author: COFER, Justice,

text:
    Madeline WATKINS v. Carolyn C. ROSS et al.
    No. 51667.
    Supreme Court of Mississippi.
    March 12, 1980.
    Walker, Brookins & Walker, John L. Walker, Jr., Jackson, Percy W. Watson, Hattiesburg, for appellant.
    Roberts & Easterling, M. M. Roberts, Holmes & Dukes, Hattiesburg, for appel-lees.
    Before PATTERSON, BROOM and COF-ER, JJ.
   COFER, Justice,

for the Court:

Appellant Madeline Watkins brought suit in the Circuit Court of Forrest County against Carolyn C. Ross, et al., appellees, for damages resulting from an auto collision. The jury awarded to her $7,500 and she appeals here assigning a number of errors, all of which are addressed to the amount of the judgment.

Appellant, at the time of the collision, was employed at Conva-Rest, a rest home situate at the west end of Medical Boulevard in Hattiesburg, Mississippi. She had just finished a tour of duty on the night shift, and shortly after 7:10 a. m. was en route from the home, in an easterly direction on Medical Boulevard, when the motor vehicle she was driving collided with a motor vehicle being reversed from a parking place on the south side of the street, and driven by appellee Carolyn C. Ross. In the Ross vehicle with Carolyn were her mother, an appellee, who occupied the passenger side of the front seat, and Patricia Ross, sister and daughter of the front seat occupants of the car. Carolyn was then sixteen years of age, and permitted to drive by her parents’ approval of her application for that authority. Mississippi Code Annotated, sections 63-1-23 and 63-1-25 (1972). (Hence, these parents’ joinder as defendants in this suit.)

The uncontradicted testimony sets the stage for the impact. Carolyn and her mother and sister had come early to the Pathology Laboratory situate on the south side of Medical Boulevard. Their vehicle was headed into a parking space on Medical Boulevard either in front of, or near, the front door of the laboratory building. They came from the building, re-entered the vehicle; Carolyn and her mother looked in both directions; Carolyn looked in both directions again, then took her foot off the brake, and the vehicle moved slowly backward, with no acceleration by the driver.

At the same time, appellant Watkins was driving eastwardly on the right side of Medical Boulevard at a speed of ten to fifteen miles per hour; at about one hundred feet to the west she saw the Ross vehicle in the parking space with ho sign (back-up lights or otherwise) indicating it was about to move in reverse. Mrs. Watkins, who frequently went to the Pathology Laboratory on errands for her employer, looked over to the front door of the pathology building.

Mrs. Watkins did not see the Ross’ vehicle backing into the driving lane. Carolyn did not see the Watkins’ vehicle approaching in the driving lane.

The left rear end of the Ross’ vehicle struck the right front fender and door of the Watkins’ car, denting the fender and front door, bending the right front tire rim and bursting the tire on that rim.

The first indication to appellant Watkins of the impact was the sound as of an explosion. The first indication of the collision to Carolyn was as if her car wheel had come upon a hole in the street.

Appellees argue that appellant was illegally using the street because she was operating the vehicle of another, which vehicle had an out-of-state tag on it. (We fail to find this fact as proximately or otherwise causing or contributing to the occurrence just narrated.) They further argue that appellant was driving without a drivers’ license and at a speed of twenty-five to thirty miles per hour. These assertions do not seem to have any basis in the record before the jury.

In the impact Mrs. Watkins’ head was thrown forward so that it hit her hands on the steering wheel. She suffered injury to her neck and back, causing hospitalization and special collar and back support worn for sometime after the accident. She was off her job for substantially more than a year, and her physicians were not inclined to conclude that she was malingering. Her doctor, hospital, and medical bills and lost wages from the nursing home, all uncontra-dicted, exceeded $8,000. Appellant maintains that the verdict should have been for all of these damages plus $20,000 for pain and suffering. She also contends that the verdict in a sum less than her expenses and lost income is the product of bias, passion, and prejudice.

Carolyn’s reversing as she did was negligence, since it is evident that she did not take the precautions appropriate and necessary under the circumstances. Ramage v. Kelly, 253 Miss. 582, 585-586, 176 So.2d 324 (1965); Burrell v. Goss, 245 Miss. 420, 426, 146 So.2d 78 (1962); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 144-145, 141 So.2d 226 (1962).

Mrs. Watkins’ driving her vehicle in such a state of inattention that she was hit by the Ross’ vehicle before she knew it was even moving into the way was negligence. Fowler Butane Gas Co. v. Varner, supra. Her lack of awareness of the immediate situation did not extenuate her situation or the duty which was hers to know and to make proper reaction thereto. Shideler v. Taylor, 292 So.2d 155 (Miss.1974); Ulmer v. Pistole, 115 Miss. 485, 76 So. 522 (1917).

Thus, our conclusion is that both vehicles were being operated in a negligent manner, and the degree of negligence of each driver was for the decision of the jury. Mississippi Code Annotated, section 11-7-17 (1972).

There was no instruction to the jury on the question of contributory negligence of the plaintiff. It was, however, the duty and prerogative of the jury to make a decision as to the contributory negligence and to fix an award, if any, to the plaintiff which would make allowance for her contribution to the occurrence. Altom v. Wood, 298 So.2d 700 (Miss.1974); and Carr v. Cox, 255 So.2d 317 (Miss.1971). We are of the view that the trial jury did this, and, while we likely would be inclined not to disturb a substantially larger award, we cannot say, on this record, that the verdict of the jury is contrary to the overwhelming weight of the evidence or that it is the product of bias, passion, or prejudice on the part of the jury.

We, accordingly, affirm the lower court.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    Billy James SMITH v. Dweneth Florence SMITH.
    No. 51754.
    Supreme Court of Mississippi.
    March 12, 1980.

      Dyer, Dyer & Dyer, Howard Dyer, Green-ville, for appellant.
    Isaiah Madison, Greenville, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This is another one of those unfortunate cases where grown and supposedly mature persons are fighting over innocent children. The case originated in the Chancery Court of Humphreys County and the appeal is from a decree of that court modifying its former decree. A recitation of the history of the cause is necessary.

On June 17, 1976, the Chancery Court of Humphreys County executed and filed its final divorce decree. In addition to granting a divorce, the decree made certain provisions regarding the three minor children of the parties. These children were Stuart Wayne Smith, born April 28,1964; Amanda Lee Ann Smith, born November 24, 1967; and James Bradley Smith, born June 14, 1969. Portions of the decree were as follows:

That the Court specifically does not declare the fitness of either of said parties to have the permanent care and custody of said children, but finds that it would be in the best interest of said children for their temporary exclusive custody to be placed with their paternal grandmother, Mrs. Velma Smith, until further order of this Court.
The Court further finds that both parties have a right of reasonable visitation to said children, at such reasonable times as will not interfere with the welfare and well-being of said children, that either party may later have the right to move this Court to fix said visitation rights with certainty.
Both parties hereto are forbidden from removing said minor children from the jurisdiction of this Court and the State of Mississippi, except upon motion and affirmative order of this Court setting forth the terms and conditions thereof.

On August 3, 1978, appellee, Dweneth Florence Smith, then a resident of Washington County, Mississippi, filed her “Petition for Modification of Custody Provided for in Final Decree of Divorce.” The petitioner alleged that circumstances had changed so that it was to the best interest of the minor children that she be given their exclusive custody.

The hearing on the petition to modify the former decree was held on December 11, 1978. Appellant had appeared and filed an answer to the petition denying the relief prayed for by the petitioner. He further alleged affirmatively that an adoption order of a Tennessee Court barred the modification proceedings. A number of witnesses were introduced by both parties and testimony was received from both parties individually. This testimony revealed practically undisputed facts as to events occurring prior to the hearing which require a discussion so as to relate them to the court’s final modification decree.

A few weeks after the original divorce and child custody decree of June 17, 1976, the paternal grandmother, Mrs. Velma Smith, relinquished custody of the children to their father, appellant Billy James Smith, who had moved to Madison County, Tennessee. The grandmother had carried the little girl to Texas for a period of time, but on the date the petition for modification was filed by appellee, the two youngest children were residing in the trailer home of appellant in Tennessee. For approximately one year preceding appellee’s filing of the petition to modify, appellant had been remarried to one Patricia Smith, twenty years of age at the time of the modification hearing. The children, at that time, as hereinbefore indicated, were ages 14,11 and 9 years respectively.

Prior to the modification petition being filed, the fourteen-year-old boy voluntarily left Tennessee and went to Greenville, Mississippi, to reside with his mother. On October 13, 1978, appellee went to Tennessee, secured her other two children, and brought them to her home in Greenville, where they have been at all times subsequent thereto.

On September 29, 1978, Mrs. Patricia Smith, the wife of appellant, filed a petition in the Chancery Court of Madison County, Tennessee, requesting the adoption of the two youngest children, Amanda Lee and James Bradley. This petition was filed pursuant to Tennessee Code Annotated sections 36-110 et seq. The petition charged that the children had been abandoned by their natural mother, the appellee. This was the basis for the adoption request. On November 10, 1978, approximately one month after the children were taken from Tennessee to Greenville, Mississippi, by their mother, the Tennessee court entered its “order” finding that during a hearing on that day, the allegations of the petition had been proven and that the children had been abandoned by their natural mother. In the affirmative defense to appellee’s modification petition, appellant attached certified copies of the Tennessee adoption proceedings to his answer and alleged that the Mississippi chancery court should give full faith and credit to the Tennessee order of adoption.

