ala.App. 589, 287 So.2d 916, this Court held:

“The requisite scienter for the crime of receiving stolen property may be inferred from the recent possession of stolen goods. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827.
In Buckles [Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).], supra, our Supreme Court cited with approval the following quotation from the case of Aron v. United States, 8 Cir., 382 F.2d 965, 970:
‘The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and a necessary evidentiary rule. Without this evidentiary rule in criminal cases it would be almost impossible to consider for conviction any of the possessors or fences of stolen property unless they admitted that they knew the property to be stolen, which is an admission not likely to be forthcoming.’ ”

We are hard pressed to believe that appellant’s presence at the Shope home at the very time the stolen goods were delivered was a coincidence, ostensibly to collect a gambling bet on a football game. The jury could reasonably infer that he was there to collect for the stolen property that he had taken and concealed from the Cherry Tree Apartments. This was in keeping with the telephone call he made to his ex-wife at 7:00 p. m., on April 16, 1974, in which he told her he was going to take the property.

The answer that Mrs. Glover made to the question if she didn’t want to see Donnie go to jail was favorable to appellant and he cannot validly complain that she was biased.

Conflicting testimony is for the jury and a verdict thereon is conclusive on appeal. Stephenson v. State, 28 Ala.App. 418, 185 So. 910; Eady v. State, 48 Ala.App. 726, 267 So.2d 516.

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; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

There was no error in sustaining the state’s objections to questions posed to Mrs. Glover as to her relationship with other men. In Moulton v. State, 88 Ala. 116, 6 So. 758, the Supreme Court said:

“The doctrine is too familiar to require support, from a citation of texts or adjudge cases, that character, good or bad, can only be established by evidence of general reputation.”

We have carefully examined 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: CATES, Presiding Judge.

text:
    Leroy WILSON v. STATE.
    4 Div. 202.
    Court of Criminal Appeals of Alabama.
    Feb. 18, 1975.
    Rehearing Denied March 18, 1975.
    Alice L. Anderson, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
   ON REHEARING

CATES, Presiding Judge.

The former opinion in this case is hereby withdrawn and the following becomes the opinion of this Court:

Robbery: sentence, thirty years imprisonment.

Appellant, who was nineteen years of age at the time of trial, first made known his desire to be tried as a youthful offender in his motion for new trial, which was denied by the trial court.

It was the duty of the trial court on being informed that Appellant was under the age of twenty-one at the time of the offense, and thus eligible for youthful <?f-fender treatment, to refer him to a probation officer for investigation. Morgan v. State, 291 Ala. 764, 287 So.2d 914. The record in the instant case does not reveal that this was done. Following such investigation, if Appellant consents to be' tried as a youthful offender under the provisions of Act No. 335 of February 10, 1972, it is within the discretion of the trial court to so try him. A minor accused’s right to be informed of the provisions of the Youthful Offender Act is accorded the same gravity as the right to an explanation of constitutional rights when a guilty plea is entered. Morgan, supra.

On-authority of Edwards v. State, (5 Div. 216, Ms. Oct. 1, 1974), 55 Ala.App. 544, 317 So.2d 511 (which rests on Morgan, supra) this case is remanded to the trial court to refer Appellant to a probation officer for investigation. Should Appellant then manifest a desire to be tried as a youthful offender, a speedy, fully recorded hearing on his petition shall be held and a transcript of the proceedings, together with the trial court’s determination, is to be forwarded to this court for review.

Remanded with directions.

Application for rehearing overruled.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Leroy WILSON v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1202.
    Supreme Court of Alabama.
    May 22, 1975.
    William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State, petitioner.
    No appearance for appellee.
   BLOODWORTH, Justice.

Petition of State for writ of certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Leroy Wilson v. State, 57 Ala.App. -, 326 So.2d 314.

The Court of Criminal Appeals, in its decision, orders “this case is remanded to the trial court to refer Appellant to a probation officer for investigation.” In ordering referral to a probation officer, the decision and judgment is not in accord with our judgment and decision in Ex parte State of Alabama, ex rel. Attorney General (In re: Edwards, Alias v. State of Alabama) 294 Ala. 358, 317 So.2d 512.

On authority of, and in accordance with, Edwards, supra, the petition is denied.

Writ denied.

HEFLIN, C. J., MERRILL, MADDOX, JONES, SHORES and EMBRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.

FAULKNER, J., dissents.

ALMON, J., not sitting.


text:
    Leroy WILSON v. STATE.
    4 Div. 202.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Rehearing Denied Dec. 16, 1975.
    Alice L. Anderson, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent and a minor with the same appointed counsel here and at nisi pruis, was convicted of robbery with punishment at thirty years.

It appears that this defendant was tried and convicted by a jury for the offense of robbery without being informed of his option to be tried under the terms of the Youthful Offender Act, which has been codified as T. 15, §§ 266(1), (2), (3), (4), (5), and (6), Recompiled Code 1958, and construed in Morgan v. State, 291 Ala. 764, 287 So.2d 914.

The Supreme Court in Morgan held that the Act “charges the trial judge with the duty to refer any person under 21 years of age * * * to a probation officer to make such investigation requested by the court, Referral in such event is not discretionary, but mandatory, on the part of the trial judge. * * *

The instant case was, on February 18, 1975, remanded to the trial court with direction to make known to appellant his right to petition for trial as a Youthful Offender, and, should he elect to be tried as such offender, that the petition be referred to a probation officer for investigation.

The trial court, after remand, heard the defendant’s petition. Evidence was orally adduced before the trial court; also the defendant was informed of the report of the probation officer who made an investigation after remand and prior to the hearing. The trial court denied this petition. Such denial was discretionary with the trial court. We will not disturb.

The Supreme Court in Clemmons v. State, 294 Ala. 746, 321 So.2d 238, modified Morgan so that the trial courts may now make or order an investigation; if they deem necessary they may then make a determination whether or not to accord youthful offender treatment to the accused. Cooks v. State, 55 Ala.App. 537, 317 So.2d 504, 506.

