author: HOLMES, Judge.

text:
    ALABAMA PRECAST PRODUCTS, INC. v. STATE of Alabama, DEPARTMENT OF REVENUE.
    Civ. 628.
    Court of Civil Appeals of Alabama.
    Feb. 25, 1976.
    Rehearing Denied March 24, 1976.
    Dewayne N. Morris, Birmingham, for appellant.

      William J. Baxley, Atty. Gen., and William H. Burton, Acting Counsel, Dept, of Revenue, and Asst. Atty. Gen., and Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County. The trial court sitting without a jury upheld a sales tax assessment by the Department of Revenue, appellee herein, against Alabama Precast Products, Inc. Alabama Precast appeals from that judgment.

The issue to be decided by this court is whether transportation charges for the delivery of appellant’s products incident to their sale are subject to the sales tax imposed by Tit. 51, § 786(2).

The appellee assessed the sales tax on the above mentioned transportation charges, and appellant sought review in the circuit court pursuant to Tit. 51, § 140, Code of Ala.1940. The case was submitted to the trial court on the following stipulation of facts:

“STIPULATION OF FACTS
“The parties in this matter, acting by and through their attorneys of record agree that the following pertinent facts are true:
“1. Appellant has heretofore filed Notice of Appeal from a final assessment entered by the State Department of Revenue and Appellant has filed a supersedeas bond with the Register of this Court and has filed Notice of Appeal with the Secretary of the Department of Revenue of the State of Alabama as required by law.
“2. Appellee, the Department of Revenue, entered its final assessment against Appellant for sales tax under the provisions of Title 51, Section 786(2) et seq., Code of Alabama 1940, Recompiled 1958, Cumulative Pocket Part, and under Department Regulation T18-011. The formal papers of the Department of Revenue relating to this final assessment are attached hereto and made a part hereof as if fully set out herein and designated as Joint Exhibit ‘A’. It is agreed and stipulated between the parties that if any tax is found to be due that it is in the amount shown on the final assessment. Regulation T18-011 prior to the amendment hereto of August 1974 is attached hereto and made a part hereof as if fully set out herein and designated as Joint Exhibit ‘B’. Departmental Regulation T18-011 as amended in August 1974 is attached hereto and made a part hereof as if fully set out herein and designated as Joing [sic] Exhibit ‘C\
“3. Appellant is engaged in the manufacturing and sale of concrete products including concrete blocks. Some of Appellant’s sales were made at the plant with the customer picking up the merchandise purchased, and no additional tax was found to be due in the audit with respect to such sales. In all other cases deliveries were completed by a contract carrier. In no case did Appellant make deliveries on its own trucks. There were three contract carriers who transported and delivered goods purchased from Appellant during the period in question. These carriers owned a total of between eight and twelve trucks. These trucks were equipped especially for loading, transporting and unloading concrete blocks. The carriers were not under exclusive contract with the Appellant but transported goods for parties other than the Appellant. Appellant charged its customers sales tax on the material and blocks sold to its customers but did not charge or collect sales tax on the freight charges. It was the practice of Appellant during the period in question to submit an invoice to the customer upon completion of delivery. Typical invoices so submitted are attached hereto and made a part hereof as if fully set out herein and designated as Joint Exhibits ‘Dl’ through ‘D6’. Each such invoice was divided into two parts, to set out one charge for the price of the conCrete products and another for freight or drayage. Sales tax was charged only on the portion of the invoice covering the concrete products. No sales tax was invoiced, charged or collected for the freight charges. Appellant collected freight charges from its customers. The carriers were paid by Appellant at approximately two week intervals by checks drawn upon Appellant’s accounts and payable to the carriers. The total amount paid to the contract carriers was the same as the total charged by Appellant to its customers as drayage. Copies of typical ones of Appellant’s check requisition and other records, including driver drayage tickets, invoices, check records and cancelled checks are attached hereto and made a part hereof as if fully set out herein and designated as Joint Exhibits ‘El’ through ‘E23’. The total of the price indicated on the invoice of the concrete products together with sales tax thereon, and the freight charge for transportation represented the full charge to the customer made by the Appellant.
“4. When orders were placed with Appellant for concrete materials no intent was expressed by either party as to whether or not concrete products were to be shipped f. o. b. destination or f. o. b. plant; nor was there any intention expressed between the parties as to when title would pass.
“5. Parties agree that case numbers 185-857 and 185-858 will be controlled by the decision in this case. DM PCD”

The entire record before this court consists of this stipulation, the pleadings, and exhibits.

