author: HARWOOD, Justice: HEFLIN, Chief Justice,

text:
    In re Billy Don CLARK v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 822.
    Supreme Court of Alabama.
    Sept. 12, 1974.
    For opinion of Court of Criminal Appeals on remand, see 56 Ala.App. 67, 318 So.2d 813.

      William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, petitioner.
    William M. Dawson, Jr., Birmingham, for respondent.
   HARWOOD, Justice:

The petitioner, Billy Don Clark, in the matter now before us by virtue of the state’s petition for a writ of certiorari, was originally indicted for murder in the first degree. He entered pleas of not guilty, and not guilty by reason of insanity. Later Clark, accompanied by highly competent counsel, appeared in open court, withdrew his pleas of not guilty, and not guilty by reason of insanity, and entered a plea of guilty of murder in the second degree. Thereafter, he was adjudged guilty of murder in the second degree by the court and sentenced to life imprisonment.

We think it reasonably inferable that this action was the result of plea bargaining, a procedure not to be frowned upon. As observed by Chief Justice Burger in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427:

“ * * * The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”

An appeal was perfected from the judgment thus entered, and the Court of Criminal Appeals reversed the judgment on the grounds that the record did not affirmatively reflect that the trial judge advised Clark as to his privilege against self-incrimination, nor was he advised as to the maximum and minimum sentence that might be imposed upon him by reason of his plea of guilty. See Clark v. State, 48 Ala.App. 108, 262 So.2d 310. Such is the requirement of Boykin v. Alabama, 395 U. S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

On the basis of this finding by the Court of Criminal Appeals, this court properly denied the state’s petition for a writ of certiorari. Clark v. State, Ex parte State, etc., 288 Ala. 736, 262 So.2d 312.

On 24 October 1972, after remandment of the cause to the Circuit Court of Tuscaloosa County, Clark was re-arraigned. He entered a plea of not guilty, and not guilty by reason of insanity. On this same day, counsel for Clark filed a demurrer to the indictment on the ground that the indictment encompassed murder in the first degree and Clark could not be found guilty of an offense greater than murder in the second degree. This demurrer was defective because of the lack of specificity of the ground assigned. Further, autrefois acquit can only be raised by a special plea. Rule 30, Circuit and Inferí- or Court Rules, Title 7, Code of Alabama 1940; Anthony v. State, 49 Ala.App. 462, 273 So.2d 222.

On this same day counsel for Clark filed a motion to strike those allegations in the indictment charging murder in the first degree, asserting that the reversal of Clark’s case on his plea of guilty of murder in the second degree precluded further consideration of murder in the first degree.

While this document is entitled a motion, it appears to be in essence a plea of autre-fois acquit, and we shall so treat it. This motion or plea was overruled by the court.

Thereupon Clark again entered pleas of not guilty, and not guilty by reason of insanity. After a lengthy trial, the court submitted to the jury the charge of murder in the first degree, as well as the lesser offenses included in the indictment. The jury returned a verdict finding Clark guilty of murder in the first degree, and his punishment was again fixed at life imprisonment.

Upon appeal, this second judgment was reversed by the Court of Criminal Appeals on the grounds that the lower court erred in overruling Clark’s plea of autrefois acquit as to murder in the first degree. We granted the state’s petition for a writ of certiorari. • Our conclusion is that the Court of Criminal Appeals erred in reversing the second judgment.

In the course of its opinion, 56 Ala.App. 63, 318 So.2d 801, the Court of Criminal Appeals writes:

“ * * * A review of the Alabama authorities leads us to the conclusion that such former conviction [of murder in the second degree] (here on a guilty plea) properly plead constitutes an acquittal of the charge of first degree murder. This is the settled law in Alabama.”

The court cites some fifteen cases in support of the above statement. We have examined each and every one of the cases cited. Lewis v. State, 51 Ala. 1, and Ison v. State, 252 Ala. 25, 39 So.2d 249, among the above cited cases, do not, as we read them, in any wise support the statement.

The principle enunciated in the remaining citations is to the effect that when one is tried under an indictment charging murder in the first degree, and is found guilty of a lesser included homicide, such finding is an acquittal of murder in the first degree, and such acquittal may be pleaded as a bar to the higher charge of murder in the first degree in the event of a second trial on the indictment, if the defendant so desires. Such principle, however, presupposes a prior trial and acquittal of the higher offense. Thus, having been acquitted after a trial and full evidential hearing of the greater offense of murder in the first degree, he cannot, over proper plea, be again tried for the same offense. Otherwise the provisions of Article 1, Section 9 of our Constitution of 1901 prohibiting double jeopardy would be violated, as well as the Fifth Amendment to the Constitution of the United States, which is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.

In a full evidentiary adversary hearing, a concomitant of every trial, the jury, or the judge, is presented with facts upon which a determination of the degree of a crime may be made. If the trier of fact determines that the evidence supports a finding of guilty of only a lesser included crime than the one charged, then it should be, and is, presumed that the accused is thereby acquitted of the higher offense.

Should this presumption be indulged where the judgment of guilt is based on a plea of guilty ?

In a plea of guilty proceedings the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea. Further, the judge should be satisfied that there is a factual basis for the plea. See Fed.Rule Crim.Proc., Rule 11; ABA Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Secs. 1.3-1.8, at 22-36.

In such proceedings a trier of fact does not seek to determine if the accused’s actions would justify a conviction on the full charge contained in an indictment, but only if such action satisfies the degree of guilt admitted by the plea.

As stated in Woodard v. State, 42 Ala.App. 552, 171 So.2d 462:

“A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need be advanced, except as expressly provided by statute (e. g., T. 15, § 277). It supplies both evidence and verdict, ending controversy. Wigmore, Evidence (3d Ed.), §§ 1064, 2588; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302.”

In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, the Supreme Court of the United States wrote:

“A defendant who enters such a plea [of guilty] simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.” (Emphasis ours.)

To the same effect see Howard v. State, 280 Ala. 430, 194 So.2d 834.

It would seem to be a necessary corollary that a judgment entered on a void plea of guilty is itself void.

We have found no cases from the United States Supreme Court directly in point on the question now being considered, though strong inferences can be drawn from at least one of the cases from that court. This case will be commented on 'later.

There seems to be a split of authority between the 10th and the Second Federal Circuit Courts on the one hand, and the 6th Federal Circuit Court on the other hand, as to whether a judgment on a plea of guilty to a lesser included offense constitutes jeopardy as to the greater offense after reversal of the judgment entered on the plea of guilty to the lesser.offense.

In Mullreed v. Kropp, Warden, 425 F.2d 1095 (6 Cir.1970), it appears that Mullreed and a companion Passow were in a bar together. One or the other struck the bar attendant with a chair and Mullreed took $40.00 from the cash register. Both men were later arrested and charged with armed robbery and also with unarmed robbery. Both agreed to, and did, plead guilty to the lesser charged offense of unarmed robbery. However, according to the statement of facts in Mullreed, Passow withdrew his agreement to plead guilty, obtained counsel and was taken before a different judge and was sentenced to sixty days in prison.

Mullreed stuck by his plea of guilty and was sentenced by the judge before whom the plea had originally been entered, to ten to fifteen years in the state prison. Mull-reed appealed and the judgment was reversed on the grounds that Mullreed had been denied the assistance of counsel. On his second trial Mullreed was arraigned and tried on the armed robbery charge, found guilty, and sentenced to prison for a term of fifteen to thirty years.

Exhausting his state remedies, Mull-reed brought habeas corpus in the federal district court. Relief was denied. Mull-reed appealed to the United States Court of Appeals, Sixth Circuit. That court reversed, observing, among other things:

“We think the conviction and sentence [on the unarmed robbery charge] necessarily show that the trial court found an evidentiary concurrence of the elements required for the conviction, otherwise the conviction on the guilty plea would not have been lawful.”

This conclusionary statement overlooks the fact that the court’s determination must have been based on the petitioner’s own assertions to the court. The court further, in conclusionary fashion, wrote:

“Further, the treating of the first proceeding as a nullity is a legal fiction.”

In 1971, the United States Supreme Court handed down its decision in Santobello v. New York, supra. The facts were that after negotiations between the prosecutor and the accused, the accused withdrew his previous not guilty plea and pleaded guilty to a lesser included offense, upon the prosecutor agreeing to make no recommendations as to sentence. At the accused’s appearance for sentencing many months later, a new and different prosecutor recommended the maximum sentence, which the judge imposed. The Supreme Court of the State of New York affirmed the judgment, and the accused was denied leave to appeal to the New York Court of Appeals.

Certiorari was granted by the United States Supreme Court to review these proceedings. That court remanded the case to the state courts for further consideration, stating:

“Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration.”

Footnote 2 to the opinion is, we think, highly significant. It reads:

“2. If the state court decides to allow withdrawal of the plea, the petitioner will, of course, plead anew to the original charge on two felony counts.” (Emphasis ours.)

