author: BOWEN, Judge.

text:
    Herbert Kenneth ATWELL v. STATE.
    4 Div. 526.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Nov. 15, 1977.

      Bryant F. Williams, Jr., Kenneth W. Quattlebaum, Ozark, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was convicted for the second degree murder of his mother and sentenced to life imprisonment. His defense was insanity.

I

Initially it is alleged that error was committed by the trial judge when he failed to determine that the appellant was competent to stand trial. The appellant concedes that he was given a constitutionally proper hearing on the issue of his sanity at the time of the offense and that he was granted a properly conducted trial by jury to determine his “present sanity” on August 26, 1975. However the appellant contends that the competency trial on August 26th resolved the question of his competency to stand trial at that time only and not at the time of his trial on the merits conducted almost seven months later. A review of the procedural background culminating in the appellant’s conviction is therefore necessary.

On October 6, 1974, the appellant was arrested for the murder of his mother. Counsel was retained and petition was made to the Inferior Court of Geneva County for an investigation into the sanity of the appellant. Pursuant to Title 15, § 428, Code of Alabama 1940, Recompiled 1958, the Inferior Court held such a hearing, determined that the appellant was insane and ordered him committed to the custody of Searcy Hospital, an Alabama state hospital for the mentally insane.

In November of 1974, the committing judge was advised by a staff psychiatrist at Searcy that the appellant

“is sane, is mentally competent to stand trial, knows the difference between right and wrong, and is able to cooperate and communicate with counsel in his defense.”

The appellant was then returned to the Geneva County jail to await further criminal proceedings.

In January of 1975, the appellant’s retained attorneys were permitted to withdraw. One of the grounds cited by the attorneys requesting the withdrawal was that “there is a breakdown or lack of communication” between said attorneys and the appellant. New counsel was appointed by the circuit court to represent the appellant.

In February of 1975, the appellant was indicted and arraigned entering pleas of not guilty and not guilty by reason of insanity.

On June 9, 1975, the appellant was transferred to the Dale County jail because of “serious attempts at escape from the Geneva County jail” and because the jail was “unsafe insofar as the security of this defendant is concerned”.

Upon motion by appellant’s counsel, the Circuit Court of Geneva County held an insanity inquisition to inquire into the present mental condition of the appellant. On August 26,1975, testimony was presented and a jury found the appellant to be sane despite the adverse opinion of a psychologist. Defense counsel then moved that the trial in chief be continued because the jury venire was in the courtroom and heard the arguments of counsel on the trial of the competency of the appellant and thereby rendered defense counsel unable to select an unbiased jury. The court found that it would not be possible to get enough talesme.n to try the case at that term of court due to the man power limitations of the sheriff’s department to serve the necessary subpoenas for the additional jurors. Therefore the trial judge granted the request of the appellant and continued the trial until the next term of court.

On January 28, 1976, appellant’s appointed counsel filed a motion to withdraw. One of the reasons cited in the motion was that:

“4. This Attorney and the other Court-Appointed Counsel in this case have been unable to establish any relationship with this Defendant whereby a proper defense can be planned, because even though he has been adjudged sane by the Court, the Defendant continues to advance theories of defense which have been characterized by a Psychiatrist as delusional and symto-matic of paranoid schizophrenic.”

Additional grounds cited in support of the motion to withdraw were that the appellant had filed a complaint with the Grievance Committee of the Alabama State Bar alleging the improper conduct of his attorneys, that the appellant was not indigent and that counsel’s bill was already over $1,075.00. In a separate letter addressed to the circuit court, one of the appellant’s attorneys noted that he was of “the firm opinion that he (the appellant) is not mentally capable of standing trial and due to his attitude we are having great difficulty in preparing any defense for him”. The motion to withdraw was granted.

The appellant employed new counsel and on February 17, 1976, this counsel filed a motion for a change of venue. The motion was granted and the proceedings were transferred to Dale County.

On March 16, 1976, the trial of the appellant began. Two days later the jury found him guilty of murder in the first degree and fixed his punishment at life imprisonment.

The appellant contends that there was never a determination of his “present ability” to stand trial because of the seven month interval between his competency hearing and his trial on the merits. The appellant alleges that during that seven month period there occurred events which would generate reasonable doubt as to whether he was competent to stand trial and participate in the preparation of his defense. The events cited by the appellant which would generate such a reasonable doubt are: (1) Five months after the sanity trial appellant’s court-appointed counsel submitted motions to withdraw from the case. Both motions were identical and among the grounds asserted were two which relate to this issue: (a) that the appellant had “deluged” his attorneys with requests to subpoena “extremely numerous witnesses in his behalf, ranging from Secretary of State, Henry Kissinger, and the Governors of several States to the entire police department of various cities and towns in the area of the trial”; and (b) that counsel was unable “to establish any relationship with the defendant whereby a proper defense can be planned because . the defendant continues to advance theories of defense which have been characterized by a psychiatrist as delusional and symto-matic of paranoid schizophrenia”. (2) One of the two attorneys permitted to withdraw, in a letter to the court in support of the motion, stated that he and another court-appointed counsel “are of the firm opinion that he (appellant) is not mentally capable of standing trial and due to his attitude we are having great difficulty in preparing any defense for him”. (3) At the sanity hearing the only expert to testify was a psychiatrist who concluded that the appellant’s “mental capacities are impaired to advise counsel and to stand trial at the present time because he is undergoing this illness at present”.

The issue we must confront is whether a determination of competency to stand trial made approximately seven months prior to trial is an adequate and sufficient determination that the accused was competent to stand trial under the circumstances of this case. This will require a determination as to whether there were facts before the trial judge which would raise a reasonable and bona fide doubt of the mental competency of the appellant to stand trial.

The competence of an accused to stand trial is determined by whether at the time of the trial he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Seibold v. Daniels, 337 F.Supp. 210 (D.C.Ala.1972).

When the issue of competency to stand trial is properly raised or when facts are present before the trial judge which create a reasonable and bona fide doubt as to the mental competency of the accused to stand trial, there is no question but that the trial judge must take steps to assure a reasonable legal determination of such questions. Where reasonable cause is shown to believe that the accused may be incompetent to stand trial, the judge, under Alabama law, has two alternatives: (1) He may empanel a jury as provided by Title 15, § 426, Code of Alabama 1940, Recompiled 1958, or (2) he may, within his discretion, refuse to grant relief under § 426 and establish some alternate method of determining the competence of the defendant to stand trial. Seibold, supra; Brinks v. Alabama, 465 F.2d 446 (5th Cir. 1972).

Where a Section 426 hearing has been held, the trial court should make a second determination of the defendant’s competency to stand trial under the same circumstances as an original determination would be required, that is, where there exist facts which raise a reasonable and bona fide doubt of the defendant’s competency. Whether a determination should be held does not turn on whether a timely request is made by the defendant. State v. Bradley, 102 Ariz. 482, 433 P.2d 273 (1967); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); United States v. Cook, 418 F.2d 321 (9th Cir. 1969).

Since the appellant was determined to be competent on August 26, 1975, those facts must be found to exist between that date and March 18, 1976, the date on which the appellant was found guilty or there must be additional facts which were not presented at the competency trial.

Earlier in this opinion we have listed the events cited by the appellant which it is argued would raise a reasonable doubt of his competency. Several of these facts had been previously submitted to a jury, weighed by them, and when taken collectively adjudged not to raise a reasonable doubt of the appellant’s competency to stand trial. Those were (1) the fact that the appellant had supplied his attorneys with requests to subpoena a large number of witnesses and (2) the testimony and opinions of the psychiatrist who concluded the appellant was incompetent. Other factors considered by the jury at the competency inquisition were his escape attempts from the county jail, the discharge of the appellant’s first attorneys, (“Because they wanted me to plead crazy and I’m not crazy.” “Well, I told them to get lost.” “I don’t know why they didn’t investigate the case.”), and his attitude toward his then present attorneys (“. . . you’re following the same thing they’re following, you’re following the same path they’re following .”). Therefore, in order to determine the existence of circumstances raising a reasonable doubt of the competency of the appellant we must look to those facts existing after August 26th and to any new or additional fact which was not submitted to the scrutiny of a jury.

The only evidence of incompetency which had not already been reviewed by a jury and subjected to a legal determination was the fact that the appellant’s court-appointed attorneys had withdrawn from the case and expressed an opinion that the appellant was still insane. Generally, defense counsel’s remarks concerning his inability to communicate with his client are not entitled to any conclusive effect with respect to the issue of whether the defendant is competent to stand trial, although they should be considered by the court along with any other evidence of incompetency. Thibodeaux v. State, Tex.Cr.App., 505 S.W.2d 260 (1974); Drope v. Missouri, 420 U.S. 162, 175, 95 S.Ct. 896, 906, 43 L.Ed.2d 103 (1975); People v. Laudermilk, 67 Cal.2d 272, 61 Cal.Rptr. 644, 431 P.2d 228 (1967); Brown v. State, 346 N.E.2d 559 (Ind.1976). See also Goulden v. State, 53 Ala.App. 276, 299 So.2d 321 (1974); Moore v. State, 52 Ala.App. 179, 290 So.2d 246 (1974).

Despite counsel’s continuing opinion that the appellant was insane, there is no evidence to indicate that the mental condition of the appellant at the time of the trial was different from what it was at or about the time of the sanity inquisition. United States v. Ives, 504 F.2d 935 (9th Cir. 1974). The trial judge is entitled to rely upon the jury determination of the competency of the accused to stand trial where a determination or inquisition has been instituted and completed pursuant to Title 15, § 426, absent a change in the mental condition of the accused and absent new or additional facts which would create a reasonable or bona fide doubt of his mental competency. In reviewing the failure of the trial court to order a second competency investigation we have searched the record for any indication which would raise a reasonable doubt.

