text:
    James Elliott ARNOLD v. STATE.
    6 Div. 17.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      Herbert W. Stone and R. B. Jones, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Pursuant to an indictment for arson in the first degree (burning a dwelling house) a jury convicted appellant-defendant as charged and the court fixed punishment at fifteen years imprisonment. Appellant-defendant, an indigent, appeals.

This is a second judgment of conviction under the indictment. A prior judgment was reversed and the cause remanded. Arnold v. State, 54 Ala.App. 542, 310 So.2d 262 (1975).

Appellant, a registered pharmacist, had bought a drug store business from Mrs. Lula Hooks, agreeing to pay therefor at future intervals. In some way Mrs. Hooks and defendant had become estranged about the operation of the business. This estrangement led to the arson charges against appellant.

The evidence shows an arson indictment for burning the dwelling and conviction of Felix Washington, a black, and one or two others. Mrs. Hooks’ dwelling house was set on fire one night by a fire-bomb, thrown from the outside against the dwelling, thereby causing fire damage.

Four blacks left the scene hurriedly in an automobile, but were intercepted by an officer in a police patrol car. Three of the blacks fled from the automobile, while Felix Washington was not so fortunate. At least one of the fleeing suspects was later apprehended, convicted of arson with respect to the Hooks’ dwelling.

Felix Washington was also convicted and thereafter, in the first trial and in this trial was used by the State to testify against appellant-defendant. In the instant trial he was put on the stand as the Court’s witness and as such witness, he implicated defendant.

According to Washington’s testimony, defendant Arnold employed him (and the others) to set fire to Mrs. Hooks’ home, which they did by use of a fire bomb. Defendant paid him $200.00 to do the job and agreed to pay more at a later date. This amount was never paid. According to Washington’s testimony appellant, Arnold, was an accomplice and a statutory principal. Title 14, Sec. 14, Recompiled Code, 1940.

But Washington’s testimony against appellant was supported by only one witness, the divorced wife of appellant-defendant. It was necessary that Washington’s evidence be supported by a corroborating witness. Title 15, Sec. 307, Recompiled Code, 1940.

A motion to suppress, and an appropriate objection to the divorced wife’s testimony and to exclude it were all overruled and her testimony was allowed to go to the jury. The admissibility of this testimony is an issue of serious import now before this Court.

Mrs. Arnold testified, over defendant’s objection and motion to suppress, both being overruled, that while in their home on the night the arson was committed; that her husband received a telephone call and she heard her husband tell the calling party (Tr. 157) that “ * * * he would have to go and see the damage before he could pay him any money. Or somebody, I think that’s what he said.” Witness further said she answered the phone, that it was a man calling, but she didn’t know who it was; but her husband said that “he would contact him later.”

The witness was further allowed to testify, over defendant’s appropriate objections, that on Sunday, in the daytime after the alleged fire on Saturday night, she and her husband and two children got in their car, drove to his mother’s home, left the children, exchanged their automobile for one belonging to the mother, and drove slowly by the Hooks’ home, and viewed the damage. She testified that on prior occasions they had been to the Hooks’ home in their car. The State insisted that dropping the children off and exchanging cars was to conceal their identity on the mission.

The issue at nisi prius and here is the admissibility vel non of the foregoing testimony of the ex-wife in the light of T. 15, Sec. 311, Recompiled Code, 1958, which reads:

“The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.”

We wish to observe at the outset that the divorce existing between defendant and his wife did not affect or impair the principle of privileged communication between them. Owen v. State, 78 Ala. 425(2); Wigmore on Evidence, Vol. VIII, § 2334, p. 648; § 2835(3) & 2341.

Was the conversation of defendant over the telephone with another, apparently one of the principals, a privileged communication? Also, was his later conduct in viewing the impaired dwelling with his wife in the car a privileged communication?

In State v. Robbins, 35 Wash.2d 389, 213 P.2d 310, par. 3, at page 313, the Supreme Court observed as follows:

“The term ‘communication,’ within meaning of privileged communication rule, as to husband and wife, should be given a liberal construction and is not confined to mere audible communications or conversations between the spouses, but embraces all facts which have come to his or her knowledge or under his or her observation in consequence or by reason of confidence of marital relation, and which, but for confidence growing out of it, would not have been known. [Rem. Rev.Stat. § 1214, subd. 1].”

It appears in the instant case that the telephonic conversation, supra, occurred in the sanctity of defendant’s home in the presence of his wife in reliance on the confidentiality of a communication between husband and wife and covering a matter which behooved the husband to talk about in the presence of his spouse; likewise, the act of viewing the property was done in the presence of his wife in a manner that indicated a desire of secrecy on the part of the husband, but not shielded from his wife’s knowledge. The transportation to the scene originated in the home under the protection of a marital relationship. The rule should be given a liberal construction and not be confined to a mere audible communication as to this particular testimony of the ex-wife. We quote from Owen v. State, 78 Ala. 425, as follows:

“* * * Some of her [the wife’s] statements relating to the conduct of his, which would not likely have come to her knowledge in its details, if they had not been husband and wife. * * * ” Bracketed matter added.

Thus the husband felt free to talk over the telephone in his wife’s presence and to make the trip to see the damaged dwelling. Communications between husband and wife are discussed in general in Chapter 83, Vol. VIII, Wigmore on Evidence, § 2332, et seq., beginning at page 642.

In § 2334, Wigmore, marital disqualification and anti-marital privilege is distinguished. It is there observed:

“1. Marital disqualification. The disqualification of a husband and wife to testify on the other’s behalf (§§ 600-620, supra), a rule now practically extinct, is plainly different from the privilege of either against the other’s disclosure of communications. The judicial confusion of them was nevertheless frequent. And the occasional legislative commingling of them in the same sentence of the same enactment gave rise to much of this confusion.
“Perhaps the commonest error caused by the confusion with the moribund marital disqualification was the ignoring of the right of the communicating spouse to waive the privilege in his own behalf (§ 2340 infra); when the husband for example, offered the wife to prove his communications to her, the erroneous tendency was to treat the disclosure as absolutely prohibited in spite of his consent. A disqualification of the wife to testify in the husband’s behalf of course could not be waived by the husband; but it was and is of the essence of the husband’s privilege (as of every privilege) that it may be waived. And yet the communications, when offered by the privileged person, were very often excluded in apparent ignorance of the distinction.”

We will not burden this opinion with a lengthy discussion of marital privilege or communication and the advisability of protecting the marital relation and the home confidentialities. Suffice it to say that knowledge on the part of the wife of acts of her husband may and do often arise outside the scope of marital confidences and hence are not protected by marital privileges. For instance, the wife may see her husband drive an automobile up or against a child on the street. Such knowledge could arise outside the scope of marital relationship. She could have been a spectator at the scene. But the sanctity arises when the knowledge is acquired by and through the marital relationship. Such privilege has long been protected under the common law. The common law of England obtains in Alabama with exceptions. Title 1, § 3, Recompiled Code, 1958.

It is said in Weaver v. Hollis, 247 Ala. 57, 22 So.2d 525, that the common law is the base upon which all of the laws of the State have been constructed and when our courts are called upon to construe a statute — when they are called upon to ascertain and declare the legal effect and meaning of a legislative enactment — they must read the statute -in the light of the common law:

Under the laws of Alabama and its policies, as well as in other States of the United States, the home, where families reside, is the bedrock of our society, and is a stalwart pillar that affords retreat from the vagaries of the outside world, and affords the family occupants an opportunity to discuss their problems free from the ears of outsiders. It is a haven of comfort and freedom of discussion — good or bad.

We don’t think it was the intention of the legislature in enacting § 311, supra, allowing each spouse in a criminal case to testify against the other at his or her option, to include confidences that originated in their family fireside discussions, even of a criminal nature.

It is also said in Wigmore, Vol. XIII, § 2340, inter alia, that “The privilege is intended to secure freedom from apprehension in the mind of the one desiring to communicate (§ 2332, supra); it thus belongs to the communicating one.”

We don’t think § 311, supra, erodes that long cherished privilege of marital communications embedded in our common law. The statute grants the option in criminal cases where the privilege of marital communication as here is not involved.

In our prior decision, Arnold v. State, supra, Judge Cates, writing for this court, questioned but did not decide the legal effect of such disclosure in a criminal case. We quote as follows:

“Here the quondam wife heard a telephone call by the husband. Was this a communication to her? See North v. Superior Court, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155.”

We conclude that in Owen v. State, 78 Ala. 425, the observations of the eminent Justice Stone, speaking for the Court, with respect to such privilege of communication, was not modified or disturbed by the enactment of § 311, supra. For further elucidation on the privilege of marital communications see 81 Am.Jur.2d, § 150, p. 190 and § 161, p. 198.

The judgment of the trial court is reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice. ALMON, Justice

license: Public Domain

text:
    In re James Elliott ARNOLD v. STATE. Ex parte State of Alabama ex rel. Attorney General.
    No. SC 2128.
    Supreme Court of Alabama.
    Sept. 16, 1977.

      William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen. for the State, petitioner.
    Herbert W. Stone and R. B. Jones, Birmingham, opposed.
   SHORES, Justice.

We granted the state’s petition for writ of certiorari because it was asserted the the Court of Criminal Appeals, 353 So.2d 520, wrongly decided a case of first impression.

That court held that the- trial court erroneously allowed the defendant’s ex-wife to testify, over the defendant’s objection, to (1) a telephone conversation between the defendant and a third party accomplice which was overheard by the ex-wife; and (2) that on the day following the fire for which the defendant was convicted of arson, she and the defendant drove his mother’s car by the burned house to view the damage. The Court of Criminal Appeals held that the marital privilege for confidential communications existed independently from the statutory disqualification under Title 15, § 311, Code of Alabama, and held that the ex-wife’s testimony in both instances was inadmissible under the privilege, reversing the trial court.