In 1973 in Rivers v. Lucas, 477 F.2d 199, the Sixth Circuit Court of Appeals was again confronted with the same point considered in Mullreed v. Kropp, supra. It was urged that Santobello v. New York, supra, had overruled the decision in Mullreed. The court rejected this contention and reaffirmed ites position taken in Mull-reed, stating:

“We affirm that there is implicit in a court’s acceptance of a plea to an included lesser offense a determination that the right to prosecute the defendant on the more serious offense with which he is charged has been relinquished. The effect of the entire transaction for double jeopardy purposes, is the equivalent of a jury’s refusal to convict on the more serious charge. Only if this is true may a defendant seek review of his conviction without being faced with the ‘incredible dilemma’ of choosing between a legal right of appeal and the possibility that success will revive the hazard of conviction of a charge which the prosecution had willingly abandoned in exchange for his plea. Mullreed v. Kropp, supra, [425 F.2d] at 1102. The continuation principle of jeopardy makes it possible for appellee Rivers to be tried again for the same offense of which he was convicted by his guilty plea (manslaughter), but his successful appeal did not open the way for him to be once again subjected to the risk of a prosecution for murder.” As to the effect of Santobello, the court wrote:
“ * * * In stating that the defendant would plead anew to the original charge on two counts if the trial court should permit him to withdraw his original guilty plea, the Court did not say or even intimate, that he could not plead the constitutional prohibition against double jeopardy as a bar to prosecution on the more serious of the two counts. The language of the Supreme Court places no limitation on the nature of the plea which a defendant in such a situation may interpose.”

To the writer this construction of the clear meaning of Footnote 2 in Santobello is indeed tortured. In stating in the footnote that: “If the state court decides to allow the withdrawal of the plea, the petitioner will, of course, plead anew to the original charge on two felony counts,” the Supreme Court was saying that it did not consider that jeopardy had attached where a plea of guilty to a lesser included offense was set aside at an appellant’s behest, either by withdrawal of the plea by the accused, or by reversal of a judgment based upon such plea, and it should not be considered that jeopardy had attached as to the higher degree offense with which the accused had been charged because of his plea of guilty to the lesser offense.

It is interesting to note that in its opinion in Rivers v. Lucas, supra, the court states that while the Supreme Court of Michigan has not ruled on the question considered in Mullreed v. Kropp, the Court of Appeals of Michigan has consistently refused to follow the doctrine therein announced. In a footnote, the court quoted the following from People v. Harper, 32 Mich.App. 73, 188 N.W.2d 254:

* * * We hereby express total disagreement with the Mullreed opinion. It ignores the importance of the plea milieu. Compare, Ward v. Page, supra. We agree, rather, with every contention raised on behalf of the State of Michigan in Mullreed and think the Sixth Circuit’s opinion should not and need not be followed in Michigan. * * *”

We are in accord with the views of the Court of Appeals of Michigan, and further observe that the effort to distinguish San-tobello by the interpretation placed on Footnote 2 to Santobello in Rivers v. Lucas, serves only to further drain the persuasiveness of the views expressed in the opinions of the Sixth Circuit above referred to.

On the other hand, the United States Courts of Appeal in the Second and Tenth Circuits have reached conclusions contrary to those of the Sixth Circuit.

In Ward v. Page (Tenth Circuit), 424 F.2d 491, the defendant Ward had been indicted for murder in the first degree. A jury trial was entered upon, but before submission of the case to the jury, Ward entered a plea of guilty to the lesser included offense of manslaughter in the first degree, and a sentence of forty years imprisonment was imposed. This judgment was eventually reversed. The State of Oklahoma then retried Ward on the original charge of murder in the first degree. In this second trial, Ward was found guilty of murder in the first degree and sentenced to life imprisonment. On appeal, the Oklahoma Court of Criminal Appeals held that the state was estopped to try Ward on the murder charge, but rather than reverse, the Court of Criminal Appeals reduced the sentence to forty years.

Ward then brought habeas corpus in the appropriate federal district court, which court denied relief. He appealed this judgment, urging that he had been placed in jeopardy as to all degrees of murder greater than manslaughter in the first degree.

In affirming the district court, the Court of Appeals for the Tenth Circuit wrote:

“It is true that a guilty plea is as final as a jury verdict but the double jeopardy implications reverberating from a guilty plea and a jury verdict are not identical. * * * But we have found no cases, and appellant alludes to no authority, which suggests that a guilty plea to a lesser offense operates as an acquittal on all greater offenses. * * * ”

In United States ex rel. Williams v. McMann, Warden, etc., 2 Cir., 436 F.2d 103, Williams had been indicted for selling heroin. In a plea bargaining undertaking Williams agreed to, and did, plead guilty to a lesser included offense of “attempted sale of narcotics, and, as per the agreement with the prosecutor, was sentenced to 3 to 7 years imprisonment.”

Within a few days, however, the state discovered that Williams had a record of prior convictions dating back to 1949. He was thereupon returned to the court for sentencing as a recidivist and as such he was subject to a sentence of 3 3/4 to IS years. Williams sought permission, and was allowed, to withdraw his plea of guilty, and this request was granted. He was then tried and convicted on the original charge. At sentencing the trial court treated Williams as a first offender and imposed a sentence of from five to ten years. After exhausting his state remedies in an attempt to have the larger sentence set aside, Williams brought habeas corpus in the federal district court. Relief was denied and he perfected an appeal to the United States Court of Appeals for the Tenth Circuit. In affirming the judgment of the district court, the Tenth Circuit Court of Appeals wrote:

“Williams concedes that the original reduction from sale to attempted sale was the result of an express agreement with the prosecutor given in consideration of his plea of guilty. When Williams was successful in revoking his part of the bargain by having his plea of guilty set aside, it is hardly surprising, and scarcely suggestive of vindictiveness, that the district attorney in turn withdrew his consent to the reduced charge.
* # Up ifc % *
“ * * * For us to hold that one in Williams’s position may not be tried and sentenced upon the charge originally brought would encourage gamesmanship of a most offensive nature. * * * Indeed, any reason the defendant could conceive for setting aside his plea and sentence would lose him little. If the defendant’s argument were to prevail, then a trial on the lesser charge only could result. The defendant would thus run no risks by this maneuver for his trial could end in acquittal, but if he should be convicted, he urges he could not receive a sentence greater than that imposed on the guilty plea to the lesser offense. This is nothing more than a ‘heads-I-win-tails-you-lose’ gamble. To frustrate this strategy, prosecutors would be restrained from entering plea bargains, thereby adding further to the staggering burdens of our criminal courts, and judges would become more rigid in exercising their discretion in favor of permitting withdrawal of a guilty plea. This would hardly enhance the administration of criminal justice.”

Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, cited and relied on by the Court of Criminal Appeals involved a situation where a defendant, under indictment for murder in the first degree, entered a plea of guilty to murder in the second degree upon an understanding with the prosecuting attorney that he would be sentenced to ten years imprisonment. The court, however, imposed a sentence of twenty-five years imprisonment. For this reason the judgment was reversed by the Missouri Appellate Court. Upon his retrial, the defendant refused to withdraw his plea of guilty, and stood mute. The trial court entered a plea of not guilty for him to the indictment for murder in the first degree. He was found guilty and sentenced to be hung.

Defendant was granted a writ of error by the Supreme Court of the United States. That Court reversed, though the main basis of reversal was a finding by the Supreme Court of the United States that an amendment to the Missouri Constitution providing that on reversal of a judgment a defendant should be tried upon the original charge even though found guilty of a lesser included offense, was given an ex post facto operation as applied by the Missouri court.

In the present case, Clark did not seek to rely on his prior plea of guilty of murder in the second degree, but instead interposed pleas of not guilty, and not guilty by reason of insanity when arraigned on his second trial. This factual distinction nullifies any attempted application of Kring to the present case.

The Court of Criminal Appeals has also replied upon, and quoted extensively from, the case of Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539. A reading of this case shows, however, that a defendant had entered a plea of guilty to an information charging that defendant had robbed Alma E. Price. The plea was accepted. On a pre-sentence hearing, no evidence was produced tending to show that the defendant had robbed Price. The court thereupon dismissed the information and ordered defendant’s release. Thereafter, the prosecutor filed a second information charging the defendant with the identical information as contained in the first information except that the victim of the robbery was named as Ben Cohen. The defendant filed a motion for dismissal of the second information alleging he had already been put in jeopardy and discharged and could not again be placed in jeopardy for the same offense. The trial court denied this motion, and the defendant then petitioned the Supreme Court of Colorado for a writ of prohibition to prohibit the trial court from proceeding with the trial. The Supreme Court of Colorado granted the relief prayed for by the defendant.

It must be noted that this factual situation involved a second and different information from that to which the defendant had originally pleaded.