After a full hearing, as hereinbefore stated, the chancellor in the modification proceedings, found that there had been a change of circumstances which required him to place the custody of the three children with appellee, their mother, with specific visitation rights granted appellant. The court further found that the Tennessee adoption decree was ineffective for the primary reason that the paternal grandmother, Mrs. Velma Smith, was not made a party thereto. The chancellor further found that the legal residence of the children was in Mississippi and the Tennessee court did not have jurisdiction over them.

We have already seen that the original divorce decree of June 17, 1976, only made a temporary custody decision regarding the children and forbade them being taken from the jurisdiction of the court. Jurisdiction for the purpose of decreeing permanent custody of the children was reserved. We hold that when appellee filed her petition for modification of the original decree on August 3,1978, jurisdiction of all matters regarding custody and control of the minor children was vested as of that time in the Chancery Court of Humphreys County.

Appellant bases his request for reversal partially on the adoption proceedings in Tennessee, alleging that the Humphreys County Chancery Court, under prior cases of this Court, should have given full faith and credit to the Tennessee order. All of the authorities cited by appellant are correct and are still applicable law. Had the children been under the jurisdiction of the Tennessee court and had the adoption proceedings been regular and proper, a different question would arise. This is not the case. In the first place, it is obvious that the Tennessee proceedings were completely void, the order being based on a finding that the children had been abandoned by their mother, when the children were at that time living with their mother. The Tennessee order was void for that reason if for no other. Certainly, Mississippi courts are not required to give full faith and credit to obviously void judgments, orders and decrees of other states. We do not intend to imply that the Tennessee court deliberately issued its order based on erroneous facts. We do not have a transcript of any testimony taken by the Tennessee court and can only surmise that it did not have the full facts and circumstances before it when its order was issued.

As hereinbefore stated, regardless of the holding that the Tennessee adoption order was void, that court did not have jurisdiction in the adoption proceedings, as jurisdiction of the children was never relinquished by the Mississippi court and jurisdiction firmly attached in the Mississippi court when appellee filed her petition for modification on August 3, 1978.

A recitation of the evidence received by the chancellor under the petition for modification would serve no useful purpose. He found that because of the ages of the children and based on evidence regarding the relationship between appellant’s wife and the children while the latter were in Tennessee, severe problems existed between Mrs. Smith and the children which were detrimental to their welfare. It is elemental that we cannot disturb the chancellor’s finding of fact on child custody matters unless we can say with reasonable certainty that the chancellor was manifestly wrong. We cannot make such a decision here, and, therefore, hold that the chancellor had sufficient evidence to modify the former temporary decree and grant appellee the custody of the children.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


author: BROOM, Justice,

text:
    Walter TERRY et al. v. LONG CREEK WATERSHED DRAINAGE DISTRICT.
    No. 51764.
    Supreme Court of Mississippi.
    March 12, 1980.

      Fredrick B. Clark, Lexington, for appellants.
    Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellee.
    Before PATTERSON, BROOM and COF-ER, JJ.
   BROOM, Justice,

for the Court:

Condemnation of land for recreational purposes highlights this case appealed from the Chancery Court of Attala County. Long Creek Watershed Drainage District (Long Creek herein) petitioned the chancery court for authority under Mississippi Code Annotated § 51-29-39 (1972) to take certain privately owned lands. Walter Terry, et al. (landowners herein), owners of part of the land which Long Creek sought to have condemned, filed their objections and now appeal from the chancellor’s ruling in favor of Long Creek. We reverse.

Long Creek sought fee simple title to the land (approximately 671 acres) for construction of a flood control lake and for recreational purposes. Only one issue is before us:

HAS LONG CREEK STATUTORY AUTHORITY TO ACQUIRE THE SUBJECT LANDS WHICH ARE INTENDED TO BE USED PURELY FOR RECREATIONAL PURPOSES?

Long Creek admits in its brief that “the right to acquire property for recreational purposes is not explicitly set forth by the Code of this State.” Long Creek is a legal entity organized pursuant to what is now Mississippi Code Annotated § 51-29-5 (1972). Mississippi Code Annotated § 51-31-5 (1972) establishes the general authority of drainage districts and provides for their organization and states that the purpose of the organization is “for the purpose of reclaiming wet, swamp, or overflowed lands for agricultural and sanitary purposes conducive to public health . . . .”

Mississippi Code Annotated § 51-33-3 (1972), in its pertinent part is as follows:

To the end that soil and water conservation measures may be improved, flood control and drainage programs strengthened, and the land and water economy of the state stabilized, the following additional powers are conferred upon presently existing drainage districts in the State of Mississippi, including districts with county commissioners as established under sections 51-31-1 to 51-31-143, and districts established under sections 51— 29-1 to 51-29-165:
(a) To take necessary measures for prevention of erosion, floodwater, and sediment damage; to further the conservation, development, utilization, and disposal of water; and to adopt necessary regulations, programs, and procedures to accomplish these ends, subject to approval of the chancery court or chancellor and on proper notice to the interested parties as such notice is provided for in the general statutes pertaining to drainage districts.

Long Creek notes that according to the landowners, § 51-33-3(a) provides that districts are authorized “to take necessary measures for prevention of erosion, flood water, and sediment damage; to further the conservation, development, utilization and disposal of water.” Long Creek fails to note, however, that the title of this section is “Additional powers for conservation” and mentions nothing about recreation.

One of Long Creek’s contentions is that the words “utilize and develop” in § 51-33-3(a), supra, imply that one of the ways to develop and utilize water is for recreational purposes. Another contention of Long Creek is that the only method of making the lake (which is the subject of this litigation) useful, is to open it to the public for recreation. Long Creek states that if this is not done, “the largest lake in Central Mississippi, costing the taxpayers of this state and nation perhaps two million dollars, will be, in effect, a private pond.”

As part of its argument that it may condemn land for recreational purposes, Long Creek relies in part upon one of our statutes having to do with sixteenth section lands: Mississippi Code Annotated § 29-3-153(d) (1972), which defines development- as “ ‘Development’ shall mean the planning, surveying, platting, financing, improving and/or otherwise making sixteenth section lands, or lands granted in lieu thereof, suitable for commercial, industrial, and/or recreational use.” In dealing with the last quoted portion of our statute on sixteenth section lands, Long Creek says that the legislature obviously intended that a body of water such as is the subject of this litigation and which is owned by a subdivision of the state should also be made available to the public for recreational use, for it used the same word in both statutes. We find no merit or persuasion to this argument because it is obvious that if the legislature had intended for “develop” in the statutes pertaining to drainage districts to mean the same as it does in the sixteenth section land statutes, the legislature would have so defined the word in the statutes.

The instant case is distinguishable from Moorhead Drainage District v. Pedigo, 210 Miss. 284, 49 So.2d 378 (1950). According to Long Creek, Moorhead held that a watershed district may have an implied power to carry out the purposes of the district. There can be no argument in this regard but the “implied power” must be readily, easily and not illogically implied from the language of the statute. In Moorhead, if the drainage district had not been allowed to contract for survey work, they would have been unable to carry out the original expressed intent of the watershed district. Such is not the situation in the case at bar because Long Creek can obviously carry out its purpose without implied authority to condemn lands for recreational purposes. As noted by the landowners, Long Creek, using tax money, has already constructed five other lakes, none of which have recreational facilities attached.

As is usually the case in construing statutes, we must seek to ascertain what was the intention of the lawmakers when they enacted the statute in question. Mississippi Code Annotated § 51-31-143 (1972), a part of our code dealing with drainage districts, states:

This chapter shall be liberally construed to promote the ditching, drainage, and reclamation of wet, swampy, and overflowed lands. .

Applying the last stated statutory language to the case before us, we must liberally construe our statutory law on drainage districts, but we can make such construction only to the extent of the purposes mentioned in the statutes. Here the statutes germane to the instant case make no reference whatever to “recreational purposes” as a proper basis for the taking of privately owned lands. As we held in Roberts v. Mississippi State Highway Commission, 309 So.2d 156 (Miss.1975),

It is a general rule of statutory construction that where there is a doubt of the right to exercise the power of eminent domain, the statutes will be strictly construed most favorably to the landowner. (309 So.2d at 159).

Our analysis of the statutes of this state pertaining to drainage districts is that the statutes fail to grant any implied power to condemn lands for recreational purposes. We do not hold that land condemned for any purpose set forth in § 51-33-3 may not then be used (by Long Creek and those it grants permission) for recreational purposes as well as for the statutory purposes: flood control, prevention of erosion, and the like. Our holding is narrowly stated to mean that Long Creek upon the record as made may not condemn the landowners’ property for purely recreational purposes. Here upon the present state of the record we are unable to ascertain precisely which or how much lands are to be taken for purely recreational purposes. Accordingly, the lower court erred in upholding the petition of Long Creek as to lands to be taken for purely recreational purposes and therefore' we must reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

      . This cause came before us as an appeal of an interlocutory order of the Chancery Court by order of this Court dated June 25, 1979 after a hearing before a Justice of this Court pursuant to Mississippi Code Annotated § 11-51-7 (1972), as amended.

      . Appellants contend that of this 671 acres, 460 acres are all that are needed for the lake, and 211 acres would be purely for recreational purposes. Further, they contend that Long Creek would need only an easement to the 460 acres, leaving fee simple title in the present owners. Long Creek in its answer “admits that part of the property to be acquired is to be used for recreational purposes.”