At common law, the courts of Alabama have recognized two forms of the marital exemption — the rule of incompetency and the privilege against disclosure of confidential communications. Owen v. State, 78 Ala. 425 (1885); Sumner v. Cooke, 51 Ala. 521 (1874). Each form was designed to protect a particular aspect of the marital relationship and the application of each was governed by different rules. The rule of incompetency protected the harmony of the marriage, reflecting the age-old repugnance for the idea of convicting a man by his wife’s testimony. On the other hand, the privilege of confidentiality protected the privacy of the marriage — the rights of the individual partners to the marriage rather than the institution of marriage itself. Comment, Questioning the Marital Privilege: A Medieval Philosophy in a Modern World, 7 Cum.L.Rev. 307 (1976). The two existed simultaneously, but independently, at common law. On September 28, 1915, the Alabama Legislature abolished the rule of incompeteney and adopted the present statutory language which allows the spouse to testify voluntarily:

“The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled to do so.” Title 15, § 311, Code of Alabama.

Statutes in derogation or modification of the common law are strictly construed. Cook v. Meyer, 73 Ala. 580 (1883). Such statutes are presumed not to alter the common law in any way not expressly declared. Pappas v. City of Eufaula, 282 Ala. 242, 210 So.2d 802 (1968). Title 15, § 311, makes no mention of the common law privilege for confidential communications between husband and wife and can have no effect on the independent nature of that privilege. The Court of Criminal Appeals correctly held.

While Title 15, § 311, and the privilege for confidential marital communications are animals of the same species, in that they both protect the marriage, each is a different variety of that species. § 311 protects the witness, testimony may be given voluntarily despite the defendant’s objection so long as it does not pertain to confidential matters. McCoy v. State, 221 Ala. 466, 129 So. 21 (1930). The spouse is incompetent as a witness until that voluntary election to testify is made and the right not to testify waived. De Bardeleben v. State, 16 Ala.App. 367, 77 So. 979, affirmed, 201 Ala. 523, 78 So. 877 (1918). The witness and the defendant must be married at the time the testimony is sought before the statute will apply. Wigmore on Evidence, Vol. II, § 610 (McNaughton Rev. 1961). The privilege for confidential communications, however, belongs to the communicating spouse, and he or she may prevent the other spouse from testifying to any conversation or action performed in the privacy of the marriage. Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962). And while the communication must have taken place during the marriage, there is no requirement that the witness and the defendant must be married at the time the testimony is elicited. The privilege protects the confidences of the individual partners to the marriage, and will continue to exist as it pertains to statements made during the marriage even after the marriage is terminated by death or divorce of the spouses. Owen v. State, supra. Wigmore on Evidence, Vol. VIII, § 2341 (McNaughton Rev. 1961).

In the instant case, the rule enunciated in Title 15, § 311, is inapplicable. Arnold and his wife are divorced and the statutory disqualification does not apply. The sole issue is the applicability of the privilege for confidential communications. By its nature, the privilege includes only those statements or acts made or performed by one party to the marriage in communicating with the other. It is the confidential nature of this day by day interchange between the husband and wife, made as a natural consequence of the peculiar relationship of marriage, which falls within the proper scope of the privilege. F. Wharton, Criminal Evidence, Yol. Ill, § 826 (12th ed. R. Anderson 1955). It is this confidential nature which is implicit in any application of the privilege, and it is well-settled that a statement made in the presence of (or directed to) a third party lacks that requisite confidentiality between the spouses. Caid-well v. State, 146 Ala. 141, 41 So. 473 (1906). The privilege does not operate to exclude from evidence testimony by one spouse concerning an overheard conversation between the other and a third party. .

Arnold’s telephone conversation with his alleged accomplice was not a confidential communication between a husband and wife. The fact that it was overheard by the wife does not transform it into a confidential communication between the spouses. To the contrary, it was a communication between the husband and a third party. In this instance, the Court of Criminal Appeals was in error. On the other hand, as held by the Court of Criminal Appeals, the act of driving the automobile by the burned dwelling should be categorized as a communication between husband and wife and is privileged. It was an act performed with the confidence of the marriage in mind, and as such should be excluded.

The Court of Criminal Appeals is reversed in holding that the testimony concerning the telephone conversation should have been excluded. It is affirmed in its ruling in all other respects.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

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

BLOODWORTH, ALMON and EMBRY, JJ., dissent.

ALMON, Justice

(dissenting):

I think the Court of Criminal Appeals is correct and I would quash the writ as improvidently granted.

BLOODWORTH and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    James Elliott ARNOLD v. STATE.
    6 Div. 17.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
   ON REHEARING

PER CURIAM.

The order, judgment and opinion entered by the Court of Criminal Appeals on October 25, 1977, are hereby set aside.

The Supreme Court of Alabama in Ex parte State, In re Arnold v. State, 353 So.2d 524, September 16, 1977, determined that the admission of the telephone conversation into evidence between the appellant and the alleged accomplice was not error.

However, this same opinion did determine that the admission into evidence of the act of driving the automobile was erroneous, and this cause is hereby reversed and remanded on authority of Ex parte State, In re Arnold v. State, supra.

Application for rehearing overruled.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Michael ROBINSON v. CITY OF BIRMINGHAM.
    6 Div. 363.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Nov. 15, 1977.
    See also Ala.Cr.App., 353 So.2d 534.
    Ferris S. Ritchey, Jr., Birmingham, for appellant.
    W. O. MacMahon, III, Birmingham, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of knowingly and unlawfully exhibiting an obscene motion picture film entitled “Referral Service,” which portrayed “Actual act, or acts of sexual intercourse, cunnilingus, fellatio, homosexuality between females, contrary to and in violation of Ordinance No. 67-2, Section -3 of the City of Birmingham, Alabama.” A jury fixed his punishment at a fine of $150.00, to which the court added a term of hard labor for ninety days.

The evidence, consisting chiefly of the testimony of one witness, Officer David Luker, shows that appellant was employed by the Foxy Adult Cinema as manager in April 1975. The Foxy is an adult theater which shows exclusively motion picture films X-Rated for their sexual content. The general nature of the films shown in the theater is advertised on the exterior of the building. On April 10, 1975, Officer Luker visited the theater as part of his assignment as a member of the vice squad of the Police Department of Birmingham, to which squad he had been assigned since September, 1974. He paid five dollars for an admission ticket, entered the theater and viewed in its entirety a 16mm motion picture film, in sound and color, entitled “Referral Service.” The viewing time was approximately sixty minutes. During the same time, approximately 12:00 Noon, the film was viewed by between approximately fifteen and thirty male and female patrons.

After viewing the movie, Officer Luker left the theater, went to City Hall, composed a search warrant and an arrest warrant, made an affidavit, and presented himself, the affidavit, and the warrants to Honorable Joseph G. Barnard, who executed the warrants. After appearing before Judge Barnard, narrating an account of his viewing the movie, and responding to questions asked him by Judge Barnard, Luker returned to the theater with the signed warrants on April 12,1975, watched enough of the movie to ascertain it was the same one he had watched the day before, obtained the film from the projectionist after showing him the search warrant, and then arrested appellant.

The major contention of appellant is that the seizure of the film was an invasion of defendant’s rights under the First, Fifth and Fourteenth Amendments to the Constitution of the United States. His premise for such contention is that Judge Barnard did not have sufficient information to warrant the issuance by him of the .search warrant. The supporting affidavit in pertinent part is as follows:

“. . . on 10 April 1975 at 12:00 P Affiant viewed a sound and color presentation entitled ‘Referral Service’ a motion picture: This film showed males and females engaged in actual sexual intercourse, fellatio and cunnilingus. Also presented in the film were scenes of the male organ in an erect state ejaculating openly in or near the mouth of a female actor. The film showed a male and female engaged in sexual intercourse on a piano bench. These scenes were presented as a series of obscene acts that had little or no relation to any plot or story. There were scenes presented in this film that had the camera focused closely on the genitals of the actors.”

On the hearing of the motion to suppress, the following testimony was given by Officer Luker, called for the purpose of the motion by defendant:

“Q State to the Court what you told Judge Bernard.
“A I told Judge Bernard that I viewed the movie Referral Service at 305 North 18th Street, Foxy Adult Cinema. I told him I viewed it at approximately the 10th of April, 1975, at around 12:00 at Noon. The movie depicted males and females engaged in sexual conduct including actual sexual intercourse, cunnilingus, fellatio, ejaculation and lewd exhibition of the genitals.
“Q Did you tell him anything else besides that?
“A Nothing other than the fact that Michael Robinson sold me a ticket to the movie and was present when I viewed it.
“THE COURT: Is that this Defendant, Michael Robinson?
“A Yes, sir.
“Q In other words, what you told Judge Bernard is what you wrote on this affidavit, is that correct?
“A Yes,' sir.
“Q And you did not go into detail scene by scene with Judge Bernard as to what the movie Referral Service contained, did you?
“A No sir, I didn’t go into detail scene by scene. I think I did make reference to a scene involving an act of sexual intercourse on a piano. It had, I believe, a maroon spread over it. I’m not sure about the spread, but I know I did tell him about that scene.
“Q What I’m asking is, other than describing the type of sex acts that were being performed in this movie, you didn’t go into detail about what the movie was about, who the characters were and where they were and things of that nature?
“A No, I didn’t.
“Q And the Judge didn’t ask you questions about the various scenes in the movie and where they were and what took place, when and with whom and however, did he?
“A I don’t remember him asking me.”

