text:
    Tommie WRIGHT, alias v. STATE.
    6 Div. 611.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 6, 1977.

      Michael L. Chambers, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Susan B. Bevill, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

Tommie Wright, alias, was indicted for unlawfully assaulting, with intent to murder, one Benjamin Holman. The jury found the appellant “guilty of assault with intent to murder,” as charged in the indictment, and the trial court entered judgment, which set sentence at ten years imprisonment in the penitentiary.

Benjamin Holman testified that he had known the defendant, Tommie Wright, for some thirteen or fourteen years, having grown up in the same neighborhood, and having played ball with him. He testified that in December, 1976, on a Friday night, near Christmas, he was working at the Crown Petroleum Station on 20th Street in the Ensley section of Birmingham, Alabama. He stated that Tommie Wright drove in the station to buy some gasoline, and after pumping $2.00 worth of gas, stated that he did not want to pay for it at that time, that he had a lady in the car, and all he had was $5.00. Holman told Wright that he would have to pay for the gas, Wright started cursing him, but later came back and handed him the money. Holman gave him $3.00 in change.

Holman stated that he subsequently saw Wright near the J.C.C.O., because he was trying to get in school up there, and words were exchanged between the two. On January 26, 1977, Holman was riding in a car with Richard George and Robert Smith and they stopped near a store on 17th Street while George went in to purchase some wine.

According to Holman, the appellant, Tommie Wright, was riding in a car with one Willie Coleman. They were driving up 17th Street at Avenue I. After parking their car, Willie Coleman called to him to come over to the car. As he walked over, Wright began cursing him and saying that he was “dirty” for not letting him have the gas when he had his girl friend with him. Holman stated that he started to back away, and that Wright reached over Coleman and fired a .22 pistol, which struck him in the leg. He stated that he fell, and then began pulling himself away from the car. He stated that Wright got out of the car and fired a second shot, which struck him in the other leg. Wright then came over and pointed the gun at his head and the gun clicked. He stated that he managed to pull himself to his car, and Richard George came out of the store and took him to the police station, then he went to the hospital. He stated that he was treated by Dr. Long and that he had to be on crutches one and a half months, and was out of work for almost a year. Holman stated that his brother swore out a warrant against Wright.

Wright testified that he had known Holman for sixteen or seventeen years, and that he remembered the incident in December, 1976, when he went to the Crown Petroleum Station. Wright testified that he explained to Holman, thinking he was a friend, that he had his girl friend with him, and he would come back later to pay for the gasoline that he had pumped. He stated when Holman objected, he got $5.00 bill from his girl friend and gave it to Holman. Wright stated that Holman told him that he also owed him $2.00 on a loan, and only handed him back $1.00. Wright said that he later saw Holman near the school, and that Holman cursed him and called him a “bitch.” He stated that Holman also threatened him.

On the afternoon of January 26, 1977, Wright stated he was riding in an automobile with Willie Coleman, that they were driving up 17th Street, near Avenue I, when Coleman saw Benjamin Holman and called out to him. Wright indicated that Holman came over to the car and cursed him, and that he then took the pistol and shot him twice, once in each leg. Wright stated that the gun was a nine-shot .22 revolver, and that he only shot Holman because he had threatened him, that he did not intend to kill him.

I.

The sole contention of error concerns the cross-examination of the appellant, Tommie Wright, with reference to a prior conviction in the State of Ohio. The colloquy is as follows (R. pp. 68-69):

“Q. Mr. Wright, you have been convicted of armed robbery, haven’t you?
“MR. YOUNG: Now, wait just a minute, may it please the Court. I object. And—
“A. I don’t mind answering that question.
“MR. YOUNG: Just a minute. Don’t answer that question. I would like to approach the bench, if you would.
“THE COURT: All right.
“(Whereupon, an off the record discussion was then had at the bench.)
“THE COURT: Members of the jury, we will excuse you for just a minute. We will call you back.
“(Whereupon, the jury then left the courtroom, and the following occurred out of the presence and hearing of the jury:)”

After the jury was excused, the trial judge then took voir dire testimony from the appellant, Tommie Wright, who indicated that on August 30, 1966, he had been convicted of armed robbery in Mansfield, Ohio, and given ten to twenty-five years, that this disposed of two cases, but that he only served about six months as his lawyer appealed the case and the case was reversed ,by the Ohio Appellate Court. On retrial, Wright testified that he was acquitted, so that he had no prior record as the jury had found him not guilty.

After conducting this voir dire examination, the trial court then instructed the jury that they were recessed for the afternoon, and that they would resume their deliberation the following morning at 9:00 a. m.

At 9:00 a. m. on June 29, 1977, there was an inquiry by defense counsel as to the status of the record, and the court reporter indicated to counsel that the defendant had replied that “he did not mind answering questions.” The trial court then read into the record the citation from the Ohio Court of Appeals, which is State v. Wright, 11 Ohio App.2d 31, 227 N.E.2d 650, which shows the reversal of the robbery conviction of the appellant. The record then reads as follows (R. pp. 76-79):

“MR. YOUNG: Yes, sir. In view of the nature of the question itself, if it please the Court and the basis on which the District Attorney propounded that question, it being a rap sheet which indicates no disposition at all of the charge of armed robbery merely, we consider the question prejudicial to the Defendant. And we move for a mistrial.
“THE COURT: All right. Overruled. I will instruct the jury to ignore the question. And I will tell them that there was no answer to it, and that they can ignore the question that was asked by Mr. Gom-any just before we adjourned yesterday.
“MR. YOUNG: Are you going to instruct the jury that the question is improper and that they should ignore it?
“THE COURT: I will say that.
“MR. YOUNG: Yes, sir. Thank you.
“THE COURT: Of course, I’m just saying between us that Mr. Gomany had no way of knowing that. I’m not criticizing him. But before the jury I will say that the question was improper, and to ignore it.
“MR. YOUNG: Yes, sir. Thank you.
“THE COURT: Now, is the victim here?
“MR. GOMANY: Judge, I told him to be here at 8:00 o’clock.
“THE COURT: All right. Well, we will let the jury in and proceed.
“MR. YOUNG: Go on back up on the stand.
“(Whereupon, the jury then entered the courtroom, and the following proceedings occurred in their presence and hearing:)
“THE COURT: Members of the jury, as I stated to ya’ll in the very beginning of the case, what the attorneys say is not evidence in the case. Yesterday a question just before we adjourned was asked by Mr. Gomany. I want to ask you all to ignore that question, to erase it from your minds. It was an improper question.
“And do all of you feel that you can ignore that question that was asked? All right. I see no hands. And all are nodding so favorably or affirmatively. All right. We will proceed then.
“MR. YOUNG: Thank you.
“THE COURT: All right. Who was questioning?
“MR. YOUNG: Mr. Gomany had just taken him on cross-examination and propounded that first question.
“THE COURT: All right.
CROSS EXAMINATION (Continued)
‘'BY MR. GOMANY:
“Q. Tommie, you do admit to shooting Benjamin Holman on January the 26th?
“A. Yes, sir.
“Q. Twice?
“A. Twice.
“Q. You shot him twice.
“A. Yes, sir.
“Q. And then you fired the gun again?
“A. No, sir.
“Q. You deny that?
“A. I shot at him once, shot at him again and it clicked, and then I shot it again and hit him. And I know he had to have powder burns on his legs no further than that from him.
“Q. And you pulled the trigger three times?
“A. Yes, sir.
“Q. And this was a .22 luger?
“A. A .22 — it shoots hollow points, nine shots. It shoots hollow points.
“Q. And were they long rifles or longs?
“A. Longs.”

Appellant’s counsel cites this Court to two cases which he contends require a reversal of the case at bar. They are: State of Arizona v. Stago, 82 Ariz. 285, 312 P.2d 160; and United States v. Semensohn, 421 F.2d 1206 (2 Cir.)

In Stago, the Arizona Supreme Court reversed because the prosecutor, in attempting impeachment of the appellant, asked about a prior conviction which he was not prepared to prove even though the trial judge instructed the jury to disregard the question.

In Semensohn, the case was reversed because of the cumulative effect of questions asked by the prosecuting attorney concerning prior convictions over defense’s objection. The record showed that the defendant had plead guilty to a lesser charge than inquired about, and the comments from the court were inadequate to dispel the prejudicial nature of the prosecutor’s inquiry.

No such situation exists in the case at bar, as the record here affirmatively reflects that no answer was given in the presence of the jury by the appellant to the question asked. Rather, the appellant’s reply was, “I don’t mind answering that question.” Immediately thereafter, the jury was sent out and heard nothing further until the trial court the following morning instructed them, not only that the question had been an improper one and for them to ignore it and not consider it in their deliberations, but went further and affirmatively polled each member of the jury concerning this question. Clearly, therefore, any possible basis for a mistrial was eradicated in the case at bar. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62.

We have carefully examined this record and find same to be free from error. The judgment is

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Tommie WRIGHT.
    77-208.
    Supreme Court of Alabama.
    Feb. 3, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


author: TYSON,. Presiding Judge.

text:
    Tommy Lee MYLES v. STATE.
    4 Div. 527.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Rehearing Denied Jan. 24, 1978.

      Solomon S. Seay, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON,. Presiding Judge.

The indictment charged the appellant with the first degree murder of Melvin Andrews Pruett “by shooting him with a .22 caliber rifle.” The jury found the appellant guilty of murder in the first degree and fixed punishment at imprisonment for life.

Prior to trial the appellant’s cause had been transferred to the Juvenile Court, and following a hearing and the determination of delinquency the case was then transferred to the Circuit Court for trial.

The appellant’s motion for a new trial, which challenged the weight and sufficiency of the evidence and the admission into evidence of the appellant’s confession, was denied following a hearing thereon.

