author: DeCARLO, Judge.

text:
    Lorenza LINSON v. STATE.
    5 Div. 497.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      Michael D. Cook, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The appellant was indicted on a charge of assaulting Carolyn Hughley with intent to murder her. On the date set for arraignment he was committed to Bryce Hospital for a determination of his competence to stand trial.

Two months later he was returned to Chambers County Jail. Subsequently, he was arraigned and pleaded not guilty and not guilty by reason of insanity. Then, approximately one year from the time of his arrest, he was tried by a jury, convicted of assault with intent to murder, and sentenced to seven years imprisonment.

In October, 1978, the appellant lived with Carolyn Hughley and her two children. On October 18,1978, during a trip to Montgomery the appellant began to argue with Ms. Hughley, and told her, “When I get you home, I’m going to kill you.” After they got home the appellant continued to argue with her until she fell asleep. She was later awakened by the appellant cutting her on the back with a butcher knife. According to Ms. Hughley, the appellant cut her numerous times and hit her with a hammer. Ms. Hughley testified that the assault with the knife continued through the night, and it was not until noon the following day that the appellant took her to the hospital. Ms. Hughley testified that the appellant informed the hospital personnel that she (Ms. Hughley) had been in an automobile accident.

Dr. Ray DeGuzman, a physician in LaFa-yette, Alabama, testified that in October, 1978, he saw Carolyn Hughley in the emergency room of the Chambers County Hospital. He treated Ms. Hughley for multiple lacerations which were attributed, he was told, to an automobile accident. He testified that Ms. Hughley was not bleeding upon her admission to the hospital, but stated that if the bleeding had continued she would have died. Dr. DeGuzman said that one hundred to one hundred and twenty sutures were required to close the deep lacerations; although no one cut would have been fatal, without treatment the multiple wounds would have caused death.

The testimony of Terry Johnson, Ms. Hughley’s twelve-year-old son, corroborated his mother’s account of the incident. He testified that he saw the appellant go to the kitchen and get a butcher knife and then strike his mother with the knife.

At the end of Terry Johnson’s testimony, the appellant made a motion to exclude the evidence because of the State’s failure to present a prima facie case. He argued that the evidence offered by the State showed that the injuries “were not sufficient to produce death and were not calculated to cause death.”

The court denied the motion and the appellant called four witnesses in his behalf. George Connors, a field examiner for the Veteran’s Administration, testified that he had known the appellant for approximately ten years and that, in his opinion, the appellant could not distinguish right from wrong at the time of the offense.

William 0. Walton, Jr., an attorney in LaFayette, Alabama, testified that he had been appointed guardian for the appellant in April, 1970. In that capacity he made regular reports to the probate court on how money paid to the appellant by the Veteran’s Administration had been spent. Further, he said that he knew the appellant had been in the Veteran’s Administration Hospital in Tuskegee some nineteen different times. Mr. Walton also testified that he had seen the appellant on October 19, 1978, at ten o’clock in the morning, and it was his opinion that the appellant was unable to distinguish right from wrong at that time.

Lorenza Linson, the appellant, testified in his own behalf. He stated that, on the day of the incident, he had been taking medication and drinking. Appellant testified that he felt himself getting sick that day and he did not know what happened, but he related the following events:

“I started getting up, I got mad and me and her fought from the bedroom to the kitchen and when I got to the kitchen she reached for the knife and I come up and I had the hammer and swung at her head and broke out a pane in the living room.”

The appellant explained that he thought Ms. Hughley was “going out” with someone else. He admitted that he had “cut her” across the shoulders “just a couple of times,” but explained, “I was so mixed up.”

During cross-examination, appellant admitted that he had told the hospital personnel that Carolyn Hughley had been in a car wreck because he did not want to “get locked up.” He acknowledged that the reason he cut her in the face was because he “wanted her scarred so nobody else would have her.”

Julian Woodhouse, a doctor of clinical psychology, stated that he first saw the appellant in August, 1979, at the Chambers County Jail. At that time appellant was quite irrational. Dr. Woodhouse stated that, in his opinion, the appellant was dangerous, could not be treated properly in a local facility, and should be transferred to a secure psychiatric hospital. Dr. Woodhouse testified that he had seen the appellant on two other occasions in October, 1979, and it was his opinion that appellant was schizophrenic-paranoid type. Dr. Woodhouse also gave his opinion that the appellant was suffering from a severe mental disease on the night of the incident. He said it was his observation that the appellant could not tell the difference between right and wrong in all situations.

I

The appellant complains that he was deprived of his constitutional right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 101, the United States Supreme Court ruled that speedy trial cases must be approached on a “ad hoc basis” using a “balancing test in which the conduct of both the prosecution and the defendant are weighed.” Id., 92 S.Ct. at 2181-92. The court outlined four factors which should be assessed in determining whether a particular defendant has been deprived of his right to a speedy trial. Those four factors were identified as: “[L]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. The Court found “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.” Id, 92 S.Ct. at 2188.

In determining whether the appellant has been deprived of his right to a speedy trial the following sequence of events should be analyzed:

1) October 19, 1978, appellant arrested and incarcerated.
2) March 1, 1979, indictment against appellant.
3) March 8, 1979, order by circuit court for appellant to undergo a mental examination.
4) March 18, 1979, appellant committed to Bryce Hospital.
5) April 30, 1979, letter from Bryce Hospital Forensic Unit Co-ordinator to circuit court stating that appellant was diagnosed as schizophrenic-paranoid type when he entered Bryce Hospital, and that, as of April 24, 1979, he had been re-evaluated and found competent to stand trial. The letter requested that an appropriate order be issued remanding custody of the appellant to the Chambers County Court.
6) May 9, 1979, order from the circuit court to the sheriff of Chambers County to return the appellant from Bryce Hospital to Chambers County.
7) August 29, 1979, arraignment; trial set for October 25, 1979.
8) October 25, 1979, motion to dismiss for lack of speedy trial filed; case continued in order to obtain Bryce Hospital records.
9) October 31, 1979, trial.

The appellant argues that the period of approximately one year from the time of his arrest until trial constituted “undue and oppressive incarceration” and, “obviously impaired the ability of Mr. Linson to defend himself.”

This court in Andrews v. State, Ala.Cr.App., 370 So.2d 1072, cert. den. 370 So.2d 1075, stated: “There is no fixed length of time that is considered to be per se unreasonable.” The United States Supreme Court, in Barker v. Wingo, supra, reasoned that, “[Ujntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”

In the present case, approximately four and one-half months transpired between the arrest of the appellant and the court order to undergo a mental examination. Thereafter, the appellant remained in Bryce Hospital for approximately two months. After his release from Bryce Hospital, the appellant spent approximately three months in jail before his trial date was set. During that time, and at all other times appellant was incarcerated, he was unable to make bond. Based on the circumstances involved in the case before us, the delay in bringing appellant to trial was not, in our judgment, unreasonable or “presumptively prejudicial.” Barker v. Wingo, supra.

The court order committing the appellant to Bryce Hospital was pursuant to § 15-16-20, Code of Alabama 1975. Consequently, the postponement of appellant’s trial was partially due to procedural safeguards invoked for his protection to assure that he was mentally competent to stand trial.

In Cook v. State, Ala.Cr.App., 333 So.2d 855, this court stated:

“A defendant cannot claim his Constitutional rights have been denied ... where delays are made necessary by the law itself.”

In the present case, the appellant’s assertion of his speedy trial right did not come until October 25, 1979, the date the case was set for trial.

The appellant insists that the delay between his arrest and the order for the mental examination “greatly decreased the likelihood of any professional being able to testify as to the state of mind and intent of the defendant on the date of the occurrence.” As a result, appellant claims that his ability to defend himself was impaired.

Dr. Woodhouse, who was the only expert witness in the field of mental health called by the defendant, did not, however, state that his ability to formulate an opinion of the appellant’s mental condition was affected by the passage of time. The record reveals the following:

“THE COURT: Doctor, based on your review of the history of the defendant, based upon your examination of him, do you have an opinion whether or not he was on that night of October the 18th— 19th, 1978, suffering from a mental disease that is paranoid-schizophrenia?
“A. Yes, sir, I do have an opinion.
“THE COURT: What is that opinion?
“A. It’s my opinion that at that time, to the best of my judgment, he was continuing to suffer from schizophrenia-paranoid type and at that time that condition would have been active, in other words it wouldn’t have been in remission. He would have been suffering severely from that.
“THE COURT: In your opinion at that time, that is the night of October 18th and in the morning of October 19th as the result of his mental disease was he able to determine the difference from right and wrong?
“A. I don’t know.
“THE COURT: You don’t have an opinion?
“A. I have an opinion but it may not fit exactly what you’re getting at.
“THE COURT: Tell us what your opinion is?
“A. It’s my opinion that at that time, given that he was suffering from that disorder and had not been properly treated for it.. .. That at that time there would have been areas where, in fact, he could not tell the difference between right and wrong and there would have been areas where he would have told the difference between right and wrong. I’m not sure how his thinking would match up with this particular offense other than saying there certainly were areas where his thinking would have been severely disturbed but I can’t say that right or wrong with respect to the particular alleged act. I can’t read his mind about that. I can simply say that someone suffering from that illness is going to have a number of very large areas where fantasy mixes in with reality and the person cannot distinguish between right and wrong.
“Q. I mean, if he knew the difference between right and wrong on a particular evening, the particular evening in question, do you have an opinion as to whether or not his free agency or power to choose between right and wrong was affected by his mental disorder?
“A. I really have no opinion on that.”

In our judgment, the appellant did not show that actual prejudice resulted from the delay, see Yarber v. State, Ala.Cr.App., 368 So.2d 868; Moss v. State, 50 Ala.App. 643, 282 So.2d 82, or that his pretrial incarceration was of such an oppressive nature that he was “hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.” Barker v. Wingo, supra.

