author: REDMANN, Judge. BARRY, Judge,

text:
    Huey P. ADAMS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11532.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 1981.
    Writ Granted April 27, 1981.
    Ronald L. Wilson, New Orleans, for plaintiff-appellant.
    A. R. Christovich, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and BARRY, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of his suit for workers’ compensation for disability from a heart problem. We affirm.

Plaintiff had worked for 30 years as an automotive mechanic before he went to work for defendant as a probationary employee on April 3,1978. After working for defendant less than 90 days, plaintiff began to experience at work, he testified, “slight shortness of breath and these chest pains just minor,” “but never was there ... any sudden pain to where it would just completely stop me in my tracks.” On the last night he worked, a co-worker testified, “he told me he was feeling bad like he had indigestion.” Another co-worker, also a mechanic, but “in charge at times” though not a foreman, testified that plaintiff made no complaints to him of any “physical condition,” that “he just said it was hot” that night of July 1. Plaintiff did not report any incident to any supervisor, and he finished that shift’s work, but he did not show up for work thereafter.

Plaintiff went to a hospital on July 3, where electrocardiograms, chest x-rays, blood tests and a stress test were all normal. He was, however, diagnosed as having arteriosclerotic heart disease (“hardening of the arteries of the coronary vessels”) which can cause pain on exertion. The medical restrictions placed on plaintiff were no heavy exertion or heavy stress.

The medical testimony is that coronary arteriosclerosis “requires many years to develop, particularly to a point where it produces symptoms or complaints; perhaps even longer to produce findings.” “In the absence of a thrombosis or infarction occurring, there is no detectable difference” in the coronary arteries as the result of a single incident of the chest pains called angina pectoris.

Louisiana has awarded workers’ compensation when stressful employment for the same employer over a period of many years has produced the disabling arteriosclerosis; Bertrand v. Coal Operators Cas. Co., 1969, 253 La. 1115, 221 So.2d 816 (16 years as heavy laborer); Ray v. City of New Orleans, La.App. 4 Cir. 1973, 284 So.2d 83, writ refused, 286 So.2d 661 (20 years as fireman). In our case, however, the medical evidence will not support a conclusion that any incident or series of incidents during plaintiff’s 90-day employment caused the arteriosclerosis, or, specifically, that the incidents of angina pectoris on July 1 and earlier caused any deterioration whatsoever in plaintiff’s condition: all that happened was that plaintiff discovered that he had arteriosclerosis, as a result of which his doctor recommended against heavy exertion.

Indeed, plaintiff’s wife testified that “two months before he was admitted to the hospital [or about 30 days after starting to work for defendant], I noticed his coloring was bad, getting bad,” and she spoke of symptoms of indigestion, etc. occurring at home.

On this record, we cannot say that the trial judge erred in holding defendant not liable for compensation.

Affirmed.

BARRY, J., dissents with written reasons.

BARRY, Judge,

dissenting.

I feel the record supports appellant’s claim that he sustained a work related com-pensable claim which caused his disability.

Prior to employment he passed a physical examination by defendant’s physician. Angina began thereafter as a result of strenuous work which aggravated his apparent latent heart disease.

If the claimant had died following complaints of chest pain on the job, irrespective of his brief employment, his death would clearly be compensable. Here the claimant was fortunate, survived, but incapacitated to continue his physical activities necessary to his employment.

A similar situation existed in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (La.1968). There the worker also suffered angina pectoris due to exertion at work and was awarded benefits.

Under our liberal interpretation of the compensation act I feel the employee is entitled to benefits and I therefore respectfully dissent.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    GODCHAUX-HENDERSON SUGAR COMPANY, INC. v. RESERVE BARGE SERVICE, INC.
    No. 12276.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 1981.
    Gerald F. Slattery, Jr., Singer, Hutner, Levine, Seeman & Stuart, New Orleans, for plaintiff-appellee.
    Before REDMANN, GULOTTA and KLIEBERT, JJ.
   ON MOTION TO DISMISS

REDMANN, Judge.

On appellee’s motion, we dismiss this appeal from an eviction because appellant did not present any affirmative defense to the eviction and La.C.C.P. 4735 allows appeal from eviction only when defendant has “plead[ed] an affirmative defense entitling him to retain possession of the premises

Defendant stipulated that its lease had expired, but argues that it cannot conveniently remove a barge from atop the formerly-leased batture on the Mississippi in any way other than it placed the barge there, namely by floating it in the high water of spring.

That is no “affirmative defense entitling [defendant] to retain possession of the premises.”

Appeal dismissed.


author: CHEHARDY, Judge.

text:
    Anna DEGEL v. John G. DEFFES, Sr.
    No. 12215.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Clarence 0. Depuy, Jr., James G. Dal-feres, New Orleans, for appellee.
    Robert 0. Homes, Jr., Gulfport, Miss., for appellant.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Defendant and plaintiff in reconvention, John G. Defies, Sr., seeks to appeal a. district court judgment in favor of plaintiff, Anna Degel, maintaining her exceptions of no cause of action, or no right of action in regard to the defendant’s reconventional demand.

Plaintiff filed suit for partition of community on October 18, 1977. Defendant answered and also filed a reconventional demand for partition, reimbursement, accounting and other relief. In maintaining the plaintiff’s exceptions, the trial court in its reasons for judgment noted:

“ * * * In his reconventional demand, defendant has asked that he be reimbursed for one-half of the fair market rental value of the community property. A co-owner has the right to use and to occupy community property without becoming liable for rent or rental value therefor. Acrement v. Acrement, 162 So.2d 813 (La. App. 4th Cir. 1961); Spencer v. Spencer, 273 So.2d 605 (La. App. 4th Cir. 1973). If a co-owner rents part of the community property, she must account for any rents actually received, but not for fair market rental value subsequently determined. Juneau v. La-Borde, 228 La. 410, 82 So.2d 693 (1955); La. CCP Article 4626(2). If a co-owner is not satisfied with another co-owner’s use or occupancy of the co-owned premises, his remedy is to sue for partition and to prosecute the suit with diligence. Defendant has no cause of action to sue for fair market rental value of co-owned property occupied either directly by his co-owner or indirectly through a tenant.
“Defendant also has no cause of action to allege that a co-owner deducted too much on a separate tax return related to co-owned property, that defendant should have deducted expenses on his interest in co-owned property which he failed to deduct, and that he is entitled to reimbursement therefor. Defendant’s remedy is to amend his own tax returns if he failed to deduct what he could have deducted.
“In a partition suit, defendant has no cause of action to either ask for the return of or the value of alleged separate property or to assert non-co-ownership claims against the funds to be derived from a partition sale.
“Likewise, defendant has no cause of action to claim reimbursement for money given to plaintiff for the personal use of plaintiff and the children of plaintiff and defendant.
“In light of the above reasoning and rulings the remaining exceptions of plaintiff are moot.”

This judgment, therefore, clearly , determined the merits, at least in part, in the present case. In the case of Peloquin v. Calcasieu Parish Police Jury, 367 So.2d 1246 (La. App. 3d Cir. 1979), plaintiffs appealed the dismissal of part of their claim under the exceptions of no right of action and no cause of action filed by the defendants, although the remainder of plaintiffs’ claim had. not been tried in the district court. Defendants objected to the appeal arguing that the exceptions maintained by the trial court were interlocutory judgments from which no appeal lies. The Court of Appeal, however held at page 1248:

“ * * * This Court disagrees with defendants’ contentions and holds that the judgment is a final judgment and plaintiffs are entitled to appeal. Article 2083 of the Code of Civil Procedure allows an appeal to be taken in cases where final judgment has been rendered and in cases where interlocutory judgment may cause irreparable injury. Article 1841 states (in part) that:
‘A judgment that determines the merits in whole or in part is a final judgment’. See also Cary v. Richardson, 35 La.Ann. 505 (1883); Voisin v. Luke, 142 So.2d 815 (La. App. 1 Cir. 1962).
“In the present case, by maintaining the exception, the trial court has pronounced the final judgment on all the plaintiffs’ claims save one. This clearly falls within the meaning of the above cited article:
‘The final judgment need not dispose of all issues between the parties to be appealable.’ Talley v. Bradley, 177 So.2d 624 (La. App. 3 Cir. 1965); Devillier v. City of Opelousas, 243 So.2d 118 (La. App. 3 Cir. 1971.)”

Clearly, in the present case the judgment appealed from determined the merits of the defendant’s reconventional demands for one-half of the market rental value of co-owned property, reimbursement for improper deductions of tax returns, return of value of alleged separate property, and reimbursement for money given to plaintiff for personal use, rendering the judgment a final one on these issues.

