text:
    Dodie ESPY, Jr. v. STATE.
    8 Div. 120.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      J. Zach Higgs, Jr., Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial on an indictment charging murder in the first degree, a jury found appellant guilty of murder in the second degree and fixed his punishment at imprisonment for forty-five years. He was sentenced accordingly.

The only issue presented on appeal is as to the admissibility in evidence of testimony of Officer Alimón F. Kendrick that, upon his arrival at the home of appellant and his entry into the room in which appellant was sitting and where the alleged crime took place, appellant made the statement, “I’m the one that did it.” A correct summary of the record on the point is contained in appellant’s brief as follows:

“Upon arrival at the scene, Alimón F. Kendrick observed the defendant, Dodie Espy, sitting in the room where the alleged crime took place (Tr. p. 100). The ambulance attendant, John Kinzer, pointed Mr. Espy out as the suspect. Officer Kendrick, at that time, admitted that he suspected the defendant committed the murder in this case (Tr. p. 102). Officer Kendrick did not advise the defendant of his Miranda rights (Tr. p. 102). The defendant made the statement, ‘I’m the one that did it.’ (Tr. p. 103).”

Officer Kendrick further testified:

“Q Then what did you do next?
“A I told him not to say.any more until he was advised of his rights.
“Q In other words, immediately after he said that you told him not to say anything more until he was advised of his rights? .
“A Yes sir.
“Q And did he say anything else after this?
“A Not to me.
“Q Not to you?
“A No.
“Q After that time, who arrived?
“A Sergeant Norman and Detective Petty.
“Q And they carried on the investigation from there?
“A Yes.”

Appellant insists that the admission in evidence of the quoted statement of appellant is inhibited by the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We do not agree.

Miranda does not apply to spontaneous statements volunteered by one thereafter accused, even though made to an officer, before the officer has had time to advise him of his rights as set forth in Miranda.

“It appears quite clear that a spontaneous statement, blurted out by the accused and volunteered to the police prior to any questioning, is admissible against him even though he was not given his Miranda warnings.” Gamble, McElroy’s Alabama Evidence, § 201.02 (1977), citing Gilpin v. United States, 415 F.2d 638 (5 Cir. 1969); Edington v. State, 243 Ark. 10, 418 S.W.2d 637 (1961); Tate v. State, 219 Term. 698, 413 S.W.2d 366 (1967).

Archie Jones testified that he and the victim, Ralph Williams, went to the residence of defendant to purchase some alcoholic beverages. After arriving at defendant’s apartment and after purchasing some alcoholic beverages, defendant told Archie Jones and Ralph Williams that they were going to have to be quiet, not to be so loud. Defendant then left the room and came back with a .22 pistol and shot Ralph Williams in the chest. Ralph Williams died immediately. There was ample evidence to support the verdict of the jury.

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

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Johnnie Lee McCOVERY v. STATE.
    1 Div. 908.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery and sentenced to ten years’ imprisonment. He was eighteen years old when the crime was committed.

I

The appellant contends that the trial court wrongfully denied his request for youthful offender treatment and his motion to reconsider. He alleges that the denial was based solely on the nature of the charge.

The supplemental record clearly shows that the trial judge did not run afoul of the rule set forth in Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied, 357 So.2d 161 (Ala.1977). There we held that the trial judge may not deny youthful offender status solely on a consideration' of the nature of the crime charged. Here the trial judge stated that he was “fully conversant with the facts”; that he had tried a companion case wherein Edward Green was convicted of murder; that he was not denying youthful offender status solely on the basis of the nature of the crime charged; that he had considered all the circumstances; and that he considered the statement allegedly made by the appellant. These statements of the trial judge are sufficient to establish that the denial of youthful offender treatment was not based solely on the nature of the crime charged.

The law is clear that some investigation and examination of the defendant by the trial judge is necessary before a request for youthful offender status can lawfully be denied. However the examination does not have to be lengthy or formal and has no prescribed form. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975); Watkins, 357 So.2d at 160. An investigation by a probation officer is not required. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975).

While the trial judge may not deny youthful offender status simply because of the nature or type of crime with which the accused is charged, it is entirely proper for a denial to be based on the manner in which the crime was executed, which would of necessity involve some form of investigation or examination, or any other circumstance which would enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried and, if found guilty, sentenced in the normal criminal process.

II

The appellant’s statement made to two police officers after his arrest and while he was in custody was admissible in evidence even though one of the officers who was present when the statement was given did not testify in laying the proper predicate for the admission of the statement.

Detective J. R. Rigby was present during the entire interrogation of the appellant and witnessed every event which transpired. Rigby was the only witness to testify on the motion to suppress. There was nothing disclosed which would have made it the duty of the trial judge to require, as a condition precedent to the admission of the confession, that the prosecution call other officers to testify as it did not appear that the appellant was interrogated at any other place and time.

“(T)he State, having established by the preliminary proof the voluntary nature of the confession, was not required to examine every witness present when the confession was made or to array for interrogation every person who might have had access to or conversation with the prisoner during his incarceration in order to remove the prima facie presumption of involuntariness. ”
Logan v. State, 251 Ala. 441, 444, 37 So.2d 753, 755 (1948).

Logan was approved and followed in Braggs v. State, 283 Ala. 570, 575, 219 So.2d 396 (1969); Redwine v. State, 36 Ala.App. 560, 565, 61 So.2d 715 (1952); Davis v. State, 42 Ala.App. 374, 382-383, 165 So.2d 918 (1964). This does not affect the rule that where a confession is made in the presence of several officers a proper predicate includes a showing that none of the officers offered any hope or made any threats to the accused to induce his statement. See Bennifield v. State, 281 Ala. 283, 202 So.2d 55 (1967). Thus we conclude that the trial court did not err in admitting the confession and denying the appellant’s motion to suppress.

III

During the opening arguments the prosecutor made reference to the fact that the victim of the robbery, Joe McArthur, was stabbed several times. Defense counsel objected and cites as error the following remarks of the trial judge.

“THE COURT: Just a moment, Mr. Pier-son. Ladies and gentlemen of the jury, I think that the evidence will show that the victim of this alleged robbery died as a result of these wounds allegedly inflicted by someone. In any event, we are not trying the Defendant for the crime of murder, we are trying the Defendant for the crime of robbery. And, you are not to consider any evidence of the death of the victim in reaching your verdict in this case.”

After defense counsel made his opening remarks and the jury was excused for a short recess, defense counsel moved for a mistrial on the basis of the judge’s remark.

The trial judge does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Breedwell v. State, 38 Ala.App. 620, 624, 90 So.2d 845 (1957). The trial judge may state to the jury the evidence when it is disputed. Vinson v. State, 29 Ala.App. 234, 194 So. 705 (1940); Section 12-16-11, Code of Alabama 1975. However the court should “scrupulously refrain from injecting the tremendous weight of its office to influence the jury one way or the other”. Bolton v. State, 23 Ala.App. 470, 127 So. 255 (1930). A judge may not “sum up” the evidence or charge upon the effect of evidence on his own motion. Pease v. City of Montgomery, 333 So.2d 221 (Ala.Cr.App.1976).

Prior to trial the appellant filed a motion requesting the court to enter an order forbidding the prosecutor from introducing any evidence of the death or murder of Joe McArthur, the robbery victim. In arguing against the motion the prosecutor stated that

“the death of Mr. McArthur connected with this robbery is also very relevant because it shows the material element of robbery in force, the amount of force used.”
‡ * * # *
“And, of course, it’s highly proper that we show the jury why the victim of this robbery is not testifying.”

The trial judge denied the appellant’s motion, the propriety of which is considered elsewhere in this opinion. However because of this motion and the arguments presented the judge had notice of what the State was going to attempt to show.

The trial judge’s statement to the jury must be viewed within the context of the entire charge. Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958); Beckley v. State, 353 So.2d 542 (Ala.Cr.App.1977). “(Isolated statements which appear prejudicial when taken out of context may be innocuous when viewed in light of the entire trial.” United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976).

To compound the alleged impropriety of the trial judge’s remarks the appellant alleges that there was no evidence that McArthur actually died. During the presentation of the State’s case there was testimony that McArthur was “bleeding too bad” to run; that he was bleeding badly; that he had been stabbed about the chest area a number of times and was bleeding about the face; and that there was blood all over his body. Lonnie Prince testified, in connection with the robbery that he remembered the day that “the old white man was killed”; that in the appellant’s presence Lorence Green said he was going to kill the man and Donald Robertson said he was going to rob him; and that after the robbery Green said, “He killed him one”. Sergeant Rodney Gale Schmitz of the Prichard Police Department testified that on the evening of the same day of the robbery he was present at the University of South Alabama Medical Center when two pictures were taken of the deceased, identified to him as Joe McArthur. The appellant’s statement was admitted into evidence. In part it recites that after the robbery Green

“came back to the big house and told all of us that he believed he killed him. He said he was trying to stab him in the heart but his arm got in the way. He said then he stabbed him in the stomach and in the chest.”
* * sf: * Hi s}:
“Lorence (Green) said he knew he killed him and if anybody go to jail it would be him.”

