text:
    Bennie JOHNSON v. STATE.
    5 Div. 510.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Bennie Johnson was indicted in Lee County for assault with intent to murder, § 13-1-46, Code of Alabama 1975, and was found guilty as charged by a jury, and was sentenced to serve twenty years in the state penitentiary. He brings this appeal from that verdict and judgment in forma pauper-is. The victim of the assault, Jo Nell Fitch, a resident of Opelika, testified that, on the morning of September 28, 1979, she had been at the home of her sister, Bertha Mae Tools, washing clothes. At some point the electricity went off, and Ms. Fitch and her sister were sitting in the den waiting for the power to come back on when Ms. Fitch saw appellant’s car stop outside the house. Ms. Fitch stated that appellant, whom she had known for several years, knocked on the kitchen door and then entered the house, said “good morning,” and “asked my sister if I can speak with you for a minute” (R. 12); the witness testified that Bertha Mae Tools got up and went into the kitchen with appellant. Ms. Fitch was starting to light a cigarette when “I looked up, I seen him standing there holding a gun. He was firing and shooting at me” (R. 12). She stated that appellant said nothing but was only “gritting his teeth and pulling the trigger” (R. 13). Ms. Fitch further testified that she was struck twice by bullets, and that she blanked out for a short time, reviving in time to hear appellant “outside, out there, shooting.” The witness stated that she was in intensive care at the hospital for twenty-eight days, and under regular care for a longer period, and underwent treatment for gunshot wounds to the jaw and head.

Bertha Mae Tools testified that she had formerly dated appellant, but they had broken up before September 29,1979. On that date, she testified, she had returned from work and was talking to her sister, Jo Nell Fitch, when appellant knocked on the door. She stated that she invited him into the house, that he entered, said good morning, and asked to speak to her. Ms. Tools testified that she then saw that appellant was holding a pistol and “I asked him to leave then” (R. 22). She then began “pushing on him” toward the door, at which point appellant “said I will shoot all three of us” (R. 23). She stated that appellant’s pistol then fired two shots, and that she began running because “I thought he was going to shoot me” (R. 24). She did not know whether Jo Nell Fitch had been wounded at that point or not. She further testified that she ran out of the door, jumped over the hood of a car and fell over a fence, and that appellant followed and shot at her several more times. Appellant, after having fired what the witness estimated to be two shots outside the house, returned to his car, which was an older model painted white, and left. The witness returned to her house, discovered that her sister had been shot, and called the police and medical help.

On cross-examination, Ms. Tools testified that she was pushing appellant fairly hard, either by the shoulders or chest, when the shots inside the house were fired. She further stated that she did not smell alcohol on appellant’s breath, but had not paid that much attention.

Ms. Tools further testified on re-direct examination that on that day she had seen appellant at her place of employment, but had only waved, and had not invited him to come over to her house. She stated that she had broken up with appellant about two months previously.

Michael Jackson, a next door neighbor to Bertha Mae Tools, testified that, on the morning in question he had been lying down in his house when he heard “something like shots.” He stated that he got up and ran to his front door and “heard somebody running and hollering for help, and all at the same time I heard the shots” (R. 33). The witness testified that he could not see who it was doing the yelling, but did see appellant get into a “light yellow-cream looking kind of car” (R. 35), and drive off. The witness further testified that he summoned the police, but never went into the house next door. In his judgment, he heard two or three shots.

Stanley Lee Chapman, a patrolman with the Opelika Police Department, testified that, on September 28,1979, he had investigated a shooting at the residence of Bertha Mae Tools. He stated that, upon his arrival, he found a black female, who appeared to be wounded on the head, sitting in a chair. Other persons at the scene were able to give Officer Chapman a description of the woman’s assailant, though none knew his name, and Officer Chapman relayed the description of the individual and his car to other police units.