“There are of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychologists can entertain on the same facts.” Drope, supra, 420 U.S. 179, 95 S.Ct. 908.

See also Greenwood v. United States, 350 U.S. 366, 375, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956) noting “the uncertainty of diagnosis in the field and the tentativeness of professional judgment”.

We have also considered other factors which might illuminate this issue. At the hearing of the motion for new trial the appellant was able to participate in his defense to the degree that his own attorney requested and the court allowed him to ask questions and participate in the presentation of his grounds for a new trial.

Any delay in bringing the appellant to trial after his competency hearing was occasioned by the request of his own attorneys for a continuance. There was no request for a second competency determination.

Even though the question may be. raised on the court’s own motion, the failure of defense counsel to request a second sanity determination is of definite significance where the trial court’s failure to order an inquiry on its own motion is under review. Magenton v. State, 76 S.D. 512, 81 N.W.2d 894 (1957).

From the record before this court it does not clearly and convincingly appear that the appellant was incapable of standing trial, State v. Lucas, 30 N.J. 37, 152 A.2d 50 (1959), or that the trial court acted in an arbitrary manner or abused its discretion in failing to initiate a second inquiry into the question of the competency of the accused to stand trial. United States v. Maret, 433 F.2d 1064 (8th Cir. 1970). The purpose of the statute and the constitutional requirement that some determination be made is for the protection of the accused. United States v. Muncaster, 345 F.Supp. 970 (D.C.Ala.1972). They are not intended to furnish a technical means of nullifying judgments solemnly reached by the judicial process. Van Dusen v. State, 197 Kan. 718, 421 P.2d 197 (1966). Following the first competency hearing the record reveals no manifestations of incapacity which were so obvious that the trial court could not fail to have been unaware of them. Richards v. Commonwealth, Ky.App., 517 S.W.2d 237 (1974).

We recognize that a competency determination, while evidence as to the defendant’s condition, is by no means conclusive in the light of new or additional evidence. The court’s responsibility to prevent the trial of an accused unable to assist in his defense is an ongoing one. State v. Spivey, 65 N.J. 21, 319 A.2d 461 (1974).

Applying the principles discussed above, it is our finding that the failure of the trial court to order a second determination of the competency of the accused to stand trial on its own motion was not error where there was no indication that the conduct of the accused had changed since the original competency hearing and no new or additional facts were presented to the trial judge which would raise a reasonable doubt of the appellant’s competency.

II

The appellant contends that his motion for a new trial was due to be granted after it allegedly was shown that a member of the jury suffered from habitual drunkenness.

Title 30, § 21, Code of Alabama 1940, Recompiled 1958, prohibits the empaneling as a juror of an individual who is an habitual drunkard. On the hearing of the motion for new trial, one juror was “unavailable” because he was intoxicated. Defense counsel stated that this same juror was charged with driving while intoxicated in 1971 but failed to introduce any evidence on this point.

Both the testimony of this juror and his roommate during the trial refute any implication that alcoholic beverages were consumed during the course of the trial.

Furthermore, the appellant did not sustain his burden of proof in showing that the juror was an habitual drunkard.

“Habitual drunkenness is drunkenness repeated at intervals, whether regular or irregular, for such a length of time that it can be said with reasonable assurance that such actions will be continued. It need not be the uniform or unvarying rule, but, to be habitual, must be the ordinary course of conduct — the general rule or custom. Occasional exceptions do not destroy the rule, but unless, when occasion offers, there is a disposition or probable inclination to drink to excess, intemperate habits cannot be predicated. If the rule or habit is to drink to intoxication when occasion offers, and sobriety or abstinence is the exception, the condition of habitual drunkenness exists. State v. Robinson, 20 So. 30, 31, 111 Ala. 482, citing Tatum v. State, 63 Ala. 147, 152; Stanley v. State, 26 Ala. 26; Smith v. State, 55 Ala. 1, 10; (additional citations omitted).” West, Words and Phrases, Vol. 19, p. 48.

Proof that one has been intoxicated on two occasions does not qualify that individual as an “habitual drunkard”.

Ill

The appellant additionally contends that he did not receive a fair trial because of various acts of misconduct by the jurors.

A. On the hearing of the motion for new trial juror John Kennedy testified that he

“was under the impression they had already tried him on that being sane or insane. That was the impression I was under that they were just trying him to be guilty or not on this case, the way I understood it.”

However, Mr. Kennedy testified to having read the extensive medical records of the appellant submitted into evidence.

After a case has been submitted to the jury, their deliberations in the jury room are not subject to review. Gamble, McElroy’s Alabama Evidence, 3rd Ed., § 94.06, p. 207. Public policy forbids that a juror disclose deliberations in the jury room and demands that they be kept secret. Taylor v. State, 18 Ala.App. 466, 93 So. 78 (1922); Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941). Permitting such impeachment would open the door for tampering with the jury after the return of their verdict. Hawkins v. United States, 244 F.2d 854, 856 (C.A.Va.1957).

Consequently a jury’s verdict is not subject to impeachment by the testimony of jurors as to matters which transpired during the deliberations. Fox v. State, Ala. Cr.App., 269 So.2d 917 (1972). A juror may not, either in impeachment or in support of his verdict, testify as to his mental operation in reaching the verdict.

“But in order to sustain a verdict of the jury, for the affidavits of the jurors to be admissible they must be with respect to facts and occurrences open to the observation of other jurors so that they may be subject to contradiction, for the rule does not permit evidence by the jurors ‘of their own mental operations by disclosing the grounds of, or the reasons for, their verdict, the discussions which took place in the jury room, or the motives or influences which affected their deliberations and decision, by denying that they were affected by matters which might, if their effect was prejudicial to the moving party, furnish grounds for a new trial, or by asserting that they disregarded improper instructions by the court or incompetent material evidence which was before them and was not seasonably withdrawn or excluded’.” Birmingham Electric Co. v. Yoast, 256 Ala. 673, 678, 57 So.2d 103, 107 (1951).

Clearly the appellant’s attempted impeachment of the jury’s verdict by showing the mental operation of one juror was improper and not subject to judicial recognition.

B. The appellant maintains that “the conversations between jurors on each day of defendant’s trial, though not explicit in terms from the face of the record, carry the taint of mutual reinforcement of fixed opinions on a verdict which was later to be rendered”. It is asserted that the premature deliberation denied the appellant a fair trial.

From the record it appears that at least two jurors discussed some of the evidence, but not the guilt or innocence of the appellant, prior to the time the actual deliberations of the jury were begun.

Each case of alleged improper conduct of jurors during trial and deliberation must be judged by its peculiar fact? Bell v. State, 227 Ala. 254, 149 So. 687 (1933). There is no evidence that the verdict of the jury was not based solely on the evidence adduced on trial and was not absolutely free from outside influences. Although several jurors may have commented on the evidence during the trial and before the actual deliberations began we fail to see that such conversations carried “the taint of mutual reinforcement of fixed opinions” on the verdict. The record reflects that the guilt or innocence of the appellant was not prematurely considered.

C. The trial of the appellant began on March 16, 1976 and ended on the 18th when the jury returned a verdict of guilty. The appellant objects to the short period of deliberation and complains that no juror gave serious consideration to the exhibits concerning the mental competence of the appellant. The jury deliberated one hour and sixteen minutes. At least three jurors testified that they considered the extensive medical records dealing with the competency of the appellant. However the verdict may not be impeached by testimony of the members of the jury panel as to things said and done in the jury room. Hooks v. State, 45 Ala.App. 221, 228 So.2d 833 (1969). A juror may not testify to impeach the verdict as to how certain testimony was considered in the jury room. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954). A juror cannot testify that certain evidence was or was not influential. The rule is that evidence of what a juror thought, or why he agreed to a verdict, may not be received to impeach the finding. New Morgan County Building & Loan Ass’n v. Plemmons, 210 Ala. 286, 98 So. 12 (1923).

D. Although the jury only deliberated one hour and sixteen minutes, this is not ground for a new trial. Bolden v. United States, 63 App.D.C. 45, 69 F.2d 121 (1934).

“In the absence of circumstances evidencing passion or prejudice, the .mere fact that the jury reached a verdict of guilty quickly does not show such misconduct, bias, or undue haste as to warrant a new trial, at least where the verdict is warranted by the evidence.” 24 C.J.S. Criminal Law § 1449(24), p. 146.

See also State v. Terrell, 175 La. 758, 144 So. 488 (1932) (jury returned verdict within 18 minutes in case requiring four days to try); Reed v. State, 168 Ga. 731, 149 S.E. 23 (1929) (jury deliberated fifteen minutes in case involving voluminous evidence); Curry v. State, 96 Tex.Cr. 267, 257 S.W. 269 (1924) (jury deliberated less than twenty minutes); State v. Balfany, 50 S.D. 530, 210 N.W. 722 (1926) (jury out ten minutes).

The evidence was of such a conclusive character that there was little occasion for deliberation on the part of the jury. Certainly it may not be said that there was an abuse of discretion by the trial judge in denying the motion for a new trial.

IV

The appellant maintains that he was illegally restricted in his cross examination of two witnesses concerning an eye-witness account of the firing of the alleged murder weapon and the investigating officer’s account of the extent of the investigation of the murder.

The control of cross examination is within the discretion of the trial judge only after a party has had an opportunity substantially to exercise his right of cross examination. Dixon v. United States, 333 F.2d 348 (5th Cir. 1964). However the trial court has the discretion to reasonably limit the range of cross examination in respect to matters which are repetitious or argumentative. • A trial is not meant to be an eternal phenomenon. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195 (1972). Trial judges have unlimited discretion to cut off questions on cross examination which are repetitious, concern wholly collateral matters, are irrelevant, or are harassing, annoying, or humiliating. Ball v. State, Ala.Cr.App., 337 So.2d 31, cert. quashed, 337 So.2d 39 (1976).