This evidence was sufficient to afford a reasonable inference that McArthur was stabbed to death. Dismukes v. State, 346 So.2d 1170 (Ala.Cr.App.), majority opinion reported at 346 So.2d 1173 (Ala.Cr.App.), cert. denied, 346 So.2d 1177 (Ala.1977).

Thus, while the trial judge should not comment on what the evidence will show, under the circumstances of this case the error, if any, was harmless, A.R.A.P., Rule 45, as the facts support the judge’s comment. Peyton v. State, 40 Ala.App. 556, 120 So.2d 415 (1960).

The judge merely told the jury that he thought the evidence would show death but in any event this was not to be considered by the jury in reaching their verdict. Again if error existed in the comment it was cured by the court’s own instructions embraced within and immediately following the comment. Lowe v. State, 54 Ala.App. 280, 307 So.2d 86 (1974).

Additionally we note that the motion for mistrial was due to be denied. A mistrial is only granted in eases of manifest necessity or when required by the ends of justice. Section 12-16-233, Code of Alabama 1975. This comment did not rise to that level of impermissible comment in view of the facts we have stated above.

Remarks by the trial judge may be open to criticism, but they are not error unless they may have affected the result of the trial. Thomas v. State, 126 Ala. 4, 28 So. 591 (1900). It is not every erroneous expression of opinion by a trial judge, during trial, that will furnish a ground for reversal. To do so it must, in some manner, influence the result of the cause, or be supposed to do so. Lang v. State, 279 Ala. 169, 182 So.2d 899 (1966); Parker v. City of Birmingham, 36 Ala.App. 234, 56 So.2d 348, cert. denied, 256 Ala. 633, 56 So.2d 352 (1952). Each case rests upon its own peculiar facts and circumstances. Lockett v. State, 50 Ala.App. 58, 276 So.2d 643 (1973).

IV

The appellant cites error on the repeated references by the district attorney to the death of McArthur.

In robbery, the force or intimidation employed is the gist of the offense. Baker v. State, 344 So.2d 547, 549 (Ala.Cr.App.1977). The person assaulted may show the nature and extent of the violence inflicted upon his person by the robber. Brown v. State, 120 Ala. 342, 25 So. 182 (1899). The victim may testify to the character, extent, and duration of his injuries. Kyzer v. State, 250 Ala. 279, 33 So.2d 885 (1948); Smith v. State, 207 Ala. 428, 93 So. 397 (1922). Evidence of the nature and extent of the violence inflicted on the victim by the robber is competent. Anderson v. State, 209 Ala. 36, 95 So. 171 (1922); Henderson v. State, 172 Ala. 415, 55 So. 816 (1911); Brown v. State, 339 So.2d 125 (Ala.Cr.App.1976).

In this case evidence of the stabbing of McArthur by Green was admissible as part of the res gestae and as being inseparately connected with the charged robbery. The murder and the robbery were parts of one continuous transaction or one continuous criminal occurrence. Brown v. State, 338 So.2d 1050, 1052-1053 (Ala.Cr.App.1976).

In his confession the appellant states that after Robertson had already gotten “something” from the old man, Green told McAr-thur to give him some money. Then Robertson and the appellant left. When Green came to the “big house” he told them that he had killed the old man. From the appellant’s own confession it is clear that he knew Robertson was “going to see what he’s (McArthur’s) got and try to get him”, and that he walked down to the railroad tracks where the robbery occurred from the big house with Robertson. Under the appellant’s own confession Green was still in the process of attempting to rob McArthur when the appellant walked away. After the crime Robertson gave the appellant one dollar.

However Prince testified that the appellant was present when Robertson said he was going to rob McArthur and Green said he was going to kill him. Prince’s testimony would involve the appellant in a conspiracy not only of robbery but also of murder.

Under these facts the admission of evidence of the death of McArthur was clearly admissible. Yet throughout the course of the trial and in his oral charge to the jury the trial judge carefully and consciousnessly instructed the jury that the appellant was not charged “with homicide in any form or fashion”. “And, you may not, under any circumstances, consider the death of Mr. McArthur in arriving at your verdict in this case.” On several occasions the judge sustained defense counsel’s objections to the prosecutor’s questions and argument concerning the murder and instructed the jury that they were not to consider it. In so doing he cured any prejudicial effect the comment may have had.

V

The evidence in this case was sufficient to support the verdict. From the evidence presented the jury would be justified in finding that the appellant was present, but said nothing, when Robertson planned the robbery and when Green said he was going to kill the “old man”; that the appellant voluntarily walked with Robertson to the railroad tracks in front of the victim and that Green followed; and that the appellant stood by while Robertson actually robbed the victim and while Green demanded more money from the victim. There was no evidence that the appellant was present when McArthur was stabbed by Green. The appellant told Robertson to give him a dollar and actually received one of the six dollars taken from McArthur.

When, by prearrangement or on the spur of the moment, two or more persons enter on a common enterprise or adventure and a criminal offense is contemplated, each is a co-conspirator, and, if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977). Where several persons participate in a robbery, all are guilty as principals. Gross v. State, 56 Ala.App. 387, 321 So.2d 727, cert. denied, 295 Ala. 403, 321 So.2d 729 (1975). While criminal agency in another’s offense is not shown merely by an exhibition of passivity, Pugh v. State, 42 Ala.App. 499, 169 So.2d 27 (1964), it is immaterial which one “takes” the property. Johnson v. State, 57 Ala.App. 470, 329 So.2d 160 (1976), Hood v. State, 18 Ala.App. 287, 92 So. 30 (1921), Parsons v. State, 33 Ala.App. 309, 33 So.2d 164 (1948), or which one is the “leader” of the group. Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977). The appellant did not have to personally place the victim in fear or commit violence against him. Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716 (1975). The appellant’s presence in connection with his companionship, and his conduct at, before, and after the commission of the robbery, were potent circumstances from which his participancy could be inferred and this evidence was sufficient to support a conviction. Smith v. State, 57 Ala.App. 151, 326 So.2d 680, cert. denied. 295 Ala. 419, 326 So.2d 686 (1975). The evidence would support a finding that the appellant was present, ready to aid, abet, or assist in the perpetration or commission of the offense. Presence with intent to give aid if necessary constitutes aiding and abetting if the principal knew of the accused’s presence with intent to aid. Maxwell v. State, 34 Ala.App. 653, 43 So.2d 323 (1950). This was a question for the jury under the evidence.

We have searched the record for error and finding none affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Jessie PINKSTON v. STATE.
    3 Div. 886.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Rick A. Williams, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for a term of ten years. He and his counsel signed a waiver of arraignment form and appellant pleaded not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on this appeal.

Prior to trial appellant filed a motion for change of venue alleging that he could not get a fair and impartial trial in Montgomery County because of widespread publicity in the news media, on radio and television. He also filed a motion to quash the jury venire, claiming the jurors were prejudiced by the newspaper accounts relative to the crime for which he stood indicted. He based his motion on an editorial in the Sunday edition of the Montgomery Advertiser of February 26, 1978, entitled, “The Price of Justice,” and a cartoon appearing on the same page, as well as radio and television coverage.

At the hearing on the motion for change of venue copies of the editorial and cartoon were introduced into evidence. On voir dire of the jury venire drawn for the trial of the case all jurors who answered they had. read the editorial, seen the cartoon, heard the radio broadcast and seen the television newscast were excused by the Court on motion of appellant. Eight jurors were excused and the trial court struck from the venire one juror who admitted that she knew one of the persons employed at the store allegedly robbed by appellant. The qualifications of the other jurors were not drawn into question. The motion for change of venue was then overruled and denied.