James Taylor, Deputy Sheriff of Montgomery County, testified that on July 29, 1975, he received a call concerning a shooting somewhere in the southern part of Montgomery County. He stated that he, accompanied by Billy White, an Investigator, responded to the call and drove to the Crenshaw County line to the home of the appellant, Tommy Lee Myles, where they determined a shooting had taken place. He stated there were three or four people at the scene when they arrived. Deputy Taylor notified the Crenshaw County authorities and awaited their arrival. At this time State Investigators John Cloud and Neil Rucker were also at the scene. Soon thereafter, Crenshaw County Deputy Jeff Moseley and the coroner arrived. The body of a white male was in the back of a small yellow pickup truck. Deputy Taylor secured the scene until State Investigator John Cloud arrived and made photographs. Deputy Taylor indicated that his partner, Investigator Billy White, asked the appellant, a thirteen year old black boy, what happened. The appellant responded as follows (R. pp. 96-97):

“A. He said that the insurance man came to collect the insurance money, and after he came to the door, there were two other white men to arrive on the scene. He said that one of them shot him, and that they both ran. One ran behind the house down through the woods, and the other one ran out across the road.
“Q. Now, in this statement, did he say how the body got into the back of the pickup?
“A. He stated that he was trying to get the man to the doctor, and that he picked him up and put him in the truck, but he could not drive the truck away from there.
“Q. Approximately what time did you and investigator White leave?
“A. About three o’clock, I believe.
“Q. So, you were there roughly two to two and a half hours?
“A. Yes, sir.”

Sergeant John Cloud, employed by the Alabama Bureau of Investigation, Department of Public Safety, stated that he, accompanied by Corporal S. N. Rucker, drove to Crenshaw County, near Lapine, Alabama, on July 29, 1975. Upon arrival at a house, known as Route 1, Box 79, Lapine, there were a number of people present, including Montgomery County Deputy Sheriff Taylor and Investigator Billy White. The body of a white adult male was in the rear of a yellow Chevrolet pickup truck. “The man was dressed in a leisure suit, and the back portion of the suit had at least three holes that appeared to be bullet holes, through the outside of the jacket, and on later examination after pulling up the jacket, they did appear to be bullet holes in the man’s back.” (R. p. 106) Sergeant Cloud stated the man was dead, and upon examination he discovered some discolored places in the sand between the house and the truck. He stated that the soil was sandy in nature and had the appearance of something having been dragged from the area.

Sergeant Cloud testified that later that afternoon, July 29, 1975, at approximately 3:20, the appellant, in the presence of Cren-shaw County Deputy Moseley, his mother, Mrs. Myles, and a young female, made a statement to Sergeant Cloud. He stated that prior to obtaining this statement there had been no threat, intimidation, coercion, or inducement made or offered to obtain the statement, nor at that time had the appellant been advised of his Miranda rights. However, at this point suspicion had not focused on the appellant. In the course of the conversation, the following developed (R. pp. 113-114):

“Q. And, yet on the basis of your conversation with Officer Taylor and with Officer White, you still did not consider the Defendant to be a suspect at that time?
“A. No, sir.
“Q. Had you developed any notions about what had happened at that time after you talked to Taylor and White?
“A. To my recollection, no, sir.
“Q. Did Officer Taylor or Officer White tell you of the conversation that they had with the Defendant, wherein, the Defendant allegedly told them that two white men had come up and shot the man, and that he had shot out through the window?
“A. No, sir.
“Q. They did not tell you that conversation?
“A. Part of that that you said was said, but not all of it.
“Q. Who told you about the conversation with the Defendant?
“A. I believe it was Deputy White.
“Q. What did he tell you?
“A. He told me that a young black male lived in that house had told him that the insurance man had come up there and he had paid a policy premium. And, that after the man left, two white men came up and eventually shot him on that side of the house, the parking area side of the house, and that one had run back into the woods, and that one run across the highway into the dirt road in the area.
“Q. Did Officer White or Taylor tell you they didn’t believe that story?
“A. More than likely, yes, sir.
“Q. They told you that, and didn’t they tell him that they did not believe that story?
“A. In those words, probably not, but yes, sir, that’s essentially what they said.
“Q. Essentially, it was conveyed to you that they did not believe that story?
“A. Yes, sir.”

The appellant’s mother, after talking with her son, Tommy Lee Myles, gave Deputy Moseley a pistol and a .22 rifle, which were subsequently delivered to the State Criminal Laboratory in Montgomery for examination.

Thereafter, Sergeant Cloud requested the permission of the appellant’s mother to take the appellant to the Crenshaw County Courthouse for the purpose of having him make a statement under oath. Mrs. Myles consented for her son to accompany the officers, but she did not go with them.

At approximately 4:50 on the afternoon of July 29, 1975, at the Crenshaw County Courthouse, in the presence of Corporal Rucker, Deputy Moseley, and Sergeant Cloud, the appellant gave a statement, after first being advised of his Miranda rights, and without any threat, coercion, promise, or other inducement, the appellant signed a waiver of rights form. Sergeant Cloud first determined that the appellant had gone through the sixth grade in school. He stated that no request was made for his mother to be present, and there was no request for an attorney, appellant having waived his right to counsel.

Mrs. Annie Gladys Myles took the stand for the purpose of explaining that she did not know the appellant did not have to make a statement and did not know he had a right to talk with a lawyer, that, if she had known this, she would have contacted one for him; and she did not know that she could have gone downtown with her son when the officers took him to the Courthouse. She stated that her son’s date of birth was March 21, 1962, that he was now thirteen years of age, and had completed the sixth grade in school. She stated that commencing in July, 1974, her son had been conferring with some of the Mental Health authorities for Crenshaw County.

Sergeant John Cloud then took the stand and testified he found three holes in the kitchen window screen on the north side of the house, which faced the area where the body was found, and he also observed an area with red spots in the sand nearby. Cloud stated he asked the appellant’s mother and the appellant to accompany him to the Crenshaw County Courthouse for a sworn statement. Mrs. Myles consented for her son to go. He said he had not explained to her that her son had the right to talk with an attorney. Cloud stated that he heard no one threaten, intimidate, or offer any reward or hope of reward in order to obtain a statement from the appellant, including Deputy Moseley and Corporal Tucker. Sergeant Cloud stated the appellant’s Miranda rights were read to him after first ascertaining his age and educational background, and after full explanation, in the presence of the three officers, he executed a written waiver. Appellant then gave an oral statement which was later reduced to writing. After the statement was written and read back to the appellant, the appellant signed the statement. This was at approximately 5:20 p. m. on July 29, 1975, in the sheriff’s office at the County Courthouse. This statement is as follows (R. pp. 149-150):

“A. ‘The following is the oral statement of Tommy Lee Myles as given to Sergeant J. M. Cloud, Corporal S. N. Rucker, and Crenshaw County Deputy Jeff Moseley at the Crenshaw County Courthouse in Luverne, Alabama, on July 29, 1975 at 5:20 P.M.
“ ‘At a few minutes before twelve o’clock noon the policy man came to my house. He had called before he came so my mother gave me five dollars to give him before she left. When he came, the man from Independent Life, he knocked on the door and came in and sit down. “Did your mother leave some money for me” I said, “She left five dollars” He said, Hell, your mother is so far behind I can’t be running my gas over here for so little change. If you don’t come up with more money than this she’ll have to change policymen. Tell her to call me and see what she wants to do. I should never had a black person on my route anyway.” I told him, “get your body out of my house” He said, Damn Niggers, ought to go somewhere and kiss somebody’s ass. I said wait a minute and I sure will kiss yours. He walked away. I got the .22 rifle from under our couch and went into the kitchen window. I stuck the barrel through the screen and shot at him. I think I may have scraped his head because his hair flew up. He started running but it didn’t get him anywhere because I shot him again. I think I shot four or five times. He staggered back and fell down. I ran outside and looked at him, then I went back in and called my Aunt Alberta Perry. I told her somebody had come up there, two white men, and shot the Independent man. Then I drug the body up to his truck and put him in the back. I was going to get help for him. The truck was in reverse and it just went in a circle and I couldn’t drive it. Then my mother and my brother came up. I told them two white men did it too. I think I picked up one of the hulls in the kitchen and put it in my pocket but I don’t know where it is now. I don’t know where the others are.
“ ‘This is true and correct to the best of my knowledge and I was not forced to make it.
“ ‘Signed: Tommy Lee Myles. Witnessed: Jeff D. Moseley and S. N. RUCKER.’ ”

Sergeant Cloud then identified several photographs made at the Myles home, in-eluding the kitchen window and screen, facing north. Sergeant Cloud further stated he was present at White Chapel Funeral Home in Montgomery when Dr. Richard Roper performed an autopsy on the body of the deceased, Melvin Andrews Pruett. Sergeant Cloud then identified photographs of the deceased made at White Chapel Funeral Home in the presence of Dr. Roper.

On cross-examination Sergeant Cloud admitted that Mrs. Myles did not go to the Crenshaw County Courthouse with them when they talked with her son, and that he did not discuss with her the appellant’s right to have a lawyer before he questioned him.

Sergeant Cloud on redirect examination stated he delivered the rifle which was received from Mrs. Myles to Dr. Richard A. Roper at the State Criminal Laboratory in Montgomery.

Dr. Richard A. Roper testified that he performed an autopsy on the body of the deceased, Melvin Andrews Pruett, on July 30, 1975, at the White Chapel Funeral Home in Montgomery, and that Sergeant John Cloud of the Alabama Bureau of Investigation was with him. He stated that Sergeant Cloud made some photographs during the post mortem examination. From Dr. Roper’s testimony (R. pp. 174-175):

“Q. Did you find any wounds on that body?
“A. Yes, sir.
“Q. Will you please tell the Jury what you found?
“A. In examining the body, I found a total of ten injuries. Several of these were abrasions. There was one on the chest, one on the left side of the forehead, and one on the right cheek. There were four bullet wounds of entrance in the right side of the back, and one was in the approximate middle of the back. If I may, I’ll indicate to the Jury on my own self?
“Q. All right?
“A. In the middle of the back here (indicating), another one slightly to the right of that (indicating), there was one in this portion of the back towards the side (indicating), and one up right and near the arm pit, in the back of the shoulder (indicating). Also, on the front of the body there were four — excuse me, there were three gunshot wounds of exit nature where bullets had exited, or left the body. One was in the right chest (indicating), one was in the approximate center of the chest over the breast bone (indicating), and the third one was towards the left side of the chest'near the shoulder (indicating).
“Q. Did you determine the cause of death in this case?
“A. Yes, sir, I did.
“Q. Will you please tell the Court what it was?
“A. Based on my examination of the body, I concluded that death resulted from hemorrhage or massive bleeding, and shock which is a condition which the body goes into from the bleeding. So, hemorrhage and shock, plus central nervous system trauma — in this particular instance, a bullet had penetrated the spinal cord, which is part of what we call the central nervous system, so in summary, death resulted from hemorrhage, shock, and central nervous system trauma, resulting from multiple gunshot wounds to the body.”