For the reasons above, the motion to dismiss this appeal, filed by the plaintiff, is denied.

MOTION DENIED.


author: BEATTY, Justice. TORBERT, Chief Justice BEATTY, Justice.

text:
    WINN-DIXIE MONTGOMERY, INC. v. Bobby HENDERSON.
    79-456.
    Supreme Court of Alabama.
    Jan. 16, 1981.
    Rehearing Denied March 6, 1981.

      Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Richard W. Whittaker of Pittman, Whittaker & Hooks, Enterprise, for appellant.
    M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.
   BEATTY, Justice.

Winn-Dixie Montgomery, Inc., appeals from a $45,000.00 jury verdict in favor of Bobby Henderson. Winn-Dixie has been successful on two prior appeals to this Court involving the same fraud claim. Winn-Dixie Montgomery, Inc. v. Henderson, Ala., 353 So.2d 1380 (1977); Winn-Dixie Montgomery, Inc. v Henderson, Ala., 371 So.2d 899 (1979). We affirm.

Henderson claims damages for alleged false and fraudulent representations made by a Winn-Dixie employee, Mr. Lott, in Dothan, Alabama, in September or October, 1973, that he would be transferred to a store in Enterprise, Alabama. Relying on these representations, Henderson purchased a beauty shop in Enterprise for his wife. Later, in March 1974, after the promised transfer did not materialize, Henderson quit his job and sold the Enterprise beauty shop at a loss. He then started farming and also went into the chicken business with his father.

In his complaint Henderson included two fraud counts: Count 4, which alleges fraudulent and false statements made with an intent to deceive, and Count 5, which alleges representations known to be false at the time they were made, which were made willfully to deceive or recklessly without knowledge. Punitive damages were claimed under both counts.

During his case-in-chief, Henderson adduced from Morgan Britt Lee, another employee of Winn-Dixie, testimony that Winn-Dixie employees had previously made to him false representations concerning promised transfers. The trial court denied Winn-Dixie’s motions for directed verdict at the close of the plaintiff’s case and also at the close of all the evidence. The jury returned a verdict of $45,000.00 in favor of Henderson. After Winn-Dixie’s motion for new trial and/or remittitur and motion for judgment notwithstanding the verdict were denied, Winn-Dixie appealed.

Winn-Dixie alleges that the evidence was insufficient to establish a case of legal fraud. In International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977), this Court outlined the elements of a cause of action sufficient to constitute legal fraud by stating:

Regardless of whether the representations were made wilfully, recklessly or mistakenly, it has been held that there must be (1) a false representation, (2) the false representation must concern a material existing fact, (3) the plaintiff must - rely upon that false representation, and (4) the plaintiff must be damaged as a proximate result... .

While it is ordinarily true that an intent to deceive is an indispensable element of an action for fraud, when representations are made recklessly and heedlessly without any regard to their consequences, they will supply the necessary intent to support a fraud action. International Resorts, Inc., supra.

The statements made by Lott to Henderson that he would be transferred were misrepresentations of a material fact, made with the intent that Henderson rely on them. Lott testified that he made the statements not with the intent to transfer Henderson immediately, but to “talk to him about it after the first of the year.” Lott was aware that Henderson was relying on the promised transfer when be bought the beauty shop, and Henderson clearly suffered a loss on the beauty shop. Thus, there was sufficient evidence on which to support a fraud claim.

Winn-Dixie contends that the trial court erred in allowing Morgan Britt Lee to testify that when he was employed by Winn-Dixie his supervisor made misrepresentations to him concerning promised transfers, on the ground that such testimony was remote, irrelevant and prejudicial. While it is true that Lee’s testimony in no way involved the conversations between Henderson and Lott,' Winn-Dixie, not Mr. Lott, is the defendant in this case. Since Winn-Dixie, as the employer, is sought to be made liable under respondeat superior, previous similar acts by different agents, both of whom act for the defendant, are admissible to show fraud, scheme, motive or intent. See Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961). Moreover, wide latitude is allowed with regard to testimony in fraud cases since often the perpetrator is the sole possessor of the actual knowledge of the fraud. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975). Thus, Lee’s testimony was properly admitted by the trial court.

Appellant also contends that the evidence at trial was insufficient to support an award of punitive damages. The general rule is that punitive damages may be awarded in fraud cases if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and that the representations were made with knowledge of their falsity. Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). Evidence of intent to deceive supplies proof that the fraud was committed grossly. Randell v. Banzhoff, Ala., 375 So.2d 445 (1979).

In the second appeal of this case this Court said:

[O]n the first appeal, there was not a scintilla of evidence to support an award of punitive damages. Unless something new was presented at the second trial, our holding on the present appeal must be the same. [371 So.2d at 902.]

At the second trial this Court did not find such new evidence and denied punitive damages. The question, therefore, is whether sufficient new evidence was presented at the third trial to support an award of punitive damages. We hold that it was.

The evidence at the third trial was more than a mere accumulation of that presented at the past two trials. Mr. Lee testified for the first time at the third trial concerning prior similar conduct of Winn-Dixie in order to show fraud, scheme, motive or intent. This new evidence supports a finding that the fraud was malicious, oppressive or gross. Moreover, the testimony adduced at the second trial, which showed that trained employees are a considerable benefit to Winn-Dixie during the busy Christmas season, was reiterated and amplified. As stated above, there was also sufficient evidence to find that the representations were made with knowledge of their falsity since they were made not with the intent to transfer Henderson immediately, but to consider the matter later. Clearly the totality of the evidence, both new and old, presented a jury question on the issue of intentional misrepresentations made with knowledge of their falsity and therefore were sufficient to support an award of punitive damages in this third trial. Since punitive damages are discretionary with the jury depending on the enormity of the wrong and the necessity of preventing similar wrongs, Neil Huffman Volkswagen Corp. v. Ridolphi, Ala., 378 So.2d 700 (1979), the damages awarded were not excessive but must be deemed proper.

Let the judgment be affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, J„ dissent.

ADAMS, J., not sitting.

TORBERT, Chief Justice

(dissenting).

Although I am compelled to agree that plaintiff has produced a scintilla of evidence that defendant intentionally misrepresented that it planned to transfer plaintiff, I believe that the record does not disclose the highly culpable conduct necessary to support the jury’s award of punitive damages. I am distressed the majority concluded that “[ejvidence of intent to deceive supplies proof that the fraud was committed grossly,” because I do not believe such a rule can be fairly drawn from past cases. • The effect of the majority opinion is to eradicate the traditional requirements for imposition of punitive damages in fraud cases, i. e., intentional and gross, malicious, or oppressive conduct, and to substitute the simple requirement that the evidence need only disclose intentional conduct.

I am of the opinion that the test for propriety of punitive damages in fraud cases requires not only intentional (or reckless) wrongdoing, but also exceptional or extraordinary circumstances clearly indicating aggravated, malicious, or spiteful conduct. See 10A Ala.Dig. Fraud, Key 61. I recognize that there is a very difficult and inarticulable distinction between intentional fraud and intentional, aggravated fraud. As was said in Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970), “If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly.” Id. at 504, 234 So.2d at 41.

From a perusal of all [fraud] cases ... the conclusion can be drawn that there, exists no strict line of demarcation dividing automatically and with absolute certainty the cases involving aggravated fraud from those in which the courts assume the existence of a simple fraud. All that can be said is that, to constitute aggravated fraud, there must be some additional element of asocial behavior which goes beyond the facts necessary to create a case of simple fraud.

Annot. 165 A.L.R. 614, 616 (1946).

The difficulty in application of the rule, however, should not dissuade us from applying it.

Applying the traditional test to the facts, I am unable to find evidence to support the punitive award. If the misrepresentation was intentional, all Winn-Dixie could hope to gain was Henderson’s continued employment through the Christmas season. Additionally, Lott may have intentionally misrepresented that he would transfer Hender--son when, at that time, he did not intend to do so; nevertheless, there is evidence that he planned to explore the possibility of a later transfer. Finally, only about $1,500 damage to Henderson is properly traceable to the fraud. These facts, along with the record as a whole, do not demonstrate the gross conduct I believe is necessary to sup-' port a punitive award.

I would affirm the compensatory award and reverse the award of punitive damages.

ON REHEARING

BEATTY, Justice.

On application for rehearing Winn-Dixie urges that this Court erroneously determined that there was sufficient evidence to support an award of punitive damages. In our opinion the following statement was made, “Mr. Lee testified for the first time at the third trial concerning prior similar conduct of Winn-Dixie in order to show fraud, scheme, motive or intent.” (Emphasis added.) In the application for rehearing Winn-Dixie urges that this is an incorrect statement, since Mr. Lee testified at the first trial of this case, although he did not testify at the second trial. Moreover, Winn-Dixie urges that this Court erroneously based the determination that sufficient evidence was presented to award punitive damages on this erroneous belief that Mr. Lee was a new witness.