In its opinion the Supreme Court of Colorado relied upon State v. Blackwell, 65 Nev. 405, 198 P.2d 280, wherein it was stated:

“It would seem, however, that the rule that a plea of guilty constitutes jeopardy has its proper application and force only as against a new charge for the same crime, and not to a continuing proceeding on the one, original charge.” (Emphasis ours.) .

The present case, of course, involved a continuing proceeding on the original indictment.

On the basis of our discussion above, we hold that the Court of Criminal Appeals erred in adjudging that the Circuit Court of Tuscaloosa County was in error in denying the plea of autrefois acquit filed by the defendant Clark in the trial below.

We note that the Court of Criminal Appeals limited its reversal of the judgment of the trial court solely to the jeopardy question, and pretermitted consideration of other points.

Accordingly we reverse the judgment of the Court of Criminal Appeals as to the basis of its reversal, and remand the cause to that court for consideration of such other points as it may deem appropriate.

Reversed and remanded.

MERRILL, COLEMAN, BLOOD-WORTH, MADDOX, McCALL, FAULKNER, and JONES, JJ., concur.

HEFLIN, C. J., dissents.

HEFLIN, Chief Justice,

(dissenting):

I would affirm the opinion and judgment of the Court of Criminal Appeals.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Billy Don CLARK v. STATE.
    6 Div. 494.
    Court of Criminal Appeals of Alabama.
    Nov. 12, 1974.
    Rehearing Denied Dec. 17, 1974.

      William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., • for the State.
   TYSON, Judge.

We now review this entire record as is our duty under the law.

State Toxicologist Robert B. Johnson testified that he examined the body of Donald Richard Gwin on September 15, 1969, at the Strickland-Hayes Funeral Home in Tuscaloosa at the request of the coroner, Mr. Rufus Strickland. His testimony as to the cause of death is as follows :

“In my opinion, the subject died from multiple gunshot wounds to the right side of the head, damaged the vital areas of the brain resulting in a fatal hemorrhage.”

Mr. Johnson further testified that he recovered six .22 long rifle bullets from the body of the deceased.

Carl Birchfield testified that the deceased, Donald Richard Gwin, and the appellant came by his store at about 3 :00 on the afternoon of Saturday, September 13, 1969, bought some groceries and cigarettes, and stated they were going to the home of the deceased.

Charles Kenneth Gilbert testified that he had gone by the home of the deceased with one Randall Shattuck shortly after 12:00 noon on Saturday, September 13, 1969, and that the appellant was at the home of the deceased. He stated he did not see the deceased alive again. On cross-examination, he testified that the two men had been drinking beer, that there were some bottles in the house.

Randall Shattuck testified that he was the half brother of the deceased, that he had gone by the home of the deceased on Saturday, September 13, 1969, on the first occasion, about 8:00 in the morning, that later he returned with a friend, Kenneth Gilbert, at about noontime, that they stayed approximately thirty minutes, and that the appellant told them on this occasion he had been picked up for hitchhiking in Mississippi and had to pay a fine. He stated that the deceased told him he had met the appellant near Birmingham at a service station after he had gotten off work on Friday, and that the two men had been drinking beer. He stated that the deceased owned a 1967 Dodge Dart Convertible. He stated that on Friday evening, he, the appellant, and the deceased had been out drinking beer and whiskey at several night clubs in the area between Birmingham and Tuscaloosa. He stated that his half brother worked at the construction site at the new Mall near Bessemer, and that he had been paid $150.00 on Friday as he got off work. He further testified that when he came back on the second occasion on Saturday, the two men had been shooting- a .22 caliber pistol, which belonged to the deceased, and the deceased also owned a SO-SO Winchester rifle.

The State next called Deputy Sheriff Walter A. Howell, Jr., who testified that he and Chief Deputy Warren Miller had gone to the residence of the deceased on September 15, 1969, arriving there about 11:00 in the morning. He stated the house was locked from the outside with a padlock. Upon entering the house through a window, they found the body of the deceased lying on the bed, clothed in his underwear. He stated that the Winchester rifle was on the top of the bed by the body, and that under the mattress he found a .22 caliber pistol. He stated that the 1967 Dodge Dart automobile was missing, and that four days later he was notified that this automobile had been found in LaFayette, Louisiana, by the Sheriff’s Department there.

Officer Howell described the interior of the house as follows:

“Q. Officer Howell, if you will, would you describe — you testified about finding the alleged victim in the bed. Would you describe the area around the bed, the floor and whatnot, the condition of the bed when you found it that morning ?
“A. The victim was laying in the bed with the covers pulled up about his chest and, of course, the bed itself was soaked with blood. There was enough blood it had come through the mattresses and had run out on the floor and as I stated before, the room was, the furniture was arranged. There wasn’t any sign of any struggle.
“Q. O.k., and State’s exhibit 2 which you have already testified to, when you found the pistol there the morning of the 15th of September, that you have spoken about, did you examine the gun at that time?
“A. Yes, sir.
“Q. And would you tell us what, if anything, you found in the chamber of the gun?
“A. There were six empty 22 shells in the chamber.
“Q. And do you know where those shells are today, the empty cartridges ?
“A. No, sir, I don’t.
“Q. But you say at the time you found it, there were six empty cartridge shell cases?
“A. Yes, sir.
“Q. That had been fired ?
“A. Yes, sir.
“Q. And did you find any other cartridges or casings there in the house ?
“A. Yes, sir, I found six fired 22 hulls in a coal scuttle at the left of the fireplace.”

Officer Howell further testified that he was subsequently notified that the appellant had turned himself in to the Stockton, California, police, and upon going to Sacramento, California, he was allowed to interrogate the appellant at the County Jail in Sacramento, California, at about 11:00 in the morning, in the presence of himself and one other officer, but before talking to the appellant, the following Miranda warning was administered:

“Your rights. Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Waiver of rights. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. Signed— Billy Don Clark.”

The appellant’s statement taken at this time is as follows:

