text:
    Jerry PERSONS v. STATE.
    3 Div. 526.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.

      Charles S. Coody, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a conviction of robbery and a sentence to imprisonment for ten years. Defendant had pleaded not guilty and not guilty by reason of insanity.

Before the trial commenced, counsel for defendant made known to the court that he contended that defendant was incompetent to stand trial. He was obviously questioning the right of the State and the court to proceed with the trial unless and until a determination was made by a jury of the issue of his competency to stand trial when the trial court has reasonable ground to doubt his sanity at the time of trial or his competency to stand trial at such time, as required by Code 1940 Tit. 15, § 426, in pertinent part as follows:

“If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct. . . ”

The court denied the request implied in the action of counsel for defendant and proceeded with the trial. No question is raised on appeal as to the sufficiency of the evidence to sustain the charge of robbery; no claim is made that the jury was not acting well within its province in impliedly finding that defendant was not insane at the time of the alleged crime. Appellant contends that the evidence presented to the court before and during trial furnished “reasonable ground to doubt his sanity,” or his mental competency to stand trial, and that the trial court was in error in not having such issue determined by a jury before defendant was put to trial on the indictment.

In support of appellant’s contention, he relies chiefly on the testimony of appellant’s mother as follows:

“A I believe he is mentally retarded because I recognized it when he was six years old and I discussed it with his father that something was wrong with him and we should seek help to help him and he said no.
“Q Did Jerry have any problems in school as far as learning and being able to concentrate?
“A That’s right.
“Q What were those problems?
“A He couldn’t comprehend anything. He got F’s all the way through school. He was sixteen when he got out and, you know, they couldn’t control him and they just expelled him.
“Q Did you, in fact, seek any help for Jerry?
“A After his father died.
“Q Who did you go to?
“A I sent to Mental Health and I talked to a doctor.
“Q Montgomery Area Mental Health?
“A Yes, when it was on Jeff Davis.
“Q And they treated Jerry?
“A They talked to him and they got him in school a couple of times.
“Q Did Jerry get any disability checks from the Department of Mental Health or Social Security?
“A No, not until recently.
“Q That is what I am asking.
“A Recently.
“Q Was that based or do you know whether it was based on his mental disorder?
“A It was based on his mental disorder because I had a friend of mine take him down there because I had a stroke and I couldn’t get around too good. In the early part of September in ’74 I asked her to take him down and file him on mental health, retarded, but she couldn’t give all the information.”

Appellant also bases his present contention on some testimony of appellant’s mother prior to trial to the effect that on one occasion he had attempted to burn her with a cigarette lighter and had said, “I am trying to burn you up because we don’t need you.” There was some other testimony by appellant’s mother as to what she considered abnormal conduct on his part. Included in her testimony was evidence that at one time she attempted to have him hospitalized for mental illness, but after keeping him three days the doctor said, “There wasn’t anything wrong with him.”

Appellant argues that “Defendant fully met his burden of raising a sufficient doubt as to his competency by the uncontra-dicted evidence of his mother to the effect that he was mentally retarded.” We are unable to accept this conclusion. The fact that one is mentally retarded does not in and of itself require a finding by the trial court to the effect that it has reasonable doubt as to defendant’s competency to stand trial. In support of his proposition, appellant quotes from Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974) as follows:

“The evidence was without contradiction, both before and during trial, that the appellant was mentally retarded and functioning at the pre-school range of intelligence. We are of the opinion that this evidence was sufficient to generate a reasonable ground to doubt his competence to stand trial.”

In the instant case there was no evidence that defendant was “functioning at the preschool range of intelligence.” Furthermore, the statement quoted from Edgerson is not to be taken out of context. The evidence as to mental retardation of defendant and as to his pre-school range of intelligence was furnished by eminent psychiatrists and a psychiatric social worker. Edgerson had spent eleven years at the Partlow State School and five years at Searcy Hospital. There was voluminous evidence of several witnesses that he was considered by them to be insane.

We are not convinced that the trial court had, or should have had, reasonable ground to doubt defendant’s competency to stand trial.

After the court had given its oral charge, it stated to the jury, “now the defense has requested certain charges that are correct statements of law and I will read them to you at this time.” Appellant ingenuously argues that in the light of Rule 51, Alabama Rules of Civil Procedure, providing that the charges given “shall be read to the jury without reference as to which party filed the request,” and other authorities on the subject, the trial court committed prejudicial error in stating to the jury that the written charges were requested by defendant. He quotes from comments to ARCP 51, as follows:

“This rule prohibits identification of requested charges by reference to the party requesting same. If the purpose of reading the written charges to the jurors is to impress upon them that instructions prepared by the parties and given by the court are entitled to equal consideration with the court’s oral charge and contain correct statements of the law as approved and adopted by the court, it is hard to justify designating certain charges as having been requested by one party or the other. Since it is the duty of the court to instruct the jury on the law, and not the duty of plaintiff or defendant’s attorney, it would seem appropriate that the court make no comment as to which party requested the charge. In Carlson v. Sanitary Farm Dairies, 200 Minn. 177, 273 N.W. 665 (1937), Mr. Justice Loring of the Supreme Court of Minnesota stated:
“ ‘Before passing to the considerations of this charge, we wish to express our disapproval of the action of some trial courts in announcing, as was done in this case, that any portion of the charge is given by request of either party. A requested charge should be given only when the trial court approves of and adopts as its own the law contained in the request, and it should preferably be incorporated in the appropriate part of the body of the charge so as not to destroy its symmetry.’
“If the requested charges submitted to the court by the parties are correct statements of the law, little justification exists for singling them out as being charges requested by plaintiff or defendant.”

Appellant recognizes that the Alabama Rules of Civil Procedure are not applicable to criminal proceedings and that Code 1940, Tit. 7 § 273, which is applicable, provides:

“. . . The court shall after the conclusion of his charge to the jury read such written charges as he has given for the parties in a clear and audible voice, saying to the jury, ‘these are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you.’

It is not for us to here pass upon the relative merits or demerits between the procedures prescribed by the quoted provisions of Code 1940, Tit. 7 § 273, and Rule 51, ARCP. We must adhere to the law as it is and not attempt to change it to what we, or others, may think it should be. The trial court followed the applicable law in submitting defendant’s written charges to the jury as it did.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Thadis WORLEY, alias v. STATE.
    4 Div. 480.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Roger A. Prestwood, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was convicted of the offense of leaving the scene of an accident and was sentenced to serve four months in the county jail.

The accident occurred around midnight, October 31-November 1,1975. Odis Gainey testified that the accident occurred as he was driving his automobile west on county road number 86 in Covington County. He saw headlights approaching him on his side of the road. He swerved his car toward a ditch to avoid the oncoming car, however, the other car sideswiped his vehicle damaging the left rear side. The car failed to stop. Gainey could not identify the driver of the automobile that collided with him. State Trooper J. C. Fowler arrived at the scene of the accident shortly thereafter and picked up two pieces of chrome molding which were lying at the point of the impact.

Jimmy Lanier, Jr., testified that around midnight on the night in question he was driving his automobile in a westerly direction on the same road when he was approached by a vehicle which was moving very slowly. He said the approaching car was a 1957 Chevrolet with a damaged left front fender. Lanier could not identify the driver of the vehicle.

State Trooper J. C. Fowler testified that he investigated the accident sometime shortly after midnight. He stated that he was informed that the vehicle which failed to stop after the collision was a 1957 Chevrolet, dark in color. He picked up some chrome molding at the scene of the accident and kept in in his possession until the date of the trial.

Fowler said that by a process of elimination, checking on 1957 Chevrolets he was aware of in the community, he went to the appellant’s house to look at his automobile. Fowler was armed with a “John Doe” arrest warrant. On arriving at the appellant’s house, he saw a car parked in the yard. He said, “It was a 1957 Chevrolet four-door sedan, two-tone with a light tan or beige top with a darker brown bottom with damage to the left front fender and also the front of the front fender.” He said the damage to the fender appeared to be fresh. He testified as to matching the chrome found at the scene of the accident to that of appellant’s car:

“Q. All right. After you saw Mr. Wor-ley’s car, did you do anything with those pieces of chrome?
“A. Yes, sir. I taken (sic) the pieces of chrome and put them up to the fender and also around the edge of the front fender. Those' two pieces of chrome matched to the concave of the fender and also matched to the broke piece here. I am coming around to the front.
“Q. This small piece here is broken and jagged on one end, did you fit that into the chrome on his car?
“A. Yes, I did, sir.
“Q. And, did this jagged end here mesh with the jagged end on his car?
“A. Yes, it did, sir.”

Fowler testified that after giving appellant the Miranda warning, the appellant made a statement to him to the effect that the automobile had not been running for some time because of starter trouble, that it could not have been driven, and that “nobody else drove it” but the appellant.

The appellant testified that his car had not been running for a month or more due to a defective fuel pump and that he was not driving the car on the night of the accident. He stated that the car was some twenty years old and had dents in it and that the left front fender was missing. He stated that Trooper Fowler did not have the chrome molding with him when he first came to appellant’s home to look at the car.