II

The appellant contends that the trial court committed reversible error by commenting on the operation of State mental hospitals and their policy regarding release of patients. The comments complained of, in pertinent part, are found in the following portions of the record.

“Q. All right. Do you have an opinion as to what effect the failure of Mr. Lin-son’s mental disease that he had would be to not take his medicine?
“MR. WALLACE: We object, if the Court please, we object to him not taking his medicine. He couldn’t possibly know what effect it would have.
“THE COURT: He can qualify that.
“Q. First of all, do you know what effect these medications that you related that Mr. Linson is taking have on a person who is suffering from a mental disease, disorder that you have determined is of the schizophrenia-paranoid type?
“MR. WALLACE: And we object.
“THE COURT: Overruled. That’s been part of your training. The Court will sustain the objection and let you further qualify him.
“A. It’s through my experience and observation of working in the hospital and, essentially, my work in probate court is returning people to the hospital and seeing people when they stop taking their medication. I am not a pharmacist, I’m not trained in—
“Q. How many commitment hearings have you participated in for people suffering from this type of mental disorder to date?
“MR. WALLACE: If the Court please, that has nothing to do with this man sitting over here. Commitment hearings are a joke and the Court knows it.
“MR. COOK: Your Honor, I object to the comments by the district attorney and would ask he be instructed not to make such comments that commitment hearings are a joke. They’re not very much a joke to the mentally disabled.
“THE COURT: You can ask the witness how many cases he has participated in with persons having a diagnosis of paranoid-schizophrenia—
“THE COURT: Who are using medications and failure of the patient to take them and the result it has on the behavior of the patient.
“A. Any person suffering from a severe mental illness when they are placed on those medications, any one of the major tranquilizers, my experience and, I think, the experience of everyone, almost everyone working in this area, is when these people stop taking their medication they run a very severe risk of their condition again becoming worse and having to return to the hospital. I know when I worked in the hospital one of the first questions we would ask would simply be, ‘How long have you been off your medication?’ Sometimes that would clear it, if they take it they do well, if they don’t take it they do poorly. That’s not to say that I understand the breakdown or the mechanism that works, the literature on these medicines is that each time at the very top they start and say ‘we don’t know the precise way that this works but it does seem to help people suffering from certain types of mental disorders.’
“THE COURT: In other words doctor, when these patients come back to the hospital in a pretty bad mental state brought on in part because they have not been taking their medication?
“A. That’s right.
“THE COURT: And once you get them back on their medication then they get for all practical matters all right and you turn them loose and you put them back on the street and you say they are competent and you put them back on the street and they retain this good condition, retain their good condition until they quit taking their medication again and then they become dangerous?
“A. That’s correct.
“THE COURT: And so whether or not they remain stable or whether or not they become dangerous after their release from the mental hospital depends solely on whether that person voluntarily takes his medication as prescribed?
“A. Not solely but in large part it does.
“MR. COOK: If it please the Court, we would like to object to the Court’s taking over this case and we think it is highly prejudicial, the comments of the Court in that particular case and would move for a mistrial.
“THE COURT: Motion denied.”

In support of his contention, the appellant has cited Boyle v. State, 229 Ala. 212, 154 So. 575; Dunn v. State, 277 Ala. 39, 166 So.2d 878, and Whisenhant v. State, Ala.Cr.App., 370 So.2d 1080. In these cases, direct references to confinement in mental institutions because of a verdict of not guilty by reason of insanity were made by prosecutors in closing argument. No such references were made by the trial judge in the present case.

It was the defense counsel who first elicited from his own witness information concerning the effect of failure to take prescribed medication on the behavior of a paranoid-schizophrenic. The witness answered, “[W]hen these people stop taking their medication they run a very severe risk of their condition again becoming worse and having to return to the hospital.”

The comments by the trial judge in the present case were an effort to clarify the testimony already given, and, in our judgment, were proper. See Sprinkle v. State, Ala.Cr.App., 368 So.2d 554. At no time did the trial judge comment on what might happen if the appellant were sent to a mental hospital instead of to the penitentiary. The court’s comments referred to paranoid schizophrenics who are returned to the hospital because of failure to take their medication, and not to paranoid schizophrenics who are sent to the hospital because they have been found not guilty by reason of insanity.

The trial judge was within his discretion in questioning the witness. In Sprinkle v. State, supra, this court observed:

“The trial judge is more than a mere moderator and it is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of witnesses. Thus he may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and impartiality.”

We do not believe the trial judge departed from the necessary standard of fairness and impartiality here. See Johnston v. City of Birmingham, Ala.Cr.App., 338 So.2d 7.

Ill

The trial court, in the present case, overruled the appellant’s motion to exclude. It also denied the appellant’s request for the affirmative charge and a motion for new trial. Thus, the questions of the sufficiency and the weight of the evidence are properly before us.

Assault with intent to murder is an assault with intent to take life under circumstances which, if successful, would constitute murder. Horn v. State, 98 Ala. 23, 13 So. 329; Sanders v. State, Ala.Cr.App., 354 So.2d 44. Although intent may be inferred from the character of the assault, the use of a deadly weapon, and attending circumstances, there can be no assault with intent to murder without a present intention as well as a present ability to commit the offense. Marshall v. State, 21 Ala.App. 500, 109 So. 558.

The evidence in the present case clearly shows that appellant had the present ability to commit murder. The assault was unprovoked. Appellant took a butcher knife from the kitchen and “cut” Carolyn Hughley numerous times on her body. Further, the testimony from the attending physician indicates that, although the lacerations alone could not have caused death, the victim could have died from a loss of blood. The inference is also unmistakable that appellant had the present intent to commit the offense. He wanted the victim “scarred” so nobody else would have her, and he did not bring her to the hospital until noon the day following the infliction of her wounds. Therefore, it is our judgment that the State presented a prima facie case. Sanders v. State, supra.

It was within the province of the jury to give the evidence in the case whatever weight and emphasis they thought proper in reaching their verdict. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Braswell v. State, 51 Ala.App. 179, 283 So.2d 630; Gilmore v. State, Ala.Cr.App., 339 So.2d 116. It was not unreasonable for the jury to infer an intent to take life from all the evidence presented at trial. In our judgment, the verdict of the jury was not contrary to the weight of the evidence, and there was no error in the trial court’s denial of the motion to exclude, the requested affirmative charge, and the motion for a new trial. See Johnson v. State, 51 Ala. App. 172, 283 So.2d 624; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.

We have searched the record and find no error prejudicial to the appellant; therefore the judgment of conviction by the Chambers Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Otis GRAY v. STATE.
    5 Div. 505.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied March 31,1981. Certiorari Pending.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of robbery. The court fixed his punishment at imprisonment for twenty-five years and sentenced him accordingly.

The only eyewitness to the robbery was the alleged victim, Elmore Tolbert. Defendant took the stand in his defense, denied any participation in the robbery, and testified that he was elsewhere at the time the victim said the robbery occurred. Several witnesses were called in his behalf who tended to support him as to an alibi.

The victim, a fifty-five-year-old man, testified that on the night of October 5, 1979, about 10:00, he discussed with defendant the prospect of purchasing a table from defendant. The discussion took place while defendant was in the house of a person known as “Lightning.” He said he knew the defendant, a young man, and had bought a table from him before. According to his testimony, he decided not to buy another table from him and thereafter went out of the house, proceeded down nearby South Fourth Street in Opelika and while doing so saw two people running, by whom he was immediately attacked. One of the individuals, who jumped out of some bushes and grabbed him from behind, was the defendant. When the victim swirled around to fight off the defendant, the other individual hit him on the head with what appeared to be a gun. The lick knocked him out for a few seconds; when the victim regained consciousness, the defendant and the other individual were kicking him as he lay on the ground. The defendant grabbed the billfold of the victim, ripping his left rear pocket in the process, and immediately thereafter fled with the other individual from the scene. In the billfold was sixty dollars in currency. He promptly called the police, who took him to the police station where he was interviewed and shown some photographs. He was later taken to the hospital and treated for injuries to his head and chest. According to him the robbery took place soon after 10:00 P.M. Defendant was arrested some time the next day.

The alibi evidence was furnished by a large number of witnesses, including defendant’s wife, mother, grandmother and other relatives, which tended to account for his presence at places other than the scene of the robbery at the time thereof by detailing where he was for a considerable period before and after the time of the robbery.

As an incident to the issue of the identify of defendant as one of the robbers, there developed an issue in connection with whether an arm of defendant was in a cast on the occasion of the robbery. The victim testified that it was. The defendant and supporting witnesses testified that he had recently had a cast on his arm by reason of damage to ligaments thereof but the cast had been taken off and dissolved on October 3.

Irrespective of whatever strength there was in the evidence on behalf of defendant, the fact remains that the victim testified positively that defendant was one of the young men who robbed him. With due regard for the apparent sincerity of some, if not all, of his alibi witnesses, it can be readily understood that in view of all the circumstances, particularly the proximity of the place where the robbery occurred to most of the other places where defendant was the night of the robbery and the brevity of the time taken to commit the robbery, the jury was nevertheless convinced beyond a reasonable doubt that defendant participated in it. Perhaps evidence to the effect that there was no cast on his arm on the night of the robbery furnished some support to his defense, but any weakness in the State’s evidence in this connection can probably be reasonably accounted for on the theory that the victim had probably seen defendant while he was wearing the cast and that he was merely mistaken in testifying that he had it on at the time of the robbery. We do not agree with the contention of appellant that there was insufficient evidence to sustain a conviction.

A major contention of appellant is that the court was in error in refusing the following written charge requested by defendant:

“Under an indictment for robbery, there may be a conviction for assault with intent to rob, for larceny, for attempt to rob, for assault, and for assault and battery.”