The sales tax which is the subject of this appeal was assessed pursuant to Tit. 51, § 786 (2) (f), Code of Ala. 1940, (1973 Cumulative Pocket Part), which provides in pertinent part as follows:

“The term ‘gross proceeds of sales’ means the value proceeding or acccruing from the sale of tangible personal property (and including the proceeds from the sale of any property handled on consignment by the taxpayer), including merchandise of any kind and character without any deduction on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest paid, or any other expenses whatsoever, and without any deductions on account of losses; . . .”

Appellee contends that this statute, as interpreted by Regulation T18-011 of the Department of Revenue, mandates assessment of a sales tax upon the freight charges described above. Departmental Regulation T18-011, which was in effect at the time of the transactions in question but has since been superseded, provides in applicable part as follows:

“T18-011
“Transportation Charges
“If the seller contracts to deliver tangible personal property to some designated place or is obligated under the contract to pay transportation charges to some designated place, the transportation services are rendered to the seller and the selling price of the tangible personal property so transported must include the amount of the transportation charges. In this event such charges are not deductible by the seller in computing his tax liability under the Act. On the other hand if the seller contracts to sell tangible personal property f.o.b. origin the title to the property passing at auch [sic] point to the buyer and the buyer pays the transportation charges, then the transportation services are rendered to the buyer and are not a part of the selling price of the vendor. Therefore, such transportation charges should not be included by the vendor in computing his tax liability under the Act.
“(d) In no case is the seller permitted to make a separate charge for his own service in the delivery or transportation of the goods in such manner as to entitle the seller to deduct such service cost from the proceeds of sales and no practice of invoicing or billing will entitle the seller to deduct from gross proceeds of sales any cost or expense, actual or estimated, in cases where the seller by use of his own means of transportation effects such delivery. The rule discussed in this paragraph does nog [sic] apply to cases in which a third party or any independent carrier — common, contract, or private — is employed to transport or deliver the goods for hire. (Act No. 100, Section 1(f); Title 51, Section 786(2) (f).” (Emphasis added)

Although the language of subsection (d) of the above appears to exclude freight charges from the tax where the transportation is undertaken by a third party, as is the case here, appellee through able counsel argues otherwise. He contends that this provision applies only where an “independent carrier” is concerned, and that such a carrier is not involved here so that the freight charges are subject to taxation.

In description of this type of carrier, ap-pellee states in brief that “ . . . where an independent third party has contracted to accept delivery on behalf of the purchaser then the transportation charges are an expense borne by the purchaser after transfer of title and are not includable in the measure of the tax.” The “independent carrier” is also described as one who “ . . . invoices the charges to the customer. . . ”

If subsection (d) means this, by implication it would allow taxation of a third party’s freight charges where the seller has contracted to deliver property to the purchaser at a designated place. The difference between taxable and nontaxable charges would thus be essentially that between sales f. o. b. point of origin and f. o. b. point of destination. See §§ 2-319 (1), 2-401(2), Tit. 7A, Code of Ala. 1940.

Appellee cogently argues that its interpretation of subsection (d) should be adopted by this court, in that delivery of property by the seller, Precast, is necessary to Precast’s sale of that property. As such, a delivery is sold by Precast as much as is the property itself, so that the freight charges are taxable as proceeds of the sale. However, in order to apply appellee’s argument, we must have before us facts sufficient to enable us to do so. Such is not the case.

The stipulation set out above contains the only facts before this court. We are unable to determine therefrom whether the sales in question were made f. o. b. origin or f. o. b. destination. Any attempt to do so would be speculation of the sort in which we cannot engage.

While we are unable to apply ap-pellee’s argument due to the paucity of facts, this case can be resolved by an examination of the regulation interpreting the taxing statute, in accordance with the presumption that tax provisions of doubtful meaning are to be construed in favor of the taxpayer. Butler & Kennamer Wholesale Co. v. State, 293 Ala. 216, 301 So.2d 178.

As outlined earlier, appellee’s construction of subsection (d) of Regulation T18-011 makes the taxation treatment of freight charges where third parties transport property dependent upon the difference between sales f. o. b. origin and f. o. b. destination.

The difference in taxation treatment of f. o. b. origin and f. o. b. destination sales is prescribed in the initial section of Regulation T18-011. The criteria distinguishing sales f. o. b. origin are the same as those advanced by appellee in its description of “independent carriers.”