ON THE MERITS

The indictment accuses appellant of robbing Ruth Helms of $281.00 in lawful money. She was in charge of the Scooter Store in Hartford, Geneva County, Alabama. The robbery occurred about 10:30 at night. Appellant had an accomplice who was also indicted and convicted of robbery. He was with appellant in the store.

Mrs. Helms, the victim, made a line-up and also an in-court identification of defendant.

The evidence shows that Mrs. Helms waited on both Wilson and his partner when they were in the store and had an opportunity to observe them both for about five minutes before they made demand for money. They were armed with guns.

After they were detained by officers, the witness made a line-up identification. This took place in the Scooter Store in Hartford. She also identified both persons at that time.

It is true at the latter identification neither accused had a lawyer present. At that time adversary judicial criminal proceedings had not attached or begun. He was not then entitled to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L. Ed.2d 411 (1972).

Line-up questions were discussed in the following cases: Stovall v. Denno, 388 U. S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L. Ed.2d 402; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L. Ed.2d 401.

The observations of Justice Powell in Neil, supra, are appropriate here. We quote:

“Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misiden-tification.’ Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971 [19 L. Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402] * * *” (Bracketed matter added.)
* * * * * *
“We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentifi-cation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. * * * ” 409 U.S. at 198-200, 93 S.Ct. at 381, 34 L.Ed.2d 401 at 410-411.

This court followed the same reasoning in Thomas v. State, 50 Ala.App. 227, 278 So.2d 230. We quote:

“ * * * The line-up was not tainted and the circumstances do not show an unfairly constituted line-up, nor was it shown to have been conducted in such an unnecessarily suggestive manner as to be conducive to irreparable mistaken identification. Even if the line-up were to be thought to be violative of due process, the in-court identification need not be rejected if it is shown to have a source independent of the line-up. We are of the opinion that there was sufficient evidence before the trial court, some already alluded to, to show that the in-court identification by the rape victim had an independent origin, hence, fulfilling the legal requirements. United States v. Wade, supra; Houston v. State, 49 Ala.App. 403, 272 So.2d 610; Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L.Ed.2d 402; Redmon v. State, 47 Ala.App. 421, 255 So.2d 604.” 50 Ala.App. at 232, 278 So.2d at 234.

The voice identification of defendant by the victim did not impinge on defendant’s constitutional rights. It was not of a “testimonial or communicative nature * * * Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908. A person’s voice is a “physical characteristic,” subject to be compelled to disclose to identifying witness. United States v. Wade, 388 U.S. 218, at page 222, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

Appellant also contends the officers’ search of an automobile in which some bills and coins were found was illegal.

It appears from the evidence that the searched automobile was neither the property of appellant nor of his companion in the robbery; nor was it at the time of the search under their control or in their possession. Defendant had no proprietary interest in the searched vehicle. Defendant was without authority of law to object to the evidence relating to the search or the money found in the car. Davidson v. State, 48 Ala.App. 446, 265 So.2d 888(4), cert. den., 289 Ala. 741, 265 So.2d 897; Sanders v. State, 278 Ala. 453, 179 So.2d 35(17); Bridges v. State, 52 Ala.App. 546, 295 So.2d 266.

We have searched the record, as is our duty, to find error prejudicial to defendant. We find none.

The judgment should be and it is affirmed.

The foregoing opinion was prepared by Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: MERRILL, Justice.

text:
    In re Leroy WILSON, Jr. v. STATE. Ex parte Leroy Wilson, Jr.
    SC 1628.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Alice L. Anderson, - Enterprise, for petitioner.
    None for the State.
   MERRILL, Justice.

Petition of Leroy Wilson, Jr. for Certio-rari to the Court of Criminal Appeals‘to review and revise the judgment and decision of that Court in Wilson v. State, 57 Ala.App. -, 326 So.2d 316.

Writ denied.

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


text:
    Robin HOOD v. Clifton MARSHALL.
    No. 48486.
    Supreme Court of Mississippi.
    Jan. 19, 1976.
    Rehearing Denied Feb. 24, 1976.
    J. Harold Graham, Jr., Robert W. Lawrence, Crystal Springs, for appellant.
    Barnett, Montgomery, McClintock & Cunningham, Thomas A. Webb, Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


author: BROOM, Justice:

text:
    W. W. DENT v. R. L. CALHOUN and R. L. Windham.
    No. 48482.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Rehearing Denied Feb. 24, 1976.

      Kenneth Crawford, Collins, for appellant.
    R. L. Calhoun, Hattiesburg, for appel-lees.
    Before GILLESPIE, WALKER and BROOM, JJ.
   BROOM, Justice:

Again before us is the question of whether or not the defendant in a suit brought by a landowner to cancel a defendant’s mineral deed on grounds of fraud may be barred by the ten year statutes of limitation in a situation where the mineral deed has been of record more than ten years prior to commencement of the suit. This appeal is from the Chancery Court of Covington County which held that the suit is barred by the ten year statute under Mississippi Code Annotated sections 15-1-7 and 15-1-9 (1972). We affirm.

The following facts are gleaned from the record. Estella Zinnerman, on May 26, 1955, conveyed the entire mineral interest in the land in question to appellees, Wind-ham and Calhoun. On May 27, 1955, the mineral deed was filed for record in the office of the Chancery Clerk of Covington County, Mississippi, but was not actually recorded until June 14, 1955. By forfeited tax land patent the State of Mississippi, on June 9, 1955, conveyed the land and minerals to Estella Zinnerman, who had several days earlier conveyed the minerals to the appellees. She filed her patent for record on June 13, 1955, and it was recorded the following day, on which date her prior conveyance to the appellees was recorded. On June 11, 1955, Zinnerman conveyed the land to appellant, Dent, who was complainant below, which conveyance by warranty deed was filed for record June 13, 1955, and recorded the following day. The suit presently before us was filed by Dent as complainant on August 31, 1973, against appellees, Windham and Calhoun, as a cloud suit to cancel the deed from Zinner-man to the appellees.

We hold that the chancellor correctly found that within a few days after the controversial deed was executed by Zinnerman to appellees, the appellant, Dent, learned of the deed, but (after having actual knowledge of its being on record) he waited until more than ten years elapsed before filing the suit. The chancellor correctly found that the suit was barred by the statutes of limitation referred to above and dismissed the suit.