Unquestionably, there are times under an indictment for robbery when the jury should be charged as to some of the lesser included offenses. It is equally true that there are other robbery cases in which the jury should not be instructed as to any lesser included offense. The requested charge states correctly the offenses that are lesser included offenses in an indictment charging robbery, but whether a charge as to a lesser included offense should be given is dependent upon whether the evidence in the case, according to any reasonable theory, presents a controversy whether the particular conduct constitutes robbery on the one hand or the lesser included offense on the other. If so, such a charge should be given; if not, it should not be given. Turner v. State, Ala.Cr.App., 356 So.2d 235, cert. denied, 356 So.2d 237 (1978); Carter v. State, Ala.Cr.App., 340 So.2d 94 (1976); Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975); Browder v. State, 54 Ala.App. 369, 308 So.2d 729 (1974), cert. denied, 293 Ala. 746, 308 So.2d 735 (1975).

As previously indicated, the only eyewitness testimony as to what occurred at the time of the alleged robbery was furnished by the victim. There was no genuine issue between the parties as to whether he was robbed. The only genuine issue between the parties was whether defendant was one of the robbers. His testimony and the testimony of other witnesses for him presented a jury question as to that issue. It cannot be said from any of the evidence in the case, or from a lack of evidence in the case, that the individuals who attacked the victim did not rob him of his billfold and money. The defendant was not entitled to a charge that would have permitted a verdict finding him guilty of a lesser included offense. The refusal of the charge was not error.

In some respects, the facts as to the alleged crime may be likened to Taylor v. State, 48 Ala.App. 443, 265 So.2d 886 (1972), in which it was held that the trial court was in error in a robbery case in its refusal to submit to the jury issues as to defendant’s guilt of lesser included offenses. The case is distinguishable, however, in that in such case both the appellant and the co-defendant testified and admitted their participation in a physical encounter with a police officer in which the officer’s pistol was taken from the holster and removed from the scene. It appears that a factual question was presented as to whether there had been a larceny without a robbery, an assault with intent to rob but no robbery, an attempt to rob but no robbery, an assault but no robbery, and an assault and battery but no robbery. There was no evidence in the instant case to that effect.

Appellant attempts to strengthen his position by arguing:

“Yet even when faced with only the two simple alternatives [finding the defendant guilty of robbery or finding him not guilty] which the Court provided the jury [by the two forms of verdict given the jury], they deliberated on into the evening of the 25th and then returned to continue deliberating on February 26. The deliberations continued into that second day and finally the verdict of guilty was reached.”

A reading of a part of the transcript as to what was said in open court in dialogue from time to time between the judge and jurors as to their welfare and the likelihood of a verdict could lead one to believe that some of them were inclined to reach some kind of a compromise verdict or a verdict for a less offense than robbery. A consideration of all that was said on said occasions, however, should not lead to that conclusion. Appellant apparently uses the word “alternatives” in reference to its use twice in the following conversation between the trial judge and a juror just before the court excused the jurors for the night to resume deliberations the next morning:

“THE COURT: Did you all have a question?
“A JUROR: The only question is, you know, there is several of them want to know what alternatives we’ve got.
“How long do we have to deliberate if we don’t reach a verdict and, you know, just what the—
“THE COURT: I can’t answer that question, as to how long you have to deliberate.
“The alternatives, of course, are there in the forms of verdicts. Only one of those two can be reached.”

It is clear from a consideration of the entire transcript that the word “alternatives” as used by the juror is referable only to alternatives to the continuance of their deliberations at the time, including whether they would be sent to supper or be allowed to go home and return the next day for deliberations. They already knew they would not be held together for the night. Furthermore, the transcript shows that what was largely troubling the jury was the location of the place of the crime, as to which some were familiar and others not, which is exemplified by the following three questions or statements:

“A JUROR: Is it not — is the map, — is it drawn accurate? Is it not true that the St. Paul Church is on the same side of the street as the other church up there on the right?
“ANOTHER JUROR: If we have reason to believe that the map is incorrect, can we alter it?
“A JUROR: Well, I think the thing that bothers the jury the most, if I may speak, is the fact that we do have some people on the jury that are familiar with the neighborhood and it is only by chance and luck that we, indeed, have that expertise here — ”

Another contention of appellant is that the trial court was in error in permitting the State to cross-examine a witness, who had testified as to the time on the night of the robbery that defendant was with her, as to a statement she made to an officer in which she told him a different time from that which she had testified and in permitting the officer to testify thereafter in impeachment of her as a witness by the self-contradictory statement. Appellant says that the evidence was objectionable “as not relating to the res gestae of the crime.” However, it was admissible to impeach the credibility of the witness “by proving that he [she] has previously made statements that are inconsistent with his [her] present testimony.” Gamble, McEl-roy’s Alabama Evidence, § 155.02(1) (1977).

A final insistence on a reversal is based upon the following occurrence during the closing argument of counsel for the State:

“MR. WILKES: —They leave Nathaniel’s house, say, at 10:30; that places them at Inez’s house around 10:45. He tells Cassandra [defendant’s wife] he had robbed somebody; he’s going to the V.F.W.; he gets down to the Y.F.W., which is about ten or fifteen—
“MR. WILLIAMS: Your Honor, we object to that.
“He never told Cassandra he had robbed somebody.
“MR. WILKES: I’m submitting that it may have happened.
“THE COURT: You may continue. Go ahead.”

The transcript indicates no further reference to the matter just quoted. It appears that the court probably considered the statement of counsel for defendant “I’m submitting that it may have happened,” as a modification of his argument, in recognition of the accuracy of the implication of the statement of defendant’s counsel that the statement of State’s counsel was not supported by any actual evidence. Whether so or not, it seems clear that it was made clear to the jury that whatever State’s counsel had inferred from the evidence was not intended, and almost certainly was not considered by the jury, as a statement of fact by State’s counsel. No injury to defendant could have occurred from the argument as modified by counsel that made it.

We have searched the record for any error prejudicial to the 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 Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Jackie J. HARRIS v. STATE.
    7 Div. 763.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      William D. Hudson of Wilson & Hudson, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicated and convicted for rape and burglary in the first degree. Sentence was ten years’ imprisonment on each count with the sentences to run concurrently. Four issues are raised on appeal.

I

The defendant contends that the trial court erred in overruling his challenge to the entire jury panel alleging that the panel had indicated that “they would not allow intoxication to be a defense to a crime.” The question asked by the Assistant District Attorney which allegedly elicited this response is not contained in the record.

After defense counsel asserted his challenge, the trial judge questioned the venire and determined that the prospective jurors would follow the instructions given by the court on the law of intoxication as a defense. For this reason, we find no error in the overruling of the defendant’s challenge to the venire. A motion to quash the venire should not be sustained or granted unless it is alleged and proved that the whole venire is tainted with prejudice. Nickerson v. State, 283 Ala. 387, 217 So.2d 536 (1969).

“Where jurors testify that they have opinions but that they would try the case fairly and impartially according to the law and the evidence, and that their opinions would not influence their verdict, they are competent to serve and it is not error for a trial judge to deny a challenge for cause.”
Jarrell v. State, 355 So.2d 747, 749 (Ala. Cr.App.1978).

II

A.

In a prosecution for rape, evidence of the complaint of the prosecutrix is admissible. C. Gamble, McElroy’s Alabama Evidence, Section 178.01 (3rd ed. 1977). However, the details and particulars of that complaint cannot ordinarily be introduced. Allford v. State, 244 Ala. 148, 12 So.2d 407 (1943). An exception to this rule is that “the full details of the complaint are admissible if the complaint is admissible as a spontaneous exclamation under that particular exception to the hearsay rule.” McElroy at Section 180.01. Res gestae is a term of “convenient obscurity” often used to describe this exception. Illinois Central R. R. v. Lowery, 184 Ala. 443, 63 So. 952 (1913).

To be admissible under this exception, the statement must be spontaneous. The “question of spontaneity is to be decided upon the facts and circumstances of each individual case and such a determination is a question for the trial judge” whose action in admitting the statement should not be held to be error unless this Court would be justified in concluding that under all and any reasonable interpretation of the facts the exclamation could not have been spontaneous. McElroy at Section 265.01(2).

The prosecutrix testified that after the defendant left her house it took her about three minutes to reach her neighbor’s house in order to telephone her father-in-law. The neighbor testified that the prose-cutrix was crying and upset. The details of the complaint were admitted when the father-in-law of the prosecutrix was asked, “What did she tell you had happened to her, if anything, when she called you?” The father-in-law replied, “She said that Jackie had raped her_”

After reviewing all the various facts listed in Judge McElroy’s delineation of the circumstances to be considered we conclude that the trial judge acted within the bounds of his legitimate discretion in admitting the details of the complaint as a spontaneous exclamation. Brooks v. State, 57 Ala.App. 478, 329 So.2d 167 (1976); Ciervo v. State, 342 So.2d 394 (Ala.Cr.App.1976), cert. denied, 342 So.2d 403 (Ala.1976).

B.

After the prosecutrix telephoned her father-in-law, he drove to her house. This drive took about fifteen minutes but it took the father-in-law and his wife a “good while” to get “down there” because the wife had to “get ready”. When they arrived, the prosecutrix told her mother-in-law that she had been raped.

Since this complaint was made within a reasonable time after the prosecutrix had been raped it was properly admitted into evidence.

“It is commonly said that complaints, to be admissible under the foregoing principle, must be made recently after, or within a reasonable time after, the commission of the offense. However, delay in the making of the complaint does not exclude it if the delay is explained and excused by proof of sufficient cause therefor. Such excuse may consist of lack of opportunity to complain, duress or threats by the perpetrator of the crime.” McElroy at Section 178.01.