The burden is on the defendant seeking a change of venue to show, to the reasonable satisfaction of the Court, that he cannot receive a fair and impartial trial. Such motions are addressed to the sound discretion of the trial court and will not be disturbed on appeal except for gross abuse. Publicity by the press, radio and television does not necessarily constitute ground for change of venue. Payne v. State, 48 Ala.App. 401, 265 So.2d 185; Mathis v. State, 280 Ala. 16, 189 So.2d 564; Turk v. State, Ala.Cr.App., 348 So.2d 878; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

The only evidence presented on the motion for change of venue was the testimony of the Editor of the Montgomery Advertiser who testified relative to the editorial and the cartoon. He expressed no opinion as to whether appellant could receive a fair and impartial trial. One attorney testified that he had read the editorial and news accounts of the alleged robbery and that if he was on the jury his verdict would be influenced by these news accounts.

We are of the opinion that the defendant did not support the burden of proving his motion and that change of venue was denied without error. Divine v. State, 279 Ala. 291, 184 So.2d 628.

Shortly after 2:00 p. m., on Friday, January 13, 1978, the Scottie Store on South Court Street in Montgomery was robbed by a lone bandit. He approached the manager at the cash register with his right hand in his coat pocket pointed directly at the manager and said, “Be calm, don’t make a move or say a word or I will shoot you. Just open the register and give me the money.” She opened the cash register and removed tens, fives and one dollar bills and handed them to him. The bandit then told her to lift the drawer under the cash register and give him the other money. She lifted the drawer and the robber reached over with his left hand and got the money from the drawer and started putting it in his pockets. He dropped two twenty dollar bills on the floor but in his haste he did not pick them up. He fled the store with his right hand still in his pocket. She stated the man took about two hundred and forty dollars.

The manager called the Police Department and gave a description of the bandit. She stated that the man was about six feet tall and was very slim, weighing about one hundred and thirty pounds. She further stated he was wearing a tan tweed cap and had on a long velvet, goldish brown coat. She said that his shoes were tannish brown with a mixed color on top; that he was in the store about ten minutes looking around before the robbery occurred.

She further testified that she recognized his picture in the paper the next morning and also recognized his photograph on television. She made a positive in-court identification based on her observation of him during the ten minutes he walked around in the store prior to the robbery and on his picture in the paper.

The police radio dispatcher put out an all points bulletin for the apprehension of the bandit and Officer William F. Hadden responded to the radio dispatch. Officer Hadden testified that he proceeded to Dexter Avenue and Perry Street with his blue lights flashing. He was in uniform and was driving a marked car. He turned the wrong way on South Perry Street and saw a man crossing Perry Street who fit the description given in the radio broadcast. He stopped his patrol car and asked the man to show him his identification. The man ignored the officer and kept walking south on Perry Street. The officer called the man a second time and the man started running. The officer followed the man and used the loud speaker in his car instructing the man to halt. The man ran east on Washington Street and the officer fired a warning shot in the air but the man kept running and turned into an alley off Washington Street. Officer Hadden then fired directly at the man’s legs and the shot struck the man and he fell in the alley. He stated the man kept his hand in his right coat pocket during the entire chase.

At trial Officer Hadden identified appellant as the man he chased and finally shot. He also identified State’s Exhibit No. 9, which was a photograph of the hat and coat worn by appellant at the time of the robbery and at the time he was apprehended. He further identified State’s Exhibits 4, 5 and 6 that depicted the man running and finally lying in the alley after being shot.

Ken Westphal testified that he was a photographer with the Advertiser-Jour nal and while at work he heard on the police scanner that there was a “code three” (robbery) at the Scottie Store and that a suspect was running South on Perry Street toward Washington Street. He left his office with his camera, went to the front of the courthouse on Washington Street and saw a man running on Washington with a policeman in the patrol car pursuing him. He heard the policeman order the man to stop or halt and heard shots being fired. He identified State’s Exhibits 4, 5 and 6 as photographs made by him, and the photographs were admitted into evidence without objection.

Detective William R. Wilson testified that on January 24, 1978, he and his partner, Detective E. B. Alford, visited appellant at St. Margaret’s Hospital. Detective Wilson advised appellant of his Miranda, rights and warnings. At this time a voir dire hearing was held out of the presence and hearing of the jury.

At the voir dire hearing Officer Wilson stated that appellant said that he understood his rights. He did not request an attorney.

It was shown that no threats, promises, rewards or other inducements were made against or held out to appellant to get him to make a statement. The evidence clearly shows that appellant was in full possession of his mental faculties and freely and voluntarily gave the officers a statement that was taken on a tape recorder. The tape was subsequently transcribed and the officers carried the original and several copies of the transcribed statement to appellant at St. Margaret’s Hospital. He read the statement and affirmed its correctness to the officers and signed his name to the original but failed to sign the copies. One of the unsigned statements was given to appellant.

Appellant took the stand on the voir dire hearing and stated that he did not sign the statement, nor did he read it. He denied that he robbed the Scottie Store. He stated that he only saw Detective Wilson one time and that was on January 13, 1978, at the emergency room right after he had been shot.

At the conclusion of the voir dire hearing the trial judge ruled the confessory statement was knowingly, freely and voluntarily made and was admissible in evidence.

Back before the jury the State laid the pre-Miranda predicate and the confessory statement was admitted into evidence as State’s Exhibit No. 10.

Before the jury Detective Wilson testified that he investigated the robbery at the Scottie Store on January 13, 1978, and saw appellant lying in the alley off Washington Street. He stated appellant had a wad of money in his pockets and the amount was $214.00. Wilson again related that appellant voluntarily signed the transcribed statement and that he had no problem understanding the signed statement.

Appellant testified before the jury that he pleaded guilty in the summer of 1977 to a misdemeanor charge of buying and receiving stolen property and was fined $180.00 and sentenced to six months in the County jail. He could not pay the fine and left the State. He went to Detroit to live with his aunt who was ill. He stated he got odd jobs and saved over $400.00. He returned to Alabama just before Christmas of 1977 and still had most of the money he made in Detroit.

Appellant denied that he robbed the Scottie Store on the afternoon of January 13, 1978, and denied he had ever been in the store. He further denied that he signed a statement admitting the robbery. He stated that the $214.00 he had on his person after he was shot was the money he won shooting pool at the Red Bell Lounge in Montgomery.

Appellant stated that he saw the police car with the lights on as he was crossing Dexter Avenue and that the officer pulled his gun out and ordered him to come to him but he kept walking, and then ran away. He said he ran because he thought he was going to be put in jail for failing to pay the previous fine imposed on him in 1977. He admitted he was wearing a brown coat and a gold cap. He again denied making a statement to the officers that he was involved in robbing the Scottie Store.

On cross-examination appellant again denied that Detective Wilson or any other detective visited him in the hospital and denied giving the officers a signed statement.

On rebuttal the State called Detective Alford and he testified that Detective Wilson was his partner on the date of the robbery. He was present when appellant was handed the transcribed statement. Appellant was asked to read the statement, to see if it was correct. Appellant was asked if he could read and he said he could. He then signed the statement.

Appellant raises three issues on this appeal in which he contends the trial court committed reversible error: (1) The trial court erred in allowing hearsay evidence, (2) the Court should have granted his motion for change of venue, and (3) the court erred in refusing to charge the jury on the lesser included ’ offense of grand larceny.

We have treated and resolved the issue involving the motion for change of venue.

On the question of hearsay evidence we quote from the record:

“By Mr. Bentley:
“Q. What opportunity was he given to review it, specifically? (This was in reference to the confessory statement.)
“A. It was handed to him and he had the opportunity to read it, to ask us any questions about it.
“Q. Now, did either of you or your partner, Detective Wilson, ask him if he could read?
“A. Detective Wilson did.
“Q. Recall that conversation for us please.
“A. He was asked about his education background, and asked if he could read.
“Mr. Williams: Your Honor, we are going to object to hearsay.
“The Court: Overruled. Who was telling you this, Mr. Pinkston?
“A. This was during the time we were interviewing him. He was asked if he could read. We were asking Mr. Pink-ston.
“The Court: All right. Overruled. Go ahead.
“A. And at that time he was asked if he could read and he stated he could. He was presented this statement to read. After a couple of minutes he looked up and said that was the same that he had told us prior when we recorded the statement, and he signed it at that time.
“Q. And that was done in your presence?
“A. Yes, sir.
“Q. While he was holding the statement, did it appear as though he were in fact reading it?
“A. Yes, sir. His eyes were following the lines, typed lines.”

It is clear from the above quoted testimony that the officers were talking directly with appellant. There can be no valid claim that this was hearsay evidence. Before the transcribed statement was legally admissible, it was necessary that appellant approve the accuracy of the statement taken on the tape.

