text:
    Joel Jefferson TODD v. STATE.
    8 Div. 474.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Charles A. Dauphin of Baxley, Beck & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was arrested for the July 4, 1980, unlawful sale of prohibited beverages contrary to § 28-4-20, Code of Alabama 1975. On August 29, 1980, he was found guilty in District Court. He appealed to Circuit Court for trial de novo. On December 10, 1980, appellant was tried and convicted with the jury assessing him a $200.00 fine. Under § 28-4-21, Code of Alabama 1975, the trial court imposed a six months’ suspended sentence. Throughout the trial and appellate proceedings appellant has been represented by counsel of his choice.

Appellant raises no issue on appeal as to the sufficiency of the State’s evidence. Nevertheless, a thorough review of the State’s evidence leaves no doubt that it presented a prima facie case of illegally selling prohibited beverages and was properly submitted to the jury for its consideration. Therefore, only a narration of the facts is necessary for disposition of this cause.

Franklin County Deputy Sheriff Randy Jones testified that, around 12:05 a. m., on July 4, 1980, he and his brother, Alan, drove in his car to appellant’s residence in Franklin County. His brother exited the car and went to the front door. He subsequently returned carrying a sack containing a six-pack of beer. Later that evening they went to his brother’s house where the beer was marked for identification and stored.

Franklin County Deputy Sheriff Alan Jones testified that, during the early morning hours of July 4, 1980, he went to appellant’s residence with his brother. He knocked on the door and appellant answered, asking what he needed, to which Deputy Jones replied, a six-pack of beer if he had it. Appellant, leaving the door open, affirmatively responded, turned to a nearby cooler, removed a six-pack of beer, placed it in a sack, and returned. He gave the beer to Deputy Jones who paid appellant and left. Later that evening, the beer was marked for identification and stored in his house. On July 21, 1980, it was moved to their office in the Franklin County Jail. Deputy Jones stated that only he had keys to both locks on their office door. The beer remained in the office until removed for the instant trial. Deputy Jones identified the six-pack of beer as the one sold to him by appellant. He identified its contents as beer. The beer was admitted into evidence.

Appellant contends that both deputies were without legal authority to arrest him as they had not complied with § 36-4-5, Code of Alabama 1975. A stipulation of facts was read into the record by appellant’s counsel, which is the same as that in Malone v. State, Ala.Cr.App., 406 So.2d 1060, (1981).

Appellant’s contention has been answered adverse to his position in Malone, supra, decided this day.

Appellant raises no other issues on appeal. A thorough review of the record find nothing prejudicial to his substantial rights. The judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex Parte: Bobby Gene MALONE, Delbert Johnson and Joel Jefferson Todd. (Re: Bobby Gene Malone, Delbert Johnson and Joel Jefferson Todd v. State of Alabama).
    81-84.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Robert TURNER v. STATE.
    8 Div. 513.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Robert S. Thomas of Thomas & Proctor, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted of murdering Louise Jurie Schultz by drowning her in violation of Section 13A-6-2, Code of Alabama. Sentence was fixed at life imprisonment. Appellant has at all times during this cause been represented by court-appointed counsel and has been furnished with a free transcript on this appeal. Appellant pled not guilty at arraignment, but the State’s evidence presented at trial supports the jury verdict beyond any reasonable doubt.

Twenty-three witnesses were called by the State. While we will not narrate the testimony of each witness, the State’s evidence revealed that, between 6:00 and 7:00 p. m., on July 9, 1980, Mrs. Schultz was abducted from the Majik Market where she worked in Chattanooga, Tennessee, by appellant and Earl Allen Bailey, after the two men had robbed the store. Appellant and Bailey drove Mrs. Schultz across the Alabama State Line to a strip-mining pit in Jackson County where they drowned her. Mrs. Schultz was last seen alive with appellant at the mining pit between 7:00 and 7:30 p. m. the night she was abducted. A State witness, unaware of Mrs. Schultz’s situation at the time, testified that she “acted kind of scared, but she never said anything.” Mrs. Schultz’s body was discovered on July 11, 1980. There was evidence of a struggle at the murder scene. The mining pit was approximately a thirty minute drive from the Majik Market in Chattanooga, Tennessee.

Appellant first argues that juror Marcus or Mark Anderson did not truthfully answer certain voir dire questions and that, because of this, he should be given a new trial. Testimony was taken on this issue at appellant’s March 18, 1981, hearing on his motion for new trial. Appellant was represented by different appointed counsel at the hearing (counsel on appeal) that he was at trial. Appellant’s trial counsel testified “from memory” that he asked prospective jurors two questions about the weight they would give to the testimony of a police officer.

“I first asked the venire if there were any members of the venire who would accord or give such weight to the testimony of a law enforcement officer — Federal, State, or local — as to be unduly persuaded or impressed. I believe I use the word ‘impressed,’ and there was no response to that question.
“So I followed it with another question in which I asked if there were any member of the venire who felt that the testimony of a law enforcement officer — Federal, State, or local — presented in the case would render them unable to give a fair and impartial verdict at the conclusion of the trial.”

Appellant’s trial counsel stated that there was no response to either question and that juror Anderson did serve on appellant’s jury.

Appellant’s trial counsel testified that he later had occasion to be present during the voir dire examination of the very next case tried after appellant had been convicted and that juror Anderson was, again, present on the jury venire. Appellant’s trial counsel stated that, during this time, he heard another attorney ask the venire “whether there were any member thereof who would give credence to or weight to the testimony of a police officer because of their experience in investigating facts so as to be unduly influenced or to be unable to render a fair and impartial verdict on the matter for trial.” Appellant’s trial counsel testified that juror Anderson responded affirmatively to the question. Juror Anderson did not assign a reason or cause for his response and he was not further interrogated.

The foregoing facts are all that is contained in the record concerning what voir dire questions were asked and what responses, if any, were made by juror Anderson. These skimpy facts are clearly insufficient to constitute reversible error. Plainly, it is the appellant’s burden to see that the record is preserved. Substantial error is not presumed.

Even assuming appellant properly preserved the record, which he did not, in none of the cases to which he refers us, Little v. State, Ala.Cr.App., 339 So.2d 1071; Wallis v. State, 38 Ala.App. 359, 84 So.2d 788 or Leach v. State, 31 Ala.App. 390, 18 So.2d 285, was the questioned juror challenged “ex post facto” because of his response at a subsequent trial of a different defendant. In all of the cases cited above the complained of juror remained silent so as to conceal information at the very trial of the accused.

There is no evidence whatsoever that jur- or Anderson’s silence during the voir dire examination preceding appellant’s trial was the least bit untruthful or was an attempt to conceal anything. Juror Anderson’s regard for the testimony of law enforcement officers may well have changed after sitting through appellant’s trial.

To say that appellant “might have been prejudiced” based on juror Anderson’s response at a subsequent trial of a different defendant would be sheer speculation and folly.

Appellant next contends that State’s exhibits 9 and 11, the deceased’s dental x-rays which were used for comparison purposes in identifying the deceased, were erroneously admitted over improper predicate objections. There is no merit to this contention.

Dr. William K. Warren testified that he had been the deceased’s dentist and that exhibit 9 was an x-ray of the deceased’s teeth taken in his office on October 6, 1978. Dr. Warren testified that exhibit 11 was an x-ray “completed for Jerri Schultz by my friend, Bill — Dr. Shelton from the endodonic group” to whom he had referred her for service on a particular tooth. Dr. Warren had received exhibit 11 from Dr. Shelton through the mail. Dr. Warren stated that exhibits 9 and 11 were kept as part of his records in the deceased’s file. Dr. Warren testified that he delivered the exhibits to the FBI and that the exhibits were in the same condition as the last time he saw them in his office.

Dr. Mario Martínez stated that he received exhibits 9 and 11 from the FBI and that he made a comparison of the x-rays with teeth of the deceased. “I found out that the teeth I was examining were identical to the dental records that the police gave me.”