I

Appellant contends that the inspection of the automobile by Trooper Fowler amounted to an unlawful warrantless search.

Trooper Fowler had probable cause to believe that appellant’s car was involved in the accident. An automobile similar to appellant’s had been observed near the scene of the accident at the approximate time of the accident with damage to its left front fender. The automobile being searched for was described to the officer as a dark colored, 1957 Chevrolet, and appellant’s automobile was a dark colored, 1957 Chevrolet. • There was brown paint on the strips of molding recovered at the scene of the accident which matched the color of appellant’s car. Appellant’s car was observed by the officer to have a damaged left front fender.

Appellant stated that Trooper Fowler drove up to his house and stated that he wanted to check appellant’s car. Appellant replied, “I said well, it’s setting out there and I walked out there with him.” Appellant testified that when the trooper came to his house, “[h]e said let’s go out there and look at your car and I said O.K. I walked out there and looked at the car and started back and he says you are under arrest.”

We believe the officer had probable cause to inspect the automobile under the circumstances set out above and in addition, appellant’s testimony establishes that he consented to the inspection of the automobile. In any event, the United States Supreme Court has held that the search of an automobile is far less intrusive on Fourth Amendment rights than the search of one’s person or a building, and that one has a lesser expectation of privacy in a motor vehicle than in a residence. That Court found that the examination of an automobile’s exterior upon probable cause differs from a traditional search, and is not unreasonable under the Fourth and Fourteenth Amendments. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). Also see: South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

II

Appellant contends that the evidence was insufficient to support a conviction. We disagree.

True, there were no eyewitnesses to positively identify the appellant as the driver of the vehicle or to positively identify appellant’s car as the one involved in the accident, nevertheless the circumstantial evidence presented is strong enough to point to the appellant as the guilty party. Seldom will a “hit and run” case occurring at night present any stronger evidence than presented here. Seldom will there be an eyewitness identification of the fleeing driver, which leaves the State only circumstantial evidence with which to proceed.

Appellant’s car fit the description of the vehicle involved in the accident. The chrome molding found at the scene of the accident was an exact fit with that on appellant’s car. That molding contained paint of the same color as the appellant’s car. The appellant stated that no one else had driven the car but him.

The appellant testified that the car could not be driven due to a defective fuel pump and that he had not driven it on the night in question. This conflicting evidence presents a jury question, and we have repeatedly held that where such exists the jury’s verdict will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616 (1973). Therefore under the facts set out, there was sufficient evidence presented, though circumstantial, from which the jury by fair inference could find the appellant guilty. The jury chose to believe the State’s evidence rather than the appellant’s testimony, and we will not disturb their verdict.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    James A. IMPSON v. STATE.
    4 Div. 494.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.

      No brief for appellant.
    No brief for appellee.
   TYSON, Judge.

The appellant appeals from the denial of a petition of writ of error coram nobis by the Circuit Court of Russell County following a hearing with counsel representing him.

Appellant asserts as error that he was not advised of his right to remain silent at the time of his arrest and interrogation, that he did not have counsel present at police lineup, and that the trial court failed to determine that he was intelligently offered counsel and understandingly rejected same.

The appellant also asserts that at his robbery trial the State failed to prove force or felonious intent, and that the trial court should have charged the jury on certain lesser included offenses.

The record before us discloses that the appellant was represented at preliminary hearing by’ the Honorable Homer Cor-nett, and at original trial and appeal in this Court by the Honorable Gary E. Davis. See Impson v. State, Ala.Crim.App., 331 So.2d 837.

Moreover, the original trial transcript shows that all of these issues were considered by this Court on original appeal and determined adversely to the appellant. Impson, supra.

Further, the State did not attempt to place in evidence any statement attributed to the appellant; hence, the trial court properly denied his petition for writ of error coram nobis.

For the guidance for the Bench and Bar, we note here that frequently this Court does not write opinions on cases involving original appeals or on post conviction review. We are not required to do so in all cases. Title 13, Section 66, Code of Alabama 1940.

In fact we are advised by representatives of West Publishing Company that more than.4400 appellate opinions are now submitted to them each month from the various appellate courts in the United States. The fact that this Court does not write an opinion should never be construed as a “perfunctory review” by this Court. Title 15, Section 389, Code of Alabama 1940.

Whenever cases in the opinion of this Court present no new, novel, or unusual legal questions, the decision usually is no more than a brief order indicating the decision in the case. Title 13, Section 66, supra. All cases submitted to this Court are considered by each member of this Court, including all briefs submitted by the attorneys or the parties. Thus, the fact that a decision only is rendered, rather than an opinion, should be given as much weight as if a full opinion had been written.

We have carefully examined the record in the instant case and find same to be free from error. /The judgment is hereby

AFFIRMED.

CATES, P. J., and DeCARLO and BOOK-OUT, JJ., concur.

HARRIS, J., concurs in result only.


text:
    Bertha Mae CHUNN v. STATE.
    8 Div. 865.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.

      Jeff D. Smith, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree of Robert Howard Chunn. The evidence is undisputed that she shot him three times with a pistol, one bullet penetrating his chest and killing him. The evidence presented by the State, largely circumstantial, pointed almost conclusively to that conclusion; in taking the stand in her own defense, defendant admitted she killed him as indicated, but she stoutly claimed that she did so in self-defense. That there was strong evidence of some of the elements of self-defense, we have no doubt, but we are convinced that there was substantial evidence that not all of the essential elements of self-defense existed and that whether she was guilty of murder in the first degree was an issue for the determination of the jury. No contention is made by appellant to the contrary.

Although there was little conflict in most of the important portions of the evidence, the testimony undulated as to the exact legal status between defendant and the victim. They were referred to, and considered by some, as married, that is, they were common law husband and wife. They had been living together about eight years, during which time two children were born to them; she was the mother of three other children, who also were living with them at the time of the homicide. Both had been drinking the afternoon the killing occurred. There was evidence that she had threatened that afternoon, as well as on previous occasions, to kill him. She had been drinking, and there was evidence to indicate that he had been drinking. Immediately after the killing, she told one of her children to call the police and an ambulance. When the first police arrived a little after 4:00, defendant was sitting on the floor of the living room of their home with the victim’s head in her lap. After the arrival of officers and the coroner, defendant was taken to the police station. There was considerable evidence that she was intoxicated at the time she was questioned and given the Miranda warning and informed in minute detail of her rights. Thereafter, she signed a written statement, in her own handwriting that she had composed, in which she admitted the killing under circumstances substantially in accordance with her testimony on the trial.

Appellant contends that her confession should not have been admitted in evidence, due to the state of her intoxication and that “Without the admission of the statements of the Defendant, the State may not have been able to make out a prima facie case, thereby rendering the Defendant’s testimony unnecessary.” We think the evidence at the time the State closed its testimony was sufficient to make out a prima facie case against defendant, but even so, the extent of her intoxication at the time of her confession affects the question of the admissibility thereof, and if the confession was erroneously admitted, it could be a sufficient basis for a reversal.

Although there can be little doubt that appellant was intoxicated to some extent, we cannot say that she was intoxicated to such an extent that she did not fully understand what she was doing and saying. The accuracy of the statements she made in her confession, as shown by other undisputed evidence in the case, and the composure she manifested in her explanation of what occurred, and her putting an account thereof in her own deliberate handwriting, negate any mania that would make her confession inadmissible. We continue to adhere to what was held in Anderson v. State, 45 Ala.App. 653, 235 So.2d 902, 905, as follows:

“The rule is well established in this jurisdiction that intoxication short of mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words will not render a confession inadmissible. Warren v. State, 44 Ala.App. 221, 205 So.2d 916, cert. denied 281 Ala. 725, 205 So.2d 920; Ray v. State, 39 Ala.App. 257, 97 So.2d 594; Smith v. State, 25 Ala.App. 297, 145 So. 504; Eskridge v. State, 25 Ala. 30.”

To the same effect are Edwards v. State, 56 Ala.App. 405, 321 So.2d 744; Patterson v. State, 56 Ala.App. 359, 321 So.2d 698; Woods v. State, 54 Ala.App. 591, 310 So.2d 891.

Two photographs, a profile and a front view, of defendant taken at the jail the night of the homicide were introduced in evidence over the objection of defendant. There is no material difference between the parties on appeal as to the applicable principles of the law of evidence. A photograph is admissible if it tends to prove or disprove some disputed or material issue, if it tends to shed light on, to strengthen, or to illustrate other testimony in the case. Knight v. State, 273 Ala. 480, 142 So.2d 899; Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Smith v. State, 56 Ala.App. 609, 324 So.2d 323; Johnson v. State, 56 Ala.App. 583, 324 So.2d 298, cert. denied, Ala., 324 So.2d 305.