We cannot ascribe to subsection (d) the meaning contended for by appellee. As seen from the above, the same result which that meaning would give is accomplished earlier in the regulation. We would be applying a strained construction to subsection (d) in order to make it useless sur-plusage, redundant of a result accomplished with clarity and specificity earlier in the regulation. This we cannot do, but rather nqust look to the plain meaning of the provision, as is the case with statutes. Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830.

The plain and unambiguous meaning of the provision in question is that deduction of freight charges from the proceeds of sales is permissible where the seller employs a third party to deliver the property sold. Such a conclusion is buttressed by the fact that the language excluding third party carriers is in contradistinction to the immediately preceding sentences, which treat delivery effected through “ . . . the seller by use of his own means of transportation.” [Emphasis supplied] This construction is neither strained nor useless, but affords a rational meaning as an exclusionary provision to the language of subsection (d) in question.

Our interpretation here of subsection (d) is in accordance with the case of East Brewton Materials, Inc. v. State, Dept. of Revenue, 45 Ala.App. 584, 233 So.2d 751. There, we examined the Alabama Supreme Court case of State v. Natco Corp., 265 Ala. 184, 90 So.2d 385, and stated as follows:

“We find that the Natco case does not support appellant’s position here, but rather supports the provision of administrative ruling T18-011, in that, the ruling specifically excludes from its application transportation charges rendered by a third party or a common carrier, even though such charges are invoiced to and paid by the customer.” (45 Ala.App. at 591, 233 So.2d at 756)

Appellee’s final argument is that Departmental Regulation T18-011 is an erroneous interpretation of the sales tax law, if its meaning is in fact what we have construed it to be. However, this court made the following statement in East Brewton, infra:

“We further hold, in agreement with the court below, that administrative ruling T18-011 was a fair and reasonable interpretation of Title 51, Section 786(2) (f), and was within the statutory authority of the State Department of Revenue.” (45 Ala.App. at 590, 233 So.2d at 756)

We now reaffirm that prior holding. It is not unreasonable to define the operational reach of Tit. 51, § 786(2), Code of Ala. 1940, in its application to freight charges, as terminating at a certain point. It is also not unreasonable for that termination point to be where a third party carrier delivers the property sold.

The case is due to be reversed and remanded.

REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    In re ALABAMA PRECAST PRODUCTS, INC. v. STATE of Alabama, DEPARTMENT OF REVENUE. Ex parte STATE of Alabama, DEPARTMENT OF REVENUE.
    SC 1790.
    Supreme Court of Alabama.
    May 28, 1976.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, Asst. Atty. Gen., and Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for the State, petitioner.
    None for respondent.
   EMBRY, Justice.

Petition of State of Alabama, Department of Revenue, for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Alabama Precast Products, Inc. v. State of Ala., Dept. of Revenue, 57 Ala.App. -, 332 So.2d 160.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


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

text:
    David S. ROGERS v. STATE.
    1 Div. 641.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.
    Thomas M. Haas and Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Sam L. Webb, Jr., Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant’s petition for a Writ of Error Coram Nobis, filed and heard in the Circuit Court of Baldwin County, was denied by the trial Judge. This appeal is from the judgment denying the petition.

The record indicates that appellant was indicted in Baldwin County for buying, receiving, concealing or aiding in concealing, one 30-06 Remington automatic rifle, the value of $250.00, the property of the State of Alabama, knowing that it was stolen, etc.

Defendant, with his father, appeared before the trial Judge on April 12, 1974, and entered a plea of guilty to the offense, was adjudged guilty, and sentenced to three years imprisonment in the State penitentiary. He was put on probation, which was revoked after a hearing. Hence, this petition for a review of the plea of guilty to the offense.

Contention was made that in accepting the plea of guilt the trial court did not comply with the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. After reviewing the certified transcript (by the Court Reporter) of proceedings and colloquy between the trial Judge and defendant and his father (who was present with his son) at the time of the plea we are constrained to agree.

For aught appearing in this transcript, which the Court Reporter testified was correct, the indictment was never read to defendant at the time of the plea, nor does it appear that defendant was informed of contents of the indictment or an explanation made to him concerning the charge made in the indictment. Seemingly, the Court assumed that defendant knew what the indictment contained and knew what facts constituted the charge and the law with respect thereto.

It appears that the defendant was 22 years of age when the plea of guilty was received and that he and his father were interrogated by the Court.