Dr. Roper further testified that he recovered a small caliber bullet within the spinal cord area, which was examined by Mr. Charles Smith, Criminalist, under his direction.

Charles Wesley Smith, former Criminalist with the State Crime Laboratory in Montgomery during July, 1975, testified he made an examination of a .22 caliber bullet received from Dr. Roper with some bullets which he test fired from a .22 caliber Remington, Model 55, semi-automatic rifle and found that the bullet received from Dr. Roper was definitely fired from the .22 rifle which he examined.

The appellant’s motions to exclude and for a directed verdict were overruled following argument.

Dr. George Claire stated he was the Satellite Director of Mental Health for Butler County. He stated he first met the appellant, Tommy Lee Myles, on April 19, 1974 and talked with him monthly for varying periods until May 3, 1975. He stated that Myles had been referred to him by the Department of Pensions and Security because of an incident which occurred in school. He stated that the appellant had characteristics of irritability, brooding, discouragement, manifested by temper outburst, which were part of an adolescent condition. From the record (R. pp. 201-202):

“Q. Did you form a judgment on the basis of your observations of him, your conversations with him monthly, your diagnostic evaluation as to whether or not he knew right from wrong?
“A. Well, sir, there are two parts to the question that you are asking. The first part of this question is, if he was aware of the alternatives that were available to him.
“Second part, his ability to act on these alternatives, and of course we have to take into consideration the fact that he was in a sterile or isolated environment. He was in the counseling room, and in it, we are dealing with situations of behavior control problems, and we discuss the alternatives. He was aware of them and was able to assume them in this sterile counseling environment. But, his ability to act on these things outside of that sterile and isolated environment, I can’t testify to that.
“Q. Well, you don’t know whether he would have the ability to act on alternatives outside of a sterile environment?
“A. Without actually being there and talking to him about how he was feeling and responding, no.
“Q. When is the last time you saw Tommy?
“A. May 3, 1975.”

On cross-examination Dr. Claire stated that he could not give an opinion as to the appellant’s mental condition on July 29, 1975, since this was almost two and one-half months since he had last seen the appellant.

Appellant’s mother, Mrs. Annie Gladys Myles, testified that she was working as a domestic servant in Crenshaw County in July, 1975, having completed only the sixth grade in school. She testified that for almost a year her son had been going to the Mental Health authorities, that he was one of the youngest of her nine children. She stated her son was not stable. She recalled the afternoon of July 29, 1975, stating that she was not at home when the white man first came to their home, but her son Tommy was there. She stated that the two officers did talk with her and tell her they were going to take her son downtown for questioning, but she thought they were going to bring him home that night, that she did not see her son again until the next day. She stated she did not have any conversation with them concerning an attorney or that she could accompany them downtown.

The State called Kenneth P. Helms who testified that he talked with the appellant during the fourth, fifth, and sixth grades while he was' attending Highland Home School in Crenshaw County. He was the home room teacher of the appellant while in the sixth grade. Mr. Helms stated that the appellant was an “average student” and had made the following grades (R. pp. 219-221):

“Q. All right, referring to the school year 1975, what grades did he make the first semester, second semester, yearly average and citizenship?
“A. All right, just citing down, citizenship, he made C’s all the way across there. Reading, 80 in the first semester, 75 second semester, giving him a yearly average of 78.
“English, he had 62 in the first semester, 65 in the second semester, making a yearly average of 64.
“Spelling, first semester he had 83, second semester was 65, giving him a yearly average of 74.
“Writing, he had a B the first semester, C the second semester with a yearly average of a C.
“Social Studies, first semester was 67, 55 for the second, 59 for a yearly average.
“P.E., he had an S all the way across, which is satisfactory.
“Arithmetic, first semester was 76, second semester 74, yearly average of 75.
“Science, he had 72 first semester, 58 second semester, making a yearly average of 65.
“Health, he had S’s all the way across, which again, means satisfactory. I believe that’s all.
“Q. All right, excuse me, I now refer you to section 4 here which is an evaluation of social and personal assets.
“Will you please describe to the Jury what you are grading him on in that respect?
“A. This is just in last years — .
“Q. Yes, explain to the Jury what cata-gories mean from 1 through 5?
“A. All right, one is superior; two is above average; three would be average; four is below average; and five would be low.
“In evaluation, we have cooperation, which is a three, and that’s average.
“Courtesy, that’s a three also.
“Dependability, that’s a three.
“Industriousness is also a three.
“Initiative, three.
“Leadership, three.
“Education maturity is a three.
“Personal appearance is a three.
“Self control, that’s a three also.
“All right, based on these evaluations that you’ve made of him, and the grades that you’ve read to the Jury and his evaluation, would you say he is an average student at Highland Home High School?
“A. Yes sir.”

Mr. Helms further stated that while he knew the appellant was going to the Cren-shaw area Mental Health on the monthly basis he did not have any conversations with Mr. Claire.

Crenshaw County Chief Deputy Sheriff Jeff Moseley stated he participated in the investigation of the slaying of Mr. Melvin Andrews Pruett on July 29, 1975. He stated he had gone to the Myles home and was present when the appellant gave his statement at the Crenshaw County Courthouse. He testified that there had been no threat, intimidation, coercion, or inducement made in exchange for.this statement. He stated the appellant was not tricked or abused in any way, and that his Miranda rights were read to him before he signed a written waiver. He stated that after the appellant’s statemerit was reduced to writing it was read back and gone over with the appellant, word for word, before the appellant signed it. He stated that after this the appellant asked him to call his mother, and he took him into the sheriff’s office, dialed her number, and the appellant talked with his mother at her residence.

Mr. Kenneth Helms was recalled to the stand and testified that, as the appellant’s teacher, he thought the appellant knew the difference between right and wrong and had the ability to adhere to the right.

Mr. Charles Richardson, Principal of Highland Home School, was called to the stand and testified that he had known the appellant for some six years as a student. He stated the appellant was “no different from other students, and in his judgment he was sane.”

The appellant then called John T. Montgomery who lived in Honoraville. He stated that he had known the appellant since September, 1975, when the appellant got out on bond for about eight months. From the record (R. p. 232):

“Q. Did you have an opportunity to observe him and talk to him during the time he was down there?
“A. Everyday.
“Q. Did you form any opinion as to whether or not he was of sound mind?
“A. Well, now, I wouldn’t say he’s not off, but I wouldn’t say that he’s what you would call crazy either.
“Q. And, what would you say he is?
“A. Well, he knows right from wrong.
“Q. Do you think that he had the ability to choose between right and wrong?
“A. Yeah, I do, yeah.
“Q. With whom have you discussed this case, Mr. Montgomery?
“A. I didn’t understand you?
“Q. With whom have you discussed this case?
“A. No one.
“Q. You haven’t discussed it with anybody?
“A. No.
“Q. You haven’t discussed it with anybody today?
“A. No.
“Q. Not even with me?
“A. Well, I spoke to you about it when you come in this morning.”

The appellant’s attorney claimed surprise and was allowed to cross-examine Mr. Montgomery further (R. pp. 233-234):

“Q. And, did you tell me whether or not you had talked to any of the State people about appearing as a witness?
“A. No, I didn’t mention nothing about it.
“Q. You didn’t mention anything about it?
“A. No.
“Q. Did you mention to me why you had been called as a witness?
“A. No, I told you that I didn’t know why. I didn’t know no more about Tommy, other than while I was in jail with him.
“Q. What else did you tell me?
“A. That I was going to tell you that I couldn’t swear that he was crazy, but he wasn’t exactly at his self.
“Q. That he wasn’t exactly at himself?
“A. Yes, sir.
“Q. This is what you told me?
“A. Yes, sir.
“Q. What did I tell you?
“BY MR. KING: We object to that.
“BY THE COURT: Sustained. I think Mr. Seay knows better than that.
“BY MR. SEAY: I don’t have any further questions.
“BY MR. KING: We don’t have any cross examination of this witness, Your Honor.
“BY THE COURT: All right, you may step down.”

I

The principal issue presented by this appeal concerns the admission into evidence of the statement of Tommy Lee "Myles given to the officers, Cloud, Rucker, and Moseley, at the Crenshaw County Courthouse on the late afternoon of July 29, 1975. This Court has endeavored to painstakingly set forth evidence because of age, background, and suggestions as to appellant’s mental competency made at trial and during argument before this Court.

The appellant’s counsel also asserts that since he was a juvenile the appellant did not have the capacity to waive his rights under the Fifth and Sixth Amendments of the Constitution of the United States.