Appellant’s contention that the trial court erred in not charging the jury on the lesser included offense of grand larceny is wholly without merit. The testimony of the manager of the Scottie Store clearly shows that the offense of robbery was committed. Appellant stated to her, “Don’t make a move or say a word or I will shoot you.” At this time appellant had his hand in his coat pocket and was pointing directly at her. The manager stated that she was afraid during the robbery and she followed his commands in giving him the money. This constituted the crime of robbery. Brooks v. State, 36 Ala.App. 310, 55 So.2d 366.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    John W. POPE v. STATE.
    3 Div. 889.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Harry H. Perdue, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant, a bail bondsman for Dean Bonding Company in Montgomery, Alabama, was indicted and convicted for offering a bribe to a City of Montgomery police officer in violation of Section 13-5-30, Code of Alabama 1975. Punishment was set at two years’ imprisonment.

The State’s evidence was sufficient to authorize a finding by the jury that on the night of September 11, 1977, the appellant, Allen Cantebury, and James “Sonny” George offered to pay Montgomery police officer Mike Armstrong one thousand dollars to supply them with “inside” information to protect an “escort service” that they were going to establish in the city as a front for prostitution. The appellant, at this same meeting, also told Officer Armstrong that he was going to give him one-half of his one-third of the money that they (the appellant, Cantebury, and George) were going to take in on this escort service. When Armstrong replied, “It sounds good”, George outlined everyone’s duties in the escort service. During this conversation the appellant was “nodding affirmatively” in agreement with what was being said.

Armstrong’s job according to George’s testimony,

“was to protect the escort service by telling Sonny, John (the appellant), or Allen when vice raids were going to be planned or when the vice was going to hit the trailer in which the prostitutes would be living to advise them when a narcotics officer would attempt to make a prostitution arrest on the prostitutes or to let them know when one of their girls was busted, for me to take care of it in my office and try to prevent them from being put in jail.”
* * * * * *
“Sonny, on the jobs that were provided, wanted me to make a list of all known prostitutes in Montgomery including the prostitutes that we had arrested, or prostitutes that we had not arrested, to provide him with the names and addresses of these prostitutes, so that he in turn could get in touch with these prostitutes and put them to work in the escort service.” * * * * * * •
“John Pope’s job was to get prostitutes out of jail that had been arrested, if any were arrested in the escort service, to recruit other females in the City of Montgomery for prostitution, and to take females out of jail that had been arrested for various charges and recruit them for the prostitution service. The job of Allen Cantebury, he was more or less the brains of the operation. He would handle all the paper work and all the money that was involved in the escort service.”

George was “the pimp”. “He works the ladies.”

At a subsequent meeting the appellant confirmed this arrangement and stated that “he was tired of fooling around, that it was time to get this thing (escort service) started”.

“Now, I’ve (appellant) went to a lot of trouble. I’ve got Mike (Armstrong), and Mike is going to take care of the escort service. He’s going to tell us when the Vice Unit is going to hit. We’ve got our inside man and he’s going to take care of that. Sonny (George), you’re going to run the ladies. You’re going to be the pimp, and A1 (Cantebury), you’re going to take care of all the money, and my job is to recruit, and that’s the way it’s going to be.”

Armstrong testified that “everyone agreed” to this.

Officer Armstrong had several meetings with the appellant both prior to and after September 11, 1977, the date the bribe was offered. These meetings began on August 26, 1977, and continued to the time of the appellant’s arrest on September 28, 1977. All during this time Armstrong was a police officer for the City of Montgomery.

The appellant testified in his own behalf. The core of his defense was that Armstrong was going to resign from the police department and go to work for the bonding company and for the appellant, selling used cars and in the escort service. Only after Armstrong resigned was his knowledge of the police department to be used to “screen the applicants” for the escort service. The appellant insisted that Armstrong was not going to be used as an “inside man” and that “the only involvement . . . (the appellant) was going to have in the escort service is just on legitimate dates”. The appellant testified that he never heard anyone offer Armstrong a bribe and that any job offer he made to Armstrong concerned Armstrong’s services in a civilian capacity after he had resigned from the police department.

I

Initially, the appellant contends that the trial court erroneously admitted evidence of distinct and independent offenses.

The rules of evidence regarding the admission of evidence of the accused’s commission of crimes not charged in the indictment have been given considerable attention by the courts of this state. The rules are clearly and concisely summarized in C. Gamble, McElroy’s Alabama Evidence § 69.-01 (3rd ed. 1977).

“On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.”
* * * * * *
“The foregoing exclusionary rule does not work to exclude evidence of all prior crimes, only such as are offered to show the defendant’s bad character. If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than as tending to prove guilt via bad character, then proof of such other act is admissible.”

Evidence of the accused’s commission of another crime is admissible to show guilty knowledge, criminal intent, and plan, design, scheme or system.

“Evidence of the accused’s commission of another crime is admissible if his knowledge of a certain fact (which usually means his reason to believe the existence of such fact in consequence of things seen by him or information received by him) is an element of the now-charged crime and his commission of such other crime was reasonably calculated to bring to him such knowledge.” McElroy, supra, § 69.-01(4).
******
“If the accused is charged with a crime that requires a prerequisite intent, then prior criminal acts are admissible to show that he had the necessary intent when he committed the now-charged crime. This rule is based upon the theory that, because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently.” McElroy, supra, § 69.01(5).
* * * * * *
“Evidence of the accused’s commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme or system. This rule is applicable whether such plan, design, scheme or system is narrow and specific in scope or is measurably broad and general in scope.” McElroy, supra, § 69.01(6).

Detective Armstrong arrested Debra K. Short for prostitution on August 25, 1977, the day before he first met with the appellant. She swore out a complaint against Armstrong for sexual abuse. The appellant was aware of this and expressed some concern over the matter. Armstrong testified that on August 28th, the appellant telephoned and said:

“Hey, I want to talk to you about Debra K. Short, what we ought to do about that problem.”

When Armstrong met with the appellant that day following the telephone call, the appellant told him

“that the white female prostitute that I had arrested was going to cause a lot of problems for me in my office and in my duty as a police officer and that he felt it best that she be shipped out of town, that he had two boys coming down from Birmingham that would take her out of Montgomery and put her to work in massage parlors or prostitution on the street in Birmingham, Alabama, and other places in North Alabama. He further stated at that time that if she would not go on her own that they would have her killed — ”

The appellant also told Armstrong that the “two boys coming down from Birmingham” were “two men that he had worked with”. When George and Cantebury arrived, George asked the appellant, “Do you want us to pick her up — ”

This evidence concerning the problems Short might cause Detective Armstrong was highly relevant to show the appellant’s intent to bribe him in his capacity as a police officer and not merely to employ him after his resignation from the police department. Any problem Short’s complaint could cause Armstrong would be of no significance to the appellant if Armstrong was going to resign in the near future and not operate as an “insider” supplying information to the appellant. The suppression or destruction of Short’s ability to pursue her complaint against Armstrong would avoid bringing him into any type of suspicion with the police department which would prevent or hinder his activities with the escort service. In this sense the fact that Short’s complaint had to be dealt with was in keeping with and pursuant to the scheme embraced in the charge of bribery.

“The gravamen of the charge (of bribery) is the corrupt solicitation or attempt to influence a public officer, and some latitude must be allowed in the range of evidence admitted when such a question is involved . . . . The intent (to corruptly influence a public officer in his official action) is a material constituent of the crime charged; and the general rule that the prosecution will not be allowed to introduce evidence of other distinct offenses, for the purpose of showing the accused guilty of the offense specifically charged, does not apply, when it is material to the inquiry to show the intent with which the act charged was committed.”
Roden v. State, 5 Ala.App. 247, 254, 59 So. 751 (1912).

This testimony would also be relevant, when considered with other circumstances, in showing the existence of a conspiracy among the appellant and others to commit the charged offense.

George’s statement made in the presence of the appellant, Detective Armstrong, and Cantebury that he was currently paying several vice officers in the Birmingham Police Department to protect prostitution in Birmingham, and the appellant’s statement that there were “several police officers in the Montgomery Police Department of high rank that he should set up a prostitute with to have them, in case they came down on us, they would have them by blackmail”, are relevant and admissible to show the appellant’s intent and guilty knowledge of the illegal scheme prematurely terminated by his arrest. Furthermore there was no objection or motion to exclude this testimony and hence no adverse ruling by the trial court. Matters not objected to at the trial level cannot be raised or considered for the first time on appeal. Brown v. State, 50 Ala.App. 702, 282 So.2d 322 (1973); Burton v. State, 48 Ala.App. 713, 267 So.2d 503 (1972); Fuller v. State, 38 Ala.App. 493, 90 So.2d 244, cert. denied, 265 Ala. 695, 90 So.2d 245 (1956).