      . Culley et al. v. Pearl River Industrial Commission, 234 Miss. 788, 108 So.2d 390 (1959) involved rights of a water supply district to condemn land where “recreational facilities” were contemplated. There the legislative act specifically had “recreational facilities” within its purview which is not true in the instant case.


text:
    In the Matter of the ESTATE of Greta Meador McKELLAR, Deceased, Tiny Bell, Administratrix. Mrs. Lucille JAY, Mr. Larry Jay, Miss Jo Jo Brewer, Mrs. Luciane Brewer, and Miss Marie Brewer v. Nell THRASH and Jacqueline Field.
    No. 51765.
    Supreme Court of Mississippi.
    March 12, 1980.
    Hamilton & Williamson, John W. (Jay) Boling, Meridian, for appellants.
    Self, Jordan & Jones, Robert D. Jones, Meridian, for appellees.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   BROOM, Justice,

for the Court:

Execution and attestation of a purported Last Will and Testament are at issue in this case appealed from the Chancery Court of Lauderdale County. In that court Tiny Bell filed for probate a document said to be Greta Meador McKellar’s true Last Will and Testament. The matter was contested and after hearing testimony the lower court found that the document was statutorily deficient and therefore invalid. From the chancellor’s refusal to admit the document to probate, Tiny Bell, administratrix, Lucille Jay, Larry Jay, Jo Jo Brewer, Luciana Brewer and Marie Brewer bring their appeal. We affirm.

The purported Last Will and Testament of Greta Meador McKellar (McKellar herein) is a five-page instrument dated August 23, 1977. McKellar died March 29, 1979. Her purported Will, completely written out in her handwriting, was designated in the original proceedings as her “holographic” Will but on amendment of the pleadings became designated as a “statutory” attested Will. According to the document at issue, several beneficiaries of McKellar’s purported Will were persons not her heirs at law. Her heirs at law were stated to be Tiny Bell, named by the lower court as her administratrix, Nell Thrash and Jacqueline Field.

First paragraph of the purported Will is in the following language:

“To Whom it May Concern
I, Greta Meador McKellar, being of sound mind and body, declare this to be my last Will and testimony [sic] concerning my real and personal property. . . ”

The document consists of five pages (four sheets of paper), the last of which is on the reverse side of page 1. Near the bottom of the last page, being page No. 5, is the following:

“The following have witness [sic] my writing of this five page will—
Luciana Brewer
Lucille Jay
Douglas Watkins.”

Nowhere on the instrument except in the opening paragraph does McKellar’s purported signature appear.

Testimony adduced to the lower court included the three people whose names appear at the end of the document as witnesses. Douglas Watkins testified that she took the deceased McKellar to the hospital, and that while a patient in the hospital, McKellar called Watkins to her room and said, “Sign this.” Watkins did not see McKellar write any part of the document; nor did she see McKellar sign her name, nor hear McKellar acknowledge signing the document. According to Watkins, McKel-lar did not tell her what the document was.

Another witness to the instrument, Lu-ciane Brewer, stated that McKellar called her to McKellar’s hospital room where McKellar handed Brewer one page to sign. She testified that in all McKellar had four or five pieces of paper, and that when she (Brewer) signed it, she saw no other names on the paper. Brewer’s further testimony was that McKellar discussed the contents of the instrument with her but did not state that McKellar told her that McKellar had signed the instrument. Brewer did not read the instrument.

Lucille Jay testified that McKellar asked her to come to McKellar’s room where McKellar said, “This is my Last Will and Testimony [sic]. . . . ” Jay stated that when she signed the instrument as a witness, she didn’t examine it but that Mrs. Brewer had already signed it when she, Jay, signed it.

The witness Watkins kept the controversial document until the day after the funeral when she opened the envelope containing the document.

The chancellor in his opinion held that the [Purported will was not signed by the purported testatrix as is required by law and the cases in this jurisdiction. It is the opinion of this Court that the statements made to the witnesses by the purported testatrix did not carry with it any words signifying that the purported testatrix had signed the will.

Upon this record we cannot say that the decree against the purported Will was manifestly wrong or that the chancellor’s finding was contrary to the law or the evidence. Careful analysis of the testimony establishes that none of the witnesses who testified stated that they saw or read or heard the entire document. None of the pages of the document except near the bottom of page five was signed by a witness, and McKel-lar’s purported signature was at the top of page one. No testimony is in the record that any of the witnesses saw or observed McKellar either affix her signature on the document or heard her acknowledge that she had previously or at any time signed or affixed her signature to the document.

Under the case law of this state, the execution of a Will is a statutory privilege and not a constitutional or common law right. We have held many times that the intention of a testator is the paramount issue in the construction of Wills but one’s intention does not become important nor the object of search by a court until there is first established a Will executed according to statutory requirements. Wilson v. Polite, 218 So.2d 843 (Miss.1969). Wilson dealt with a purported Will wherein the testatrix did not sign (subscribe) at the bottom. Accordingly we held it not to be a valid holographic Will. In Wilson, there were no attesting witnesses to the purported Will, and it could not be valid as a non-holographic Will so it was a nullity. Wilson made the following pronouncement concerning a non-holographic or attested Will (the type now at issue):

[T]he name of the testator may be written at any place on the instrument, so long as it is declared to be his signature, and the instrument is published and signed in the presence of the witnesses.

Our statute applicable here is Mississippi Code Annotated § 91-5-1 (1972) which states in pertinent part that:

[S]uch last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

Kennard, et al v. Evans, et al, 218 Miss. 176, 65 So.2d 285 (1953) was concerned with a testamentary “revocation instrument” purporting to revoke the Last Will and Testament of a Mrs. Polk. The “revocation instrument” was held invalid in an opinion authored by Kyle, J. Excerpted from the Kennard opinion and pertinent here is the following language:

The controlling factor in this case, however, is that the evidence offered by the contestants to establish the proper execution of the alleged revocation was insufficient to show that the instrument had been executed by the testatrix and attested by the subscribing witnesses, in compliance with our own statute as construed by this Court.
[Sjince Mrs. Polk did not sign the revocation instrument in the presence of Mrs. Easterling, it was necessary that Mrs. Polk inform Mrs. Easterling that the instrument which she was executing was a revocation of her will, and that the signature appended to it was her signature, and that she wrote it, or that Mrs. Polk make known to Mrs. Easterling in some way that the instrument was a revocation instrument and that she had signed it. Austin v. Patrick, 179 Miss. 718, 176 So. 714.
But the proof fails to show that Mrs. Polk did make known to Mrs. Easterling that the instrument was a revocation of her will, and from Miss Cochran’s testimony it appears that Mrs. Easterling learned from Miss Cochran, and not from Mrs. Polk, that Mrs. Polk had signed the instrument.

We held in Batchelor v. Powers, 348 So.2d 776 (Miss.1977) that “attested” means (1) the mental act of observation, and (2) the statutory manual act of subscription by attesting witnesses. It cannot be said that the purported Will before us was properly attested according to the evidence presented. Had the chancellor found that the purported Will was signed, attested and published in accordance with § 91-5-1, supra, and applicable case law, we would be hard put to say that such a finding was justified by the record. Upon this record we cannot say that the Will was properly executed, that is: signed, attested and published in accordance with the statute and therefore the lower court must be affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COPER, JJ., concur.


author: WALKER, Justice,

text:
    Raymond Lee GATHRIGHT v. STATE of Mississippi.
    No. 51782.
    Supreme Court of Mississippi.
    March 12, 1980.
    Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

The appellant, Raymond Lee Gathright, was indicted for the crime of murder by a grand jury of Neshoba County, Mississippi. Upon motion by appellant for change of venue, the cause was transferred to the Circuit Court of the Second Judicial District of Panola County, Mississippi. After a full trial, the jury found the appellant guilty of manslaughter and he was sentenced to serve twenty (20) years in the Mississippi State Penitentiary. From that conviction and sentence, appellant prosecutes this appeal. We affirm.

The appellant’s primary assignment of error is that the trial court erred in overruling his motion for a directed verdict at the conclusion of the state’s case and that the jury verdict was contrary to the overwhelming weight of the evidence.

On the evening of December 16, 1978, K. C. Cotton, the deceased, and John Willie Clay along with the appellant “got together to go drinking.” According to the testimony of John Willie Clay, the state’s main witness, he and the appellant went to De-Kalb, Mississippi, to get some whiskey to drink. After arriving in DeKalb, they purchased a fifth of whiskey and proceeded to pick up K. C. Cotton, who lived in Winston County, Mississippi. They were riding in the appellant’s truck and appellant was driving. After they picked up Cotton at his home, they proceeded on to Louisville where they stopped at a cafe and had some drinks. Prom there, they went to Philadelphia, Mississippi. While in Philadelphia, they rode around and consumed more whiskey. Around midnight they started back home, but before arriving there, they stopped on the side of a dirt road.

The district attorney asked the witness (Clay) the following questions:

Q. Why did you stop?
A. Well, when I knowed anything, they was getting out of the truck.
Q. What, if anything, was said about the reason they were getting out?
A. I don’t know.
Q. What did Raymond Gathright say, if anything?
A. Say, if anything?
Q. What did he say?
A. Oh, I heard him say, “I will show you what I will do.”

Gathright went around to the back of the truck and Cotton met him at the tailgate. Gathright hit Cotton across the head. Clay testified that he did not know what Gath-right hit Cotton with or how long the object was. Clay further testified that Gathright poured something on Cotton and set fire to him. On cross-examination, Clay testified that at the time of the incident he was full of alcohol and was drunk. He stated that he had been passed out asleep and drunk, never hearing any argument between Gath-right and Cotton. However, Clay stated that when the truck stopped on the road, he woke up, witnessed the incident by looking out the back window of the truck.