As indicated above, the defendant on the trial presented an issue whether defendant was so intoxicated at the time of her incul-patory statements at the jail that her admissions should not have been admitted in evidence. There was considerable testimony taken on that subject. The two photographs were contained in one print and referred to during the trial as a “photograph,” and not “photographs,” and offered as a single exhibit. During the testimony of Detective Petty, who testified as to his interview with her in which she had made the incriminating statements referred to hereinabove, the following occurred:

“Q Detective Petty, does that photograph substantially and accurately depict this defendant as she appeared to you on that date?
“A Yes, sir.
“MR. MORGAN: Your Honor, the State would offer Exhibit 18 into evidence.
“MR. MORRIS: We object unless they cut out that portion that has mug shot on it.
“THE COURT: Overrule.
“MR. MORRIS: Has no probative value.
“THE COURT: Overrule. Ladies and gentlemen, in this case State’s Exhibit 18, I am allowing that to be admitted into evidence in the case and submitted for your consideration only on the point of the condition of the defendant at the time of making the alleged. statement and not for showing her condition at any time at the scene of the alleged incident or any time intervening but at the time of the making of the alleged statement that has been introduced and should be taken and considered by you for that purpose only.
“MR. SMITH: We object to the comment and instruction of the Court on the basis that this picture was taken at seven o’clock at night and it is a photograph, has no probative value and has no relevant value to the issues in this case.
“THE COURT: Overrule.
“MR. MORRIS: We further object to the Judge’s comment on the evidence in this case in that it was not offered for the purpose for which the Judge is allowing it to be introduced into evidence.
“THE COURT: Overrule.”

Appellant strenuously urges that there was no testimony as to the time the photographs were taken, saying, “For all we know, the photographs were made shortly before midnight on August 31, 1975, while her statement was given almost five hours earlier.” We are impressed with the fact that the testimony does not positively and without absolute certainty show when the pictures were taken, but we do not agree that it could be reasonably inferred from the evidence that they were not taken until midnight. The clear inference from the evidence is that they were taken at approximately the same time that she was interrogated. It is to be noted that in objecting to the photographs, counsel for defendant stated: “That this picture was taken at seven o’clock at night,” which the evidence shows was the time when defendant was questioned and made her incriminating statements.

In insisting that the photographs did not shed any light on any material inquiry in the case, appellant argues and quotes from III Wigmore, Evidence, § 792 (3rd Ed. 1940), that a photograph of a person’s outward appearance “is not .evidential of his inward condition.” In the context of the quoted statement, Dean Wigmore is evaluating objections made to photographs, as shown by the following:

“Certain discriminations which may affect admissibility from other points of view need to be made:
“(1) There may be an objection, not to the photographic testimony as such, but to the relevancy of the fact testified to; if the fact to be evidenced by the photograph is itself not admissible, obviously it cannot be proved by photograph or otherwise. This objection of irrelevancy is commonly either that the condition of a place or person at the time of taking the photograph is not evidence of the condition at the time in issue (§ 438 supra); or that the outward appearance of a person is not evidential of his inward condition §§ 226, 228, 229 supra); or that the features of a child are not evidence, by resemblance, of a particular person’s paternity (§ 166 supra). These objections are seldom favorably considered by the courts; but it is obvious that the decision in any case rests on principles of relevancy of the fact pictured, and does not affect the propriety of evidencing a relevant fact by a photograph.” Ill Wig-more, Evidence, § 792 (Chadbourn Rev. 1970)

Dean Wigmore is not saying that the outward appearance of a person is never evidential of his inward condition. He is in effect saying that when one’s outward appearance is not evidential of his inward condition, then neither testimony as to his outward appearance nor a photograph showing his outward appearance is admissible as evidence of his inward condition. That one can appear to some to be sober while he is actually intoxicated or that he can appear to some to be intoxicated when he is actually sober is hardly less questionable than the universally recognized principle that generally one’s appearance indicates whether he is intoxicated. His appearance can be shown either by the testimony of witnesses or photographs.

The “mug shot” feature of defendant’s objection to the photographs as first made does not seem to be pressed on appeal. The reference is to the fact that the photographs show that they were taken at the police department. The date thereof is shown on the photographs. No possible implication could have arisen to the effect that defendant had any previous jail record or that her pictures had ever been previously taken by law enforcement officers.

To avoid any possible improper misapplication by the jury of the photographs, the court limited the jury to a consideration of them for the purpose solely of showing her condition at the time of her making incriminating statements. Appellant now complains that such limitation of the evidence by the court constituted reversible error, in that it invaded the province of the jury. We do not so construe the statement of the trial court. It is to be noted that the witness had said that the photographs depicted defendant as she appeared to him on that date. He did not say that it depicted her as she appeared at the time of her making the incriminating statements, but the part of the record quoted hereinabove discloses that all concerned understood that the reference was to the time that Detective Petty was interviewing her and taking her statement as to what had occurred. The photographs were properly admitted in evidence, and the comment of the court was not erroneous.

We find no error in the record prejudicial to defendant, and the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur except CATES, P. J., concurs in the result only.


text:
    Luman Cecil EAST v. STATE.
    8 Div. 873.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Carnes & Carnes, Albertville, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant killed his wife by shooting her with a pistol. This occurred about breakfast time, during the second episode of a heated argument between them as to where, and with whom, she had been during the forepart of the night before, after she had left their home with one of their sons purportedly to act as a sitter for an invalid, and defendant had left the home to go to a dance with their daughter and their other son and his wife. Upon their return after midnight, the argument commenced. Defendant had been drinking, and he testified that he smelled alcohol on his wife’s breath but that neither of them was drunk. Soon after waking up the next morning, the argument was resumed while they were in the kitchen. It was overheard by other members of the family. He accused her of infidelity and particularly with having been out with another man the night before. She told him in effect that where she had been was not any of his business and declined to tell him where she had been. One shot from the pistol in the hand of defendant fatally injured her by severing an artery in her neck. A second shot from the pistol struck the older son of the couple as he entered the kitchen and attempted to get between his father and mother. The younger son of the couple, who had been awakened by a shot, saw his father come from the kitchen and ran and tackled him and took the pistol from him. During the scuffle between them the pistol was fired three times.

Defendant was found guilty of murder in the first degree and sentenced to life imprisonment. He had pleaded not guilty and not guilty by reason of insanity.

There was substantial evidence in support of defendant’s plea of insanity. On the other hand, there was ample evidence in support of the implied finding of the jury to the effect that he was not insane.. The children of defendant and the victim seemed fully convinced, according to their testimony, that he was mentally incompetent and was not criminally responsible for the death of his wife. Furthermore, they testified unstintingly to his innate goodness, his industriousness, his kindness of disposition and his love for his family. He had enjoyed a good general reputation and a good reputation for peace and quiet, according to the testimony of several credible witnesses.

The main contention of able counsel for appellant, the same counsel that represented him on the trial, is that the act of the defendant in killing his wife was in a heat of passion that suspended his judgment and dominated his will, and that he could not have been guilty of murder in either degree. In Smith v. State, 83 Ala. 26, 3 So. 551 (1887), the rule is stated, which in general has been followed since, as follows:

“Whether or not the homicide is the offspring of malice, is the characteristic, which distinguishes murder and manslaughter. In consideration of the infirmities of humanity, the law regards a sudden transport of passion, caused by adequate provocation, as sufficient to rebut the imputation of malice which would otherwise arise. . . . The state of mind must be such, that the suddenly excited passion suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previous formed design, though of short duration; but it is not essential that the transport of passion shall be so overpowering as to destroy volition, or the reasoning faculty.

Five charges requested in writing by defendant were given that set forth in various ways the principle as to a killing in sudden passion relied upon by appellant. Some of these charges were even more favorable to defendant than the established principle itself.

Counsel for appellant make an eloquent plea that the principle set forth above, as applied to the facts of this case, precludes as a matter of law a conviction for murder, especially murder in the first degree. Nevertheless, we are convinced that defendant was entitled to no more than a submission of the particular issue to the jury. Its determination thereof adverse to defendant was supported by ample evidence, and it is not within our province to overrule such determination.

During the deliberations of the jury, the following occurred:

“(Whereupon, at approximately six forty p. m., the Jury was seated in the jury box, and the following proceedings were had):
“A JUROR: Judge, we would like for your charges to be re-read to the Jurors what constitutes first-degree murder, second-degree murder, first-degree manslaughter, and second-degree manslaughter.”

Immediately thereafter the court proceeded to recharge the jury as to the two degrees of murder and the two degrees of manslaughter, which was substantially the same, though not identical with, the court’s oral charge on the subject. Immediately thereafter, the following occurred:

“THE COURT: Is there any further part of my charge that you would like for me to read to you?
“A JUROR: I don’t think so.
“THE COURT: Please go back to the jury room.
“MR. CARNES: Do we have the right to make exceptions?
“THE COURT: Yes. (To the Jury) Just a moment. You all come back just a second.
“(Whereupon, the District Attorney and the attorney for the defendant approach the bench for a conference with The Court, at which time the following proceedings were had).
“MR. CARNES:- We do not except to anything the court said. The Jury is entitled to be instructed on the effect of heat of passion on these four elements of homicide.
“THE COURT: They have these charges with them as written.
“MR. STARNES: I object. That’s the only thing they requested.
“THE COURT: Gentlemen, you have some charges that are written with you. I assume you did not want me to repeat those.
“A JUROR: No, sir.
“THE COURT: Thank you very much. “(Whereupon, the Jury returned to the jury room at approximately six fifty p. m.”