In order to admit the bare making of a complaint, and not the details, the complaint need not have been a spontaneous exclamation or come within the rules regulating the admission of such exceptions to the hearsay rule.

Ill

During cross examination of the prosecutrix, defense counsel impeached her trial testimony with the testimony she had given at the defendant’s preliminary hearing.

Immediately after defense counsel concluded his cross examination of the prosecu-trix, the following occurred:

“MR. MOORE (Assistant District Attorney): Your Honor, we will offer her statement that she made to the police on the night that—
“MR. HUDSON (Defense Counsel): Your Honor, I object to that and move for a mistrial, Your Honor. Mr. Moore knows that is improper.
“THE COURT: I sustain your objection as to the admission of it, but I overrule you on the mistrial.
MR. HUDSON: We except, Your Hon- or.”

Although the prosecutor’s actions were improper, he could have used the prior consistent statements of the prosecutrix to corroborate her testimony after defense counsel had impeached her testimony had the proper predicate been established. This represents an exception to the general rule that impeachment of a witness by the introduction of evidence of a statement inconsistent with his testimony does not authorize the proponent of the witness to support his credibility by evidence that at other times the witness has made statements consistent with his present testimony. The exception is available in prosecutions for rape and related offenses. Long v. Whit, 197 Ala. 271, 72 So. 529 (1916); Murphy v. State, 355 So.2d 1153, 1157-8 (Ala.Cr.App.1978) citing McElroy at Section 178.01.

Since the prosecutor did not even attempt to establish any predicate, the objection of defense counsel was properly sustained. Defense counsel’s request for a mistrial was properly denied because any inferences from the prosecutor’s remarks were not of such a character that neither rebuke nor retraction could entirely destroy their sinister influence. Jackson v. State, 260 Ala. 641, 644, 71 So.2d 825 (1954).

It is true that in some cases, most notably where the prosecutor comments on the failure of the accused to testify, the trial judge has a duty not only to sustain defense counsel’s objections but to give curative instructions even where not requested. Qualls v. State, 371 So.2d 949 (Ala.Cr.App.), cert. denied, 371 So.2d 951 (Ala.1979). However, this rule only applies in exceptional cases involving a comment on the accused’s exercise of his constitutional right against self-incrimination. Collins v. State, 385 So.2d 993 (Ala.Cr.App.), reversed on other grounds, 385 So.2d 1005 (Ala.1980); Hurt v. State, 361 So.2d 1163 (Ala.Cr.App.1978). The general rule is that the trial court will not be put in error for denying a motion for a mistrial without admonishing the jury where there was no motion made that the remarks be excluded from the jury’s consideration. Wilburn v. State, 41 Ala.App. 681, 149 So.2d 296 (1963). A motion for mistrial does not include either a motion to strike or exclude as a lesser prayer for relief. Van Antwerp v. State, 358 So.2d 782, 790, (Ala. Cr.App.), cert. denied, 358 So.2d 791 (Ala. 1978). Therefore, we find no error in the action of the trial judge in overruling the defendant’s motion for a mistrial and in failing to instruct the jury to disregard where no instructions were ever requested.

IV

The defendant contends that two of the verdict forms prepared by the trial court unlawfully charged the jury that they had to be convinced of the defendant’s innocence beyond a reasonable doubt on one charge before he could be acquitted on the other charge.

The court’s oral charge must be considered as a whole in determining whether error was committed in giving a particular excerpt therefrom. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962); Ex parte Cowart, 201 Ala. 525, 78 So. 879 (1918); McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978). No part of the charge is to be tested in isolation. Brooks v. State, 353 So.2d 1 (Ala.Cr.App.1977).

“The language of a charge must be given a reasonable construction, and not a strained and unreasonable one ...” 23A C.J.S. Criminal Law, Section 1319 (1961). The test of severe grammatical criticism is not the proper rule of construction to apply to the general charge of the court in a criminal prosecution.

“Hypercriticism should not be indulged in in construing charges of the court (S. & N. R. R. Co. v. Jones, 56 Ala. 507; McGuire v. State, 2 Ala.App. 218, 223, 57 So. 57); nor fanciful theories based on the vagaries of the imagination advanced in the construction of the court’s charge, which is usually — as it is here, and as it should be — expressed in plain language that is susceptible of the ordinary understanding.” Addington v. State, 16 Ala. App. 10, 19, 74 So. 846 (1916).

Applying these rules of construction to the judge’s charge in the present case, we find that it is not subject to the defect assigned by the defendant. Moreover, we note that after defense counsel objected, the trial judge gave further instruction on the matters found objectionable. While the defendant now alleges that these additional remarks only compounded the alleged error and failed to correctly state the law, at trial no objection was made to this effect nor was there any objection to the additional instructions. Under these circumstances, the defendant cannot now complain.

We have searched the record for error prejudicial to the defendant. Our review convinces us that the judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All Judges concur.

      . “(T)he degree of startlingness of the occurrence, how much time passed after the occurrence but before the statement was made, the effect of intervening events, the nearness of the place where the statement was made to the place of the occurrence, the condition of the declarant, the content of the statement itself, and all other factors relating to whether the declarant was under the stress of a nervous excitement at the time he made the statement.” McElroy at Section 265.01(2).


text:
    Mary Ann WALDON v. STATE.
    7 Div. 799.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      Robert G. Wilson of Scruggs, Rains & Wilson, Port Payne, for appellant.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Asst. Atty. Gen., Montgomery, for appellee.
   BOWEN, Judge.

The defendant pled guilty to two indictments charging grand larceny. Each indictment involved a case of shoplifting; one from the Athens Outlet Company, the other from Kuhn’s Big K. Pursuant to a plea agreement, the trial judge sentenced the defendant to four years’ imprisonment on each indictment, the sentences to run concurrently.

On appeal, the defendant contends that her conviction should be reversed because (1) there was no colloquy to determine the voluntariness of the guilty plea, (2) there was no showing that the elements of the charged offenses had been explained, (3) there was no showing that she was informed that in a prosecution for grand larceny she could be convicted for petit larceny, and (4) the trial court failed to advise her that the State had to prove her guilty beyond a reasonable doubt to the satisfaction of all twelve jurors.

The defendant entered her pleas of guilty to both indictments after her trial had begun and four witnesses for the State had testified in the case involving the grand larceny from Athens Outlet Company.

I

The defendant’s first contention is refuted by the record which affirmatively reveals that the trial judge informed the defendant of the constitutional rights she would waive by pleading guilty: The privilege against compulsory self-incrimination guaranteed by the Fifth Amendment, the right to trial by jury and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In addition the Judge informed the defendant of the maximum and minimum range of punishment. From the record:

“COURT: It has come to my attention that you want to change your plea, is that right?
“DEFENDANT: Yes, sir.
“COURT: All right, I understand that besides this case you have another case charging you with the same offense?
“DEFENDANT: Yes, sir.
“COURT: Grand larceny, and you wanted to plead on it also?
“DEFENDANT: Yes, sir.
“COURT: You wanted to plead guilty?
“DEFENDANT: Yes, sir.
“COURT: All right, you know you could continue with your plea of not guilty, and be tried by a jury, continue with this jury trial we have going now?
“DEFENDANT: Yes, sir.
“COURT: And, you have observed, of course, the State would have to prove you guilty, and you could see the witnesses and cross examine them. In that other case you could do that, too. And, you could take the stand in your own behalf if you wanted to. You don’t have to, nobody could make you, you could remain absolutely silent. These charges — the other case was prior to January 1, 1980?
“MR. MAUNEY (Assistant District Attorney): They arose the same day, Judge, I believe. It would be prior.
“COURT: All right, each of them carries punishment in the state penitentiary of not less than one year nor more than ten years. Now, knowing the punishment you could receive, and knowing the rights that you give up, do you still want to plead guilty?
“DEFENDANT: Yes, sir.
“COURT: All right, I will accept your plea. Is there anything you want to say to me before I tell you what your punishment is?
“DEFENDANT: No, sir.
“COURT: Are you pleading guilty because you are in fact guilty?
“DEFENDANT: Yes, sir.
“COURT: All right, I will accept your plea in each of the cases and sentence you to four years in the state penitentiary, and allow the sentences to run concurrently. You have a right to appeal from a guilty plea. Did you say, Mr. Baker, you wanted to apply for probation?
“MR. BAKER (Defense Counsel): Yes, sir.
“COURT: All right, I’ll take your application for probation, and I’ll ask the probation officer to make an investigation, and when I get the report from the probation officer I will contact your attorney. You stay in touch with him so he can contact you, okay?
“DEFENDANT: Yes, sir.
“COURT: Is she at liberty on bail?
“MR. BAKER: Yes, sir.
“MR. MAUNEY: Judge, I have not talked with this defendant at anytime, and I have made no promises to get her to plead.
“COURT: All right.
“(WHEREUPON, THE PROCEEDINGS WERE CONCLUDED)”

II

In support of her second contention, the defendant relies upon Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). The specific question there was “whether a defendant may enter a voluntary plea of guilty to a charge of second degree murder without being informed that intent to cause the death of the victim was an element of the offense.” 96 S.Ct. at 2254. Based on the general proposition that a guilty plea is involuntary if the accused “has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt”, 96 S.Ct. at 2257, n. 13, the majority concluded that, in the particular situation before it, the circumstances surrounding the accused’s plea failed to satisfy its test for voluntariness for the following reasons: (1) Neither defense counsel nor the trial court informed the accused that intent to kill was an element of the crime of second degree murder; (2) defense counsel did not stipulate to the existence of such intent; and (3) the accused made no factual statements to the court implying that he had such intent. 5 Amer.J.Crim.Law 105 (1977).