Following Clay’s testimony, Dr. Rodrigo Galvez, a pathologist, testified that he examined the body of K. C. Cotton, a young Indian male, and found a laceration two inches long on the left side of the head and a swollen area in the back of the head on the left side. After opening the head on the left side, he found clotted blood, which, in his opinion, was the direct cause of the man’s death. The cause of the blood clot was the direct result of at least two blows on the left side of the head. The body also showed first and second degree burns.

After the state rested, the attorney for the defendant made a motion for a directed verdict in favor of defendant for failure of the state to make out a prima facie case of murder. The motion was overruled and the defendant then testified in his own behalf. The appellant’s testimony was essentially the same as John Willie Clay’s, until that point when the three arrived in Philadelphia, Mississippi. The appellant’s testimony was that they parked in a friend’s driveway and drank. Cotton (the deceased) and Clay started arguing over some money. Clay was trying to find out if Cotton had any more money left on him. They then left Philadelphia and went toward Preston, whereupon Clay asked appellant to pull off the side of the dirt road. After appellant stopped, both Clay and Cotton got out of the truck. Appellant testified that Clay went around to the back of the truck and got a pulpwood stick and then came back and asked Cotton where his money was. Cotton replied that, “he didn’t have none,” and that is when Clay started hitting Cotton. Appellant also stated that Cotton and Clay were drunk but that he (appellant) was not. The appellant then testified that after Clay hit the deceased with the pulpwood stick, Clay then poured gas on Cotton. Asked if he tried to put the fire out or save Cotton, the appellant replied, “I went to the back of the truck and got my father’s raincoat and put it over his body, tried to put it over his body, but he [Clay] didn’t want me to do that . . . He said, ‘Let the son-of-a-bitch die.’ ” On cross-examination, the appellant testified that Clay, after pouring gas on Cotton, asked him for a match, and he handed him some matches; however, on redirect examination, appellant testified that he did not know what Clay was going to do with the matches when he asked for them, and that he did not know whether Clay was going to smoke or what.

The appellant strongly contends that the trial court erred in overruling his motion for a new trial because the state’s only witness linking appellant with the murder was John Willie Clay, who was intoxicated at the time of the alleged murder. Appellant submits that justice and fairness demand this case be reversed.

This Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the state’s witnesses and the appellant’s witnesses, including the appellant himself. We have repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court. Davis v. State, 320 So.2d 789 (Miss.1975); Wilson v. State, 264 So.2d 828 (Miss.1972); McLelland v. State, 204 So.2d 158 (Miss.1967).

The testimony presented a typical case for determination by the jury and only the jury could resolve the conflicting facts. Since the testimony was credible and the proof offered by the state was not against the overwhelming weight of the evidence, we are not inclined to disturb the judgment of the jury and the trial court.

We have considered appellant’s remaining assignment of error and find it to be without merit.

For the above reasons, the judgment of the lower court should be affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: SMITH, Presiding Justice,

text:
    Herbert BERRYHILL v. George S. SMITH.
    No. 52001.
    Supreme Court of Mississippi.
    March 12, 1980.

      William B. Kirksey, Binder & Moore, Jackson, for appellant.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellee.
    Before SMITH, SUGG and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

This case involves the contest of a primary election.

Herbert Berryhill and George S. Smith were candidates for nomination for supervisor of District 5 of Hinds County in the Democratic Primary election held on August 7, 1979.

The returns were canvassed on August 9 by the Democratic Executive Committee, Smith was certified as the winner by a vote of 2,654 to 2,557 for Berryhill, and the boxes were sealed as required by law.

On or about August 10, Berryhill gave notice of a request to examine the contents of the boxes and this examination was conducted on or about August 17, both parties being present and represented by counsel.

On August 22, Berryhill filed a protest of the election with the Democratic Executive Committee as provided by Mississippi Code Annotated section 23-3 — 45 (1972).

This was heard by the Executive Committee and denied and Smith was declared the nominee.

On September 20, Berryhill filed a petition for judicial review of the action of the Executive Committee in rejecting his protest.

A judge was appointed by this Court to preside over the special tribunal as provided by Mississippi Code Annotated section 23-3 — 47 (1972). The special tribunal was duly convened and BerryhilPs contest of the election was fully heard and considered. The presiding judge rejected the contentions of contestant Berryhill. It is from this action of the special tribunal that Berryhill has prosecuted the present appeal.

Of several contentions made before the Election Commission and before the special tribunal, on appeal here, only four alleged errors are assigned for reversal:

The Judge of the Special Tribunal erred in ruling that one of the issues was “that as a result of redistricting, certain persons were deprived of their right to vote in the Fifth District because they were assigned to precincts outside the District, although they lived in the District.”
The Judge of. the Special Tribunal erred in ruling on the “sanctity” of the election box from Precinct 2.
The Court erred in overruling Appellant’s motion to throw out the boxes in the Fifth Supervisory (sic) District.
The Court erred in allowing Bill McKinley to testify and introduce voter machine printouts based upon his testimony as “Custodian of the Records.”

Before dealing with the above assignments, it is necessary to advert to two preliminary matters.

First: When the case was advanced on this Court’s docket, as required by statute, the order provided an amended schedule for the filing of briefs. The order was misread or misunderstood by appellee’s counsel, resulting in the appellee’s brief being filed late. On the day that appellee’s brief actually was filed, appellant filed a motion to strike it upon the ground that it had not been filed on the day specified. Since the filing of the brief, appellant has filed his rebuttal brief, and because we are unable to see that the short delay has prejudiced or harmed appellant, the motion to strike will be overruled.

Second: Several members of the five member Democratic Executive Committee sat with the presiding judge, comprising the special tribunal designated to hear the case. At the conclusion of the case and following the announcement of the presiding judge’s findings, three of the commissioners concurred with him therein. No commissioner dissented or disagreed. Of the other two members, one was absent and the other “abstained.” Abstained has been defined as “to withhold oneself from participation.” Apparently this commissioner took no part in the decision because of having testified as a witness at the trial. Mississippi Code Annotated section 23-3-51 (1972) provides:

If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as three of the commissioners are and have been in attendance, the facts shall not be subject to review on appeal, and the bill of exceptions shall not set up the evidence upon which the facts have been determined.

Allen v. Funchess, 195 Miss. 486, 15 So.2d 343 (1943).

The concurrence of the three commissioners who participated in the decision making process fulfilled the requirements of section 23-3—51, there having been no dissents, so that the findings of fact by the judge are not subject to review by this Court.

The special tribunal found that there was no evidence of fraud. In fact, fraud was not charged. The tribunal found that there was no evidence that any illegal votes were cast in the election in District 5 of Hinds County although “there is some evidence that because of the confusion caused by the redistricting, some twenty-one persons voted outside the district although they were residents in the district. The Court finds that there is no evidence that this irregularity had any effect on this election whatsoever as to its ultimate outcome.”

In dealing with the challenge to the “sanctity” of the box in Precinct 2, the special tribunal found that the box of “this precinct was examined by the parties and resealed by the Clerk and placed under lock in a room in the Hinds County Court House and that subsequently, without the knowledge of the Clerk, the box disappeared, although its contents were placed in another box which was sealed and which was produced on this hearing and from which the clerk produced and identified the voting machine records from Precinct 2. There is no evidence—in fact, there is no contention that anyone altered these records or destroyed any pertinent records in any way which would affect the validity of these records in their reflection of the outcome of the voting in Precinct 2.” The contents of the box previously had been formally examined by Berryhill and his attorney. Even now there is no contention that the contents identified by the clerk as having been those originally contained in the box and which had been examined by Berryhill and his attorney had been altered or that any had been lost or destroyed. It was not error to permit this identification by the clerk.

The tribunal declared: “The purpose of this hearing is to ascertain whether or not the will of the qualified electors participating in the party primary was voiced by the result of the Primary Contest. The Court finds that there is no evidence to the contrary before it on this hearing. The Court on this hearing has the authority and the duty to determine if those voting or those offering to vote are qualified electors or entitled to vote. There is no evidence before this Court that anybody voting in District 5 was not entitled to do so. It is further its duty to determine whether, in all substantial respects, the election was fairly and honestly held in compliance with the various provisions of the law. There is no evidence that this election was not fairly held.”

And further: “The question is whether or not this election was fairly and honestly held. To reverse the decision of this Commission and to have another election and overthrow the expressed will of the people in this district would require some very positive proof of illegality and unfairness. Those elements are not present in the record on this hearing.”

These findings by the special tribunal are supported by the record and cannot be said to have been manifestly wrong.'

Two persons, testifying as witnesses, said that they were erroneously assigned to another district and would have voted for Berryhill if they had been permitted to vote in District 5, which was the district in which they said they resided.

There is no evidence that any person voted in the election who was not entitled to do so.

Eight people who voted in Precinct 2 omitted or neglected to. sign the register.

Ex parte affidavits were obtained by appellant from twenty-four people, in which the affiants stated that they resided in District 5 but had been assigned erroneously to voting precincts in another district. Most of these affiants stated in their affidavits that if they had voted in District 5 they would have voted for Berryhill.

Accepting the testimony of the two witnesses at face value, and if we could assume that the eight persons who voted but did not sign the register voted for Smith, and if it , were permissible to consider as evidence the ex parte affidavits of the twenty-four affiants that they were entitled to vote in District 5 and, moreover, would have voted for Berryhill if they had voted in that district, in the aggregate this would involve only thirty-four votes and would in no wise have affected the outcome of the election.