The appellant’s contention that testimony was improperly admitted concerning a female prostitute bringing George one hundred eighty dollars in Birmingham for “tricks she had turned” is not subject to review by this court. The appellant’s objection was sustained and the trial judge instructed the jury to disregard therefore nothing is presented for review. Robinson v. State, 342 So.2d 1331 (Ala.Cr.App.1977).

II

A related argument presented by the appellant is that the trial court improperly admitted into evidence the series of meetings occurring from August 26, 1977, to September 17, 1977, between the appellant and Officer Armstrong when the actual bribe was made on September 11th.

Antecedent circumstances tending to shed light on the criminal transaction or elucidate facts or show preparation to commit the crime are admissible in evidence. Mincy v. State, 262 Ala. 193, 78 So.2d 262 (1955); Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943); Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976). Circumstances in pursuance of the accomplishment of a crime are admissible. Williams v. State, 255 Ala. 229, 51 So.2d 250 (1951). Evidence tending to establish the guilt of the accused is not rendered incompetent because it may tend to show his guilt of another offense. Snead v. State, 243 Ala. 23, 8 So.2d 269 (1942); Williams v. State, 126 Ala. 50, 28 So. 632 (1900); Hammonds v. State, 354 So.2d 345 (Ala.Cr.App.1978); Kirkwood v. State, 3 Ala.App. 15, 57 So. 504 (1912). An accused’s acts, declarations and conduct against interest are always competent evidence. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Blackwell v. State, 264 Ala. 553, 88 So.2d 347 (1956). Any conduct or declaration of an accused having a relation to the offense charged, indicating a consciousness of guilt, is admissible as evidence against him. Conley v. State, 354 So.2d 1172, 1179 (Ala.Cr.App.1977).

“Any indications of a consciousness of guilt by a person suspected of or charged with crime, or who may after such indications be suspected or charged, are admissible evidence against him. The number of such indications it is impossible to limit, nor can their nature or character be defined. Presumptions or inferences may be, and often are, founded on circumstances which, of themselves, independent of the accusation, would not be ground of crimination. It is largely a question of fact, rather than a question of law, for the determination of the jury, whether particular conduct, or particular expressions of the accused, refer to a criminal offense, and spring from his consciousness of guilt. When it is clear that they have no relation to the offense, and that they ought not to have any influence with the jury, it is the duty of the court to reject them as evidence. But however minute or insignificant they may be, shedding but a dim light upon the transaction, if they have a tendency to elucidate it they must be admitted. They may be connected with other circumstances which will constitute a chain of evidence, leading the mind to a satisfactory conclusion.”

McAdory v. State, 62 Ala. 154, 159-160 (1878).

While the actual bribery offer was made at one meeting, each meeting between the appellant and Officer Armstrong was relevant in indicating a consciousness of guilt by the appellant and in disclosing his intent. To have allowed only the events of the single meeting in evidence would have presented the jury with a partial and limited view of the circumstances and nature of the criminal act charged.

Ill

The appellant’s final allegation of error is that the evidence which tended to show a conspiracy between the appellant, George and Cantebury was improperly admitted because the indictment charged the commission of a specific offense and a specific act of bribery or attempted bribery — not conspiracy.

A conviction of one charged in the indictment with having been the actual perpetrator of a crime is authorized on proof of a conspiracy or that the accused aided or abetted in the commission of the crime. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); Jolly v. State, 94 Ala. 19, 10 So. 606 (1891). An aider and abettor may be indicted directly with the commission of the substantive crime and the charge may be supported by proof that he only aided and abetted in its commission. United States v. Merriwether, 329 F.Supp. 1156, affirmed, 469 F.2d 1406 (5th Cir.1971).

We have carefully searched the record for error and finding none affirm the judgment of conviction.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Willie Lee MONTGOMERY v. STATE.
    3 Div. 917.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant presents the following as the only issue for review:

“Whether or not the court erred in refusing to exclude a portion of defendant’s statement, which indicated that he had committed or attempted to commit other crimes.”

Appellant was convicted of murder in the first degree of DeLeon Adams by shooting him with a pistol.

Included in the strong undisputed evidence that appellant and two others participated in the murder of Mr. Adams, while attempting to rob him in his store, was the confession of appellant, which was admitted in evidence after ample proof of its volun-tariness and an intelligent waiver of his right to counsel and his right to remain silent, as to which no question is raised.

The confession was lengthy and covered details of what appellant and one or both of the other two did from about 7:30 or 8:00 A.M. the morning of the homicide until about noon when the homicide occurred. He continued by stating that one of the other two stayed in the automobile on the outside of the store, that he and Eddie went into the store, that Eddie had his gun on him and pulled it on Mr. Adams. He said that Mr. Adams reached for his own gun in his pocket and while Eddie was trying to keep Mr. Adams from getting his own gun out of his pocket, the gun that appellant had in his hand went off. He said he knocked Mr. Adams to the floor, that he went through the cash register, dropped some of the money on the floor and Eddie picked it up. “Then I told him to come on, let’s go.” In his statement, appellant continued to tell what happened that day, that night and the next day. The part of the confession of appellant as to which error is ascribed to the admission thereof shows that he and one or both of the other two were reconnoitering a large area of the city of Montgomery for the purpose of burglary or robbery or both. They did not succeed at any place other than at Mr. Adams’ store.

The admission in evidence of that part of the confession of appellant does not violate the general rule of exclusion as to other crimes. This for at least two reasons, (1) the part of the confession prior to the commission of the crime was inseparably connected with that part of it which contained an admission of the crime charged and (2) it constituted evidence of the intent essential to murder and premeditation essential to murder in the first degree.

In Andrews v. State, Ala.Cr.App., 359 So.2d 1172, 1176, the following is stated:

“The general rule is that the whole confession is admissible even though it shows the accused committed other crimes if such admissions are inseparably connected with the confession of the crime charged. However, where inadmissible statements in a confession can be easily separated from those relating to the crime charged, only those parts material to the crime charged should be admitted. Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958), cert. denied, 268 Ala. 699, 109 So.2d 755.”

The rule is stated in Sims v. State, 253 Ala. 666, 668, 46 So.2d 564, 566:

“All the features of a confession are not necessarily admissible even though it is voluntary. We think a good statement of the rule is that if the confession indicates that accused has committed a separate offense it should be excluded by the court if its separation is possible, leaving the balance intelligible, unless it tends directly to prove accused guilty of the crime charged, or the motive for its commission, or where such part tends to explain the remaining portion of the confession. . . . ”

There was enough evidence in the case, without admission of that part of the confession to which the objection was made, to justify a verdict of murder in the first degree. Nevertheless, that part of the confession to which the objection was made furnished some substantial evidence, in addition to the rest of the evidence, that when defendant fired the shot that killed Mr. Adams, such homicide was “committed in the perpetration of, or the attempt to perpetrate, . . . robbery” which of itself constitutes murder in the first degree. Ala.Code 1975, § 13-1-70.

The court was not in error in admitting the entire confession, including the part to which defendant objected.

No error prejudicial to defendant is found in the record. The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article, (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    James STOUDEMIRE, alias v. STATE.
    4 Div. 662.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Jerry E. Stokes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was charged in a two-count indictment with grand larceny and buying, receiving, concealing stolen property. At arraignment, in the presence of his counsel, appellant entered a plea of not guilty. The jury returned a verdict of guilty as charged and the trial court fixed the punishment at imprisonment in the penitentiary for a term of one year and one day. Appellant gave notice of appeal. He sought and obtained a free transcript and trial counsel was appointed to represent him on this appeal.

At the close of the State’s evidence, and again at the conclusion of all the evidence, appellant moved for a directed verdict and moved to exclude the State’s evidence on the grounds the State failed to make out a prima facie case. The motions were overruled and denied.

Robert E. Brannon, the owner of the stolen property, testified that he owned and operated the Hideaway Club in Opp, Alabama. On Thursday night, November 17, 1977, he closed the club between 11:00 p. m. and midnight and drove to the Shack, a gambling establishment in Opp. He was driving a green 1973 Chevrolet. He stayed inside the Shack for twenty to thirty minutes, leaving in the ear a new Smith and Wesson .38 caliber pistol and a locked safety deposit box containing approximately four hundred dollars in receipts from the Hideaway Club. The pistol was in the locked box. The car was locked, and he had not given anyone permission to enter his car and remove the property. Mr. Brannon testified that the pistol’s value was approximately one hundred and fifty dollars. He further testified that the money and the pistol were never recovered.

When Mr. Brannon returned to his car he discovered the box and the gun were missing, and he contacted Officer Logan of the Opp Police Department. The two men returned to the Shack and talked with Naomi Lane, who lived next door.