In the record appellant objected to exhibit 9 on the basis no proper predicate was laid to show that Dr. Warren knew that the x-rays “were taken of the person whom they were associated (sic) or the predicate laid that was necessary — .” Appellant objected to exhibit 11 because “those are matters received through the mail by Dr. Warren and not shown to have any connection with his testimony or anything that he did for Mrs. Schultz.” These objections are confusing and can form no basis for the trial court being put in error for overruling them. The trial court must be apprised of the basis for objection with sufficient particularity to allow an informed decision to be made on the particular legal issue involved. Blend v. State, Ala.Cr.App., 395 So.2d 164.

While objections cannot be raised for the first time on appeal, Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958), it appears that Ala. Code § 12-21 — 43 (1975), dealing with the admission of business records, was complied with fully. Dr. Martinez certainly used exhibit 11 in making his comparisons. In short, appellant’s objections to the admission of these exhibits are groundless.

Appellant alleges as his final argument that the State did not carry its burden of proof in proving the death of victim named in the indictment. The indictment reads “Louise Jurie Schultz.” The victim was referred to in the record variously as Jerri Schultz, Louise Jerri Schultz, Jerri Louise Schultz and Louise Schultz. Without a doubt the State proved that the victim testified about throughout the trial was the same person named in appellant’s indictment.

Variance in the middle name is immaterial. James v. State, 246 Ala. 617, 21 So.2d 847 and authorities cited therein. A mere inaccuracy, where the identity of the person named in the indictment with the one named in the evidence is established, is not fatal under the modern rule. House v. State, Ala., 380 So.2d 940, 943. Furthermore, there was no objection, plea, motion or demurrer filed contending that a fatal variance existed because of the misspelling of the victim’s name in the indictment. Holloman v. State, Ala.Cr.App., 349 So.2d 131. Generally, a demurrer is necessary to raise defects in an indictment. Edwards v. State, Ala.Cr.App., 379 So.2d 336, cert. denied, 379 So.2d 339 (Ala.1980).

We have examined each issue raised in appellant’s brief. In addition, we have searched the entire record and find no error. In our opinion this appeal is wholly without merit. While appellant’s first argument may be novel, it is at the same time unfounded.

The judgment of conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.

      . The victim’s name was apparently Louise Jerri Schultz. This variance will be discussed later in this opinion.


text:
    Ex parte Robert TURNER. (Re Robert Turner v. State of Alabama).
    81-65.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    George B. LUCAS v. STATE.
    3 Div. 319.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    John T. Kirk of Kirk & Hutchinson and Carroll, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Montgomery County Grand Jury for violating § 32-8-12(4) Code of Alabama 1975. On August 19, 1980, the jury found him guilty as charged. The trial court subsequently sentenced appellant to two years’ imprisonment but suspended all but two months of it. It also assessed appellant a $5,000.00 fine. Throughout the trial and appellate proceedings, appellant has been represented by counsel of his choice.

On appeal, appellant challenges the sufficiency of the State’s evidence contending that it failed to prove any false or fictitious act or any fraudulent intent.

Omitting the formal parts, the indictment alleges that appellant:

“[D]id use a false or fictitious name or address, or make a material false statement, or fail to disclose a security interest, or conceal any other material fact in an application for a certificate of title, to-wit: the said George B. Lucas, alias George Lucas did apply for a certificate of title for a 1977 Mercedes Benz 450 SL automobile, a better description of which is unknown to the Grand Jury, and did give a fictitious bill of sale for the said 1977 Mercedes Benz 450 SL automobile, and/or a fictitious address for himself contrary to the provisions of Section 32-8-12, Code of Alabama, 1975, ...”

On October 12, 1978, appellant filed an application for a certificate of title with the title division of the Alabama Department of Revenue in Montgomery. Appellant was assisted in making his application by title and lien examiner Marty Shaw.

Ms. Shaw testified that she remembered assisting appellant on October 12. She inspected appellant’s vehicle, a 1977 red Mercedes Benz, verified the VIN, 10704412036022, on the car with that on the bill of sale presented by appellant, checked the number of cylinders, and, afterwards processed the application for title.

Appellant’s bill of sale was a German used car sales contract. An English translation was prepared at the direction of the State. Appellant stipulated that the translation accurately reflected the contents of the original. The translation was properly admitted into evidence.

Ms. Shaw testified that the bill of sale was dated May 3, 1978, and indicated that appellant had purchased the car from Mr. Otto Bendeer. Ms. Shaw testified that the information on the application other than that verified independently by her was obtained either from the bill of sale or from appellant.

Ms. Shaw stated that appellant gave as his address Highway 278, Box 954, Cullman, Alabama. She stated that a certificate of title would not be issued to anyone other than a legal resident of the State. Ms. Shaw testified that a post office box was an unacceptable address because “. . . no one lives in a Post Office Box ... we are required to have a street address.”

Ms. Shaw could not remember if appellant and she discussed the odometer reading of the car. The October 12, 1978, application reflected a reading of 696 miles while the May 3, 1978, bill of sale indicated a reading of 2,936 miles. Ms. Shaw stated that she could have made an error in recording the mileage of the car at the time the application was made.

On cross-examination, Ms. Shaw verified the accuracy of a copy of appellant’s application for title and was certain that her testimony reflected the October 12 conversation although she did not remember every detail of it.

Ms. Shaw could not explain why appellant’s certificate of title was issued on October 6 when the application was made on October 12 other than the possibility that it was pre-dated. However, she testified that a title was never issued prior to an application being made. The trial court admitted appellant’s copy of his certificate of title into evidence.

On December 12, 1978, Ms. Shaw corresponded with Bank of America of California concerning a security interest it held in appellant’s car. The bank had filed an application to record its security interest, dated October 20, 1978, but had failed to sign it, have appellant sign it, and pay the filing fee. The amount of the lien was not determined. On March 2, 1979, a certificate of title was issued to appellant which evidenced the recording of the security interest. The trial court admitted appellant’s copy of the document into evidence. Ms. Shaw was uncertain whether she asked appellant if there was an outstanding loan on the car at the time he made application for title, but stated that in every application she had processed she inquired about any outstanding loan. The application did not indicate any outstanding security interest in the car. On October 12, 1978, Ms. Shaw was unaware of the Bank of America security interest or of any security interest held by a Florida bank. Ms. Shaw testified that appellant told her that he had difficulty reading printed forms. She stated that appellant told her that he “. .. had a home in Miami.”

Mr. Terry Lane testified that he was employed as supervisor of the title division of the Alabama Department of Revenue and custodian of all records kept by the title division. He testified that copies of appellant’s application for certificate of title and bill of sale, and Bank of America’s application to record its security interest and its rejection letter were kept under his care, custody, and in the normal and everyday course of business. The records were properly admitted into evidence. Mr. Lane could not remember whether his office had mailed any documents to appellant in Miami.

Mr. Robert Podsiadlo testified that he was an automobile leasing agent for Chris Leasing Company in Decatur, Georgia. At the direction of his general manager, Mr. Podsiadlo was entrusted with certain records concerning appellant’s Mercedes and authorized to bring them to court at the request of the State.

Mr. Podsiadlo produced a bill of sale between Chris Leasing and a Jacksonville, Florida, car dealership indicating that Chris leasing had purchased the Mercedes on April 13, 1977. He also produced a bill of sale between Chris Leasing and appellant indicating that appellant had bought the Mercedes from it on July 10, 1978. In addition, an odometer mileage statement, dated July 12, 1978, certified the car’s mileage to be 4,268 miles. The records were kept by Chris Leasing in its ordinary course of business. They were properly admitted into evidence.

During its ownership of the car, Chris Leasing Company leased the car to Mr. Roland A. Norton, president of Deep South Auto Body, Inc., in Perrine, Florida. The terms of the lease ran from April 5,1977, to April 5, 1981. However, Mr. Podsiadlo testified that, from April, 1977, to July, 1978, Chris Leasing Company owned the car. The car was titled in Florida. The lease was admitted into evidence.