On cross-examination of the witness by the City, the witness again narrated what he had seen at the movie and thereafter said:

“Q And I will ask you if you took these facts and evidence to Judge Bernard at his office at City Hall in Birmingham, Alabama and related them to him and ask you if this is an Exhibit # 1 which has been introduced into evidence, I will ask you if the top portion of this affidavit here was filled out in your own handwriting, is that correct?
“A Yes, sir.
“Q Did you present this to His Honor? “A I did.
“Q And did you swear to it and sign it in his presence?
“A Yes, sir.
“Q Did he question you at length concerning this affidavit before he signed it? “A No, sir.
“Q Did he question you about it?
“A He questioned me, yes, sir.”

A magistrate is required to focus searchingly on the question of obscenity before he issues a search warrant for the seizure of First Amendment material. Marcus v. Property Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Condemned especially in Marcus is the acceptance by a magistrate of the con-clusional statements in the affidavit upon which the warrant is issued.

We do not consider, as appellant apparently does, that the affidavit in this case consists of conclusions merely, or even substantially. They are primarily stark statements of fact. We think also that appellant is not justified in the conclusion that the magistrate did not question the affiant to obtain more information than that which was contained in the affidavit. It is true, as shown above, that the affiant did not remember that the judge questioned him about “the various scenes in the movie and where they were and what took place, when and with whom and however,” but it is clear that there was a colloquy between the magistrate and the affiant with reference to what the affiant had viewed in the particular movie. It is also clear, as shown by the affidavit, that “any plot or story” of the movie was not dependent upon, and was unrelated to the pornography that had attracted its patrons at five dollars a person. Whatever the story or the plot, it served merely as an accompaniment, as sublime music, wrested from the sublime verse it usually accompanies, does when applied to a filthy parody; which sometimes has the claimed redeeming quality of humor, although no such quality is even claimed as to the matter under consideration.

We do not doubt that at times it is necessary for a magistrate to proceed further than the examination of the affiant in this case, to preserve the First Amendment rights of persons in possession of material claimed to be obscene. In many cases more details would be necessary, the scheme is more delicately woven, the plan is more subtle, the nauseous scene more camouflaged. In this case, no more artistry is involved than in that of the hit-and-run pervert who scratches his vulgarisms upon the walls of the dirtiest public private places of the world, to vie with the surrounding putrescence from which the normal traveller as soon as possible retreats.

The blatant facts, as shown here, without any further detail, enabled the magistrate to make an assessment as a whole of the production, to the extent at least of determining the existence of probable cause for believing it was illegal. The searching focus required is necessarily relative and is dependent upon the object focused upon. In this case, no telescope, no microscope, no spectacles were required.

In arguing for the proposition that the search warrant was invalid, appellant states:

“It is the appellant’s contention that the only manner in which the command of Marcus can be followed where a full length motion picture is alleged to be obscene is for the magistrate to view the movie. No other procedure can insure the required Constitutional scrutiny to this type of First Amendment material.”

After searching for a case to support appellant, he candidly admits that he has found none, other than Hess v. State, 536 P.2d 366 (Okl.Cr.1975), from which appellant quotes:

“(the defendants) . . . contend that the trial court erred in overruling the defendants’ motion to suppress the introduction of the seized film into evidence. In support of their contention the defendants argued that no magistrate viewed the film in an effort to focus searchingly upon the question of obscenity prior to the issuance of the warrant, and that, therefore, the warrant was issued in violation of the explicit guidelines set down in the recent decision of the United States Supreme Court in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). With this contention we agree. The record reflects that the Judge issuing the search warrant did not view the film prior to the issuance of a warrant. The facts in the instant case do not present exigent circumstances wherein immediate police action must be ‘now or never’ to preserve evidence. The film complained of was not stolen or contraband and was not in the process of being removed or destroyed. The failure of a neutral magistrate to view the film prior to the issuance of a constitutionally sufficient search warrant was error. See also Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757.”

We do not agree that it was necessary for the magistrate to view the film before he could issue a constitutionally sufficient warrant to authorize its seizure. We do not think that Heller v. New York, supra, so held. As to the question of any necessity for the magistrate to view the film before issuing a search warrant, the Court in Heller, 413 U.S. 488, 93 S.Ct. 2792, said:

“. . .In Lee Art Theater v. Virginia, [392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313] supra, the Court went so far as to suggest that it was an open question whether a judge need ‘have viewed the motion picture before issuing the warrant.’ . . .”

The Court also noted in Heller that “The judge viewed the entire film and, indeed, witnessed the alleged criminal act.” The Court did not hold that such viewing by the magistrate was essential to issuance by him of a valid search warrant. Nor did this Court so hold in a case in which the magistrate himself viewed the film before issuing the warrant. McKinney v. City of Birmingham, 52 Ala.App. 605, 296 So.2d 197, cert. denied, 292 Ala. 726, 296 So.2d 202, cert. denied, 420 U.S. 950, 95 S.Ct. 1335, 43 L.Ed.2d 429. Noting the fact that the magistrate had seen the film, but not deciding that it was necessary for him to have seen the film, before issuing the warrant, Judge Tyson, now Presiding Judge, speaking for a unanimous Court, said:

“Finally, we find that, since there was no request or demand by the appellant that the films in question be returned to the exhibitor to be shown pending a judicial determination on the issue of obscenity vel non, we find that such were lawfully seized as evidence in the several cases in question inasmuch as here there was a determination by a neutral and detached magistrate on the issue of obscenity prior to their seizure. . . . ”

We do not say that it is never necessary for the one who issues a warrant of search and seizure to view beforehand the matter seized in order to protect one’s First Amendment rights, but to require it in every instance is to say in effect that nothing can be so obscene that no witness can possibly describe it in such a way as to present a probable cause case, when in fact it is so offensive that it may be so described by a witness as to portray its illegality beyond any rational doubt, if not beyond cavil. The protection of First Amendment rights does not require that nothing be believed unless it is seen. Such a requirement is not to be found in any field of knowledge. Furthermore, we suggest a collision between any such requirement in an inordinate desire to protect First Amendment rights and another paramount principle, i. e., the independence, the neutrality and detachment of the judicial branch of government.

A magistrate is primarily a judicial official. Whenever he becomes a witness, or an advocate, a partisan, a detective, a law enforcement officer, his true and proper role is to some extent diluted. The most noteworthy exposition on this subject is to be found in the unanimous opinion of the Supreme Court in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), wherein Mr. Justice Powell said:

“An examination of the Court’s decisions reveals that the terms ‘magistrate’ and ‘judicial officer’ have been used interchangeably.
“To attempt to extract further significance from the above terminology would be both unnecessary and futile. The substance of the Constitution’s warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, the issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause be drawn by ‘a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, supra [333 U.S. 10, at 14, 68 S.Ct. 367, at 369, 92 L.Ed. 436, at 440]; Giordenello v. United States, supra [357 U.S. 480, at 486, 78 S.Ct. 1245, at 1250, 2 L.Ed.2d 1503, at 1509. . . .
“. . . Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement. There has been no showing whatever here of partiality, or affiliation of these clerks [authorized to issue arrest warrants as to misdemeanors] with prosecutors or police. The record shows no connection with any law enforcement activity or authority which would distort the independent judgment the Fourth Amendment requires. . . . ”

A magistrate should not be placed in a position of having to violate one’s Fourth Amendment rights in order to prevent a violation of his First Amendment rights. See also Annot., 32 L.Ed.2d 970.

Defendant’s motion to suppress the evidence, consisting of the film “Referral Service,” was properly overruled.

Appellant argues, as he contended to some extent, but rather tangentially, on the trial, that there was discrimination by the city of Birmingham in the prosecution of defendant in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. He relies upon Simonetti v. City of Birmingham, 55 Ala.App. 163, 314 So.2d 83 (1975) and Associated Industries of Alabama, Inc. v. State, 55 Ala.App. 277, 314 So.2d 879, cert. denied, 294 Ala. 281, 314 So.2d 901 (1975), as well as cases from other jurisdictions, including particularly the forerunner, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The only evidence to support his contention is the testimony of Officer Luker, who had been with the Vice Squad of the Birmingham Police Department about seven months at the time of his arrest of defendant. Officer Luker testified that during that time the only arrest made by him of a person engaged in showing a full length X-Rated movie, dealing in sex, was defendant, whom he arrested on more than one occasion. The evidence is not altogether satisfactory and definite on the point, which is due to a great extent to a fast-moving interrogation of the witness, but we do not understand that the witness himself viewed any full length illegal X-Rated movies at other movie houses during that time. We do not understand from his testimony that defendant was the only person arrested by any officer of the City for such activity during the stated time. Any decision that there was discrimination against defendant by the city of Birmingham would not be supported by substantial evidence, even though it may be conceded that there are some flimsy indications thereof in the evidence. The evidence does not show that the City selected the Foxy Adult Cinema as an exclusive target of prosecution. The parties agree that a heavy burden rests on a defendant to establish conscious, intentional discrimination requisite to a collision with the Equal Protection Clause of the Fourteenth Amendment. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Simonetti v. City of Birmingham, supra.

The ordinance under which appellant was tried and convicted provides in pertinent part:

“Section 1. The following words and terms, when used in this ordinance, shall for the purpose of this ordinance have the meanings respectively ascribed to them by this section:
“A. ‘Obscene’ méans that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description of representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience, predominant appeal shall be judged with reference to such audience. . . ."

In appellant’s brief, he states:

“Appellant acknowledges that the City of Birmingham has amended Section 1 of its Ordinance 67-2 to adopt the guidelines set out in Miller v. California, 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] (1973), in its definition of ‘obscene’. In so doing it has adopted guidelines which create in its Ordinance an overbreadth that permits them to infringe upon the publication and dissemination of Constitutionally protected materials. The Ordinance containing the Miller standards proscribing the exhibition of allegedly obscene materials opens the door for censorship of materials previously found to be entitled to First Amendment protection.”