“Sacramento, California County Jail
10-8-69
11:10 a. m.
“Statement from Billy Don Clark, white male, address — County Jail, Sacramento, California. Date of birth, 5-24-40. After advising the suspect of his rights, he agreed to give a statement free and voluntary. The statement is as follows:
“I had an argument with my wife. We were living in Fort Smith, Arkansas. I was working for the Trinity Baptist Church in Fort Smith. After this argument, I decided to leave. I went to the bus station and bought a ticket for Birmingham, Alabama. I thought I would go to Birmingham because it was in the South and maybe the people would be friendly. I was going to try to get a job. I arrived in Birmingham about 10 or 11 p. m., Friday, September 12. I was just walking around and I saw the Bluebird Cafe open and decided to get a cup of coffee. I went inside and ordered a cup of coffee. After I got inside, I saw everybody was drunk, so I drank my coffee and hurried out. I walked on up the road across an overpass and went into a Shell Service Station. While I was at this service station, I met Don Gwin. His half brother was in the car passed out. They said they had been out drinking. Don Gwin invited me to go home with him to spend the night. When we got to Don’s house, Don, his half brother and I went in the house and went to bed. Don slept on the bed by the door in the front room. I slept on the bed next to his and his half brother slept on the bed in the back room. We all got up about noon Saturday, September 13, 1969. After we got up, his half brother said he had to go home, so he left. Don had some guns and showed them to me and asked me if I wanted to shoot them. I told him I didn’t know much about guns. I shot the 22 once or twice and missed what I was shooting at. He took the gun and shot it some. While we were out in front of the house shooting, Don’s half brother came back over with a friend. We talked about fifteen minutes and they left. They said they had to go to a party. Don took the 22 pistol and a 30-30 rifle back into the house and put them up. I stayed on the porch while he went inside. He came back out and we tried to fix the lawn mower so we could mow the lawn. We couldn’t get it fixed. By this time, I had ran out of cigarettes and Don said ‘let’s go to the store and get some.’ We went to this country store in a little old town. I don’t remember the name of the town. We bought a carton of Winston’s, a carton of Camel’s, a chicken, some soup and he bought some gasoline. We went back over to Don’s house and got ready and went to town. After we left Don’s house, he looking [Sic] for two men who lived way out in the country. Don said these men owed him some money. We looked for them about an hour, but couldn’t find them and we drove on to Tuscaloosa. We stopped at a big Pure Truck Stop outside Tuscaloosa near the Interstate. Don was talking to a waitress at the truck stop. He said he had a date with her for Wednesday night. I also heard him talking to her about some pills. I went outside and got into the car and Don came later and we left. We went on down the freeway toward Tuscaloosa and met a car going in the opposite direction. They waved at Don and he turned around and tried to catch them. We did not catch them. In the process of his turning around, a bottle of whiskey slid from underneath the seat. The bottle hit my foot and I picked it up and started to hand it to him. He said they had the whiskey the night before and he did not think about it. He said ‘open it and we will have a drink.’ We drank the whiskey before we got to town. The brand of whiskey, as I recall, was Southern Comfort. We went over to the college to an apartment Don had worked on. He said he wanted to see a boy named ‘Speedy.’ I don’t know the name of the apartments. Don said he wanted to get some more marijuana. Don had one stick of marijuana ánd we had already smoked this. We didn’t find ‘Speedy’ at the apartments, so we drove on to a bar about fifteen blocks away. I don’t remember the name of the bar. ‘Speedy’ wasn’t there and Don got kind of mad and squealed the tires coming away from the bar. We went on down to another bar. I didn’t know the name, but there was a high curb in front. We went inside, and started drinking beer. We stayed here about an hour. While we were there, I was talking to a girl who worked there. We drank about six beers apiece. We left this bar and Don knew this nightclub where you had to pay $1.00 each to get in. We went inside and listened to the band and I talked to some member of the band. We didn’t stay long at the nightclub. We went back to the same bar we just left from and stayed there until they closed. We left there and went to a truck stop. The truck stop was located about twelve blocks past a bunch of railroad tracks pn the right. We went inside, the truck stop and ate. While we were at the truck stop, I was talking to some colored guys about a place to party. He said he knew just the place and directed us to the ‘6T Club. Before we left the truck stop, Don handed me four or five pills. He said they were diet pills and they would keep you from having a hangover. He also told me that they wouldn’t hurt me, so I took them. We went on to the ‘61’ Club and looked it over and decided not to stay. After we left the ‘61’ Club, we decided to go to Don’s house. On the way to the house, things began to get fuzzy. I remember the curves in the road and Don driving fast. He was saying how cool it was and that his car would really talk to the curves. He began pinching me on the leg. It didn’t hurt, so I didn’t think too much about it. It was like I was in a daze. When we arrived at Don’s house, he went inside. I was having trouble getting out of the car, but I finally made it in the house. I we.nt on through the bedroom to the bathroom and vomited. I came back into the front bedroom. Don had some bologna sandwiches and cokes and wanted me to eat some. He told me ‘daddy’s is going to feed you,’ and tried to make me eat. All of a sudden, the gun appeared in my hand and blood was on Don’s head. He was making a gurgling noise and I knew he was dead. I then covered him up, I thought if I covered him up, he would be alright and wouldn’t get cold. I put the pistol under the bed. I thought if I put it there, it couldn’t hurt anyone. I got the car keys from Don’s pants pocket. I went outside and locked the door and left. It had to be about 3 or 4 o’clcok in the morning. It was still dark outside. I drove the car to La-Fayette, Louisiana, and I had a hitchhiker, but I don’t know where I picked him up. The car was almost out of gas, so I parked it in front of a dormitory. I then went over to the Salvation Army to go to church. I just had to go to church. After I went to church, I went to bed about 8 o’clock. I left about 6:30 or 7 o’clock the next morning. This old man went with me because I didn’t want to travel alone. We went to Lake Charles, Louisiana, and he wanted to stay at the Salvation Army. I registered, but decided not to stay, so I went on. I left Lake Charles about 9 p. m. headed for Houston. I got to Houston about 8 or 9 the next morning. I walked almost all the way around Houston, then a man gave me a ride to a small town. There I got a ride with a fellow who was going to Los Angeles. I arrived in Los Angeles Wednesday about noon. I decided to go to Northern California. I got a job picking peaches. I decided to go to Bakersville and got a job with Richland Land Company. I worked for six days and decided to go back to Alabama and give myself up. I got as far as Dallas and I began to think about being electrocuted. I came back to California. I decided to go to Stockton and confess to the crime I had committed in Alabama. I waved a patrol car down and told them what I had done, so they took me to the jail. I have read the above statement. It is correct to the best of my knowledge. Signed — Billy Don Clark.”

The State also presented the testimony of Special F.B.I. Agent Stewart A. Morley, who testified that he interviewed the appellant on October 6, 1969, at the San Joachim County Jail at French Camp, California, pertaining to a Dyer Act’ violation, but prior to interrogating the appellant, he, too, had given the appellant a Miranda type warning, which the appellant then signed, indicating that he had been advised of his rights. Following this, the appellant gave a statement in the presence of this officer and Agent Warren Little, which is substantially the same as that subsequently given the two State deputy sheriffs, with the following addition:

“ . . . Shortly after arriving at the cabin, I remember going to the bathroom where I threw up and came back to the living room of the cabin. The next thing I remember was me standing in the living room with the 22 revolver in my hand and Don lying on one of the beds with blood gushing from his head. I recall seeing blood spots on the wall. I recall Don making gurgling sounds, so I covered him up with a purple bedspread and put the revolver under the bed covers of the other bed. I recall leaving the cabin and locking the front door. I remember getting in Don’s car and turning on the lights and starting it up. The next thing I remember is that I was driving Don’s car on a Louisiana Highway about five miles from LaFayette, Louisiana. T had picked up a young white man as a hitchhiker who I let out in LaFayette. I parked the car in front of a building that looked like a dormitory, and left the keys in the ignition. I arrived in LaFayette about 6 p. m., and attended a Salvation Army service that Sunday Evening. I do not know why I shot Don because I did not have any reason to kill him. I am very sorry about the whole thing. I have read this statement consisting of this and three other pages. I have initialed any corrections appearing thereon. This statement is true and correct. Signed — Billy Don Clark. Witnessed: Stewart A. Morley, Special Agent, FBI, Sacramento, October 6, 1969, Warren L. Little, Special Agent, FBI, Sacramento, October 6, 1969.”

At the close of the State’s evidence, the appellant moved to exclude same, which was overruled.

Defense Witness John David Suits testified he had known the deceased at Draper Prison, that he had spent two nights with him at Tuscaloosa, and knew that the deceased used drugs and drank a lot.

The appellant then took the stand in his own behalf, testified that he was thirty-two years of age, that he was born in Paul’s Valley, Oklahoma, and grew up in Oklahoma, going through the eleventh grade in school, that he had served in the United States Navy, and that he had been married and divorced. He stated that he left Fort Smith, Arkansas, after divorcing his wife and went to Canada, then to Spokane, Washington, and following this, hitchhiked and drove trucks from Bakersfield, California, to Oklahoma City, Oklahoma, from there to Memphis, Little Rock to Nashville and Bristol, Virginia. He stated that he left Bristol, Virginia, headed for Chattanooga and Birmingham, and had planned to go to New Orleans to work on an offshore oil rig. He stated he arrived in Birmingham on September 12, 1969, and that some man with whom he got a ride dropped him near the Blue Bird Cafe. He stated that he then went over to Jack’s Shell Service Station, where he met the deceased, Donald Richard Gwin. He stated that the deceased and his half brother, Randall Shattuck, were getting some gasoline and offered him a ride. ■ From that point on, the appellant’s testimony is substantially the same as that herein set forth, with the addition of the following response under questioning:

“Q. Do you remember shooting Donald Gwin?
“A. No, I don’t.
“Q. If you did.
“A. I could have done it. I was there, I guess, when it happened, but I don’t remember shooting him.
“Q. Do you know if anybody else was at that cabin at that time ?
“A. No, I don’t.”

The appellant offered to present the testimony of Martin Webber, the Chaplain at Atmore Prison Farm, as to his reputation for truth and veracity, which offer of proof was ruled inadmissible.

I.

Appellant asserts that the trial court committed reversible error by not providing the appellant, an indigent, the assistance of medical experts to offer testimony in support of his plea of not guilty by reason of insanity.

From the record:

“MR. DAWSON: This motion I filed this morning for employment of medical experts.
“THE COURT: I have read and considered the same. I know of no funds that would be available. Dr. Fowler has a clinic out here as a psychiatrist. We have some psychiatrists in town, but I don’t know how they can be employed.
“MR. HARRIS: There is Dr. Sharman and then they have that University thing out there. Mr. Thompson uses them quite often, psychologists.
“THE COURT: You propose to show by this testimony the defendant was— without admitting he committed the act, if he did commit the act, that he was in such a state of intoxication or under the influence of drugs to such capacity to know right from wrong ?
“MR. DAWSON: Yes, sir.
“THE COURT: Mr. D. A., do you know of any funds available ?
“MR. HARRIS: No, sir, I don’t. In the seven years I have been here and I don’t know when we have ever hired one. I know the sheriff has worked with the lawyers on this thing out at the University. That might be something he can look into.
“THE COURT: I would recommend you contact the psychological clinic at the University. They probably operate with Federal funds.
“MR. DAWSON: I will attempt to see if I can work something out there, but if not, may I have leave to approach the court in the next week or so ?
“THE COURT: Yes, sir. I will have to state now as far as my ordering any financial aid, I don’t have any control of any funds that I know of. I can’t just ask the psychiatrist to do it without any remuneration.
“MR. HARRIS: The only other thing I would know is to file under the appropriate section and have the defendant sent to Bryce Hospital for evaluation and whatnot.
“THE COURT: As I understand, you didn’t want to have him committed to Bryce?
“MR. DAWSON: No, sir.
“THE COURT: Well, let’s see, I better show this motion taken under advisement, gentlemen, and you can contact the people at the psychological clinic at the University of Alabama. They have been very cooperative and we will ask the sheriff to make Billy Don available for private interviews with these people and I am sure he will. If by trial time, it depends on paying someone to do those interviews, I will just have to write it up as overruled unless the University Clinic will do it as you yourself are doing, donating your services, you might say. Alright, next item.”