On cross-examination, Mr. Podsiadlo testified that Mr. Norton would have had possession of the Mercedes in May, 1978, and knew that he possessed it for the first five months in 1978. He stated that none of their lessees had the right to assign his interest in the rental lease to another. His office had no records of any assignment of the rental lease of Mr. Norton to Otto Ben-deer.

Mr. Harlin Moore, assistant bureau chief of the Bureau of Title and Services in the Division of Motor Vehicles of the Florida Department of Highway Safety, testified that he was custodian of records pertaining to vehicles titled in Florida. Mr. Moore identified a series of records pertaining to appellant’s Mercedes.

Mr. Moore testified that, on September 1, 1977, the Mercedes was first titled by Chris Leasing. The records reflect that title remained in Chris Leasing until July 10,1978, when the car was sold to appellant. Appellant was then issued a certificate of title on September 26, 1978. His title reflects a Miami address and a security interest with Sun Bank of Miami. The loan was dated July 10, 1978, and stamped paid on November 8, 1978.

Mr. Moore had no records of appellant purchasing the car from Otto Bendeer or any rental agreement between Chris Leasing and Roland Norton. The records from which Mr. Moore testified were properly introduced into evidence.

A stipulation of facts was entered by appellant when he agreed that the testimony of Mr. Carlos Gobel of Sun Bank of Miami would reveal the following: That appellant thrice borrowed money from the bank using the Mercedes as collateral; that the dates of the loans and their satisfaction were July 10, 1978, and October 31, 1978; November 17, 1978, May 1, 1979; April 29, 1979, and December 12, 1979, respectively; that appellant paid each loan; and that the bank records did not reflect any loan using the car as collateral from Bank of America. The bank records supporting the stipulation were admitted into evidence.

Alabama Bureau of Investigation Investigator B. A. Richardson testified that he was involved in the investigation of appellant. Investigator Richardson went to Cullman to determine whether appellant’s address as listed on his application for and certificate of title existed. He found Highway 278, but no residence with box number 954. Investigator Richardson discovered a Cullman Post Office Box 954 registered to appellant. He did not check any county records to determine whether appellant owned property in Cullman County. Investigator Richardson’s testimony concluded the presentation of the State’s evidence.

Appellant did not take the witness stand or present any evidence to contradict that of the State’s witnesses.

Taken in its most favorable light, the State’s evidence established that: (1) When appellant applied for a certificate of title for the Mercedes on October 12, 1978, he produced a bill of sale dated May 3, 1978, although he did not purchase the car from Chris Leasing until July 10, 1978; (2) Chris Leasing initially bought the car on April 13, 1977, had it titled in Florida, and retained ownership until it sold the car to appellant; (3) On July 10, 1978, appellant had borrowed money from Sun Bank of Miami, using the car as collateral; (4) Sun Bank held a security interest in the car until the loan was paid in full on October 31, 1978, nineteen days after appellant had made application for title in Alabama; (5) On his title application appellant gave as his resident address Highway 278, Box 954, Cull-man, when no such address existed; (6) No evidence of appellant’s resident address as of October 12, 1978, was introduced; (7) On October 12, 1978, the title division was unaware of appellant’s current Florida title, issued September 26, 1978, and the outstanding security interest in his car.

Statutes relating to certificates of title to motor vehicles are generally enacted, inter alia, for the protection of the owners of the motor vehicles, of those holding liens thereon, of innocent purchasers for value, and of the general public. They are enacted to provide more accuracy in, and security of, titles to motor vehicles, as between parties dealing therein, to protect the owners of motor vehicles and those holding liens thereon against fraud, and to prevent thefts and traffic in stolen motor vehicles. 60 C.J.S. Motor Vehicles § 42(1) (1969).

Alabama is one of ten states to have adopted the Uniform Motor Vehicle Certificate of Title and Anti-Theft Act. 11 U.L.A. 106 (Supp.1981). However, our search of those jurisdictions has not revealed a case in point with the instant case.

A careful review of the uncontra-dicted evidence of the State leads us to the inescapable conclusion that it clearly established a prima facie violation of Section 32-8-12(4). Fraudulent intent is a question of fact to be resolved by the jury. Stokes v. State, Ala.Cr.App., 373 So.2d 1211, cert. denied, Ala., 373 So.2d 1218. The trial court properly submitted the case to the jury for its consideration. We find no error in its ruling denying appellant’s motion to exclude.

We have carefully searched the record for errors injurious to the substantial rights of the appellant and have found none. The judgment of conviction is hereby due to be affirmed.

AFFIRMED.

All the Judges concur, except BOOK-OUT, J., who concurs in the result.


author: TYSON, Judge.

text:
    John SCOTT v. STATE of Alabama.
    3 Div. 423.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Oct. 27, 1981.
    J. L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.

      Charles A. Graddick, Atty. Gen. and J. Thomas Leverett, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

John Scott was indicted for the first degree murder of Sammie Lee Bailey “by shooting him with a pistol.” The jury found the appellant guilty of second degree murder, for which he was sentenced to 10 years’ imprisonment.

Appellant’s motions to exclude the state’s evidence, to direct a verdict in his favor, and for a new trial were duly denied, hence this appeal.

On November 5, 1979, the appellant shot and killed Sammie Lee Bailey. The state’s evidence revealed that the victim was unarmed and was sitting in his car when the fatal shot was fired. The shooting was apparently the result of a brief argument between the appellant and the victim concerning the victim’s relationship with appellant’s wife. One witness testified that appellant, after arguing and struggling with the victim, walked back to his truck, returned with his .25 caliber pistol, and shot the victim, who remained seated in his car.

The appellant testified that he shot in self-defense. He alleged that the victim was also armed with a pistol, which he had pointed at the appellant. Appellant claimed that he consequently shot at the victim, intending to shoot him in the arm.

However, the victim’s alleged weapon was never found, and the appellant did not present any evidence during the trial to explain its disappearance or to corroborate its existence. In fact, but for the appellant’s testimony, there was nothing presented to indicate that the victim was armed.

Appellant’s sole contention on appeal is that the jury’s verdict was contrary to the weight of the evidence, which appellant insists raised a “reasonable doubt” as to his guilt via the self-defense issue.

We recently discussed this same issue in the case of Townsend v. State, (1981), 402 So.2d 1097 (Ala.Cr.App.1981). There, as here, the only evidence of self-defense was the testimony of the appellant. In such a cause, where the state has presented a pri-ma facie case, the issue is not the “sufficiency of the evidence” but rather the “weight and credibility” to be given an appellant’s testimony in light of the evidence to the contrary. This “weight and credibility” determination is properly left to the jury and will not be disturbed on our review. Townsend v. State, supra, and cases therein.

We find the jury’s verdict to be supported by the evidence and this cause is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Robert Charles HARRIS v. STATE.
    6 Div. 375.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.

      James G. Stevens, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

First degree murder; life imprisonment.

Appellant was indicted and convicted for the November 27, 1979 murder of Tony Smith Rutledge by shooting him with a pistol.

Eyewitness testimony in this case, which includes testimony by the appellant, demonstrates without dispute that at approximately 4:00 P. M. on November 27, 1979 near the Bates Service Station at the intersection of Tarrant-Huffman Road and 12th Court North in Jefferson County, appellant fired his .357 magnum revolver three times, killing Tony Smith Rutledge and paralyzing Lynn Eric Dye. Just prior to the shooting there had been an exchange of words between appellant and Rutledge and Dye. There was also evidence that either Rutledge or Dye had “snatched” appellant around as he tried to walk away from the verbal confrontation.