Dan Davis, a captain of police with the same department, testified that, on the date in question, he and Officer Charles Minor had just left the Opelika Police Station in an unmarked car when they received a radio message advising them to keep a lookout for appellant, and furnishing a description of his car. Captain Davis stated that, though he did not know appellant, Officer Minor did, and during their patrol Officer Minor saw appellant and alerted Captain Davis. At that point, Captain Davis testified, he turned on his vehicle’s blue light and “attempted to stop him” (R. 42). Appellant pulled his car over after traveling about a block, but when the officers approached appellant’s vehicle and instructed him to get out with his hands raised, appellant “sped off from us then and we gave pursuit for approximately three blocks, at which time he stopped again . .. and refused to get out” (R. 42). Captain Davis further testified that he and Officer Minor again ordered appellant out of the car. The third officer, an Officer Weaver, ran to appellant’s car and grabbed appellant’s hands while Captain Davis ran to the car’s passenger side and “retrieved a pistol that was in between the two seats of the front of the car” (R. 42). Captain Davis stated that he subsequently turned the pistol over to Officer Jones, and that when he examined the weapon it was loaded with six shells, three spent and three live rounds. The witness further stated that he saw spent shells and an ammunition box on the floor of appellant’s car.

On cross-examination, Captain Davis stated that he arrested appellant within thirty to forty-five minutes of the shooting, and that he did not smell alcohol about appellant’s person. He did not give appellant a sobriety test, nor did he know of one being given appellant.

Under further questioning on ré-direct examination, the witness testified that appellant resisted arrest by attempting to reach the pistol between the seats when he was stopped the second time.

Robert Buford Jones, a detective-sergeant with the Opelika Police Department, stated that, when he arrived at the Tools’ residence on the day in question, he witnessed Jo Nell Fitch, who had suffered a gunshot wound to the face, being placed in an ambulance. He further testified that, upon entering the house, he saw a black chair covered with blood, and a bullet hole in one wall; also, he noticed that the front door had a window which had been shattered. The witness identified several photographs of the scene, and these were received in evidence. Sergeant Jones further testified that he received a description of appellant and his car, and broadcast that over the police radio. About forty-five minutes later, the witness stated, he received a radio dispatch from Captain Davis requesting him to come to the location of a stopped vehicle.- Sergeant Jones testified that he and Captain Abbott drove to the scene and found appellant in custody and his vehicle parked on the street. An examination of the car revealed a partially filled box of .38 caliber ammunition. Further, the witness stated, Captain Davis gave him a blue steel .38 Titan Tiger, two-inch, six-shot revolver, which had been taken from appellant; this weapon was identified and received in evidence.

Outside the presence of the jury, Sergeant Jones testified that he and Captain Abbott talked to appellant in Captain Abbott’s office at the Opelika Police station around 4:55 p. m. on the day in question, which would have been at least four hours after appellant’s arrest. Sergeant Jones stated that appellant did not appear intoxicated, and had no trouble in understanding or communicating with the officers. The witness further testified that appellant was advised from a “rights form” of his rights to remain silent and to have an attorney present, and that appellant, who stated that he could read and write, was shown the form. Appellant, when asked if he understood his rights, “replied that he did” (R. 58) and “replied that he did want to make a statement” (R. 59), without an attorney being present. At that point, Sergeant Jones stated, appellant was read a “waiver of rights” form, and appellant signed the form after acknowledging that he understood its contents. The form containing both the rights paragraph and waiver was received in evidence.

Still outside the presence of the jury, Sergeant Jones testified that appellant had not been offered any reward or hope of reward, nor had appellant been threatened or coerced. He further stated that appellant then made an oral statement, which statement Sergeant Jones transcribed in his handwriting. Appellant read the written statement over, stated that he understood same and signed the paper.

On cross-examination the witness stated that the delay between appellant’s arrest and the taking of the statement was due to various administrative reasons, and not because of appellant’s intoxication in the interim. Sergeant Jones stated that he did not think appellant was intoxicated at the time of his arrest, and that he did not smell alcohol about appellant when the statement was taken.