The jury continued to deliberate until 10:00 P.M., when they were excused for the night, and reassembled the next morning at 9:00 A.M. and resumed deliberations. Thereafter, during the morning, the verdict was returned.

Appellant takes the position that when the jury returned and requested the court to “re-read to the Jurors what constitutes first-degree murder, second-degree murder, first-degree manslaughter, and second-degree manslaughter,” the court was in error in not instructing the jury “on the effect of heat of passion on these four elements of homicide.” We agree with appellant as to the importance of the principle of heat of passion in the circumstances of this particular case, but the court was not in error in the matter. As stated, the court gave five charges on the subject, as requested in writing by defendant. No charge on the subject requested in writing by defendant was refused. Appellant complains that the oral charge of the court did not contain any reference to the heat of passion principle.

With few exceptions not applicable here, the trial court cannot be placed in error merely because its oral charge is not comprehensive of all pertinent principles of law. To prevent any injustice in this respect, parties have the right to request in writing charges that will supply principles omitted from the court’s oral charge. Code 1940, Tit. 7, § 272; Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied 293 Ala. 746, 309 So.2d 850; Smith v. State, 53 Ala.App. 657, 303 So.2d 157; Gray v. State, 52 Ala.App. 481, 294 So.2d 448.

It should be noted also that the court queried the jury as to whether any further instruction was desired, and the jury made it clear that nothing further was desired. When a jury calls for additional instruction and clearly delineates the area of its request, it is usually better for the trial court to remain within such area. To do otherwise ofttimes tends to appear to place the trial judge in the role of an interested advocate rather than an impartial arbiter.

Appellant urges that the trial court should have granted defendant’s motion for a new trial. The ground of the motion relied upon by appellant was to the effect that after the trial, defendant had learned that one of the witnesses for the State, a police officer, was laughing, soon after he left the witness stand in the court room in which he had testified, and said, “I just done it for spite.” One of defendant’s sons and the son’s wife testified accordingly on the motion for a new trial. There was no testimony to the contrary. The substance of the testimony of the police officer on the trial was that he came to the home of defendant and his wife soon after the homicide, that the defendant was running toward the patrol car and said to him, “. I did it, I killed her, . . . She’s not going to run around on me no more.” The evidence on the trial was without dispute that defendant did kill his wife. It was also without dispute that defendant was convinced that his wife had been “running around” on him. This is true as to the evidence at the time the State rested and at the conclusion of the case. The granting of a motion for a new trial on a ground of newly discovered evidence is a matter largely resting within the sound discretion of the trial court. Maund v. State, 254 Ala. 452, 48 So.2d 553. A new trial should not be granted on the ground of newly discovered evidence if it is merely cumulative and not of sufficient strength that it will probably change the result if a new trial is granted. Taylor v. State, 266 Ala. 618, 97 So.2d 802; Cannon v. State, 53 Ala.App. 509, 301 So.2d 272; Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied Ala., 325 So. 2d 539. We are left in doubt as to what was meant by the alleged statement of the police officer, if such statement was made, but as cryptic as it was, the trial court cannot be held to have been in error in overruling defendant’s motion for a new trial.

We have considered every insistence on error of able counsel for appellant and have searched the record for error prejudicial to defendant and have found none. The judgment should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH' M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Willie Frank REESE v. STATE of Alabama.
    5 Div. 333.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1976.
   ON REHEARING

CATES, Presiding Judge.

On November 23, 1976, appellant, through new counsel, filed a motion for rehearing. Since the original opinion came down October 12 the application for rehearing was four weeks (or twenty-seven days under the former rules) too late.

Rule 2(b) ARAP empowers an appellate court, with one exception, to suspend the rules. As our British cousins say: “While Britannia may no longer rule the waves, she still may waive the rules”.

Suspending the rules under 2(b), supra, is in “the interest of expediting decision, or for other good cause shown * * *.”

The first basis of 2(b) is not applicable because decision once rendered, expediting it is functus. Manning v. Louisville & N. R. R. Co., 95 Ala. 392, 11 So. 8.

As to the second, the only discernible ground of the motion is that Reese’s employed counsel — it is alleged without any substantiating affidavit — did not notify Reese that his appeal had been affirmed. Even if Reese were indigent, under Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, the State is not required by the Fourteenth Amendment to furnish counsel beyond the first level of appellate review.

We hold that a mere allegation of non-notification of an appellate affirmance in the case of a non pauper is not good cause to suspend the rule as to the time of filing a rehearing.

Ex mero motu we dismiss the motion for rehearing as tardy. See ARAP Rule 40 and former Supreme Court Rule 34.

OPINION EXTENDED;

APPLICATION FOR REHEARING STRICKEN.

All the Judges concur.


author: HARRIS, Judge.

text:
    Gust BIBB v. STATE.
    3 Div. 499.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of burglary in the second degree and the Court sentenced him to ten years in the penitentiary. At arraignment and trial appellant was represented by retained counsel. He pleaded not guilty. Appellant was 19 years of age at the time of his trial and made application to be treated as a Youthful Offender. His application was referred to a Probation Officer for investigation. When the Probation Officer filed his report, the Court denied appellant’s application for Youthful Offender Status. After sentence was imposed, notice of appeal was given. His retained counsel withdrew from the case. The Court determined appellant to be indigent and he was furnished with a free transcript. New counsel was appointed to represent him on appeal.

When the State rested, appellant made a motion to exclude the State’s evidence on the ground the corpus delicti had not been proved and on the further ground that the testimony of the accomplice had not been sufficiently corroborated. The trial court denied the motion.

The State was forced to rely upon circumstantial evidence and the testimony of an accomplice to gain a conviction in this ease. Appellant did not testify, nor did he offer any evidence in his behalf.

James L. Kelly testified that in October, 1975, he was employed by Courtesy Ford Sales, Incorporated, a corporation, located at the intersection of Bell and Holt Streets in the City and County of Montgomery, Alabama. He stated that he arrived for work at 8:30 o’clock on the morning of October 10,1975, and noticed that the building had been broken into and all the keys had been taken from inside the building and that four cars were missing from the parking lot of the company. He said the keys were kept on a board that was about two feet by two feet inside the building and that the board was missing along with the keys. He identified the missing automobiles as a 1973 Buick Electra which was triple black; a 1969 Oldsmobile Cutlass Supreme which was a goldish yellow with a beige gold vinyl top; a 1972 Monte Carlo which was silver gray with a dark black vinyl top; and a 1970 Buick Riviera which was cream beige colored with a dark brown vinyl top.

Mr. Kelly further testified that he had not given anyone permission to use these cars. That when he closed and locked the building on the evening of October 9, 1975, the above described cars were parked on the lot and the keys to these cars were on the key board inside the building. Upon discovering the burglary he called the Montgomery Police Department and Officer Hamilton responded to the call. He said he was present when Officer Hamilton took custody of the broken glass from the door of the company through which the burglars had gained entrance. He identified State’s Exhibit No. 1 as the glass from the broken door of the company.

Mr. Kelly further testified on the morning he notified the police of the theft of the automobiles the 1970 Buick Riviera was found in the area of Dannelly Field around a place known as the Twin Gates community. This car had been fully stripped down and the tires and other parts were gone but he could and did identify it as one of the four stolen cars from Courtesy Ford. The following day Mr. Kelly identified the 1973 Buick Electra and the 1969 Oldsmobile Cutlass at the City storage lot. Eventually, all four stolen automobiles were recovered.

D. D.Conway testified that he lived at 2669 Drake Street and knew appellant. He stated that on the morning of October 10, 1975, he observed two automobiles already parked in front of his residence and that about fifteen minutes later a third car arrived. Conway identified one car as being a 1968 Cutlass which was an off-red or rust color. The second car was a Monte Carlo with a silver color and a black top, and the third car was a 1972 Buick, solid black, Electra 225. This witness further stated that the first two cars were parked in front of his residence and then the third car came around the curve in front of his house and pulled up in front of appellant’s house and backed into his yard. Conway said that he observed three young men at those cars but could not positively identify appellant as being one of the young men present. He stated that all of the men appeared to be dressed in wigs and they appeared to be women to him.

On redirect examination Conway stated that he could identify one of the young black men as Kenneth Starks and he said Starks was dressed like a woman the day he saw him standing with the other two individuals and three automobiles outside his home.

Bob Frank Knight testified that he lived at 2626 Drake Street and that appellant lived in the same house. He said he had known appellant about a year. He stated he was at home on the morning of October 10, 1975, and was up at 5:30. He did not see appellant when he arose at 5:30 that morning but did see him at about 7:00 a. m., getting out of a big black car on the driver’s side and open the trunk of the car. That the other two men were standing a couple of feet from appellant. He said he did not know the make of the car but it was a late model black car. He observed two other men with appellant whom he identified as Kenneth Starks and someone he knew only as Samantha.