In Henderson, it was specifically noted that:

“There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense; we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required.” 96 S.Ct. at 2258, no. 18. (emphasis added)

The Court also noted that “(t)he charge of second-degree murder was never formally made. Had it been made, it necessarily would have included a charge that respondent’s assault was ‘committed with a design to effect the death of the person killed.’ ” 96 S.Ct. at 2258.

As was recognized in McGuirk v. Fair, 622 F.2d 597, 598 (1st Cir. 1980), “(t)he holding of Henderson was very narrow, however, and its facts are distinguishable from those of the instant case.” The majority in Henderson even recognized the uniqueness of their decision:

“Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent.” 96 S.Ct. at 2258-9.

The indictments upon which the defendant were arraigned and to which she initially pled not guilty were in code form. Alabama Code 1975, Section 15-8-150(60). An indictment must contain the elements of the offense intended to be charged and must sufficiently apprise the defendant of what he must be prepared to meet. Chambers v. State, 364 So.2d 416 (Ala.Cr.App.), cert. denied, Ex parte Chambers, 364 So.2d 420 (Ala.1978). An indictment for grand larceny in code form satisfies this requirement. Ragan v. State, 15 Ala.App. 694, 72 So. 506 (1916).

In the charge involving the grand larceny of property from the Athens Outlet Company, the defendant had been placed on trial and had heard witnesses testify to the specific criminal acts she was charged with committing. Under these circumstances, “it is appropriate to presume” that the defendant knew the nature of the offense in sufficient detail to give her notice of what she was being asked to admit.

Ill

With regard to the third and fourth contentions of the defendant, we know of no requirement that before a court can accept a plea of not guilty it must first inform the accused (1) of any lesser included offense of which he could possibly be found guilty if tried by a jury and (2) that, if he elects to plead not guilty, the State must prove his guilt beyond a reasonable doubt to the satisfaction of all twelve jurors. Even the provisions of Rule 11(c) of the Federal Rules of Criminal Procedure have no such requirement. See Annot. 41 A.L.R.Fed. 874.

We have searched the record for error prejudicial to the defendant. Our review of all the circumstances surrounding the defendant’s guilty plea convinces us that the plea was intelligently and voluntarily entered pursuant to a plea bargain agreement. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Billy Wayne COX v. STATE.
    8 Div. 420.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      Clyde Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., and Marda J. Walters, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Burglary in the second degree; sentence: three years’ imprisonment and $1,500 restitution paid to the victim in consecutive monthly installments of $50.

Sometime during the evening of December 19, 1979, or the early morning of December 20, 1979, the appellant burglarized Burger’s Clothing Store in Guntersville, Alabama. The only issue appellant presents for review is whether a mistrial should have been granted because a juror was seen talking to a State’s witness in the hallway during a brief recess in the proceeding. The following events occurred at trial:

“THE COURT: Ladies and gentlemen of the jury, at this time we’ll have a ten minute recess. Now, you may separate if you like, and please reassemble in the jury room after ten minutes. Take a ten minute break ... and keep in mind the instructions I gave you. Avoid anyone connected with the case.
“(At this point, the jury retired from the courtroom and a recess was taken, at the expiration of which the following proceedings were had and done):
“THE COURT: Are you ready to proceed?
“MR. WALDROP: Yes, sir.
“MR. BAKER: Yes, sir.
“THE COURT: All right, bring the jury back in.
“(At this point, the jury returned to the courtroom and was seated in the jury box):
“THE COURT: Ladies and gentlemen of the jury, let me ask you this question. Did any of you find out anything about this case during the last recess?
“(No response).
“THE COURT: It was reported to me that the State had a witness that was talking to one of the jurors. Please be very careful, and I think it’d be better ... if you ... other than just say hello to somebody because you’ll cause suspicions, and people get all sorts of ideas about things. You, yourself, have heard people talk about court proceedings and this and that and the other thing, and we want it to be fair and without any question about being fair, and, so, if anything was said about this case at all, please report it at this time. Anybody.
“(No response).
“THE COURT: And I don’t mean to infer that it wasn’t entirely innocent. I know you’re out in the hall. You’re out there with other people. It’s hot and I don’t want to keep you cooped up any more than is necessary, so please be very careful, and I suggest, other than just saying a polite hello to somebody, confine your conversation with each other and don’t talk about the case even with each other. I think that’s a good suggestion. All right.
“MR. BAKER: Your Honor, at this time I would move for a mistrial based upon the ... whatever evidence that there is that some witnesses have been talking with the jurors during the recess.
“THE COURT: The Court has no reason to believe that anything untoward happened. It was simply I wanted to caution the jury to be very careful. The particular witness in question hadn’t even testified in the case, according to the report I had, and I’m sure ... reasonably sure there was no conversation about the case, but I’ll ask the jury again ... I don’t know which juror was talking to someone else out in the hall, but was there anything said about this case at all? About any of the parties to this case? If you were talking with anyone out in the hall, was anything said about this case at all, any of the parties to this case or about crime in general, or anything of that sort that might try to influence a jury ... or to impress you in any form or manner? Was anything said to you? Did you engage in anything other than just polite conversation with anybody?
“(No response).
“THE COURT: All right, let’s go ahead.
“MR. BAKER: Will the Court rule on my motion?
“THE COURT: I’ll overrule your motion for mistrial. We don’t have ... what we should have, of course, is facilities where the jury have a place to go to, but we don’t have them, and so ... when you get here to the courthouse, you have to remember this is where the parties and the witnesses and the people interested in the case come. Of course, we have to get them all together to have a trial, and around the courthouse here is the most dangerous place that an incident of some kind will occur, and the parties to this ease, you see, both of them have the absolute and unconditional right to have this case determined from evidence that’s developed here in open court. That’s an absolute right, and if you’ll think about it you’ll see that it’s really a rule of fundamental fairness because neither the State nor the defense can counter rumors and talk and confidential information. That sort of thing has no place in a trial because it’s very unfair to one party or the other every time. It’s always very unfair. All right.”

This court in Woods v. State, Ala.Cr.App., 367 So.2d 974, 980, reversed on other grounds, Ala., 367 So.2d 982 (1978), stated:

“[T]he granting of a mistrial in cases of private communications between jurors and third persons is largely within the discretion of the trial judge, and his decision is subject to reversal only where that discretion has been abused. Tillman v. United States, 406 F.2d 930 (5th Cir. 1969); Green v. State, 252 Ala. 513, 41 So.2d 566 (1949).
“This discretion of the trial court to grant a mistrial includes the discretion to determine the extent and type of investigation requisite to a ruling on the motion. United States v. Flynn, 216 F.2d 354, 372 (2nd Cir. 1954); Lewis v. United States, 295 F. 441 (1st Cir. 1924); Tillman, supra; Killilea v. United States, 287 F.2d 212 (1st Cir. 1961); United States v. Khoury, 539 F.2d 441 (5th Cir. 1976). A full evidentia-ry hearing at which witnesses and jurors can be examined and cross examined is not required. Tillman, supra, 406 F.2d 938....”

In the absence of any showing to the contrary, we must assume that the trial judge was satisfied as to the nature of the conversation which passed between the witness and the juror, and upon this basis decided that the appellant was not prejudiced thereby. Whether there has been a communication with a juror and whether it has caused prejudice are questions of fact to be determined by the trial court in the exercise of sound discretion. Gaffney v. State, Ala.Cr.App., 342 So.2d 403, cert. denied, Ala., 342 So.2d 404 (1976). This ruling will not be disturbed in the absence of a showing of abuse of discretion. Woods v. State, supra; Bascom v. State, Ala.Cr.App., 344 So.2d 218 (1977).

As mandated by § 12-22-240, Code of Ala. 1975, we have reviewed the record on appeal and hold that the trial judge erred when he ordered the appellant to pay restitution to the owner of the store under Alabama’s new criminal restitution statute, Act No. 80-588, Acts of Alabama 1980, approved May 28, 1980. Although the sentencing and restitution hearing was held in August 1980, the record shows that the crime was committed in December 1979. The question then is whether sentencing appellant under Act No. 80-588 is an ex post facto application of that statute in violation of Article I, § 10, of the Constitution of the United States, and Article I, § 7, Constitution of Alabama 1901. We conclude that it is.

In Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925), the Supreme Court summarized the characteristics of an ex post facto law:

“It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post fac-to.”

Act No. 80-588, supra, is not a procedural change as discussed in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). That act provides for an additional penalty which did not exist at the time of the commission of the crime in question. It made “more burdensome the punishment” of the instant crime by making a change in the quantum of the punishment. Act No. 80-588 therefore cannot be given retroactive effect to crimes committed prior to its effective date. We therefore affirm the judgment of conviction, but remand this cause to the trial court with directions to resentence the appellant in accordance with the punishment authorized by law as of the date of commission of the instant offense.

AFFIRMED. REMANDED FOR PROPER SENTENCING.

All the Judges concur.


text:
    Dillard Roy HILL v. STATE.
    8 Div. 430.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      W. H. Rogers, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted for the murder of Rayburn Vess. Alabama Code 1975, Section 13A-6-2. A jury convicted him of manslaughter. Alabama Code 1975, Section 13A-6-3. Sentence was ten years’ imprisonment and a fine of five thousand dollars.