The right to a thorough and sifting cross examination does not entitle a party to repeat questions that have already been definitely and fully answered. Proctor v. State, Ala.Cr.App., 331 So.2d 828 (1976).

Following these principles we find that the trial judge did not infringe on the right of the appellant to a full and fair cross examination.

V

The appellant finally argues that the verdict in this case is contrary to the great weight of the evidence. The testimony presented by the state made out a prima facie case of murder in the first degree and the guilt or innocence of the appellant was properly submitted to the jury. The appellant’s stepfather testified that on the morning of September 29,1974, he was in bed at his home when he heard a pistol go off. His wife came into the room and fell to her knees. The appellant then came in and shot her again in the back. This evidence alone presented a question of fact for the jury.

We have searched the record and finding no error prejudicial to the substantial rights of the appellant, the judgment of the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Herbert Kenneth ATWELL.
    77-177.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    Andrew Eugene AUSTIN v. STATE.
    4 Div. 546.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      Larry W. Roney, Phenix City, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted for murder in the first degree. A jury found him guilty of murder in the second degree and fixed his punishment at sixty-five years and one day imprisonment in the penitentiary.

On Wednesday, the 20th of October, 1976, the battered and bloody body of Mrs. “Bobbie” Rudene Edwards was found in her home. The house had been ransacked and blood was splattered in several rooms. Mrs. Edwards was sixty-one years old. She died from massive brain damage and hemorrhage resulting from multiple blows. So vicious and brutal was the attack upon Mrs. Edwards that her mid-brain was almost completely torn in half. A broken rifle stock was found near the victim.

In January of 1976, Mrs. Edwards had received $66,450.00 from the United States Government in settlement of a civil lawsuit. Accounts of her victory were reported in the local newspaper. Apparently, this was the motive for the robbery of Mrs. Edwards.

The appellant was sixteen years old when he murdered Mrs. Edwards. He was convicted upon the testimony of prostitutes, dope users and thieves — all friends and former companions. An ex-felon testified that the appellant stated on three different occasions that he beat Miss Bobbie’s head in because he didn’t want to leave any witnesses. One of these conversations was tape recorded by the Phenix City Police Department. A prostitute testified that the appellant also admitted to her that he killed Mrs. Edwards. A pistol identified as having been often carried by the appellant was found in a creek near Mrs. Edwards’ house in Phenix City. The appellant lived in Columbus, Georgia.

We need not detail the circumstances surrounding this most violent murder and the facts implicating the appellant. The evidence presented by the state was sufficient to justify the submission of the case to the jury and the verdict returned.

I

The appellant’s defense was that he and his father were in Mississippi at the time of the murder. The manager of a Day’s Inn Motel in Jackson, Mississippi testified that his records reflected that a Mr. E. A. Austin (the father of the appellant) and “one person under the age of eighteen” registered on the evening of October 19, 1976. A cash refund voucher signed by Mr. Austin revealed that a one dollar key deposit was returned to him on October 20,1976. Both the registration card and the cash refund voucher were admitted into evidence.

Dr. Victor Platz testified that on the morning of October 20, 1976, he saw the father of the appellant in the Rankin General Hospital Emergency Room in Jackson, Mississippi. Dr. Platz wrote Mr. Austin a prescription and was introduced to Mr. Austin’s son. The doctor testified that to the best of his memory, the young man with Mr. Austin was the appellant.

In an effort to further corroborate his alibi, the appellant attempted to introduce two cash refund slips and a motel registration card to show his presence in Mississippi on October 20th.

Mrs. Barbara Austin, the stepmother of the appellant, went to Mississippi after the appellant had been charged with murder. She testified that she obtained photocopies of cash refund slips from Sears, Roebuck and Co. and from McRae’s bearing the signature of the appellant and dated October 20th. The appellant identified his signature on the receipts. Mrs. Austin testified that her husband and the appellant had gone to Mississippi to “fool around” which she defined as stealing merchandise from stores and then exchanging it for cash.

Mrs. Austin further testified that she obtained a verified statement from Kathryn G. Johnson stating that Mr. Austin and his son stayed in her motel on the night of October 20,1976. Defense counsel attempted to introduce into evidence a certified copy of the registration card from Katherine Court in Meridian, Mississippi.

Certainly these documents were material corroboration of the alibi defense presented by the appellant. However they were not due to be admitted into evidence because they were not properly authenticated.

The cash refund receipts and the motel registration card are business records. Rule 44, Alabama Rules of Civil Procedure, and Title 7, § 415, Code of Alabama 1940, govern the admissibility of “any writing or record, . . ., made as a memorandum of any act, transaction, occurrence, or event”.

In order to properly authenticate a business record, any witness (frequently the custodian of the record) must testify:

“that the document now exhibited to him is a record of the business; that he knows the method (i. e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of fact to be reasonable.” '
Gamble, McElroy’s Alabama Evidence, 3rd Ed., § 254.01(3), p. 547.

The only predicate laid for the admission of these (copies of) records was that the appellant’s stepmother obtained them in Mississippi and that the signature on the two cash refund vouchers 'were the appellant’s. The cash refund vouchers and the motel registration card were not properly authenticated and were not due to be admitted into evidence. Sloan v. Sloan, Tex.Civ.App., 32 S.W.2d 513 (1930); Hartshorn v. Hartshorn, 67 Okl. 45, 168 P. 822 (1917).

The verified statement of Mrs. Johnson was also properly excluded from evidence. As a general rule, an affidavit is not admissible for the purpose of proving the truth of the matter stated in it because the affidavit is hearsay. Bailes v. Guardian Realty Co., 237 Ala. 201, 186 So. 168 (1939); Brown v. Steele, 14 Ala. 63 (1848). Title 15, §§ 297-300 governs the procedure for taking depositions in a criminal case. These provisions should have been followed.

II

The appellant asserts error in the admission of a tape recording of a conversation between the appellant and a witness for the state because the state did not show (1) that the “mechanical transcription device” was capable of taking testimony or (2) the authenticity and correctness of the recording. Additionally (3) the appellant objects to the use of amplification equipment to allow the jury to hear the tape.

Before the tape recording was offered into evidence, Lamar Jackson testified to the substance of the conversation that was recorded. At this time, defense counsel demanded that the jury be allowed to hear the “best evidence” of the conversation which was the tape itself as opposed to Jackson’s testimony. Yet, when the state attempted to introduce the tape into evidence defense counsel made general objection. The trial court then had the tape played out of the hearing of the jury. After the tape was played to the court defense counsel stated that he had no objection to the jury hearing the best evidence which would be the tape itself. However counsel objected to the use of any “amplification equipment” other than the machine on which the tape was recorded. When it became obvious that the trial judge was going to permit the use of the amplification equipment defense counsel objected to the admission of the tape.

The admission of the tape recording was proper. Jackson had previously testified to the conversation. Where it is proper to testify about an oral conversation, a tape recording of that conversation is admissible as probative and corroborative of the truth of the testimony. Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973). The testimony of the Phenix City police officer who arranged for the recording to be made by Jackson and Jackson’s own testimony adequately and substantially supplied the predicate necessary for the authentication and introduction of the tape. Jackson testified as to when the tape recording was made, the circumstances surrounding the event and the actual content of the conversation. Detective Alsobrook of the Phenix City Police Department testified to the placement of the recording machine in the automobile used by Jackson and the manner in which it could be operated by Jackson. He further testified that he had used the recording machine on previous occasions, was familiar with recordings and transcribing devices, and was able to identify the voices on the tape recording. The tape was in the same condition as it was when removed from the automobile and had remained in the continuous care, custody and control of Detective Alsobrook. Sexton v. State, Ala.Cr.App., 346 So.2d 1177, cert. denied, Ala., 346 So.2d 1180 (1977); C. P. Robbins & Associates v. Stevens, 53 Ala. App. 432, 301 So.2d 196 (1974); Wright v. State, 38 Ala.App. 64, 79 So.2d 66 (1954). The fact that a recording is partially inaudible in those portions likely to contain material statements does not require its exclusion from evidence unless the recording is the only evidence offered as to the statements. Wright, supra; Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965).

While the appellant argued against and objected to the use of the amplification equipment he failed to assign any ground for such objection. We do not know what amplification equipment was employed at trial. The recorder used to make the tape was small enough to fit inside the glove compartment of an automobile. Officer Alsobrook testified that it would be “rough” for a jury to hear the tape if it was played on that machine. He also testified that the original recording machine was damaged and had become inoperative. In view of this testimony and the lack of specific objection informing this court and the trial court of the reason for the objection to the “amplification equipment” we hold that the action of the trial court was proper. Where a tape recording is admissible, the jury should be permitted to hear the contents of that tape as clearly as possible. Where the use of amplification equipment will not result in a faulty reproduction of what is actually contained on a tape recording no objection lies to the use of different amplification equipment from that on which the tape was originally produced.

Ill

In closing argument the Assistant District Attorney stated that the appellant had once said, “Well, all I wanted to know was where the damn money was at, and she wouldn’t tell me, so I hit her”. There was no evidence of this specific statement being made by the appellant. However there was testimony that he said “Well, if it would have been there what was supposed to have been there I wouldn’t of had to done it”.

The Deputy District Attorney withdrew the statement when defense counsel objected. Defense counsel then moved for a mistrial. The trial court instructed the jury to only consider what they heard to be the evidence and to disregard anything said by any attorney which conflicted with that. At the beginning of the trial the court had instructed the jury to disregard “any remark, any argument, or any expression made by an attorney which you as the jury do not find to be supported by the evidence”.

Each case of this character must be decided on its own merits. In view of the evidence actually presented the statements by the Assistant District Attorney were of such a character as to be eradicable by the action taken by the trial judge. Therefore the appellant’s motion for a mistrial was properly denied. Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).