The legal issue before this Court in this appeal was most recently resolved in an opinion by Judge Bowen, speaking for the Court in Parker v. State, Ala.Cr.App., 351 So.2d 927 (1977) cert. quashed as improvidently granted, Ala. (1977) 351 So.2d 938. In this opinion Judge Bowen points out that the confession of a minor is not ipso facto inadmissible. From Parker v. State, supra:

“ . . .A number of courts have considered the question of the competency of a minor, without the guidance of a parent, attorney, or other friendly adult, to make an intelligent, understanding, and voluntary waiver of his constitutional rights.
“ ‘Most courts that have considered this question have concluded that there is no absolute requirement that a parent or attorney be present in order for a child to make an effective waiver, or, put another way, that a child is not presumed, for reasons of age alone, to be incapable of waiving his rights by himself. Rather, the effectiveness of the waiver is determined by examining the totality-of-the circumstances surrounding the giving of the statements, and some courts in using this approach have employed what amounts to a voluntariness test rather than a literal application of Miranda.’ S. Davis, Rights of Juveniles: The Juvenile Justice System, 1974, p. 92.
“Most of the decisions that examine the totality of the circumstances to determine the voluntariness of a minor’s confession and waiver rely on Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). The leading case so holding is People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407 (1968) wherein the California Supreme Court stated that:
“ ‘We cannot accept the suggestion of certain commentators . . . that ev.ery minor is incompetent as a matter of law to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by an attorney or by a parent or guardian who has himself been advised of the minor’s rights.’ “The court concluded that a minor has the capacity to make a voluntary confession even in a capital case, without the presence or consent of counsel or other responsible adult. The court said that the admissibility of such a confession depends not on age alone but with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statements.
“In West v. United States, 399 F.2d 467 (5th Cir. 1968), the court set forth the circumstances to be considered in determining the validity of a minor’s waiver of Miranda rights:
“ ‘(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge, if any has been filed, and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogation; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused had repudiated an extra judicial statement at a later date.’ 399 F.2d at 469.
“It should be noted that in some of the cases employing a totality of the circumstances approach, the importance of a parent’s presence in determining the effectiveness of a waiver of constitutional rights had been urged in the very strongest terms but not required.
“A number of states now require the presence of a parent before an effective waiver can be found. See, e. g., Colo.Rev. Stat.Ann. § 19-2-102(3)(c)(I) (1974) (requires that warnings be given to both child and parent or legal custodian and requires presence of parent or legal custodian during any questioning); Conn. Gen.Stat.Ann. § 17-66d (1975) (identical to Colorado provision); Okllo.Stat.Ann. Title 10, § 1109(a) (Supp.1973) (requires that warnings be given to both child and parent or legal custodian); N.M.Stat. Ann. § 13-14-25(A) (Supp.1973) (child cannot be questioned except in presence of parent or counsel). See also Freeman v. Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969); Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972). Alabama has no such requirement and, under the totality of the circumstances test, the absence of a parent is just one factor or circumstance to consider in determining volun-tariness.
“Using those criteria pronounced in West v. United States, supra, we now proceed to examine the totality of the circumstances under which the confession of the appellant was made.”

1. The appellant was thirteen years old when he made the confession.

2. The appellant had completed the sixth grade in school and was, in the words of his teacher, an average student who knew the difference between right and wrong. Testimony concerning his academic grades is set forth in this opinion.

3. Sergeant Cloud, together with Deputy Moseley and Investigator Rucker, advised Mrs. Myles that they wanted to discuss the shooting with the appellant. No charges had been preferred at the time the conversation was made. The appellant had not been threatened, intimidated, tricked, coerced, or induced in any way to give a statement.

Myles’ rights were first read to him, and he signed a written waiver at the Crenshaw County Courthouse after talking with the three officers for less than twenty minutes. The appellant did not testify on the issue of the voluntariness of his statement nor in his defense at trial. Each officer denied that he had previously talked with the appellant at his home and had explained to his mother the reason for taking him was to get a sworn statement from him. They received her permission to take him to the Crenshaw County Courthouse.

4. There is no evidence whatsoever that the appellant was held incommunicado or that he was mistreated by the three officers in any way.

5. The appellant was interrogated before any formal charges were filed.

6. From a careful examination of the record, it does not appear that any of the officers employed any third degree tactics or exerted any physical or psychological coercion. The appellant was not told that it would be better for him to make a statement or worse for him to make a statement.

7. The total time span for the interrogation at the Crenshaw County Courthouse was less than forty-five minutes, including advice concerning his legal rights.

8. It does not appear that the appellant refused to give a voluntary statement, or requested the presence of his mother, or any other relative or friend. In fact, according to Deputy Moseley, he was allowed to talk with his mother by telephone shortly after giving the officers his statement.

9. The appellant never repudiated his statement given to the three officers at the Crenshaw County Courthouse, and no testimony was presented at trial to contradict this statement.

As noted by Judge Bowen in Parker v. State, supra:

“ . . . Had we found any indication that the appellant sought to exercise his privilege against self-incrimination or requested the assistance of counsel or parents, we would have reversed his present conviction without hesitation. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).”

We have carefully examined this record and find no error therein.

This Court is of the opinion that the judgment of conviction is due to be and the same is hereby

AFFIRMED.

All the Judges concur.

      . Article 5 of Act 1205, Acts of Alabama 1975, approved October 10, 1975, is not applicable to the confession of a minor made before January 16, 1977, by virtue of the resolution of the Supreme Court of Alabama, dated December 1, 1975; see Parker v. State, 8 Div. 905, Ala.Cr.App., 351 So.2d 927, supra.


author: HARRIS, Presiding Judge.

text:
    Larry Emens HAGAMAKER v. STATE.
    8 Div. 27.
    Court of Criminal Appeals of Alabama.
    Jan. 19, 1978.

      Lewis H. West, Decatur, for appellant.
    William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

This is an appeal from the judgment of the Circuit Court of Morgan County, Alabama, denying appellant’s petition for a writ of habeas corpus. He was in the custody of the Sheriff of Morgan County under a rendition warrant issued by Honorable George C. Wallace, Governor of Alabama, at the request of Honorable Ed Herschler, Governor of Wyoming.

The rendition warrant recites that appellant is charged by complaint in the County of Laramie in said State with the crime of murder in the first degree. The rendition warrant fails to comply with the requirements of Title 15, Section 52, Code of Alabama 1940, § 15-9-33 Code of 1975. It is necessary for the issuance of a warrant in such cases that the accused is “lawfully charged by indictment or by information filed by a prosecuting officer and supported by affidavit as to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole.” Beasley v. State, 43 Ala.App. 247, 187 So.2d 806; Watson v. State, 30 Ala.App. 184, 2 So.2d 470; Smith v. State, 45 Ala.App. 125, 226 So.2d 668; Lofton v. State, 46 Ala.App. 229, 239 So.2d 901.

Title 15, Section 54, Code of Alabama 1940, § 15-9-35, Code of 1975, requires the warrant must substantially “recite the facts necessary to the validity of its issue.”

The return of the Sheriff states:

“Now comes Van Ward, Sheriff of Morgan County, Alabama, to whom the writ of Habeas Corpus in this case was directed, and who has been duly served therewith, and for return to said writ shows to the Court that he detains and holds the said Larry Emens Hagamaker by virtue of an executed rendition warrant issued by George C. Wallace, Governor of Alabama and accompanying State of Wyoming Certified Requisition with attached exhibits and certifications, a correct copy, marked Exhibits) ‘A’ is attached hereto and incorporated herein as though set out in full. And he herewith produces the body of the said petitioner and submits him to the jurisdiction of the Honorable Tom B. Coggin, Judge of the Circuit Court of Morgan County, Alabama, the Judicial Officer issuing the Writ in this case. “Dated at Decatur, Alabama, this the 2nd day of November, 1977.
/s/ Van Ward
“State of Alabama
Morgan County
“Before me, Sarah Deason, a Notary Public in and for said County, in said State, this 2nd day of November, 1977, personally appeared Van Ward, who being first by me duly sworn, doth depose and say that the facts contained herein are true.
/s/ Sarah Deason
Notary Public”

When the rendition warrant is defective, as here, and there are allied papers in evidence, we look to them to determine their legal sufficiency to justify the issuance of the rendition warrant. Aldio v. State, 44 Ala.App. 303, 208 So.2d 212; Lofton v. State, supra; Harris v. State, 257 Ala. 3, 60 So.2d 266; Martin v. State, 50 Ala.App. 1, 276 So.2d 149; Tyner v. State, Ala.Cr.App., 346 So.2d 493.

The allied papers in this case include the following:

1. A Certification by Thyra Thomson, Secretary of the State of Wyoming, under the Seal of that State, in words and figures as follows:
“DEPARTMENT OF STATE
“I, Thyra Thomson, do hereby certify as follows:
“That I am the duly elected, qualified and acting Secretary of State of Wyoming, and as such, and by virtue of the laws of said state, the keeper of its Great Seal and the custodian of the record of its laws;
“That the Honorable Ed Herschler whose name appears affixed to the foregoing papers on which it appears was at the time of the affixing of the same the duly elected, qualified and acting Governor of the State of Wyoming; that I am well acquainted with his handwriting and verily believe his said signature thereto, to be genuine.
“That I have carefully compared the copy of the laws of the State of Wyoming hereto attached, with the original thereof now of record in my office, and that said copy is a true and correct copy of said originals, and of each and every part thereof.
“IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of Wyoming at the City of Cheyenne, Wyoming, this 14th day of OCTOBER, 1977.
/s/ Thyra Thomson
(SEAL) Secretary of State.
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK”
2. An Application by Thomas J. Carroll, the Prosecuting Attorney of Laramie County, Wyoming, to the Governor of Wyoming, which reads as follows:
“COUNTY AND PROSECUTING ATTORNEY OF LARAMIE COUNTY, WYOMING, FOR A REQUISITION
“STATE OF WYOMING,
COUNTY OF LARAMIE
“TO HIS EXCELLENCY, THE GOVERNOR OF WYOMING:
“THE APPLICATION OF Thomas J. Carroll, County and Prosecuting Attorney of Laramie County, Wyoming, respectfully represents:
“That LARRY EMENS HAGAMAKER stands charged, as appears by the annexed certified copy of complaint with the crime of first degree murder committed in the County of Laramie, State of Wyoming, on or about the 28th day of January, A.D. 1975; said crime having been committed as follows (state facts showing how crime was committed):
“Defendant continuously and maliciously beat the victim, Tina Ann Haga-maker over an extended period of time and kept the victim confined to the family home locked in a closet; victim was the ten year old daughter of the Defendant; on the 28th day of January, 1975, the Defendant inflicted a severe beating on the victim; victim thereafter became ill, complained of dizziness and died; Defendant buried the body of the victim under the floor of a shed for approximately four months and then did remove the body, burn it, and scatter the remains, that the said Larry Emens Hagamaker was in the said County and State at the time of the commission of said offense; that before an arrest could be made, to-wit, on or about the 11th day of October, A.D. 1977, he fled from the State of Wyoming, and is now, as your applicant verily believes, in the City (Town) of Decatur, County of Morgan, State of Alabama, a fugitive from the justice of this State, said belief being founded on the following information, to-wit:
“Telephone conversations with Sheriff Van Ward from Morgan County, Alabama that the Defendant, Larry Emens Hagamaker is in the Morgan County Jail, Alabama, being held in connection with this crime.
“I hereby certify that in my opinion the ends of public justice require the arrest and return of the accused to the State of Wyoming for trial at public expense; that I am willing that such public expense shall be a charge on said County of Laramie in which the crime was committed; that I have carefully examined into the facts and verily believe that I have sufficient evidence to secure the conviction of said fugitive; that the offense charged and the punishment therefor is defined in Section &-54.1 Wyoming Statutes, 1957, as amended; that this proceeding is not instituted to enforce a private claim or for any other purpose than said prosecution; that all papers submitted with this application have been compared, are in duplicate, and are in all respects exact counterparts; that there is hereto attached, marked ‘Exhibit 1’, and hereby made a part hereof, a true and correct copy of said . Complaint with all endorsements and filings thereon; that there is likewise hereto attached, marked ‘Exhibit 2’, and hereby made a part hereof, a true and correct copy of the warrant of arrest issued on said Complaint together with all endorsements and filings thereon; that there is likewise hereto attached, marked ‘Exhibit 3’, and made a part hereof, a copy of the statute upon which the charge against the accused is based; that application for the arrest and return of said fugitive has not sooner been made because of the fact that the whereabouts of said fugitive were not sooner ascertained; and to the end that said fugitive may be returned in accordance herewith, I hereby recommend Dennis Flynn, the duly elected qualified and acting Sheriff of Laramie County, in the State of Wyoming, as a proper person to be appointed agent of the State, and certify that he has no personal or private interest in the arrest and return of said fugitive other than the proper performance of his official duty.
Very respectfully.
/s/ Thomas J. Carroll
County and Prosecuting Attorney
THOMAS J. CARROLL
“State of Wyoming,
County of Laramie
“On this 11th day of October 1977, personally appeared before me Thomas J. Carroll the applicant named in the foregoing application, who being duly sworn, did depose and say that he has read the foregoing application by him subscribed, and knows the contents thereof, and that the same is true of his own knowledge, excepting as to matters therein stated on information and belief, and as to those matters he believes it to be true.
/s/ Deanna Groh
“Subscribed and sworn to before me this 11th day of October, 1977.
“by Thomas J. Carroll.
/s/ Deanna Groh
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK”
3. The following affidavit of Thomas J. Carroll, the complaining witness:
“AFFIDAVIT OF COMPLAINING WITNESS
“STATE OF WYOMING,
County of Laramie
“Thomas J. Carroll, being first duly sworn according to law, deposes and says:
“That I am the complaining witness on the part of the State of Wyoming in the prosecution of one LARRY EMENS HAGAMAKER now a fugitive from the justice of the State of Wyoming, and the person named in the accompanying application for requisition; that on or about the 28th day of January, A.D. 1975, in the County of Laramie, State of Wyoming, the said Larry Emens Hagamaker did unlawfully, feloniously, purposely, and with premeditated malice, kill a human being, to wit; did unlawfully, feloniously, purposely and with premeditated malice kill Tina Ann Hagamaker, a human being, contrary to the form of the statute in case made and provided, to wit; contrary to § 6-54.1 W.S., 1957, as amended and against the peace and dignity of the State of Wyoming.
“That the foregoing application for requisition is not made for the purpose of enforcing the collection of a debt, claim, or for any private purpose whatsoever, and that if the requisition applied for be granted, affiant will appear at such times and places as may be required by the County and Prosecuting Attorney of said County, or by the court in which such proceedings may be had, and that I will furnish all evidence within my power tending to show the guilt of the accused, and that I will not condone the offense with which the said fugitive is accused.
/s/ Thomas J. Carroll
THOMAS J. CARROLL
“Subscribed and sworn to before me this 11th day of October, A.D. 1977.
“by Thomas J. Carroll
/s/ Robert W. Allen
Justice of the Peace in and for
First Precinct,
County of Laramie
State of Wyoming.
“NOTE: Set forth facts within knowledge of witness.
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK”
4. The following amended criminal complaint:
“Plaintiff, Before ROBERT W. ALLEN
Justice of the Peace
vs.
LARRY EMENS HAGAMAKER AMENDED CRIMINAL COMPLAINT
Exhibit 1
Defendant.
Criminal Action No.
“THE STATE OF WYOMING
COUNTY OF LARAMIE
“I, Thomas J. Carroll, County & Prosecuting Attorney, do solemnly swear that on or about the 28th day of January 1975 in the County of Laramie and the State of Wyoming, the said Larry Emens Hagamaker did unlawfully, feloniously, purposely, and with premeditated malice, kill a human being, to wit; did unlawfully, feloniously, purposely, and with premeditated malice kill Tina Ann Hagamaker, a human being contrary to the form of the statute in case made and provided, to-wit, contrary to § 6-54.1 W.S., 1957 as amended, and against the peace and dignity of the State of Wyoming.
“PROBABLE CAUSE:
“Defendant continuously and maliciously beat the victim, Tina Ann Haga-maker, over an extended period of time and kept the victim confined to the family home locked in a closet; victim was the ten year old daughter of the Defendant; on the 28th day of January, 1975, the Defendant inflicted a severe beating on the victim; victim thereafter became ill, complained of dizziness and died; Defendant buried the body of victim under the floor of a shed for approximately four months and then did remove the body, burn it and scatter the remains.
/s/ Thomas J. Carroll_
Signature of Complainant
“Subscribed and sworn to before me this 11th day of October, 1977
“by Thomas J. Carroll.
/s/ Robert W. Allen_
Justice of the Peace
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK
“STATE OF WYOMING
COUNTY OF LARAMIE
“I hereby certify that I am the. duly and qualified elected Justice of the Peace in and for Laramie County, State of Wyoming and that the foregoing is a true and complete copy of the original complaint on file in my office.
/s/ Robert W. Allen
Justice of the Peace’
5. Amended Warrant of Arrest:
vs.
LARRY EMENS HAGAMAKER AMENDED WARRANT OF ARREST
Defendant. Exhibit 2
Criminal Action No._
“THE STATE OF WYOMING
COUNTY OF LARAMIE
“To The Sheriff or any Constable or other authorized officer:
“You are hereby commanded to arrest Larry Emens Hagamaker and bring him forthwith before the nearest available Commissioner to answer to a complaint charging him with
did unlawfully, feloniously, purposely, and with premeditated malice, kill a human being, to wit; did unlawfully, feloniously, purposely, and with premeditated malice kill Tina Ann Hagamaker, a human being
in violation of § 6-54.1 W.S., 1957, as amended.
“Dated October 11,1977.
/s/ Robert W. Allen_
Justice of the Peace
RETURN
Received_, 19_ at_, and executed by arrest of_at_on_19 .
Name
Title
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK
“STATE OF WYOMING
COUNTY OF LARAMIE
“I hereby certify that I am the duly and qualified Justice of the Peace in and for Laramie County, State of Wyoming and that the foregoing is a true and complete copy of the original warrant on file in my office.
/s/ Robert W. Allen_
Justice of the Peace’
6. Certifications, under seal, as to the official positions of the Prosecuting Attorney, Justice of the Peace and Clerk of Court:
“COUNTY CLERK’S CERTIFICATES TO OFFICIAL CAPACITY OF COUNTY ATTORNEY, JUSTICE OF THE PEACE AND CLERK OF COURT
“STATE OF WYOMING,
County of Laramie
“I, Janet C. Whitehead, the duly elected, qualified and acting County Clerk of the County of Laramie, State of Wyoming, do hereby certify that Thomas J. Carroll, whose name is subscribed to the foregoing attached application for requisition, was, at the date of the same, and now is, the duly elected, qualified and acting County and Prosecuting Attorney in and for the County of Laramie, State of Wyoming, and full faith and credit are due to all his official acts as such. And I do further certify that the signature attached to the foregoing application for requisition is his proper signature and is genuine.
“IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 11th day of October, A.D. 1977.
(SEAL) /s/ Janet C. Whitehead
County Clerk in and for the
County of Laramie,
State of Wyoming.
“STATE OF WYOMING,
County of Laramie
“I, Janet C. Whitehead, the duly elected, qualified and acting County Clerk of the County of Laramie, State of Wyoming, do hereby certify that Robert W. Allen, whose name is subscribed to the foregoing certificates, was, at the date of the same, and now is, the duly elected, qualified and acting Justice of the Peace in and for the County of Laramie, State of Wyoming, and full faith and credit are due to all his official acts as such. And I do further certify that the signature attached to the foregoing certificates is his proper signature and is genuine.
“IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 11th day of October, A.D. 1977.
(SEAL) /s/ Janet C. Whitehead_
County Clerk in and for the
County of Laramie,
State of Wyoming.
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK”
“JUSTICE’S CERTIFICATE TO COMPLAINT AND WARRANT
“STATE OF WYOMING,
County of Laramie In JUSTICE Court
“I, Robert W. Allen, a Justice of the Peace within and for Laramie County, Wyoming, do hereby certify that I have carefully compared the paper writings to which this certificate is attached with the respective original complaint and warrant in the action therein entitled, as the same appear of record and on file in my office in said County, and the same are true and correct copies thereof, and of the whole thereof.
“IN WITNESS WHEREOF, I have hereunto set my hand and affixed my signature, at the City of Cheyenne in said County, this 11th day of October, 1977.
/s/ Robert W. Allen_
Justice of the Peace within and for Laramie County, Wyoming
“FILED IN OFFICE
OCT 28 1977
/s/ Cleo D. Teague
CLERK”
Upon the filing of the petition for writ of habeas corpus, and the introduction of the above set out allied papers, all being duly authenticated by the Governor of Wyoming, the trial judge entered the following order:
“STATE OF ALABAMA ) MORGAN COUNTY j STATE OF ALABAMA VS. LARRY EMENS HAGAMAKER
IN THE CIRCUIT COURT 0P MORGAN COUNTY, ALABAMA
“The defendant filed a Writ of Habeas Corpus. The defendant is charged with first degree murder in the State of Wyoming. The defendant refused to waive extradition proceedings. The State of Wyoming presented to the Governor of the State of Alabama requisition for the defendant, certificate of the Secretary of State of Wyoming, application for requisition, affidavit of complaining witness, amended criminal complaint, Exhibit 3 Statute upon which offense is based, amended warrant of arrest, County Clerk certificate, and Justice certificate. Thereupon the Governor of the State of Alabama executed a warrant to apprehend the defendant and deliver him to an agent of the State of Wyoming. The State of Alabama introduced the aforesaid documents as evidence before the court. The defendant had filed a Writ of Habeas Corpus. Upon consideration of the aforesaid documents introduced by the State of Alabama the court is of the opinion that the writ should be denied.
“It is therefore ordered, adjudged, and decreed that the application for a Writ of Habeas Corpus is denied.
“DONE this 17 day of Nov, 1977.
/s/ Tom Coggin_
CIRCUIT JUDGE
“FILED IN OFFICE
1977
/s/ Cleo D. Teague
CLERK”
The requisition from the Governor of Wyoming recites:
“Whereas, it appears by the annexed papers duly authenticated in accordance with the laws of this State that Larry Emens Hagamaker stands charged with the crime of First Degree Murder committed in the County of Laramie in this State which I certify to be a crime under the laws of this State and that he has fled from this State and is a fugitive from the justice thereof.
“And Whereas, it is believed that such fugitive has taken refuge in the State of Alabama.”