The conviction of the defendant must be reversed because of the admission of hearsay evidence. On redirect examination of the State’s first witness, Lawrence County Sheriff’s Department Investigator, the following occurred:

“Q. Jim, do you know what the right-of-ways are on those — on that road and that highway?
“MR. ROGERS (Defense Counsel): Judge, we object to that, Your Honor, as to what the right-of-ways are; that’s not the best evidence.
“MR. MULLIGAN (Assistant District Attorney): Well, if he knows can he testify to that?
“MR. ROGERS: No, sir, that’s the written document, Judge.
“THE COURT: Well, if he knows he can answer.
“Q. Go ahead, Jim.
“A. I checked—
“MR. ROGERS: Now, Judge, we are going to object.
“THE COURT: Overruled.
“MR. ROGERS: We take exception.
“A. Okay. We checked with the State Highway Department and—
“MR. ROGERS: We are going to object, Your Honor, on the basis of hearsay.
“THE COURT: Well, that’s not the question.
“Q. Do you know what the right-of-ways are on Highway 101 and County Road 19, Jim?
“MR. ROGERS: Judge, we—
“A. Fifty—
“MR. ROGERS: Let me object, Jim. We object on the basis that it’s hearsay and under the best evidence rule.
“THE COURT: All right, overruled.
“MR. ROGERS: We take exception.
“A. The right-of-way on 101 is fifty feet from the center line, is what Mr. Lamon with the State Highway Department told us.
“Q. Okay. What was that number again, Jim?
“A. Fifty feet from the center line on 101.
“Q. The right-of-way is fifty feet from the center line?
“A. Yes, sir.
“Q. Okay. Do you know what the right-of-way on County Road 19 is?
“MR. ROGERS: Now, Judge, we renew our objection on the basis of hearsay and the best evidence rule.
“THE COURT: Overruled.
“MR. ROGERS: We take exception.
“A. Thirty feet from the center line.”

Investigator Martin’s testimony as to the rights-of-way on the highway and county road was based on information he had obtained from the State Highway Department. For that reason, his testimony was incompetent under the hearsay rule and should not have been admitted. C. Gamble, McElroy’s Alabama Evidence, Section 242.-01(1) (3rd ed. 1977). The testimony of a witness as to what another person told him is hearsay. Parker v. State, 386 So.2d 495 (Ala.Cr.App.1980); Reese v. State, 338 So.2d 495 (Ala.Cr.App.1976). The statements of a third person, not made in the defendant's presence, are hearsay and inadmissible. Barker v. Coleman, 35 Ala. 221 (1859); Wheeler v. State, 109 Ala. 56, 19 So. 993 (1896). Ownership and possession of land must be proved by evidence as other facts are proved. M. C. Dixon Lumber Co., Inc. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972). Additionally, we note that parol evidence is inadmissible to show the title or ownership of real property, when such ownership is based on title deeds, without first having laid a predicate for its introduction. Withers v. State, 120 Ala. 394, 25 So. 568 (1898).

While Alabama Code 1975, Section 23-1-45 authorizes the state director of the highway department to acquire “the rights-of-way deemed necessary by the highway department” for the construction of roads, we find no statute, of which the trial court could have taken judicial knowledge, which specifies the width of a right-of-way. We do not consider this to be of such common knowledge that a court could take judicial notice of the existence and actual width of a right-of-way of a state or county road.

In its brief, the State contends that “at most, the allowance of this testimony constitutes harmless error since several of the other key elements of self-defense were not proven.” This conclusion can be reached only by weighing the credibility of the witnesses. Our review of the evidence reveals that the testimony of the defendant, if believed by the jury, would have sustained a defense of self-defense.

Obviously, the purpose and reason for the State’s introduction of the evidence concerning the right-of-way were to prove that the shooting occurred on State property and that the defendant had a duty to retreat. The defendant himself directly contradicted this hearsay evidence when he testified that the shooting occurred in the driveway of his home and place of business. By way of explanation, the defendant lived in the same building where his business was located. This building with its driveway was adjacent to and contiguous with the intersecting state highway and county road. The hearsay testimony of the right-of-way of the state highway was the only testimony which disputed the defendant’s testimony that the shooting occurred on his property. There was no evidence which disputed the existence of the right-of-way. Presenting such a conflict, we fail to see how the admission of the hearsay evidence can be held to constitute harmless error. The entire defense was self-defense and the hearsay evidence negated one element of that defense.

The trial judge instructed the jury that the defendant “is not required to retreat if he is in his dwelling or at his place of work and was not the original aggressor.” The judge did not charge the jury that the defendant had no duty to retreat and the issue of retreat was a question for the jury. Hence we cannot label the error “innocuous” as the State has done.

Although innocuous testimony furnishes no basis for a reversal, Duchac v. State, 52 Ala.App. 327, 292 So.2d 135, cert. denied, 292 Ala. 251, 292 So.2d 139 (1974), where illegal evidence has been admitted, a reversal must follow, unless the court can clearly see that the illegal evidence could not have prejudiced the defendant. Jackson v. State, 52 Ala. 305 (1875); Blevins v. State, 38 Ala.App. 584, 90 So.2d 98 (1956); Capps v. State, 29 Ala.App. 192, 194 So. 689, cert. denied, 239 Ala. 221, 194 So. 693 (1940).

“In deciding whether error is prejudicial, we may not merely determine that other evidence presented is sufficient for conviction and then disregard the illegal evidence. If this was the case, prosecutors could fill the record which all types of prejudicial hearsay, irrelevant and un-predicated material, and never suffer a reversal if in addition thereto they made out a prima facie case.
“Juries in criminal cases do not function under the ‘equity rule’ where it is assumed that they disregard illegal evidence and base their verdict solely on the legal evidence, as a judge sitting in equity does.”
* * * * * *
“Appellate courts must reverse convictions where, over proper objection, evidence of a material and prejudicial nature to an accused is wrongfully admitted.”
Chatom v. State, 348 So.2d 828, 837 (Ala. Cr.App.1976), reversed on other grounds, 348 So.2d 838 (Ala.1977).

“(T)he rule of harmless error is not a remedy for the blunders of the prosecutor which substantially harm or impair the rights of the accused.” Luker v. State, 361 So.2d 1124, 1127 (Ala.Cr.App.), cert. dismissed, 361 So.2d 1127 (Ala.1978).

For the foregoing reason the judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: ENGLAND, Justice.

text:
    The BATH CLUB, INC., Appellant, v. DADE COUNTY et al., Appellees.
    No. 57613.
    Supreme Court of Florida.
    Jan. 29, 1981.

      Dan Paul, Franklin G. Burt and Cloyce L. Mangas, Jr. of Paul & Thomson, Miami, for appellant.
    Robert A. Ginsburg, Dade County Atty., and Vicki Jay, Asst. County Atty., Miami, Steven A. Schultz, Dade County Property Appraisal Adjustment Bd., Miami, Jim Smith, Atty. Gen., William D. Townsend, Asst. Atty. Gen., Tallahassee, for appellees.
   ENGLAND, Justice.

The Bath Club here appeals a trial court order which rejects its attempt to reduce ad valorem real property tax assessments on the Club’s Miami Beach land for the calendar years 1976, 1977 and 1978. The court’s dismissal of the Club’s assessment challenge was correct in all regards, and we affirm. An expansive explanation of this proceeding is unnecessary, as a resolution of the main controversy for the most part requires no more than an application of routine legal principles to the peculiar facts presented.

The Club brought a trial court action to contest its real property tax assessments for the three years in question after Dade County’s Property Appraisal Adjustment Board had rejected its administrative challenge to assessments set by the county’s property appraiser (previously known as a “tax assessor”). After presentation of the Club’s evidence in a non-jury trial, the trial judge dismissed the Club’s suit and rejected all constitutional challenges to the relevant statutes. This appeal followed, properly raising only three issues.

1. The Club asserts that these tax assessments are based on speculative and conjectural considerations, rather than the factors enumerated in section 193.011, Florida Statutes (1975), to govern ad valo-rem tax assessments. Principal among the factors alleged to be improperly considered is a zoning ordinance which would allow a higher and better use for the Club’s property than its present, non-profit recreational activities, as restricted by its charter and a recent, publicly-filed “Declaration of Restrictions.” Suffice it to say on this issue that our view of the record evidence of the trial persuades us that the Club wholly failed to prove, as was its burden in order to prevail at trial, that the property appraiser did not take into account all relevant assessment considerations set out in section 193.011. The Club essentially disagrees with the appraiser as to the weight to be accorded its charter restrictions and the actual use of its property, suggesting that the assessment should be controlled by a unilaterally-approved, recently-adopted, self-serving Declaration of Restrictions. The Club’s disagreement on the weight to be accorded use restrictions and zoning is simply not a sufficient basis to upset the appraiser’s determination. Straughn v. Tuck, 354 So.2d 368 (Fla.1977).

2. The Club next asserts that the composition of Dade County’s administrative tax equalization body — the Property Appraisal Adjustment Board — is constitutionally infirm, in light of the dual officeholding prohibition of article II, section 5(a) of Florida’s constitution. That section states in relevant part that “[n]o person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein . ...”

Section 194.015, Florida Statutes (Supp. 1976), creates the Board and provides that it shall be composed of three county commissioners and two school board members. County commissioners and school board members are constitutional officers which article II, section 5(a) bars from dual office-holding. The Club contends that there exists an inherent conflict of institutional interest between the Board’s statutory duty to grant impartial hearings on tax assessments, and its members’ predisposition in their capacities as county commissioners and school board members to secure adequate revenues for their respective agencies’ public budgets.

Article II, section 5(a) was manifestly fashioned to ensure that multiple state, county, and municipal offices will not be held by the same person. Underlying this objective is the concern that a conflict of interest will arise by dual officeholding whenever the respective duties of office are inconsistent. Where additional duties are assigned to constitutional officers and there is no inconsistency between these new and pre-existing duties, however, the dual of-ficeholding prohibition does not preclude such an assignment. In such cases, newly-assigned duties are viewed merely as an addition to existing responsibilities. State ex rel. Gibbs v. Gordon, 138 Fla. 312, 189 So. 437 (1939); State ex rel Landis v. Reardon, 114 Fla. 755, 154 So. 868 (1934); Whitaker v. Parsons, 80 Fla. 352, 86 So. 247 (1920). See also State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla.1955).