The record of the colloquy indicates that defendant was not represented by a lawyer at the time. The father said that he (the father) was able to hire a lawyer; no mention was made about the son’s ability to hire a lawyer. The son being of age, there was no legal obligation on the part of the father to hire the lawyer. No contention was asserted that the son wanted a lawyer; or that he had ever been advised by a lawyer with respect to the nature of the charge, or was in anywise informed as to the legal aspect of the alleged offense. The father said that his son had the rifle. The son made no statement with respect to such possession. The son made no affirmative waiver of a lawyer, neither did he expressly assert that he wanted one or was not financially able to hire one.

The Court in Boykin, said :

“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be sought * * *, and forestalls the spinoff of collateral proceedings that seek to probe murky memories.
“The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understanding^ entered his pleas of guilty.’ 281 Ala. [659], at 663, 207 So.2d [412], at 415.”

It is possible, maybe probable, that the trial judge was so dismayed and displeased with the defendant’s personal dress that he overlooked some essentials in the colloquy with the defendant. We quote the judge’s comments as follows:

“THE COURT: Of course, you will be required to pay the Court costs and as I said, get rid of that pony tail. It is not a fobia [sic]. If these people don’t want to wear their hair like a man, that is their prerogative, but it is one indication that a man is out of tune with society and if he wants help, he has to get in step.”

At the hearing on the instant petition the trial judge expressed his displeasure and unhappiness with the Supreme Court of the United States as follows:

“THE COURT: They put a lot of stuff in it; I have never been able to get away from the fact when you ask a man: ‘Do you want to plead guilty’ — ‘Did you actually commit the crime you are pleading guilty to’ — ‘Did anybody promise you anything to get you to plead’ — In Alabama we had sensible rules until the damn Supreme Court went crazy. Before you could bring any kind of attack after the plea, one of the things you had to do was say you were innocent and swear you could prove your innocence. This is a lot of Balony — this boy knew what he was doing and his father, too, and I accomodated them and I deny the motion — deny the petition for error coram nobis.”

The reaction of the trial judge as above indicated fails to obviate the mandates of Boykin for it is obvious from the record that defendant did not have an attorney present when he entered his plea of guilty; and further, that the Court did not read or cause the indictment to be read to defendant; nor was any explanation imparted to the defendant as to the legal aspects or elements of the accusation in the indictment, The mere fact that defendant’s father told the Court that defendant “bought the gun from a person he can’t identify” was not sufficient. Neither was it sufficient that the Court observed to defendant, “You are pleading guilty because you actually committed the offense”. (No response). We again repeat that it is not shown that defendant knew or was informed as to the nature or elements of the offense, or that he ever knew what the offense was.

The trial court will proceed forthwith after this reversal and remand to enter proper order or judgment vacating the plea of guilty and the judgment of guilt on the pleading, and cause the case to be restored to the proper docket for lawful disposition. Likewise it will vacate the revocation of probation and the order granting probation. The indictment will stand as though no plea had ever been entered. The defendant will be arraigned according to law. Perkins v. State, 281 Ala. 139, 199 So.2d 839; Merritt v. State, 50 Ala.App. 635, 282 So.2d 74.

The judgment denying appellant’s petition for writ of error coram nobis is reversed and the cause remanded with directions.

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

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.

ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

The State in its brief claims that coram nobis is not an appropriate remedy where there has been a prior plea of guilty. See Mayton v. State, 52 Ala.App. 626, 296 So.2d 249, and Arledge v. State, (7 Div. 415, 1976) 57 Ala.App. 553, 329 So.2d 613.

Every rule is tested by its exceptions. Here we have a defendant without counsel pleading guilty. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, requires such representation unless fully and fairly waived. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. Our prior decisions have, in effect, denominated trial without unwaived counsel as such a lack of due process as to amount to a nullity. See Barnes v. State, 42 Ala.App. 504, 169 So.2d 313, and Brown v. State, 42 Ala.App. 690, 170 So.2d 504; see also, Brown v. State, 277 Ala. 353, 170 So.2d 504.

We hold that the lack of counsel makes coram nobis a proper writ.

APPLICATION OVERRULED.

All the Judges concur.


text:
    In re David S. ROGERS v. STATE of Alabama. Ex parte STATE of Alabama.
    SC 1765.
    Supreme Court of Alabama.
    May 28, 1976.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for petitioner.
   EMBRY, Justice.

Petition of the State for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that

Court in Rogers v. State of Ala., 57 Ala. App.-, 332 So.2d 165.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


text:
    David Lee THOMAS v. STATE.
    4 Div. 368.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Rehearing Denied April 20, 1976.