Earlier, around 11:00 a. m. that morning, Rutledge, Dye, Rutledge’s brother Jeffery “Crow” and Ronald “Twin” Smith had “kidnapped” appellant at gunpoint in order to find out where “Crow’s” girlfriend, Delores Suggs, was. Crow fired a pistol at appellant’s feet, slapped him and threatened to kill him if appellant didn’t tell him where Ms. Suggs could be found. After the “kidnappers” had driven appellant around for two and one half hours and after drinking a half gallon of wine while “looking” for Ms. Suggs, appellant was released unharmed at Bates Service Station. Appellant then drove home and retrieved his pistol for “protection.” Appellant returned to the service station and his confrontation with the deceased and Dye occurred shortly thereafter. Crow and Smith were not present at the time of the shooting. Neither the deceased nor Dye were armed.

During the State’s cross examination of appellant, appellant testified, without objection, that he remembered making a statement “about what happened” to two Birmingham Police Officers after being advised of his rights on his way to jail at the time of his arrest. Appellant stated that he was scared and in shock at the time he made the statement. He did not indicate that he had been threatened or coerced in any manner.

Sergeant George T. Grubbs of the Birmingham Police Department testified as the State’s only rebuttal witness that, in fact, the appellant had made such a statement admitting his complicity in the crime. Through Sergeant Grubbs’s testimony the requisite Miranda and voluntariness predicates were fully established. Appellant indicated that he understood his rights before making his confession.

Appellant’s confession was then read into evidence by Sergeant Grubbs. The substance of the statement did not add anything new to the evidence in the case which had already been admitted without objection.

At no time during the appellant’s or Sergeant Grubbs’s testimony did the appellant request a voir dire examination to determine the voluntariness of his confession.

On the question of the voluntariness of a confession, the burden is not on the trial court to withdraw the jury ex mero motu, hear evidence on the question of the voluntariness of a confession outside the jury’s presence, and expressly rule. State v. Wilbanks, 289 Ala. 166, 169, 266 So.2d 619 (1969); Carroll v. State, 370 So.2d 749, 757 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979). By its rulings on the objections and the admission of the confession into evidence, the trial court had determined its voluntariness. Carroll, supra; Cork v. State, 50 Ala.App. 670, 675, 282 So.2d 107 (1973).

Moreover, it is well settled that it is not error to allow facts to be shown over objection when they have already been admitted in evidence without objection. Carroll, supra, 370 So.2d, at 754 and cases cited therein.

We have searched the record for error and have found none; therefore, the judgment and conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Dudley CARTER v. STATE.
    8 Div. 539.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Richard A. Kempaner, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for arson in the first degree. Sentence was twenty years’ imprisonment. On appeal the defendant argues that in-court identification was tainted by an impermissibly suggestive out-of-court identification procedure.

State’s witness Michael Donders testified that he saw the defendant leave the victim’s house immediately after he saw flames burst from the rear of the house. Shortly thereafter Donders was shown four mug shots by the investigating officers but was unable to identify the defendant’s photograph.

The next morning Donders was shown a single photograph depicting three men and four women in a casual family type setting. Donders immediately identified one of the men in this picture as the person he saw leaving the scene of the fire.

This is not an inherently suggestive photographic showup procedure because the single family photograph depicted other males besides the defendant and because the defendant’s appearance in the family photograph is significantly different from his appearance in the mug shot. Compare Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979). Yet, even if it be assumed that the photographic identification was suggestive, an examination of the five factors listed in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), for determining whether an independent basis exists for the in-court identification leads us to the conclusion that the trial judge could reasonably have determined that the identification was reliable and did have an independent basis. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.), cert. denied, 390 So.2d 1126 (Ala.1980).

The fact that the witness was unable to make an identification of the defendant from the photographic line-up conducted the night of the crime does not require the exclusion of his in-court identification, but rather goes to the weight and credibility of his testimony. Williams v. State, 348 So.2d 1101 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1105 (Ala.1977); Thomas v. State, 332 So.2d 168 (Ala.Cr.App.), cert. denied, 332 So.2d 171 (Ala.1976).

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Steve Douglas BOWEN v. STATE.
    1 Div. 280.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Michael E. Box, Saraland, for appellant.
    Charles A. Graddick, Atty. Gen., and Robert S. Thompson, Sp. Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Possession of a pistol after conviction of a crime of violence; sentence: five years’ imprisonment.

During the State’s case in chief, the trial judge allowed Mobile Police Officer Larry Mote, over specific objection, to testify as to the hearsay information he was given by a confidential informant in order to obtain a search warrant in the case. After he overruled the specific objection by the defense, the trial judge allowed the witness to testify:

“A. That the informant stated to me that while he was inside this apartment, that a black male by the name of Steve had several small, clear plastic bags with a white powder substance. That while he was present, that Steve had given one small, clear plastic bag to an unknown subject in exchange for U.S. currency. That the white powder was represented by Steve to be heroin.”

Counsel for the appellant again objected and moved to exclude the answer; however, the trial judge overruled the objection. The evidence went on to show that when police officers executed the search warrant the appellant was found inside the residence in possession of a pistol, which brought on the instant prosecution.

The State has implicitly admitted error in the instant case by declining to file a brief and citing Tierce v. State, 396 So.2d 1090 (Ala.Cr.App.1981).

Tierce, supra, is directly in point and holds that, while hearsay evidence may be considered in a hearing on a motion to suppress in determining probable cause for the issuance of a search warrant, such evidence has no place in the trial itself. See also Satterwhite v. State, 364 So.2d 359 (Ala.1978). It is evident that the trial court committed reversible error in admitting the testimony in question into evidence at trial. On authority of Tierce and Satterwhite, supra, this cause is reversed and remanded, and the appellant is entitled to a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: ADKINS, Justice.

text:
    The COCA-COLA COMPANY, FOOD DIVISION, POLK COUNTY, Florida, et al., Appellants, v. STATE of Florida, DEPARTMENT OF CITRUS, Appellee.
    No. 57108.
    Supreme Court of Florida.
    June 4, 1981.
    Rehearing Denied Jan. 8, 1982.

      E. Snow Martin of Martin & Martin, Lakeland, Ansley Watson, Jr. of Macfar-lane, Ferguson, Allison & Kelly, Tampa, and C. Lee Cook, Jr., Alan I. Greene and David C. Bogan of Chadwell, Kayser, Rug-gles, McGee & Hastings, Ltd., Chicago, Ill., for appellants.
    Monterey Campbell of Campbell, Dunlap & Blakeman, Bartow, for appellee.
   ADKINS, Justice.

This is an appeal from a decision of the Second District Court of Appeal specifically passing upon the validity of section 601.15, Florida Statutes (1977). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

On October 25, 1977, the Florida Citrus Commission, (hereinafter the commission), by order, adopted a rule amending Department of Citrus Rule Chapter 20-66. The new rule, subsection 20-66.04, (hereinafter the rule), provides that effective January 1, 1979, all processed 100% grapefruit products packed in retail containers in Florida are to be prominently identified by use of the word “Florida” or the “Florida Sunshine Tree” certification mark surrounded by the phrase, “A Product of the Florida Sunshine Tree.” The rule also specifies certain requirements regarding the legibility, color, and placement of the words and certification mark. The order adopting the rule finds, among other things, that the rule serves the interests of the public and the industry, that it will increase the effectiveness of the Department of Citrus’ advertising program, that grapefruit growers have expressed a need for Florida identification on processed products, and that evidence produced at hearings demonstrated that Florida identification will help achieve the goals enumerated in section 601.02, Florida Statutes (1977).

Upon adoption of the rule, a grapefruit products processors’ association and individual members thereof petitioned the Second District Court of Appeal for review of the commission’s action in adopting the rule. The petition asserted that the commission lacked statutory authority to promulgate the rule or, alternatively, that the rule violated provisions of the Federal and Florida Constitutions.

Initially, petitioners also contended that since the rule evidently applied to grapefruit products derived wholly or in part from grapefruit grown outside of the state, it was in violation of section 601.98, Florida Statutes (1977), which provides that it is unlawful to place a designation of Florida origin on citrus fruit products if any part thereof comes from outside the state. The department, however, made a statement, which the district court considered binding, that the rule applies only to processed grapefruit products packed in Florida which are derived entirely from grapefruit grown in Florida.