This requisition was signed by the Governor of Wyoming and attested by the Secretary of State, all under the Great Seal of the State of Wyoming.

We have carefully reviewed the request from the Governor of Wyoming for extradition and the allied papers and find that the Governor of Alabama had before him necessary jurisdictional matters to issue his rendition warrant in conformity with the pronouncement made by the Supreme Court of Alabama in Harris v. State, supra, wherein it is said:

“We think, then, the rule in Alabama should be consonant with the weight of authority to the effect that if the rendition warrant is defective but is accompanied by allied papers, either on the return to the writ of habeas corpus or introduced on the trial, which when taken together with the warrant, show that the executive of the asylum state did in fact have before him the necessary jurisdictional matters, viz., the documents required for the issuance of the warrant, then the prisoner is not illegally restrained. 89 A.L.R. 595. This annotation reveals that many jurisdictions have adopted an even more liberal rule than is here urged.” (Citations omitted.)

The judgment of the Circuit Court of Morgan County in denying appellant’s petition for writ of habeas corpus was correct and the judgment in this case should be affirmed.

AFFIRMED.

All the Judges concur.


author: ENGLAND, Justice.

text:
    Ronald BRUNS, Appellant, v. COUNTY WATER-SEWER DISTRICT, etc., Appellee.
    No. 51803.
    Supreme Court of Florida.
    Dec. 23, 1977.
    Rehearing Denied Feb. 20, 1978.
    Ronald C. Bruns, in pro. per.
    Donald A. Pickworth, County Atty., and James H. Siesky, Asst. County Atty., Na- ■ pies, for appellee.
   ENGLAND, Justice.

Ronald C. Bruns, a resident of Collier County, appeals a final judgment entered by the Collier County Circuit Court validating bonds of a water-sewer district (“the District”) created pursuant to Part II of Chapter 153, Florida Statutes (1975), entitled “County Water and Sewer District Law.” Although Bruns raises a number of issues in attacking the bond validation judgment, the dispositive issue is whether the District lacks authority to issue revenue bonds because it was not created in compliance with Chapter 153. We hold that the District was not validly created under the procedures set out in Section 153.58(l)(a).

The legislative scheme for the creation of a county water-sewer district requires an election on its creation by the voters of the county. “Immediately after any such election,” the county commission must canvass the votes, declare the election results, and, if the voters have approved the creation of a district, “by resolution declare the district duly created, and forthwith cause an estop-pel notice to be published . . . .”

It is uneontroverted that an election for the District was held in November 1969, but that the Collier County Board of Commissioners neither passed the resolution declaring its creation nor published an estop-pel notice until 1975. Bruns argues that this six-year delay is not in compliance with the statute, and we agree.

The court below ruled, and the District here argues, that the failure to comply with the statutory directive of publishing an es-toppel notice “forthwith” was not a “legally material irregularity” in the proceedings, and that because there was substantial compliance with other statutory requirements we should not invalidate the bond issue on the basis of such a “trivial pretext” and frustrate the expressed will of the voters. This contention, and others argued alternately, ignore the immediacy requirement built into Section 153.58(1), and the obvious policy reasons for insisting on its enforcement. Contrary to the District’s suggestion that the time for performing the designated acts was established “merely as a convenience or to aid orderly procedure,” we view this requirement as imperative to the protections which the statute provides to the public.

The purpose of the estoppel notice is to inform the public of the action taken by the board, principally the vote canvass and its verification of the election results, and to give interested parties twenty days in which to challenge the creation of a district by filing an action in the local circuit court. If no action is commenced within the time allowed, then all future actions challenging the district’s creation are forever barred. The obvious purpose for these provisions is to protect the integrity of the election and the regularity of other procedural steps, by ensuring that all challenges will be heard while the contested issues remain fresh in the minds of the responsible officials and affected landowners, and before important documents are lost or destroyed. These objectives are seriously jeopardized when the creation of a district becomes subject to challenge after a substantial lapse of time, such as six years.

Since the Collier County Water-Sewer District was not created in compliance with the governing statutes, the circuit court was wrong in holding that it was authorized to issue revenue bonds. The order validating these bonds is reversed, and this case is remanded to the circuit court for the entry of an order dismissing with prejudice the District’s complaint.

It is so ordered.

OVERTON, C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

BOYD, J., dissents.

      . We have jurisdiction. Art. V, § 3(b)(2), Fla. Const., and § 75.08, Fla.Stat. (1975).

      . The District challenges Bruns’ standing here. The record indicates that Bruns filed a timely challenge to the creation of the District following publication of the estoppel notice in 1975, which action was later consolidated with the bond validation proceeding over his objection. He received notice of the hearings on the consolidated actions, but did not appear. The District contends that he should not be permitted to raise issues before this Court that were not properly contested below. We have previously held, however, that a citizen’s privilege to appeal from a bond validation decree exists “whether the particular individual so appealing has actually appeared in [the proceeding], or exercised his statutory right of special intervention as a nominal party on the record, or not.” State v. Sarasota County, 118 Fla. 629, 633-34, 159 So. 797, 799 (1935).

      . § 153.56, Fla.Stat. (1975).

      . § 153.58(1), Fla.Stat. (1975).

      . § 153.58(1)(a), Fla.Stat. (1975).

      . Appellee’s Brief at 21.

      . §§ 153.58(1)(a) and 153.59, Fla.Stat. (1975).

      . § 153.58(1)(a), Fla.Stat. (1975).

      . In the proceeding below, for example, the most actively contested issues involved the authenticity of the original petitions and certain other documents, which were only received into evidence on the basis of inferences drawn from testimony that was, at best, uncertain.


author: ADKINS, Justice.

text:
    In re ESTATE of Howard W. REED, Deceased. Howard W. REED, Jr., et al., etc., Appellants, v. Florence M. REED, etc., Appellee.
    No. 49703.
    Supreme Court of Florida.
    Jan. 12, 1978.
    Paul R. Stern and Sylvan A. Wells, of Stern & LaRue, Daytona Beach, for appellants.
    David A. Monaco, of Abraham, Kaney, Monaco & Main, Daytona Beach, for appel-lee.
   ADKINS, Justice.

This is a direct appeal from the Volusia County Circuit Court’s specific ruling that Florida’s family allowance statutes, Sections 733.20(l)(d) and (i), Florida Statutes (1973), are constitutional. Appellants, executors of the estate of Dr. Howard Reed, also challenge the circuit court’s finding that the antenuptial agreement between Dr. Reed and the appellee, Ms. Florence Reed, his wife, is invalid. Ms. Reed disputes the finding that a certain diamond ring was not given her by Dr. Reed.

Subsections (l)(d) and (l)(i) of Section 733.20, Florida Statutes (1973), provide for a family allowance and a supplemental family allowance payable only to the widow and children of a decedent and only upon a showing of need. A deceased male’s needy spouse may receive money from the decedent's estate pending its settlement, but an equally needy spouse of a deceased female may not. The statute makes a sex-based classification. We agree with the appellant’s claim that the sex-based classification is irrational and denies equal protection under the Florida and the United States Constitutions. The family allowance statute no longer makes a sex-based classification, Section 732.403, Florida Statutes (1975); but the 1973 statute governs this case.

In Florida “[a]ll natural persons are equal before the law.” Article I, Section 2, Florida Constitution. Any classification of persons must bear a just and reasonable relation to a legitimate purpose. Gammon v. Cobb, 335 So.2d 261 (Fla.1976); In re Estate of Rincon, 327 So.2d 224 (Fla.1976); Selby v. Bullock, 287 So.2d 18 (Fla.1973); Shevin v. Kahn, 273 So.2d 72 (Fla.1973). Florida’s family allowance statute’s purpose is aiding the needy spouse of a decedent while the decedent’s estate is in the often lengthy probate administration process. In re Sacks, 267 So.2d 888 (Fla.3d DCA 1972); Youngelson v. Youngelson, 114 So.2d 642 (Fla.3d DCA 1959); In re Stein, 106 So.2d 2 (Fla.3d DCA 1958). The purpose is legitimate, but there is no reasonable justification for providing for needy spouses of one sex but not the other.