Of the votes cast, only the eight ballots cast by the voters who did not sign the register can be categorized as illegal.

In State v. Greer, 158 Miss. 315, 130 So. 482 (1930), it was held:

It is the policy of the law to give effect and validity to elections of the people when there has been a reasonably fair attempt to comply with the requirements of the law, and no fraud has been practiced. . . . (158 Miss. at 322,130 So. at 484).

In O’Neal v. Simpson, 350 So.2d 998, 1010 (Miss.1977) this Court quoted with approval from Pradat v. Ramsey, 47 Miss. 24 (1872):

The theory of the plaintiff was, that omissions and irregularities, and errors of judgment by those charged with registration, holding the election, and canvassing the ballots, would make the election illegal, and demonstrate that Ramsey had no title to the office. Hence his several offers to make proof on these points, the circuit court disagreed with him, and ruled that the test of his right under the issue was, whether a majority of legal votes preferred him for the office, and therefore he must prove that qualified voters were rejected, and illegal ballots received, which would change the result. (Emphasis added). (47 Miss. at 34, 35, 37, 38, 39).

The findings of fact and conclusions of law of the judge who presided over the special tribunal, which were concurred in by the three commissioners who participated in the decision, are supported by the evidence and the decisions of this Court. No prejudicial error was committed in the trial of the case and the judgment appealed from must be and is affirmed.

AFFIRMED.

The case was considered by a conference of the Judges en banc.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.

BOWLING, J., took no part.


text:
    Mrs. F. R. GREGORY, Sr., a/k/a Mrs. Maggie Gregory v. Mary E. GREGORY, a/k/a Mary G. Saucier.
    No. 51778.
    Supreme Court of Mississippi.
    March 12, 1980.
    Oates & Houston, Marvin Oates, Bay Springs, Swartzfager & Swartzfager, Paul G. Swartzfager, Sr., Laurel, for appellant.
    John Michael Sims, Heidelberg, J. E. Ul-mer, Jr., Bay Springs, for appellee.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION v. NOXAPATER TELEPHONE COMPANY.
    No. 51704.
    Supreme Court of Mississippi.
    March 12, 1980.
    J. Max Kilpatrick, Philadelphia, Bennett E. Smith, Jackson, for appellant.
    Charles R. Mayfield, Jr., Jackson, for ap-pellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    FIRST MISSISSIPPI BANK OF COMMERCE v. Ray LATCH, d/b/a Waterway Construction Company.
    No. 51483.
    Supreme Court of Mississippi.
    March 12, 1980.
    Smith, Downs, Ross, Trapp & Coleman, Orma R. Smith, Jr., Corinth, Langston, Lott & Cadle, Booneville, for appellant.
    James H. Mathis, Corinth, for appellee.
   Appeal from Circuit Court, Alcorn County; Neal Biggers, Judge.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and COFER, JJ., concurring.


text:
    H. C. STEVENS v. Roosevelt SHORTER, Jr.
    No. 51638.
    Supreme Court of Mississippi.
    March 12, 1980.
    Robertshaw & Merideth, J. Robertshaw, Greenville, for appellant.
    No brief filed on behalf of appellee.
   Appeal from Chancery Court, Washington County; Willard L. Mcllwain, Chancellor.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

REVERSED AND RENDERED IN PART AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and COFER, JJ., concur.


author: BOYD, Justice.

text:
    Raul Lopez SANTOS, Appellant, v. STATE of Florida, Appellee.
    No. 55353.
    Supreme Court of Florida.
    March 6, 1980.
    Rafael de Armas, Winter Park, for appellant.
    Jim Smith, Atty. Gen., and John D. Ceci-lian, Asst. Atty. Gen., West Palm Beach, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the County Court of Orange County. The trial court passed upon the constitutionality of a state statute. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The appellant was charged with the crimes of driving while intoxicated and driving with unlawful blood alcohol level in violation of section 316.193, subsections (1) and (3) respectively, Florida Statutes (1977). The judgment from which this appeal is brought was rendered upon a plea of nolo contendere. Prior to his change of plea from not guilty to nolo contendere, the appellant moved: (1) to dismiss the information on the ground that section 316.193 is unconstitutional and on the ground that one of the offenses charged is a lesser included offense of the other; (2) to suppress evidence; and (3) for discharge under the speedy trial rule.

The trial court denied the motion to dismiss, upholding the statute’s constitutionality and ruling that the appellant could be charged with both offenses. The court subsequently dismissed the charge of driving while intoxicated. Thus the appellant’s contention that he could not properly be charged with both offenses became moot. The court also denied the motion to suppress and for discharge. The appellant pled nolo contendere to the unlawful blood alcohol level charge, was adjudicated guilty and sentenced.

The appellant presents three issues. He contends that section 316.193, Florida Statutes (1977), violates article III, section 6 of the Florida Constitution. He contends that the court erred in denying his motion to suppress evidence. He contends, finally, that the court erred in denying his motion for discharge pursuant to the speedy trial rule.

At the time the appellant changed his plea to nolo contendere, he specifically reserved for appeal only the court’s ruling on his motion to dismiss. A plea of nolo contendere forecloses the appeal of any issue, other than the facial sufficiency of the charging document, that is not specifically reserved for appellate review. Hand v. State, 334 So.2d 601 (Fla. 1976); State v. Ashby, 245 So.2d 225 (Fla. 1971). Therefore, we will only consider the issue of the statute’s constitutionality under article III, section 6.

Article III, section 6 provides in pertinent part: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” The appellant contends that section 316.193 embraces more than one subject and therefore violates the single-subject requirement for laws. In support of this contention, he asserts that it is improper for section 316.193(1) and (3) to create two separate and distinct offenses. This argument is without merit.

The quoted portion of article III, section 6 contains two essential requirements. The requirement that the subject of a law be briefly expressed in the title serves the purpose of providing notice to interested persons of the contents of an enactment. State v. McDonald, 357 So.2d 405 (Fla. 1978); Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla. 1965). The purpose of the requirement that each law embrace only one subject and matter properly connected with it is to prevent subterfuge, surprise, “hodge-podge” and log rolling in legislation. State v. Lee, 356 So.2d 276 (Fla. 1978); Lee v. Bigby Electric Co., 136 Fla. 305, 186 So. 505 (1939). The purposes sought to be achieved by these constitutional restrictions are satisfied if each enactment of the legislature embraces “but one subject and matter properly connected therewith” and the subject is “briefly expressed in the title.” Art. III, § 6, Fla. Const. When laws passed by the legislature are being codified for publication in the Florida Statutes, these restrictions do not apply. The legislature is free to use whatever classification system it chooses. Article III, section 6 does not require sections of the Florida Statutes to conform to the single-subject requirement. The requirement applies to “laws” in the sense of acts of the legislature.

The offense proscribed by section 316.193(1), Florida Statutes (1977), was established by chapter 71-135, Laws of Florida. This act of the legislature is called the Florida Uniform Traffic Control Law. It regulates the use of the public roads of the state. It embraces only that subject and matters properly connected therewith. The offense proscribed by section 316.193(3) was created by chapter 74-384, Laws of Florida. That law embraces the subject of driving while under the influence of alcohol and matters properly connected therewith.

We hold that neither of the laws at issue here violates article III, section 6. The judgment of the county court is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.


author: BOYD, Justice. ENGLAND, C. J., and SUNDBERG, J.,

text:
    Hal S. WEIDNER, Appellant, v. STATE of Florida, Appellee.
    No. 55499.
    Supreme Court of Florida.
    March 6, 1980.
    Bill Salmon of the Law Offices of Aaron A. Green, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the County Court, Putnam County, in which that court passed upon the constitutionality of section 871.01, Florida Statutes (1977). Appellant was convicted of disturbing a public assembly in violation of that section, a misdemeanor of the second degree. We have jurisdiction of his appeal. Art. Y, § 3(b)(1), Fla.Const.

Section 871.01, Florida Statutes (1977), provides:

Whoever willfully interrupts or disturbs any school or any assembly of people met for the worship of God or for any lawful purpose shall be guilty of a misdemeanor of the second degree punishable as provided in s. 775.082 or s. 775.083.

Viewed in the light most favorable to the appellee; the record establishes the following facts. Appellant Hal S. Weidner is a citizen of the State of Florida and the town of Interlachen. He regularly attends the meetings of the Interlachen town council. On the evening of April 11,1978, Mr. Weid-ner attended a meeting at which the council was considering the replacement of a city employee because the employee did not hold an appropriate license. The appellant sought and obtained the council’s recognition and pointed out that the person being considered as a replacement did not have such a license either. The appellant further stated that he thought the situation was “ridiculous.” One of the councilmen responded to Mr. Weidner’s comment by calling him “a sick man.” The appellant then stepped forward with a tape recorder, asking the councilman to repeat his comment. In the process of doing so, he pushed some chairs forward. At this point, the councilman who had made the comment left his seat on the council platform, approached the appellant, and struck him in the face with his fist. A general disruption of the meeting followed this action by the councilman.

The appellant moved for a judgment of acquittal at the close of the state’s case and at the close of all the evidence.

The appellant contends that section 871.-01 is unconstitutionally vague and over-broad. He argues that the statute creates no objective standard by which the statutory terms may be measured and that the statute is susceptible of application to protected expression, thus inhibiting the exercise of the right to free expression. In S. H. B. v. State, 355 So.2d 1176 (Fla.1978), this Court upheld section 871.01 against a challenge to its constitutionality grounded upon its lack of specificity and overbreadth. We decline the appellant’s suggestion that we revisit that holding on the facial validity of the statute.