This case is controlled by Neal v. Teat, 240 Miss. 35, 126 So.2d 124 (1961). As pointed out in Neal, one who acquires title to the severed mineral fee estate takes constructive possession of the mineral estate conveyed “although the grantor retains title and actual possession of the surface.” Constructive possession, although theoretical, follows in the wake of title.

Here, as in Neal, assuming that the deed in question (not shown to be void) may have been voidable, it was effective to vest title in the appellees (grantees) until the instrument was vacated or set aside by some court. Pursuant to the deed, the ap-pellees held constructive possession of the severed mineral estate, and the appellant had a right of action to seek to have the deed set aside. Again, as stated in Neal-.

So long as the deed to Teat was not set aside by the court, appellants were without title or possession, actual or constructive, to the severed mineral estate. Resort to an action “to recover land” was necessary to gain back both title and possession.

Bound by the rule of Neal, having taken no action for more than ten years, the appellant is now barred by Code sections 15-1-7 and 15-1-9. A different result would be the case if the deed in question (that of appellees) were absolutely void. Since appellees had both title and constructive possession of the subject minerals for the entire ten year statutory period, it was not necessary, in order for them to invoke the statutes of limitation, to actually and literally invade or make some adverse physical entry upon the land or capture the minerals or hold actual possession of them.

Affirmed.

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


author: SMITH, Justice. WALKER, Justice

text:
    Rickey L. WALLS v. STATE of Mississippi.

    No. 48835.
    Supreme Court of Mississippi.
    Jan. 27, 1976.

      John D. Sibley, Okolona, James S. Gore, Houston, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, INZER and SMITH, JJ.
   SMITH, Justice.

This case came to this Court from the Circuit Court of Pontotoc County, Mississippi. The appellant Rickey L. Walls has appealed from a judgment of conviction and sentence on a charge of a sale of a controlled substance, to-wit, barbiturates and methamphetamine, controlled drugs under the Uniform Controlled Substances Act of 1971.

The appellant was tried on March 12, 1974, and during the course of the trial he admitted selling pills to Mississippi Bureau of Narcotics Agent Danny Lowery. Dr. Arthur Hume, Director of the State Crime Laboratory, testified that the pills sold contained a derivative of barbituric acid phenobarbital and an amphetamine. The appellant alleged that he was entrapped into selling the controlled substance by actions of Agent Lowery and one Jerry Whitehead.

According to the testimony of Rickey L. Walls, he first met Jerry Whitehead on August 16, 1972, at a restaurant in Ponto-toc. There was a later meeting between the two on either the 18th or 19th of August, 1972, at the same restaurant; and at this meeting Whitehead asked the appellant about the purchase of some marijuana. On August 20, 1972, Whitehead introduced Agent Danny Lowery to the appellant, and the agent inquired about purchasing some marijuana.

According to the appellant, Agent Law-ery and Jerry Whitehead came to his home on August 27, 1972, and asked about purchasing some pills. The appellant informed the two that he did not have any pills, but would check to see if any of his acquaintances in Houlka might have some. He also informed them that they would have to give him the money to make a purchase if he found any pills. Rickey L. Walls located a man in Houlka who had some pills; thereupon, he returned and obtained fifteen dollars ($15.00) from Agent Lowery to make the purchase. He told the agent that it would be after dark before he would be able to pick up the pills. At this point, the agent and Jerry Whitehead asked the appellant if he would bring the pills to Pontotoc after obtaining them. He agreed to do so. The appellant, according to his testimony, gave the man in Houlka fifteen dollars ($15.00) as partial payment for eighty (80) pills, which he later gave to the agent. Agent Lowery gave Rickey L. Walls another thirty-eight dollars ($38.-00) upon delivery of the pills, and since the appellant did not have any change, the agent instructed him to keep the fifty cents (50^) change due. At the time of this transaction, Rickey L. Walls was seventeen (17) years of age.

The state offered testimony to contradict the appellant and his charge of entrapment by the authorities. Agent Lowery testified that he and Whitehead were to meet the appellant in Pontotoc on August 27, 1972, to make a purchase of “a hundred hits of speed.” Because the appellant did not show up for the meeting, they went to his home. After talking with the appellant, the agent and Jerry Whitehead left. They later returned to his home and were informed by the appellant “that he couldn’t get the stuff” because “there were two nares watching people in Houlka.” He informed them that he could get the pills later that night, but he needed some purchase money. According to Agent Lowery, Ray Walls, the appellant’s father, agreed to give him the money to make the purchase. Lowery specifically denied giving the appellant fifteen dollars ($15.00) or any money as an advancement for a purchase.

As grounds for appeal to this Court, the appellant argues:

(1) The court erred in failing to sustain appellant’s motion to transfer the cause to the Youth Court of the First Judicial District of Chickasaw County.

(2) The court erred in overruling appellant’s motion to dismiss the indictment.

(3) The court erred in failing to grant a mistrial after objections to irrelevant, inflammatory and prejudicial testimony by two of the state’s witnesses.

(4) The verdict is against the overwhelming weight of the evidence in that the actions of the state constituted illegal entrapment of appellant.

(5) The court erred in giving oral instructions to the jury.

(6) The court erred in sentencing appellant to three (3) years in the Mississippi State Penitentiary.

It is this Court’s opinion that no error was committed when the Youth Court of Pontotoc County refused to certify the appellant to the Youth Court of the First Judicial District of Chickasaw County, his resident county. We reach this conclusion after studying the language of Mississippi Code Annotated § 43-21-7 (1972), as follows: “Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in all proceedings concerning any delinquent, neglected or battered child residing or being in the county.”

The act of selling a controlled substance by the appellant took place in Pon-totoc County, Mississippi. Looking to the language of Mississippi Code Annotated § 43-21-7 (1972), we determine that this meets the requirement set forth by the legislature of being in the county; thus, the case was properly before the Youth Court of Pontotoc County. We construe the language of the statute “being in” to mean in criminal matters as being in the county where the scene of the crime is located.