In the second appeal of this case Mr. Justice Bloodworth, speaking for this Court, said:

[O]n the first appeal, there was not a scintilla of evidence to support an award of punitive damages. Unless something new was presented at the second trial, our holding on the present appeal must be the same.

Thus, the sole issue before us is whether new evidence was presented in the third trial which was not presented in the past two trials. It does not matter whether Mr. Lee was, in fact, a new witness. The only question is whether new evidence was presented at the third trial.

In an excess of caution we have reviewed the records of the three trials of this case in order to determine if the testimony of Mr. Lee in the third trial, which was relevant to the issue of fraud and the allowing of punitive damages, exceeded or went beyond that in the first trial.

In the first trial the following transpired:

Q. Was your termination voluntary?
A. Yes, sir.
Q. What brought it on?
A. I started over in Dothan as a stock clerk. I worked my way up to produce manager, assistant manager, and then in 1964, they transferred me to Enterprise as store manager of this store. I was manager until 1972, about January, and they had been planning on building a new store, and I had been told by my supervisor before that time, that he was going to transfer me back to Dothan, and as manager of the old store, and the first day of January or thereabouts, a day or two, he came in and told me that they had — was going to transfer me to the Dothan store, but I wouldn’t be store manager. I would just be assistant manager, and 'it would cut my pay approximately $42.00 per week plus me haying to drive back and forth every day to work.
Q. All right. And you quit?
A. Yes, sir. I didn’t quit that day, I worked approximately 7 weeks before I quit.
Q. After you quit, did you make application for your profit-sharing funds?

The remainder of his testimony concerned the profit-sharing plan of Winn-Dixie. After reviewing the record, we find that the purpose of his testimony at the first trial was to show that when Mr. Lee voluntarily terminated his employment, he received payments under Winn-Dixie’s profit-sharing plan.

In the third trial, however, counsel for the plaintiff outlined the purpose of Mr. Lee’s testimony by stating:

MR. MARSH: Judge, we expect to show prior similar conduct of the defendant which would be admissible evidence of other fraudulent transactions or deceit by the defendant. We feel it admissible to show fraud, motive, scheme, or intent.

There Mr. Lee’s testimony went into detail regarding the duties of supervisors, especially as pertained to arranging transfers for employees, and the exact misrepresentations which were made to Mr. Lee by his supervisor. The inferences which a jury could have made from his testimony there were entirely different from those which would have been made after his testimony in the first trial. Certainly counsel for Winn-Dixie must have believed his testimony was admitted for a new purpose and was substantially different, since he urged in brief that the testimony of Mr. Lee in the third trial placed an “undue burden of surprise and prejudice on Winn-Dixie.”

After our careful review of the records we find that although this was not the first time Mr. Lee testified, it was the first time his testimony was used to show fraud, scheme, motive or intent on Winn-Dixie’s part. Much of his testimony was new evidence, which coupled with the other evidence elicited at trial, comprised more than a sufficient amount to support an award of punitive damages.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

ADAMS, J., not sitting.


author: ADAMS, Justice.

text:
    Minnie Smith CAMPBELL et al. v. Raeder CARL.
    79-659.
    Supreme Court of Alabama.
    Feb. 27, 1981.
    Sarah S. Frierson of Collins, Galloway & Smith, Mobile, for appellants.

      Ronnie E. Keahey of Gilmore & Keahey, Grove Hill, for appellee.
   ADAMS, Justice.

This is a suit in equity to establish a boundary line between two parcels of land. The plaintiff’s husband, Maynard Carl, originally owned both parcels of land and later conveyed them and other contiguous property to the plaintiff, Raeder Carl, on August 21, 1946. This deed described the southern and northern parcels as the SW Vi and NW Vi, respectively, of the SW Vi, Section 5, Township 9 North, Range 1 West. Each parcel contained about 40 acres of farm land. On January 15, 1949, Raeder Carl conveyed the southern parcel and the other contiguous property by deed to S. J. Smith, retaining for herself the northern parcel. This deed contained the following description of the conveyed property (emphasized portions apply to the boundaries of the southern parcel):

Southwest Quarter of the Southwest Quarter of Section 5, Township 9, North, Range One West; Ten (10) acres in the Northeast Quarter of Northwest Quarter of Northwest Quarter of Section 8, Township 9 North, Range one West.
Also ten (10) acres in the Northwest corner of the Northwest Quarter of Section 8, Township 9 North, Range One West; Containing in all sixty (60) acres, more or less.
Agreement is that a road be left open from Maynard Carl’s Barn to Mack York’s field gate. Road at this time being the line.

Smith and the Carls lived in harmony as neighbors until Smith’s death on September 12,1975. Smith’s property passed by intestacy to his widow, Minnie Smith Campbell, and heirs at law. The widow and heirs ordered a survey of the property and hacked a line on the boundary determined by the survey. This line placed the Carls’ old bam on the property of Smith’s widow and heirs and apparently ran through the Carls’ new bam. - Disputing this surveyed line as the true boundary between the two parcels of land, Raeder Carl filed this suit against Smith’s widow and heirs. Evidence was taken ore tenus without a jury. The trial court found for Raeder Carl, determining the true boundary line to be a field road running between the two parcels of land from their western to eastern boundaries. Smith’s widow and heirs appeal. We affirm.

The plat of the southern parcel, prepared from the survey ordered by appellants and incorporated in the trial court’s judgment, is provided herein with minor changes to accommodate this opinion. The confusion inherent in this case arises from the rough overlapping of several possible boundary lines. Beginning at the western boundary of the parcels, the field road runs close to the disputed survey line in an eastwardly direction from Mack York’s field gate to a point near the Carls’ old barn. Mack York owns property adjacent to the western boundary of the southern parcel. From this point, the road deviates from the path of thé survey line and cuts across the northeast corner of the southern parcel in a curved line. Beginning again at the western boundary of the southern parcel, an old fence follows the southern side of the road in an eastwardly direction, stopping at a point near the old barn. On the north side of the road near this point, another old fence begins and follows a straight path to the eastern boundary of the parcel, thus deviating from the curve of the field road. The surveyed boundary follows a straight line north of the road and the old fences.

The legal principles controlling boundary disputes were succinctly set out in Smith v. Nelson, 355 So.2d 359 (Ala.1978), viz.:

No authority need be cited for the recognized rule that a decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct, and in such cases the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust.
Equally applicable here is the principle that a decree fixing a boundary line between coterminous owners must only be supported by credible evidence. Snider v. Shirley, 341 So.2d 677 (Ala.1977).

Appellants argue that the decree in the instant case is not supported by credible evidence. We disagree.

Appellee claims the true boundary is the full extent of the field road across the disputed property on two theories:

(1) She adversely possessed property up to that line for the requisite 10 years; and/or

(2) The parties agreed upon the field road to be the boundary as clearly indicated by the deed.

Appellants claim the true boundary is the field road running from Mack York’s field gate to the Carls’ old barn, and, from that point, the surveyed line running to the eastern boundary of the disputed property. The trial court found the full extent of the field road to be the boundary, but its order does not specify which of appellee’s theories was adopted.

We agree with appellants that there is no credible evidence to support the judgment on the first theory of adverse possession. The testimony offered to this point is wholly insufficient. It indicates, at the most, that the Carls made use of the property, by grazing and other means, up to the old fence. This fence by no means follows the course of the field road, but jumps from one side of the road to the other, deviating substantially where the road arches across the corner of the southern parcel.

On the other hand, there is credible evidence to support appellee’s second theory. The deed itself specifies that the field road would be the line. Both Raeder Carl and Maynard Carl testified to the effect that this boundary was agreed upon by Smith and the Carls at the time of the conveyance of the southern parcel.

Appellants argue that this testimony was confusing and contradictory. It is pointed out that the original complaint alleged the old fence to be the boundary line while the plaintiff testified that the road was the true boundary. Certainly, a deviation in testimony from a complaint’s original allegations does not lessen its credibility. It is a common and expected occurrence foreseen by the drafters of Rule 15(b), ARCP, which allows amendments to conform to the .evidence. In this case, ap-pellee properly amended her complaint to allege the field road as the true boundary.