The appellant also contends that section 871.01 is unconstitutional as applied to him in that it is being used to punish him for engaging in constitutionally protected speech. The appellant reasons on this point that his proven behavior comes within the proscriptive sweep of the statute, but since what he did is fundamentally different from the kinds of conduct which the statute properly applies to, the law is unconstitutionally overbroad as applied, citing Setzer v. Mayo, 150 Fla. 734, 9 So.2d 280 (1942). The state in the instant case, however, did not seek to punish the appellant for speech. It sought to punish him for conduct that allegedly disturbed a public assembly.

Finally, the appellant contends that the evidence is insufficient, as a matter of law, to support the verdict. In S. H. B. v. State, this Court set out the elements of the offense proscribed by section 871.01.

To commit an offense under Section 871.01 a person must have deliberately acted to create a disturbance. That is, he must act with the intention that his behavior impede the successful functioning of the assembly in which he has intervened, or with reckless disregard of the effect of his behavior. The acts complained of must be such that a reasonable person would expect them to be disruptive. Finally, the acts must, in fact, significantly disturb the assembly. These elements are inherent in the statute as drafted.

355 So.2d at 1178. Upon our review of the record in this case, we conclude that there is a lack of competent evidence, substantial in character, to support the verdict of guilt. The trial court erred in not granting a judgment of acquittal when the appellant so moved the court at the close of the state’s case.

We therefore vacate the judgment and order of probation, reverse the decision of the county court, and remand for the entry of a judgment of acquittal.

It is so ordered.

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

ENGLAND, C. J., and SUNDBERG, J.,

concur only in result, on the ground that the statute is facially unconstitutional. See S. H. B. v. State, 355 So.2d 1176 (Fla.1978) (dissenting opinions).


author: ALDERMAN, Justice.

text:
    STATE of Florida, Petitioner, v. Cleveland FREEMAN, Respondent.
    No. 56215.
    Supreme Court of Florida.
    March 6, 1980.
    Jim Smith, Atty. Gen., and Max Rud-mann and Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Peter D. Blanc and Jon May, Asst. Public Defenders, West Palm Beach, for respondent.
   ALDERMAN, Justice.

This cause is before us to review the decision of the District Court of Appeal, Fourth District, 371 So.2d 114 (Fla.4th DCA 1978), which directly conflicts with Smith v. State, 375 So.2d 864 (Fla.3d DCA 1979), and Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971). The sole question presented is whether a separate instruction on identity and the State’s burden of proof thereon must be given in every case where identity is in issue and where such instruction is requested. We answer this question in the negative and therefore quash the decision of the district court.

Appellant, Cleveland Freeman, requested that the jury be given a separate instruction on identity advising that the State must prove beyond a reasonable doubt not only that the offense was committed as alleged but also that defendant is the person who committed it. The trial court declined to give a separate identity instruction. On appeal, although recognizing that the Third District Court of Appeal takes an opposite view, the Fourth District reversed Freeman’s robbery conviction and held that “when identity is virtually the only issue being tried and the state’s case rests on the evidence of a single witness whose testimony is sharply challenged we believe that it is necessary for the jury to have more guidance on that issue than the indirect references to the ‘defendant’ contained in the court’s charge.” 371 So.2d at 116. Judge Moore dissented and stated:

In charging the jury on the elements of the crime, the burden of proof, and the presumption of innocence, the court made reference to “the” defendant no less than 36 times. There was only one defendant in the courtroom and it is inconceivable to me that the jury did not realize about whom the court was talking or that the jury must find this particular defendant guilty of each and every element of the crime beyond a reasonable doubt. In my opinion the charges as given were complete. It is difficult for me to fault a trial judge who follows the standard jury instructions as approved by our Supreme Court, which instructions are clear, comprehensive and correct. When that is done a conviction based thereon should be affirmed. See, Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971). See also, State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040, 1049 (1976).
The failure to give the requested instruction in no way precluded the defense from arguing that the state failed' to prove the defendant guilty beyond a reasonable doubt. To the contrary, a review of defense counsel’s opening and closing arguments to the jury reveal that the gist of his argument was that the defendant was not proved guilty beyond a reasonable doubt. This argument was based primarily upon the testimony concerning the identity of the accused as related to the jury by the victim. Where the trial court’s instructions sufficiently conveyed the substance of the appellant’s requested charge it was not error to refuse the requested instruction.

371 So.2d at 118.

We agree with Judge Moore’s dissent and hold that the trial court did not err in refusing to give the requested identity instruction. The charges given by the trial court were clear, comprehensive, and correct. From the instructions given, it is clear that the burden is upon the State to prove beyond a reasonable doubt all of the elements of the alleged crime including the identity of the defendant.

Accordingly, we quash the decision of the district court and remand with directions to reinstate the conviction.

It is so ordered.

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


author: PER CURIAM.

text:
    Captain Ralph C. TINGLEY, District 9 Supervisor, Florida Marine Patrol, and State of Florida Department of Natural Resources, Appellants, v. Loren BROWN and Archie C. McMullen, Appellees.
    No. 57526.
    Supreme Court of Florida.
    March 6, 1980.

      Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellants.
    Thomas J. Sireci, Jr. of Horan & Sireci, Key West, for appellees.
   PER CURIAM.

The state Department of Natural Resources appeals a trial court order declaring unconstitutional portions of chapter 370, Florida Statutes (1977). This Court has jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

During the summer of 1978, Florida Marine Patrol officers arrested appellees Brown and McMullen, commercial fishermen, for possession of undersized crawfish in violation of section 370.14, Florida Statutes. Appellees sought declaratory relief in circuit court, challenging the constitutionality of sections 370.14(2)(a)l, 370.14(3)(c), 370.14(3)(i), and 370.021(5), Florida Statutes, and asking that proceedings against them in county court be enjoined. The circuit court agreed with appellees and granted the requested relief, declaring the above-listed statutes invalid. For the following reasons, we disagree and overturn the lower court’s final judgment.

Section 370.14(2)(a)l, Florida Statutes, reads as follows:

No person, firm or corporation shall take or have in his possession at any time regardless of where taken, any saltwater crawfish (spiny lobster or crayfish) of the species Panulirus argus unless such saltwater crawfish (spiny lobster or crayfish) of the species Panulirus argus shall have a carapace measurement of more than 3 inches or shall have a tail measurement not less than 5½ inches, not including any protruding muscle tissue.

The lower court found the “have in his possession at any time” language to be vague, failing to give sufficient warning of proscribed conduct.

Although the term “possession” has not been defined specifically with reference to section 370.14(2)(a)l, that term has been defined in Florida case law. In a case concerning intoxicating beverages, this Court defined possession as “having personal charge of or exercising the right of ownership, management or control over” the item in question. Reynolds v. State, 92 Fla. 1038, 1041, 111 So. 285, 286 (1922). In Reynolds the Court went on to state that “[tjhere must, however, be a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.” Id. Subsequent to its formulation, the Reynolds definition has been applied in cases involving possession of firearms and illegal drugs. Jones v. State, 325 So.2d 436 (Fla. 1st DCA 1975), cert. denied 339 So.2d 1172 (Fla.1976); State v. Eckroth, 238 So.2d 75 (Fla.1970); Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972).

The above-quoted definition is clear, and, had the circuit court applied that definition, it would have found the term “possession” in section 370.14(2)(a)l to be neither vague nor ambiguous. The circuit court expressed its concern that in order to measure a crawfish, the creature must be in one’s possession, thereby subjecting the holder to criminal prosecution if the crawfish turns out to be undersized. Again, application of the second part of the Reynolds definition would have overcome such conclusion. The mere holding of a crawfish while measuring it to determine if it is of legal size is a superficial possession and is insufficient to support a criminal prosecution for illegal possession under section 370.14.

The lower court also declared unconstitutional section 370.14(3)(c) and part of section 370.021(5), finding that these sections impermissibly allowed warrantless searches without a showing of probable cause. Section 370.14(3)(c) provides that both a crawfish license and any harvested crawfish “shall be subject to inspection at all times.” Section 370.021 sets out the powers and duties of the Department of Natural Resources regarding the provisions contained in chapter 370. Paragraph (5) of section 370.021 provides that department law enforcement officers have the authority, based on reasonable belief, to conduct war-rantless searches and inspections.

In Hill v. State, 238 So.2d 608 (Fla.1970), this Court held that the inspection of shrimp boats to determine compliance with permit requirements was permissible and did not constitute an unreasonable search if done “within the framework of probable cause described in Section 370.021(5).” Id. at 611. See also Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978), cert. denied 364 So.2d 888 (Fla.1978); Roth v. State, 378 So.2d 794 (Fla. 2d DCA 1979). The “reason to believe” standard contained in section 370.021 (5), therefore, has been construed to mean probable cause. Although the circuit court considered Hill in its final judgment, it misinterpreted this Court’s construction of the pertinent language. Because the “reason to believe” standard is the equivalent of probable cause, neither section 370.-14(3)(c) nor section 370.021(5) suffers from a probable cause deficiency as found by the circuit court.

Finally, the circuit court found section 370.14(3)(i) invalid in that the bond provision contained therein bears no reasonable relationship to any proper governmental purpose and fails to state the type of bond required or the standards for approval of a bond. A bond required by law must be construed in view of such law with the purpose of such bond being to accomplish the objectives of the law. Loveland v. Lazzara, 219 So.2d 74 (Fla. 2d DCA 1969).