Appellant was called to the stand during the hearing outside the presence of the jury, and testified that, at the time of his arrest, he had consumed “a pint and a half of liquor” (R. 65), which he described as gin or “white liquor.” He stated that he had started drinking around 9:00 o’clock that morning, and had consumed three half-pints of gin by the time of the shooting; he did not drink any after the shooting. Appellant further testified that, in his opinion, he was intoxicated when arrested, and that the police had given him an intoximeter test and then charged him with driving while intoxicated. He stated that he received thirty days in jail on that charge and was also fined. After his arrest, he stated, he was taken to the police station and placed in a cell, where he took a nap. He was subsequently taken out of the cell because “they wanted me to sign that writing and statement” (R. 66), which appellant refused to do; he was then returned to the cell. He stated that some time later the officers returned with the statement', wanting him to sign it, and promised him cigarettes if he would do so. Appellant identified Captain Abbott as the man offering the cigarettes. Eventually, appellant stated, he went upstairs and signed the form and statement. He testified that he was still intoxicated, and was willing to sign the statement in order to get some cigarettes.

On cross-examination, appellant acknowledged that he could read, though not very well, and stated that the signature on the rights form “looks like mine” (R. 68). He denied that he was informed of his rights. Appellant reiterated that he had been drinking before the shooting, and that the police had smelled alcohol on him. He denied reading his statement over, and denied that it had been read to him, although the statement was shown to him. Appellant further stated that he only told the officers what he could remember about the events in question, given his intoxication.

At this point the trial court ruled that appellant’s statement had been voluntarily made, and could be submitted to the jury.

With the jury present, Sergeant Davis recounted the testimony he had given during the hearing, and read appellant’s statement, reduced to writing by the officer:

“This morning I saw my lady friend, Bertha Tools, at the Medical Arts Center in Opelika. She told me we was through and to bring her her clothes which were at my trailer and that she would give me back my wife Lois’ gun, which was at her house. I got her clothes and went to her house on Dogwood. I went to her house and she went to her bedroom and got the gun and gave it to me. Bertha and her sister, Jo Nell, were there. I told her to go out to the car and get her clothes, but she wouldn’t do it. I backed the hammer and she said quit playing with the gun, but I told her that I wasn’t playing, to go get her clothes. Bertha’s sister started cussing me so I shot her one time that I remember. Bertha started hollering and ran out the door, so I shot at her two or three times. Then I got in my car and left. I thought I had hit Bertha, too. She hollered and fell one time, but I guess I didn’t. And then we concluded the statement with the above and one-quarter page statement, has been read to me and by me and is true and correct.”
(R. 77-78)

Robert Glenn Brown, a medical specialist in plastic and reconstruction surgery, testified that he had first examined Jo Nell Fitch on September 28, 1979, and that he found that she had suffered a gunshot wound to the right cheek. Doctor Brown stated that the bullet entered Ms. Fitch’s right cheek, crossed between her upper and lower teeth, destroying many of these, shattered the jaw bone, and finally lodged near the third vertebrae of the neck. Doctor Brown further stated that he cleaned the wounds and removed the bullet, and at one point during this procedure was forced to perform an emergency tracheotomy because Ms. Fitch stopped breathing. Ms. Fitch was operated on again the following day in order to ascertain if she had aspirated any pieces of tooth. The witness further testified that Ms. Fitch would have to have dentures and that her jaw was displaced somewhat; she also had a persistent pain in her arm that was possibly related to her injuries.

John Helms testified that he was an employee of Story’s Incorporated, located in Opelika, and that on September 28,1979, he had been questioned by the police as to the purchase of ammunition of a particular caliber. Mr. Helms testified that, at the time he was questioned, he had made only one sale of ammunition that day, to appellant. He stated that appellant had entered the store on that morning and wanted to purchase ammunition for a handgun which he thought to be a .32 caliber. Mr. Helms testified that, as required by law, he asked to see appellant’s driver’s license and recorded appellant’s name, date of birth, address, type of ammunition purchased and similar information. After this sale, the witness testified, appellant, who was “very calm ... an easy going person” (R. 89), left but returned some twenty to twenty-five minutes later to say that he had bought the wrong sized ammunition. Mr. Helms stated that he suggested another size, and appellant agreed to try that ammunition; the witness stated that he then changed the records to reflect the swap, and appellant left. About an hour and forty-five minutes later, Mr. Helms testified, a police officer entered the store and asked about the sale of ammunition; he showed Mr. Helms several photographs, and the witness “picked out a picture that I was one hundred percent positive as being the individual who purchased the ammunition” (R. 90). The witness further identified the individual as appellant, and stated that he did not smell alcohol about appellant, nor did appellant appear or act intoxicated.