We have responded to the arguments in appellant’s brief. Additionally we have searched the record for error and have found none. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Andrew Eugene AUSTIN.
    77-120.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Willie J. SANDERS v. STATE.
    4 Div. 551.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.

      Gary R. Maxwell, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of assault with intent to murder and sentenced to a term of twelve years in the penitentiary. At arraignment, in the presence of his counsel, appellant pleaded not guilty.

The victim of the assault was appellant’s sixteen-month old daughter, Stephanie Sanders.

Ms. Marie Rabón, a registered nurse at the Southeast Alabama Medical Center in Dothan, Alabama testified that on November 27, 1976 around six o’clock p. m. appellant brought his daughter to the emergency room for treatment. Ms. Rabón stated that the child had multiple bruises, lacerations and welts all over her body. She asked appellant where the child got these injuries and he stated, “I don’t know.” The nurse further examined the child and discovered that she had wounds on her abdomen, her pelvic area, her buttocks, the small of her back and down both legs. Her legs were swollen, red and hot to the touch. She asked the appellant to tell her again what happened. Appellant said he was asleep and was awakened by a child crying; that he went into the child’s room and found that she had fallen out of the bed. He stated that he started spanking her for being bad and waking him up, and the child fainted and then he carried her to the emergency room of the hospital.

Ms. Rabón further testified that the child’s body was almost totally covered “in blue, purple bruise marks. The upper part of her abdomen toward her rib cage, her elbows, and arms, and face were bruised and injured; that she had marks on her neck, and one on the forehead.” The nurse called Dr. Lies, a pediatrician, who came to the hospital, examined the child and admitted her to the hospital with a concussion, “and probable battered child syndrome.” The police were called to the hospital by the nurse with the concurrence of the doctor as they were under an obligation to report every child abuse case. She said the child remained in the hospital for three days. She further described the child as very listless and not acting normally. She stated that she found old and fresh bruises on the child. She described the older bruises as purple and the fresh ones as pink.

Ms. Rabón was recalled by the State and testified that “this was a rare case to see such outstanding marks on a child that young.”

At the time of appellant’s trial Dr. Lies was out of the state and the State and appellant’s counsel entered into the following stipulation:

“It is stipulated by and between the State and the defendant, and the defendant’s attorney, that if Dr. William Lies were present and testifying under oath on the witness stand, that he would testify that he attended this child in the emergency room; and that he admitted the child to the hospital, because of a concussion, and probable battered child syndrome, and he admitted her for three days for observation.”

Police Officer Robert Hawlette testified that he went to the Southeast Alabama Medical Center emergency room on the evening of November 27,1976, and in the presence of Ms. Rabón and Dr. Lies he made photographs of the nude child. These photographs were introduced into evidence without objections.

Officer Hawlette 'further stated that he observed the injuries on the child’s body and testified, “The child had bruise spots on her legs, back and front. Bruise spots on the back and stomach.” He said the injuries in the stomach area appeared to have been inflicted with something sharp. He further stated that she had a bruise on the jaw but he could not tell if the bruise on the forehead was new or old. Hawlette saw appellant in the examining room and appellant admitted beating the child and did not appear to be worried at all about the child. He called James R. McCord, the Juvenile Officer, to come to the hospital to assist him.

James R. McCord was an officer in the Juvenile Division. ,He went to the emergency room and saw the victim of the assault and observed the injuries on the* child’s body as described by the nurse on duty when the child was brought to the hospital. McCord arrested appellant and charged him with “child abuse.” He gave appellant the Miranda rights and warnings, and appellant said he understood his rights. Appellant was transported to the station house by McCord and Police Officer Jack Adkins. On the way to the Police Department, appellant told the officers that he was watching a wrestling match on television and the baby kept falling down. He said he got a little ill at that time and put the baby in her bed. He returned to look at television and when the wrestling match was over he went to sleep, and the baby fell off the bed and “woke” him up, and he took his belt off and whipped the baby.

McCord further testified that when they got to the Police Department appellant signed a waiver of rights form and made a statement in the form of questions and answers which was reduced to writing.

Prom the record:

“Q. Will you read the questions that you asked, and then read his answers?
“A. Yes, sir. First question is: ‘What is your full name?’ He said, ‘Willie J. Sanders.’ ‘What is your address?’ ‘207 Lincoln Street, Dothan, Alabama.’ ‘What is your age and date of birth?’ He said, ‘6/21/51, age 26.’ ‘Do you have a 16 month old baby girl?’ ‘Yes, I do.’ ‘What’s her name?’ ‘Stephanie Sanders.’ ‘Did you take Stephanie to Southeast General Hospital on that day?’ ‘Yes, I did.’ ‘What was the cause?’ ‘She fell off the bed, and I whipped her with a belt, then she fainted.’ ‘Did you leave any signs on the baby?’ ‘Yes, sir, I did.’ ‘Where did you leave the signs?’ ‘On her buttocks and stomach.’ ‘Did you have a baby to die about two years ago?’ ‘Yes, sir.’ ‘What caused the death of the other baby?’ T was playing with it, and bumping it up and down, and she started choking, and then she died.’ ‘Do you have any more children?’ ‘Yes, sir, one boy about four years old.’ ‘Do you have anything else to say?’ ‘No, sir, I told you the truth.’
“Q. All right. And that was the end of the statement?
“A. Yes, sir.”

Police Officer Jack Adkins testified that he was in charge of the Juvenile Division of the Police Department and investigated the charge against appellant on November 27, 1976. He stated that he had occasion to see the victim in the emergency room of the hospital. He described the child’s injuries as follows: “It was bruised all on the front of it, down between its legs, around its vagina, and all on the sides, and had some marks about the face.”

He further stated that appellant told him that the kid fell off the bed and awakened him and he got mad and whipped the child with a belt.

The medical records from the hospital concerning the victim were admitted into evidence without objections.

It developed that a preliminary hearing was set for appellant on the charge of child abuse. At this hearing appellant’s counsel made known to the Magistrate that the child abuse statute had been declared unconstitutional. (See State v. Ballard, Ala. Crim.App., 341 So.2d 957). It was then that a warrant was issued charging appellant with assault with intent to murder.

Appellant presented evidence as to. his good character and reputation in the community where he lived.

He also presented evidence by his mother and wife that he had been having severe headaches and was scheduled to go into the hospital to determine if he had a brain tumor. When the brain tumor was ruled out the doctor called in a psychiatrist for consultation and to take charge of the patient.

Dr. Fernando Lopez, a practicing psychiatrist, testified that appellant was suffering from depression with anxiety. He further stated that because of appellant’s condition he was incapable of forming an intent to murder his child.

Appellant testified that, on the night of the incident, he had put his child in her bed and went to sleep while looking at television. He stated that he heard a “loud boom” and was awakened. He said this frightened him and he lost control of himself. The next thing he remembered was that he had whipped the child and when he got back his self control he realized what he had done, and he carried the baby to the hospital. He further testified that he did not intend to kill his child and did not intend to injure her.

On cross-examination he admitted giving the officers the statement quoted above and that the statement was true. He denied that he was trying to change his testimony.

Appellant’s wife and mother both stated they saw the child at the hospital and observed the injuries on her body, and the photographs correctly showed the condition of the child in the hospital.

On re-direct examination the wife stated that she had no reservations about leaving her children with her husband while she was at work because he had never harmed them.

Appellant filed a motion for a new trial in which he raised the sufficiency of the evidence to sustain the judgment of conviction in this case.

Assault with intent to murder is an assault to take life, under circumstances which if successful would constitute murder in either degree. Horn v. State, 98 Ala. 23, 13 So. 329; Chestnut v. State, 7 Ala.App. 72, 61 So. 609.

In Bowen v. State, 32 Ala.App. 357, 26 So.2d 205, this Court held:

“Assault with intent to murder was a high misdemeanor at common law. Our statute imposing severer sanctions converts it into a felony without changing in any way its essential common-law elements.”
“We find statements in our cases that the facts to be looked to as important in determining this intent to take life, an essential element in the offense of assault with intent to murder, are the character of the assault, the use or lack of a deadly weapon, and the presence or absence of excusing or palliating circumstances. Meredith v. State, 60 Ala. 441; Smith v. State, 88 Ala. 23, 7 So. 103.
“Fully recognizing that this intent is an inference to be determined by the jury from the facts, yet this presumption of intent must be inferred from facts proved so clearly as to leave no reasonable doubt of the intent of the accused to commit murder. Horn v. State, supra.”

Applying the above pronouncements to the facts in this case it is our conclusion that the character of the assault was vicious and vigorous and there was no excusing or palliating circumstances. Appellant was a 26 year old man and the victim was a 16 month old helpless child. Thé wounds which he- inflicted upon her body were very serious and extensive. She was a severely battered child. By appellant’s own admission he was mad with the child and he used a belt in inflicting these injuries until the child fainted.

The verdict of the jury .and the judgment of the trial court are solemn pronouncements, and an Appellate Court should most hesitantly disturb either. There is a presumption in favor of the correctness of a jury’s verdict, and when the trial judge, who heard the testimony and observed the demeanor of the witnesses, declines to grant a new trial, the verdict is strengthened on appeal. Peterson v. State, 227 Ala. 361, 150 So. 156.

This case is not free from difficulty, but the law is that a verdict of conviction should not be set aside on the grounds of the insufficiency of the evidence or that the verdict is contrary to the great weight of the evidence to sustain it, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the Court that it was wrong and unjust. We hold a jury question was clearly presented. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Willie J. SANDERS.
    77-237.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Michael Wayne WILLIAMS v. STATE.
    4 Div. 560.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.

      J. Fletcher Jones, Andalusia, for appellant.

      William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen. for the State.
   BOWEN, Judge.