On the basis of the above statement, the district court affirmed the department’s action, holding that the department has the implied statutory authority to adopt the rule, that said authority does not constitute an invalid delegation of legislative power, that the rule violates neither the federal nor state constitution, that evidence regarding increased competition from out-of-state grapefruit justifies the rule, and that the department’s failure to prepare an economic impact statement did not invalidate the rule. See Florida Canners Association v. State Dept. of Citrus, 371 So.2d 503 (Fla. 2d DCA 1979). Petitioners then appealed the decision to this Court. Petitioners-below shall be referred to herein as appellants, and respondent-below referred to as appel-lee or department.

Appellants’ first point on appeal is that appellee lacks statutory authority to compel á declaration of Florida origin on the labels of processed grapefruit products. We agree that the Florida Citrus Code of 1949 (hereinafter the code) does not expressly grant such authority, and so such power, if it is to be ascribed to appellee, must be implied. We have, in numerous cases, discussed when authority may properly be implied.

“The powers of this and similar agencies include both those expressly given and those given by clear and necessary implication from the provisions of the statute.” City Gas Company v. Peoples Gas System, Inc., 182 So.2d 429, 436 (Fla.1965). The implied powers attendant to those expressly given include those which are “indispensable or useful to the valid purposes of a remedial law”, State ex rel. Railroad Commiss. v. Atlantic Coast Line R. Co., 60 Fla. 465, 54 So. 394, 397 (1911); those “necessary for the exercise of the [right] or the performance of the [duty]”, Girard Trust Co. v. Tampashores Development Co., 95 Fla. 1010, 117 So. 786, 788 (1928); those “necessary to accomplish the [stated governmental purpose]”, Hancock v. Karel, 127 Fla. 451, 173 So. 274, 275 (1937), citing Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789, 792 (1919); and those “necessary to carry out the power or right and make it effectual and complete”, Deltona Corporation v. Florida Public Service Commission, 220 So.2d 905, 907 (Fla.1969). Thus to determine whether the commission has the implied authority to require declarations of origin, we must examine the code to determine both its purposes and the duties which it places on the commission. (For a comprehensive history of the code, see the Second District Court of Appeal’s decision in this cause.)

Section 601.02, Florida Statutes (1977), provides, in part, the following regarding the purposes of the code:

Purposes.—This chapter is passed:
(1) In the exercise of the police power to protect health and welfare and to stabilize and protect the citrus industry of the state.
(2) Because .. . the sale and distribution of said crop, affects the health, morals, and general economy of a vast number of citizens of the state who are either directly or indirectly dependent thereon for a livelihood, and said business is therefore of vast public interest.
(3) Because it is wise, necessary, and expedient to protect and enhance the quality and reputation of Florida citrus fruit and the canned and concentrated products thereof in domestic and foreign markets.
* * ijs * H< *
(5) To stabilize the Florida citrus industry and to protect the public against fraud, deception, and financial loss through unscrupulous practices and haphazard methods in connection with the processing and marketing of citrus fruit and the canned or concentrated products thereof.

Section 601.10, in part, establishes the following regarding the powers of the department.

Powers of the Department of Citrus.— The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall include, but not be confined to, the following:
(1) To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes of the state, which said rules and regulations shall have the force and effect of law when not inconsistent therewith.

Section 601.15, which most directly relates to the rule, provides in part, as follows:

Advertising campaign; methods of conducting;
* * * * * *
(2) The Department of Citrus shall plan and conduct a campaign for commodity advertising, publicity, and sales promotion to increase the consumption of citrus fruits and may contract for any such advertising, publicity, and sales promotion service.

Section 601.15 assigns appellee certain duties which, when performed, are intended to increase the consumption of citrus fruits. The increased consumption helps achieve the goals of the act listed in section 601.02, Florida Statutes (1977).

The question then, in determining whether appellee has the implied authority to require designation of origin, is whether the rule is indispensable, useful or necessary in effecting the goal of increased consumption of Florida citrus. We think that it is. If citrus is not identified as being of Florida origin, then the money spent encouraging consumers to buy Florida citrus will be for naught. Those consumers favorably im7 pressed with appellee’s advertising campaign will be unable to determine which citrus is from Florida, and will be just as likely to purchase grapefruit from California, Arizona, Mexico, Brazil, etc., as from this state. The increasingly stiff competition facing our state from other citrus producing locales justifies this measure intended to promote consumption of Florida citrus. Appellee has been given extensive authority in this very important area, and we believe that it has the implied power, as part of its duty to promote Florida citrus, to order that grapefruit products grown and processed in this state be so identified.

We are likewise unconvinced by appellants’ argument that the legislative history of the code demonstrates that the legislature expressly rejected compulsory declarations of Florida origin. Appellants point out that the legislature enacted in 1937, and then repealed in 1939, a statute compelling a declaration of Florida origin on processed citrus products. See chapter 17783, Laws of Florida (1937), and chapters 19261 and 19477, Laws of Florida (1939). Noting that the statutes upon which appel-lee relies for its implied authority for the rule existed prior to the above 1937 statute, appellants argue that had the legislature considered such implied authority to exist it would not have enacted the 1937 statute requiring a declaration of origin. Enactment of said statute, argue appellants, demonstrates that implied power to compel designation of origin did not exist and, rather, that the legislature had to expressly provide such. The repeal, two years later, of chapter 17783 evidences a clear legislative rejection of mandatory declarations of origin, claim appellants.

There are two flaws in appellants’ reasoning. First, the 1937 enactment did not concern advertising, rather, it was intended to eliminate the practice of importing non-Florida citrus into the state and then shipping it out in a form indicating that it was a Florida citrus product. When the law was repealed in 1939, it was replaced by a statute prohibiting the shipment from Florida of non-Florida citrus fruit or juice in a manner tending to indicate in any way that said product was produced and canned in Florida. Thus, the enactment and repeal of chapter 17783 are of no consequence here, because said law pertained to mandatory labeling intended to deter unscrupulous packers, not to labeling intended for advertising purposes.

The second flaw in appellants’ reasoning is that the legislative enactment and repeal of chapter 17783 was not really a grant and rejection of power at all. Rather, it was an exercise of concurrent jurisdiction shared by the legislature and the department. Certainly the two entities may share authority over a common area, and the legislature’s actions in 1937 and 1939 need not be interpreted first, as an expression of sole authority to mandate labeling and second, as an express rejection of all forms of such labeling. Instead, borrowing language used in the district court of appeal’s opinion herein, we believe that the legislature simply stepped into a field already occupied by appellee and then stepped out, leaving the matter again in the hands of appellee.

Appellants’ second point on appeal is that the statutory authority for this rule, if such authority is found to exist (and we have so found), constitutes an invalid delegation of legislative power. The delegation is invalid, contend appellants, because it contains no appropriate standards, guidelines, or restraints and thus violates article III, section 1 of the Florida Constitution. We disagree.

We need not examine the provisions of the constitution prohibiting the delegation by the legislature of exclusively legislative powers, nor the reasoning whereby the authority to provide rules and regulations for the administration of the law may be delegated to an administrative agency. Both concepts have been thoroughly examined in numerous prior decisions of this Court. See, for example, State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969 (1908); Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919); Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978).

To resolve this issue, we must consider whether the commission is here given the power to decide what the law is to be or whether the code establishes policy and standards and guidelines to guide the agency in implementing legislatively directed law. If the former is the case, the delegation is unlawful; if the latter, it is unobjectionable on delegation grounds. We find, for the following reasons, that the delegation here complained of was legal.