By addressing this argument to us, we assume that appellant is seeking thereby to preserve his right to address it to the Supreme Court of the United States. At any rate, our only course is to attempt to follow, and not to overrule, higher authority. This applies not only to the majority opinion of the Supreme Court of the United States in Miller v. California, supra, but also to the majority opinion of the Supreme Court of Alabama in McKinney v. City of Birmingham, 292 Ala. 726, 296 So.2d 236, notwithstanding appellant’s earnest insistence that we follow dissenting opinions, rather than the opinion of the Court, in the one, and a dissenting opinion, rather than the opinion of the Court, in the other.

The writer of this opinion and the judges of this Court have witnessed a projected view of the film made the basis of the prosecution. To say that its “predominant appeal . . . is to prurient interests, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation” is a gross understatement. Such could have been its only appeal to those under no duty to see the picture. It descends to the nadir of repulsiveness.

We find the verdict and judgment amply supported by the evidence and that the record shows no error prejudicial to appellant.

The judgment appealed from should be affirmed.

The foregoing opinion was prepared by the Honorable Leigh M. Clark, a retired Circuit Judge, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . Then a judge of the city of Birmingham — now Circuit Judge Joseph G. Barnard of the Tenth Judicial Circuit.

      . Wherein, notwithstanding the Court’s rejection of the position taken therein that the particular ordinance then and now under consideration, as well as Code of Alabama 1940, as amended, Tit. 14, Chs. 64A and 64C, conflicts with the Constitution of Alabama, Art. 1, § 4, there is a greatly needed reminder of the enshrinement of liberties in state constitutions, as well as in the Constitution of the United States. The scholarly dissenting opinion of Mr. Justice Jones is a clarion call to a greater recognition of the province of the states, and the responsibility of state courts, in this respect. Lest we forget, state constitutions embraced bills of rights before there was a Constitution of the United States. See also Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Virginia Law Review 873.


author: ALMON, Justice.

text:
    Ex parte Michael ROBINSON.
    77-158.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: HARRIS, Judge.

text:
    Michael ROBINSON v. CITY OF BIRMINGHAM.
    6 Div. 274.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Nov. 15, 1977.
    Ferris S. Ritchey, Jr., Birmingham, for appellant.
    W. O. MacMahon, III, Birmingham, for appellee.
   HARRIS, Judge.

Appellant was convicted of knowingly and unlawfully exhibiting an obscene motion picture film entitled “Pleasure Cruise,” which portrayed, in color and sound, males and females engaged in “actual sexual intercourse, fellatio, cunnilingus, masturbation, and homosexual acts,” in violation of Ordinance No. 67-2, Section 3 of the City of Birmingham. A jury in fixing his punishment assessed a fine of $300.00, to which the Court added a term of hard labor for 180 days.

We have today affirmed the conviction of appellant for violating the same ordinance in exhibiting an obscene motion picture film entitled “Referral Service,” which case is styled “Michael Robinson v. City of Birmingham, 6 Div. 363 [Ala.Cr.App., 353 So.2d 528].”

The 6 Div. 363 case was written by Judge Leigh M. Clark, Supernumerary Circuit Judge. If we change the division number, the name of the obscene film, and the punishment meted out to appellant, the issues raised in the present case are identical to those raised and resolved by Judge Clark in 6 Div. 363, Ala.Cr.App., 353 So.2d 528.

We are in complete agreement that the opinion written by Judge Clark in his usual excellent, eloquent, and scholarly manner should be, and hereby is, adopted as the law of the present case. Judge Clark’s resourcefulness and style of writing are the despair of emulation, and to attempt to add anything to his opinion would be fruitless and futile. His opinion is classic, exhausting the gifts of rhetoric, and enriches the literature of the law as well as its substance, This case is affirmed on authority of the case written by Judge Clark.

AFFIRMED.

Certiorari denied, Ala., 353 So.2d 535.

All the Judges concur.


text:
    Ex parte Michael ROBINSON.
    77-157.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: BOWEN W. SIMMONS, Retired Circuit Judge. SIMMONS, Retired Circuit Judge.

text:
    Beverly SELLERS v. STATE.
    1 Div. 770.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.

      Arthur P. Clarke, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent, was indicted for first degree murder. She was convicted by a jury on a plea of not guilty; sentence, life imprisonment.

The victim was defendant’s newborn infant. The evidence was largely circumstantial.

I

Appellant asserts prejudicial error in the admission in evidence of a photograph of the deceased infant after an autopsy had been performed. Appellant contends that said photograph (Exhibit # 1) was unnecessary in view of other evidence in the case; that in any event the probative value was “. . . so far outweighted by the prejudicial impact as to call for its exclusion.”

The record fails to show that an objection to the admission was based on such contentions as above indicated. We quote:

“THE COURT: Your objection is what, now, Mr. Clark?
“MR. CLARK: That there has been no proper predicate for the photograph to be introduced into evidence as far as the chain of custody.
“THE COURT: On that ground I would overrule your objection and grant the motion that it be allowed into evidence. Mark it into evidence, Mr. Reporter.”

Defendant was bound by the grounds specified in her objection to the admission of the testimony. She cannot here assert other grounds which are waived. Prince v. State, 50 Ala.App. 644, 282 So.2d 83(4); Vol. 6A, Ala.Digest Criminal Law @=>695(4).

II

Appellant complains that the Court erred in refusing to give her written Charges Nos. 11, 15 and 16, as follows:

“DEFENDANT’S REQUESTED JURY CHARGE NO. 11
The law presumes that the defendant is innocent of the charge against her and this presumption of innocence is evidence in her behalf to be considered by you, and you cannot find her guilty, until, from the evidence, her guilt is established to your reasonable satisfaction and beyond a reasonable doubt.” (Italics added.)
“DEFENDANT’S REQUESTED JURY CHARGE NO. 15
The Court charges the jury that the defendant is presumed to be innocent until the evidence convinces the jury beyond all reasonable doubt that she is guilty; and if, upon a consideration of all the evidence, the jury have a reasonable doubt growing out of all the evidence, they must acquit the defendant.” (Italics added.)
“DEPENDANT’S REQUESTED JURY CHARGE NO. 16
The presumption of innocence attends the accused as a matter of evidence, and is sufficient in itself to authorize the acquittal of the defendant and, to displace this presumption of innocence, the State is required to offer evidence that convinces you beyond all reasonable doubt as to the guilt of the defendant.” (Italics added.)

The italicized words in Charge No. 11 make it misleading and properly refused. Guenther v. State, 282 Ala. 620, 213 So.2d 679(7).

Charge No. 15, supra, was properly refused. It was fully covered by the Court’s oral charge.

Charge No. 16, supra, contains the words “as a matter of evidence,” which do not appear in the excerpt of the oral charge as follows:

“. . . The basic principle of law, that is always the first thing I generally say to a jury, in a criminal case, is this, everyone charged with a crime in Alabama is presumed innocent. That means this defendant in this case under this indictment is presumed to be innocent from the time that she is charged, and that presumption would continue on and she would end up presumed innocent at the end of the trial, unless the State of Alabama, by and through the District Attorney’s office prosecuting the charge proves beyond a reasonable doubt and to a moral certainty the defendant’s guilt of the charge set out in the indictment. So, that presumption of innocence, as I said, prevails, until the State meets that burden of proving the defendant’s guilt beyond a reasonable doubt and to a moral certainty . . . .”

Under some circumstances refusal of a charge of like import containing the words “as a matter of evidence” is error. Bryant v. State, Ala.Cr.App., 348 So.2d 1136; Denson v. State, 50 Ala.App. 409, 279 So.2d 580(3).

But in the instant case we are of the opinion that reversible error is not made to appear in the refusal of the Court to give Charge No. 16, supra. Gordon v. State, 268 Ala. 517, 110 So.2d 334. See also, Murray v. State,. 49 Ala.App. 590, 274 So.2d 365(1), certiorari denied. In re: Murray v. State, 290 Ala. 369, 274 So.2d 368. We are firmly convinced that the same rule of law was substantially and fairly given in the Court’s aforequoted oral charge. Section 273, Title 7, Code of 1940.

We wish to state parenthetically that some confusion, or maybe a reversal, might be avoided if the trial judge would inform the jury, by written or oral charge, that the presumption of innocence is evidence for the defendant. It might be helpful if the judge would also tell the jury that in assessing defendant’s guilt or innocence to consider this presumption along with the other relevant evidence.

We are not unmindful that each of the Charges, Nos. 15 and 16, supra, uses the words “all reasonable doubt” instead of “a reasonable doubt,” and therefore, each was properly refused. Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130; cert. den. 291 Ala. 774, 285 So.2d 134.

We do not find any prejudicial error in the record.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, .of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.

ON REHEARING

SIMMONS, Retired Circuit Judge.

We think refused Written Charge No. 9 is covered by the oral charges. Title 7, § 273, Code of Alabama, 1940.

We will not review appellant’s contentions of error in the court’s oral charge. There were no exceptions thereto. In the absence of an exception, or written requested charges which are refused the defendant, the oral charge is not reviewable. Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576. Exceptions to the oral charges of the court should specify the part excepted to. Owens v. State, 53 Ala.App. 553, 302 So.2d 240.

Application overruled.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Anita WEED v. STATE.
    6 Div. 445.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.
    James M. Jolly, Birmingham, Lipscomb & Lipscomb, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Aiding a prisoner to escape; ten years.

The facts of this case are substantially the same as those in Hall v. State, Ala.Cr.App.1977, 352 So.2d 8. For this reason they will not, for the purpose of this opinion, be repeated.