This case is different from In re Estate of Rincon, supra, and Shevin v. Kahn, supra, both relied upon by the appellee. Shevin v. Kahn, supra, found constitutional a law giving widows but not widowers a homestead tax exemption. The law did not deny equal protection because it reasonably furthered its aim, that is, aiding widows, who as a class because of past economic, social, and legal discrimination, are needier than widowers. The dower statute upheld in In re Estate of Rincon, supra, likewise rationally furthered the same legitimate goal, reparation and restitution for past economic, social and legal discrimination. The statute in In re Estate of Rincon, supra, was also supported by the constitutional • provision for dower. In this case the need is due not to past sexual discrimination but to the lethargy of probate proceedings. See Levine v. Feuer, 152 So.2d 784 (Fla.3d DCA 1963).

Female spouses of decedents do not as a class necessarily suffer from this problem. Some widows may have assets to support them during the probate period. Some widows may not have been dependent upon the decedent. By requiring a showing of need, the statute recognizes this. Since the factors causing need are not attributable to sex, there is no reasonable relation between the classification by sex and the statute’s purpose. We expressly reject the statute’s implicit assumption that women are naturally dependent upon men.

Appellant has also challenged the statute as violative of the Equal Protection Clause of the United States Constitution. Under the United States Constitution a sexually discriminatory law denies equal protection unless a fair and substantial relationship to a legitimate governmental objective is demonstrated. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). For the same reasons the family allowance statute violates the Florida Constitution’s equal protection clause, it violates the Fourteenth Amendment to the United States Constitution.

The remaining two points presented by appellant are without merit. Ownership of the diamond ring was a factual question, and there is competent substantial evidence supporting the trial court’s finding that Ms. Reed was not given the ring.

Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), and its progeny establish the standards of disclosure required and knowledge needed before an ante-nuptial agreement will be held valid. Although the standards established in Del Vecchio have been supplanted by statute, Section 732.702, Florida Statutes (1975), because of the date of Dr. Reed’s death the Del Vecchio standards control in this case. The trial court correctly applied them to the evidence before it.

The trial court’s holding that Sections 733.20(l)(d) and (i), Florida Statutes (1973), are constitutional is reversed. The remainder of the order is affirmed, and the cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., dissents.


author: KARL, Justice.

text:
    Ernest FAUST, Appellant, v. STATE of Florida, Appellee.
    No. 50300.
    Supreme Court of Florida.
    Jan. 12, 1978.
    Jack O. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   KARL, Justice.

This cause is before us on direct appeal from a final judgment of the trial court inherently passing on the constitutional validity of Section 827.03, Florida Statutes (1975), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution. Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959); Demko’s Gold Coast Trailer Park, Inc. v. Palm Beach County, 218 So.2d 745 (Fla.1969).

Appellant was charged by information with two counts of aggravated child abuse contrary to Section 827.03, Florida Statutes (1975). He filed a motion to dismiss the information alleging inter alia that the statute under which he was charged is vio-lative of his due process rights. In the hearing on the motion to dismiss, he argued that his due process rights were being violated because the statute is unconstitutionally vague. Inherently upholding the constitutional validity of the statute, the trial judge denied the motion to dismiss.

Upon denial of his motion by the trial judge, appellant changed his plea of not guilty to nolo contendere and reserved his right to appeal the constitutionality of the statute. He was adjudicated guilty and sentenced to eight years imprisonment.

Appellant argues that the trial court erred in denying his motion to dismiss the information since Section 827.03, Florida Statutes (1975), is unconstitutionally vague and overbroad.

Section 827.03, Florida Statutes (1975), provides:

“827.03 Aggravated child abuse. — Whoever:
(1) Commits aggravated battery on a child;
(2) Willfully tortures a child;
(3) Maliciously punishes a child; or
(4) Willfully and unlawfully cages a child shall be guilty of a felony of the second degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.”

Appellant concedes that the language in subsection (1) is sufficiently definite.

We find that Section 827.03, Florida Statutes, is not unconstitutionally vague and indefinite since it conveys a sufficiently definite warning to those subject to its provisions what conduct on their part will render them liable to its penalties. Cf. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977); Zachary v. State, 269 So.2d 669 (Fla.1972); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934).

In Jordan v. State, 334 So.2d 589 (Fla.1976), this Court held that the predecessor to the statute under consideration, which was Section 828.04(1), Florida Statutes (1973), was not unconstitutionally vague. Section 828.041(1), Florida Statutes (1973), identical to the statute in question insofar as the conduct proscribed thereby is concerned, provided:

“Whoever unlawfully or willfully tortures, cages, or mutilates, or whoever cruelly, wantonly, or with malice, torments or punishes, any child under the age of sixteen years or whoever, in committing a battery upon any child under the age of sixteen years, intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement to such child is guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

Responding to the constitutional attack on this statute based on vagueness, this Court opined in Jordan v. State, supra:

“The statute here under consideration sets forth three distinct crimes, each of which is punishable as a second degree felony. The first is the act of unlawfully or willfully torturing, caging, or mutilating a child under the age of sixteen years. The second is the cruel, wanton, or malicious tormenting or punishing of such a child. The third is the intentional or knowing infliction of great bodily harm, permanent disability, or permanent disfigurement to a child under the age of 16 years while committing a battery upon the child. The description of these independent crimes is sufficiently clear that a person of ordinary intelligence can ascertain what conduct is proscribed ‘when measured by common understanding and practice.’ [Cases cited.] This Court held when the predecessor to Section 828.04, Florida Statutes, was challenged that the phrase ‘unnecessarily and excessively chastises’, [sic] which remains in subsection (2) of the instant statute, was sufficiently definite when viewed from this standpoint. Campbell v. State, 240 So.2d 298 (Fla.1970). The Court’s reasoning there applies with equal force to the language at issue here.”

Both the instant statute and its predecessor utilize substantially the same language to proscribe substantially identical conduct, although the current statute takes an outline form.

Furthermore, the term “torture,” as employed in the present statute, is now defined by Section 827.01(3), Florida Statutes (1975), as follows:

“ ‘Torture’ means every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused.”

Rather than creating vagueness, as appellant contends, this statutory definition of torture lends clarity to the statute contested sub judice.

We find this statute neither unconstitutionally vague, since a person of ordinary intelligence can ascertain what conduct is prohibited by the act, nor overbroad, for it does not set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained. Cf. United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876); State v. Wershow, 343 So.2d 605 (Fla.1977).

Accordingly, the judgment of the trial judge is affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, SUND-BERG and HATCHETT, JJ., concur.

      . During the hearing on the change of plea from not guilty to nolo contendere, in response to the trial judge’s inquiry as to what the State is prepared to prove in the prosecution of this case, the State Attorney responded:
      “Your Honor, on the evening of May 12, 1976, this individual was observed chasing a young three-year old boy, by the name of Matthew Hopkins, outside of his apartment where he resided and striking him in the stomach area as well as on top of the head with a blunt instrument.
      “Subsequent to that time the State would show that an individual living in an apartment in the area heard screams and howls coming from the apartment that the individual was living in, and thereupon approximately fifteen minutes later an officer arrived at the scene and went to the house and found the children in the bedroom, Matthew, three years old, and Robbie, six years old, both bound tightly with a string-type substance and Matthew having at the time his mouth sealed with tape with a gag being placed inside the mouth which Matthew, the three-year old, had vomited into, and finding Robbie simply tied up; one individual hanging or being hung from a door knob of the door and the other individual hanging from a hinge of the door, not dangling, but their hands were above their heads being held in this position.”


author: BOYD, Justice.

text:
    BUCKLEY TOWERS CONDOMINIUM, INC., etc., Appellant, v. Herbert BUCHWALD, etc., Appellee.
    No. 50797.
    Supreme Court of Florida.
    Jan. 12, 1978.
    Joseph S. Paglino, Miami, for appellant.
    Darrey A. Davis, of Steel, Hector & Davis, Miami, for appellee.
   BOYD, Justice.

The motion to dismiss was correctly granted by the trial court because Section 711.231, Florida Statutes, does not apply to leases entered before enactment of the statute. Fleeman v. Case, 342 So.2d 815 (Fla.1977). Since the statute has prospective application only, it was unnecessary for the learned circuit judge to rule upon its constitutionality in this case.

Accordingly, that portion of the court’s order dismissing the suit is affirmed and that portion declaring the statute unconstitutional is quashed.

It is so ordered.

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


author: HATCHETT, Justice.

text:
    Annette McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 51093.
    Supreme Court of Florida.
    Jan. 12, 1978.

      R. Cory Schnepper, of Ser, De Cardenas & Levine, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., Miami, for appel-lee.
   HATCHETT, Justice.

Under jurisdiction granted by Article V, Section 3(b)(1), Florida Constitution, we must determine whether Section 231.07, Florida Statutes (1975), which makes one criminally liable “who upbraids, abuses, or insults any member of the instructional staff on school property or in the presence of the pupils at a school activity” is constitutional. Contrary to the ruling of the trial court, we find that it is not.

This case arose from an unfortunate incident occurring between appellant and her daughter’s teacher. On the day of the incident, Mrs. McCall’s daughter came home from school and informed her mother that she had been struck by her teacher. Mrs. McCall immediately went to the school and confronted the teacher. This confrontation became a profane verbal attack upon the instructor and took place in the presence of at least 50 students.