First, the act is not couched in terms so vague and uncertain, nor so broadly drawn, that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement thereof, and the agency is not given the power to say what the law is. See D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976); and Sarasota County v. Barg, 302 So.2d 737 (Fla.1974). The code clearly demonstrates that the legislature intends that the department plan and conduct an advertising and publicity campaign designed to increase consumption of Florida eitrus products. Section 601.15 states that the department “shall” do such. It does not leave the department a choice of whether to use the revenues earmarked for advertising for such purposes nor a choice of whether to initiate an advertising campaign. The department is not given unbridled discretion to determine whether to advertise and how to use the funds derived from the tax imposed under section 601.15. All of the preceding are required or specified. Nor, focusing more closely on its implementation does the act lack minimal standards and guidelines for administration of the program established by the legislature.

Sections 601.15(2)(a)-(i) catalog the subjects on which the department is to disseminate information. They direct that the department inform the public, via advertising and publicity, of matters such as the nutritional importance of citrus, the laws of the state regulating the production and marketing of citrus, the added costs to producers resulting from those laws, the effect upon public health of a breakdown of the Florida citrus industry, and the like. Said sections provide the department definite guidelines for implementation of the legislatively established policy and purpose of section 601.-15. The department may not determine what the law shall be, and a reviewing body is able to ascertain by reference to the code whether the agency is carrying out the legislature’s intent.

Also relevant is section 601.10(1), which provides that the department is to have the following powers:

To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter. . . .

The department is thereby limited to adopting only rules and regulations which are proper and necessary to accomplish the legislature’s stated objective, and may not stray afield as it. pleases, exercising the unlimited discretion which is a hallmark of improper delegation. Section 601.10(1) provides the requisite definite, valid limitations on rules and regulations which may be enacted by the department.

The department has been given responsibility for advertising and promoting Florida citrus, and increasing the sales thereof. In delegating such authority to the department, the legislature has established guidelines and directives for implementation of the law. Should the need arise, the code provides a reviewing body an adequate basis for determining whether the department is properly carrying out the intent of the legislature. We therefore conclude that the delegation of authority to promulgate the rule is proper.

Appellants’ third point on appeal is that the rule unconstitutionally deprives them of their property without due process of law. They argue that to justify an interference with the constitutionally protected right to pursue a lawful business, the state must show a proper exercise of its police power, and that such cannot be shown here.

Under the police power doctrine, the state may interfere with otherwise protected areas if the interfering regulation bears “a reasonable relationship to the pub-lie safety, health, morals, and general welfare.” Stadnik v. Shell’s City, Inc., 140 So .2d 871, 874 (Fla.1962). In Belk-James, Inc. v. Nuzum, 358 So.2d 174 (Fla.1978), the question was whether a requirement that all taxable malt beverages sold in Florida have the word “Florida” imprinted on the crown or lid thereof violated the due process clauses of the United States and Florida constitutions. Observing that the standard for evaluating a legislative “exercise of the police power in the area of economic regulation is whether the means utilized bear a rational or reasonable relationship to a legitimate state objective”, Id. at 175, we held that the labeling requirement was justified as an aid in the collection of taxes on malt liquor and in ensuring that only wholesome beer is brought into the state. In so holding, we observed as follows:

The arguments advanced by Belk-James, which essentially question whether the best means of regulation has been chosen, can be seen as directed more to the wisdom of the legislation than to its asserted rationality. This inquiry, of course, is inappropriate for our judicial function.

Id. at 177.

The labeling requirement in the case sub judice, like that in Belk-James, bears a rational relationship to a legitimate objective; in this case, increased sales of Florida citrus. Whether it is the best means of achieving that goal is not important to our analysis.

Appellants argue that all police power regulations of the citrus industry which have heretofore been upheld by this Court have been based upon a showing that the rule was necessary to prevent fraud and deception. They also cite a ease in which the Fourth District Court of Appeal held that economic considerations are an improper basis for exercise of the police power. See Florida Citrus Commission v. Hi-Acres Concentrate, Inc., 227 So.2d 707 (Fla. 4th DCA 1969), cert. denied, 241 So.2d 859 (Fla.1970).

In Hi-Acres, the court held unconstitutional a rule adopted by the commission which required that composition-type containers of frozen concentrated citrus juice have an “easy open” top, observing:

The commission’s determination that requiring the composite type can to have the easy open feature would benefit the citrus industry by increased sale of citrus juices, is simply a determination by such administrative agency that using such type containers would result in economic benefits to the industry. This alone is not a valid basis upon which such regulation can be justified.

Id. at 708. We disagree with the opinion in Hi-Acres to the extent that it holds economic considerations an improper basis for exercising the police power.

Police power based regulations of Florida’s citrus industry have been upheld in many cases. See Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835 (1915); Snively Groves, Inc. v. Florida Citrus Commission, 23 F.Supp. 600 (N.D.Fla.1938); Florida Citrus Commission v. Golden Gift, Inc., 91 So.2d 657 (Fla.1956); and L. Maxcy, Inc. v. Mayo, 103 Fla. 552, 139 So. 121 (1931). As noted by appellants, most sustained the validity of a rule because it was shown that said rule was needed to prevent fraud and deception. That does not mean, however, that a police power rule may not be based on economic considerations. In Sligh v. Kirkwood the United States Supreme Court, referring to the police power, noted:

It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as those specifically intended to promote the public safety or the public health.

Id. 237 U.S. at 59, 35 S.Ct. at 502 (emphasis supplied).

In E. B. Elliot Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir.), cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35 (1970), the United States Fifth Circuit Court of Appeals considered whether an ordinance prohibiting commercial advertising signs in certain areas and regulating them in others was a proper exercise of the police power and observed:

Ordinance No. 63-26 is apparently designed to accomplish two ends: to promote highway safety on the expressway system of Dade County and to improve the beauty of the land surrounding these expressways thus to maintain and increase the attractiveness of the area to tourists, and residents alike, and thus influence the economic prosperity of the county. There can be no doubt but that these objectives are constitutionally permissible under the police power of the State of Florida.

Id. at 1151 (emphasis supplied).

In Johnson v. State, 99 Fla. 1311, 128 So. 853 (1930), the constitutionality of an act making unlawful the obstruction or resistance of an authorized inspector from the department of citrus in the performance of his duties was questioned. This Court held that the act was a proper exercise of the police power, stating:

[T]he purpose of the act is within the police power of the state. The protection of a large industry constituting one of the great sources of the state’s wealth and therefore directly or indirectly affecting the welfare of so great a portion of the population of the state is affected to such an extent by public interest as to be within the police power of the sovereign.

Id. 128 So. at 857. See also C. V. Floyd Fruit Co. v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (1937).

In light of the foregoing and of the indisputably important role that the citrus industry plays in this state’s economy, we hold that the rule under consideration is a proper exercise of the state’s police power.

Nor do we find the rule to be an unjustifiable infringement of the appellants’ rights, i. e. an unnecessary exercise of the police power. Appellants argue that if a Florida identification will actually increase sales of citrus products, then producers and sellers will voluntarily mark their products in that fashion. Hence, they reason, the rule is unnecessary, and the goals thereof may be achieved without this unjustifiable infringement. They cite State v. Leone, 118 So.2d 781 (Fla.1960), for the proposition that if the legislative goals of an act can be accomplished without any infringement upon a party’s rights, then infringement, if it occurs, is unjustifiable.

In Leone, this Court struck a police power regulation requiring that retail drug stores be under the constant supervision of a licensed pharmacist. The opinion therein noted that the goal of the statute, that controlled drugs and medical supplies be dispensed only by those with proper training, could be achieved with less infringement on individual rights than was being done.

If there is a choice of ways in which government can reasonably attain a valid goal necessary to the public interest, it must elect that course which will infringe the least on the rights of the individual.

Id. at 785. We do not think, however, that the valid goal in the case at bar may be reasonably attained with less infringement than is presently being imposed.