Anita Weed was charged with the statutory offense appearing in T. 14, § 157, Code of Alabama 1940, Recomp. 1958. It reads:

“Aiding convicts to escape from place of confinement; rescue. —Any person who conveys into the county jail, or into the penitentiary, or into any convict prison, or into any other lawful place of confinement, any disguise, weapon, tool, instrument, or other thing useful to aid any prisoner to escape therefrom, with intent to facilitate the escape of any prisoner lawfully confined therein under a charge or conviction of felony, or who, by any other act, or in any other way, aids or assists such prisoner to escape, whether such escape be attempted or effected or not, or who rescues, or attempts to rescue, any such prisoner therefrom, or from the lawful custody of any officer or person, shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years.”

The indictment presented against the appellant which embodies T. 14, § 157, supra, omitting the formal parts, charges:

“ . . . Anita Weed whose name to the Grand Jury is otherwise unknown, did convey into the County jail of Jefferson County at Bessemer, Alabama, a weapon, tool instrument or other thing useful to aid a prisoner to escape, with intent to facilitate the escape of a prisoner lawfully confined therein under a charge or conviction of a felony, or with intent to facilitate the escape of a prisoner lawfully confined therein under a charge or conviction of a felony, did aid or assist such prisoner to escape therefrom, . . ”

Three basic requirements of proof are necessary for a conviction under the statute recited above: (1) “ — a prisoner confined under a lawful charge or conviction of a felony.” (2) “The conveying into the jail of some instrument, etc., useful to aid the escape,” and (3), “The intent thereby to facilitate the escape of such prisoner.” Baker v. State, 19 Ala.App. 437, 97 So. 902.

In the present case the prosecution in an attempt to prove the first requirement, was allowed to present into evidence the trial docket sheets showing the felony convictions of Elton Hall and Johnny Williams. Under Hall v. State, supra, and the cases cited therein, this was an improper method of proving that a prisoner was confined under a lawful charge or a conviction of a felony. Baker v. State, supra.

This court in Hall v. State, supra, said:

“The trial docket sheet is not a record, but is only a directive to the clerk as to what judgments and orders should be entered on the court’s records.”

Permitting the introduction of the trial docket sheets was error and on the authority of Hall v. State, supra, the conviction is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Charles L. BURKS v. STATE.
    3 Div. 761.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      Charles D. Langford for Gray, Seay & Langford, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery. The jury fixed punishment at twenty-eight years imprisonment.

On the morning of December 2,1976, two men robbed Boyett Brothers Service Station in Montgomery, Alabama, of $160.00. The police were notified immediately and within minutes Officer D. P. Bailey of the Montgomery Police Department and his partner had apprehended four suspects; one of whom was the appellant and another who fit a description of the robber described in a radio dispatch received by the officers. A sack of money was found in the automobile next to the appellant. The suspects were immediately taken to Boyett’s where an employee identified the man who held the pistol and took the money from the cash register. The employee also recognized the appellant, not as one of the robbers, but as being an employee of Boyett’s. The employee testified that only two people were involved in the robbery.

After being advised of his constitutional rights the appellant made a statement to a city detective in which he confessed his involvement in the robbery.

I

The appellant maintains that the trial judge’s aid to the district attorney unduly prejudiced the jury and denied the appellant a fair trial. The actions of the trial judge found objectionable involve the allowing of photographic exhibits of the state into evidence subject to their being “tied up”, the assistance given the deputy district attorney in presenting the proper predicate for the admission of a photograph and the alleged sustaining of an objection without objection having been made by the state.

We have carefully reviewed every criticized action of the trial judge and find each to be without merit.

The admission of evidence before evidence which would make it relevant is offered so that it would be “connected” or “tied up” is in the discretion of the trial judge. Holland v. State, 24 Ala.App. 199, 132 So. 601 (1931). It is well settled that the trial judge has broad discretion in determining the order of proof in a criminal prosecution. Davenport v. State, 53 Ala.App. 326, 299 So.2d 767, cert. denied, 293 Ala. 751, 299 So.2d 771 (1974); and cases cited at 6A Alabama Digest, Criminal Law «=» 683(1).

While the trial judge has a duty of impartiality, he is not a “stone-cold computer . draped in a black robe, set up behind the bench, and plugged in to begin service as Circuit Judge.” Allen v. State, 290 Ala. 339, 343-344, 276 So.2d 583, 586 (1973).

The comments .of a trial judge in suggesting to the prosecution, or the defense, the proper way in which to introduce admissible evidence do not constitute error where those comments do not prejudice the defendant or indicate any bias or attitude of the judge on the guilt or innocence of the accused or on the effect or weight to be given such evidence once admitted. Thus, it is not error for a trial judge, after the state has closed its case, to suggest that the venue has not been proved, Anderson v. State, 104 Ala. 83, 16 So. 108 (1893); to suggest to the state’s attorney that he might introduce the sheriff to identify certain evidence. Roden v. State, 5 Ala.App. 247, 59 So. 751 (1912); to ask if the prosecutor objects to testimony elicited by defense counsel, Gulley v. State, Ala.Cr.App., 342 So.2d 1362, 1365 (1977), or to state that if prosecution would object the judge would sustain, Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970). It is not error for the judge to state to counsel that a further question asked of a witness has been answered, Davis v. State, 216 Ala. 475,113 So. 393 (1927); or that defense counsel’s question was argumentative without objection having been made, Vaughn v. State, 25 Ala.App. 204, 143 So. 211 (1932).

The record clearly does not establish that either the separate or cumulative effect of the criticized remarks and actions of the trial judge deprived the appellant of a fair and impartial trial. While each instance of an alleged display of bias or impartiality must be viewed on its own merits, the facts in this case disclose that the trial judge acted within the bounds of judicial discretion and the propriety due his much respected office.

II

The appellant also alleges that the totality of the circumstances reveals that the confession of the appellant was not voluntary and therefore should not have been admitted into evidence. We disagree.

The voluntariness of a confession, authorizing its admission into evidence, must be determined by the trial judge in the exercise of enlightened discretion and a decision allowing a confession into evidence will not be disturbed unless it is palpably contrary to the weight of the evidence. Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974). Where the trial court finds on conflicting evidence that a confession was voluntarily made, such finding will not be disturbed on appeal unless it appears contrary to the great weight of evidence or is manifestly wrong. Thompson v. State, Ala. Cr.App., 347 So.2d 1371, and cases cited at 1375, cert. denied, Ala., 347 So.2d 1377 (1977); Elliott v. State, Ala.Cr.App., 338 So.2d 483 (1976); Jenkins v. State, Ala.Cr.App., 337 So.2d 72 (1976); Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 688 (1976).

Here there is no need to detail the conflicting evidence presented on the issue of voluntariness. While the appellant testified that his confession was induced, coerced and involuntary, the testimony of the officer who took the appellant’s statement disclosed that neither he nor anyone in his presence applied any violence to the accused or made any threats or promises to him prior to his confession and that the confession was taken only after the accused had been informed of and intelligently and voluntarily waived his Miranda rights. Under these facts, the confession was properly admitted. Gibson v. State, Ala.Cr.App., 347 So.2d 576 (1977); Sullivan v. State, Ala.Cr.App., 340 So.2d 878, cert. denied, Ala., 340 So.2d 881 (1976).

We have written to each error assigned by the appellant and in addition have searched the record as required by law. Finding no errors prejudicial to the substantial rights of the appellant which would require a reversal, we are of the opinion that the judgment of the trial court and the finding of the jury are due to be affirmed.

AFFIRMED.

All Judges concur.

      . “Q. Deputy District Attorney: This picture, which has been marked for identification purposes as State’s Exhibit Number 5, do you or do you not recognize what is depicted there?
      “A. I do.
      “Q. What does that depict?
      “MR. SEAY (Defense Counsel): Objection. That is not the proper predicate testimony as to the—
      “THE COURT: Sustained. Ask him if it accurately and adequately portrays the scene it depicts and then tell you what the scene is.”

      . “Q. (Defense Counsel): Now, during this period of time that you have been pastor there, will you state whether or not you have observed Charles Burks as to his reputation?
      “A. Yes, I have.
      “MR. BELL (Deputy District Attorney): I object unless he can qualify it as to before December the 3rd, 1976.
      “THE COURT: Overruled.
      “A. Yes, I have observed his—
      “Q. All right. Have you been able to form an opinion?
      “A. Yes, I have.
      “Q. Would you state what your opinion is?
      “A. Well—
      “THE COURT: Sustain the objection.
      “MR. LANGFORD (Defense Counsel): I don’t think he objected.
      “MR. BELL: I object.
      “THE COURT: Sustained.”


text:
    Sammy BECKLEY, alias Sammy Lee Beckley v. STATE.
    6 Div. 583.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      John H. England, Jr., of Forte, England & Bivens, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

In August of 1974 the Grand Jury of Tuscaloosa County indicted the appellant for rape. This court reversed the appellant’s first conviction for this crime due to an irregularity in the Tuscaloosa County juror selection process. See Beckley v. State, Ala.Cr.App., 342 So.2d 1330 (1976). On retrial the appellant was again convicted and sentenced to a term of one hundred fifty years imprisonment. Before the appellant was retried, the victim of the rape died. Therefore her recorded testimony in the first trial was read to the second jury.

On December 3, 1971, the eighty-three year old victim, who lived alone in Tuscaloosa, Alabama, was at home listening to the radio. She had latched the screen doors to the front and back porches of her house and was fully clad lying across the bed in her bedroom. Suddenly a man leaped on top of her while another man proceeded to rummage through and ransack her belongings. She could see neither the man who raped her nor the other intruder well enough to identify either of them, but did notice that the rapist was wearing glasses.

The rapist and his accomplice left the house in a ransacked condition; the victim’s clothes were torn and her face taped with adhesive tape. A jar of vaseline and a roll of tape were found near or on the victim’s bed. Two sets of footprints were found in the house. A light bulb from the back porch “drop cord light” was missing.