Appellants further argue that the testimony of Maynard Carl was contradictory, indicating his confusion. As noted earlier, confusion is inherent in this case of several possible overlapping boundary lines. It is also difficult to tell from the recorded testimony which landmarks the witnesses are referring to. In such a case, the trial court is in a better position to.weigh the testimony. As noted in Parrish v. Norton, 287 Ala. 670, 673, 255 So.2d 14 (1971):

The answers which the witnesses gave in response to questions so propounded are meaningless to us, since we do not have the pointing finger or any information which enables us to determine the particular line, location, distance, monument or fence to which the witnesses refer. The trial court was not so limited. See Christian v. Reed, 265 Ala. 533, 92 So.2d 881; Garrett v. Kirksey, 279 Ala. 10,181 So.2d 80; Williams v. Davis, 280 Ala. 631, 197 So.2d 285.

Furthermore, the trial court itself questioned Maynard Carl at length to clear up the confusion. At that time, Maynard Carl clearly testified that the full extent of the field road constituted the agreed boundary line.

Finally, appellants contend that the trial court erred in admitting the testimony of the Carls. First, it is argued that this was inadmissible parol evidence under the rule cited in Brown v. Powers, 167 Ala. 518, 520, 52 So. 647 (1910), viz.:

[W]e do not think the complainant could be permitted to show, by parol, over 20 years after the deed was executed, that he contracted for and bought a different 40 acres of land. If the deed misdescribed the land, it should have been corrected in an appropriate proceeding, and not by parol at this late day in the present proceeding.

This rule is inapplicable to the instant case. There is no “misdescription” here; the wrong property had not been mistakenly described in this deed. Rather, there is a conflict of descriptions in this deed, which merits the admission of parol evidence to ascertain which description the parties intended to adopt.

Similar evidence was admitted in the quiet title action of Smith v. Harbaugh, 216 Ala. 202, 112 So. 914 (1927), where the deed contained a dual description — one by courses and distances and the other by reference to a numbered lot as shown on a recorded plat. This Court allowed the testimony of the complainant’s husband to the effect that the parties intended the description by courses and distances to~ control, citing Aiken v. McMillan, 213 Ala. 494, 106 So. 150 (1925). Quoting the general rule of admitting parol evidence where the deed contains a latent ambiguity, the Aiken court noted that such an ambiguity exists “to the extent only that it [the property description] may apply to either of two pieces . .. . ” 213 Ala. at 502, 106 So. 150. Such a latent ambiguity exists in the instant case, and the testimony of the Carls was properly admitted.

Appellants also argue that Maynard Carl’s testimony violated Code 1975, § 12-21-163, or what is commonly called the “Dead Man’s Statute.” The trial court properly overruled an objection to the testimony on this ground. The statute only excludes the testimony of a witness who has “a pecuniary interest in the result of the action .... ” Code 1975, § 12-21-163. Maynard Carl is not a party to this proceeding. Contrary to appellant’s argument, this Court has specifically held that a husband’s potential inheritance from his wife, who is claiming the land, is not a sufficient pecuniary interest to invoke the statute. Hardy v. Killingsworth, 174 Ala. 322, 56 So. 965 (1911).

Finding the judgment of the trial court to be supported by credible, admissible evidence, we hold that the judgment is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Tommy Earl GROSS v. STATE.
    6 Div. 316.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Jerome S. Grand, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery. Sentence was twenty-five years’ imprisonment.

The State’s evidence shows that on September 7, 1979, the defendant, armed with a .22 caliber pistol, and another male robbed the cashier at Hardee’s restaurant in North Birmingham. During the course of this robbery, the defendant also robbed Ronald Lee who was visiting an employee in the restaurant.

Three issues are presented on appeal.

I

Initially, the defendant alleges that the trial judge abused his discretion by not granting his request to invoke “the rule” prior to and during the voir dire of the jury.

After the jury venire had been qualified and identified, it was determined, upon the suggestion of defense counsel, that a witness the State was going to call was present in the courtroom. Defense counsel requested that this witness be “excluded while we are asking questions of the jury.” The trial judge overruled defense counsel’s motion “at this time.” The record does not reflect that any other request was made to place the witnesses “under the rule.”

Considering the purpose behind “the rule” we find that the trial judge was well within the exercise of his discretion in denying the defendant’s motion.

“The purpose to be served in putting witnesses ‘under the rule’ is that they may not be able to strengthen or color their own testimony, to testify to greater advantage in line with their bias or to have their memories refreshed, sometimes unduly, by hearing the testimony of other witnesses.” C. Gamble, McElroy’s Alabama Evidence, Section 286.01 (3rd ed. 1977) and cases cited at n. 2.

This case is more akin to the situation present in Wilson v. State, 52 Ala. 299 (1875), than the usual situation where it is discovered, after the rule has been invoked, that a witness has, intentionally or by mistake, remained in the courtroom in violation of the rule. In Wilson, our Supreme Court held that “the rule does not contemplate the exclusion of a witness because he may have heard the reading of the indictment or other pleadings in the cause.” Wilson, 52 Ala. at 304.

II

The defendant alleges that reversible error was committed with the admission into evidence of photographs used in a photographic lineup prior to the defendant’s arrest.

A witness may corroborate his in-court identification of the accused by evidence of an earlier out-of-court identification to rebut an inference raised on cross examination that his identification was mistaken or contrived. Carlisle v. State, 371 So.2d 975, 977-8 (Ala.Cr.App.1979). For this reason, we find no error in the action of the trial court in allowing witness Ronald Lee and Sergeant Johnny C. Ferrell to testify that Lee did identify the defendant in a photographic lineup. See McElroy, Section 177.02(b).

At trial, the court admitted into evidence, over the defendant’s objections, six photographs which Sergeant Ferrell had exhibited to Mr. Lee shortly after the robbery. One photograph was of the defendant. The photographs were offered in evidence in order to verify the prior out-of-couut identification of the defendant which Lee had made and to strengthen and corroborate Lee’s testimony and in-court identification. Where the defense is alibi, the identification of the defendant by State’s witnesses is a material issue in the case and a photograph of the defendant shown by the police to these witnesses who identified the defendant is admissible in evidence. Carson v. State, 49 Ala.App. 413, 415, 272 So.2d 619 (1973).

The photographs in this case cannot be characterized as typical police “mug shots”. Each photograph depicts only a profile view of the suspect; there are no full-face and profile views, side by side. No photograph bears any number or legend on its face. Shiflett v. State, 52 Ala.App. 476, 480, 294 So.2d 444 (1973), cert. denied, 292 Ala. 749, 294 So.2d 448 (1974). The pictures in this case are not as offensive as that “rather innocuous” photograph in Williamson v. State, 384 So.2d 1224, 1231 (Ala.Cr. App.1980), which consisted of merely a frontal view of the defendant standing before a height chart. Apparently, the photographs here involved had been “doctored” in a very unsuggestive manner so that no prejudicial words and numbers appeared on any picture.

However, on the back of all the photographs there is at least a first name. On some there is a last name or a portion thereof. On the back of two photographs appear the initials “VUACS”; on another, “VSF”; and on still another “Rob” with what we could assume to be the remaining letters running off the photograph. On the back of the defendant’s photograph there only appear his name and the date he was identified by witness Lee, both notations having been made by Lee at the time of the identification.

The fundamental reason why “mug shots” of a defendant are inadmissible in a criminal trial is, of course, because they tend to apprise the jury of the fact that the defendant has been in some sort of trouble with the police before, thereby reflecting unfavorably upon the character of the accused. This violates the rule that the prosecution cannot, in its evidence in chief, introduce evidence tending to show the bad character and reputation of the accused for the purpose of inducing belief in his guilt or showing his tendency or disposition to commit the crime with which he is charged, unless the. accused first introduces evidence of his good character or reputation. Anno. 30 A.L.R.3d 908 (1970).

Clearly, it is error to admit a photograph of the defendant which on its face discloses past incarceration, arrest, or conviction. 30 A.L.R.3d at 914. The prosecutors and trial judges of this state have repeatedly been cautioned against the use of mug shots at trial. Carlisle, 371 So.2d at 978; Holsclaw v. State, 364 So.2d 378, 381 (Ala.Cr.App.), cert. denied, 364 So.2d 382 (Ala.1978). However, we do not consider mere photographs used by the police in apprehending the defendant, as those in this case, to be subject to the same objections as are mug shots, simply because the police had the defendant’s photograph in their possession before his arrest or capture. Carson, supra. Mere evidence of the use and possession of the defendant’s photograph by the police prior to the defendant’s apprehension does not convey to the jury the same offensive and prejudicial connotations which are present in the introduction of a mug shot.

Further, argument can be made that the admission of the photographs constituted harmless error, United States v. Rixner, 548 F.2d 1224 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977), because of the subsequent admission of other evidence revealing that the defendant had been in jail.