Thus, in keeping with this ruling, there are two places where a juvenile offender can be adjudged a delinquent child under the statutes of this state — one being where the crime was committed, the other being the place where the youth is residing.

If the crime is committed in a county other than the place where a youth is residing, the youth court judge in that county can, in his discretion, transfer the cause to the youth court where the child is residing; or he can retain jurisdiction of the case if he deems it in the best interest of the child; or he may certify the case for prosecution to the circuit court.

We wish to emphasize that if a child is to be certified over to circuit court, certification must be to the circuit court which would have jurisdiction in the county where the crime was committed. This is dictated by Art. 3, § 26, Miss.Const.1890. Certification to circuit court can be either by the youth court of the county where he is residing or the youth court where the crime was committed.

If a child is to be transferred to another youth court, the transfer hearing must be prior to any adjudicatory hearing. Once an adjudicatory hearing has been held, any further adjudicatory action on the part of either a youth court or a circuit court will constitute double jeopardy. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

There is nothing in the record of this case that reflects a motion was made on behalf of the appellant to have the cause transferred to his home county.

There is no merit in the appellant’s assignment that the trial court erred in overruling the appellant’s motion to dismiss the indictment. He sought to have this Court rule that the lower court was in error when it refused to sustain his motion to dismiss the indictment based on his denial of a speedy trial. We have said in Baldwin v. State, 297 So.2d 157 (Miss.1974):

. . .In Brown v. State, 252 So.2d 885, 887 (Miss. 1971) it was held:

It is a well-settled rule in this state that a motion is at issue without further pleading and that the allegations thereof do not amount to any proof of the facts stated therein. It is the duty of the movant to support his motion by proof and in the absence of proof in support of the motion, the presumption in favor of the correctness of the action of the trial court will prevail. Harvey v. State, 218 So.2d 9 (Miss.1969).

This Court said in McMillan v. Tate, 260 So.2d 832, 833 (Miss.1972):

In the absence of any proof in support of the motion we cannot put the trial court in error for overruling the same.
See also Loden v. Joslin, 229 So.2d 825 (Miss.1969); citing Harvey v. State, 218 So.2d 9 (Miss.1969). (297 So.2d at 159).

The record fails to indicate that appellant requested a hearing on his motion, or that any proof was ever adduced in support thereof.

It appears from the record that no objection is raised as to the form of the indictment in the trial court, but the defendant did move the court for a directed verdict because of testimony with reference to another crime for which he was also indicted. The trial judge overruled this motion because it was not timely made. The record shows, however, it was made a short time after the testimony was offered.

The defendant filed a motion in which he alleged that there were two indictments returned by the Grand Jury of Pontotoc County — one indictment in Cause No. 8401 charged the defendant with having sold marijuana, and a second indictment in Cause No. 8402 charged the defendant with having sold barbiturates and methamphetamine. The motion shows that Cause No. 8401 (marijuana charge) was continued and that the state proceeded to trial on the indictment for the alleged sale of barbiturates and methamphetamine (Cause No. 8402).

During the trial on the last charge, Danny Lowery, a narcotics agent, testified that he was introduced to the defendant on August 20, 1972, and on being asked what happened on that date, he testified that they talked about “speed” in bottles under original seal, but that at that time he purchased ten (10) lids of marijuana from the defendant Rickey Walls. He then testified that on another date, August 27, 1972, he went to the trailer where the defendant lived with his father in Chickasaw County, and on being asked what happened in the trailer, he said, “Well, while we were in the trailer, then he brought out a brass pipe and showed it to us and stated that this was a ‘hash pipe.’” Objection was made to the evidence on the ground that it was an attempt to show that the defendant had “paraphernalia” for which he was not indicted, and was overruled. The trial judge said: “I will instruct the counsel to not go any further into that matter.” This evidence was incompetent and prejudicial and should not have been admitted.

The officer testified that he purchased seventy-five (75) tablets from the defendant and paid him thirty-eight dollars ($38.-00) for the pills [later identified as barbi-turic acid phenobarbital and amphetamine.]

The sheriff of Pontotoc County was introduced and testified, over the objections of the defendant, that he called the Narcotics Bureau in Jackson and advised them: “I told them that I had a good bit of narcotics floating around.” This was error and should not have been allowed.

When the state rested its case, the defendant moved the trial judge for a mistrial because the state had been permitted to show the commission of another crime at another time, namely, the sale of marijuana. The court overruled this motion.

The defendant then offered as a defense to the charge the contention that he was entrapped into doing a favor for the officer and that otherwise he would not have secured the methamphetamines for the officer. He testified that before this time he had never sold marijuana or drugs to anyone. He was eighteen (18) years of age at the time of the trial. He later married on November 20, 1973, after the date of the alleged crime and now has one daughter.

In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) the Supreme Court of the United States stated:

Objections to the defense of entrapment are also urged upon practical grounds. But considerations of mere convenience must yield to the essential demands of justice. The argtimenf is pressed that if the defense is available it will lead to the introduction of issues of a collateral character relating to the activities of the officials of the Government and to the conduct and purposes of the defendant previous to the alleged offense. For the defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. Grimm v. United States, supra. [156 U. S. 604, 15 S.Ct. 470, 39 L.Ed. 550 (1895)]. The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense. (Emphasis added). (287 U.S. at 451, 53 S.Ct. at 216, 77 L.Ed. at 422.)

In Jones v. State, 285 So.2d 152 (Miss.1973), we adopted the Sorrells standard for scope of proof.

In the present case, however, evidence tending to show a mental and moral predisposition on the part of the defendant to engage in handling and selling controlled substances (drugs) was offered by the state in presenting its case in chief and admitted by the trial court over objection. This was error as the defense of entrapment at that time had not been interposed. The defendant’s motion for a mistrial made at the conclusion of the state’s case in chief should have been sustained. As the case must be reversed and remanded on another ground, it is unnecessary to decide here whether the error was rendered harmless when the defendant took the stand in his own behalf and admitted having committed the act charged but claimed that he had been entrapped into doing so by the officers. It should be noted that the mere prefiling by a defendant of instructions dealing with the defense of entrapment does not irrevocably commit him to interpose that defense at his trial. It does not warrant the introduction by the prosecution in presenting its case in chief, of evidence of other acts by the defendant tending to negative the defense by showing a predisposition on his part mentally and morally to engage in the unlawful sale of controlled substances. Such proof only becomes competent after the defense of entrapment actually has been interposed and may include, if not too remote, proof of conduct or acts on the part of the defendant inconsistent with his contention that the act charged was of a nature which he would not have committed at all but for overpersuasion and inducement by the officers. Proof of such acts or conduct on the part of a defendant, where entrapment is the defense, is not rendered incompetent by the fact alone that such acts or conduct may also be the subject of a pending indictment or indictments. Of course, evidence of the fact that such an indictment has been returned would remain incompetent in such a case.