A physical examination conducted the night this incident occurred revealed that the victim sustained severe swelling and redness of the labia and of the large lips on the outside of the female organs and multiple minor lacerations; also slight bleeding, generalized tenderness in the area of the vagina, and small cuts on the vaginal wall itself were detected.

In a statement given to police officers, the appellant blamed his companion, a Robert Lewis for the rape and disclaimed any willing participation in the venture. He stated that on the night he and Lewis entered the victim’s home he was dressed entirely in black and was wearing “shades”, and he further stated that Lewis did not have glasses on. The appellant admitted having unscrewed the light bulb to the back porch light and having touched various other articles on which his fingerprints might have been found. He maintained that he was checking out the windows in various rooms of the house to make sure their presence had not been observed by any neighbors. In his statement the appellant alleged that Lewis must have previously been inside the house because they entered through the front door. The appellant stated that Lewis had already raped the victim before he got there and although Lewis attempted to get the appellant to “mess with that old lady”, the appellant refused. At trial no defense was offered.

I

Initially the appellant contends that his conviction should be reversed because of the failure of the state to prove penetration.

An essential element of the crime of rape is actual penetration. Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 688 (1976).

“However, penetration to any particular extent is not required, * * * nor need there be an entering of the vagina or rupturing of the hymen, the entering of the vulva or labia being sufficient; but some degree of entrance of the male organ within the labia pudendum is essential.” Thomas v. State, 53 Ala.App. 232, 236, 298 So.2d 652, 656, cert. denied, 292 Ala. 755, 298 So.2d 657 (1974) quoting from 75 C.J.S. Rape § 10b p. 472.

Although the fact of penetration must be established beyond a reasonable doubt in order to sustain a conviction for rape, it need not be proved in any particular form of words, and circumstantial evidence may suffice. Anderson v. State, 35 Ala.App. 557, 51 So.2d 257 (1951). See also 75 C.J.S. Rape § 71 p. 547.

A review of the facts leads us to the conclusion that the state established a pri-ma facie case, of rape and that there was sufficient evidence from which the jury could find that the element of penetration was present. A consideration of the victim’s testimony that a “heavy body was on top of her”, her subsequent complaint of rape, and the nature and location of the injuries she sustained constitute circumstantial evidence of the fact of rape and are inconsistent with any other reasonable conclusion. By the appellant’s own admission the victim was raped, though not by him. The admission of the accused in conjunction with the other evidence was sufficient proof of penetration to sustain a conviction for rape. Mora v. State, 74 Tex.Cr. 26, 167 S.W. 344 (1914). Whether there was actual penetration was a question of fact for the jury. Liptroth, supra; Peeples v. State, 50 Ala.A.pp. 626, 282 So.2d 65 (1973).

II

In his confession to the police, the appellant stated, in substance, that he removed a light bulb from a drop cord light on the back porch of the victim’s house so the neighbors would not see him. In the oral instructions to the jury the trial judge charged:

“Say two people are going to commit a crime in a lighted area and in order to keep the light from shining on them one of them turn (sic) the lights off or takes the bulb out of the socket so that they will not be seen in the commission of an act of assault of some nature. Then, of course, the person removing the bulb being present there, he would be just as guilty as the person who committed the assault if he did aid and abet the person who committed the assault or I could give you many, many definitions but you are to determine from all the evidence you have heard here as to whether or not the accused did in fact aid or abet the person who committed the act of rape, if you find that the accused did not actually commit the act of rape.”

The appellant contends that this charge was misleading in that it failed to refer to an accused having an intent to aid and abet and amounted to a charge upon the effect of testimony.

In Dunn v. State, 8 Ala.App. 410, 412, 62 So. 996, 997 (1913) the rule is stated

“A charge upon the effect of the evidence is a charge which instructs the jury that certain facts in issue have been proved or not proved, or that certain evidence in the case does or does not establish a certain fact or facts in dispute, or directs the jury what their finding on an issue of fact must be if they believe the evidence in the case, etc.”

See also Wyman v. State, 47 Ala.App. 643, 259 So.2d 849 (1972); Breedwell v. State, 38 Ala.App. 620, 90 So.2d 845 (1956). As in Dunn, supra, “the charge criticised is clearly not a charge upon the effect of the evidence but one merely in explanation and illustration of the meaning of a rule of evidence given on a hypothesized state of facts.” It was neither an instruction on what the evidence showed nor an instruction that, if the evidence did so show, the jury must find the defendant guilty.

The appellant’s allegation that the cited portion of the charge is misleading is without merit and is based upon a consideration of an isolated remark of the trial judge. Portions of the oral charge excepted to must be construed in connection with the whole charge of the court. Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958); White v. State, 42 Ala,App. 249, 160 So.2d 496 (1964); Standard v. State, 51 Ala.App. 176, 283 So.2d 627 (1973). It is the responsibility of this court to evaluate the trial court’s oral charge to the jury as a whole and not by isolated sentences or segments. United States v. White, 459 F.2d 990 (C.A. Ala.1972); Wright v. State, 269 Ala. 131, 111 So.2d 596 (1959). We call attention to the fact that other portions of the court’s oral charge correctly explained the requisite elements of intent and knowledge in the act of aiding and abetting. Also, after exception was taken, the trial judge carefully cautioned the jury on the proper interpretation to be given his examples and further instructed the jury on the law of aiding and abetting. For these reasons we find that the criticized charge was neither misleading nor a comment upon the effect of the evidence.

The appellant’s objection to another portion of the trial judge’s charge as misleading and as a misstatement of the law is also without merit for the reasons we have stated.

III

As a final argument the appellant contends that the trial court committed reversible error in admitting into evidence hospital records of the victim which contained hearsay statements of the prosecu-trix going into the details of the alleged rape. From the record we are unable to determine the nature of this complaint for the reasons that the hospital records are not contained in the record on appeal and the appellant has not stated or set forth the objectionable details allegedly contained in the hospital records. This court cannot review rulings relating to the admission of records where such records do not appear in the record. Swindle v. State, 27 Ala.App. 549, 176 So. 372, cert. denied, 234 Ala. 621, 176 So. 375 (1937). Under such circumstances, we must indulge the presumption in favor of the trial court’s ruling. Rogers v. State, 275 Ala. 588, 157 So.2d 13 (1963). Moreover there was no objection to the introduction of the hospital records at the time they were offered. Objection came only after the records had been admitted into evidence. An objection to evidence must be made when that evidence is offered. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).

We have carefully reviewed the entire record and are of the opinion that the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.

      . On the appellant’s first conviction, punishment was fixed by the jury at fifteen years. The fact that he received an increased jury sentence under his second conviction presents no violation of his constitutional rights as the record does not indicate that the second jury was aware of the sentence in the first trial. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); McDonald v. State, 56 Ala.App. 147, 320 So.2d 80 (1975). The appellant has not advanced this issue on appeal.


text:
    David Nolan DRUMMOND v. STATE.
    6 Div. 595.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Pat Nelson of Elliott, O’Rear & Robinson, Jasper, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years in the penitentiary.

Appellant’s court-appointed counsel raises two issues on this appeal in which he asserts error to reverse, (1) the absence of counsel at arraignment, and (2) comment by the District Attorney in closing argument on the failure of the defendant to testify.

The record at arraignment and the judgment entry affirmatively show that appellant was not represented by counsel at arraignment and that he did not waive arraignment. This constitutes reversible error. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Garsed v. State, 51 Ala.App. 622, 288 So.2d 161; Knight v. State, 42 Ala.App. 672, 178 So.2d 101; Perkins v. State, 281 Ala. 139, 199 So.2d 839.

Since this case must be reversed for the error noted we do not deem it necessary to write to appellant’s other claim of error.

Reversed and remanded for a new trial.

All the Judges concur.


author: SUNDBERG, Justice.

text:
    Francisco CHURRUCA, Ricardo Sotil, Txomin M. Ibarlucea, Juan J. Calzacorta, Jacinto Guenaga Garramiola, Javier Astarloa, Juan M. Carmelo Recalde Irueta, Antonio Mugartegui Plaza, Jose Maria Orbea Olasolo, Juan Urdampilleta Artazamona, Felix Arrarte Guisasola, and Jose J. Echaburu Arrizabalaga, Petitioners, v. MIAMI JAI-ALAI, INC., Florida Jai-Alai, Inc., Tampa Jai-Alai, Inc., Dania Jai-Alai Palace, Inc. (formerly Monro Operating Co., Inc.), the Fronton, Inc., Volusia Jai-Alai, Inc., and Department of Business Regulation, Division of Pari-Mutuel Wagering of the State of Florida (formerly The Florida State Racing Commission), Respondents.
    No. 50665.
    Supreme Court of Florida.
    Nov. 17, 1977.
    Rehearing Denied Jan. 25, 1978.

      Seymour Kaplan and Daniel Neal Heller, of Heller & Kaplan, Miami, for petitioners.
    William Snow Frates, Scott D. Sheftall and James D. Little, of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, Joseph M. Murasko, Fern Park, William R. Dawes, Miami, and Eli H. Subin, of Subin, Shams, Rosenbluth & Moran, Orlando, for respondents.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 338 So.2d 228, which is alleged to be in conflict with Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958), and Margolin v. Morton F. Plant Hospital Assn., Inc., 342 So.2d 1090 (Fla. 2d DCA 1977), on the issue of whether a complaint is actionable which alleges that defendants maliciously conspired to punish plaintiffs by depriving them of their livelihood. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioners comprise a group of professional jai-alai players who were previously employed by respondent frontons. In 1968 petitioners formed a union and sought both higher wages and increased benefits from the frontons by striking and refusing to honor their player contracts for the 1968-1969 season. Consequently, respondents engaged less distinguished players as replacements. While these new players were not widely accepted initially, they eventually gained the appreciation of the fans.