On cross-examination, Brannon testified that he was shooting craps with Melvin Lawrence in the Shack, but that he did not lose any money to Lawrence and did not see appellant James Stoudemire that night. When Brannon returned to his car, the box and pistol were missing. The car doors were locked and there were no signs of the car being tampered with.

The key witness for the State was Naomi Lane, who testified that she saw the property taken from Brannon’s car that night. It was Mrs. Lane’s testimony that James Stoudemire and Melvin Lawrence came to her house, which was located next door to the Shack, around midnight. Lawrence came inside, where she and her son were watching television, and took a clothes hanger from the closet. Appellant remained outside on the door step.

The two men left and walked over toward the Shack. While appellant stood at the comer of the building next to the street, Lawrence opened the door of Robert Brannon’s car with the clothes hanger, removed the box, and he and appellant walked off towards town. Melvin Lawrence had the box. Mrs. Lane had earlier seen Brannon drive up in the car and enter the Shack. When Officer Logan and Bran-non talked with her later that night, she told them what she had seen.

Mrs. Lane underwent a lengthy vigorous and extensive cross-examination by appellant’s counsel, and her testimony of the events of that night was gone over numerous times. Though there were many inconsistencies in her testimony on cross-examination she steadfastly maintained that appellant and Lawrence went to Brannon’s car and after Lawrence got the box from the car both left the scene together. She testified, in response to questions by defense counsel, that Robert Brannon had not offered to pay her to testify, that the car driven by Brannon on the night in question was yellow, and that she was positive that she saw James Stoudemire with Melvin Lawrence that night. There was confusion in her testimony regarding having seen appellant and Lawrence earlier in the evening also. Mrs. Lane further testified that she frequently watched the activities at the Shack from her house. She also testified to the distance between her house and the Shack and that appellant was standing five or six steps from her front door when he and Lawrence came by her house that night.

She further testified that Brannon owned two Chevrolet automobiles. One car was green and the other was yellow. She stated the car that Brannon was driving that night looked yellow with the lights shining on it.

Melvin Lawrence testified for the defense that he was at the Shack on the night in question, but appellant was not with him, nor did he see appellant there. Brannon came to the Shack and appeared to be drunk. He testified that he had gone to Naomi Lane’s house earlier in the evening but he did not go back there. Lawrence further testified that Brannon called him on the phone later that night but the trial judge excluded any testimony as to the conversation.

On cross-examination, Lawrence testified he saw appellant around 6:00 p. m. at Henderson’s Cafe, near the Shack, but he did not see him again. When Lawrence left the Shack, Brannon had already gone.

Appellant, James Stoudemire, testified in his own behalf that he had nothing to do with taking any money from Robert Bran-non’s automobile and that he was not with Melvin Lawrence the night the property was stolen. Appellant testified that he was at Booster’s Cafe, three blocks from the Shack, until 10:00 and then he went to work loading pecans for Paul Wiggins until around 12:30. He then went straight home.

Appellant further testified the first he knew about Brannon losing any money at the Shack was a day or two later when Brannon asked appellant if he saw Melvin Lawrence take the money. He did not accuse appellant at that time.

Officer Jenkins Logan, Opp Police Department, testified for the State on rebuttal that shortly after midnight on November 18, Brannon approached him while he was on patrol in Opp, and they went to the Shack and Naomi Lane’s house, then rode around for an hour or two, looking around. Logan testified that in his opinion Brannon was not drunk.

On cross-examination, Logan drew a diagram of the Shack and Naomi Lane’s house. He testified that he was unsure which house was Naomi Lane’s, but that it was the first or second house from the Shack. The trial judge allowed this testimony but refused over appellant’s objection to permit the introduction into evidence of the diagram.

The testimony at trial was lengthy, repetitive and often confusing, due at least in part to attempts by appellant’s counsel to discredit the testimony of both the victim, Robert Brannon, and the eyewitness, Naomi Lane. However, evidence was presented which, if believed by the jury, was sufficient to sustain the general verdict of guilty as charged in the indictment.

The eyewitness testimony tended to prove that property of a proven value was lost by the owner and that it was lost by felonious taking. Such proof will support a conviction of grand larceny. Copeland v. State, 57 Ala.App. 482, 329 So.2d 171.

This Court has held on numerous occasions that the number of witnesses is not the basis for determining the issue as to guilt because a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Smith v. State, Ala.Cr.App., 338 So.2d 1030; Freeman v. State, Ala.Cr.App., 350 So.2d 768.

The evidence presented by the State and appellant was in sharp conflict. It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence. May v. State, Ala.Cr.App., 335 So.2d 242; Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.

While the evidence did not show that appellant, James Stoudemire, actually broke into Robert Brannon’s car and took the money box and pistol, it did tend to show that he was present and ready to render aid and assistance. He is therefore equally guilty with the one who did the act. Goodman v. State, 52 Ala.App. 265, 291 So.2d 358.

Count 2 of the indictment charged appellant with buying, receiving and concealing stolen property. The State’s evidence showed that appellant was a principal in the felonious taking and carrying away of the property of Robert Brannon. It is the law in Alabama that the principal in a theft cannot be convicted of the crime of receiving, concealing or aiding in the concealment of the property which he has stolen. Davidson v. State, Ala.Cr.App., 360 So.2d 728; Mefford v. State, Ala.Cr.App., 363 So.2d 1050. A conviction under Count 2 of the indictment cannot be sustained.

Where only one count of an indictment is sustained by the evidence, a general verdict of guilty will be referred to that count. The evidence presented on the grand larceny count was sufficient to sustain the jury’s verdict. McGee v. State, 20 Ala.App. 221, 101 So. 321.

Appellant contends that the trial court erred in refusing to give certain requested charges. In its oral charge the trial court charged the jury that their verdict must be unanimous and that all twelve of them must agree on whatever verdict they returned. At the conclusion of the oral charge, appellant excepted and requested that, in addition to charging the jury that the verdict must be unanimous, the Court should also charge that each member of the jury must separately be convinced and only vote for guilty if separately convinced of the guilt of the defendant. This charge was not given by the Court.

It is settled in this state that refusal of a “single juror” charge is not reversible error, particularly in light of the charge to the jury that the verdict must be unanimous. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied 288 Ala. 735, 265 So.2d 202. In the case at bar the jury was also polled and each individual juror indicated that he or she concurred in the verdict.

Appellant also contends that the trial court erred in refusing two additional charges requested after the jury had received further instruction on reasonable doubt. Those charges were submitted in writing and were included by the Clerk in the record on appeal. The charges, however, do not bear the endorsement of the trial judge as having been refused by him. Such an endorsement is required by Code of Alabama 1975, § 12-16-13, for consideration of the charges on appeal. The insertion of the charges into the record by the Clerk will not alone make them part of the record without the endorsement of the trial judge. Berry v. State, 231 Ala. 437, 165 So. 97. Due to the absence of the essential endorsement by the trial judge, the question of error in refusing appellant’s requested charges is not properly before this Court.

Appellant further contends the trial court erred in refusing to admit the diagram drawn on cross-examination by the State’s rebuttal witness, Officer Logan. The diagram was offered by appellant for the sole purpose of showing that Officer Logan’s memory was vague and indefinite as to which house Naomi Lane lived in. The officer drew two houses, first marking one with an X, then the second with an N, indicating that one of the two was Naomi Lane’s house. Also, Officer Logan testified that she lived in either the first or second house from the Shack, although he was not sure which one. After this testimony the diagram was offered into evidence and refused.

The excluded diagram was made a part of the record on appeal and the ruling of the trial court on its admissibility is therefore properly presented to this Court for review. Howard v. State, Ala.Cr.App., 347 So.2d 574.

The fact of Officer Logan’s uncertainty concerning which house Naomi Lane lived in was admitted into evidence prior to the exclusion of the diagram through Logan’s testimony. Since the diagram was offered for that purpose only, the error, if any, in refusing its admission was harmless. Reversal will not be predicated upon improper admission or rejection of evidence unless the error complained of has probably injuriously affected substantial rights of the parties. Powell v. State, 5 Ala.App. 75, 59 So. 530; Rule 45 ARAP.

A careful search of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    Arthur F. GOODE, III, Appellant, v. STATE of Florida, Appellee.
    No. 51480.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Rehearing Denied Jan. 15, 1979.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., and C. Marie King, Asst. Atty. Gen., Tampa, for ap-pellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

On the morning of March 5th, 1976, a ten year old child, whom we shall refer to as “Jason”, waited for a school bus with other children near his home. A young man, identified by the children as defendant, approached them and began a conversation. Defendant eventually left the bus stop with Jason and walked into a wooded area. A search began when Jason failed to return from school. The next day Jason’s nude and beaten body, almost concealed under palmetto fronds, was found in the woods near Jason’s home. Jason suffered an anal sexual assault before his death.