On cross-examination, the witness estimated the time that appellant first entered the store that morning to be 8:30.

The State rested, and appellant’s motion to exclude was overruled by the trial court.

Appellant was called to the stand and testified that, as far as he could remember he had arrived at Ms. Tools’ house at shortly after 10:00 a. m. on September 28, 1979; he had gone there to retrieve a pistol and give Ms. Tools some clothes that she had left at appellant’s trailer. Further, appellant testified, Ms. Tools had called him three times that morning, at 1:00, 3:00 and 5:00 in order to inform appellant that their relationship was over. Appellant testified that he then told her that he wanted his gun back, and that he had given it to Ms. Tools because he was afraid that his wife would shoot him with it. He stated that, upon his arrival at the Tools’ house, Ms. Tools and Jo Nell Fitch were seated in the den, and that he greeted them and asked Ms. Tools for the gun. Ms. Tools went into the bedroom to retrieve it, and appellant stated that he followed her and got the pistol. When they returned to the den, he stated, Ms. Tools began pushing him toward the front door and that he thought Jo Nell Fitch was cursing him as well. At some point the pistol went off, and Ms. Tools ran out the front door; appellant testified that he could not remember shooting after her. He further stated that he had not purchased any bullets for the weapon until after this shooting incident.

Appellant testified that he was a former member of Alcoholics Anonymous, but had resumed drinking and was intoxicated when the shooting took place. He stated that, upon his arrest, he was given an intoxime-ter test, and that he received a jail sentence and fine for driving while intoxicated. He further stated that he was given two packs of cigarettes in exchange for making a statement, but that he had been unable to read the statement after it had been written down. He denied aiming at Jo Nell Fitch and denied any intent to kill her.

On cross-examination, appellant reiterated that he had met Ms. Tools at the Medical Arts Building, where she had a second job, as he had been doing for the past two months, and that Ms. Tools informed him that their relationship was at an end. After that, appellant stated, he went home and began drinking. He arrived at Ms. Tools’ at a little after 10:00 that morning and had not gone to Story’s by that time; he stated that John Helms had not been telling the truth as to when he had come into Story’s. Appellant denied pointing the pistol at Ms. Fitch, saying instead that he was looking at Ms. Tools, and that the pistol went off accidentally. He similarly denied firing any shot at Ms. Tools that broke the window in the front door, and denied shooting at her outside the house. After this, appellant stated, he then went to Story’s, bought some ammunition and “went and shot my wife with the bullets, what I got from Story’s (R. 112). He was arrested later for driving while intoxicated, he stated, and could not remember attempting to elude the police or reaching for the pistol in the car.

The defense having rested after appellant’s testimony, the State recalled Bertha Mae Tools in rebuttal. Ms. Tools testified that, on the night before the shooting, she had been at work in a manufacturing plant and had not called appellant. She saw appellant at the place of her second job, the Medical Arts Building, but stated that he was there to paint the building and that she only waved to him. She denied having the pistol, but stated that appellant had the gun with him when he arrived that morning.