There is no conflict between the duty of county commissioners and school board members to levy ad valorem taxes on real property and the limited function of Board members to review and correct individual assessments made by the county tax appraiser. In Stiles v. Brown, 182 So.2d 612 (Fla.1966), we discussed the function of the “board of equalization” (now the Board) in reviewing the action of the tax assessor (now property appraiser):

The purpose of tax equalization under F.S. § 193.25, F.S.A. [(now codified as section 194.015)], is the adjustment of tax valuations so that the share of taxes imposed will be justly proportioned to the value of the properties subject to taxation. Equalization under § 193.25 is designed to correct possible errors made by the tax assessor in the valuation and assessment of the taxes imposed. Through the process of equalization under said § 193.25 the taxpayer is provided with a hearing on the question of the equality of his assessment with assessments against other property owners.

Id. at 614-15 (emphasis in original).

Membership on the Board, as mandated by section 194.015, simply provides county commissioners and school board members with an additional administrative duty. See Whitaker v. Parsons; State v. Florida State Turnpike Authority,

An examination of the history of the structure for ad valorem tax appeals reveals that the functional and nomenclatural roots of the Board can be traced to the county commissions’ original duties. In 1895, the legislature provided that exclusive responsibility for hearing taxpayer appeals from assessments was in the county commissions, sitting as “boards of equalization.” These Boards remained substantially unaltered until 1969, when the legislature enacted section 194.015 to change the name of the tribunal to the Board of Tax Adjustment and to diversify its membership to include school board members. In 1976, the Board was given its present designation.

As a final point concerning Boards, we reject as having neither merit nor record support the Club’s suggestion that the Board’s ability to provide aggrieved taxpayers with an impartial and independent review of a tax assessment is compromised simply because revenue generated from ad valorem taxes is disbursed, in part, to the county commission and to the school board. Public officials are presumed to perform their duties in a proper and lawful manner. Boardman v. Esteva, 323 So.2d 259 (Fla.1975), appeal dismissed, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976); Hunter v. Carmichael, 133 So.2d 584 (Fla.2d DCA 1961).

3. Lastly, the Club asserts that section 194.032(4), Florida Statutes (Supp. 1976), which allows the Board to appoint special masters to take testimony and make recommendations on which “the board may act upon without further hearing ...” denies procedural due process. The Club argues that the Board is merely a “rubber stamp” of the special masters; another contention made without record support. In any event, “due process is met if one adequate method of judicial review of the orders of administrative agencies is set up and [,] ... such method may be made exclusive by statute.” Johnson v. McNeill, 151 Fla. 606, 610, 10 So.2d 143, 145 (1942); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974). Viewing the statute as a whole, we see that taxpayers desiring to challenge their ad valorem real property tax assessments are afforded not only notice and an opportunity to be heard at an administrative level but an absolute right to a trial de novo in the circuit court. Section 194.032(4) obviously provides taxpayers with procedural due process.

The order of the trial court, dismissing the Club’s complaint and rejecting constitutional attacks on various statutes, is affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . We decline to consider several matters raised by the Club for the first time on appeal. Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Ass’n, 361 So.2d 128 (Fla.1978).

      . § 194.032(6)(c), Fla.Stat. (Supp.1976).

      . At the time the Club brought its first trial court action challenging the appraiser’s 1976 assessment, the Board’s predecessor — the Board of Tax Adjustment — was in operation. § 194.015, Fla.Stat. (1975). The two boards are virtually identical in their roles in the tax assessment process.

      . The current dual officeholding prohibition includes municipal officers. Its predecessor under the 1885 constitution had been construed to exclude such personnel from coverage. Commentary to Art. II, § 5(a), Fla.Const. (1968), appearing at 25A Fla.Stat.Ann. 505-06 (1970).

      . The predecessor to this provision under the constitution of 1885, article XVI, section 15, is substantially unchanged, so that interpretations of the former provision are persuasive for our analysis here. Bamdollar v. Sunset Realty Corp., 379 So.2d 1278, 1280 n.1 (Fla. 1979); Gray v. Bryant, 125 So.2d 846 (Fla. 1960).

      . See art. VII, § 9(a), Fla.Const.

      . Board proceedings are governed by rules prescribed by the Department of Revenue. § 195.-027(1), Fla.Stat. (1975). Florida Administrative Code rule 12D-10.03 provides:
      Powers, Authority, Duties and Functions of Property Appraisal Adjustment Board.
      (1) The Board has no power to fix the original valuation of property for ad valorem tax purposes or to grant an exemption not authorized by law and the Board is bound by the same standards as the county appraiser in determining values and the granting of exemptions. The Board has no power to grant relief either by adjustment of the value of a property or by the granting of an exemption on the basis of hardship of a particular taxpayer. The Board in determining the valuation of a specific property shall not consider the ultimate amount of tax required.

      .In Whitaker this Court concluded that the state treasurer’s membership in the “State Livestock Sanitary Board” was not a public office within the purview of the dual officehold-ing prohibition of article XVI, section 15, Florida Constitution (1885):
      The fact that separately the designated officers have different duties and authority does not prevent them from acting conjointly as members of a board having specific statutory duties to perform collectively. Likewise, when a statute provides that stated officers shall constitute a board with administrative functions, no new officers are thereby created, but new duties are imposed upon officers already in commission.

      80 Fla. at 365, 86 So. at 252 (emphasis added). In the State Turnpike Authority case, we held that a statute requiring a member of the State Road Department, as designated by the Governor, to serve on the State Turnpike Authority did not violate the dual officeholding prohibition of the 1885 constitution. In so doing, this Court took notice of the relationship between the State Road Department and the Turnpike Authority, and concluded that as a practical matter the subject appointment constituted the imposition of additional duties which served “to create a liaison between a board charged with general supervision of the highway systems and one charged with construction of a turnpike.... ” 80 So.2d at 344.

      . Ch. 4322, Laws of Fla. (1895).

      . Ch. 69-140, § 2, Laws of Fla. (amending § 193.26, Fla.Stat. (1967)).

      . Ch. 76-133, § 6, Laws of Fla. (amending § 194.015, Fla.Stat. (1975)).

      . Courts frequently render decisions involving matters of taxation, yet no one would seriously contend that the courts are incapable of rendering fair decisions in such cases simply because the judicial branch is financially supported by tax revenues.

      . The Club contends that a circuit court trial de novo is costly and time consuming. Procedural due process is not abridged, however, by normally burdensome adjuncts of court proceedings.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Henry R. BARKSDALE, Respondent.
    No. 57925.
    Supreme Court of Florida.
    Jan. 29, 1981.
    Alan Rosenbloum, Chairman, First Judicial Circuit Grievance Committee, Pensacola, James P. Hollaway, Deputy Staff Counsel, and John A. Weiss and Anita F. Dahl-quist, Asst. Staff Counsels, Tallahassee, for complainant.
    T. Sol Johnson of Johnson, Green & Westmoreland, Milton, and W. H. F. Wilt-shire of Harrell, Wiltshire, Stone & Swear-ingen, Pensacola, for respondent.
   PER CURIAM.

In this disciplinary proceeding the report of the referee has been filed, but neither The Florida Bar nor respondent, Henry R. Barksdale, has filed a petition for review.

The referee found that Barksdale has misappropriated trust funds of a client. He also found various mitigating circumstances. The referee then recommended that the following judgment be entered:

I. That the respondent, Henry R. Barksdale, be found guilty by the Court of misconduct justifying disciplinary measures.
II. That the respondent be suspended from the practice of law for the term of two years, and that at the end of said term of suspension he be reinstated only upon proof of rehabilitation and restitution to the estate of Margaret Berger of the sum of $25,769.37, plus interest thereon from February 9th, 1979, at the rate of ten percent per annum. That in the event the estate has been paid the loss from the Clients’ Security Fund of The Florida Bar, then restitution should be made to said Fund.
III. That upon reinstatement respondent be placed on probation for three years conditioned upon his compliance with all Integration Rules of The Florida Bar, and upon his total abstinence from alcoholic beverages.
IV. That respondent pay the costs of these proceedings in the sum of $800.79 within thirty days from the date of the Court’s judgment herein.

There being no petition for review, the recommendation of the referee is adopted as the judgment of this Court.

The suspension shall be effective March 2, 1981, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

It is so ordered.

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

The Court accepts the referee’s recommendation because there is no petition for review. Because I believe that respondent’s misconduct warrants disbarment, I would reject this recommendation and enter a judgment of disbarment.


author: PER CURIAM. McDONALD, Justice,

text:
    Andrew COZINE, etc. et al., Petitioners/Appellants, v. Ralph TULLO, Jr., etc. et al., Respondents/Appellees.
    Nos. 58099, 58143.
    Supreme Court of Florida.
    Jan. 29, 1981.
    A. J. Barranco, Jr., and Steven Kellough of Law Offices of A. J. Barranco, Jr., Miami, for petitioners/appellants.
    Philip E. DeBerard, III, Law Offices of Richard M. Welsh, Miami, for respondents/appellees.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   PER CURIAM.

This is a combined appeal and petition for certiorari from an order of the trial judge striking Cambridge Mutual Fire Insurance Company from a personal injury action brought against its insured. In doing so the court upheld the constitutionality of section 768.045, Florida Statutes (1977). We have jurisdiction. The issue is whether this statute is an impermissible invasion of this Court’s rulemaking authority. For the reasons expressed in Markert v. Johnston, 367 So.2d 1003 (Fla.1978), we hold that it is and that the statute is unconstitutional.

This cause is remanded to the trial court for further proceedings consistent with this holding.

It is so ordered.

SUNDERG, C. J., and ADKINS, BOYD and ENGLAND, JJ., concur.

McDONALD, J., dissents with an opinion with which OVERTON and ALDERMAN, JJ., concur.

McDONALD, Justice,

dissenting.