Appellants assert that their interests and those of the department are the same, and that no regulation is needed. They argue that if a “Florida” label will increase sales, they will certainly mark their products with such. We, however, do not think that appellants’ interests exactly parallel those of the department. The department’s goal is to achieve the maximum sales possible of Florida citrus products. Several of the appellants, on the other hand, have holdings and dealings in other regions as well as in Florida. While they too desire to maximize sales, their particular interests might involve balancing output from a number of states or countries. An enterprise with interests and commitments spanning the nation and even the world cannot place the interests of a single state foremost on its list of priorities, and cannot be expected to always do that which is best for Florida. Thus appellants’ and appellee’s interests are not synonymous, the rule is needed and is not an unnecessary infringement, and we hold that the rule is reasonably related to attainment of the stated governmental objective.

Appellants’ next point on appeal is that the rule impermissibly abridges their first amendment rights. In so arguing, appellants first contend that the labeling mandated by the rule compels that they speak and adopt the statements of the state of Florida and become a messenger therefor. We disagree. They are simply required to indicate the origin of their product, if it originated in Florida. They are not being forced to trumpet the superiority or virtues of Florida citrus, and to suggest that this labeling requirement forces them to spread the “Florida message” exaggerates the rule’s effect. Appellants are merely being required to provide a factual statement which, if necessary and proper as this one is, is not an improper invasion of their first amendment rights.

On the same point appellants next contend that the state may not tell anyone what to say or think, and that the rule improperly forces appellants to express an opinion. We agree that the state may never force one to adopt or express a particular opinion:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943) (emphasis supplied) (footnote omitted). We do not, however, agree that the mandatory labeling required by the rule forces appellants to confess their faith in a matter of opinion. Again, we note that appellants are not being required to agree with or echo the content and theme of Florida’s citrus advertising campaign. Rather, they are simply being required to indicate that the product being sold came from Florida, so that those consumers desiring Florida-produced citrus will be able to purchase such. Stamping a container “Florida” is not expression of an opinion. It is an expression of fact, similar to listings of ingredients and the like. The strictures of Barnette, condemning forced adherence to opinions, are inapplicable here.

Appellants also cite the United States Supreme Court’s decision in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), as support for their position that this mandatory labeling is an unlawful forced expression of opinion. In Wooley, a Jehovah’s Witness challenged a New Hampshire statute requiring that automobile license plates carry the state motto, “Live Free or Die”, which he found morally, religiously, ethically and politically abhorrent. The plaintiff had been prosecuted and jailed for covering the spot where the motto was stamped on his license plate. Holding that the state could not require that one display such a motto, the Supreme Court noted, in part, as follows:

We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. We hold that the State may not do so.
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New Hampshire’s statute in effect requires that appellees use their private property as a “mobile billboard” for the State’s ideological message — or suffer a penalty, as Maynard already has. . . . The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.

Id. at 713-15, 97 S.Ct. at 1434 (citations omitted).

We do not agree with appellants that the holding in Wooley compels that we strike down the rule. The state is not requiring that appellants disseminate an ideological message nor that they express a view or opinion on a subject on which there can be differing positions. Appellants are merely being required to include a factual statement of origin. Were the state requiring a message such as “Florida is Best”, “Florida Citrus is Superior”, or the like, the Wooley rationale might apply; as things stand, it does not.

Still contending that the rule violates the first amendment, appellants next assert that the state may not interfere with an otherwise protected area simply because the interests and speech involved are of a commercial nature. We agree that commercial speech is also protected, and that with certain exceptions, an entity may not be compelled to convey a message simply because that message is in a commercial context. When there is a first amendment interest at stake in commercial speech, that interest must be balanced against the public interest served by the regulations. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

Balancing the competing interests here, we are of the opinion that the public’s interest in protecting and promoting Florida’s citrus crop justifies the slight infringement on appellants’ rights. The state is neither attempting to stop the free flow of information nor to prevent appellants from expressing themselves on any subject. It is simply requiring that containers be marked with a small, factual, statement of origin, on the top or bottom of the container if not the label. The interference with first amendment rights is slight and, as previously noted, the interest served great.

Finally, still regarding the first amendment argument, we do not believe that there exist less restrictive alternatives for accomplishing the goals of the rule. The voluntary program of labeling suggested by appellants is not feasible; if they are opposing such labeling this strenuously in court, they certainly would not adopt it voluntarily. The rule is as unrestrictive as is possible under the circumstances.

Appellants’ final point on appeal is that the rule is invalid because it is not supported by competent, substantial evidence and that the facts require that it be set aside as a matter of law. They contend that no hearing was held on the rule as it has now been interpreted by the district court of appeal and that at the time evidence was taken, the growers thought that the rule would stop the importation into Florida of citrus for mixing with Florida citrus. We do not find such arguments convincing. While the rule will not stop such importation, it will prevent such mixtures from being marketed as purely Florida citrus. Furthermore, even if the rule was not fully understood by growers at the time evidence was taken thereon, they did, nevertheless, have an opportunity to be heard. The rule has not been changed, and we cannot strike it simply because certain parties may have misinterpreted its purpose or effect.

Appellants further contend that this improperly passed rule will encourage processors to import citrus from other states to mix with Florida citrus in order to avoid the labeling requirement, and that insufficient evidence was presented at hearings on the rule to show that it is needed or will be effective. The district court of appeal ably responded to these assertions in its opinion:

An exercise of police power will not be struck down because a law or regulation is unwise, improper, or out of harmony with a particular school of thought: Williamson v. Lee Optical of Okl., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). We feel that the evidence in the record as to the anticipated increase in competition from non-Florida grapefruit is sufficient to justify Respondent’s decision to require that Florida grapefruit products be identified in the marketplace. The wisdom of that decision is not a matter of judicial concern.

Florida Canners Association at 519.

Having considered each of the points on appeal raised by appellants, and having found that none warrant reversal of the Second District Court of Appeal’s opinion herein, we hereby affirm said court’s decision.

SUNDBERG, C.J., and OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

BOYD, J., dissents.


text:
    STATE of Florida, Appellant, v. Phillip Neal REINERSMAN, Appellee.
    No. 59097.
    Supreme Court of Florida.
    Oct. 8, 1981.
    Rehearing Denied Jan. 8, 1982.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, and Samuel Robert Mandelbaum, Asst. Public Defender, Tampa, for respondent.
   ADKINS, Justice.

The District Court of Appeal, Second District, has certified to this Court that its decision reported at 382 So.2d 325 is one which involves a question of great public interest. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. (1980).

On the basis of our decision in Parker v. State, 406 So.2d 1089 (1981), we find that the information in question charged appellee with commission of a second-degree felony under section 893.13(l)(a)(2), Florida Statutes (Supp.1976).

We therefore quash the district court’s decision in this cause and remand the same to that court for resolution consistent herewith.

SUNDBERG, C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


text:
    Walter A. PARKER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 59674.
    Supreme Court of Florida.
    Oct. 8, 1981.
    Rehearing Denied Jan. 8, 1982.

      I. Paul Mandelkern of Russ & Mandel-kern, Orlando, for petitioner.
    Jim Smith, Atty. Gen., and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for respondent.
   ADKINS, Justice.

We have for review a decision of the Fifth District Court of Appeal, Parker v. State, 386 So.2d 1297 (Fla. 5th DCA 1980), which has been certified to this Court as being in direct conflict with an earlier decision of a different district court of appeal, Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. (1980).

Petitioner, Walter A. Parker, Jr., was charged by information with, among other things, conspiracy to possess more than 100 pounds of cannabis. His plea of nolo con-tendere to that charge was accepted by the trial judge and petitioner was sentenced to four years probation.

After serving one year of his probation, petitioner filed a motion contesting the four year length thereof. He argued that under the law controlling at the time that he was sentenced, possession of in excess of 100 pounds of cannabis was a third-degree felony and so the conspiracy to possess such was a first-degree misdemeanor. He further contended that since the maximum penalty for a first-degree misdemeanor is one year in prison and a $1,000 fine, it was illegal for the probation period imposed to exceed one year.

The trial court denied petitioner’s motion and was affirmed, upon appeal, by the district court. The district court denied petitioner’s motion for clarification, but granted his petition for certificate of direct conflict and certified such to this Court. Petitioner then invoked our discretionary jurisdiction.