In weighing any possible prejudice that may have resulted to the defendant from the State’s use of the photographs, we must examine the entire record. The defendant was positively identified by three witnesses as being one of the robbers. During the prosecutor’s cross examination of the defendant’s friend and alibi witness, Shirley Beverly, the following occurred:

“Q. How long have you known this defendant, Tommy Gross? How long have you known him?
“A. Well, I have known him ever since he has got out of jail.
“MR. GRAND (Defense Counsel): I object.
“THE COURT: Well, it was responsive.”

Defense counsel made no further objection and requested no motion to exclude. In Willingham v. State, 261 Ala. 454, 458, 74 So.2d 241 (1954), our Supreme Court observed: “Where the question does not manifestly call for incompetent testimony but the answer itself discloses the incompetency, the remedy is by a motion to exclude.” See also Wilkinson v. Duncan, 294 Ala. 509, 512, 319 So.2d 253 (1975); Hamilton v. State, 358 So.2d 766, 772 (Ala.Cr.App.), cert. quashed, 358 So.2d 772 (Ala.1977). Since defense counsel did not move to exclude the witness’s response, it was properly before the jury. Therefore, because the jury knew that the defendant had been in jail before the crime charged, his main objection to the admission of the photographs — that they would inform the jury that the defendant “must have had a record or they wouldn’t have had his picture on file at the police department” — lost its potency.

We have carefully examined the circumstances of this particular case, and find that the admission of the photographs was not error or antagonistic to the principles announced in United States v. Harrington, 490 F.2d 487 (2nd Cir. 1973), and applied in Williamson, supra and Holsclaw, supra. Moreover, even if error were committed, we find it to have been harmless under the subsequent admission of testimony showing that the defendant had been in jail.

Ill

The defendant argues that the assistant district attorney was improperly allowed to argue as a fact that which was not supported by any evidence.

A

The first instance of alleged error occurred. during the prosecutor’s redirect examination of State’s witness Ronald Lee.

“Q. Now Mr. Grand ask(ed) you about the scar on his (the defendant’s) face that started from above his eye and runs down to his neck. As you are looking at him over there—
“MR. GRAND (Defense Counsel): I object, your Honor. I never said it ran to his neck.
“THE COURT: All right.
“MR. VALESKA (Assistant District Attorney): Judge, the neck was mentioned.
“MR. GRAND: I never said the neck, I said the chin.
“MR. VALESKA: Let the record reflect he mentioned the neck.
“THE COURT: Well, go ahead and rephrase your question.”

It appears that either the trial judge failed to rule on defense counsel’s objection or that the judge ruled in the defendant’s favor. At any rate, absent an adverse ruling the issue the objection sought to raise is not before this court for review. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). The “use of the term ‘all right' has been condemned for the purpose of indicating a ruling, ...” Shelby v. State, 340 So.2d 847, 848 (Ala.Cr.App.), cert. denied, 340 So.2d 849 (Ala.1976).

B

The second group of allegedly improper arguments of the prosecutor argued on appeal cannot serve as a basis for reversal for the same reasons as the first. From the record, it does not appear that defense counsel obtained an adverse ruling upon either of his objections.

The first instance of alleged error occurred when the prosecutor was cross examining a defense witness about a statement the witness gave to an attorney who represented the defendant prior to trial. The prosecutor was evidently using the attorney’s notes of that interview.

“MR. GRAND: Your Honor, I am going to object to that, that is not a statement, that is Mr. Jaffe’s notes.”
“THE COURT: All right.
“MR. GRAND: There is nowhere on there that it says a statement—
“THE COURT: Well, I will sustain.”
* * * * * *
“THE COURT: Well, I am going to sustain. Mr. Jaffe is not here either and I am going to sustain.”

The second instance occurred during the prosecutor’s closing argument.

“MR. VALESKA: Let’s go back to Mrs. Beverly. She took that stand and the statement she gave Richard Jaffe, defense lawyer for that defendant at that time; she told you on direct examination that they stayed there all day.
“MR. GRAND: Your Honor, I would object to the fact that — I submitted at the time and I submit now that those are strictly notes, not any indication of a statement she may have made to anybody.
“THE COURT: All right.”

Upon these rulings, this Court has nothing to review.

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

AFFIRMED.

All Judges concur.

      . In Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509, 512 (1966), the Court noted that “the testimony that the police had on hand photographs of the accused might conceivably have led a juror, at least a sophisticated juror, to hypothesize that the accused had a police record.”


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Richard KING v. STATE.
    6 Div. 336.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Neil C. Clay, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of rape in the first degree by allegedly engaging “in sexual intercourse with Jo Anna Nelson, by forcible compulsion in violation of 13A-6-61 of the Code of Alabama, 1975,” effective January 1, 1980. Acts 1979, No. 79-125, p. 230. By Section 13A-6-61(b) rape in the first degree is a Class A felony, which by Section 13A-5-6(a)(l) is punishable by imprisonment “for life or not more than 99 years or less than 10 years.” Appellant was sentenced to imprisonment for 25 years.

The particular crime can be committed only by a male with a female, as expressly provided by § 13A-6-61(a)(l). . No point is made as to the failure of the indictment to allege that the accused is a male and the alleged victim a female, but the names so indicate and the undisputed evidence is to that effect.

The alleged victim testified that on January 22, 1980, she was raped by an intruder in her home, whom she identified as the defendant. She said that thereafter when her brother knocked on the front door, the defendant fled, that upon letting her brother in the house she ran next door and called the police. According to her testimony, the police soon arrived; she gave a description of the rapist to them, and one of the officers soon thereafter brought the defendant to her home where she identified him as the rapist. This was confirmed by testimony of the officers.

Defendant did not testify, but his brother and his wife testified in his behalf. The brother testified to the effect that he was with the defendant at another place at the time of the alleged rape; his wife testified to the effect that a stain that was found on his trousers after his arrest, which seemed to the parties to have some incriminating value, was on defendant’s trousers the morning before.

The evidence as a whole convinces us that a jury issue as to defendant’s guilt was presented. There is no contention to the contrary.

The following is the first and most accentuated issue presented by appellant:

“A pre-trial identification of appellant was conducted in a manner which was so unnecessarily suggestive, prejudicial and biased under the circumstances as to render such identification inadmissible.”

The pretrial identification was made a short while after the rape and a still shorter time after the officers arrived at the victim’s home in response to her call; one of them remained with her and the other answered a then contemporaneous call as to a burglary or attempted burglary that was still in progress in the neighborhood. In doing so, according to such officer’s testimony, when he arrived at the scene of the latter call, he apprehended, placed in custody and arrested appellant; he handcuffed him and placed him on the back seat of the police car he was driving and returned to the home of the victim. His testimony during the interrogation by State’s counsel continued:

“Q. (By Mr. Short): Now, I have previously asked you before we recessed, you testified that you brought Richard King back to the residence of Joanna Nelson. You got him out of the car.
“Did Ms. Nelson point Richard King out and identify him in your presence?
“A. She stated that was him.
“Q. And he was arrested in this clothing at that time?
“A. Yes, sir.”

It is difficult for us to determine from the transcript whether defendant sufficiently raised on the trial any question as to the admissibility of the pretrial identification by the victim of appellant as shown above, but whether so or not we find that the evidence was properly admitted. Notwithstanding the many futile efforts to show the contrary, it has been true for many years and is still true, as Judge Harris, now Presiding Judge, said in Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623 (1973) and again in Crews v. State, Ala.Cr. App., 375 So.2d 1291 (1979), that it is “settled law that prompt on-the-scene confrontation is ‘consistent with good police work’ ” and that it is not a denial of due process to show the defendant to the victim of the crime charged without pretrial lineup. Many Alabama cases support the conclusion that where an issue is made as to the truthfulness or reliability of an in-court identification, as in the instant case, it is proper to admit evidence of an identification of the defendant by the victim at the scene of the crime soon thereafter or soon after the defendant’s apprehension, when there is no impermissible suggestiveness, which was obviously absent in the instant case. 5B Ala.Dig., Criminal Law, Key No. 339.-8(1)(2)(5) and (6). See also, Anno.: 39 A.L. R.3rd: Admissibility of Evidence of Show-up Identification as Affected by Allegedly Suggestive Showup Procedures, 791 et seq., especially § 12, Immediately After Commission of Crime, 804-806.

Appellant also urges that the pretrial identification was so “unnecessarily and im-permissibly suggestive as to deny appellant due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States” as to taint and make inadmissible the in-court identification by the victim as a witness. As we have held that the evidence shows that the show-up was not impermissibly suggestive or otherwise improper, it follows that the in-court identification was admissible in evidence. In making the insistence now considered, appellant now adds as a ground that the victim was distraught at the time of the showup. This is a circumstance to be considered, but it is not enough to outweigh the other circumstances in favor of the admissibility of the in-court identification, especially in the circumstance of a positive identification by the victim, the absence of any motive on her part to accuse the particular defendant, her corroborated testimony as to his clothing and description and an adequate opportunity to observe him so that she could identify him thereafter. Appellant’s second contention is without merit.