Recognizing their strike was ineffectual, petitioners sought reemployment for the 1969-1970 and ensuing seasons at the prevailing wages and conditions being offered to other jai-alai players. The fronton owners uniformly declined to extend contracts of employment to the petitioners. Respondent Department of Business Regulation refused to issue petitioners licenses unless they were presently employed by a fronton. Unable to obtain employment, petitioners (plaintiffs) sued the frontons for conspiracy to deprive them of their right to earn a livelihood. The case was dismissed for failure to state a cause of action. That dismissal was affirmed by the District Court of Appeal, Third District, and this Court discharged a petition for writ of certiorari “without prejudice to whatever rights, if any, petitioners may have for tortious conspiracy occurring subsequent to the 1968-1969 jai-alai season.” Churruca et al. v. Miami Jai-Alai, et al., 289 So.2d 395 (Fla.1974). Petitioners then filed the present action against respondents alleging that respondents were engaging in a conspiracy not to employ them. Essentially, plaintiffs alleged that defendants agreed collectively to refuse them employment in retaliation for their prior demands. After their original and amended complaints were dismissed, petitioners filed a second amended complaint which was dismissed with prejudice. On appeal, the District Court of Appeal, Third District, affirmed the dismissal order.

This Court is asked to determine whether the second amended complaint sufficiently alleges a cause of action. We believe that the complaint states a cause of action for tortious conspiracy against respondent fron-tons and, consequently, are compelled to quash that portion of the decision of the District Court of Appeal, Third District. However, we sustain the district court’s af-firmance of the trial court’s dismissal of the respondent Department of Business Regulation because it enjoys sovereign immunity.

Initially, respondents argue that the second amended complaint is barred by res judicata. They contend that after this Court ruled there were no allegations concerning the 1968-1969 season which constituted a cause of action, the petitioners nevertheless brought this action complaining that they had been wronged in subsequent years, without alleging any new material facts. That contention is without merit. Petitioners now allege continuing conduct on the part of the respondents stemming from the original dispute in 1968. This Court’s mandate stated emphatically that “the Petition, for Writ of Certiorari is dismissed, without prejudice to whatever rights, if any, petitioners may have for a tortious conspiracy, if any, occurring subsequent to the 1968-1969 Jai-Alai season,” 289 So.2d at 396.

Respondents next argue that the second amended complaint does not state a cause of action in tortious conspiracy. That argument is also unpersuasive. In order to sustain their cause of action, petitioners must demonstrate that the conspirators acted with evil motive. It is true that the respondent frontons are individually entitled to employ whomever they wish. They may even decide in combination to refuse employment to prospective employees if they believe those persons would be unsatisfactory. However, if the concerted effort of the fronton owners is designed maliciously for the purpose of beggaring petitioners by depriving them of their livelihood, the employers are guilty of tortious conspiracy.

In their second amended complaint, petitioners allege in pertinent part:

18. At a time unknown to the plaintiffs, the defendant frontons had conspired and confederated with each other for the purpose of keeping them from securing employment in the jai-alai fron-tons in Florida.
% # %
25. This aforesaid refusal was the result of defendant frontons knowingly, wilfully, wantonly, wickedly, maliciously, and malevolently, conspiring, combining, confederating and agreeing together to prevent the plaintiffs, and each of them, playing jai-alai at the defendant fron-tons.
26. The said jai-alai frontons, at a time unknown to the plaintiffs, maliciously, wantonly, and wilfully conspired and agreed together to punish the plaintiffs, and each of them, for their having joined the Union and supported the Union’s demands as aforesaid and for their refusal to play as aforesaid during the said 1968-1969 season.
27. The said punishment was and is the malicious, wanton, wilful, malevolent boycott and lockout of the plaintiffs and each of them from their employment by each and every defendant fronton.
28. The said joint boycott and lockout commenced at a time unknown to the plaintiffs and has persisted continuously since.
29. Until said conspiracy is terminated, the plaintiffs and each of them will be unable to secure employment in their chosen occupation of jai-alai player. (Emphasis supplied)

If petitioners can sustain their burden of proof of establishing that respondents acted with punitive motives, as alleged in their complaint, they are entitled to recovery. This conclusion is suggested by our decision in Snipes v. West Flagler Kennel Club, Inc., supra.

In Snipes, the plaintiff, who raised and raced greyhounds, brought suit against five racetrack corporations for conspiring to destroy him financially by refusing to schedule plaintiff’s greyhounds on their tracks. The complaint further alleged that the defendants, through their force of numbers and economic stature, intimidated other dog track owners in the State into becoming unwilling participants in the conspiracy. The trial court dismissed the complaint for failure to state a cause of action. On appeal, this Court reversed, holding that although the general rule is that “an act which constitutes no ground of action against one person cannot be made the basis of a civil action for conspiracy,” 105 So.2d at 165, Liappas v. Augoustis, 47 So.2d 582 (Fla.1950), in certain circumstances mere force of numbers acting in unison may comprise an actionable wrong. In essence, this. Court stated that ordinarily there can be no independent tort for conspiracy. However, if the plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual would not possess, then conspiracy itself becomes an independent tort. See also Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083 (1943); DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 932 (1938); Cummings v. Harrington, 278 Mass. 527, 180 N.E. 519 (1932).' The essential elements of this tort are a malicious motive and coercion through numbers or economic influence. See Hunter Lyon, Inc. v. Walker, 152 Fla. 61, 11 So.2d 176 (1942); Regan v. Davis, 97 So.2d 324 (Fla. 2d DCA 1957).

The District Court of Appeal, Second District, recently followed the reasoning of Snipes in Margolin v. Morton F. Plant Hospital Assn., Inc., supra. The plaintiff in Margolin, a surgeon and member in good standing of the Morton F. Plant Hospital medical staff, sued the executive director of the hospital, the president of the hospital’s staff, and the licensed physicians who practice anesthesiology as members of the hospital staff. The defendants as a whole allegedly exercised absolute control over the availability and rendering of general anesthesia services to all surgeons and patients at the hospital. Plaintiff alleged that the anesthesiologists had maliciously conspired as a group to refuse to perform services for his patients, thereby hoping to bring about his financial ruin by effectively precluding him from using the hospital. The court, speaking through Judge Grimes, held that the complaint stated a cause of action under the Snipes rationale. In summarizing Snipes, Judge Grimes stated:

In essence, even though a person has the privilege of selecting those with whom he wishes to conduct business, when several persons who occupy a coercive position with respect to another act in concert to decline to do business with him, their refusal may under certain circumstances constitute an independent tort.

Id. at 1094.

Respondents urge this Court to limit application of the Snipes and Margolin reasoning to situations where employers, who would otherwise be willing to hire the plaintiff, are intimidated into becoming unwilling partners in the boycott. In view of our previous exposition, we reject this proposition as restricting the scope of Snipes too narrowly.

Respondents maintain that at common law and under the federal equivalent of Chapter 542, Florida Statutes (1975), combinations for economic coercion in connection with labor disputes are not actionable. They assert to hold otherwise would make all combinations for economic coercion by labor or management conspiracies at law, which obviously would be untenable. While we do not hold today that Chapter 542, Florida Statutes (1975), provides a cause of action to petitioners in the context of this case, nevertheless, we do not accept the contention that a cause of action for tortious conspiracy is precluded simply by casting the veil of “labor dispute” over the controversy. When the conduct of a combination of employers, maliciously conceived and executed, amounts to a “black listing” of employees so as to permanently deprive them of the means of earning a livelihood, a common law cause of action is presented upon which a jury may return damages.

Finally, respondents Volusia Jai-Alai, Inc., Miami Jai-Alai, Inc., and Tampa Jai-Alai, Inc. submit that the Department of Business Regulation was properly dismissed from the suit because, as a department of the executive branch, it had not waived its sovereign immunity. We agree. In their complaint, petitioners allege that the conspiracy began subsequent to the 1968 — 1969 season and prior to the 1970— 1971 season. Section 768.15, Florida Statutes (1969), constituted the general waiver of sovereign immunity act in effect at this time. Although that law provided a general waiver of immunity, effective July 1, 1969, for acts occurring after that date, it specifically did not provide for waiver of claims arising from the failure to issue a license. The statute provided in pertinent part:

[N]o action may be brought under this section if the claim:
(c) Arises out of the issuance, denial, suspension, or revocation of, or by the failure to issue, deny, suspend, or revoke, a permit, license, certificate, approval, order, or similar authorization; . . . ,

Petitioners argue that the Department of Business Regulation was improperly dismissed because essentially it is a partner in the pari-mutuel wagering business. They claim the Department is partially supported by funds generated from this business, and consequently, is incapable of assuming a position of neutrality. Therefore, the Department of Business Regulation exists to generate funds for the counties and, in so doing, exercises a proprietary rather than a governmental function. By this activity, petitioners conclude the Department of Business Regulation has impliedly waived its immunity as an agency of the State. We cannot agree that the function of the Department of Business Regulation fosters a lack of neutrality which necessarily characterizes its function as proprietary rather than governmental. The Department merely collects and remits a percentage of the pari-mutuel funds to the State in much the same fashion as the salesman who collects a sales tax from his customers and remits that tax to the State.

Since the Department of Business Regulation was properly dismissed, and the frontons do not act as agents for the State, there is no state action. Consequently, petitioners’ arguments that their complaint states a cause of action, inter alia, pursuant to the due process clause of the Fourteenth Amendment and to 42 U.S.C. § 1983, the Civil Rights Act, are without merit.

Accordingly, the petition for writ of cer-tiorari is granted, that portion of the decision of the District Court of Appeal, Third District, affirming the trial court’s order dismissing the second amended complaint as to the fronton owners is quashed, and this cause is remanded to the District Court of Appeal, Third District, with instructions to remand to the trial court for proceedings not inconsistent with the views expressed herein.