Resolution of this matter, and of the conflict between the district courts, depends upon our interpretation of section 893.13, Florida Statutes (1977). If, under that law, possession of more than 100 pounds of cannabis is a third-degree felony, then petitioner is correct in his claim that conspiracy to possess such is a first-degree misdemeanor, punishable by not more than one year’s imprisonment. If possession of such is a second-degree felony, as respondent contends, then the conspiracy offense is a third-degree felony, and petitioner’s probation period does not exceed the maximum sentence which may be imposed therefor.

Subsection 893.13(l)(a)2, Florida Statutes (1977), provides as follows:

Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
A controlled substance named or described in s. 893.03(l)(c) [wherein cannabis is named] is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.084; except that the sale, delivery, or possession of in excess of 100 pounds of cannabis as controlled in s. 893.03(l)(c) shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Petitioner contends that in order to be convicted of a second-degree felony under subsection 893.13(l)(a)2, Florida Statutes (1977), the person charged with possessing in excess of 100 pounds of cannabis must have possessed such with intent to sell or deliver the cannabis. He further asserts that simple possession of over 100 pounds is covered by subsection 893.13(l)(e), Florida Statutes (1977), which provides:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

Petitioner’s position is supported by several decisions from the first and second district courts. See Reinersman v. State, 382 So.2d 325 (Fla. 2d DCA 1979); Beasley v. State, 382 So.2d 47 (Fla. 2d DCA), cert. denied, 388 So.2d 1109 (Fla.1980); Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979); Chewning v. State, 366 So.2d 144 (Fla. 1st DCA 1979); and Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978).

Respondent, the state, on the other hand, argues that section 893.13, Florida Statutes (1977), and the legislative intent thereof are both clear, and that mere possession of more than 100 pounds of cannabis is a second-degree felony. Respondent’s argument is supported by decisions from the Fourth District Court of Appeal. See Chesnut v. State, 382 So.2d 1349 (Fla. 4th DCA 1980); and State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980).

We agree with respondent’s contention that section 893.13, Florida Statutes (1977), clearly and unambiguously establishes that mere possession of over 100 pounds of cannabis constitutes a second-degree felony, regardless of the possessor’s intended use therefor.

Section 893.13(l)(a)2, Florida Statutes (1977), provides generally that one who sells, manufactures, delivers, or possesses with intent to sell, manufacture, or deliver cannabis is guilty of a third-degree felony. Simple possession of cannabis is not included in the conduct proscribed under the provisions of the first portion of said section. The last clause of section 893.13(l)(a)2, Florida Statutes (1977), however, creates an exception for cases involving over 100 pounds of cannabis. That clause provides that “the sale, delivery, or possession of in excess of 100 pounds of cannabis” (emphasis added) constitutes a second-degree felony. The exception does not address “possession with intent” as does the first portion of the section, rather, it covers simple “possession.”

We think that the variation in the wording of the two clauses is a distinction with a difference. There is a marked difference between “possession with intent” and simple “possession.” The first clause of section 893.13(l)(a)2 contains a provision that the last part does not, and “[t]he presence of such a provision in the one part and its absence in the other is an argument against reading it as implied.” United States v. Atchison, Topeka, & Santa Fe Railway Co., 220 U.S. 37, 44, 31 S.Ct. 362, 363, 55 L.Ed. 361 (1911).

Nor is this a situation justifying departure from the plain, literal meaning of the statute. Such departure is permitted when a literal interpretation would lead to an illogical result or one not intended by the lawmakers. State ex rel. Hughes v. Wentworth, 135 Fla. 565, 185 So. 357, 360 (1938). A literal reading of section 893.-13(l)(a)2, Florida Statutes (1977), results in neither of the above. It is not illogical to draw distinctions between the treatment of those possessing less than 100 pounds of cannabis and those possessing more than 100 pounds, and, as we have noted, we believe that a literal reading of the statute, far from frustrating legislative intent, is required in order to comply with the legislature’s intent.

Petitioner argues that when the word “possession,” as used in the last clause of the statute, is considered in light of the rules of statutory construction and is subsumed to and construed in pari materia with the rest of the statute, it is clear that possession really means “possession with intent.” Regardless, however, of the merits of petitioner’s statutory interpretation language, section 893.13(l)(a)2, Florida Statutes (1977), provides that “possession with intent” of cannabis is a third-degree felony while simple “possession” of over 100 pounds of the same constitutes a second-degree felony. According to the plain, literal meaning of the statute there is a distinctive difference.

Resort to the rules of statutory construction supports our conclusion regarding the clear meaning of the statute. As always, legislative intent is the pole star by which we must be guided in interpreting the provisions of a law. See State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928). The legislature has evidenced an intent, in section 893.13(l)(a)2, Florida Statutes (1977), to punish more severely those possessing large quantities of cannabis.

One indicator of the legislature’s intent is the title of the law enacting the statute. As we noted in Foley v. State, 50 So.2d 179, 184 (Fla.1951):

[I]f the phraseology of the act is ambiguous or is susceptible of more than one interpretation, it is the court’s duty to glean the legislative intent from a consideration of the act as a whole, “the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject”, . . .

(Emphasis added.) The title to chapter 76-200, Laws of Florida, 1976, which amended section 893.13(l)(a) by adding the clause pertaining to amounts of cannabis exceeding 100 pounds, reads as follows:

AN ACT relating to criminal penalties; amending s. 893.13(l)(a), Florida Statutes, providing that the sale, delivery or possession in excess of 100 pounds of cannabis is a felony of the second degree; providing an effective date.

The clear import of the title to chapter 76-200 is that those possessing over 100 pounds of cannabis are guilty of a second-degree felony—no reference whatsoever is made to an intent requirement.

Petitioner argues that it is unreasonable to interpret chapter 76-200 as covering simple possession because a clause so doing would logically be located in section 893.-13(l)(e), which relates to simple possession of cannabis. We agree that perhaps the provision relating to possession of over 100 pounds of cannabis could have been better located, but that affects neither the rule nor the clear meaning of the law. And, repeating ourselves, although the introductory clause of section 893.13(l)(a)2, Florida Statutes (1977), refers to “possession with intent,” the portion in question creates an exception to that which precedes it, and need not and does not track the provisions thereof.

Also relevant here are any amendments of section 893.13 since the enactment of chapter 76-200, for, “[t]he court has the right and duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.” Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788, 790 (Fla.1952). The subsequent legislative history of the act buttresses our interpretation thereof.

Chapter 79-1, Laws of Florida, 1979, enacted section 893.135, Florida Statutes (1979), which provides that anyone “who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis is guilty of a felony of the first degree.” Such bears out respondent’s observation that the legislature intends that more severe penalties be imposed upon those possessing large quantities of cannabis.

Petitioner counters that section 893.135, Florida Statutes (1979), did nothing to resolve the question here, because it did not resolve the conflicting provisions of section 893.13 regarding possession and possession with intent, and that section 893.13(l)(e), Florida Statutes, would still control in a “mere possession” situation. Chapter 80-70, Laws of Florida, 1980, however, eliminated any such confusion the following year. It amended section 893.135 to provide that those possessing over 100 pounds of cannabis are guilty of a first-degree felony “notwithstanding the provisions of s. 893.13.” The legislature thus made it clear that if one possesses over 100 pounds of cannabis, the penalty is the same regardless of the intent involved. The legislature’s removal of any doubts regarding the statute reinforces our conclusion that section 893.-13(l)(a)2 was intended to cover those who simply possessed over 100 pounds of cannabis.

In light of the foregoing, we are of the opinion that the district court ruled properly in affirming petitioner’s sentence. Section 893.13(l)(a)2 quite clearly provides that possession of over 100 pounds of cannabis is a second-degree felony. Statutory interpretation via accepted rules of construction reinforces such conclusion. The district court’s decision is therefore, approved, and all other decisions not consistent herewith are overruled.

It is so ordered.

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