A complaint was filed upon the sworn affidavit of the teacher, charging appellant with a violation of Section 231.07, Florida Statutes (1975), which reads:

Any person who upbraids, abuses or insults any member of the instructional staff on school property or in the presence of the pupils at a school activity, or any person not otherwise subject to the rules and regulations of the school who creates a disturbance on the property or grounds of any school, who commits any act that interrupts the orderly conduct of a school or any activity thereof shall be guilty of a misdemeanor of the second degree, punishable as provided by law. This section shall not apply to any pupil in or subject to the discipline of a school.

Appellant moved to dismiss on grounds that the statute is unconstitutional in that it “violates the First and Fourteenth Amendments to the Constitution of the United States of America, because on its face this is a standardless, vague, overbroad statute, which includes within its prohibition constitutionally protected words.” The statute was also attacked on the grounds that it violates Article I, Section 4, of the Constitution of Florida.

Motion was denied and appellant convicted.

Section 231.07 is designed to insure that the schools of this state will operate smoothly, without undue interruption or disturbance from persons outside the school community. The interests sought to be protected are worthy. However, we must determine whether our historical and judicial notions of free speech, guaranteed under the Florida and federal Constitutions are compatible with a statute which attempts to regulate speech in the manner prescribed by the statute under review.

It is clear that if we were concerned solely with the language used by appellant, her conviction would be overturned under our recent opinion in Spears v. State, 337 So.2d 977 (Fla.1976). But there is more here; the activity described as unlawful by Section 231.07 relates to language used in a particular place dedicated to a special purpose for the benefit of special people.

The nature of a place, “the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.” Although a silent vigil may not unduly interfere'with a public library, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Grayned v. City of Rockford, (1972) 408 U.S. 104 at 116, 92 S.Ct. 2294 at 2303, 33 L.Ed.2d 222. (Footnotes omitted)

While it is true that rights protected by the First Amendment are not magically lost when one steps upon school property, “neither teachers, students, nor anyone else has an absolute constitutional right to use all parts of a school building for unlimited expressive purposes.” Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471 at 480 (2nd Cir. 1976). “Time, place and manner” regulations may be necessary to further significant governmental interests, and are permitted. But, in assessing the reasonableness of such regulations “we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest.” Grayned, supra, 408 at 116, 92 S.Ct. at 2303. The test, as announced in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is whether a regulation is designed to restrict only that expression which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” At 513, 89 S.Ct. at 740. In Tinker, the United States Supreme Court held unconstitutional a school regulation which forbade students from wearing black armbands (on school property) as a symbolic way of objecting to the hostilities in Viet Nam. The Court stated that the expressive activity involved in that case, i. e., the wearing of armbands, “was entirely divorced from actually or potentially disruptive conduct” and was therefore protected.

In Grayned v. City of Rockford, supra, the Supreme Court again considered the subject of First Amendment rights in the framework of the school environment. In that case, Grayned, a demonstrator picketing in front of an Illinois high school was convicted of violating an anti picketing ordinance which outlawed demonstrations near schools in session, and an anti noise ordinance which prohibited the willful making of noise or diversion on grounds adjacent to a school while school was in session. The Court found the anti picketing ordinance unconstitutional on equal protection grounds, but upheld the anti noise ordinance against challenges of vagueness and overbreadth, as follows:

Designed, according to its preamble, “for the protection of Schools,” the ordinance forbids deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities. It forbids this willful activity at fixed times —when school is in session — and at a sufficiently fixed place — “adjacent” to the school. Grayned v. City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2300.
* * * * * *
Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute’s announced purpose that the measure is whether normal school activity has been or is about to be disrupted. We do not have a vague, general “breach of the peace” ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this “particular context,” the ordinance gives “fair notice to those to whom [it] is directed.” Grayned v. City of Rockford, supra, at page 112, 92 S.Ct. at page 2301.

With this guidance from Grayned, we now review our statute to determine whether it too is “written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school.”

The first portion of Section 231.07, under which the appellant was convicted, requires proof that a member of the instructional staff was upbraided, abused, or insulted, on school property, or in the presence of pupils at a school activity. There is no language tying the prohibited expression to disruption of normal school activities at specific fixed times. Appellant correctly points out that this portion of the statute would allow a conviction of a 100 year old woman sitting on school property at midnight, with no students present who tells a teacher that the quality of the teacher’s work is poor. Or, a conviction could result from a person telling a band master after a parade, while not on school grounds but in the presence of students, that the band performed poorly due to the band master’s inability to teach music. Many other examples of harmless expression can be readily brought to mind. Section 231.07 is not “narrowly tailored to further the state’s legitimate interests,” and encompasses speech protected by the First and Fourteenth Amendments. Such a statute cannot stand. Spears v. State, supra.

Certainly, appellant’s conduct was sufficient to upbraid, abuse, and insult the teacher. There is no doubt that the confrontation occurred on school grounds and in the presence of pupils. The record is clear that appellant used the most vulgar of language. But, she may not be punished for her conduct under this statute, even though her conduct is reprehensible, if anyone engaged in protected speech activities could also be punished under the same statute. Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).

We now turn our attention to whether the first portion of Section 231.07, Florida Statutes (1975), is severable. We think it is. If a portion of a bill is void as not having been passed in compliance with the Constitution, it does not necessarily follow that the whole statute is void. If the genuine provisions are separable, and what remains is complete in itself and capable of being executed in accord with the legislative intent, the remainder of the bill will be sustained. State ex rel. Boyd v. Deal (1888) 24 Fla. 293, 4 So. 899. See also Cramp v. Board of Public Instruction, 137 So.2d 828 (Fla.1962) and State v. Calhoun County, 127 Fla. 304, 170 So. 883 (1936). We note that all other provisions of this statute require expressive activity designed to disturb the school atmosphere.

Accordingly, the judgment of conviction is reversed.

It is so ordered.

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

      . [N]o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof. . . .” Code of Ordinances, c. 28, § 19.2(a).

      . This ordinance impermissibly distinguished between labor picketing and other peaceful picketing.

      . This portion of the statute is joined to the remaining portions by the disjunctive “or” and must therefore be treated separately.

      . Appellant has not raised and we do not pass upon the question whether this statute may also be void because of equal protection violations.

      .Although appellant may not be convicted under this statute, our decisions have recognized the state’s power to constitutionally punish language which we call “fighting words” under carefully drawn statutes, not susceptible of application to protected expression. Spears v. State, supra. Appellant could probably be prosecuted under another statute more closely related to the conduct in which she engaged.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Charles E. THOMSON, Respondent.
    No. 51851.
    Supreme Court of Florida.
    Jan. 12, 1978.

      James P. Hollaway, Asst. Staff Counsel for The Florida Bar, Tallahassee, petitioner.
    Joe M. Mitchell, Jr., Melbourne, for respondent.
   PER CURIAM.

The Florida Bar has filed in this Court its recommendation, together with a record of the proceedings, on Charles Thomson’s petition for reinstatement to membership in The Florida Bar. The recommendation opposes reinstatement.

Charles Thomson’s membership in The Florida Bar was suspended for two years by order of this Court. Florida Bar v. Thomson, 271 So.2d 758 (Fla.1972). During the suspension he was employed by two attorneys as a paralegal. The Florida Bar informed the attorneys that it believed the paralegal employment to be unethical. In response Thomson, through one of the attorneys, filed a Petition for Clarification which resulted in an order of this Court permitting him, during his suspension, to continue limited, supervised employment as a paralegal. Florida Bar v. Thomson, 310 So.2d 300 (Fla.1975).

Just as the two-year suspension was to have ended, Thomson was charged by the Bar with misconduct committed when he had been in good standing. Mrs. Joy S. Barnes had given Thomson personal property as security for a fee due him for representation of her son. The charged misconduct was that he had disposed of the property without her knowledge and consent and without an accounting. In view of this charge Thomson did not seek reinstatement and so the suspension continued. Hearings were conducted by the Bar, suspension, was recommended, and this Court ordered a second suspension of two years. Florida Bar v. Thomson, 344 So.2d 552 (Fla.1976). By the time Thomson’s petition for rehearing on the second suspension was disposed of, more than four years (the sum of the time periods of the two suspensions) had elapsed since imposition of the original suspension. On rehearing, therefore, this Court permitted Thomson to petition immediately for reinstatement. Id., at 554, on rehearing denied March 31, 1977.

Following a hearing on Thomson’s petition for reinstatement the referee, despite evidence of rehabilitation, reluctantly concluded that the petition should be denied because Thomson, while a paralegal as allowed by. order of this Court, had had direct contact with clients in contravention of that order. Such client contact was predictable. See Florida Bar v. Thomson, 310 So.2d 300 (Fla.1975), Overton, J., dissenting. And in fairness to Thomson it cannot be said that all client contact was strictly and specifically forbidden by this Court’s order. It appears from the testimony adduced at the hearing that Thomson did not hold himself out to be an attorney in his contact with clients and that such contact was largely for the purpose of relaying information to attorneys out of the office and did not include the rendering of legal advice. Since the client contact was casual and minimal, we conclude that Thomson should not be denied reinstatement on that basis. Nothing in this opinion, however, is to be taken as an indication that this Court, in the future, will tolerate direct client contact by a suspended attorney performing lay legal services. See Rule 11.10(7)(3), Article XI, Integration Rule of The Florida Bar.

We have carefully considered the entire record, including the report of the referee, and it is the order of this Court that Charles E. Thomson is hereby reinstated as a member of The Florida Bar upon the effective date of this order. He is hereby ordered to pay costs in the amount of $156.83 to The Florida Bar within thirty days of the filing of this order, said amount being in addition to the $150.00 deposit previously made.

It is so ordered.

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

      . Article XI, Rule 11.11(10), Integration Rule of The Florida Bar.

      . Suspended attorneys who are employed to perform legal services which laymen may ethically perform are on notice that direct contact with clients is strictly forbidden. Employers of suspended attorneys are on such notice, as well. Rule 11.10(7)(3), Art. XI, Integration Rule of The Florida Bar, amended after Thomson was given permission to work as a paralegal. Florida Bar, In re Amendment to Integration Rule, Art. XI, 332 So.2d 1 (Fla. 1976).