As may be seen, the trial court offered the appellant the assistance of such psychiatrists as might be available at the University of Alabama Clinic in Tuscaloosa, and, in fact, the appellant was taken there and examined by the medical assistants, but he was unable to obtain the testimony of a trained psychiatrist. Moreover, the trial court offered to have the appellant committed to Bryce Hospital for examination under the provisions of Title 15, Section 425 et seq., Code of Alabama 1940. This was refused by appellant’s counsel.

It is, therefore, clear that the trial judge exhausted all available sources to assist the appellant in presenting evidence in support of this plea.

This Court has carefully examined the opinion of the United States Fifth Circuit in Brinks v. Alabama, 465 F.2d 446, and is not aware that this opinion requires the State to furnish an indigent with expert psychological assistance merely upon a motion by counsel. Here, as distinguished from Brinks, no evidence was offered in the trial court by way of letters or testimony on preliminary inquiry by the trial judge to support appellant’s contention. Moreover, the trial court here was most solicitous of appellant’s position and offered such means as were available. Under these circumstances we are clear to the conclusion that there was no denial of due process or equal protection of law under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, in the case at bar.

II.

During the qualification of the jury, the following occurred:

“MR. DAWSON: One of the defenses in this case is that Billy Don Clark would be not guilty by reason of insanity. Do any of you believe it would be necessary to bring medical testimony or a medical doctor or an expert in order to prove that fact, the fact of insanity?
“MR. LACKEY: Judge, I think that might be a point later calling for legal instructions.
“THE COURT: I think we are getting a little far afield here, Mr. Dawson. I don’t want to get into any issue that might come up on voir dire examination. I want to give you plenty of latitude, but if we get into this, I am afraid we would get bogged down on collateral issues as far as voir dire is concerned.
“MR. DAWSON: Except. That is all.”

Title 30, Section 52, Code of Alabama 1940, is as follows:

“Examination of jurors. — In civil and criminal cases, either party shall have the right to examine jurors ac +o their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.”

In Smith v. State, 36 Ala.App. 624, 61 So.2d 698, reversed on other grounds 258 Ala. 86, 61 So.2d 707, we find:

“The purpose of the privilege is to afford information to the parties relating to the qualifications of the jurors, so that the right of peremptory challenge may be exercised advisedly. It is not contemplated that the right should extend to questions concerning matters which involve intricate legal principles. Primarily the inquiry should relate to information which has to do with the interest or bias of the jurors. J. B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805.”

Not only does the testimony of medical experts involve intricate legal problems, but additionally such testimony is not binding upon the trial jury. George v. State, 240 Ala. 632, 200 So. 602; Hockenberry v. State, 246 Ala. 369, 20 So.2d 533.

Clearly, therefore, the trial court properly refused to allow appellant’s counsel to examine the jurors on the grounds indicated.

III.

The appellant seeks to assert as error the fact that when the F.B.I. agents interrogated him in California pertaining to a possible Dyer Act violation, he was not specifically advised that he was also wanted in connection with the homicide in question.

We have carefully examined the predicate laid in the instant case and find that such fully comports with Miranda v. Arizona, 384 U.S. 436, 83 S.Ct. 1602, 16 L.Ed. 2d 694, and, in addition, we find that its pre-Mirandai predicate was also properly laid.

Moreover, where, as here, appellant takes the stand in his own defense and gives testimony substantially the same as the language of the confession here placed in evidence, any such asserted defect may not work a reversal. Boulden v. State, 278 Ala. 437, 179 So.2d 20; Chandler v. State, 283 Ala. 29, 214 So.2d 306; Jones v. State, 50 Ala.App. 36, 276 So.2d 621.

IV.

Appellant asserts as error the refusal of the trial court to allow him to present the testimony of Chaplain Martin Webber as to his reputation of truth and veracity in the community in which he lived.

The trial court correctly refused to allow such testimony to be admitted, because the appellant’s credibility had not been impeached. Lassiter v. State, 35 Ala.App. 323, 47 So.2d 230, cert. den., 254 Ala. 5, 47 So.2d 233. Moreover, the appellant was here seeking to bolster his own testimony by proof of such good general reputation. Funderberg v. State, 100 Ala. 36, 14 So. 877, McElroy, Law of Evidence in Alabama, Vol. 1, § 176.01(2).

V.

Finally, appellant asserts that evidence should have been allowed by the trial court “which would have reflected on the motive which others might have had for committing the criminal act.” The appellant cites us to no authorities in support of this contention.

In the case at bar, there was no evidence presented which tended to show which third party, or parties, may have had some connection with the offense in question. Moreover, there was absolutely no evidence offered which tended to connect a third person, or persons, with the crime in question. Clearly, therefore, the trial court’s ruling is correct. Tatum v. State, 131 Ala. 32, 31 So. 369; Walker v. State, 139 Ala. 56, 35 So. 1011.

We have carefully examined this record, as required by Title 15, Section 389, Code of Alabama 1940, and find no error therein. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.

On Rehearing

Appellant asserts in brief that, since the provisions of Title 45, Section 226, Code of Alabama 1940, exempt physicians from having to honor a subpoena under certain conditions, under the provisions of Title 15, Section 425 et seq., Code of Alabama 1940, indigent appellants have no “effective means to procure the testimony of medical experts as would be available” to appellants financially able to pay such experts.

This argument overlooks the opinions of this Court in Sheppard v. State, 49 Ala.App. 398, 272 So.2d 605, and Rich v. State, 51 Ala.App. 556, 287 So.2d 873, which answer this question.

Opinion extended, application overruled.

All the Judges concur.

CATES, P. J., concurs in result only.


author: HEFLIN, Chief Justice.

text:
    In re Billy Don CLARK v. STATE. Ex parte Billy Don Clark.
    SC 1114.
    Supreme Court of Alabama.
    Aug. 28, 1975.

      William M. Dawson, Jr., Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee-respondent.
   HEFLIN, Chief Justice.

Petitioner was originally indicted for first degree murder, and was convicted of second-degree murder after he pleaded guilty to that lesser offense. But that conviction was reversed, Clark v. State, 48 Ala.App. 108, 262 So.2d 310 (1972), for the trial judge’s failure to advise defendant of his privilege against self-incrimination and of the maximum and minimum sentences that might be imposed upon him by reason of his plea of guilty.

On being re-arraigned he entered a plea of not guilty and not guilty by reason of insanity. He was convicted of first degree murder this time. The Court of Criminal Appeals reversed on grounds of double jeopardy, but, on the state’s petition for certiorari, this court reversed the Court of Criminal Appeals, State v. Clark, 294 Ala. 485, 318 So.2d 805 (1974). Upon remandment to the Court of Criminal Appeals that court affirmed the conviction.

Petitioner is again before this court and presents to us the question of whether the trial court abused its discretion in not allowing petitioner’s counsel on voir dire to ask prospective jurors the following question: “Do any of you believe it would be necessary to bring medical testimony or a medical doctor or an expert in order to prove medical insanity ?”

In the trial court the petitioner filed a motion for the employment of psychiatric experts for the purpose of having the defendant examined in connection with his plea of not guilty by reason of insanity. The trial judge held that an indigent defendant was not entitled to the court employment of psychiatric experts since there was no authorization or monies for such employment, but offered the assistance of-such psychiatrists available at the University of Alabama Clinic at Tuscaloosa. The appellant was taken there and examined by medical assistants but not a psychiatrist. The trial court further offered to have the appellant committed to the State Hospital for the Insane for examination under the provisions of Title 15, Section 425 et seq., Code of Alabama, 1940 (1958 Recompiled).

The appellant does not raise the issue of whether or not an indigent defendant is entitled to court employment of psychiatrists to assist him with a defense of not guilty by reason of insanity so this court does not address itself to that issue, but reference is made to the motion and these facts as a background.

Petitioner’s argument is that since he was indigent and could not afford or compel testimony from medical experts, then he would be prejudiced to have on the jury anyone who believed such evidence was necessary in order to accept his defense of insanity.

Title 30, Section 52, appears to give the defendant two rights: 1) “to examine jurors as to their qualifications, interest or bias would affect the trial of the case,” and 2) the right, “under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.” The question proposed by petitioner probably would not fit within the first category; but it does fit within the second.