Kenneth Starks testified that he knew appellant and Samantha Clemmons and that on the morning of October 10, 1975, they were at appellant’s house and they had three automobiles that they had gotten from Courtesy Ford that same date. Starks further stated that appellant broke a window out with a board and entered the Courtesy Ford place on Bell Street and got the keys and gave him a key, Samantha a key, and he kept the other keys. He stated they first got a Riviera and drove it around the corner and parked it. They then went back to the Courtesy Ford car lot to get more cars. He said appellant had a key to the Buick, Samantha had a key to the Monte Carlo and he had the key to the Cutlass. He stated that appellant drove the black Buick Electra. That they drove the automobiles around and all finally went to appellant’s house and all three of them stood around appellant’s house with the three stolen automobiles. He stated that before they got to appellant’s house, they saw a man whom he knew as “Cheek Cheek” and appellant gave him the keys to the Riviera and “Cheek Cheek” took the Riviera.

Starks was shown State’s Exhibit No. 1 and identified it as glass that came from Courtesy Ford when appellant broke the glass door with a board.

Officer C. W. Hamilton testified that he went to the Courtesy Ford place on Bell Street on the morning of October 10, 1975, to conduct an investigation of the burglary. He found the glass front door broken and picked up the glass that was identified as State’s Exhibit No. 1. In the course of his investigation he learned that four automobiles were stolen. He said that the four cars were recovered and he was present when they recovered the 1973 Buick and the 1972 Monte Carlo. That the Buick Riviera and the Cutlass Oldsmobile were recovered by other officers. Officer Hamilton took a signed statement from Kenneth Starks and he was turned over to the juvenile authorities as he was only 16 years of age. He got probation growing out of the Courtesy Ford burglary.

The State was compelled to rely on circumstantial evidence to hinge a conviction on appellant. This is not the strongest circumstantial evidence case that has reached this Court. As a matter of fact it is a very weak case.

Under the statute requiring corroboration of the testimony of accomplices to authorize conviction of a felony (Title 15, Section 307, Code of Alabama 1940), the corroborative evidence need not be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. Moore v. State, 30 Ala.App. 304, 5 So.2d 644; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62.

Nor need such corroborative evidence directly confirm any particular fact stated by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776; Cameron v. State, 49 Ala.App. 482, 273 So.2d 242.

“Any circumstantial evidence is sufficient to corroborate if it proves that the accused was connected with the criminal act, or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained.” 23 C.J.S. Criminal Law § 812(3), p. 109.

The breaking and entering, the theft of the keys, and the theft of four automobiles from the lot of Courtesy Ford was one continuous transaction or one continuous occurrence and everything that was done was admissible as of the res gestae. The rule is that if several crimes in fact constitute one criminal transaction, evidence of all such crimes may be given as part of the res gestae of the offense with which the defendant is charged. Parsons v. State, 251 Ala. 467, 38 So.2d 209; Jackson v. State, 229 Ala. 48, 155 So. 581.

Two independent witnesses saw three of the stolen automobiles at appellant’s house within hours after the burglary of Courtesy Ford. Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict of the jury. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Washington v. State, 55 Ala.App. 116, 313 So.2d 544.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, J., who concurs in the result.


author: BOYD, Justice.

text:
    Edward M. STRAWGATE and Gerald M. Higier, Petitioners, v. Dorothea Chase TURNER, Respondent.
    No. 47136.
    Supreme Court of Florida.
    June 30, 1976.
    Rehearing Denied Dec. 9, 1976.
    Gerald M. Higier, Coral Gables, for petitioners.
    William H. Turner, III, Miami, for respondent.
   BOYD, Justice.

This cause is before us on petition for writ of ceriorari to review the decision of the District Court of Appeal, Third District, reported at 307 So.2d 902, which reversed the judgment of the Circuit Court, Eleventh Judicial Circuit in and for Dade County. We have jurisdiction because of conflict with Benedict v. Dade County Realty Inc., 274 So.2d 553 (Fla.App.3rd 1973). Article V, Section 3(b)(3), Florida Constitution.

Petitioners, as purchasers, and respondent, as seller, entered a contract for the sale of real property, which was to be developed as a shopping center by petitioners. The property was described by the sale agreement as consisting of 500 feet of “frontage” on U.S. Highway No. 1. • A down payment was deposited in escrow pursuant to the agreement.

Following the execution of the sale agreement, a survey revealed that the property was separated from the pavement of U.S. Highway No. 1 by a state right-of-way 175 feet wide, which ran the length of the property. Because they believed the word “frontage” in the contract meant that the property abutted the pavement of the highway, petitioners requested the escrow agent to return their down payment. Rather than honor the request, the escrow agent brought an action before a court without jury, in which petitioners and respondent were interpleaded as defendants. Petitioners cross-claimed that respondent misrepresented the boundaries of the property, or, in the alternative, that a mutual mistake existed between the parties requiring rescission of the contract.

. At trial, testimony of petitioners and expert witnesses, as well as evidence of physical features of the subject property, supported petitioners’ alternative theories of recovery. The trial judge granted judgment for petitioners.

Respondent appealed the judgment to the District Court of Appeal, Third District. The opinion rendered by the District Court reviewed the evidence and reversed with instructions to enter judgment in favor of respondent.

Findings of fact by a trial judge are presumed to be correct and are entitled to the same weight as a jury verdict. Read v. Frizzell, 60 So.2d 172 (Fla.1952). Findings by trial court will not be disturbed unless there is a lack of substantial evidence to support the court’s conclusion. Chakford v. Strum, 87 So.2d 419 (Fla.1956).

Our examination of the record convinces us that the trial court had ample evidence before it as a basis for its judgment. In reaching a contrary decision the District Court improperly substituted its judgment for the trial court’s.

Accordingly, the decision of the District Court of Appeal, Third District, in this cause is quashed with directions to affirm the judgment of the trial court.

It is so ordered.

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

Rehearing dénied; OVERTON,. C. J., BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., and ROBERTS, Ret. J., concur.

ADKINS, J., dissents.


author: SUNDBERG, Justice.

text:
    CIRCUIT COURT OF TWELFTH JUDICIAL CIRCUIT, and the Honorable Evelyn Gobbie, as Circuit Judge thereof, Appellant v. DEPARTMENT OF NATURAL RESOURCES of the State of Florida, Appellee.
    No. 47873.
    Supreme Court of Florida.
    Nov. 24, 1976.

      C. Eugene Jones, of Ginsburg & Byrd, Sarasota, for appellant.
    Jack W. Pierce, General Counsel, Dept, of Natural Resources, Tallahassee, Robert L. Shevin, Atty. Gen., and Thomas A. Harris, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

This case appears before us as the result of a tragic mishap which occurred in Oscar Scherer State Park in Sarasota, Florida. On August 16, 1973, sixteen-year-old Sharon Holmes, having paid an entrance fee, was swimming in a man-made lake located in the park when she was attacked, bitten and killed by an alligator.

Mr. and Mrs. Burton Holmes, as Sharon’s parents and personal representatives, brought suit against the Florida Department of Natural Resources, the state agency responsible for administering the state park, and against two other defendants not now before this Court. The Department’s alleged liability was predicated on theories of negligence, strict liability in tort, and breach of contract. The plaintiff further alleged that the Department had waived sovereign immunity by engaging in the proprietary function of operating the park.

The Department filed a motion to dismiss the complaint for lack of jurisdiction under the doctrine of sovereign immunity. Finding that under the facts alleged in the complaint the Department had waived sovereign immunity, the trial judge denied the motion.

Appellee then took an interlocutory appeal to the District Court of Appeal, Second District, which was dismissed on the authority of State Road Dept. v. Brill, 171 So.2d 229 (Fla. 1st DCA 1964).

The Department then filed a suggestion for a writ of prohibition with the District Court of Appeal. That court issued the writ, reasoning that the circuit court lacked subject matter jurisdiction because the Department was protected from suit by sovereign immunity. Department of Natural Resources v. Circuit Court of the 12th Judicial Circuit, 317 So.2d 772.

It is from this decision of the District Court that the Honorable Evelyn Gobbie (“the appellant”), Circuit Court Judge of the Twelfth Judicial Circuit and the trial judge in this case, takes an appeal to this Court. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution, because the District Court of Appeal construed the Florida sovereign immunity provision, Article X, Section 13, which reads as follows:

“Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.”

Appellant asserts that the foregoing language does not preclude waiver of sovereign immunity by means other than legislative enactment or constitutional amendment. Thus it is not fatal to appellant’s argument to admit that Section 768.28, Florida Statutes, the current statutory waiver of sovereign immunity in Florida, was not in effect at the time Sharon Holmes was killed. Appellant goes on to argue that by engaging in the proprietary, as opposed to governmental, activity of operating a park and campground, appellee has effectively waived the protection of sovereign immunity.