Although the proposition has been criticized, procedural rulemaking is the exclusive province of this Court. I disagree, however, that either section 627.7262(1) or 768.045, Florida Statutes (1977), is entirely procedural so as to run afoul of this exclusive power.

In Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), this Court, changing prior holdings, recognized the right of an injured party to join the defendant’s auto insurance company as a real party in interest in suits against that company’s insured. At the same time, however, we recognized the authority of the legislature to relieve insurance companies of this rule:

This requirement of the procedural rules raises the presumption that unless the Legislature in the exercise of its police power regulation of insurance, affirmatively gives insurers the substantive right to insert “no joinder” clauses in liability policies there is no basis in law for insurers to assume they have such contractual right as a special privilege not granted other citizens to contract immunity with their insureds from being sued as joint defendants by strangers.

Id. at 718-19. In Markert v. Johnston, 367 So.2d 1003 (Fla.1978), we tacitly recognized the above principle but concluded that section 627.7262(1) was entirely procedural.

I recognize that the determination of what is procedural and what is substantive is no easy task, but I suggest that section 768.045 is not procedural. In the first sentence the joinder of an indemnity insurance company in a tort action brought against its insured is prohibited. Additional parts of the statute place various affirmative duties on a company.

Insurance is a contract whereby one undertakes to indemnify or pay or allow a specified amount of a determinable benefit upon determinable contingencies. § 624.02, Fla.Stat. (1977). Liability insurance is insurance against legal liability for the death, injury, or disability of any human being, or for damage to property. § 624.605(l)(b), Fla.Stat. (1977). The liability of an insurance company is not fixed until the liability against its insured is determined, at which time it is the insurer’s duty to protect its insured by paying the liability up to the amount it agreed so to do. Of course, the insurance company is a real party in interest because, if there be no liability on the part of its insured, the company also escapes liability. Likewise, the company is interested in the size of any verdict should there be liability.

The presence or absence of an insurance company in a suit should not affect either liability or damages, but few people truly feel that it does not. Sometimes an injured party loses or is awarded less than he is entitled to, unless the insurance company is a party, because the jury is apprehensive of a verdict's impact on the defendant; sometimes a higher verdict is returned simply because an insurance company is named. Either way the insurance company comes out ahead by not being joined.

The insurance industry has shown a keen interest in getting out of such suits; the plaintiff’s bar has been united in its attempt to keep insurance companies in. These interested parties, at least, must also feel that substantive rights are affected by nonjoinder statutes.

The legislature has enacted myriad statutes in the field of insurance. It has noted thereby a public interest in this area. One of its legitimate concerns is to determine whether the public interest is served best by the joinder or by the nonjoinder of insurance companies in tort litigation. Because the legislature has a legitimate interest in this subject matter, we should recognize that interest by upholding nonjoinder statutes. Should the legislature change its view and allow an indemnity insurance company to be joined, we should recognize that.

I would sustain the trial judge’s ruling.

OVERTON and ALDERMAN, JJ., concur.

        See Means, The Power to Regulate Practice and Procedure in Florida Courts, 54 Fla.B.J. 276 (1980).


author: ALDERMAN, Justice.

text:
    Daniel J. FAULS, Petitioner, v. SHERIFF OF LEON COUNTY, Florida, Respondent.
    No. 59368.
    Supreme Court of Florida.
    Jan. 29, 1981.
    Joseph P. Mawhinney of the Law Offices of John A. Barley, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.
   ALDERMAN, Justice.

The First District Court of Appeal has certified that its en banc decision in Fauls v. Sheriff of Leon County, Florida, 384 So.2d 238 (Fla. 1st DCA 1980), conflicts with the Third District Court of Appeal's decision in Bentzel v. State, 365 So.2d 441 (Fla. 3d DCA 1978). The issue is whether the trial court committed fundamental error that could be raised for the first time on appeal when it failed to grant habeas corpus in an extradition proceeding after the state failed to physically introduce into evidence the governor’s rendition warrant and after the petitioner admitted the warrant’s existence and did not challenge its sufficiency nor object to its nonintroduction. We hold that under these facts the error was not fundamental, and we therefore approve the First District’s decision.

The governor of Georgia signed a demand warrant for Fauls’ extradition to that state. Upon determining that the requirements of section 941.03, Florida Statutes (1979), had been met, the governor of Florida signed a rendition warrant for Fauls’ arrest and return to Georgia. Fauls then filed a habeas corpus petition in the Leon County Circuit Court challenging his detention. He alleged that the Florida governor had signed a rendition warrant pursuant to which he was being detained, but he did not challenge the warrant’s sufficiency. His habeas corpus petition was based upon the grounds that he was not a fugitive from justice, that he was not the person named in the extradition request, and that the requisition papers were improper on their face.

At the habeas corpus hearing, the state did not physically introduce the rendition warrant; however, evidénce supporting the warrant was introduced. This evidence established that Fauls was the person named in the rendition warrant, that Fauls has been charged with a crime in Georgia, and that Fauls is a fugitive from justice. The evidence also established that the requisition papers were not facially invalid. Fauls did not raise an objection to the introduction of this evidence and left it unrefuted.

Fauls now argues that the trial court erred in denying his petition because the governor’s rendition warrant was not physically introduced at the habeas corpus hearing. This argument was raised for the first time before the district court. He relies primarily on three cases for the proposition that the state must introduce the rendition warrant in order to make a prima facie case. Bentzel v. State, 365 So.2d 441 (Fla. 3d DCA 1978); Simpson v. Woodham, 332 So.2d 693 (Fla. 1st DCA 1976); and Di Piero v. State, 300 So.2d 700 (Fla. 3d DCA 1974). The state’s response is that Fauls did not object in the trial court to its failure to physically introduce the rendition warrant, and therefore he is precluded from raising it as an issue on appeal.

Florida adopted the Uniform Interstate Extradition Act in 1941. Codified as chapter 941, it directs the governor, upon proper demand, to have arrested and returned to the demanding state any person who is charged with a crime in another state, who has fled from justice, and who is found in this state. Section 941.02, Florida Statutes (1979). The demand is considered proper when the executive authority of the demanding state alleges in writing that the accused was present in the demanding state when the crime was committed and has since fled from the state. The demand must be accompanied by either an indictment or an information or warrant supported by an affidavit which charges the accused with a crime, or a judgment of conviction or sentence supported by a statement from the executive authority that the accused is an escapee or has otherwise broken the terms of his sentence. Section 941.-03, Florida Statutes (1979). When the governor of the asylum state issues his rendition warrant, the accused may challenge the warrant in a habeas corpus proceeding. Section 941.10, Florida Statutes (1979). The role of the trial court in these procedures is limited. “Once the governor has granted extradition, a court considering release on habeas corpus can do more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978).

Di Piero, Simpson, and Bentzel do not control this case. In Di Piero, the detainee was taken into custody pursuant to a rendition warrant issued by this state’s governor. Di Piero petitioned for a writ of habeas corpus, denying the warrant and denying that he ever fled from the jurisdiction of the demanding state. At the habeas corpus hearing, the state failed to introduce into evidence the governor’s rendition warrant. It did attempt to introduce the demanding state’s warrant, but objection by Di Piero prevented its introduction. Over Di Piero’s objection, evidence was introduced to establish that Di Piero and the person named in the warrant were the same. The petition was denied, and Di Piero appealed. The Third District reversed the trial court and ordered Di Piero discharged. It regarded the rendition warrant as the vital piece of evidence to test the competency of the supporting evidence because “[t]he warrant was in effect the only piece of evidence that could serve as the basis for the introduction into the hearing of the ... other items of proof.” 300 So.2d at 702. In other words, when Di Piero objected to the introduction of the other items of proof supporting the warrant, that objection should have been sustained and those items should not have been admitted.

The reasoning of the Di Piero court was used in the First District’s decision in Simpson where that court said “[introduction of the Governor’s warrant is essential, and the warrant should be introduced in order to test the competency of the evidence supporting it.” 332 So.2d at 693. The First District has now receded from Simpson “to the extent that any statement therein would require a contrary decision in this case.” Fauls v. Sheriff of Leon County, 384 So.2d at 240.

In Bentzel, the Third District, in a brief one-paragraph opinion, held, on the authority of Di Piero and Simpson, that the governor’s rendition warrant was indispensable and that the failure to introduce it was fatal to the state’s case. It is not apparent, however, from the Bentzel opinion whether the state attempted to introduce the evidence supporting the rendition warrant and, if it did, whether the petitioner objected. Bentzel, therefore, is distinguishable on that basis.

When the state attempted to introduce evidence supporting the rendition warrant without first introducing the warrant, Fauls could have objected to the admission of this evidence. Then, if the warrant was not produced and offered into evidence or if the warrant was unavailable or was found to be defective, the trial court would have sustained Fauls’ objection and granted the writ of habeas corpus. Fauls, however, remained silent and allowed his petition to be denied without challenging the sufficiency of the rendition warrant or objecting to its nonintroduction.

We hold that the governor’s rendition warrant should be introduced into evidence in a habeas corpus proceeding brought to challenge it and that failure to introduce the warrant may be fatal to the state’s case. However, when the state does not physically introduce the warrant but does introduce the evidence supporting it and the petitioner does not object, the nonintro-duction of the warrant is not fundamental error. That being the case, Fauls could not raise this point for the first time in his appeal to the district court. See Castor v. State, 365 So.2d 701, 703 (Fla.1978).

Accordingly, the decision of the District Court of Appeal, First District, is approved.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM.

text:
    Royce Lee ENGLEHART, Appellant, v. STATE of Florida, Appellee.
    No. 58424.
    Supreme Court of Florida.
    Feb. 5, 1981.
    Richard L. Wilson, Orlando, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. Gluesenkamp v. State, 391 So.2d 192 (Fla.1980).

ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., dissents.