The purpose of section 370.14 is “to maintain the crawfish industry and to conserve the stocks supplying this industry.” § 370.14(1), Fla.Stat. To effectuate this purpose, possession of undersized crawfish is prohibited. § 370.14(2)(a)l, Fla. Stat. Undersized crawfish, however, are useful for luring large crawfish into traps. In order to aid fishermen in their quest for legal size crawfish, the legislature included paragraph (3)(i) in section 370.14 which, in effect, allows such fishermen an exception to the absolute prohibition contained in 370.14(2)(a)l. Access to this exception is by posting a bond payable to the Saltwater Products Promotion Trust Fund, the purpose of that fund being to promote saltwater products, quality control, and law enforcement. The required bond, therefore, bears a reasonable relationship to the purposes of protecting the crawfish industry and promoting saltwater products and is-not constitutionally invalid.

We hold, therefore, that sections 370.-14(2)(a)l, 370.14(3)(c), 370.14(3)(i), and 370.-021(5) are not unconstitutional exercises of the legislature’s power to regulate natural resources. The circuit court’s final judg-. ment is hereby quashed, and this cause is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

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

      . The portion of § 370.021(5) invalidated by the circuit court reads as follows:
      Such authority to search and inspect without a search warrant is limited to those cases in which such law enforcement officers have reason to believe that fish or any saltwater products are taken or kept for sale, barter, transportation, or other purposes in violation of laws or rules promulgated under this law. .

      . This opinion concerns probable cause only for purposes of inspections or searches and consequent arrests and supports the rule that facts constituting probable cause for arrest “need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which conviction must be based.” State v. Outten, 206 So.2d 392, 397 (Fla.1968); Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978).

      . Section 370.14(3)(i) provides as follows:
      Upon posting a $250 bond, payable to the Florida Saltwater Products Promotion Trust Fund and approved by the Division of Law Enforcement, a licenseholder may possess, while on the water, undersized crawfish not exceeding 200 per license or 3 per trap aboard each boat, whichever is greater, if used exclusively for luring or decoying non-captive crawfish into traps. Such undersized crawfish must be kept alive, wet, and shaded while in possession and shall be returned and released to the water alive and unharmed immediately upon leaving the trap lines and prior to 1 hour after official sunset. Any boat or undersized crawfish shall be subject to inspection and search without a search warrant for violation of this section by any authorized agent or employee of the division or by any other law enforcement officer, provided such inspection or search is conducted when the owner or operator is on board such boat. Upon conviction of the illegal possession of undersized crawfish tails, the license-holder shall forfeit said bond to the fund.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. R. W. GRAY, Respondent.
    No. 57527.
    Supreme Court of Florida.
    March 6, 1980.
    John A. Weiss, Bar Counsel, Tallahassee, for complainant.
    R. W. Gray, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against R. W. Gray, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this court. No petition for review pursuant to Rule 11.09(1), Integration Rule has been filed.

Having considered the pleadings and evidence, the referee found as follows:

1. Respondent, R. W. Gray, is and all times mentioned herein was a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. In August, 1977, one Billy Wells purchased a car from Obi’s Auto Complex Inc. and executed a Purchase and Sale document, a copy of which was entered as The Florida Bar’s Exhibit No. 1 in evidence in this cause. After determining that the car was not in good operating condition, Wells exchanged the car for another car which also was not in operating condition, and then demanded his money back from Obi’s, which demand Obi’s refused to comply with.
3. Wells sought advice from the Consumer Affairs Department of the City of Jacksonville and from an attorney at the Jacksonville Legal Aid Office, who advised Wells that he had grounds for a suit against Obi’s by reason of violation of truth in lending laws, and that Legal Aid could not handle the matter for Wells because the truth in lending law authorized recovery of attorney’s fees.
4. Wells described the foregoing transactions between himself and Obi’s to Respondent in February, 1978 and retained Respondent to investigate the situation, particularly Wells’ rights under the Truth in Lending Act, for which Wells paid Respondent a retainer of $50.
5. From February, 1978 through August 16, 1978, Respondent’s only demonstrated attempt to investigate the matter on behalf of Wells was a discussion with Jacksonville Legal Aid personnel and the securing of a number of laymen’s publications detailed in the investigation of Jean C. Coker included in Bar’s Exhibit No. 5 entered in evidence before the Referee. Respondent failed to communicate any progress, or reasons for lack of progress, on the matter to his client, Wells. Respondent’s actions constitute neglect of the legal matter entrusted to him, in violation of Disciplinary Rule DR6-101(A)(3) of the Code of Professional Responsibility of The Florida Bar.
6. Respondent accepted employment as counsel for Wells knowing that he was not then competent to handle the matter. Although the evidence demonstrates that he expected to become qualified through study and investigation, the subsequent lack of proper study and investigation demonstrates, and it is so found, that the expectation was not made in good faith.
7. Respondent intentionally failed to carry out the contract of employment with Wells for professional services, in violation of Disciplinary Rule DR7-101(A)(2) of the Code of Professional Responsibility of The Florida Bar. Although he withdrew from employment upon being discharged by Wells, subsequent to August 16, 1978, the withdrawal was not, as required by Disciplinary Rule DR2-110(A)(2), accompanied by reasonable steps to avoid foreseeable prejudice to the rights of Wells, such prejudice resulting from the tolling of the applicable statute of limitations for filing suit under the Truth in Lending Law on August 5, 1978. Such prejudice during the course of the professional relationship further constitutes a violation of Disciplinary Rule DR7-101(A)(3) of the Code of Professional Responsibility of The Florida Bar.

The referee recommends that respondent be found guilty of misconduct justifying disciplinary measures, by violation of DR6-101(A)(1), DR6-101(A)(3), DR7-101(A)(2), and DR7-101(A)(3) of the Code of Professional Responsibility of The Florida Bar and that Respondent should be suspended from the practice of law for a period of one month.

Pursuant to Rule 11.09(3)(f) of the Integration Rule of The Florida Bar, we directed the parties to submit briefs directed to the suitability of a reprimand as the proper discipline in this case.

Having carefully reviewed the record and briefs, we have determined that the appropriate discipline in this matter is a public reprimand.

Accordingly, respondent, R. W. Gray, is hereby publicly reprimanded and the publication of this order and judgment shall constitute a public reprimand.

Execution is hereby directed to issue against respondent for costs in the amount of $234.10.

It is so ordered.

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

BOYD, Justice,

dissenting.

I believe the proper discipline in this case is a private reprimand.


text:
    THE FLORIDA BAR, Complainant, v. Clyde T. WINDHAM, Respondent.
    No. 58020.
    Supreme Court of Florida.
    March 6, 1980.
    Charles H. Damsel, Jr., Bar Counsel, West Palm Beach, and Harris K. Solomon, Asst. Staff Counsel, Fort Lauderdale, for complainant.
    Clyde T. Windham, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida, Bar against Clyde T. Windham, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06 of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

That on November 2, 1966, Mr. David Jarvis retained the Respondent, CLYDE T. WINDHAM, for the amount of $250 to probate the estate of Mr. Jarvis’ son. That for a period between 1966 and 1973 there were several communications by Mr. Jarvis to the Respondent who had no excuse for not proceeding with the administration of the estate. Further, I find that, although on November 2, 1973 the Respondent had filed a Petition for Letters for Administration in Palm Beach County Circuit Court, he did not take such actions as were required of him as counsel for the estate and that he failed to respond to requests of the Probate Court to conclude the estate.

The referee recommends that respondent be found guilty of violations of DR 1-102(A)(6), DR 6-101(A)(3), DR 7-101(A)(2), and DR 7-101(A)(3), of the Code of Professional Responsibility.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, CLYDE T. WINDHAM, is hereby suspended from The Florida Bar for a period of six months; and that before he is reinstated show evidence of rehabilitation to The Florida Bar or Bar Counsel as to his ability to carry on the practice of law as provided in Rule 11.10 of the Integration Rule of The Florida Bar; and it is further

ORDERED that this suspension shall be effective May 5, 1980, thereby giving respondent sixty (60) days to close out his practice and take the necessary steps to protect his clients; and it is further

ORDERED that respondent shall not accept any new business.

Execution is hereby directed to issue against respondent for costs in the amount of $687.60.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.


text:
    THE FLORIDA BAR, Complainant, v. Ralph S. STERLING, Respondent.
    No. 58520.
    Supreme Court of Florida.
    March 6, 1980.
    Paul A. Gross, Branch Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Ralph S. Sterling, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Consent Plea for Public Reprimand and Entry of Final Order of Discipline.

On January 21, 1980, The Florida Bar filed its Petition alleging:

1. The Respondent acted as attorney for the buyer in a deposit receipt and contract for the purchase and sale of a hotel.
2. The contract called for a deposit of $5,000 to be held in trust by the Respondent.
3. According to the terms of the contract, the $5,000 was to be treated as liquidated damages in the event of default by the buyer.
4. Shortly after the contract was signed, the Respondent wrote the attorney for the seller, the following:
Please be advised that the undersigned, as attorney for the purchaser above, is holding a check in the amount of $5,000 as and for. the deposit required under the contract for sale and purchase dated September 15, 1976.
5. The Respondent never deposited the check and without the consent of the seller, Respondent returned the uncashed $5,000 check to his client, on or about October 14, 1976.
6. The Respondent, by returning the $5,000 to his client, knowingly failed to discharge his fiduciary obligation to the seller.
7. During October, 1976, the buyer defaulted and the seller requested the $5,000 from the Respondent.
8. The Respondent failed to deliver the $5,000 or the uncashed check to the seller, as he had returned the check to his client, without consent of the seller, in violation of DR 1-102(A)(4)(6) of the Code of Professional Responsibility.
9. During January, 1979, the Board of Governors of The Florida Bar voted to accept the Respondent’s CONSENT PLEA FOR PUBLIC REPRIMAND.