The defendant went to Maryland where he had previously escaped from a mental hospital. In Maryland, he kidnapped two young boys and killed one of them m Virginia. Defendant admitted to the survivor that he had murdered Jason. He was tried in Virginia and convicted of murder, receiving a life sentence.

Defendant gave a statement in which he demanded his return to Florida so that he could be convicted of Jason’s murder and be executed. Upon his return to Florida, defendant gave a full confession to the state attorney. At his trial he again gave a detailed confession and expressed a desire to be convicted and executed.

Prior to the trial defendant was represented by privately retained counsel. A motion suggesting insanity was filed and heard by the court. Four psychiatrists testified. All of them agreed that defendant suffered from a mental disorder but only one concluded he was incompetent to stand trial or assist in his defense.

The latter psychiatrist, Dr. George W. Barnard, gave the following testimony, in part:

“In summary, Mr. Goode to me shows signs of schizophrenia of the latent type with disturbance in his thoughts, in his thinking, in his affect and his behavior. In addition, I think that he meets the criteria as I understand them related to the issue of competency to stand trial in that — and I think here is the misleading part — he can give factual information and he does so very readily, and I think that this is deceiving to people in that he appears to make sense about what he is saying, but — and I think this is a matter to be argued by you and the State and for the Judge to decide, but is it rational, and I think that is the key issue.”

On the other hand, Doctors Tin Myo Than, Robert J. Wald, and Mordecai Haber were of the opinion that defendant was competent to stand trial and assist in his defense.

Dr. Than’s testimony contains the following:

“In summary, this young man that I have examined is not psychotic and he understands to a reasonable degree the nature of the charges, the functions of the officers of the Court and the possible outcome of such a trial. Therefore, it is my medical opinion that the Defendant is competent to stand trial, capable of making decisions in his own best interest and also to assist counsel in the preparation of this case.”

Dr. Wald’s testimony contains the following:

“. . . Mr. Goode is an individual who is, in contrast to the opinion of the first psychiatrist who testified, a nonpsychotic individual. He is making a choice based upon nonpsychotic reasons, and his reasoning basically consists of his feeling that he has already been convicted of a murder, Number One. Number Two, he wishes not to spend the rest of his life in prison. Number Three, despite his insistence that he feels no remorse he does indicate that he still considers himself to be dangerous and in a very vague way, but in a very true way indicates that somewhere within himself there is the thought that he should not be allowed to continue to go on in his present course which includes mental illness, which includes murdering young children.
If I explained to him the McNaghten Rule in detail — are you familiar with that rule?
Yes. i>
Could he comprehend and understand what I’m saying? .©
Yes, sir, he could. >
Would he comprehend and understand the significance of the rule? <©
I believe he would, and I believe he could.
If I explained to him trial tactics, his right to remain silent, for instance, the right of defense of insanity, how it’s presented, how it could be used, both tactically and factually, could he understand and appreciate what I as the Judge or a lawyer were telling him? <©
He could understand and appreciate all of that information, and in my clinical evaluation I made an attempt to talk with him about other alleged offenses and he fully understands the scope of this current investigation and possible trial. He fully understands exactly what he is accused of, what the penalties are. He stressed the wish not to incriminate himself in other areas. He has a, I would say in a nonpsychiatric term, a fairly wily understanding of what is going on.”

The testimony of Dr. Haber contains the following:

“. . he is not suffering from a mental disorder to the extent that he cannot assist his counsel in the preparation of his case and not to the extent that he cannot make rational decisions in his own best interest.”

After this hearing, but before trial, the defendant discharged his privately retained counsel and asserted his right to represent himself. The court then interrogated the defendant:

“THE COURT: Define for me first degree murder. What are the elements in Florida?
THE DEFENDANT: First degree murder is when you plan to kill the person.
THE COURT: What is the voir dire examination of jurors?
THE DEFENDANT: The what? Pardon me?
THE COURT: What is the voir dire examination of jurors?
THE DEFENDANT: I don’t understand.
THE COURT: Very well. Tell me, Mr. Goode, what is the purpose of opening and closing argument in a jury trial?
THE DEFENDANT: To get the Court to understand everything.
THE COURT: Who has the order of burden of proof in a criminal trial?
THE DEFENDANT: I don’t understand.
THE COURT: What is the method of presentation of testimony in a criminal trial?
THE DEFENDANT: I don’t understand.
THE COURT: Then you need a lawyer to explain these things to you.
THE DEFENDANT: But the point is, I do not want to have a lawyer, to have that take place, as far as representing me at the trial, especially a lawyer like Mr. Smith, who has not been truthful with me whatsoever at all.”

The court then discharged the privately retained counsel and relieved him of all further responsibility except to fully advise and assist court appointed counsel in turning over the evidence, files, information, theories of defense and anything else that would be of assistance to the court appointed counsel.

Defendant says that every criminal defendant has the right to the assistance of counsel or the right to represent himself. However, a mixture of partially appearing for himself and partially being represented by counsel is not a constitutional right and was error.

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that the Sixth Amendment to the United States Constitution required states to afford the accused the right of self-representation. Florida has historically recognized the right of a defendant in a criminal case to represent himself. See Deeb v. State, 131 Fla. 362, 179 So. 894 (1937); State v. Capetta, 216 So.2d 749 (Fla.1968); Cook v. State, 167 So.2d 793 (Fla. 1st DCA 1964).

The record in this case adequately shows that the defendant Goode knowingly waived his right to counsel. The court fully informed the accused of the perils of self-representation. In Faretta v. California, the U. S. Supreme Court vacated a judgment of the state court because defendant was not allowed to represent himself. The opinion contains the following:

. . Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S., [269] at 279, 63 S.Ct. [236] at 241 . . .
Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the ‘ground rules’ of trial procedure. We need make no assessment of how well or poorly Faretta-had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” Faretta v. California, supra, at 835, 95 S.Ct. at 2541 (footnotes omitted).

Defendant Goode unequivocally declared that he wanted to represent himself. The record shows that he was literate, competent, and understanding. He was voluntarily exercising his informed free will even though the judge warned him that it was a mistake not to accept representation. Nevertheless, in an effort to further protect his rights, the court furnished counsel for the purpose of giving legal advice when needed. Defendant did not object to this form of self-representation with the assistance of appointed counsel. The record clearly reflects that defendant was allowed self-representation and the record does not reflect that counsel was forced upon an unwilling defendant. In fact, defendant knowingly consented to the appearance of counsel and, in fact, sought legal advice from him during the course of the trial.

During his testimony at trial, defendant admitted his guilt. A verdict of guilty was returned. At the sentence hearing, the psychiatrists, Dr. Than, Dr. Wald and Dr. Haber again testified as to the general mental condition of the defendant. Their previous testimony had been before the judge and related to the competency of defendant at the time of trial. The defendant also testified and stated that the deceased went with him voluntarily. He stated “I am extremely proud of myself knowing that I” murdered the victim “for the fun of it, so to say”. “Also, I had absolutely no remorse whatsoever” toward the victim.

The jury recommended the death sentence despite their being instructed to consider defendant’s mental state as a mitigating circumstance.

Even though defendant admits his guilt and even though he expressed a desire to be executed, this Court must, nevertheless, examine the record to be sure that the imposition of the death sentence complies with all of the standards set by the Constitution, the Legislature and the courts. The questions raised by the attorney to assist defendant on appeal have been considered and are without merit.

The request of the defendant to dismiss the appeal is denied. The Legislature has imposed a duty upon this Court to examine every case in which the death sentence is imposed. Section 921.141(4), Florida Statutes (1975).

In Alford v. State, 307 So.2d 433 (Fla.1975), the body of the thirteen year old female victim was discovered lying on a trash pile. She had been raped, both vaginally and rectally, was blindfolded, and shot five or six times. The defendant, a 27 year old male, had no significant record of prior criminal activity. The death sentence was held appropriate.

In the ease sub judice, the victim was ten years old. The defendant Goode was 22 years of age. The defendant’s description of the manner in which death was inflicted proved beyond doubt that the crime was unnecessarily tortuous to the victim. -Both the jury and the judge considered the question of whether the mental capacity of the defendant was “substantially impaired” so that he could not appreciate the criminality of his conduct or conform his conduct to the requirements of law. Section 921.141(5)(f), Florida Statutes (1975). Comparing the aggravating and mitigating circumstances with those shown in other capital cases and weighing the evidence in the case sub judi-ce, our judgment is that death is the proper sentence.