The indictment charged that the appellant “against the order of nature, carnally knew Phillip T. Davis”. After having been found guilty by a jury the trial court imposed a sentence of four years’ imprisonment. The appellant is represented by court appointed counsel both at trial and on appeal.

We have considered the evidence in the light most favorable to the verdict as we are required. Scott v. State, 45 Ala.App. 149, 227 So.2d 436, cert. denied, 284 Ala. 733, 227 So.2d 438 (1969); Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975). The facts in this case are sufficient to sustain a conviction for sodomy. In August of 1976, the appellant, Kenny Williams, Earnest Bradley, Joey Thompson, and Phillip Davis were incarcerated in the Covington County Jail. Although the evidence presented by the state is confusing as to the degree of actual participation by the appellant in some of the events that occurred, it is clear that he was present in Davis’ cell when Thompson, Williams and Bradley told Davis that they were going to have sex with him and threatened him. Davis’ pants were removed and he was forced to take a shower by and in the presence of the appellant, Williams, Thompson and Bradley. There .was testimony that Thompson had a steel pipe and a broom handle. The four men took Davis back to his cell where Williams had anal intercourse with Davis. Williams stopped after Davis began crying. Then each of the four men forced Davis to commit an act of oral sex. Davis testified that the appellant threatened “to call the rest of them back here and we will take care of you” if Davis did not do as told. Davis testified that the appellant forced Davis to perform oral sex. Ronald Madison, an inmate, also testified to this same fact and reported the incident the next day.

The defense attempted to impeach the credibility of eyewitness Madison by showing that he had given conflicting statements from his trial testimony. Although the appellant admitted that he had an idea of what was going on, he denied any specific knowledge of the assault upon Davis or any sexual contact with him. Additionally the defense attempted to prove that Davis was a homosexual who had actually and voluntarily solicited and engaged in sexual contact with inmates of the Covington County Jail.

I

After the jury venire was sworn and qualified defense counsel requested a continuance on the ground that he had just discovered a witness material to his defense but whom he could not locate.

Defense counsel stated to the trial judge that the witness, Wilbur Blocker, informed him that same morning that he had received a subpoena but that he “didn’t see him (the appellant) do anything with anybody”. Blocker told defense counsel that he was subpoenaed because he knew Phillip Davis, knew that Davis was “one of them” and knew that Davis had been writing love letters to different prisoners in the Coving-ton County Jail. Counsel alleged that Blocker was “released” by the Sheriff immediately prior to trial because there was no subpoena for him. Defense counsel then had a subpoena issued for Blocker which was not served apparently because the witness could not be located. Upon this showing the trial judge denied the request for a continuance.

On appeal it is argued that the facts related to the court by defense counsel were “substantial and indispensable to the defense of the defendant and may very well have shown that the injured party was in actuality a willing participant to the crime or at least in mitigation of the offense by showing that Davis may have reasonably provoked the situation alleged to have occurred”.

Consent of the victim is not a defense in a prosecution for sodomy. La Bryer v. State, 45 Ala.App. 33, 222 So.2d 361, cert. denied, 284 Ala. 732, 222 So.2d 366 (1969); Williams v. State, 57 Ala.App. 158, 326 So.2d 686, cert. denied, 295 Ala. 428, 326 So.2d 692 (1976); Stevens v. State, Ala.Cr.App., 333 So.2d 852, cert. denied, Ala., 333 So.2d 855 (1976); Annotation: 58 A.L.R.3d 636. Sodomy may be committed with the consent of both parties and without compulsion or force. People v. Blagg, 267 Cal.App. 598, 73 Cal.Rptr. 93, appeal after remand, 10 Cal.App.3d 1035, 89 Cal.Rptr. 446 (1970); People v. Poe, 109 Ill.App.2d 295, 248 N.E.2d 715 (1969). Where two persons voluntarily engage in an act of sodomy, both are guilty. Stevens, supra. Thus Blocker’s testimony relating to the homosexuality of Davis is immaterial and not probative of the substantive crime charged since it would not prove performance or nonperformance of the criminal act. People v. Sellers, 103 Cal.App.2d 830, 230 P.2d 398 (1951).

Additionally Blocker’s testimony would have been largely cumulative since three defense witnesses, including the appellant, testified that Davis had requested or attempted to perform homosexual acts upon them. Divine v. State, 279 Ala. 291, 184 So.2d 628 (1966).

A continuance because of an absent witness is properly refused where the testimony sought was not material, Hite v. State, 282 Ala. 497, 213 So.2d 229 (1968), or cumulative in substance. Divine, supra. Therefore the denial of the requested continuance was not error.

II

During the presentation of the state’s case in chief, the District Attorney was permitted, over objection, to bring two individuals into the courtroom and have them identified by Davis, all in the presence of the jury. The two individuals were Thompson and Williams, two of the four individuals Davis testified forced him to commit fellatio. These two men were brought into the courtroom, displayed before the jury, and identified by Davis. They were not questioned and were escorted from the courtroom immediately after the identification was made.

Defense counsel objected to this presentation and display because, to allow it

“would be to create an air of prejudice to the Defendant in the trial of this case, and, also, to create a type of hysteria to fortify or foster the state’s charge that this was a conspiracy and by bringing the different culprits in would be in effect the trying of the Defendant’s case jointly with the other Defendants who are likewise charged with the same offense. And this would be highly prejudicial and not only that, but unusual and unnecessary. Extraneous matter being brought into the trial of this case creates the presumption of prejudice to the right of the Defendant.” (Emphasis added)

Defense counsel’s objection reveals that Thompson and Williams were also charged with the same offense. In this regard the general rule is that

“the presence in the courtroom during trial of other persons under indictment for the same offense, but who are to be tried separately, is within the discretion of the court, and it may refuse such presence, or it may permit or require such a person to be present, such as for purposes of identification, . . . ” 23 C.J.S. Criminal Law § 968, p. 876.

Subject to the discretion of the trial judge, it is within the prosecution’s right to bring the co-conspirators of the accused into the courtroom for identification.

“It was necessary, however, in all cases, that the Commonwealth’s proof should cover the crime in its entirety; the case of one defendant could not be so segregated that the prosecution would be restricted in its offer of evidence to matters directly relating solely to that defendant. The jury was entitled to have a complete picture of the crime, with all attending circumstances. Therefore, when the Commonwealth, in the course of its presentation, brought into court for identification the other persons connected and associated with the defendant, it was clearly Within its right; the district attorney was not limited to merely placing the names of the other defendants on the record.” Commonwealth v. Lawrence, 282 Pa. 128, 131-132, 127 A. 465, 466 (1925).

Even had Thompson and Williams not been indicted for the same offense as the appellant, we think these same principles would be applicable.

While counsel for the appellant argues that the physical appearance of these two individuals, dressed in prison garb, prejudiced the appellant, the record is utterly silent on that ground of objection and gives no indication of how the men were dressed. Therefore it is not before this court for consideration. Lucy v. State, Ala.Cr.App., 340 So.2d 840, cert. denied, Ala., 340 So.2d 847 (1976). Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not specified. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975).

Ill

The appellant also contends that the trial court erred by admitting into evidence certain “threats” made by the appellant and hearsay statements made by other inmates.

After the assault upon Davis, Madison notified the jailer of what had happened. He was then transferred to a different cell on the floor below the appellant. Madison testified that the appellant “hollered down” and told him that all he had to say “was that the boy was a queer and they would cut him loose”; that Thompson also “hollered down and threatened” him; that the threats were that “they would kill me and my family”; and that the appellant “hollered down there and said, that he had a family and two children to take care of and if I (Madison) messed him up he would get me one day or another”.

The threatening statements made by the appellant to Madison were properly admitted into evidence. Conduct involving the intimidation of a witness reflects consciousness of guilt and is therefore admissible. Brown v. State, Ala.Cr.App., 339 So.2d 125 (1976). They were also admissible as evidencing an attempt by the appellant to suppress or fabricate testimony. Ellis v. State, 46 Ala.App. 289, 241 So.2d 130 (1970); Smith v. State, 183 Ala. 10, 62 So.2d 864 (1913); Montgomery v. State, 17 Ala.App. 469, 86 So. 132, cert. denied, 204 Ala. 389, 85 So. 785 (1921).

The threats made by Thompson to Madison were properly admissible under the conspiracy theory. While not every conspiracy to commit a substantive crime involves and includes as an integral part of the plan an implied agreement or conspiracy aimed at preventing detection and punishment, Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), if the evidence warrants a finding of the accused’s participation in a conspiracy to suppress or fabricate evidence of the crime after its commission, an act or statement of a co-conspirator in the accomplishment of this continuing conspiracy is admissible against the accused. Dailey v. State, 233 Ala. 384, 171 So. 729 (1937). We find that the evidence in this case, though circumstantial, is sufficient to warrant a finding that Thompson’s threats to Madison were made with the appellant’s knowledge or approval. We deem this a reasonable inference from the facts that both the appellant and Thompson were in the same cell block and both men “hollered” the threats from the jail upstairs to Madison and Davis downstairs. Additionally Madison testified that the appellant himself threatened “to get” him if he testified.

Madison also testified that the appellant told him that:

“if I never helped anybody else to help him; all I had to say was, that the boy was a queer and they would cut him loose.”

Relying on Wilson v. State, 31 Ala.App. 560, 19 So.2d 777, reversed, 246 Ala. 129, 19 So.2d 780 (1944), the appellant argues that this statement was an effort to compromise or settle and should not have been admitted against the appellant.

Initially we note that no objection was taken to this testimony and therefore its admission does not constitute reversible error on appeal. However an attempt or offer to compromise a criminal prosecution is not ordinarily admissible against the accused unless an express admission of guilt is made by him in the course of his efforts to effectuate a compromise. See Gamble, McElroy’s Alabama Evidence, 3rd ed., p. 370-1, §§ 188.04(1), (2). Davis testified that the appellant apologized to him one time and on another occasion said to “go light on me”. A consideration of all the statements made by the appellant in this connection makes it apparent that his comments were more than mere offers to compromise; they were in fact threats and admissions of guilt.