This court has on occasion said that “the clear purpose of the statute is to limit the inquiry to matters that might probably bias the jurors in considering and determining the case.” J. B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805 (1930); Cox v. Roberts, 248 Ala. 372, 27 So.2d 617 (1946). Nevertheless, there are many cases in which this court has said that the right given by the statute allows a “liberal” inquiry, Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941); a “wide latitude,” Reeves v. State, 264 Ala. 476, 88 So.2d 561 (1956); and that “[t]he right of inquiry under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case,” Cox v. Bennett, 250 Ala. 698,36 So.2d 86 (1948).

This court has held many times that under this section the right to question jurors remains within the sound discretion of the trial court. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); McRee v. Woodward Iron Co., 279 Ala. 88, 182 So.2d 209 (1966); New York Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25 (1962), reversed on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961), cert. denied, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82 (1962); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961); Sims v. Struthers, 267 Ala. 80, 100 So.2d 23 (1958); Redus v. State, 243 Ala. 320, 9 So.2d 914 (1942); Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941); Rose v. Magro, 220 Ala. 120, 124 So. 296 (1929).

Judge Cates of the Court of Criminal Appeals, in interpreting these cases, said this in Ward v. State, 44 Ala.App. 229, 253, 206 So.2d 897, 920 (1967) (on rehearing):

“Carefully analyzing the operation of § 52, supra, as construed by cases such as New York Times [Co.] v. Sullivan, 273 Ala. 656, 144 So.2d 25, and Aaron v. State, 273 Ala. 337, 139 So.2d 309, we consider that our Supreme Court has avulsed the mandatory ‘shall have the right’ twice used in § 52 into a mere precatory adjuration to the humane instincts of the trial judge. The question of the voir dire examination of would be jurors allowed or disallowed below is not subject to review on appeal. Rose v. Magro, 220 Ala. 120, 124 So. 296 (hn. 10). (Italics added.)”

This court denied certiorari, 281 Ala. 650, 206 So.2d 922 (1967), but in doing so stated in a short opinion that its denial should not be taken as an approval of all the statements of law contained in Judge Cates’ opinion. By our decision today, this court disapproves the quoted language insofar as it suggests that there can be no review of whether the trial judge abused his discretion in allowing or disallowing challenged voir dire examination. This court finds that such review is proper.

The State has filed a motion to quash the writ in this case. One of the grounds of the said motion is as follows:

“The issue of the Petitioner’s right to question the venire as to their belief in the necessity of expert testimony to support a defense of insanity is abstract in this case, since there was no testimony, expert or nonexpert, nor any other evidence raising a question of the Petitioner’s sanity.”

This court feels that the State’s motion should be granted. A review of the transcript reveals that there was no witness that expressed an opinion that the defendant was insane. The other evidence of this case pertaining to insanity of the defendant is indeed very weak. If there was any error in not allowing the question, it was error without injury. Therefore, the State is entitled to have the writ quashed.

Writ quashed.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: ROBERTSON, Justice:

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER and Federated Mutual Implement and Hardware Insurance Company v. DEPENDENTS OF Lloyd Sidney STEWART, Deceased.
    No. 48252.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Rehearing Denied Oct. 13, 1975.
    Daniel, Coker, Horton, Bell & Dukes, Jackson & Gulfport, Donald V. Burch, Jackson, Alben N. Hopkins, Gulfport, for appellants.
    Pyles, Cupit & Maxey, Jackson, for ap-pellees.
    Before GILLESPIE, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

This is a workmen’s compensation case. The attorney-referee and the full Workmen’s Compensation Commission found that there was no causal connection between the work activities of Lloyd Sidney Stewart and his fatal heart attack on the afternoon of December 17, 1969, while at his place of work, the University of Mississippi Medical Center.

The attorney-referee found, among other things: .

“(6) That the defendants presented the proof necessary to, and did, rebut and explain away the rebuttal (sic) presumption of causal relationship between the death of the deceased and his employment ;
“(7) That competent and substantial evidence established that the deceased suffered from an underlying pre-existing heart condition, probably coronary arteriosclerosis, which was the cause of his death on December 17, 1969, and that the fatal myocardial infarction was not the result of, caused by nor contributed to by the activities of his employment;”

The full Commission unanimously approved the findings and order of the attorney-referee. The Circuit Court of the First Judicial District of Hinds County, Mississippi, reversed the findings and order of the Commission, and held that the presumption of causal relationship between his fatal heart attack and his work activities had not been rebutted and overcome by the defendants.

Stewart was a jovial, happy-go-lucky type of fellow. He was a good plumber and welder, and because of his competency in both lines of work, he had been made a foreman. He disliked the responsibility of being a foreman and making efficiency reports on workers under his supervision, and he threatened to quit. His supervisor, George C. Laird, suggested that he take about two weeks off, and then come back and they would talk it over. He came back to work on August 11, 1969, was relieved of his duties and responsibilities as a foreman and went to work just as a general plumber. He was happy and contented in his work, worked five days a week from 8:00 A.M. to 4:30 P.M., with y2 hour off for lunch. He was provided an assistant to carry his tools, and he carried only such small hand tools as could be put in a pouch on his belt.

On December 17, 1969, the day of his fatal heart attack, Laird testified that Stewart came to work as usual about 8 o’clock A.M., and that he probably saw Stewart two or three times during the morning, and that Stewart had no complaints. About 3 o’clock P.M., after Stewart had had a coffee break about 2:30, Mrs. Pam Logan, director of dietary services, called Mr. Laird. Laird testified:

“A. This was on December 17th, of course, and she was having a problem with her dish machine up there, dishwasher. She’s got a tremendous big dishwashing machine. Some parts she .felt needed to be replaced and she had a catalog of parts there but she couldn’t identify them and asked me to send somebody up there to identify these parts so she could get them on order.
And that s what you sent Mr. Stewart up there for ? ©
That’s right. f
Was he going up there to do any work? ¡Ó
A. No, he was just — that was his only mission that afternoon.”

Mrs. Logan testified that she had known Stewart since 1962. She continued:

“Of course, at first I asked him how he was and he said, fine, that he had seen his doctor the day before and he was feeling fine, and, of course, this was just —I hadn’t seen him in several days and I just talked to him a little and then we started on what he was there for, to go over the list that had been made for me. Some of the parts I was not sure I really needed and, with the budget that I have. I decided to go over these with him to see. The reason I asked for Mr. Stewart was because when I first came there Mr. Stewart was the Head Plumber, I guess, I really don’t know what his title was, but he was the one that I worked directly with and I felt he knew my situation better than anyone else. So I had requested that he go over the list that had been made for me.”

Mrs. Logan further testified that after about 15 or 20 minutes in her office going over the list, that Stewart was doubtful of the size of gauges that were on the list, and that Stewart said:

“[W]ell let me run out to the machine and I can just take a look at them and tell you whether these are the parts that you should order.”

Sarah Lee Curry who worked in the kitchen at the time, but who has since gone to Illinois to live, stated in her deposition that when Stewart came into the kitchen he spoke to her, said “Good evening” and smiled; that she spoke back to him and smiled at him. She then stated:

“He walked there at the back of the machine, and he was standing there looking at the machine, and then he walked kind of this way (indicating) and came on, like this, and I looked back to see then what was going on, and his eyes started watering bad — well, he went back like this, and his eyes started watering bad, and it looked like he tried to say something to me and couldn’t say nothing, and then he fell on back of the machine and started jerking. He was jerking all the way back, and his eyes was watering bad.”

Dr. John D. Bower, a specialist in internal medicine who worked with the kidney unit right across the hall from the kitchen, was called. He was asked what was Stewart’s condition when he first saw him, and he replied:

“A. Mr. Stewart was lying on his back, having fallen into that position, taking agonal respirations, approximately three (3) or four (4) breaths per minute, and was unconscious at the time that I saw him.”

Dr. Bower took immediate action, including mouth-to-mouth resuscitation and cardiac massage. He stated that he promptly yelled for the cardiac team, that it arrived in about five minutes and went into action, doing everything that could possibly be done to restore heart activity.

Dr. Perrin Berry, the family physician who had treated Stewart 2i/j years before for a serious heart attack, was called and arrived promptly at the hospital. Dr. Bower stated that when Stewart was moved to the surgical intensive care unit and after he had given Dr. Berry a report on what had happened, that Dr. Berry took over and assumed responsibility for his patient. Resuscitative efforts were continued for some time but to no avail.

Dr. Berry certified on the death certificate that the “immediate cause” of death was “acute myocardial infarction” and that it was “Due to, or as a consequence of: Arterioscleratic Heart Disease”.

Dr. Bower’s opinion, based on reasonable medical certainty, was that the cause of death was an acute myocardial infarction.

He testified positively and unequivocally that his work activity did not precipitate, aggravate or contribute to his fatal heart attack. He stated that his opinion was based not only on the background facts in the hypothetical question, but also on his personal observations made after he arrived on the scene and attempted to revive Stewart.