      Farmer & Farmer, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury convicted appellant of assault with intent to , rape pursuant to an indictment therefor. The trial court lawfully sentenced him to twelve years imprisonment. The record does not show appellant to be an indigent.

The alleged offense occurred on April 13, 1975. The victim [we omit her name] left her apartment, at night, accompanied by two of her children, to use a telephone. After such use, while returning home, she was accosted by a black male at 10:00-10 :- 15, who grabbed her and started pulling or dragging her down a side street; that it was misting rain, but there were lights at the intersection. She testified that she saw and observed her assailant for about ten minutes; that a truck came along, and the assailant fled.

It further appears from the victim’s testimony that at this time the man attacked, her thirteen-year-old daughter and her seven-year-old son ran up the street and called the police. It further appears that she struggled with her assailant until a truck came along, and the attacker fled.

The victim and her thirteen-year-old daughter went to the police station the next day, April 14, 1975, and viewed some five hundred photographs, selected four or five that looked similar to her assailant, and from these selections and her description, a detective drew a composite picture of the wanted man.

She further testified that on the night of April 16, 1975, Sergeant Wachob, a police officer, brought pictures to her apartment; she believed four or five. She further testified that all the pictures were those that she had already picked out on the 14th with the exception of one, that of the defendant. She then revised her testimony, stating that there was actually more than one new picture.

Sergeant Wachob testified that the pictures he took to the victim’s apartment on the night of the 16th were the same pictures that she had previously picked out on the 14th; the same four or five and subsequently used on the 15th to make a composite; that only one new picture had been added and that was one of the defendant.

The Sergeant stated that the victim and her daughter looked through the pictures; that the victim picked out the defendant’s picture saying, “I am almost sure this is the man.” The daughter testified that her mother stated that she believed this was the man, to which she, the daughter replied, “I think so, too.” The victim made the statement that if she could see the person, she would be sure.

Whereupon the victim and daughter were taken to the police station. The victim was placed in an interrogation room that had a one-way mirror and identified defendant as being the man; that no attorney was present at this time.

The defendant as not advised that the assailed woman was going to be viewing him; that he was brought in and did not know she was there. No one was present but the assailed woman and the policemen.

Whereupon the defendant was subsequently arrested for the offense. Prior to being viewed at the police station, the defendant was held for investigation.

It appears that defendant denied on the stand that he was the guilty party; he claimed an alibi which was supported by his wife and family; that the first time he remembered seeing his accuser was in the courtroom on the day of trial.

It appears in the record that defendant objected to the prosecutrix’s in-court identification of defendant and asked for a voir dire examination of defendant. The voir dire request was granted. At the conclusion, the State again offered an in-court identification to which defendant again objected on constitutional grounds. The court overruled the objection and permitted the prosecutrix to identify the defendant as her assailant. The voir dire was outside the presence of the jury. The court overruled defendant’s motion to suppress the identifying evidence. The objection to the in-court identification was in the presence of the jury.

Defendant here asserts that the court’s denial of the motion to suppress and the adverse ruling of the court on the objection to the in-court identification were both prejudicial errors.

We do not think there is any merit in either contention. Both rulings were free of error.

We will preface our observations on the rulings by stating that defendant was not entitled to counsel at the photograph identification procedures nor when the accused viewed defendant in a one-way mirror. The right to counsel did not attach until the initiation of formal proceedings. None had been instituted at the time. Kirby v. Illinois, 406 U.S. 68, 92 S.Ct. 1877, 32 L.E.2d 411 (1972).

The question of the validity of the identification procedures in this case, as the Attorney General contends, must be decided on the totality of the facts, McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122 (1973).

We fail to see any illegality or suggestive tactics on the part of the officers, or anyone else, that were used to influence the prosecutrix in her identification of defendant. The identifying procedures took place within three days after the attack. The prosecutrix observed the defendant for ten minutes during the attack and no doubt had many of his facial or physical features impressed on her mind. She examined five hundred pictures of different persons and came up with five that resembled the guilty person. She would not identify either picture as the guilty person.

She then supplied these pictures and her description of the assailant to the police officer who drew a composite picture of defendant. When these selected pictures and one of the defendant were brought to her home, she tentatively identified defendant, but still wanted to see him in person before making a final identification. The identity was conclusive and final when she saw defendant in a one-way mirror. The defendant could not see her, but she could see him. Thus, the identification process came to finality when he was exhibited in person.