It is so ordered.

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

      . Sherman Act, 15 U.S.C. § 1 et seq.

      . § 768.15, Fla.Stat. (1969), was repealed without a savings clause by Ch. 69-357, § 1, Laws of Florida, effective July 1, 1970. Subsequently, it was revived for actions arising during the one-year period beginning July 1, 1969, by Ch. 71-165, Laws of Florida.


text:
    In re FLORIDA RULES OF CRIMINAL PROCEDURE (Rule 3.850—Model Form for Post Conviction Relief).
    No. 49355-E.
    Supreme Court of Florida.
    Dec. 22, 1977.
   PER CURIAM.

Appended to this order are amended and new rules of The Florida Rules of Criminal Procedure. These rules shall govern all proceedings within their scope after 12:01 a. m. January 1, 1978.

It is so ordered.

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

APPENDIX


author: PER CURIAM. PER CURIAM.

text:
    James CLARK, Appellant, v. STATE of Florida, Appellee.
    No. EE-221.
    District Court of Appeal of Florida, First District.
    July 11, 1977.
    On Rehearing Dec. 21, 1977.
    Michael Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed. Williams v. State, 110 So.2d 654 (Fla.1959); Wilson v. State, 304 So.2d 119 (Fla.1974); Bunch v. State, 303 So.2d 705 (Fla. 1 DCA 1974), cert. den., 314 So.2d 778 (Fla.1975), and Earnest v. State, 342 So.2d 1024 (Fla. 1 DCA 1977).

McCORD, C. J., and RAWLS and SMITH, JJ., concur.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

On petition for rehearing, appellant’s sentence is vacated, and this cause is remanded to the trial court for an appropriate sentence in accordance with the opinion of the Supreme Court filed August 31, 1977, in Earnest v. State, 351 So.2d 957.

McCORD, C. J., and RAWLS and SMITH, JJ., concur.


author: ANSTEAD, Judge.

text:
    The CHRISTIAN BROADCASTING NETWORK, INC., Appellant, v. SUN WORLD BROADCASTERS, INC., and Edward F. Starr, Jr., as Receiver of Sun World Broadcasters, Inc., Appellees.
    No. 77-655.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Rehearing Denied Jan. 23, 1978.
    Jeffry R. Jontz and N. Lee Sasser, Jr. of Young, Turnbull & Linscott, P.A., Orlando, for appellant.
    Carl D. Motes of Maguire, Voorhis & Wells, P.A., Orlando, for appellee Sun World Broadcasters, Inc.

      Eli H. Subin of Subin, Shams, Rosenbluth & Moran, Orlando, for appellee Edward F. Starr, Jr.
   ANSTEAD, Judge.

This is an appeal from an order striking the claim of the appellant, The Christian Broadcasting Network, Inc., against the ap-pellee, Sun World Broadcasters, Inc., whose assets are in receivership as a result of dissolution proceedings. We reverse.

The trial court entered an order requiring claims against Sun World to be filed within four months. RCA Corporation filed a claim, based on the breach by Sun World of a lease of broadcasting equipment, within the proper time. Thereafter, RCA assigned its claim to the Christian Broadcasting Network. Subsequently, without proper notice, the trial court granted the receiver’s motion to strike Christian’s claim. The trial court held that Christian’s claim was a contingent claim and therefore not a proper claim in receivership proceedings. This conclusion was apparently based on the fact that RCA Corporation, who had assigned the claim in question to Christian, had previously secured a summary judgment against Sun World for breach of the lease in question, but had only then been awarded the right to possession of the leased equipment with the court reserving the right to determine any damages, attorneys fees or costs, on subsequent motion by RCA. Because no damages had yet been determined in the action for breach of lease as of the date the claim was filed, the trial court concluded:

In consideration of these findings, the court concludes and is of the opinion that the dócument filed by RCA Corporation is not a claim within the meaning of Section 607.284, Florida Statutes. It is a notice of an intention regarding a contingent unliquidated amount the right to which had not yet been determined.

The claim was stricken without an eviden-tiary hearing.

Neither the statute, Section 607.284, Florida Statutes (1975), or the court order requiring claims to be filed, contains any requirements as to the form of the claim to be filed. The court order only required the claim to be sworn and to be filed by a certain date. Christian’s claim complied with both requirements. Having done so Christian is entitled to have its claim heard on the merits. The receiver is entitled to object to the claim and indeed, in his report filed just prior to the hearing on the motion to strike he stated:

The Receiver intends to file an objection to RCA’s notice of its claim for rent on the grounds that it is estopped by its oral promise not to claim a deficiency if its equipment would be sold as a part of the Receiver’s sale of the Sun World assets. The Receiver will also contend that RCA did not sell its equipment in a commercially reasonable manner, and that its notice of a contingent claim is deficient, because it does not state a certain amount.

We believe that for these issues to be resolved, along with any others properly raised by the receiver, an evidentiary hearing with reasonable notice thereof is required.

The grounds relied on by the trial court in striking the claim as a contingent claim are not supported by the record because the lease which forms the underlying basis for the claim is not in the record and there is nothing else in the record to establish whether the claim is contingent, unliquidat-ed or liquidated. See Pennsylvania Steel Co. v. New York City Ry. Co., 198 F. 721 (2d Cir. 1912).

Accordingly, the order of the trial court of March 29, 1977 is reversed with directions for further proceedings consistent with this decision.

DAUKSCH and LETTS, JJ., concur.


author: BERANEK, JOHN R., Associate Judge.

text:
    Roscell LOUIS, as Legal Representative of the Estate of Mattie Louis, and Roscell Louis, Individually, and Roscell Louis, as next friend of Donna Louis and Debra Louis, Appellants, v. SOUTH BROWARD HOSPITAL DISTRICT f/a/o/b/o Memorial Hospital, City of Hollywood, et al., Appellees.
    No. 76-414.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 20, 1978.
    Harold C. Culmer, Miami, for appellants.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee-Hospital.
   BERANEK, JOHN R., Associate Judge.

Plaintiffs/appellants filed suit two days before the applicable statute of limitations ran. Pursuant to Fla.R.Civ.P. 1.050, the action against appellee was therefore “commenced” and the statute of limitations was tolled. Clearly, however, the limitations statute was only tolled as to the particular defendant named in the original complaint. Plaintiffs did not attempt service of process for approximately eight months. The defendant/appellee was in fact available for service of process at all times. When process was attempted, it was not effected on the defendant actually named in the complaint but was instead made on a different legal entity. A motion to dismiss was made and at the hearing there was agreement that the defendant named in the initial complaint was not in fact a legal entity. Plaintiffs’ initial complaint was dismissed with leave to amend and to effect new service of process.

Thereafter plaintiff amended the complaint and a new amended summons was issued.. This amended summons named yet a third defendant, and the amended complaint and summons were filed substantially beyond the running of the original statute of limitations. Subsequently, on motion for summary judgment, the case against appellee was dismissed on the ground that the action had been filed against this defendant after the running of the applicable two-year statute of limitations. There was confusion in regard to the name of the defendant, but we consider this confusion to have been substantial. The original complaint named “HOLLYWOOD MEMORIAL HOSPITAL OF WEST HOLLYWOOD.” The summons issued pursuant to the original complaint named “HOLLYWOOD MEMORIAL HOSPITAL . . . NORTH BROWARD HOSPITAL DISTRICT.” The amended summons and complaint named “SOUTH BROWARD HOSPITAL DISTRICT.” The North and South Broward Hospital Districts were listed in the different summonses at entirely different addresses. Here the trial court was correct in entering summary judgment for the defendant, “SOUTH BROWARD HOSPITAL DISTRICT,” on the ground that the action was instituted subsequent to the running of the applicable statute of limitations. We do not reach nor consider the issue of whether summary judgment may be entered against a plaintiff who unreasonably delays service of process for eight months beyond the running of the statute of limitations in an action filed within the statute of limitations. This issue was not necessarily addressed by the trial court because here the actual identity of the party defendant was changed. An amendment which merely corrects a misnomer might well relate back to the date the complaint was originally filed but this relation back rule is inapplicable where the effect is to bring new parties into the suit. Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970), and 3 MOORE’S FEDERAL PRACTICE § 1515. Summary judgment below is hereby AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Joe Grooms, Appellants, v. Sarah BECTON, Appellee.
    No. 76-2119.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 9, 1978.
    James M. Hess, Thomas G. Kane, and James 0. Driscoll of Driscoll, Baugh, Lang-ston, Layton & Kane, P. A., Orlando, for appellants.
    Bruce W. Jacobus of Ferrell and Jacobus, Melbourne, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

The appellee was successful in an action to establish a contract of insurance with the appellant, State Farm Mutual Automobile Insurance Company. The critical issue was whether the appellee’s contract of insurance had lapsed for non-payment. The following judgment was entered:

That the Plaintiff, SARAH BECTON, recover from the Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $3,950.00, pursuant to the contractual terms of Coverage F under State Farm Mutual Automobile Insurance Company’s Policy No. 2050 549-F14-59, for collision damage to her automobile. In the event this Judgment is reversed by an appellant court as to STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, then Judgment shall be entered for SARAH BECTON. and against Defendant JOE GROOMS in the amount of $3,950.00. In the event the Judgment entered against STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY is affirmed, or no appeal is taken, and the Judgment becomes final, then, Judgment shall be entered for JOE GROOMS and against Plaintiff, SARAH BECTON.

At the trial and prior to the entry of the final judgment the trial court expressed his reservations about the action. I believe the judgment is an expression of those reservations. As the trial court noted, the evidence is not clear as to the previous manner in which the parties had contracted for insurance or as to how premiums were paid. Under these circumstances I believe there should be a new trial.