In any event the case must be reversed and remanded for a new trial because of the following occurrence.

The jury returned a verdict in the following language: “We, the jury, find the defendant guilty as charged.” The jury was then polled. When the question was put as to whether the verdict was that of each juror, one juror, Learlie Webber, said “No.” Upon being asked by the court if she voted to convict, she said: “Well, no sir, I didn’t.” The court then ordered the jury to retire again. The defendant moved for a mistrial. Thereupon, the trial court ordered the jury returned to the courtroom and undertook to explain to them that it was not meant that all jurors must vote to convict in order to return a “unanimous vote.” This explanation, although capable of being understood by a lawyer, perhaps, under the circumstances described, was couched in terms easily capable of being misunderstood by members of a lay jury. After receiving the explanation, the jury again retired and presently returned into open court the verdict: “We, the jury, find the defendant guilty as charged.” This time, upon being polled, all jurors, including the juror Learlie Webber, said, “Yes.”

We have concluded that under the above stated circumstances the conviction should not be allowed to stand. Consequently the case is reversed and is remanded to the trial court for a new trial, to be conducted in a manner not inconsistent with this opinion.

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

Reversed and remanded.

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

WALKER, ROBERTSON and SUGG, JJ., specially concur.

WALKER, Justice

(specially concurring) :

I concur in the result reached by the majority that this case must be reversed and remanded because of the trial court’s ambiguous language to the jurors as detailed in the opinion.

I also agree that evidence tending to negative a defense of entrapment by showing a predisposition on the part of a defendant, both mentally and morally, to commit an unlawful act should ordinarily be offered after the defense of entrapment has been interposed. However, when a defendant, intentionally or otherwise, by filing instructions dealing with the law of entrapment, lulls the State into prematurely putting on such evidence, and thereafter does, in fact, assert the defense of entrapment, admitting the commission of the unlawful act, that he thereby waives any objection to what would otherwise ha.ve been incompetent evidence.

This case demonstrates the desirability of requiring that defendants specifically plead, at arraignment, such special defenses as entrapment and insanity so that all parties and the court may intelligently prepare for trial. Such a requirement would be in the best interest of justice and prevent needless error from being committed.

ROBERTSON and SUGG, JJ., join in this opinion.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Allen VEAL.
    No. 56918.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.
    E. Joseph Bleich, Wright, Dawkins, James, Hogg & Bleich, Ruston, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Allen Veal, was indicted for second degree murder in violation of R.S. 14:30.1. He entered a plea of not guilty and not guilty by reason of insanity. After a jury trial on June 27, 1975, he was found guilty of manslaughter, a responsive verdict, and subsequently sentenced to twelve years imprisonment. On appeal he relies on three assignments of error, all related to the trial judge’s determination that the defendant was capable of understanding the nature of the proceedings against him and capable of assisting his counsel in his defense.

Assignment of Error No. 1

After the indictment, but before arraignment, the defendant filed a motion for the appointment of a lunacy commission to inquire into his present mental condition and report as to his mental capacity to proceed and assist in his defense. Drs. H. L. Roane and J. L. Smith, duly qualified physicians, were appointed. A hearing was held in open court on May 28, 1975, at which time the report of Drs. Roane and Smith was introduced into evidence. To the trial judge’s ruling that the entire report was admissible, the defendant assigns error.

The basis for the defendant’s complaint is that the report contained the conclusion of the examining doctors that he had the mental capacity to proceed and assist in his defense. Defendant argues that only factual and opinion evidence as to his present capacity to proceed should be admitted; it is error, he contends, to admit the physicians’ conclusion that he has the capacity to proceed and assist in his defense. We cannot agree.

C.Cr.P. 647 provides:

“The issue of the defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant’s mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney.”

It is only logical that the report of the sanity commission would contain the experts’ conclusions as to the defendant’s mental capacity to proceed, since the purpose of the sanity commission is “to examine and report upon the mental condition of the defendant.” C.Cr.P. 644. We find no error in the trial judge’s ruling that the entire report was admissible. See State v. Forbes, 310 So.2d 569 (La.1975).

Assignment of Error No. 1 is without merit.

Assignment of Error No. 2

At the sanity hearing, Dr. J. L. Smith, one of the physicians on the sanity commission, testified that the defendant understood the nature of the proceedings and could assist counsel in his defense. The defendant contends that the trial judge erred in allowing these conclusions of the expert into evidence. We disagree.

R.S. 15:464 states:

“On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”
R.S. 15 :465 provides :
“Every expert witness must state the facts upon which his opinion is based.”

The purpose of expert testimony would be thwarted if the expert were not allowed to present his conclusions. The very issue in the sanity proceeding is the defendant’s mental capacity to proceed and assist in his defense. The professionals involved in evaluating the defendant do not have any interest in the case. Therefore, it is only proper and helpful to the trial judge to have before him the conclusions of the experts as to the defendant’s present mental capacity to proceed when called upon by the defendant to determine, legally, whether he has the capacity to understand the nature and object of the proceedings and assist in his defense. Dr. Smith detailed the facts upon which he based his conclusion. Therefore, we find no error in the trial judge’s ruling. See State v. Hampton, 253 La. 399, 218 So.2d 311 (1969).

Assignment of Error No. 2 is without merit.

Assignment of Error No. 3

After the sanity hearing, the trial judge ruled that the defendant had the present mental capacity to proceed with trial and assist counsel in his defense. To this ruling, the defendant assigns error.