The Petition for Approval of Consent Plea for Public Reprimand and Entry of Final Order of Discipline is granted, and Respondent, Ralph S. Sterling, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $201.10 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v Ralph W. WEIR, Appellee.
    No. 79-1272.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.
    Janet Reno, State’s Atty. and Theda R. James, Asst. State Atty., Lawrence D. La-Vecchio, Certified Legal Intern, for appellant.
    Spain & O’Donnell and John Lipinski, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The defendant-appellee, Ralph Weir, was charged by information with two counts of unlawful solicitation of motor vehicle tort claims, in violation of Sec. 627.7375(8), Fla. Stat. (1977). The trial judge entered an order discharging Weir on the ground that he had been immunized from prosecution under Sec. 914.04, Fla.Stat. (1977). The state appeals. We affirm.

The record shows that Weir was served with a subpoena, issued'by the clerk of the circuit court, requiring him to “appear before the State Attorney” and “to testify and the truth to speak,” concerning a pending, but unspecified, “INVESTIGATION.” When Weir arrived at the state attorney’s office in accordance with the subpoena he was told, in essence, that he was the target of the investigation which concerned allegations that he had improperly solicited accident cases for an attorney. The assistant state attorney in charge, James McMaster, at once, however, stated that “before we talk to you, it is necessary that we ask that you waive immunity.” He handed Weir a “Waiver of Immunity” form. After Weir had read it, the following occurred:

MR. WEIR: If I sign this Waiver of Immunity, am I liable for anything, or what?
MR. McMASTER: Well, if you sign the Waiver of Immunity, what that means is if you sit here and tell Mr. Coon [an investigator] or myself that you committed a crime, we can charge you with the crime and use the statement you make against you. [emphasis supplied]

At McMaster’s suggestion, Weir called a lawyer to determine whether to execute the waiver. When Weir thereafter told the state attorney that, pursuant to advice of counsel, he would not sign the document, McMaster stated:

MR. McMASTER: Mr. Weir, at this point we are unable to speak to you. Like I said, you have been subpoenaed down here because of an investigation we are conducting, and we are unable to take a statement from you without asking you to sign a Waiver of Immunity. We cannot talk to you unless you sign the waiver. So at this point we are going to conclude the formal statement. Now, I understand your attorneys advised you not to waive immunity; is that correct?
MR. WEIR: That’s what he has told me. [emphasis supplied]

Notwithstanding this statement, McMas-ter continued to speak with the defendant. After telling him that he was releasing him from the subpoena and that he was free to go, the state attorney began a lengthy conversation with Weir in which he solicited his “cooperation” with the investigation. Weir was given something like Miranda warnings and was informed that he was not required to testify. He was never told, however, that, contrary to McMaster’s previous statements, he could still be prosecuted as to the subject matter of any testimony even though he did not sign a waiver. It is undisputed that, in fact, Weir never expressly waived immunity from prosecution. At the conclusion of the colloquy, McMas-ter nevertheless proceeded to question him under oath concerning the very ambulance-chasing incident which formed the basis of the alleged crimes of which he was later accused.

We concur with the trial judge’s determination that, on these facts, Weir was immunized by the effect of § 914.04. That statute provides

No person, having been duly served with a subpoena or subpoena duces te-cum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding, [emphasis supplied]

Since Weir indisputably was subpoenaed to, and did give testimony concerning the precise transaction which gave rise to the charges against him, the terms of the statute seem, on their face, rather clearly to apply. See, e. g., Lorenzo v. Blackburn, 74 So.2d 289 (Fla.1954); Daniels v. Kirkland, 379 So.2d 197 (Fla. 5th DCA 1980); State v. Brodski, 369 So.2d 366 (Fla. 3d DCA 1979). The state vigorously argues, however, citing such cases as Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977); Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976) and State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. 2d DCA 1970), that immunity was not conferred because, at the time that Weir testified, he was under no “compulsion” or legal requirement that he do so. We cannot agree.

In the first place, the subpoena involved here, unlike those in the Orosz and Hall cases, specifically required Weir not only to appear but also “to testify” before the State Attorney. While the assistant in charge of the investigation purported to “excuse” the defendant from that requirement, we are cited to and are aware of no authority which suggests that anyone but a judge of the court which issued the subpoena possesses such power. See 35 Fla.Jur. Witnesses § 19 (1961); 81 Am.Jur.2d Witnesses §§ 9, 22 (1976). Thus, Weir testified in obedience to a still-legally-extant command of the court.

In another and even more fundamental way, the present situation also differs from the decisions upon which the appellant relies. In contrast with each of them, the state attorney in this case explicitly told the defendant both that he had the right to refuse to testify and that he could not be questioned without granting him immunity unless he specifically waived that privilege. Weir’s subsequent refusal to sign the waiver therefore constituted a specific invocation of his constitutional rights — a claim of privilege which likewise did not occur in any of the cases cited by the state. See 21 Am.Jur.2d Criminal Law § 151 (1965). The statement in State v. Toogood, 349 So.2d 1203, 1204 (Fla.2d DCA 1977), cert. denied, 357 So.2d 188 (Fla.1978), is therefore directly applicable:

“. . . [W]e assume the ‘compulsion’ necessary to give rise to any immunity, transaction or use, because of the express finding of the trial court that appellee did not waive immunity which, in turn, necessarily means he did not waive his Fifth Amendment privileges upon which such immunity would be dependent.”

As the trial judge cogently observed, the thrust of the state’s position in this case is that Weir was not immunized by his testimony, even though it was given after he had expressly declined to waive his rights and after the state attorney had told him that, unless he did so, he could not be questioned without giving him immunity. To accept this position would be to countenance what amounts, however inadvertently, to a governmental breach of faith. This, we decline to do. See State v. Davis, 188 So.2d 24 (Fla. 2d DCA 1966, cert. denied, 194 So.2d 621 (Fla.1966); State v. Hargis, 328 So.2d 479 (Fla. 1st DCA 1976) (Rawls, J., dissenting); cf. Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla.1978). When the defendant refused to execute the waiver, McMaster had to fish or cut bait; he had the choice of not taking Weir’s statement or granting him immunity. The trial judge correctly held that the state could not have it both ways. Cf. State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980), and cases cited.

Affirmed.

      . Immediately before Weir was sworn in, McMaster said:
      MR. McMASTER:
      it is my understanding that there has been an allegation that you have handed out an attorney’s business card at the scene of an accident.
      MR. WEIR: Yes, I did.
      MR. McMASTER: Of course the question remains as to whether you were trying to solicit business and getting anything from the attorney for doing it or what exactly is going on. That is what we are doing. We are trying to find out.
      MR. WEIR: Now that I know, now I can speak with you. [emphasis supplied]
      It is clear that McMaster’s statement, which obviously brought about Weir’s willingness to talk, was entirely misleading as to the elements of the offense with which the defendant could be, and actually later was, charged. We agree with the state, however, that the remedy for the improper inducement of an incriminating statement is its exclusion from evidence. Our holding that immunity was conferred under the circumstances is therefore not based upon this remark.


text:
    Edward S. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1464.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    Rehearing Denied April 9, 1980.

      Charles W. Musgrove,. J. Ralph Mabie, and D. C. Stover, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged by amended information with manslaughter by intoxicated motorist (Count I), manslaughter by culpable negligence (Count II), culpable negligence (Count III), and driving while under the influence of alcoholic beverages or controlled substance (Count IV). The victim was the same in both manslaughter counts. The trial court, in a nonjury trial, found appellant guilty on all counts. Appellant was sentenced to ten years probation on each of the manslaughter counts, one year probation as to Count III and sixty days probation as to Count IV. Concurrent sentences were imposed on all counts. As a special condition of probation, appellant was ordered to serve sixty days in the Palm Beach County Jail with credit for one day served.

Appellant contends that the trial court erred in adjudicating him guilty of two manslaughter counts when there was only one death. We concur. Where appellant’s actions resulted in only one death, he could be convicted of only one crime of manslaughter. See Phillips v. State, 289 So.2d 769 (Fla.2d DCA 1974).

Accordingly, the judgment of guilt of manslaughter is hereby affirmed, but the cause is remanded for the entry of but one judgment and the imposition of one sentence adjudicating appellant guilty of manslaughter. The judgment of guilt as to Counts III and IV are affirmed. It is not necessary for appellant to appear in court for such adjudication and resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

LETTS, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Joseph S. STRUCKI, Appellant, v. STATE of Florida, Appellee.
    No. 77-2028/NT4-28.
    District Court of Appeal of Florida, Fifth District.
    March 5, 1980.
    John A. Baldwin, of Baldwin & Dikeou, Fern Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant Joseph S. Strucki was charged by Information filed in the Circuit Court of Seminole County with three counts of robbery, two counts of aggravated assault and one count of carrying a concealed firearm. Upon denial of appellant's motion to suppress, appellant entered a plea of nolo con-tendere to one count of robbery, reserving the right to appeal the order denying his motion to suppress.

The sole question on appeal is the propriety of the court’s order denying appellant’s motion to suppress. From our examination of the briefs and record in this cause it is apparent to us that the appellant has failed to demonstrate reversible error.

Accordingly, the judgment and sentence appealed from is affirmed.

AFFIRMED.

CROSS, J., and DOWNEY, JAMES C., and BERANEK, JOHN R., Associate Judges, concur.