IV

In closing argument the prosecutor made some analogy to the rape of a female and the sexual abuse suffered by Davis.

“Maybe a female, sometimes has been raped and she has got to get up there on that stand and tell you all about it.”
% * :fc ifc tji
“Mr. Williams’ (sic) violated the law of Alabama when he forcefully and in conjunction with these other three people raped that young man over there in that County Jail, and he is guilty as charged.”

The appellant objected and maintains that his objection was due to be sustained. The portions of the argument appearing in the record are not objectionable. The common definition of the term rape embraces the concept of unlawful sexual abuse, particularly intercourse, accompanied or accomplished with force and some degree of violence. The victimization of Davis in this case may be properly analogized with rape in general. It is not uncommon to hear of “rape” among the inmates of a male prison population. The connotations of homosexual rape are well understood by the average layman. The tendency to mislead or prejudice the appellant was not presented by the usé of this analogy by the prosecutor in closing argument.

V

The appellant asserts that the trial court erred in refusing to give certain written requested charges. We have carefully reviewed each and every charge and conclude that they were due to be denied and ’refused because they were either affirmative in nature, inapplicable or incorrect statements of law, confusing, or were fully, fairly and substantially covered in the court’s oral charge to the jury. Title 7, Section 273, Code of Alabama 1940, Recompiled 1958.

Counsel for the appellant has assigned thirty-two grounds for reversal of the conviction and judgment of the trial court. We have separately and severally considered and reviewed each asserted ground though we have not written to every one. Those we have not addressed we consider to be either without merit or harmless error. The appellant has been well represented both at trial and on appeal and we commend his court appointed counsel for his sound representation of the appellant on such a despicable and unpopular charge.

The judgment of the trial court is

AFFIRMED.

All Judges concur.

      . Kenny Williams is referred to as Williams. Michael Wayne Williams, the appellant, is referred to as the appellant.


author: TORBERT, Chief Justice.

text:
    Ex parte Michael Wayne WILLIAMS.
    77-236.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   TORBERT, Chief Justice.

WRIT DENIED.

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


author: ADKINS, Justice. BOYD, Justice,

text:
    Charlie VINING and Velma Vining, wife of Charlie Vining, Petitioners, v. AVIS RENT-A-CAR SYSTEMS, INC., Respondent.
    No. 49459.
    Supreme Court of Florida.
    Nov. 10, 1977.
    Rehearing Denied Feb. 10, 1978.
    Sheridan K. Weinstein, of Papy, Levy, Carruthers & Poole, Coral Gables, for petitioners.
    Richard M. Gale, and Robert L. Dubé, Miami, for respondent.

      John R. Young, of Hamilton, James, Mer-kle & Young, West Palm Beach, for Alberto and Sheryl Almeida, as amicus curiae.
   ADKINS, Justice.

This case presents the issue of whether the owner of a car, who leaves it unlocked with the key in the ignition in violation of Florida’s Unattended Motor Vehicle statute, Section 316.097, Florida Statutes (1975), is liable for the conduct of a thief who steals the car and subsequently injures someone while negligently operating the stolen vehicle.

The cause is before us on petition for writ of certiorari to review the decision of the Third District Court of Appeal, reported at 330 So.2d 550 (Fla.3d DCA 1976). In light of the great public interest involved, the court below has certified the cause to this Court, pursuant to Article V, Section 3(b)(3), Florida Constitution. We have jurisdiction.

The facts in the instant case as alleged by plaintiff (petitioner here) in his amended complaint are as follows: An Avis rental car was left unattended in the Avis parking lot at the Miami International Airport with the keys in the ignition, the door open, and the car lights flashing. The car was situated in such a manner that it could be easily driven onto the public roads without obstruction. The vehicle was subsequently stolen. While negligently operating the vehicle, the thief collided with plaintiff’s car causing plaintiff severe physical injury. The complaint further alleged that the area around the Miami International Airport had the highest incident of auto theft in Dade County, Florida, that Avis had had vehicles stolen in the past, and that statistics show a strong correlation between automobile thefts and automobile accidents. The trial court summarily dismissed the complaint with prejudice for failure to state a cause of action.

On review, the Third District Court of Appeal upheld the trial court relying largely upon its prior decision in Lingefelt v. Hanner, 125 So.2d 325 (Fla.3d DCA 1960), involving similar facts. The court below reasoned that even if Avis were negligent in allowing the rental car to be stolen, it was not liable for the damages caused by the thief because the criminal act of stealing the car breaks the chain of causation; and therefore, as a matter of law, Avis’ negligence was not the proximate cause of plaintiffs injuries.

Key-in-the-ignition cases are not new in the field of torts. The traditional approach, absent unusual circumstances (See Hergenrether v. East, 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164 (1964)), has been to deny relief to the injured plaintiff either by holding that a car owner owes no duty to a victim injured by a thief (Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 372 P.2d 333 (1962); Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 (1954)), or, as the Third District Court has held, that car theft constitutes an unforeseeable intervening criminal act which breaks the chain of causation between the negligence of the car owner and the injuries of the plaintiff. Lingefelt v. Hanner, supra; Liberty v. Holfeldt, 155 A.2d 698 (Md.1959); Merchants Delivery Service, Inc. v. Joe Esco Tire Co., 533 P.2d 601 (Okl.1975); Clements v. Tashjoin, 168 A.2d 472 (R.I.1961). Several jurisdictions, however, have departed from this traditional approach. Zinck v. Whalen, 120 N.J.Super. 432, 294 A.2d 727 (App.Div.1972); Davis v. Thorton, 384 Mich. 138, 180 N.W.2d 11 (1970); Gaither v. Meyers, 131 U.S.App.D.C. 216, 404 F.2d 216 (1968). In Zinck v. Whalen, supra, at 734, the New Jersey Superior Court reasoned that the key to duty, negligence and proximate cause when keys are left in an unlocked motor vehicle is the foreseeability to a reasonable man of an unreasonable danger presented to other motorists. • If the danger is foreseeable, then

“[A] duty arises toward the members of the public using the highways, its breach is negligence, and the injury is the proximate result of the breach, or so a jury should be permitted to find.”

This Court in Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175, 177 (Fla.1976), has held that if an intervening criminal act is foreseeable,- the chain of causation is not broken and thus the original negligence may be the proximate cause of the damages sustained. This rule is directly applicable to key-in-the-ignition cases. We therefore endorse the view set forth in Zinck v. Whalen, supra. If reasonable men might differ, the determination of foreseeability should rest with the jury. See also Lingefelt v. Hanner, supra, at 327, Carrol, Chas., J., dissenting.

Florida statutory law provides additional support for this position. Section 316.097, Florida Statutes, states that “no person driving or in charge of any motor vehicle . shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key. .” This regulation, incorporated as part of the “Florida Uniform Traffic control law,” (Chapter 71-135, Florida Laws (1971)), was enacted mainly to promote the overall safety of our State’s highway system, not merely to reduce automobile thefts. The legislature recognized that an automobile placed in the hands of an unauthorized person was more likely to be operated in a manner hazardous to the well being of the general public. Statistical data provided strong support for this position. See Gaither v. Myers, supra, at 222-23.

Turning to plaintiff’s complaint, he is clearly a member of the class Florida’s “Unattended Motor Vehicle” statute was intended to protect. Also, the” injuries he sustained were the type the statute was designed to prevent. If plaintiff can establish that the violation of the statute was the proximate cause of his injury, he is entitled to recover. See deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973). The court below held that an intervening criminal act automatically breaks the chain of causation as a matter of law. In addition to being in conflict with our later decision in Nicholas v. Miami Burglar Alarm Co., Inc., supra, such a holding would serve to bar recovery for all injured parties under Florida’s “Unattended Motor Vehicle” statute because the criminal act of stealing the car would always precede the plaintiff’s injury. This approach would effectively deny relief to those members of the general public that the statute was intended to protect and for this reason cannot be endorsed.

The key to proximate cause is foreseeability. In light of the facts alleged by plaintiff, it could be said that a reasonable man should foresee the theft of an automobile left unattended with the keys in the ignition in a high crime area. Also, a reasonable man could foresee the increased danger of injury to the general public using the highways should such a theft occur. The owner of a dangerous instrumentality must exercise due care to ensure that such a danger does not occur.

We therefore conclude that the complaint alleges facts sufficient to establish a cause of action.' Since reasonable men might differ, the ultimate determination of foreseeability rests with the jury. The decision of the District Court of Appeal is quashed and the cause is remanded with instructions to reverse the judgment of the trial court.

It is so ordered.

ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

BOYD, J., dissents with an opinion.

OVERTON, C. J., and KARL, J., dissent.

BOYD, Justice,

dissenting.

I respectfully dissent.

The majority opinion correctly states that the law in this jurisdiction has long been that an owner of an automobile who negligently leaves ignition keys in it is not liable for the torts committed by a thief who steals the car. The statute relied upon by the majority does not explicitly state that such owners, upon adoption of the statute, would thereafter be held liable. If the Legislature had intended to impose such liability it could have, and should have, explicitly so stated. Such fundamental changes in the law as will result from the majority opinion should be made by the Legislature on a public policy basis rather than through judicial interpretation. Believing that the trial court and the district court interpretations are correct, I would affirm their actions by discharging the writ of certiorari heretofore entered in this cause.


author: SUNDBERG, Justice.

text:
    GULF & EASTERN DEVELOPMENT CORPORATION, Petitioner, v. CITY OF FORT LAUDERDALE, a Municipal Corporation, and Calvin Howe, Director of Building and Zoning for the City of Fort Lauderdale, Respondents.
    No. 49619.
    Supreme Court of Florida.
    Jan. 12, 1978.