We have carefully reviewed the evidence and procedure to determine whether the interest of justice requires a new trial. No reversible error is made to appear and the evidence does not reveal that the ends of justice require that a new trial be awarded. The judgment and sentence of the trial court in this cause is in accordance with the justice of this cause. Accordingly, the judgment and sentence of the circuit court are hereby affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.


author: ALDERMAN, Justice.

text:
    RICHARDS DEPARTMENT STORE et al., Petitioners, v. Lee DONIN et al., Respondents.
    No. 52339.
    Supreme Court of Florida.
    Oct. 5, 1978.
    Rehearing Denied Dec. 8, 1978.
    H. George Kagan of Miller & Hodges, Coral Gables, for petitioners.
    Israel Abrams, North Miami Beach, for respondents.
    Robert H. Gregory, Coral Gables, Ramon Malea of Pyszka, Kessler, Adams & Solomon, Miami, and Steven A. Rissman of Earle, Cooper & Rissman, Orlando, for ami-ci curiae.
   ALDERMAN, Justice.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission affirming the order of the Judge of Industrial Claims finding claimant’s heart attack to be the result of unusual stress causally related to employment. We determine that the Industrial Relations Commission misapplied the doctrine of Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), in determining that claimant’s heart attack was compensable and thereby departed from the essential requirements of the law.

Claimant, a forty-five-year-old merchandise buyer, had previously suffered a myocardial infarction in 1971 for which he was hospitalized and out of work for three months. In August .of 1974, he was employed by Richards Department Store to set up a housewares department. Shortly, thereafter, he was assigned the responsibility of being the buyer for the housewares, patio furniture, lawn and garden, and budget furniture departments of the store. At this time he had an assistant. Although not a part of his customary duties, in November, 1974, he assisted his supervisor and other buyers in the preparation of a six-month inventory plan and also assisted in preparation of a three-month advertising budget. In the middle of December, 1974, he was given the added responsibilities of buying for the small appliances department and of creating a popular life style concept shop. During this time, his assistant quit, and he was not provided with a new assistant until February 3, 1975. In January, 1975, he covered in one and a half days a Chicago housewares market that normally would have required a week. Upon returning from Chicago, in addition to his regular duties, he had to supervise a warehouse sale. Because claimant’s departments were not producing the volume of sales expected, he was threatened with the loss of his job. In early February, 1975, he began to suffer severe headaches, nausea, shortness of breath and vomiting of blood. By the latter part of February, he was suffering with retrosternal chest pains, sweating and pain radiating to his left shoulder and left arm. He was hospitalized on February 24, 1975, and was diagnosed as having sustained a subendocardial-myocar-dial infarction.

The Judge of Industrial Claims decided that claimant had suffered a compensable heart attack since the heart attack was the result of unusual stress causally related to his employment and since “the activity of claimant’s employment was not routine.”

Finding no reversible error to have been demonstrated, the Industrial Relations Commission affirmed.

The employer maintains that the decision below is contrary to the holding of this Court in Victor Wine. It points out that the Judge of Industrial Claims made no finding of a specifically identifiable stress or effort. It claims that unusual stress or strain is not that which arises out of work regularly performed by the employee. Cf. Friendly Frost Used Appliances v. Reiser, 152 So.2d 721 (Fla.1963).

On the other hand, the claimant suggests that this case presents a novel situation upon which no Florida decision is directly on point. His theory of compensability is founded upon the fact that his myocardial infarction was precipitated by a series of unusual, non-routine, work-related, emotionally traumatic events and circumstances compressed within a specific period of time, rather than a single isolated event.

We find, consistent with our pronouncement in Victor Wine and its progeny, that, for a heart attack occurring during the course of employment to be compensa-ble, it must have been caused by the unusual strain or overexertion of a specifically identifiable effort not routine to the work the employee was accustomed to performing.

In determining whether a particular activity is not routine, we must look to the duty performed by the employee himself rather than by his fellow workers. Yates v. Gabrio Electric Co., 167 So.2d 565 (Fla.1964).

“Injury” is defined by Section 440.02(6), Florida Statutes, to mean “. . . personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. . . ” Section 440.02(18) describes “accident” to mean “. . . only an unexpected or unusual event or result, happening suddenly. . ” In Victor Wine, we explained the meaning of “accident,” insofar as it relates to the inclusion of the term “result” in its definition, as follows:

It is therefore settled beyond question in this state that an internal failure, such as a strained muscle, ruptured disc, “snapped” knee-cap, and the like, brought about by exertion in the performance of the regular or usual duties of the employment, may be found to be an injury “by accident,” without the necessity of showing that such injury was preceded by some incident, such as a slip, fall or blow.

The rule regarding heart attacks caused by strain or overexertion is stated in Victor Wine as follows:

When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-existing non-disabling heart disease, said injuries are com-pensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.
Thus, if there is competent substantial medical testimony, consistent with logic and reason, that the strain and exertion of a specifically identified effort, over and above the routine of the job, combined with a pre-existing non-disabling heart disease to produce death or disability sooner than it would otherwise have occurred from the normal progression of the disease, the employee has a right to some compensation. (Emphasis supplied.)

Since the judge did not find that the strain and exertion of a specifically identified effort, over and above the routine of the job caused the heart attack and since, from the record, we do not find that such occurred, we grant the petition for writ of certiorari and quash the order of the Industrial Relations Commission with directions that it quash the order of the Judge of Industrial Claims and dismiss the claim.

It is so ordered.

ENGLAND, C. J., and BOYD and SUND-BERG, JJ., concur.

OVERTON and HATCHETT, JJ., dissent.


author: DOWNEY, Chief Judge. DOWNEY, Chief Judge.

text:
    STATE of Florida DEPT. OF TRANSPORTATION, Appellant, v. Anthony BROMANTE, as Personal Representative of Keith Edward Bromante, Deceased, etc., et al., Appellees.
    No. 77-2516.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    As Modified On Rehearing Jan. 3, 1979.
    H. Reynolds Sampson, Gen. Counsel, Alan E. DeSerio, Margaret-Ray Kemper and James W. Anderson, Tallahassee, for appellant.
    Gerald M. Walsh & Associates, P. A., Fort Lauderdale, for appellee-City of Plantation.
    Fleming, O’Bryan & Fleming, and Clifford B. Selwood, Jr., of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Fort Lauderdale, for appellees.
   DOWNEY, Chief Judge.

Appellee sued appellant, The Florida Department of Transportation, and others for wrongful death arising out of design and maintenance of a highway intersection in Broward County, Florida. The trial court denied appellant’s motion to dismiss the complaint against it based upon improper venue. That order is the subject of this appeal.

We reverse upon authority of Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977), and remand the case with directions to transfer the cause to the Circuit Court of Leon County.

REVERSED AND REMANDED WITH DIRECTIONS.

CROSS and ANSTEAD, JJ., concur.

ON PETITION FOR REHEARING

DOWNEY, Chief Judge.

Bromante sued the State of Florida Department of Transportation, Broward County and the City of Plantation for wrongful death arising out of the alleged negligent design, construction and maintenance of a street intersection located in the City of Plantation in Broward County. The trial court denied the Department of Transportation’s motion to dismiss and we reversed by opinion filed September 13, 1975, and directed that, on remand, the cause be transferred to Leon County upon authority of Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).

On Petition for Rehearing our attention has been directed to the incongruity of transferring the cause to Leon County, which results in requiring other State Agencies (Broward County and the City of Plantation) to defend litigation away from the seat of their official residence. We have been referred to only two cases which appear to be closely analogous; in both the court held that the case could proceed in the venue laid by the plaintiff as to all defendants except the State Agency as to which the venue was improper. The case as to that defendant was ordered transferred to the proper venue. This, of course, necessitates the plaintiff’s maintaining two suits instead of one, which is certainly not ideal but the remedy perhaps lies with the Legislature.

Accordingly, upon authority of Walker and Southern Gulf Utilities, supra, we grant the Petition for Rehearing and modify our previous opinion by directing that upon remand this cause as it affects only the State of Florida Department of Transportation be transferred to Leon County. As to the other defendants the cause shall proceed in Broward County.

CROSS and ANSTEAD, JJ., concur.

      . City of Boca Raton v. Walker, 354 So.2d 440 (Fla.3rd DCA 1978); Southern Gulf Utilities v. Mayo, 239 So.2d 146 (Fla.1st DCA 1969).