Contrary to appellant’s position, Florida courts have often interpreted the language in Article X, Section 13, supra, as providing absolute sovereign immunity for the state and its agencies absent waiver by legislative enactment or constitutional amendment. E. g., Spangler v. Florida State Turnpike Auth., 106 So.2d 421 (Fla.1958); Hampton v. State Board of Educ., 90 Fla. 88, 105 So. 323 (1925); Buck v. McLean, 115 So.2d 764, 766 (Fla. 1st DCA 1959). Cases such as Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), this Court’s landmark decision modifying the sovereign immunity of municipalities, are distinguishable precisely because they involve municipal corporations, not the state or its agencies. The governmental/proprietary distinction, which has on occasion been viewed as a test for waiver of sovereign immunity, has almost invariably been crucial only in the cases involving municipalities. See Seligman & Beals, The Sovereignty of Florida Municipalities, 50 Fla.B.J. 338 (1976), for the view that existing precedent has led to some confusion over the viability of the distinction in the municipal area. We are not called upon today to reconcile whatever conflict in precedent may exist in that area of the law. Seligman and Beals further state, “While the State of Florida has always enjoyed sovereign immunity with respect of the torts of state employees, municipalities have not enjoyed full derivative immunity,” and appellant has been unable to direct our attention to a single case which undermines the accuracy of that statement.

When reduced to its essentials, appellant’s argument, as we see it, is built around three principal cases. Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (1952), is relied on for the proposition that a county-owned and operated activity is not immune from suit if it is engaged in a proprietary as opposed to a governmental function. Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965), allegedly extends the waiver of sovereign immunity for proprietary functions undertaken by municipalities to such activities performed by counties as well. Since counties are subdivisions of the state, Butts, it is argued, should be read as affecting the issue of the applicability of the governmental/proprietary distinction to entities such as the state agency which is a party defendant in this case. In addition to Butts, Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla.1953), is said to stand for the proposition that suits against governmental agencies are allowable on a contract theory, one of the theories of action utilized by the plaintiffs in this case. We will deal with these three decisions seriatim.

In Suwannee County Hospital Corp. v. Golden, supra, a husband and wife sued the appellant, a non-profit corporation created by a special act setting up a county hospital district, to recover damages for injuries occasioned by the negligent application of hot water bottles to the wife while she was a patient in the defendant’s hospital. The Supreme Court held that the special act which immunized the hospital from liability for the negligent acts of its officers, agents and employees did not preclude recovery by an injured, paying patient. We read this decision as holding only that a public corporation whose functions are local rather than state-wide does not share the sovereign immunity of the state. The attempted statutory immunization of a local hospital district cannot be equated with a constitutional immunity from suit by which, as noted previously, the appellee is protected. See Loucks v. Adair, 312 So.2d 531 (Fla. 1st DCA 1975). So Suwannee County Hospital Corp. is hardly controlling of the result in the instant case.

Butts v. County of Dade, supra, held that paying passengers may sue a county to recover for injuries received due to negligence in the operation of the county bus system, which that court found to be a proprietary endeavor. The case is immediately distinguishable from the instant decision, therefore, as involving a county rather than a state agency. Without expressly overruling the Butts decision, we question the wisdom of its apparent extension of the Hargrove rationale to the county level. Unlike a municipality, a county has no corporate fund or other proprietary holding. It has long been held that counties act as arms of the state. Thus a persuasive argument, and one which this.Court has accepted previously, could be made for including counties in the Constitution’s protection of the state from legal liability. See Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916). Whether such an argument would be accepted by this Court today is a matter we need not yet decide. In any event, we do not find Butts, based as it seems to be on dicta from the Suwannee County decision, to be persuasive authority for appellant’s point of view.

We adopt as our own the lengthy analysis of the relevance of Gay v. Southern Builders, Inc., supra, to the instant controversy which Judge Hobson authored for the District Court of Appeal:

“In Gay, supra, Southern Builders entered into a contract with the Board of Commissioners of State Institutions to construct certain buildings for the State of Florida. The Board took the position that the building was not constructed in accordance with the plans and specifications and Southern Builders contended that it was entitled to payment under the contract plus damages for breach of contract. Southern Builders filed a claim with and against the Board. Three persons were named, who were called arbitrators, and held hearings and investigations as to the contentions of the parties. They filed a report with the Board; whereupon, the Board approved for final payment the amounts as recommended by the arbitrators.
“The claim as adopted by the Board was presented to the comptroller who paid all the claim except that portion which he decided was for tort arising out of breach of contract. Southern Builders filed suit against the comptroller for payment of the claim in full as it had been approved for final payment by the Board. The circuit court rendered judgment for Southern Builders and the comptroller appealed. We feel the Supreme Court affirmed the lower court on the basis that the claim was approved by the Board for payment; that there was a determination by the Board that the amount ordered paid was just and due by the State to Southern Builders; and that in effect the suit was not a suit against the State for breach of contract but was for the enforcement of a claim previously determined to be due and owing by the State. The suit was actually seeking to enforce the comptroller to comply with the Board’s directions.
“There is dicta in the Gay case, supra, which could be interpreted as saying that the State and its agencies are not immune from suit for breach of contract. If this is what Gay, supra, holds, it is in direct conflict with a long precedent of law first set forth in 1895 in Bloxham v. Florida Cent. & P. R. Co., 35 Fla. 625, 17 So. 902, followed by Hampton v. State Board of Education, 1925, 90 Fla. 88, 105 So. 323, and State v. Love, 1930, 99 Fla. 333, 126 So. 374. We have found no case where our Supreme Court has held that under the facts and circumstances of this case the State or its agencies are not entitled to invoke sovereign immunity.” 317 So.2d at 774-775.

Section 768.28, Florida Statutes, constitutes a limited waiver of the state’s sovereign immunity, effective July 1, 1974, for executive departments of the State of Florida and January 1, 1975, for all other agencies and subdivisions of the state. Section 768.30, Florida Statutes. Such waiver is coextensive with insurance coverage obtained by the agency involved. Consequently, a source of payment of claims other than the treasury of the state is provided incident to the waiver, a fact which obviates the primary concern expressed in the decisions applying the sovereign immunity doctrine.

It is true that the plaintiffs in this case are denied the benefits of this statute solely because of the timing of the incident by which their daughter was killed. While that fact may seem a capricious and arbitrary result, it is nevertheless inevitable and one which inheres in the legislative process under a constitutional government. Yet the plaintiffs are not wholly without remedy, for, as the Department suggests, they may file in the Legislature a claims bill to compensate them for the loss which they have suffered. Absent legislation waiving the state’s sovereign immunity on August 16, 1973, this Court cannot authorize relief through the judicial process.

The decision of the District Court of Appeal is affirmed.

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

ROBERTS and ADKINS, JJ., dissent.

      . Suwannee County Hospital Corp. v. Golden, infra, and Butts v. County of Dade, infra, which are apparently the sole exceptions to this general statement, will be discussed later.


author: ADKINS, Justice. BOYD, Justice

text:
    In re Mabel JONES.
    No. 48541.
    Supreme Court of Florida.
    Nov. 24, 1976.
    Louis G. Carres and Edward L. Harvey, Asst. Public Defenders, for Mabel Jones, appellant.
    Robert L. Shevin, Atty. Gen., and Mary Jo Carpenter, Asst. Atty. Gen., for State of Florida, appellee.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Leon County which held that Section 394.467, Florida Statutes (1973), was constitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

A petition was filed seeking involuntary hospitalization of appellant and a request was made on behalf of appellant for a jury determination of the factual issues involved in the proceeding. Appellant contends that Section 394.467, Florida Statutes (1975), is unconstitutional because of its failure to provide for a jury determination of the factual criteria involved in such proceedings.

Testimony was taken before the court and an order of commitment for involuntary hospitalization was entered. An appeal was then taken to this Court.

In Ex parte Scudamore, 55 Fla. 211, 46 So. 279 (1908), it was contended that legislation providing the procedure for involuntary hospitalization was invalid because of its failure to provide a jury trial of the question of the subject’s insanity. The Court explained that the provision of our constitution that “the right of trial by jury shall be secured to all” merely secured it in those cases in which it was a matter of right before the adoption of the constitution. The Court said:

“At the time, in 1885, when this provision was reinserted as part of our Constitution, for a period of more than half a century, and long prior to the adoption of our first state Constitution in 1845, containing the same provisions, the law in force here making provision for the ascertainment of the fact of insanity and for commitment of the unfortunate sufferer therefrom, made no provision for a jury trial of such question, and granted no such right to the subject involved in the inquiry. Consequently the questioned legislation, enacted since the adoption of our Constitution, in withholding a trial by jury in such cases, invades no right secured to the subject by such provision of the organic law.” 46 So. 279 at 283-84.

The same provision is now included in the Florida Constitution of 1968, Article I, Section 22. We therefore hold that the Florida Constitution does not require a trial by jury in civil commitment proceeding.

In Humphrey v. Cady, 405 U.S. 504, 511, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), the United States Supreme Court recognized that the right to a jury trial in involuntary hospitalization proceedings had not been passed upon by it. The court in Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974), came to the same conclusion. The federal decisions create no impediment to our conclusion that the statute is valid.

Appellant also contends that the failure to provide a trial by jury deprives her of equal protection of the law. Appellant refers to Section 394.467(5)’ Florida Statutes, which grants a right to trial by jury in proceedings where patients, committed due to a court finding in a criminal case of acquittal by reason of insanity, seek release from the hospital. This statute applies only to persons acquitted of a crime by reason of insanity, in accordance with the provisions of Fla.R.Crim.P. 3.460. The committing court retains jurisdiction and the procedure is part of a criminal proceeding. There is a valid distinction between a regular civil commitment proceeding and a hearing which is held in connection with a criminal case wherein a defendant was acquitted for cause of insanity.