Appellant’s fourth contention is that the evidence of the pretrial identification of the defendant by the accused was not admissible by reason of the fact that no counsel of accused was present at the time. The exact status of defendant at that time, whether he had been handcuffed and placed in the automobile by reason of the alleged burglary at the house where he was apprehended or as a potential suspect in the alleged rape, may be subject to question, but the evidence shows that the officer transporting him explained to him his constitutional rights, that he went with the officer without any protest whatever and was not charged with the rape until after he had been taken to the jail.

“Appellant contends that his constitutional rights were violated when he was placed in a lineup in the absence of his counsel. He relies on Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Gilbert involved a post-indictment lineup and reliance on it in this case is misplaced. The lineup in the instant case was a pre-indictment lineup. There is no constitutional right to counsel at a pre-indictment lineup.
“Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; Deloach v. State, Ala.Cr.App., 356 So.2d 222. Ala.Dig. Crim.Law, ®=»641.2.”
Sparks v. State, Ala.Cr.App., 376 So.2d 834, 841. (1979).

By the last issue presented by appellant, he says that the in-court identification was tainted by an “impermissibly suggestive showup identification,” which we have previously considered herein and reached a conclusion adverse to appellant.

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

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the 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: PER CURIAM. SUNDBERG, Chief Justice,

text:
    Anthony Ray PEEK, Appellant, v. STATE of Florida, Appellee.
    No. 54226.
    Supreme Court of Florida.
    Oct. 30, 1980.
    As Corrected on Denial of Rehearing Jan. 27, 1981.
    Certiorari Denied April 27, 1981.
    See 101 S.Ct. 2036.

      Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.

      Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Appellant Anthony Ray Peek was convicted of first degree murder, sexual battery, grand larceny and burglary. The jury recommended and the trial judge imposed a sentence of death on the murder charge. Jurisdiction vests in this Court pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the conviction and sentence.

Erna L. Carlson returned to her home in Winter Haven, Florida, following a visit with relatives at approximately 9:00 p. m. on May 21, 1977. At 8:30 a. m. the following morning, Mrs. Carlson’s body was discovered in her bedroom with her robe and part of a bedspread tied tightly around her neck. The screens on the door to the porch and on the door leading from the porch to the house had been cut, and a piece of stocking containing a strand of negroid hair was found in the garage. The victim’s pajama bottoms contained blood and seminal fluid stains. No fingerprints were found in the house.

On May 22,1977, police located Mrs. Carlson’s automobile at a lakeside park approximately one mile from her home. The door to the driver’s side was locked, the passenger door was not. The keys to the automobile were in the glove compartment. Fingerprints were found on the inside of the driver’s side window.

Prompted by allegations that Peek had been going door to door seeking employment in the Winter Haven area, Officer Donnelly of the Winter Haven Police Department interviewed him several days after the murder. Appellant lived in a supervised halfway house at the time of the crime. He told Donnelly that he had returned to the halfway house before 11:00 p. m. on the night of May 21, 1977, and had not been in the vicinity of Mrs. Carlson’s home or of the lakeside park. Appellant voluntarily permitted the taking of his fingerprints and the extraction of hair samples. The hair samples were sent to the Sanford Crime Lab for comparison but were lost subsequent to the testing.

Appellant was tried in the Circuit Court for Polk County on April 10, 1978. Dr. Luther Youngs testified that Mrs. Carlson died of strangulation. She also had been raped and had suffered two fractured ribs. An employee from the Sanford Crime Lab testified that the hair samples obtained from appellant were consistent in microscopic appearance to the hair found in the stocking at the scene of the crime. Although it is never possible to say that two hairs are identical, the hairs of only approximately two out of every 10,000 persons exhibit consistent microscopic characteristics. The blood and seminal fluid stains taken from Mrs. Carlson’s pajamas were from an individual with type O secretor blood; appellant is a type O secretor. The evidence further revealed that the fingerprints found inside Mrs. Carlson’s car matched those of appellant.

Appellant took the stand and, with one significant exception, reiterated the account first given to Officer Donnelly. He contradicted, however, his prior assertion that he was not in the area where the victim’s car was found on May 22, 1977. Appellant testified instead that on that morning he rode his bicycle to the lakeside park. Noticing a car parked nearby with the door unlocked, he opened the door and searched the glove compartment, after which he rode his bicycle back to the halfway house.

The jury found appellant guilty of all four offenses and returned a recommended sentence of death on the murder charge. Prior to sentencing, defense counsel’s motion for appointment of experts to examine appellant as a mentally disordered sex offender was denied. On May 2, 1978, the court adjudged appellant guilty and sentenced him to death for first-degree murder. The court also imposed a life sentence for the sexual battery and a term of five years each for grand larceny and burglary, to run consecutively.

I

Appellant challenges his conviction on essentially three grounds. He first asserts that the prosecution failed to establish an adequate chain of custody of his hair samples. The evidence at trial revealed that on July 7, 1977, Officer Latner received four hair samples from appellant which he sealed in four separate plastic bags. The samples were transferred to the Sanford Crime Lab. Diana Bass, a micróanalyst at the Sanford Lab, testified that in December of 1977 she received several sealed plastic bags containing negroid hair. The transmittal sheet accompanying the bags noted that the samples were from Anthony Ray Peek. The bags did not appear to have been “opened, tampered with, or in any way adulterated.”

Relevant physical evidence is admissible unless there is an indication of probable tampering. Frederiksen v. State, 312 So.2d 217 (Fla. 3d DCA 1975); Stunson v. State, 228 So.2d 294 (Fla. 3d DCA 1969). Accord, United States v. Daughtry, 502 F.2d 1019 (5th Cir. 1974). The record here reflects no hint of tampering, thus the trial judge did not abuse his discretion in permitting the introduction of the hair comparison analysis.

Appellant’s assertion that he was denied due process by introduction of the hair samples because their subsequent loss prevented an independent inspection is similarly unavailing. While there is support for the proposition that a criminal defendant must have an opportunity to inspect physical evidence which is to be used against him, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975); Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971), cert. discharged 280 So.2d 673 (Fla. 1973), such a right, like most others, may be waived. In this case appellant made demand for discovery of reports and results of scientific tests and experiments, to which the state responded with a list of the hair samples and lab reports. Appellant did not, however, move the trial court to inspect or test the hair specimens. He cannot now claim entitlement to a right which in the first instance he chose to fore-go.

Appellant next contends that the evidence failed to establish his guilt beyond a reasonable doubt. He properly cites McArthur v. State, 351 So.2d 972 (Fla. 1977), prohibition denied sub nom. McArthur v. Nourse, 358 So.2d 132 (Fla. 1978), vacated and remanded on other grounds sub nom. McArthur v. Nourse, 438 U.S. 902, 98 S.Ct. 3119, 57 L.Ed. 1145 (1978), for the proposition that circumstantial evidence will not sustain a conviction unless it is inconsistent with any reasonable hypothesis of innocence. Accord, Davis v. State, 90 So.2d 629 (Fla. 1956). In applying the. standard, the version of events related by the defense must be believed if the circumstances do not show that version to be false. Mayo v. State, 71 So.2d 899 (Fla. 1954); Holton v. State, 87 Fla. 65, 99 So. 244 (1924).

The case against appellant is conced-edly circumstantial. But we are satisfied that, when considered in combination, the evidence relating to the matching fingerprints, the hair comparison, and the blood and semen analysis enabled the jury to reasonably conclude that appellant’s quilt was proven beyond a reasonable doubt. Moreover, appellant’s only reasonable hypothesis of innocence, that he entered the victim’s car at the lakeside park the morning following the murder, was effectively discredited by Officer Donnelly’s account on rebuttal of appellant’s original assertion that he had never been in the vicinity of the park. In view of this prior inconsistent statement, the jury was justified in disbelieving appellant’s version of events.

We have considered the remaining issues related to appellant’s conviction, but find them to be without merit.

II

Turning to the sentencing phase of the trial, we must first consider whether the trial court abused its discretion in denying defense counsel’s motion for appointment of experts to examine appellant as a mentally disordered sex offender. Section 917.14, Florida Statutes (1977), provides:

917.14 Certifying defendant for hearing.
(1) If a defendant has been convicted of or has pleaded guilty or no contest to an offense or attempted offense in a current prosecution, the court may defer sentencing and certify him for a hearing and examination in the circuit court to determine whether he is a mentally disordered sex offender.
(2) The court may certify a defendant under subsection (1) on its own motion, on motion by the State Attorney or the defendant, or on application by affidavit of the defendant.