Dr. Joseph P. Melvin, cardiologist, was called as a rebuttal witness by the claimant. He stated that he had never examined nor even seen Stewart, but that, based on the hypothetical question alone, a person in Stewart’s condition should be in bed, and that practically any activity would contribute to a heart attack including driving a car.

On cross-examination, these questions were asked and these answers given :

“Q. . . . Doctor, if you have a person who is in a happy, jovial condition, is asymptomatic, and he simply walks in a radius of, say, fifty to sixty feet after having a rest period; and in the process of walking within this radius, he simply (snaps fingers) has a heart attack and dies as a result of it. Now that would be, you say, the classic situation where you would not have any causal relationship in that situation. Is that correct ?
“A. Any causal relationship _
“Q. To his activity?
“A. Probably not if the man, without any symptoms, suddenly drops dead. I fail to see any causal relationship it was anything except his underlying disease.”

The case at bar is somewhat analogous to McCarley v. Iuka Shirt Co., 258 So.2d 421 (Miss.1972). This Court said in McCarley:

“Several employees at the plant testified relative to the work activities of McCarley on the day in question, and their testimony showed without any material conflict that he was engaged in his usual work activity. In fact, when he was stricken he was using an ordinary ten inch screw driver to adjust a buttonhole chute on a machine. There was nothing strenuous about the work he was doing or had done on this day.
“While our sympathy is with the appellant, the widow, we cannot say after a careful review of the evidence in this case that there was not substantial evidence from which the commission could find that the employer met the burden placed upon him to overcome the' presumption of causal connection.”
258 So.2d at 422.

In Hungerford v. Southern Shell Fish Company, 230 So.2d 59 (Miss.1969), we said:

“If we give full weight to the presumption that the deceased’s death was causally connected with his employment, the presumption must give way to the facts shown to the contrary. If we consider that the medical testimony for the claimant shows ‘probably this [his work] had something to do with his demise,’ still there is no testimony to show that the deceased workman ‘over-extended himself,’ and the medical opinion testimony for the defendant is to the contrary. The Workmen’s Compensation Commission determined from the whole evidence, including the presumption of causal connection, that ‘the deceased did not sustain a compensable injury or death within the scope of the Workmen’s Compensation Act.’
“We are of the opinion that the Commission had substantial evidence on which to base its order and that the circuit court was correct in sustaining the order of the Commission.” 230 So.2d at 60.

We reach the same conclusion. There was substantial evidence before the Commission on which it could base its order, finding that the employer had met the burden placed upon it of overcoming the presumption of causal connection, and denying and dismissing the claim for death benefits.

The circuit court was in error when, sitting as an appellate court, it reversed the order of the Workmen’s Compensation Commission, the fact-finding body, and held that the rebuttable presumption had not been overcome.

. The judgment of the circuit court is, therefore, reversed, and the order of the Workmen’s Compensation Commission reinstated.

Reversed and Order of Workmen’s Compensation Commission reinstated.

RODGERS, P. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


text:
    MISSISSIPPI-ALABAMA COMPANY and United States Fidelity and Guaranty Company v. Henry Lee MORGAN.
    No. 48310.
    Supreme Court of Mississippi.
    Sept. 15, 1975.
    Rehearing Denied Oct. 6, 1975.
    Singley, Minniece, Hamilton, Neville & Hamill, Meridian, for appellants.
    Goldman & Goldman, H. C. Mike Watkins, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.

Affirmed.


author: RODGERS, Presiding Justice. INZER, Justice

text:
    J. C. PENNEY COMPANY and Holcombe C. White v. Mrs. Ruth Jones SUMRALL.
    No. 48030.
    Supreme Court of Mississippi.
    July 28, 1975.
    Rehearing Denied Oct. 6, 1975.
    Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellants.
    Maxey, Clark & Casey, Robert Sullivan, Laurel, for appellee.
    Before RODGERS, INZER and WALKER, JJ.
   RODGERS, Presiding Justice.

This is one of those cases commonly called a “slip and fall case.” Mrs. Ruth Jones Sumrall fell in the foyer or entrance of the J. C. Penney Company store in Laurel, Mississippi. She filed suit against J. C. Penney Company in the Circuit Court of the Second Judicial District of Jones County, Mississippi, based upon the alleged negligence of the appellant. The jury returned a verdict of thirty thousand dollars ($30,000.00) in favor of Mrs. Sumrall.

The appellants requested the trial court to grant them a directed verdict at the end of the plaintiff’s testimony, and also requested an instruction directing the jury to find for the defendants, J. C. Penney Company and Holcombe C. White, both of which were denied. After the jury’s verdict, the appellants requested a new trial because of the failure of the court to grant a directed verdict in favor of the appellants.

After a long and careful examination of the testimony and the authorities on the subject, we have reached the conclusion that the defendant J. C. Penney Company and its manager, Holcombe C. White, were entitled to directed verdicts m their favor for the following reasons.

At the close of the plaintiff’s testimony, in passing upon the defendant’s motion for a directed verdict, the trial judge made the following comment:

“Motion be overruled. I think this is a case that is strong enough to go to the jury on whether or not the action taken, although admittedly prompt, was the proper course of action to take under these circumstances. Due to the location of that which caused the fall and that alone, I think, would make it a jury question as to whether the action taken was the proper course of action to be taken.”

The plaintiff’s testimony [which included the testimony of the store manager, Holcombe C. White, and the janitor, Lee McDonald] showed that there was vomit on the paved floor of the entrance to the J. C. Penney store; that the clerks of the store knew the substance was there; and that through no fault of the plaintiff she stepped in the emetic substance and slipped and fell causing her to suffer permanent injury.

The plaintiff’s theory of the case was that it was the duty of the store owner to use ordinary care to provide a reasonably safe passageway for customer-invitees to walk in its store, and when its agents knew that a dangerous situation had occurred which would likely cause injury to the business invitees, it became the duty of the store owner to immediately remove the dangerous situation or to warn the business invitee of the danger.

Mrs. Mary Rhymes was introduced as a witness and she testified that one Lucille Millsaps came by where the witness was standing near the door and said that she was sick. Mrs. Rhymes saw Mrs. Mill-saps run out the door and vomit in the foyer at the store entrance. She was asked the following questions and gave the following answers:

“Q. Now, when you saw her vomit, what did you do ?
A. I stepped to the telephone to call Lee McDonald.
Q. About how far were you from that ’phone?
A. Just a few steps I would say— four feet. Three or four feet. Across the aisle.
Q. Mrs. Rhymes, how long did it take you to get from where you were standing to the telephone ?
A. Just a few seconds, I would say, because I was almost at it.
Q. All right, and what did you do when you got to the telephone ?
A. I called Lee McDonald in the basement to hurry, that we had something in front of the store that needed to be cleaned up, and he hurried.
Q. All right, while you were on the telephone did you see the plaintiff?
A. As I was hanging the ’phone up she came around the corner and I yelled, ‘Look out.’
* * * * * *
A. I just said, ‘look out!’ And I was on my way out and — but she was falling.”

Mrs. Rhymes also testified:

“A. —yes, ordinarily I would have run and got some paper and put over it.
Q. And what would you have done with the paper ?
A. Put over it.
Q. And how much time elaspsed between the time that this customer, Lucille Millsaps, vomited, until the time you shouted to the plaintiff ?
A. I would say just a couple of seconds, because she was right behind her, you know.
Q. All right, when you got off the ’phone you say you ran towards the door and she had already slipped ?
A. Yes.
Q. Now, when did you see Lee McDonald ?
A. Almost by the time I turned around. He came right up just in a few seconds.
Q. What would be your best estimate of the time that elapsed from the moment you saw the vomiting occur and the time that Lee McDonald got there?
A. I would say a minute and a half, or something like that.
Q. And do you know about how far you were from the place where the vomit was located?
A. Fifteen feet. I would say around fifteen feet.”

On cross-examination, Mrs. Rhymes testified that almost by the time Mrs. Sumrall had fallen Mr. McDonald and Mr. Hardin [a fellow employee] had reached the area and assisted Mrs. Sumrall in getting to her feet, and that all of this happened in a minute and a half from the time she called McDonald. She said she had called Mr. Hardin and said:

“A. I told him to run to the front, that somebody had been sick.
A. Well, he started out that way— he was on his way out.”

She also testified that she had been instructed as follows:

“A. We had been instructed to call Lee too to clean up things that are dangerous to customers.
Q. Mrs. Rhymes, excuse me, but you are still evading my question. You had been instructed that you were supposed to first go to the area and then notify someone to come clean it up through somebody else; had you not been given that instruction?
A. We had been given instructions to cover things up. Yes.
Q. Before somebody got hurt?
A. Before somebody got hurt.
A. We have been given instructions, yes. It hasn’t been written down or anything.
Q. No, but you knew that’s what you were required to do, isn’t it? Isn’t that true?
A. Probably so.”