C.Cr.P. 641 provides:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

Under our jurisprudence, the determination of competency to stand trial is made by deciding whether the accused can understand the proceedings against him and assist in conducting his defense in a rational manner and to a rational degree, including an ability to recall past events and to present to counsel the facts which ought to be evaluated for presentation to the jury. State v. Flores, 315 So.2d 772 (La.1975); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968).

The burden is on the accused to establish by a clear preponderance of the evidence that he is so mentally deficient that he lacks capacity to understand the proceedings against him and to assist in conducting his defense in a rational manner. State v. Flores, supra; State v. Marks, 252 La. 277, 211 So.2d 261 (1968).

In the instant case the defendant claims he could not assist in his defense because of amnesia, or lack of memory, about the actual shooting, which resulted in his inability to relate certain relevant events to his attorney. This same contention was answered adversely to defendant by this court in State v. Gray, 291 So.2d 390, 392 (La.1974), citing State v. Swails, 223 La. 751, 66 So.2d 796 (1953) :

‘This contention would be very forceful and persuasive were this a prosecution in which the accused was pleading not guilty for, in such case, his inability to inform his counsel of any of the facts regarding his own movements in relation to the charges against him would materially affect him in his defense. But, here, appellant is pleading insanity at the time of the commission of the crimes—a special defense under our law. LSA-R. S. 14:14 and 15:261. His alleged amnesia as to the events occurring at, before and after the crimes were committed is not a factor which hampers his defense. On the contrary, the very fact that appellant does not remember anything concerning his alleged criminal acts may be of material aid to his counsel in their presentation of a case of insanity and his testimony, if he does see fit to take the stand, may have considerable weight with the jury.’ ”

The sanity commission reported that the defendant was well oriented to person and place, but not to time. At the medical examination, he answered all questions coherently. At the sanity hearing, he recalled the events leading up to the shooting, as well as those that transpired afterward. He states he simply cannot remember actually shooting anyone.

Defendant testified about an argument with the deceased, the substance of the argument, the gun in his (defendant’s) hand, that he (defendant) thought the deceased was “coming to shoot me and I remember my gun up like this,” arid that he (defendant) got in his car, drove to the police station and turned himself in. Apparently the only detail blocked out by amnesia was' the moment of the shooting. It was stipulated at the trial that defendant shot the deceased.

The testimony of the experts and that of the defendant himself amply support the finding of the trial court that defendant was presently sane and could assist with his defense.

Assignment' of Error No. 3 is without merit.

Accordingly, the conviction and sentence are affirmed.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. James C. BERNARD.
    No. 56878.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Fredric Hayes, Inc., Fredric G. Hayes, P.C., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Thomas Robert Shelton, Asst. Dist. Atty., for plaintiff-ap-pellee.
   SUMMERS, Justice.

A bill of information dated September 12, 1973 charged that James C. Bernard committed armed robbery on August 22, 1973. He was tried before a jury, found guilty as charged and sentenced to serve a term of 22 years at hard labor.

On the day of the trial, before the charge and defendant’s plea were read to the jury, the State moved to file a notice of intent to introduce prior convictions. The notice set forth that the State would, if appropriate, offer to introduce into evidence, on cross-examination of the defendant, or as rebuttal, proof of twelve prior convictions, if those convictions were denied by the defendant on cross-examination or if necessary to contradict by way of rebuttal. Two of these convictions, simple burglary and contributing to the delinquency of a minor, were felonies in 1971 at the time of the guilty pleas, while the other ten, simple criminal damage to property, were either felonies or misdemeanors, depending upon the amount of the damage involved. The record does not disclose all the details. We are therefore left to infer whether the simple damage to property charges are misdemeanors or felonies.

Defense counsel objected to the filing of the notice, asserting that defendant was not represented by counsel at the time of those convictions, and did not formally waive the right to an attorney. He then moved for the introduction in evidence of the original court records showing the nature of the charges and the fact that the defendant was unrepresented by counsel. The objection was overruled. Thereafter the notice was filed in which the prior convictions, all guilty pleas, were listed by docket numbers, date of plea, type of offense, and the sentence imposed.

During the trial defendant took the stand in his own behalf, denied the robbery and gave an alibi as a defense. On cross-examination by the State, he was asked if he had ever been convicted of anything. He replied, “Yes sir, a bunch of crimes. I didn’t know what they was. I just pleaded guilty and they gave me three (3) months.” He was then asked specifically whether he pled guilty to the. twelve convictions referred to in the notice previously filed over defense objection. He admitted each guilty plea. The record of the convictions were not offered or introduced into evidence.

Decisions of the United States Supreme Court mandate the reversal of this conviction and sentence. Under principles announced by that Court it was error for the trial judge to deny defense counsel an opportunity to prove that at the prior convictions defendant was not represented by counsel and did not waive the benefit of counsel.

In Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), an almost identical case, the issue presented was framed in this manner: “Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case.”

Louisiana’s rule of evidence permits the use of prior convictions for the purpose of impeaching the credibility of the witness. But before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same. La.R.S. 15:495.

It is evident, therefore, that the State’s attorney relied upon this statutory rule in his effort to get the evidence of prior convictions before the jury.

However, it is a clear and simple constitutional rule announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that in the absence of a waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer. The constitutional rule is wholly retroactive. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963).

A sequel to the decision in Gideon v. Wainwright was the subject of the Court’s adjudication in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). There the Court said:

“To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . . right.” 389 U.S. at 115, 88 S.Ct. at 262.

In Loper v. Beto, supra, after considering these propositions, the Court decided:

“Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law. We can put the matter no better than in the words of the Court of Appeals for the First Circuit:
‘We conclude that the Burgett rule against use of uncounseled convictions “to prove guilt” was intended to prohibit their use “to impeach credibility,” for the obvious purpose and likely effect of impeaching the defendant’s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.’ Gilday v. Scafati, 428 F.2d 1027, 1029.” 405 U.S. at 483, 92 S.Ct. at 1019.