It occurs to us that the witness did not want to make a hasty accusation or identification, but wanted to eliminate any minuscule doubt that might be lingering in her mind. When she saw defendant in person, her opinion of identity based on the pictures was confirmed.

We agree with the State’s observation in its brief that clearly, the totality of these circumstances shows that it was not the police who suggested the convict’s identity to the victim, but the victim who suggested the convict’s identity to the police.

It is true that the victim’s estimate of the assailant’s height varied from his actual height by several inches. Such variance was not fatal, but was for the jury to decide what weight they would give to the identifying testimony.

We fail to find any rulings of the trial court that were prejudicial to defendant. The jury heard all the evidence, and their decision should stand.

The judgment is affirimed.

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

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    In re David Lee THOMAS v. STATE of Alabama. Ex parte David Lee Thomas.
    SC 1828.
    Supreme Court of Alabama.
    May 28, 1976.
    Farmer & Farmer, Dothan, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of David- Lee Thomas for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Thomas v. State, 57 Ala.App. —, 332 So.2d 168.

WRIT DENIED.

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


text:
    L. D. DANIELS v. STATE of Mississippi.
    No. 49061.
    Supreme Court of Mississippi.
    May 25, 1976.
    Dale & Upton, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis and Catherine Walker, Sp. Asst. Attys. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   AFFIRMED.


text:
    ZINSCO ELECTRICAL PRODUCTS OF MISSISSIPPI et al. v. Doris C. JENNINGS.
    No. 48611.
    Supreme Court of Mississippi.
    May 25, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, for appellant.
    Al D. Eatmon, Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   AFFIRMED.


text:
    Alice Anne B. POINTER v. Monroe POINTER.
    No. 48690.
    Supreme Court of Mississippi.
    May 25, 1976.
    Luckett & Barnwell, Kay Farese Luck-ett, Clarksdale, for appellant.
    Corr & Carlson, Sardis, for appellee.
    Before PATTERSON P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.


text:
    Billy M. BRUNT v. Wilma Kate Coleman BRUNT (Hood).
    No. 48691.
    Supreme Court of Mississippi.
    May 25, 1976.
    Beach, Beach, Luckett & Hanbury, Jackson, for appellant.
    Paul G. Alexander, Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   AFFIRMED.


text:
    Lester GOBER, Jr. v. STATE of Mississippi.
    No. 49101.
    Supreme Court of Mississippi.
    May 25, 1976.
    John B. Gee, Oscar P. LaBarre, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    Henry Lee ROTHSCHILD v. Sandra Fine ROTHSCHILD (Rose).
    No. 48700.
    Supreme Court of Mississippi.
    May 18, 1976.
    Thomas K. Holyfield, Meridian, for appellant.
    Singley, Minniece, Hamilton, Neville & Hamill, Meridian, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.


text:
    Robert JACKSON v. STATE of Mississippi.
    No. 49093.
    Supreme Court of Mississippi.
    May 25, 1976.
    Henry E. Pope, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    MEYER BROTHERS DRUG COMPANY v. DEPOSIT GUARANTY NATIONAL BANK.
    No. 48686.
    Supreme Court of Mississippi.
    May 18, 1976.
    Jack A. Travis, William R. Barnett, Jackson, for appellant.
    Watkins, Pyle, Ludlam, Winter & Sten-nis, Walker W. Jones, III, Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   AFFIRMED.


text:
    Hugh H. POLK v. STATE of Mississippi.
    No. 49058.
    Supreme Court of Mississippi.
    May 18, 1976.
    Brown & Stanfield, Ross & Ross, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and INZER and WALKER, JJ.
   AFFIRMED.


text:
    Patsy Ann Strange WIANT v. Charles O. SEYFARTH et ux.
    No. 48668.
    Supreme Court of Mississippi.
    May 18, 1976.
    Gwin & Gwin, R. Brent Bourland, Natchez, for appellant.
    Zuccaro, Riley, Pintard & Brown, Natchez, for appellees.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   REVERSED ON DIRECT APPEAL; AFFIRMED ON CROSS APPEAL AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


text:
    James Paul WEEMS v. W. E. HARRELD, Jr.
    No. 48684.
    Supreme Court of Mississippi.
    May 18, 1976.
    Barrett, Barrett & Barrett, Lexington, for appellant.
    R. L. Goza, Canton, for appellee.
    Before GILLESPIE, C. J., and INZER and WALKER, JJ..
   AFFIRMED.