I

During the cross-examination of appellant by the prosecutor, the following occurred:

“Q. What did you do after you left Story’s?
“MR. BJURBERG: Objection, Your Honor, if he’s going into a collateral matter other than just—
“THE WITNESS: Well, I have—
“MR. BJURBERG: Just a moment, Mr. Johnson.
“THE COURT: Well, I assume this is for the purpose of showing flight.
“MR. MYERS: I want to show flight and I also want to show intent that the shooting was no accident.
“THE COURT: Overruled.
“A. I got another case up there and I went and got the bullets and went and shot my wife with the bullets, what I got from Story’s.
“Q. Was that another one of those accidents?
“A. No, sir.
“Q. Then what did you do?
“A. I rode around until the police caught me, got me for D.W.I.” (R. 112)

Appellant argues that prejudicial error was committed by the trial court in allowing testimony as to the shooting of appellant’s wife, which we understand from the attachment to appellant’s brief to be the subject of another indictment of appellant for assault with intent to murder. There is no further testimony in the record as to the details of this second shooting, but we perceive from the above-quoted statement and the testimony of the police officers involved that the shooting of appellant’s wife must have occurred in the thirty to forty-five minute interval between the shooting of Jo Nell Fitch and appellant’s arrest.

It is, of course, the general rule in Alabama that evidence of acts which would in themselves constitute distinct and independent offenses is inadmissible. Williams v. State, Ala., 350 So.2d 708 (1977), Hayes v. State, Ala.Cr.App., 384 So.2d 623 (1979); writ quashed, Ala., 384 So.2d 627 (1980); Thompson v. State, Ala.Cr.App., 374 So.2d 377 (1978), affirmed, Ala., 374 So.2d 388 (1979).

“The apparent justification for the rule is that the introduction of evidence of other separate and distinct offenses requires the accused to defend himself against charges which do not form a part of the indictment and which the defendant is not called on to answer. Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959); Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953). Alternatively, it has been suggested that the actual justification is that in the setting of a jury trial, the probative value of the evidence is outweighed by the danger of prejudice. McCormick § 190, at 447.”

Lucy v. State, Ala.Cr.App., 340 So.2d 840, cert. denied, Ala., 340 So.2d 847 (1976). There are, however, several exceptions which render the general rule inapplicable, and evidence submitted under any of these exceptions is relevant and admissible, despite the fact that it indicates the commission of a distinct crime. In Hayes v. State, supra, we noted these exceptions as gathered in Wharton's Criminal Evidence at § 81:

“(1) Relevancy as part of the res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scien-ter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes.”

See, also, Scott v. State, Ala.Cr.App., 353 So.2d 36, cert. denied, Ala., 353 So.2d 40 (1977); Lucy v. State, supra; Heard v. State, Ala.Cr.App., 335 So.2d 679 (1976); Hardy v. State, 51 Ala.App. 489, 286 So.2d 899 (1973).

We have carefully examined the facts of this case as presented by the testimony in the record, and conclude that the disputed evidence was properly admitted as bearing on appellant’s intent at the time of the shooting of Jo Nell Fitch. At 2 Wig-more, Evidence § 363 (Chadbourne Rev. 1979), the following discussion of the proof of intent is found:

“The intent principle . .. receives constant application; for in homicide the intent to kill is practically always in issue. It is to be proved by the prosecution, and the recurrence of other acts of the sort tends to negative inadvertence, defensive purpose, or any other form of innocent intent. For this purpose, therefore, the evidence is receivable irrespective of whether the act charged is itself conceded or not ... As to the similarity of the other acts, no fixed rule can be formulated. They certainly need not have been done to the same person; they need not have accompanied more or less immediately the act charged, and they may have been done even at a subsequent time. The precedents show every variety of circumstances, and a correct application of. the principle would receive any evidence of the sort which conveys any real probative indication of the defendant’s intent.” (Footnotes omitted)

Cf. McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1947) [assault with intent to rape]; Hayes v. State, supra [assault with intent to murder]; Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975) [assault with intent to rape]; C. Gamble, McEIroy’s Alabama Evidence, § 69.01(5) (3d Ed. 1977). An examination of the facts here presented shows that the evidence is undisputed that appellant was in possession of the pistol when it discharged, wounding Jo Nell Fitch, although appellant ascribes his actions to either accident or the effects of intoxication, or both. And, as we interpret the sequence of events after the shooting of Ms. Fitch, at least as urged by appellant, appellant left his estranged girlfriend’s house, drove to Story’s and purchased more ammunition, and then shot his wife, all before his arrest some thirty to forty-five minutes after the Fitch shooting. From this we find that the question of appellant’s intent in shooting Jo Nell Fitch was very much in issue and thus the evidence of his subsequent actions, which were not far removed in time, was quite relevant to this question of intent for whatever value the jury would place on it. And though we note that this line of testimony was never fully developed, we hold that the trial court did not commit error in overruling appellant’s objection to the questioning that did occur.