      Terrence J. Russell and Steven J. Gutter of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for petitioner.
    W. W. Caldwell, Jr. and Donald R. Hall, Fort Lauderdale, for respondents.
   SUNDBERG, Justice.

This matter comes before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 332 So.2d 88. It is alleged that the decision in the instant case is in direct conflict with numerous decisions of this Court and other district courts of appeal upon the issue of whether notice to an affected landowner of a hearing before a planning and zoning board to consider the rezoning of a parcel of real property is essential to the validity of an ordinance rezoning such property, subsequently enacted by a city commission, based upon the recommendation of the planning and zoning board. We find such conflict to exist and, therefore, we have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

While petitioner raises five points for our consideration, we believe the points respecting notice are dispositive of the case and will limit our discussion and decision to that issue.

On March 27, 1973, pursuant to Section 47-32.5, Fort Lauderdale Code of Ordinances, various individuals owning real property in proximity to a tract of land owned by the petitioner’s predecessors in title, described as Parcel D, Harbour Beach Extension, filed an application with the Fort Lauderdale Planning and Zoning Board for the rezoning of Parcel D from R-4/RM60 to R-3-A/RM25. A public hearing on the rezoning proposal was held before the Fort Lauderdale Planning and Zoning Board on April 18, 1973. After the hearing, the Planning and Zoning Board entered its recommendation to the City Commission that Parcel D be rezoned from R-4/RM60 to R-3-A/RM25.

On May 15, 1973, the Fort Lauderdale City Commission held a public hearing on Ordinance No. C-73-45; this ordinance by its terms provided for rezoning of Parcel D, Harbour Beach Extension, in conformity with the Planning and Zoning Board’s recommendation. Petitioner, which had on April 6, 1973, purchased property situated within Parcel D, appeared at the City Commission hearing and objected to the fact that it had not been notified by the city of the rezoning proposal and the April 18,1973 Planning and Zoning Board hearing thereon. Notwithstanding petitioner’s objection, the City Commission passed Ordinance No. C-73 — 45 upon first reading. The ordinance was subsequently enacted by the City Commission on June 19, 1973, at the second and third readings of the ordinance.

On May 18, 1973, petitioner filed a complaint in Circuit Court for Broward County, Florida, seeking (i) to temporarily and permanently enjoin the City of Fort Lauder-dale from rezoning its property, and (ii) to require respondents to issue petitioner a building permit for use of its property consistent with R-4/RM60 zoning. The trial court denied petitioner’s application for a temporary injunction. After Ordinance No. C-73-45 was enacted by the City Commission, however, petitioner supplemented its complaint, seeking to have the ordinance declared invalid and to have the City of Fort Lauderdale enjoined from enforcing the ordinance. At final hearing the circuit court found that petitioner had not been notified by the city of the rezoning proposal and the April 18 Planning and Zoning Board hearing thereon, as required by Section 47-32.7, Fort Lauderdale Code of Ordinances. Therefore, the trial court entered final judgment declaring the ordinance invalid and permanently enjoining the city from enforcing the ordinance. On appeal to the District Court of Appeal, Fourth District, respondents contended that Ordinance No. C-73-45 was valid and effective notwithstanding the city’s failure to notify petitioner of the rezoning proposal and the April 18 Planning and Zoning Board hearing thereon. Relying on F. P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141 (1973), cert. denied 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59 (1973), the district court agreed with respondents upon the premise that the planning and zoning board was only a re-commendatory authority and, so long as an affected landowner had an opportunity to be heard before the governing authority (the City Commission), the landowner was not deprived of procedural due process. Accordingly, the district court reversed and remanded with directions to enter final judgment in favor of the respondents. This petition for certiorari ensued.

We find that the function and authority of the Planning and Zoning Board pursuant to the charter and ordinances of the City of Fort Lauderdale exceeds that of a mere recommendatory body, and that the failure to notify petitioner of the meeting violates the very provisions of the city’s ordinances. Consequently, we are compelled to quash the decision of the District Court of Appeal, Fourth District.

It is without question that due process requires that an affected landowner be given prior notice and an opportunity to be heard before action is taken by a zoning authority to alter the use to which the owner is permitted to put his land. See City of Ft. Lauderdale v. Gulf & Eastern Development Corporation, 332 So.2d 88 (Fla. 4th DCA 1976); Bal Harbour Village v. State ex rel. Giblin and F. P. Plaza, Inc. v. Waite, supra. Cf. Rowland v. State, 129 Fla. 662, 176 So. 545 (1937) (condemnation of private property). The crux of the issue, however, is at what stage of the proceedings must the owner be notified and be given an opportunity to be heard.

Zoning is a legislative function which reposes ultimately in the governing authority of a municipality. See Josephson v. Autrey, et al., 96 So.2d 784, 788 (Fla.1957). However, as with most municipalities, the charter and ordinances of the City of Fort Lauderdale have delegated some portions of the zoning process to an independent board. The question is: Has a sufficient portion of the process been delegated to the board so as to necessitate notice and an opportunity to be heard before the Planning and Zoning Board, in order to meet the requirement of due process? Respondents maintain not. As authority for their position they rely* upon F. P. Plaza, Inc. v. Waite, supra. We believe this position to be in error for two reasons. First, by Section 47-32.5(h), Fort Lauder-dale Code of Ordinances, the Fort Lauder-dale Planning and Zoning Board enjoys de facto interim zoning authority. Once the Board recommends to the City Commission that the zoning on a parcel of land be changed from a less restrictive to a more restrictive use, the building department is prohibited from issuing a permit on the property for a use not permitted in the more restrictive district until the recommendation has been acted on by the City Commission. This effectively endows the Board with the power to alter the use of a particular parcel of land on an interim basis. Cf. City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra (emergency ordinance passed as amendment to building code altering building setbacks constituted zoning ordinance, thus requiring notice and hearing).

Second, notwithstanding the authority conferred by Section 47-32.5(h), it is apparent that much if not all of the fact-finding, discussion, and consideration with respect to the merits or demerits of a zoning change are accomplished at the zoning board level. Although a record in the strict sense is not made at the zoning board hearing by which the City Commission is bound, nonetheless it is clear that those proceedings result in input which is material and substantial in the ultimate decision-making process. The importance of this part of the process has been recognized in the context of the government in the sunshine law, Section 286.011, Florida Statutes (1975). In Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), this Court recognized the essential part such consideration and discussion plays in the ultimate decision-making process by holding that a lay group of citizens, designated by the town council of the Town of Palm Beach to advise the council in the adoption of an ultimate zoning plan, was subject to the provisions of Section 286.011. Because it is apparent that the deliberations and actions of the planning and zoning board are an integral part of the zoning process, we reject the rationale of F. P. Plaza, Inc. v. Waite, supra, and hold that due process requires that an affected landowner is entitled to notice and an opportunity to be heard at the planning and zoning board stage of the zoning process.

Accordingly, we construe the phrase “municipal zoning authority” in Section 176.-051(1), Florida Statutes (1971), to include planning and zoning boards of the type here under consideration which make recommendations to the ultimate governing authority, in this case the City Commission of the City of Fort Lauderdale. We hold, then, that lack of notice of the hearing before the Planning and Zoning Board constitutes a violation of Section 176.051(1), Florida Statutes (1971).

Furthermore, we hold that the City of Fort Lauderdale was bound by the procedural requirements imposed by its city charter and ordinances. See Rhodes v. City of Homestead and Florida Tallow Corporation v. Bryan, supra. Regardless of the operation of Section 176.051(1), Florida Statutes (1971), by Section 47-32.7, Fort Lauderdale Code of Ordinances, the City of Fort Laud-erdale promised property owners notification and a right to be heard when their lands would be affected by proposed zoning. Even if the City of Fort Lauderdale were not constitutionally and statutorily obliged to extend the procedural due process set forth in Section 47-32.7, nevertheless, once it has done so it should not be permitted to renege on its promise anymore than one of its private citizens would be entitled to do. Cf. Citizens of Florida v. Mayo, 333 So.2d 1, 7 (Fla.1976) (Public Service Commission promise of procedural rights to a party, in notice of public hearing).

For the reasons heretofore enunciated, the petition for writ of certiorari is granted, the decision of the District Court of Appeal, Fourth District, is quashed, and this cause is remanded to the District Court of Appeal with instructions to remand to the trial court for reinstatement of its judgment.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and KARL, JJ., concur.

      . See Town of Hillsboro Beach v. Weaver, 77 So.2d 463 (Fla.1955); City of Hollywood v. Rix, et ux., 52 So.2d 135 (Fla.1951); Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974); Rhodes v. City of Homestead, 248 So.2d 674 (Fla. 3d DCA 1971); Florida Tallow Corporation v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970); City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., 108 So.2d 614 (Fla. 3d DCA 1959).

      . The Planning and Zoning Board of Fort Laud-erdale was formed pursuant to City Charter, Section 324. The duties of the Board are set out in Section 326 of the Charter as follows:
      “(a) To act in an advisory capacity to the City Commission, to conduct investigations and hold public hearings upon all proposals to change zoning regulations of the City

      “(b) To make recommendations to the City Commission for changes in the existing City plan ....
      “(c) To investigate and approve or disapprove all new plats intended to be presented to the City Commission for approval.
      “(d) To perform such other duties as may from time to time be assigned to such Board by the City Commission, or prescribed by ordinance.”

      . Section 47-32.7, Fort Lauderdale Code of Ordinances, provides, in pertinent part, the following with respect to notice of public hearings before the Planning and Zoning Board:
      “(a) Application to rezone lands. The owners of all lands sought to be rezoned and the owners of all lands lying within three hundred (300') feet of any of the lands sought to be rezoned, shall be notified of the proposal to rezone, and of the meeting at which such proposal will be scheduled for public review and discussion. For this purpose the owners shall be deemed to be the persons shown upon the tax cards in the city treasurer’s office in the City of Fort Lauderdale as having an interest in or relation to the particular property involved. Such notice shall be mailed to the address shown upon the aforesaid tax card at least ten (10) days before the date of such hearing.”