There is no fundamental right to a jury trial in civil commitment proceedings, either under the State or Federal constitution. There is a valid distinction between general civil commitment proceeding and the limited circumstance in a criminal case of involuntary hospitalization of a defendant acquitted for cause of insanity. The failure of the state to grant a right to a jury trial in original civil commitment proceedings does not violate either the Florida or the United States constitution. Section 394.467, Florida Statutes, is constitutional.

The judgment of the trial court is affirmed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice

(dissenting).

In my opinion, the Constitutions of the United States and the State of Florida contemplate that persons who are about to be denied their personal freedom by incarceration of any kind should have jury trials when they request them. The fundamental duty of juries is to make determinations of factual questions. Whether a person is mentally ill and the degree of illness are such questions properly to be determined by juries. I have difficulty in understanding why a person accused of violating the criminal statutes should be entitled to a jury trial when, at the same time, a person who is about to be involuntarily confined in an institution by the State should not be entitled to have factual questions determinative of the issues decided by a jury of his peers. Those whose liberty is restrained by walls, fences and guards have little concern about whether their freedom is restrained because of crime or mental illness.

It is well recognized that unsupported allegations of insanity can have a detrimental effect upon the personal lives and careers of people. It should not be left to the discretion of a single judge to make determinations of such allegations. Whenever insanity is used as a defense for crime, juries evaluate and determine the question and likewise, when requested, they should make determinations in civil commitment proceedings.

Prior to Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), juveniles accused of misconduct were denied many due process rights, often resulting in removal from their families for long periods, on the theory that they were not being punished but were being helped by a benevolent State. On the same theory, persons accused of mental illness are sent away to institutions through the benevolence of the State without what I consider to be constitutional safeguards granted to the most vicious criminals. This is inherently unfair and a denial of Fourteenth Amendment rights to due process of law.

I respectfully dissent.


author: PER CURIAM.

text:
    In re ABOLITION OF MUNICIPAL COURTS TRANSITION RULE 22.
    No. 50620.
    Supreme Court of Florida.
    Nov. 24, 1976.
    Richard E. Cox, Tallahassee, Executive Secretary, for The Traffic Court Review Committee.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, Transition Rule 22 is promulgated in the manner as appended to this opinion. This rule shall become effective immediately. This Rule should not be construed to modify or vitiate any agreement reached by a municipality and county relating to abolition of municipal courts.

It is so ordered.

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

APPENDIX

TRANSITION RULE 22

1. References to Abolished Municipal Courts

In the Rules of Court promulgated by this Court, in the Florida Statutes and in any municipal ordinance, all references to municipal court or municipal judge shall be deemed to refer to the county court or county court judge as of January 3, 1977, or, if a municipal court is abolished at an earlier date, on that date.

2. Transfer of Files from Municipal Courts

a. The clerks of the several municipal courts shall, on or before January 3, 1977, transfer to the appropriate county court all cases pending before such municipal courts, including all cases on appeal therefrom, as are within the jurisdiction of the county courts of this State pursuant to Florida Constitution, Rev. Article V, effective January 1,1973. The physical possession of the files of all such cases shall be delivered to the clerk of the appropriate circuit court or to the clerk of the appropriate county court where such clerk is authorized by general law pursuant to Florida Constitution, Rev. Article V, effective January 1, 1973.

b. It shall not be necessary for the clerk of the circuit court or of the county court to redocket such pending and appeal cases as shall be transferred to said court pursuant to this rule, but the docket sheets, docket books, and other records which are transferred and delivered to said court shall be maintained, and appropriate entries may be made in the same manner as entries are made pertaining to cases initially filed and docketed in said circuit court or county court.

c. Neither praecipe nor certificate shall be required in any terminated case transferred and delivered to the clerk of the circuit court or of the county court unless such case be then on appeal. In each pending case which is transferred, and in each case which is then on appeal, the transferring clerk shall file a certificate signed by such clerk, reciting that the case is being transferred in accordance with the requirement of this rule. The clerk of the circuit court or of the county court to which such cases are transferred and delivered shall file in the file of any case which is terminated when transferred, but in which any subsequent action is taken, whether by appeal or otherwise, a certificate that such case was transferred to such court in accordance with this rule.

d. All pleadings in any case transferred pursuant to this rule and made subsequent to such transfer shall set forth in the caption the name of the circuit or county court to which transferred, but may retain the case number originally assigned when the case was initially filed and docketed.

e. From and after the transfer and delivery of the files and other records, the clerk of the circuit court or of the county court to which the transfer is made shall retain custody thereof and be responsible therefor in the same manner as the files initially filed in such court.

f.Unless otherwise agreed to by the city and county or directed by the chief judge, all files and other court papers in terminated cases, shall not be transferred, but may be disposed of as provided by law. In the event that they are transferred under the provisions of this subsection, a complete inventory and index shall be prepared by the municipality.

3. Transition Moratorium

The chief judges of the circuit courts are hereby authorized to declare a moratorium at their discretion, of all nonessential activity in the county courts and clerks’ offices under their jurisdiction (recommend 1 to 2 weeks) for the purpose of preparing for the transition of municipal courts.

4. Costs in County Courts

When any municipal court is abolished and violations of municipal ordinances are prosecuted in county court, the chief judge of a circuit shall, by local rule, establish a schedule of costs, in conformity with the provisions of Fla.Const. (Rev.) art. V, § 20(c)(8), and Fla.Stat. § 34.191(2), F.S.A., to be assessed against a defendant in the county court and paid to the county. Such costs shall be assessed as a set dollar amount per conviction, not to exceed fifty (50) dollars, excluding any other statutory costs.

5. Prosecution of Municipal Ordinance Violations

All municipal ordinance violation charges which may be tried by affidavits or other unsworn charging instruments may proceed to trial on such affidavits or other unsworn charging instruments.

6. Collection of Outstanding Fines

All cases for which outstanding fines, civil penalties and costs are being collected by a municipality shall be retained by the municipality until collected or until such time as the offender defaults on payment. If a default occurs the municipality may institute summary claims proceedings to collect such outstanding fines.

7. Judicial Notice of Municipal Ordinances

The judges of the county courts, upon the abolition of a municipal court, may take judicial notice of any of the municipality’s ordinances if a certified copy of such municipal ordinance has been filed in the office of the clerk of circuit court, or, in those counties having a clerk of the county court, filed in the latter office.

8. Speedy Trial Rule Moratorium

In prosecutions of municipal ordinances violations, the time under the speedy trial rule shall begin to run on January 3, 1977, or when actual custody begins, whichever is later.

9. Branch Courts

Clerks of circuit and/or county courts shall have authority to retain in a branch court, satellite court, or municipal facility (if authorized by the chief judge) all county court permanent records through the pending, or undisposed of, status of a case and then transfer these records to the county seat for retention and destruction.

10.Style of Municipal Ordinance Cases

All prosecutions of municipal ordinances in county court shall have the following style: City of_v._

COMMITTEE NOTES

1. The intent of subsection 4 is that no costs shall be deducted from any fine assessed for the violation of a municipal ordinance.

2. The purpose of subsection 5 is to avoid the necessity of the state attorney preparing informations on all municipal ordinance eases, which at the time of the effective date of the abolition of municipal courts, could be tried by affidavits or other unsworn charging instruments.


author: THOMAS E. LEE, Associate Judge:

text:
    Richard W. HANKS, Appellant, v. L. E. HAMILTON, Jr., et al., Appellees.
    No. 75-606.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Rehearing Denied Dec. 14, 1976.
    Arthur J. Ranson III of Robertson, Williams, Duane & Lewis, Apopka, for appellant.
    W. Stewart Gilman, Orlando, for appel-lees.
   THOMAS E. LEE, Associate Judge:

The appellant (plaintiff below) has appealed an adverse ruling in a nonjury trial concerning the commission of a registered real estate broker. Factually, Hi-Acres Groves, Inc., was the owner of approximately 134 acres of land located at the southeast corner of Interstate Highway 4 and State Road 436 in Seminole County. Desiring to sell said property it was placed on the market and appellee, Hamilton Realty, produced a purchaser (L. E. Hamilton, Jr.) with the broker to receive a commission of $134,310.30.

Appellant and appellees agreed in writing that contingent upon the consummation of the sale of said property resulting in the brokers receiving said commission that it would be delivered to a closing agent from which appellant would be paid $44,000.00 for “services rendered”. Other agreements were prepared authorizing James K. Byrd, a registered salesman, as cooperating salesman to receive one third of the commission. Said agreements resulted in “fee-splitting” with unregistered people in the real estate profession. This is absolutely unlawful and the establishment of a “fund” out of the commissions earned by a broker appears to be a device to split the fee and circumvent the law. This is the very thing that the law is trying to avoid, sec. 475.41, F.S., and is against public policy. Bradley v. Banks, 260 So.2d 256 (Fla.App.1972).