This suit is based upon the theory that the plaintiff, Mrs. Sumrall, was injured because of the negligence of J. C. Penney Company and its store manager, Holcombe C. White; that the store owner and its manager failed to use ordinary care to immediately remove the vomit and to warn the plaintiff or other customers of the danger.

The theory of the plaintiff is clearly the law of negligence in this state and is also the general rule.

In order to establish a claim of negligence against a defendant, however, it must appear that the offending defendant violated some duty owed to the plaintiff. Although the owner of a store to which he invites the public is held to the exercise of reasonable care in maintaining his place of business in a safe condition for the use of his customers, he is not an insurer of their safety. Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916 (Miss.1966).

The appellee argues that issues of fact are for the jury. We agree with this proposition. Nevertheless, there must be some evidence of negligence given a jury before it can determine that a defendant is guilty of negligence.

It must be borne in mind that the dangerous situation of vomit on the floor of the foyer was created instantly by a third person who was not an agent of the defendants and for whose negligence the defendants were not liable.

Since the defendants were not insurers of the safety of business invitees who were lawfully on the store property, the duty of the defendants required them only to eradicate the known dangerous situation within a reasonable time or to exercise reasonable diligence in warning those who were likely to be injured because of the danger. In either case, 'however, defendants were entitled to a reasonable time in which to attempt to perform the duty imposed by law.

The testimony in this case shows that the manager, clerks and janitor of the J. C. Penney Company did all they could within the limited few seconds, after having knowledge of the dangerous situation, to eradicate the danger to customers and within seconds to go to the place of danger with a paper to cover the vomit.

To argue that the clerk (who had knowledge of the sudden illness of a customer) should have gone to the place where the vomit was left by the customer rather than to have called the janitor to clean the foyer is like the argument that one is negligent because he called the fire department instead of first attempting to put out a sudden fire. We think that the evidence shows that the clerk did all she could within the limited time she had to act to correct the condition caused by a third party. The mere fact that a potential customer succeeded in reaching the vomit and falling before the janitor, the manager and other agents of J. C. Penney Company had a reasonable opportunity to correct the situation is not sufficient evidence to establish negligence on the part of the defendants. Consequently, there was nothing for the jury to decide.

The judgment of the trial court must, therefore, be reversed and a judgment entered here in favor of the appellants, after due consideration of this case in en banc conference.

Reversed and rendered.

GILLESPIE, C. J., and SMITH, ROBERTSON and BROOM, JJ., concur.

INZER,- PATTERSON, SUGG and WALKER, JJ., dissent.

INZER, Justice

(dissenting):

Being unable to agree with the conclusion of the majority that appellants were entitled to a directed verdict in this case, I am compelled to dissent.

It is my opinion that in reaching its conclusion, the majority ignores the fundamental rule relative to granting a directed verdict. The rule is well stated in Butler v. Chrestman, 264 So.2d 812 (Miss.1972), wherein we said:

In this state all questions of negligence and contributory negligence are determined by the jury. Miss.Code 1942 Ann. § 1455 (1956). The rule relating to the propriety of granting a directed verdict or peremptory instruction has been announced many times by this Court. We said in Mock v. Natchez Garden Club, 230 Miss. 377, 382, 92 So.2d 562, 563 (1957):
[T]hat if reasonable men might have a difference of opinion as to whether or not the negligence of the actor constituted a substantial factor in bringing about the injury, then the question is for the jury. We have also held repeatedly in cases too numerous to mention that upon a motion for a directed verdict all the facts expressly testified to, and all inferences necessarily and logically to he deduced therefrom, are to he taken as true in favor of the party against whom the motion is asked, and that a case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can he had upon any view which can he properly taken of the facts which the evidence tends to establish, and further that if more than one reasonable inference can he drawn from the facts the question of negligence is for the jury. (Emphasis added). (264 So.2d at 815).

When the facts in this case are considered in the light of this rule, they clearly present a jury issue.

The majority opinion correctly states that testimony on behalf of Mrs. Sumrall establishes that she was permanently injured when she, through no fault of her own, slipped and fell when she stepped on a substance on the paved floor of the entrance to the J. C. Penney Store.

Mrs. Sumrall was entering the store to make a purchase, and the substance she stepped in was placed on the tile entrance to the store by a customer who became ill and vomited. The substance was of brownish color as was the tile. In the words of the janitor, Lee McDonald, it was “slick as okra.” Appellants’ clerks knew that the substance was on the floor, but no one warned Mrs. Sumrall of the danger.

In arriving at its conclusion that appellants were entitled to a directed verdict, the majority relies upon the testimony of Mrs. Mary Rhymes, and in so doing considers it in the light most favorable to appellants, instead of appellee, ignoring the fact that her testimony is contradicted by other witnesses. It is true that she testified that she saw the lady vomit and immediately went to the telephone and called Lee McDonald, who was then in the basement, to come and clean up the substance. She also testified that while she was hanging up the telephone, she saw Mrs. Sumrall approaching and yelled “look out.” Just at that time Mrs. Sumrall was falling. It was her contention that she did not have time to do anything else, but her testimony in this regard is contradicted. Lee McDonald was in the basement when he received the telephone call. After receiving the call he testified that he had time to walk twenty steps from the telephone to the stairway, up the stairway, fourteen steps, get his mop from the utility room, get a box from another room, and walk about 90 feet to the front of the store before Mrs. Sumrall fell. After the accident McDonald in a statement estimated that about five minutes elapsed from the time he received the call until he reached the front of the store. He testified that before the trial he was timed as he went through those same procedures under the direction of counsel for appellants and it took him about a minute and a half. Certainly if he had time to do these things, Mrs. Rhymes, after hanging up the telephone, had more than ample time to walk eight or ten steps and to place herself in a position to warn Mrs. Sumrall.

Mrs. Rhymes admitted that she had been instructed that when any liquid was on the floor she was to go to the place where the substance was located and cover it up in order to keep someone from getting hurt. If she had carried out these instructions, Mrs. Sumrall would not have been hurt.

The fact that the substance was placed on the floor by another customer does not excuse the appellants under the facts of this case. It is admitted they had actual knowledge of the existence of this dangerous situation; consequently, it then became their duty to use reasonable diligence to remedy the situation. In other words, it became their duty to take such reasonable care as should be taken by prudent men to prevent injury to appellee or to warn her of the danger. Appellants were aware of this duty and as a result had instructed Mrs. Rhymes what to do in such a situation. They established the standard of care employees should exercise in such a situation. Mrs. Rhymes did not carry out her instructions which would have prevented the fall and resulting injury, but instead chose to wait for the janitor to come up and clean up the substance. She attempts to excuse her failure to do as instructed by saying she did not have time to do anything other than telephone the janitor. The jury could have found from the evidence that more than a minute and a half elapsed from the time she completed the telephone call before Mrs. Sumrall fell. This was ample time for Mrs. Rhymes to have telephoned and then to have carried out her instructions. She also said she tried to warn Mrs. Sumrall by yelling “look out” but neither Mrs. Sumrall nor any other witnesses heard her do so. Under these circumstances, it is difficult to understand how it can be said that Mrs. Rhymes did all she could to correct the condition in the limited time she had to act.

It is also difficult to understand how the facts in this case support the statement in the majority opinion that:

The testimony in this case shows that the manager, clerks and janitor of the J. C. Penney Company did all they could within the limited few seconds, after having knowledge of the dangerous situation, to eradicate the danger to customers and within seconds to go to the place of danger with a paper to cover the vomit.

When we consider the facts in this case in the light most favorable to Mrs. Sumrall, as we are required to do, it is clear that Mrs. Rhymes had ample time not only to call the janitor to come clean up the substance, but that she also had ample time to have then carried out her instructions or taken other precautions to warn people entering or leaving the store of the dangerous situation. Whether Mrs. Rhymes did all she could in the limited time to correct the situation was for the jury to determine and not for this Court. The limited time element was only one factor to be considered by the jury in determining whether appellants carried out their duty to take such reasonable care as should be taken by prudent men to correct this dangerous situation after it came to their attention.

For the reasons stated, it is my opinion that the facts of this case present a typical case for determination by the jury and I would so hold.

PATTERSON, SUGG and WALKER, JJ., join in this dissent.

      . Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss.1967); Patterson v. Sayers, d/b/a The Concord, Hotel, 223 Miss. 444, 78 So.2d 467 (1955); Strand Enterprises, Inc. v. Turner, 223 Miss. 588, 78 So.2d 769 (1955); Sears, Roebuck & Co. v. Burke, 208 Miss. 306, 44 So.2d 448 (1950); Louisiana Oil Corporation v. Davis, 172 Miss. 126, 158 So. 792 (1935); Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9 (1921); S. H. Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858 (1917); 65 C.J.S. Negligence § 63(45), at 726 (1966).