      . Section 47-32.5(h), Fort Lauderdale Code of Ordinances, provides as follows:
      “(h) In any case where the planning and zoning board has recommended to the city commission that the zoning on a parcel of land be changed from a less restrictive to a more restrictive district, the building department shall not issue a permit on said land for a use not permitted in the more restrictive district until the recommendation has been acted on by the City Commission.”

      . § 176.051(1), Fla.Stat. (1971):
      “Change in zoning classification; notification requirements.—
      “(1) When any municipal zoning authority proposes a change in zoning classification of a single parcel or a group of not more than five hundred parcels of any property within its jurisdiction, it shall be the duty of said authority to give notice by mail to each property owner whose zoning classification is proposed to be changed. Such notice shall be mailed to the owner’s current address of record, as maintained by the assessor of taxes for the jurisdiction proposing the change and be postmarked no later than ten days prior to the first scheduled hearing concerning the proposed change. The notice shall contain the legal description of the affected property, the existing zoning classification, the proposed zoning classification, and the time and place of any scheduled hearing concerning the proposed zoning change. Prior to the effective date of any zoning classification change, the municipal zoning authority shall cause an affidavit to be filed with the city clerk certifying that said authority has complied with the provisions of this section. The filing of said affidavit shall be prima facie proof of compliance with fhe requirements of this section. A failure to give notice shall not affect the validity of zoning except as to the property of the complaining owner.”

      . Effective October 1, 1973, § 176.051, Fla.Stat. (1971), was expressly repealed by § 5(1), Ch. 73-129, Laws of Florida, the “Municipal Home Rule Powers Act.”


text:
    Leon James ROLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 50971.
    Supreme Court of Florida.
    Jan. 12, 1978.

      Steven M. Greenberg of Pertnoy & Greenberg, Miami, for appellant.
    Richard E. Gerstein, States Atty., and George Volsky, Asst. States Atty., Miami, for appellee.
   SUNDBERG, Justice.

Appellant has prosecuted an appeal in this Court following an order of the County Court for Dade County, Florida, Crimes Division, finding Section 849.06, Florida Statutes (1975), constitutional on its face and as applied to appellant. Jurisdiction is predicated on Article V, Section 3(b)(1), Florida Constitution.

On September 1, 1976, appellant was arrested at an establishment known as South Florida Billiards which he owns and operates. He was charged with a violation of Section 849.06, Florida Statutes (1975), which provides:

Regulation of age of persons frequenting or visiting places where billiards are played.—
(1)It is unlawful for any person, his servant or employee to permit anyone under the age of 21 years to visit or frequent or play in any billiard parlor in the state; provided, however, this shall not apply to any person on active duty in the Armed Services of the United States, or who has a written permit or card signed and notarized by his parent or guardian and filed in the establishment to which the permit or card is given by the parent or guardian of the minor involved, or a married minor, or when accompanied by parent or guardian. The said permit card shall be valid only in the establishment to which it is issued, and such permit card may be revoked at any time by the parent or guardian, or by the operator of said billiard parlor by returning the card to the parent or guardian, or by any law enforcement officer upon conviction of the party or parties of a crime. No written permit shall be valid in any establishment which sells or permits consumption on its premises of intoxicating or alcoholic beverages.
(2) Persons playing billiards in bona fide bowling establishments and persons frequenting such establishments are exempt from the provisions contained in subsection (1). For the purposes of this section a “bona fide bowling establishment” shall be one consisting of 12 lanes or more.
(3) The Division of Beverage of the Department of Business Regulation shall be responsible for developing and issuing the parental approval permit prescribed in subsection (1).
(4) Violation of this law shall be a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

On October 13, 1976, appellant filed a motion to dismiss, in which he argued that the statute is arbitrary and discriminatory upon its face and is violative of both due process and equal protection, in that it arbitrarily proscribes and punishes conduct which is not proscribed or punished for persons engaged in the same profession, business or activities at other locations. Specifically, he alleges that owners or employees of billiard parlors are subject to the proscriptions of the statute while owners or employees of bona fide bowling establishments are not. The motion was denied. Appellant then pleaded nolo contendere, specifically reserving his right to appeal the denial of his motion to dismiss. The court adjudicated appellant guilty upon his plea and fined him $50.

Appellant now requests this Court to reverse the order of the trial judge and find Section 849.06, Florida Statutes (1975), unconstitutional on its face as a denial of his right to equal protection under the law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Constitution of the State of Florida. Cognizant as we are of the axiom of statutory construction that all doubts as to the validity of a statute are to be resolved in favor of its constitutionality when reasonably possible, Carter v. Sparkman, 335 So.2d 802 (Fla.1976); Gammon v. Cobb, 335 So.2d 261 (Fla.1976); State v. Aiuppa, 298 So.2d 391 (Fla.1974), nevertheless, in the instant case, we must agree with appellant that the statute deprives him of equal protection.

In examining the constitutionality of Section 849.06, Florida Statutes (1975), we must inquire whether the classification made by the legislature in that statute is reasonable. Gammon v. Cobb, supra. For a statutory classification to satisfy the equal protection clauses found in our organic documents, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); cf. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920).

In the case sub judice, we find no such reasonable relation. There are no practical differences between billiards played in a billiard parlor and billiards played in a bowling alley sufficient to warrant a special classification, subjecting only appellant to arrest, fine or imprisonment for allowing minors to play billiards. See Georgia Southern & Florida Railway v. Seven-up Bottling Company, 175 So.2d 39 (Fla.1965). We note that many bona fide bowling establishments also serve alcoholic beverages. There can be no rational basis for permitting a bowling alley containing pool tables and a cocktail lounge to admit minors without complying with the restrictions imposed by Section 849.06, Florida Statutes (1975), while subjecting a neighboring billiard parlor serving no alcoholic beverages to penalty. Assuming, arguendo, that billiard establishments do attract undesirable characters, thereby providing a deleterious atmosphere for minors, these undesirables are just as likely to frequent a bowling alley offering billiards as they are a billiard parlor, particularly where the bowling alley serves alcoholic beverages and the billiard parlor does not.

In Moore v. Thompson, 126 So.2d 543 (Fla.1960), this Court examined the constitutionality of a Sunday closing law which was applicable only to used car dealers. In holding the statute unconstitutional, we stated:

We hold the “valid and substantial reason” [Henderson v. Antonacci, Fla., 62 So.2d 5, 9] yardstick has not been met which would allow the Legislature to make such a law operate only upon this certain class of business, rather than generally upon all. It is our conclusion that Chapter 59-295 Laws of Florida is unconstitutional and invalid.

Id. at 551.

If the legislature, through its police power, seeks to proscribe businesses from operating on Sunday, it must prohibit all businesses from operating on Sunday, unless there is some rational basis for classifying used car dealers differently.

In Mikell v. Henderson, 63 So.2d 508 (Fla.1953), plaintiffs brought a declaratory judgment action, alleging that the business of raising, training, fighting, and selling highly bred gamecocks did not fall within the cruelty to animals statute. Alternatively, they alleged that if their activities were proscribed by the enactment, the law violated their constitutional right to equal protection. The plaintiffs were engaged in pitting gamecocks against one another to determine the stronger birds so that these birds could be selected to propagate the species. While the statute forbade the raising, training, and fighting of gamecocks, it exempted those same activities from the proscription of.the law if the activities were conducted on steamboats or other craft. This Court stated that:

Under these sections of the statute a person engaged in breeding and training game cocks may spend considerable sums of money, as it is alleged was done in this case, for pens and runs for his chickens, but if he permits them to get together in the back yard, or in a pen, or a run, where a fight results, he is guilty of cruelty to animals and is subject to a fine or imprisonment. On the other hand, he may be able to rent or buy a steamboat, or other floating craft, on which to ship his roosters anywhere on the waters of Dade County and not be guilty of cruelty to animals because of any fight which might take place on the steamboat or other craft. There is no difference between the fighting of roosters on a steamboat, or other craft, and the fighting of roosters on land, in the back yard or in the chicken runs. The fighting is the same and the cruelty is the same. Under the statute one is a violation of the law and the other is not.
There is no reasonable basis for the classification of cock fighting on a steamboat, or other craft, and cock fighting on land or in the back yard. The discrimination is unreasonable and arbitrary and denies to the appellant equal protection of the law.
Id. at 509.

Just as there is no difference between the fighting of roosters on a steamboat and the fighting of roosters on land, there is no rational distinction between playing billiards in a billiard parlor or shooting pool in a bowling alley.

Appellee, the State of Florida, suggests that the legislature has reasonably concluded that exposure to gambling is more apt to occur in billiard parlors than in bona fide bowling establishments. Such conclusion is indeterminate at best. This Court will not sustain legislative classifications based on judicial hypothesis, but must ascertain clearly enunciated purposes to justify the continued existence of the legislation. See McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). Furthermore, this espoused intent on the part of the legislature is belied by the fact that under the statute all minors are not prohibited from entering billiard parlors. With written parental consent it is not unlawful to permit a minor to enter and play billiards. Is the legislature any less concerned about minors being exposed to gambling if their parents have consented? Certainly this rationale can not be ascribed to the legislature.

In view of the foregoing conclusions, we hold that Section 849.06, Florida Statutes (1975), is unconstitutional in contravention of Article I, Section 2 of the Florida Constitution and the Fourteenth Amendment to the Constitution of the United States. Accordingly, the order of the trial court is reversed.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND, HATCHETT and KARL, JJ., concur.