II

Appellant next contends that the trial court erred in overruling his motion to exclude, made at the conclusion of the State’s case-in-ehief, in that the State failed to prove beyond a reasonable doubt that appellant had the requisite intent to murder Jo Nell Fitch. Under the terms of our statute, § 13-1-46, Code of Alabama 1975, for the offense of assault with intent to murder, it is necessary that the State prove both the existence of an assault and the intent to kill under circumstances which would constitute murder if an actual killing had resulted. McArdle v. State, Ala.Cr.App., 372 So.2d 897, cert. denied, Ala., 372 So.2d 902 (1979); Hall v. State, Ala.Cr.App., 348 So.2d 870, cert. denied, Ala., 348 So.2d 875 (1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 745, 54 L.Ed.2d 768 (1978); Hamm v. State, 56 Ala.App. 632, 324 So.2d 345 (1975). Because the element of intent, being a state of mind or mental purpose, is usually incapable of direct proof, it may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances. Cases cited, and see Smith v. State, Ala.Cr.App., 344 So.2d 213 (1977); Baldwin v. State, Ala.Cr.App., 342 So.2d 940 (1977); Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92 (1973).

We have set out the evidence adduced at trial in some detail in the first portion of this opinion, and see no reason to repeat that evidence here. Notwithstanding appellant’s claims that the gun accidentally fired during his struggle with Ms. Tools and that he was intoxicated at the time, ample evidence was available to indicate that appellant was not intoxicated, had purchased ammunition before the shooting, in fact aimed at Ms. Fitch, and had threatened to kill Ms. Fitch, Ms. Tools and himself. Any discrepancies presented a jury question, and it was properly left to the jury to decide whether appellant had intended to murder Jo Nell Fitch. The trial court did not err in overruling appellant’s motion to exclude.

We have carefully reviewed the record in this cause and find same to be free from reversible error; the judgment is therefore

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex Parte Bennie Lee JOHNSON. (Re: Bennie Johnson v. State of Alabama).
    80-129.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   BEATTY, Justice.

Writ denied. No opinion.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    John Larry ASBILL v. STATE.
    6 Div. 95.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      Richard S. Jaffe, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was convicted of first degree murder and sentenced to life imprisonment in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this appeal.

On the morning of July 24, 1978, Aaron Lockhart, a letter carrier for the United States Postal Service, attempted to deliver mail at 2333 10th Avenue South, Birmingham, Alabama. As he approached the house he discovered the body of Charles Erwin Barnes lying on the edge of the sidewalk.

Birmingham Police Officer Linda J. Graham was dispatched to 2333 10th Avenue South on the morning of July 24,1978. She observed, on the body of the deceased, wounds in the shoulder and chest area. She also observed a van parked behind the house. She discovered a lady’s handbag in the van and blood by the driver’s door window. Officer Graham also discovered drops of blood trailing from the body along the walkway and bushes leading back to the van.

Deputy Coroner C. C. Robey of the Jefferson County Coroner-Medical Examiner’s Office took charge of the body at the scene of the crime. Chief Coroner Dr. Ronald Rivers performed an autopsy on the deceased on July 24, 1978. There were two stab wounds to the chest and numerous scratches and bruises over the head and upper extremities. Death was caused by shock and hemorrhage due to a perforated wound to the heart.

Nellie McConnell testified that the deceased drove her, her husband, Steve, and the appellant to the airport on the morning of July 24,1978. Mrs. McConnell’s husband was leaving for a tour of duty in the military service. After leaving Steve McConnell at the airport the other three returned to Mrs. McConnell’s apartment at 2333 10th Avenue South.