Accordingly, the Supreme Court held that use for impeachment purposes of prior convictions which are void for failure to afford defendant his right to counsel deprives a criminal defendant of due process of law where the use of such prior convictions might well have influenced the outcome of the case. This same result would follow where misdemeanors were involved under Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and our decisions in State v. Guillotte, 297 So. 2d 423 (La.1974), and City of Monroe v. Fincher, 305 So.2d 108 (La.1974).

In the case at bar there is no doubt that defendant was entitled to show that the prior convictions were uncounseled, either because he was indigent or because the courts denied his right to counsel of his choice. Further, he was entitled to show that he did not waive his right to counsel. It was error for the trial judge to deny him that right. The problem under the facts of the case, however, is whether filing the notice of intention to use prior convictions in the record, listing the twelve offenses, together with questioning defendant in the presence of the jury and compelling him to admit to these convictions can properly bring this case within the harmless error rule. La.Code Crim.Proc. Art. 921. It is the Court’s judgment that this was not harmless error.

Although the question is only an eviden-tiary one, the sole purpose for which the prior convictions were used was to destroy Bernard’s credibility. Undoubtedly the admission of twelve prior convictions impaired Bernard’s credibility in the minds of the jury as a witness in his own behalf. Without credible testimony on his part, his defense was without substance. In our opinion Bernard’s admission prior convictions influenced, and contributed substantially to, the jury’s finding of guilt. of twelve

The constitutional principles announced in Loper v. Beto, supra, are such that when they apply to the facts of a case, the State may not avail itself of the statute which permits the introduction of prior convictions in order to attack the witnesses’ credibility. La.R.S. 15:495. For a statute of the State cannot prevail against constitutional rights declared by the United States Supreme Court.

For the reasons assigned, the conviction is reversed and the sentence is set aside. Defendant is granted a new trial.

      . After oral argument in this Court and submission of the ease, defense counsel filed an ex parte motion to permit the filing of a certified copy of a minute entry relating to these convictions, which the author of this opinion improvidently granted. This minute entry was not evidence upon which the judgment was based, La.Const. Art. I, § 19 (1974) ; to the contrary, it was evidence which was excluded. Nor was it part of the “record” which we are authorized to designate for purposes of review. La.Code Crim.Proc. art. 845. The minute entry was moreover evidence which the State had no opportunity to rebut.

      . The author of this decision, however, adheres to his dissent in City of Monroe v. Finclier, 305 So.2d 108 (1974).


author: DIXON, J.,

text:
    Beverly DARDARE v. Beverly Ann BARNES.
    No. 57504.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   DIXON, J.,

is of the opinion that this court should act and issue the writ of mandamus to the justice of the peace as an act of judicial economy.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Vorice “Duck” CHARLES.
    No. 56829.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      Thomas K. Regan, Crowley, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert T. Cline, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant Charles was convicted of armed robbery, La.R'.S. 14:64, and sentenced to serve thirty years at hard labor.

In this appeal defendant urges four assignments of error. However, the alleged errors cannot be of avail to him, because at the time of their occurrence defendant failed to call them to the court’s attention as required by Code of Criminal Procedure Article 841, as amended by Acts 1974, No. 297 § 1:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to' rulings or -orders is unnecessary. 1 It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known’ to the court the action [s] which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
The requirement of an objection shall not apply to the court’s ruling on any written motion.

ASSIGNMENTS OF ERRORS NOS. 1 and 4

In assignment number one, defendant complains that the trial judge improperly allowed the jury foreman to correct the form of the verdict in open court rather than remanding the jury to make the correction as provided for by Code of Criminal Procedure Article 813. In assignment number four defendant contends the trial court erred in failing to instruct the jury that it should presume a certain witness not called by the state would have testified unfavorably to the prosecution’s case.

However, in each instance the record reflects that defendant failed to contemporaneously object to the action of the court or to make known to the. court the action which he desired the court to take, thereby waiving his right to attack the judgment or conviction on grounds of these errors or irregularities. La.Code Cr.Proc. Art. 841; State v. Marcell, 320 So.2d 195 (La.Sup.Ct.1975).

ASSIGNMENTS OF ERRORS NOS. 2 and 3

In these assignments defendant contends the trial court erroneously sustained the state’s objections to cross-examination questions asked by defendant’s counsel. On these occasions, although defendant did not expressly object, the court was necessarily aware of the action which defendant desired the court to take, viz., to overrule the state’s objection and allow him to put the questions to the state’s witness. However, defendant’s counsel neither complained of the court’s ruling nor apprised the court of the grounds upon which he was entitled to ask the questions. Instead, he apparently acquiesced in the court’s ruling by proceeding with his cross-examination along a different line of questioning.

Essentially, Article 841 requires a party to apprise the court of an occurrence that the party contends is an irregularity or error as well as the basis for his contention. Since defendant did not comply with the statute he may not complain after verdict of the occurrences alluded to in these assignments of error. This rule is necessary to promote judicial efficiency by providing an adequate opportunity for the recognition and correction of errors during trial. State v. Marcell, supra.

Having found no reviewable error in the defendant’s assignments, and no errors discoverable by a mere inspection of the pleadings and proceedings, we affirm the defendant’s conviction and sentence.


author: SUMMERS, J., CALOGERO, J.,

text:
    RICHARD AND GAUDET v. The HOUSING AUTHORITY OF the CITY OF LAFAYETTE et al.
    No. 57399.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   SUMMERS, J.,

is of the opinion the writ should be granted.

CALOGERO, J.,

is of the opinion the writ should be granted. An engineering firm is clearly included within the words “any person” . . . “doing work” of R. S. 38:2242, granting lien rights against a governing authority with respect to construction, alteration or repair' of any public works.


text:
    STAPLE COTTON COOPERATIVE ASSOCIATION v. J. A. PICKETT, Sr.
    No. 56604.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      Frank Voelker, Jr., Voelker, Ragland & Brackin, Lake Providence, for plaintiff-applicant.
    Felix A. Dejean, III, Opelousas, for defendant-respondent.
   DIXON, Justice.

Plaintiff, a cotton marketing association, brought this suit for specific performance and other relief against the defendant, a member cotton grower. Staple contends that the defendant is obligated to sell it all cotton produced on certain farms during the 1973 season. Pickett, on the other hand, insists he is merely obligated to pay liquidated damages of 5‡ per pound. The resolution of the conflict depends upon the interpretation of several contractual agreements entered into by the parties.