By the act’s express terms, certification under section 917.14 is discretionary. Failure to certify will not be error unless the record reveals a clear abuse of judicial discretion. LeDuc v. State, 365 So.2d 149 (Fla. 1978); Huckaby v. State, 343 So.2d 29 (Fla. 1977). No such error has been demonstrated in this case.

In its charge to the sentencing jury on the proper consideration of aggravating and mitigating circumstances, the trial court instructed that “[t]he aggravating circumstances which may be considered, are limited to such of the following as may be established by the evidence ...” and “[t]he mitigating circumstances, which you may consider if established by the evidence, are these ...” (emphasis supplied). Appellant maintains that this charge unconstitutionally limited jury consideration of mitigating factors to those statutorily enumerated. We do not agree.

Perhaps the clearest and most constant principle emanating from the sometimes obscure light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny is that unbridled discretion in sentencing capital defendants begets arbitrary and discriminatory application of the death penalty. We are told that at least three justices in Furman believed the death penalty unconstitutional because:

discretionary sentencing, unguided by legislatively defined standards, violated the Eighth Amendment because it was “pregnant with discrimination,” id., at 257 [92 S.Ct., 2735] (Douglas, J., concurring), because it permitted the death penalty to be “wantonly” and “freakishly” imposed, id., at 310 [92 S.Ct., at 2762] (Stewart, J., concurring), and because it imposed the death penalty with “great infrequency” and afforded “no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not,” id., at 313 [92 S.Ct., at 2764] (White, J., concurring).

Lockett v. Ohio, 438 U.S. 586, 599, 98 S.Ct. 2954, 2962, 57 L.Ed.2d 973 (1978). It appears incontestable, then, that to a large extent “the sentencing authority’s discretion [must be] guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).

Recurring tó the charge given in this case, we note at the outset that it in no way restricts the jury to a consideration of the statutorily enumerated mitigating circumstances. Indeed, the instruction on mitigating circumstances, when read in conjunction with the express limitation on consideration of aggravating circumstances, advises the jury that the list of statutory mitigating factors is not exhaustive. See Songer v. State, 365 So.2d 696, 700 (Fla. 1978) (on rehearing). It strikes a constitutional balance by directing, but not limiting, scrutiny to those areas of mitigation considered vital by the legislature in determining the fairness of a life or death sentence, thereby assuring that the death penalty will be applied in a consistent and rational manner. Were we to sanction an instruction which established no effective guidance for the jury in considering circumstances which may mitigate against death, we would surely breathe life into Mr. Justice Rehnquist’s admonition that such a procedure would “not guide sentencing discretion but [would] totally unleash it.” Lockett v. Ohio, 438 U.S. at 631, 98 S.Ct. at 2975, 57 L.Ed.2d 973 (Rehnquist, J., concurring in part and dissenting in part).

Contrary to appellant’s assertion, the instruction given here is consistent with Lockett v. Ohio. Lockett holds only that a sentencing body must not be precluded from considering, as a mitigating factor, aspects of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. As noted above, our death penalty statute does not limit consideration of mitigating circumstances to those statutorily enumerated. Moreover, unlike the Ohio statute invalidated in Lockett, the mitigating circumstances in Florida’s statute direct the jury’s attention to many aspects of the defendant’s character and the circumstances surrounding the offense. Whilé we do not contend that the statutory mitigating circumstances encompass every element of a defendant’s character or culpability, we do maintain that the factors, when coupled with the jury’s ability to consider other elements in mitigation, provide a defendant in Florida with every opportunity to prove his or her entitlement to a sentence less than death.

The trial judge made these findings of fact in support of the death sentence:

As to Count One of the Indictment, wherein the Defendant was convicted of First Degree Murder, the Court makes the following findings of fact:
1. As an aggravated circumstance under Florida Statute 921.141(5)
(a)The capital felony of Murder in the First Degree was committed by Anthony Ray Peek while he was on probation on two charges of Burglary, one count of Grand Larceny and two charges of Petit Larceny, having been placed on said probation on November 15, 1976, for a period of five (5) years. Copy of the Order of Probation in Case No. CF76-1842 is attached hereto and marked “Exhibit A”.
(b) The defendant was previously convicted in Polk County, Florida, on December 15, 1977, of three charges, to-wit: Burglary, Sexual Battery and Robbery, and was on the 4th day of April, 1978, sentenced to life imprisonment on the Sexual Battery charge and fifteen (15) years on each of the Burglary and Robbery charges to run consecutively with the life sentence. A copy of the Judgment and Sentence in this case is attached and marked “Exhibit B”; that the conviction for the felonies contained in the Information in Case No. CF77-1658 involved the use or threat of violence to the victim.
(c) The Court finds that the facts of this case do not support the aggravated circumstances in Florida Statutes 921.-141(5)(c) in that the Defendant did not knowingly create a great risk of death to many persons, other than the victim.
(d) The capital felony, the murder of Erna L. Carlson, was committed while the Defendant was actively engaged in the commission of the sexual battery of Erna L. Carlson.
(e) This Court finds that the facts of this case do not support the aggravated circumstances in Florida Statutes 921.-141(5)(e) in that this capital felony was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) This Court finds that the crime was committed by Anthony Ray Peek for pecuniary gain by ransacking the victim’s purse, obtaining the keys to a motor vehicle, the property of Erna L. Carlson, and then stealing said motor vehicle.
(g) This Court finds that the facts of this case do not support the aggravated circumstances in Florida Statutes 921.-141(5)(g) in that the capital offense was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) This Court finds that this capital offense was especially heinous, atrocious and cruel in that evidence at the trial shows that the sixty-five year old victim, Erna L. Carlson, received extensive blows to her head and body, broken ribs, a crushed larnyx, and was strangled by the use of clothing and bedclothes wound around her neck and tied to the headboard of a bed. According to expert medical opinion, the victim suffered tremendous excruciating pain while being raped and killed.
2. As to mitigating circumstances in Florida Statutes 921.141(6)
(a) The Court finds that the Defendant, ANTHONY RAY PEEK, did have a history of prior criminal activity and, therefore, rejects Florida Statutes 921.-141(6)(a) as a mitigating circumstance.
(b) The Court finds that this capital offense was not committed while the Defendant was under extreme mental or emotional disturbance and, therefore, rejects Florida Statutes 921.-141(6)(b) as a mitigating circumstance.
(c) The victim, Erna L. Carlson, was not a participant in the Defendant’s acts of Burglary, Grand Larceny, Sexual Battery and Murder in the First Degree, and this Court expressly rejects this subsection, Florida Statutes 921.141(6)(c) as a mitigating circumstance.
(d) The Defendant acted alone in the commission of these offenses and the Court expressly rejects subsection 921.-141(6)(d), Florida Statutes, as a mitigating circumstance.
(e) The Defendant, ANTHONY RAY PEEK, did not act under extreme duress or under the domination of any other person and the Court expressly rejects subsection 921.141(6)(e) as a mitigating circumstance.
(f) The Defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired, and the Court expressly rejects subsection 921.141(6)(f), Florida Statutes, as a mitigating circumstance.
(g) Finally, the age of the Defendant, ANTHONY RAY PEEK, has been considered as required by subsection 921.141(6)(g) of the Florida Statutes. The Defendant was twenty (20) years old at the time of the offense and his age is rejected as a mitigating circumstance.
In conclusion, the Court finds that there are sufficient aggravating circumstances to justify the imposition of the death penalty. There are no mitigating circumstances. The evidence clearly demonstrates that Erna L. Carlson was the victim of a cold, cruel and heartless killer.

Appellant argues that his age at the time of the commission of the crime should have been considered a mitigating factor. There is no per se rule which pinpoints a particular age as an automatic factor in mitigation. The propriety of a finding with respect to this circumstance depends upon the evidence adduced at trial and at the sentencing hearing. Compare Hoy v. State, 353 So.2d 826 (Fla. 1977), with Songer v. State, 322 So.2d 481 (Fla. 1975). The trial judge expressly considered but rejected appellant’s age as a mitigating factor. The record supports his finding.

Appellant contends it was error to regard appellant’s probationary status as being within the aggravating circumstance set forth in section 921.141(5)(a), Florida Statutes (1977), which allows consideration as an aggravating circumstance the fact that the capital felony was “committed by a person under sentence of imprisonment.” The appellant asserts that a grant of probation is not a sentence of imprisonment because a probationer is not in prison confinement. Under the facts of this case, we agree an individual on probation and not incarcerated is not under a sentence of imprisonment.