The agreements are important as it raises the question we are to concern ourselves with: Whether or not the appellant, who is not a registered real estate salesman can enforce an agreement made with one who is so registered under Chapter 475.41, F.S., in return for “services rendered” out of a fund created by the said $134,310.30 commission? The appellant had heretofore been paid some $20,000.00 toward the $44,000.00 fee.

Both parties have cited Willner v. Wilder, 280 So.2d 1 (Fla.App.1973). The cited case is distinguished from the case sub ju-dice in that the cited case deals, with a business opportunity whereas the case under consideration concerns the purchase and sale of real property.

The trial judge entered judgment for ap-pellee and appellant seeks a reversal of that judgment.

We affirm. The trial judge sitting as the trier of the facts has the responsibility of determining the weight, credibility and sufficiency of the evidence and these findings are clothed with a presumption of correctness. Benedict v. Dade County Realty, Inc., 274 So.2d 553 (Fla.App. 3rd 1973).

AFFIRMED.

WALDEN, C. J., and ALDERMAN, J., concur.


text:
    Steven MARKS, a single man, et al., Appellants, v. The TRAVELERS INDEMNITY COMPANY, a Connecticut Corporation, Appellee.
    No. 75-1604.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.

      Ehrich & Zuckerman, Miami, for appellants.
    Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Appellants, defendants below, appeal a final judgment dated September 18, 1975, entered by the trial court in favor of appel-lee, plaintiff below.

The final judgment entered by the trial court after a nonjury trial reads, in pertinent part, as follows:

“FINDINGS OF FACT

“1. It is undisputed between respective parties that the accident occurred on April 25, 1972 and that STEVEN MARKS was seriously injured when he was allegedly struck by a phantom vehicle and then subsequently by a third vehicle. Said phantom vehicle is covered under the uninsured motorist coverage on the vehicle operated by STEVEN MARKS on the date of the accident.
“2. On the date of the accident, the vehicle operated by STEVEN MARKS was a 1971 MG coupe and it was owned and titled in the name of CHARLIE’S AUTO PARTS AND SERVICE, INC. and was furnished to WALTER MARKS for his use in the business. WALTER MARKS, on the date of the accident, allowed his son, STEVEN MARKS, to use the car with his permission.
“3. On the date of the accident, CHARLIE’S AUTO PARTS AND SERVICE, INC. was insured with TRAVELERS INDEMNITY COMPANY under a standard commercial policy effective from May 1, 1971 to May 1, 1972 and a copy of the policy was attached to the Petition for Declaratory Relief filed by TRAVELERS INDEMNITY COMPANY. Said insurance policy covered seven (7) listed vehicles owned by CHARLIE’S AUTO PARTS AND SERVICE, INC. and insured each vehicle for uninsured motorist coverage as well as medical pay with the exception that only six (6) vehicles were covered by medical payments instead of seven (7).
“4. Subsequent to the subject accident, a Demand for Arbitration was filed with the American Arbitration Association against TRAVELERS INDEMNITY COMPANY. TRAVELERS INDEMNITY COMPANY, after being advised of the accident and the injuries sustained by STEVEN MARKS, tendered its TEN THOUSAND DOLLARS ($10,000.00) uninsured motorist coverage plus ONE THOUSAND DOLLARS ($1,000.00) medical payments plus FIVE THOUSAND DOLLARS ($5,000.00) PIP benefits as required under the Florida Automobiles Reparations Reform Act also known as No-Fault.
“5. At this point in time a dispute arose between TRAVELERS and CHARLIE’S as to the amount of uninsured motorist coverage which was available for STEVEN MARKS and also the amount of medical pay coverage which was available for STEVEN MARKS. As a consequence of this dispute, TRAVELERS filed a Petition for Declaratory Relief to ascertain their rights and liabilities under the aforesaid policy with the result that this matter proceeded to a nonjury Trial on May 6, 1975.
“6. The Court, in addition to the foregoing undisputed facts, finds additionally the following:
“(a) At no time was there sufficient evidence introduced on behalf of the Defendants to show that the vehicle operated by STEVEN MARKS was, in fact, intended to be a family automobile and not a corporate vehicle so that some analogy might be made because of use that the vehicle should more properly be interpreted as a family automobile thereby allowing a family type policy interpretation when, in fact, the vehicle is actually a corporate automobile and covered under the commercial policy issued by the Plaintiff.
“(b) Insufficient evidence was introduced to show that TRAVELERS was required to increase its uninsured motorist limits from TEN THOUSAND DOLLARS ($10,000.00) per vehicle to ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per vehicle.
“(c) The evidence introduced shows that the vehicles operated by CHARLIE’S AUTO PARTS AND SERVICE, INC. were clearly intended as commercial vehicles for tax purposes and at no time were intended to be family type automobiles or to be considered as owned by the individuals for whose use they were furnished.
“(d) The endorsement introduced into evidence of April 21, 1971 naming individuals as insureds is for the policy previous to the one in dispute and no evidence was ever introduced that the individuals were named on the policy in question as it pertained to the motor vehicles but only insofar as it pertained to certain other coverages not material to this dispute. The Defendants cannot create new coverage when none existed before as they have attempted to do so by their argument.
“(e) The broad form coverage referred to by the Defendants in their argument, referred to a non-owned automobile and would have created coverage in such a situation except for the fact that the vehicle in question in this lawsuit was a car listed and owned by CHARLIE’S AUTO PARTS AND SERVICE, INC. and WALTER MARKS was not named as the owner in any way nor was STEVEN MARKS or MIRIAM MARKS.
“(f) The Kloo -vs- Travelers Indemnity Company, Circuit Court Case No. 72-19962 and Allstate Insurance Company -vs- Baer, Circuit Court Case No. 74-14985 both of the Eleventh Judicial Circuit can be distinguished from the case at bar because they concern policies issued subsequent to January 1, 1972 and, therefore, would not be applicable. The same rationale can be applied to the case of Townsley -vs- Hartford Accident and Indemnity Company, Case No. 74-49 from the Federal District Court for the Middle District of Florida in that that case also dealt with a policy delivered, issued for delivery or renewed in Florida after January 1, 1972 and further can be distinguished because it dealt with a different aspect, namely, ‘underinsured’ insurance which is not the subject of this dispute. It is further important to note that none of the cases cited by the Defendants are binding upon this Court and would only be considered persuasive at best and for the reasons outlined above, are inapplicable.
“(g) The consitutional argument advanced by the Defendants is dismissed as having no merit under the circumstances as the legislature’s clear intention is outlined in the statute and provided for an orderly transition of policies which were delivered, issued for delivery or renewed in this state with an inception date on or after January 1, 1972 and to accept such an argument as advanced by the Defendants would be equally unconstitutional as it applied to the Plaintiff.
“NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING, IT IS CONSIDERED, ORDERED AND ADJUDGED:
“1. The vehicle in question was a commercial automobile and not a personal automobile and, therefore, the amount of uninsured motorist coverage available on said vehicle was TEN THOUSAND DOLLARS ($10,000.00) and not ONE HUNDRED THOUSAND DOLLARS ($100,-000.00). The Plaintiff was under no obligation to increase the limits to ONE HUNDRED THOUSAND DOLLARS ($100,000.00) automatically or by way of notice to the Defendants until after the expiration date of the policy on May 1, 1972 which date was subsequent to the date of the accident forming the subject matter of this dispute. Further a reading of the history of the statute clearly shows this was the intention of the Legislature in passing same.
“2. The Defendants cannot stack uninsured motorist coverage because the vehicle in question was a commercial vehicle and covered under a commercial automobile policy. To rule otherwise would result in absurd consequences and would upset the commercial insurance structure as it is known and further, this Court is persuaded by the arguments advanced in the case cited by the Plaintiff of Cunningham -vs- INA [213 Va. 72], 189 S.E.2d 832 (Supreme Court Virginia 1972).
“3. For the same reasons, Defendants cannot stack Med Pay and the only available medical payments coverage available to the Defendants is the sum of ONE THOUSAND DOLLARS ($1,000.00).
“4. A Motion to Tax reasonable Costs may be submitted at a later date to be considered by this Court.”

Appellants contend on appeal (1) that a policy of automobile liability insurance, covering uninsured vehicle coverage, delivered after January 1, 1972, had statutory uninsured motorist coverage up to the limits of the liability insurance purchased, and (2) that there is no statutory distinction between vehicles titled in a family corporation or those titled in an individual for purposes of invoking insurance benefits under a policy issued for uninsured vehicle coverage and, further, a beneficiary under a multiple vehicle insurance policy is covered separately under the coverage for each vehicle and the benefits are stacked.

Appellee contends (1) that a policy of insurance with an inception date prior to January 1, 1972, was not covered by the Chapter 71-88 amendments to the uninsured motorist statute, and (2) uninsured motorist coverage provided in a commercial policy cannot be “stacked” in the same manner as in a private or family policy.

On appeal, a judgment of the trial court is generally presumed to be correct and the burden rests upon the appellant to clearly demonstrate any error which is claimed to have been committed in the rendition of the judgment appealed. See, e. g., 2 Fla.Jur., Appeals' §§ 314, 316, 346, and the cases cited therein. Based upon these principles, in the instant appeal we have considered the record, all points in the briefs and arguments of counsel in light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.