The trial court rendered judgment for the plaintiff, ordering the defendant to convey the cotton and deliver the warehouse receipts to Staple according to the terms of the Sale and Purchase Agreement. On appeal the Third Circuit reversed. 313 So.2d 612 (La.App.1975).

The evidence shows that the plaintiff cotton marketing co-op had been established in the 1920’s, and that plaintiff and defendant had transacted business prior to 1973. In 1973 the defendant produced cotton on twelve farms, each identified by an Agricultural Stabilization and Conservation Service serial number, which number is the key to the plaintiff’s accounting system. Each farm carries a cotton allotment assigned to it, and different farmers might produce cotton on different combinations of the small farms from year to year.

In March of 1973 Staple forwarded to Pickett fourteen documents. Two were entitled “Sale and Purchase Agreement 1973-1974,” one covering nine of the farms, the other three. The other twelve documents were entitled “Application for Membership and Marketing Agreement,” one for each farm. Although the latter agreement relates that a member of the co-op remains as such until he withdraws, the co-op nonetheless sends one “application and agreement” for each numbered farm to the member farmer who is producing cotton that year. All fourteen documents were signed by the defendant and returned to the plaintiff.

The “Sale and Purchase Agreements” are referred to by the parties as “forward sale” contracts. They provided that Pickett agreed to sell, and Staple Cotton agreed to buy, all the cotton to be produced by Pickett on the described farms at a basic price of 30‡ per pound.

The “forward sale” of cotton, according to testimony, had been in widespread use for three or four years at the time the contract was entered into. (It was not one of the marketing options provided for in the “Application for Membership and Marketing Agreement”). In the fall of 1973 the market price of cotton increased to over 60‡ per pound, and in October, 1973 the defendant consulted an attorney with the view of withdrawing from the contract to sell his cotton crop to the plaintiff. The association subsequently filed this action.

Pickett’s basic contention is that a provision in the “Application for Membership and Marketing Agreement” provides for liquidated damages for breach by the grower in the amount of 5?i per pound. Defendant contends this result obtains because the two agreements, i. e., the “forward sale” contract and the marketing agreement, executed at the same time, should be interpreted together so that, even though the “forward sale” contract has no provision for liquidated damages, the membership and marketing contract supplies one.

Plaintiff, on the other hand, contends that the agreements are separate and distinct contracts, one being totally independent of the other. Plaintiff avers that the defendant breached the “forward sale” contract, thereby entitling the co-op to a decree of specific performance and any incidental damages suffered because of the breach.

We find it unnecessary, however, to determine whether the liquidated damages provision of the membership and marketing agreement is applicable to a violation of the “forward sale” contract. Although the defendant pitches his case on the provisions of section 15(a) of the “Application for Membership and Marketing Agreement,” the entire paragraph makes it clear that plaintiff is entitled to specific performance as prayed for:

“15. (a) Inasmuch as the remedy at law would be inadequate; and inasmuch as it is now and ever will be impracticable and extremely difficult to determine the actual damage resulting to the Association, should the Grower fail so to sell and deliver all of his cotton, the Grower hereby agrees to pay to the Association for all cotton delivered, sold, consigned or marketed by or for him other than in accordance with the terms hereof, the sum of five cents per pound as liquidated damages for the breach of this contract; all parties agreeing that this contract is one of a series dependent for its true value upon the adherence of each and all the growers to each and all of the said contracts.
“(b) The Grower agrees that in the event of a breach or threatened breach by him of any provisions regarding delivery of cotton, the Association shall be entitled to an injunction to prevent breach or further breach hereof and to a decree for specific performance hereof; and the parties agree that this is a contract for the purchase and sale of personal property under special circumstances and conditions, and that the buyer cannot go to the open market and buy cotton to replace any which the Grower may fail to deliver.
“(c) If the Association brings any action whatsoever by reason of a breach or threatened breach hereof, the Grower agrees to pay to the Association all costs of Court, costs for bond and otherwise, expenses of travel and all expenses arising out of or caused by the litigation and any reasonable attorney’s fee expended or incurred by it in such proceedings and all such costs and expenses shall be included in the judgment and shall be entitled to the benefit of any lien securing the payment hereunder.”

Section 15(a) provides that 5‡ per pound as liquidated damages is due from the grower “to the Association for all cotton delivered, sold, consigned or marketed by or for him other than in accordance with the terms hereof . . .” Pickett did not sell the cotton produced in 1973; the warehouse receipts were under his control at the time of the trial. Since the defendant has not marketed or otherwise disposed of his 1973 crop, section 15(a) has no application.

On the other hand, section 15(b) clearly provides that the association is entitled to “a decree for specific performance hereof.."

Also, even in the absence of a contractual provision for specific performance, i. e., considering the “forward sale” contract alone, Staple is entitled to a decree of specific performance. C.C. 1799, 2462; Sexton v. Waggoner, 66 So.2d 634, (La.App.1953). See also Bolin Farms v. American Cotton Shippers Assn., 370 F.Supp. 1353 (W.D.La.1974), wherein specific performance of a forward sale of cotton was granted.

The confusion in this case apparently arises out of the fact that Staple Cotton Cooperative Association is referred to both as agent and buyer in the Sale and Purchase Agreement. However, this is readily explainable, since the contract is a printed one, and the co-op normally acts as agent of the grower. However, it is clear to us, and the trial court so concluded, that the agency provisions of paragraph 8 of the forward sale contract are mere surplusage, when the entire instrument is considered, since the first paragraph unequivocally designates Staple Cotton as the buyer.

Therefore, we find that the agreements were not ambiguous, and that plaintiff is entitled to a decree of specific performance.

Accordingly, the judgment of the Court of Appeal is reversed and the judgment of the district is reinstated, at defendant’s cost.


text:
    STATE of Louisiana ex rel. Joseph HUDSON v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57496.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   DIXON, J.,

dissents from the refusal to grant and order hearing.

CALOGERO, J., dissents.