Probation is a sentence alternative but is not generally considered to be a sentence of imprisonment. An exception arises, however, if the order of probation includes as a condition a term of incarceration and the capital felony is committed while the defendant is or should be incarcerated. We find that the phrase “person under sentence of imprisonment” includes (a) persons incarcerated under a sentence for a specific or indeterminate term of years, (b) persons incarcerated under an order of probation, (c) persons under either (a) or (b) who have escaped from incarceration, and (d) persons who are under sentence for a specific or indeterminate term of years and who have been placed on parole. Persons who are under an order of probation and are not at the time of the commission of the capital offense incarcerated or escapees from incarceration do not fall within the phrase “person under sentence of imprisonment” as set forth in section 921.141(5)(a). Consequently, this aggravating circumstance was improperly found in the instant case.

The trial court further found as an aggravating circumstance that appellant had been convicted of felonies “involving the use or threat of violence to the person.” § 921.141(5)(b), Fla.Stat. (1977). Appellant urges that since these prior convictions were on appeal at the time of sentencing, they cannot be considered “convictions” for purposes of section 921.141(5)(b). We disagree. Appellant had previously been convicted of burglary, sexual battery, and robbery. They were on appeal at the time of sentence and were subsequently affirmed. Peek v. State, 374 So.2d 106 (Fla. 2d DCA 1979). These were in fact convictions at the time of sentencing. Because these convictions were affirmed, their consideration by the trial judge in the instant case was proper. We do not have the problem which would arise from the consideration as an aggravating circumstance of a conviction valid at the time of sentencing, that is subsequently reversed and vacated by an appellate court.

The appellant next contends the trial court was also in error in finding that the capital felony was committed for pecuniary gain. § 921.141(5)(f), Fla.Stat. (1977). Although it appears that appellant ransacked Mrs. Carlson’s purse and made off with her automobile, there is no evidence that any money or household belongings were taken. The record does not support the conclusion that Mrs. Carlson was murdered to facilitate the theft, or that appellant had any intention of profiting from his illicit acquisition. The more reasonable inference is that appellant stole the car in order to quicken his escape from the scene of the murder. Considering all the circumstances, the evidence linking the murder to a motive for pecuniary gain is insufficient to establish this aggravating factor beyond a reasonable doubt.

The trial court’s findings with respect to the two remaining aggravating circumstances are fully justified by the record. It is unrefuted that the capital felony was committed during the commission of a sexual battery. § 921.141(5)(d), Fla.Stat. (1977). Further, the medical testimony clearly establishes that Mrs. Carlson’s horrible suffering at the hands of her attacker was “especially heinous, atrocious, or cruel.” § 921.-141(5)(h), Fla.Stat. (1977). Thus, we have two clearly valid aggravating circumstanc.es, one contested but valid aggravating circumstance, and no mitigating circumstances. We find that the trial court’s improper consideration of the two aggravating circumstances concerning pecuniary gain and commission of the offense while on probation does not render the sentence invalid. Hargrave v. State, 366 So.2d 1 (Fla. 1978); Elledge v. State, 346 So.2d 998 (Fla. 1977). Upon an independent review, we find the evidence and record clearly justify the imposition of the death sentence.

Accordingly, the judgments of guilt and sentence of death are affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., and VANN, Associate Justice, concur.

SUNDBERG, C. J., dissents with an opinion.

ENGLAND, J., dissents.

SUNDBERG, Chief Justice,

dissenting.

I respectfully dissent from the majority’s affirmance of appellant’s conviction. While I am not unmindful of the atrocities committed upon the victim in this case and the principle of law that even in a capital case a conviction may be based wholly upon circumstantial evidence, nevertheless, pursuant to the obligation imposed upon me by section 921.141(4), Florida Statutes (1977), and Florida Rule of Appellate Procedure 9.140(f), I have reviewed the evidence in this cause and determine that the interest of justice requires a reversal. In my mind the evidence is insufficient to prove beyond a reasonable doubt that appellant was the perpetrator of this heinous crime. The hair, blood and semen analysis coupled with the fingerprints found in the victim’s automobile are simply insufficient to support the conviction, in view of the statistical probability of the occurrence of like-type hair, blood and semen in the population and the inability of the state to establish that the fingerprints were placed in the automobile at the time the crime was committed. State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976); Williams v. State, 308 So.2d 595 (Fla. 1st DCA), cert. denied 321 So.2d 555 (Fla.1975); Wilkerson v. State, 232 So.2d 217 (Fla. 2d DCA 1970). Appellant explained the presence of his fingerprints in the automobile and that they were placed there the morning after the crime. This testimony was discredited by testimony of Officer Donnelly to the effect that appellant had made a previously inconsistent statement. However, Officer Donnelly’s testimony did not serve to place appellant’s fingerprints in the automobile at the time the crime was committed or at a time shortly thereafter. His testimony was nothing more than impeachment.

Accordingly, based on the evidence in this record, I feel compelled to reverse the judgment of conviction.

Furthermore, I dissent from several conclusions reached by the majority with respect to application of section 921.141(5)(a), Florida Statutes (1977). First, I reject the majority’s conclusion that section 921.-141(5)(a) permits consideration of a defendant’s probation status at the time of commission of a homicide. That section provides that it is an aggravating circumstance if the capital felony was “committed by a person under sentence of imprisonment.” (Emphasis supplied.) A grant of probation is not a sentence of imprisonment whether incarceration is a condition of probation or not. The legislature has repeatedly and consistently distinguished between a sentence of imprisonment and probation. Compare chapter 948, Florida Statutes (1979) (probation) with chapter 947, section 947.16, Florida Statutes (1979) (sentence). It cannot be presumed that the legislature was unmindful- of this distinction when it enacted section 921.141(5)(a). It may be that a person’s actual state of incarceration or escape therefrom at the time of commission of a capital felony is just as valid a consideration for imposition of the death penalty whether that incarceration is by virtue of a sentence or as a condition of probation. Nevertheless, that is a legislative decision, and I would not presume to impute an intent to that body which is so contrary to its consistent delineation between sentence and probation.

Second, I cannot accept the proposition that a nonfinal conviction of a violent felony may be considered as an aggravating circumstance under section 921.141(5)(b), Florida Statutes (1977). This question has not previously been addressed directly by the Court. But see McCrae v. State, 395 So.2d 1145. (Fla. Oct. 30, 1980) (plea of guilty, as opposed to a nonfinal conviction, to a violent felony without adjudication of guilt an aggravating circumstance under section 921.141(5)(b)). For aid in determining what constitutes a “conviction” under this section, I would utilize the interpretation of that term under section 775.084, Florida Statutes (1975), our habitual offender statute, because the purposes of both that statute and section 921.141(5)(b) are similar-to enhance punishment due to prior criminal convictions. Under section 775.084, a prior conviction is not final until appellate review has concluded. Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947); Garrett v. State, 335 So.2d 876 (Fla. 4th DCA 1976); Coleman v. State, 281 So.2d 226 (Fla. 2d DCA 1973). In view of the similarity in underlying philosophy between the two statutes, and in view of the awesome finality of the death penalty, I would hold that for purposes of section 921.-141(5)(b) a prior conviction may not be utilized in aggravation until- direct appellate review has concluded. I am unpersuaded by the majority’s reliance on the fact that the convictions in this case were affirmed pending this appeal. What if they remained unresolved on the date of this opinion? It occurs to me that the wisdom upon which section 775.084 is bottomed should not be lightly regarded. Because of the unique attributes of the death penalty, we have engaged in a narrow construction of chapter 921 when a question as to its meaning has arisen. See Elledge v. State, 346 So.2d 998 (Fla.1977) (section 921.141(5), Florida Statutes (1975), construed to permit only consideration of enumerated factors as aggravating circumstances). Adherence to this rule of construction indicates to me that finality of conviction for purposes of section 921.141(5)(b) should be at least as stringent as for section 775.084, where the consequences are not nearly so grave.

ENGLAND, J., concurs in so much of this dissent as would reverse appellant’s conviction. v

      . “It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.” Gregg v. Georgia, 428 U.S. 153, 193, 96 S.Ct. 2909, 2934, 49 L.Ed.2d 859 (1976).

      . Section 921.141(1), Florida Statutes (1977), provides that during the sentencing proceeding, “evidence may be presented as to any matter that the court deems relevant to sentence

      . See, e. g., § 921.141(6)(a), (6)(d), (6)(g), Fla. Stat. (1977).

      . The judge subsequently corrected this finding to show that appellant was nineteen at the time of the crime, although his conclusion that Peek’s age was not a mitigating circumstance did not change.

      . § 921.141(6)(g), Fla.Stat. (1977).