Upon arriving at the apartment the three of them sat in the deceased’s van in the yard. The appellant and Mrs. McConnell became involved in an argument. The appellant stepped out of the van and walked in the direction of his automobile. He returned shortly to Mrs. McConnell at the passenger side of the van. The appellant “fell across” Mrs. McConnell and stabbed the deceased in the chest area twice. The appellant grabbed Mrs. McConnell, told her, “You are going with me, bitch,” dragged her across the yard and put her in his automobile while she was screaming.

The appellant took Mrs. McConnell to Tennessee, told her the deceased was dead, and that she would get some of the same if she didn’t “hush.” Mrs. McConnell talked appellant into throwing the knife he stabbed the deceased with away because she was afraid he would use it on her. He threw the knife in the Tennessee River.

Mrs. McConnell talked the appellant into taking her back home by telling him she would marry him. Upon arriving in Birmingham the appellant went to the courthouse to see if there was a warrant out for his arrest. There was none. They then went to Shoney’s where she called her parents.

On cross-examination, Mrs. McConnell revealed that the appellant had moved in with her and her husband on July 3, 1978. She had sex with the appellant on that date. She also had sex with him on July 24, 1978. There was no force involved either time. She stated that the appellant and the deceased had never argued and there was no struggle. The deceased was not armed and did not say a word to appellant prior to the stabbing.

It cannot be gainsaid that this witness was a woman of questionable character and her credibility left much to be desired. However, her credibility was for the jury to determine.

Detective Sergeant Charles M. Melton of the Birmingham Police was the chief investigator for this case. During Sergeant Melton’s testimony the jury was removed from the courtroom and a hearing was held on the appellant’s motion to suppress his statement given to Sergeant Melton. The testimony during the suppression hearing of Sergeant Melton and Sergeant Morgan Knight of the Birmingham Police was to the effect that the appellant was advised of his Miranda rights and that no threats, promises, rewards or other inducements were made to get appellant to give a statement. The appellant voluntarily turned himself in to the police.

Clayton Shealy, a clinical psychology intern at the University of Alabama Medical School, was called as a witness for the appellant at the suppression hearing. He testified he administered several tests to the appellant and conferred with his supervisor, Dr. Allen Shealy (no relation), about the results. He testified the appellant was put under hypnosis by Dr. Jack Anderson. Mr. Shealy’s opinion was that the appellant understood the Miranda rights but lacked the capacity to understand the consequences of his statement. Tests also showed the appellant to be of superior intelligence.

Dr. Thomas L. Smith, a psychiatrist, was called by the State. He testified the appellant possessed superior intelligence and understood the consequences of the Miranda rights. At this point the trial court held the appellant’s statement to be voluntary.

The testimony of Sergeant Melton then resumed before the jury. The voluntariness predicate was laid and by agreement the tape recording of the appellant’s statement was played before the jury and was admitted into evidence along with the typewritten transcript of the statement. The appellant admitted his guilt in the statement.

The State then rested its case. The trial court denied the appellant’s motion to exclude the evidence.

Clayton Shealy was called as the first witness for the defense. His testimony was essentially the same as at the suppression hearing. He testified the appellant was suffering from a mental defect known as hysterical neurosis, dissociative type. His opinion was that the appellant did not know the difference between right and wrong at the time of the incident.

Dr. Allen Shealy testified he was a psychologist specializing in forensic and clinical psychology. He supervised Clayton Shealy’s evaluation of the appellant and concurred with Clayton Shealy’s findings.

Dr. Jack Robert Anderson, a psychiatrist, hypnotized the appellant. He determined the appellant was highly suggestible. He testified there was not enough information to determine whether the appellant knew right from wrong.

The defense rested its case and the State called as a rebuttal witness Dr. Thomas L. Smith, a psychiatrist and lawyer. He examined the appellant at the Bryce Forensic Unit and determined that the appellant was competent to stand trial and was sane at the time of the offense. He found no evidence of mental disease. Dr. Smith determined the appellant had a superior IQ and understood the Miranda warnings. He said appellant’s IQ was in the range above 120.

The State then called Dr. James C. Thompson, a staff psychiatrist at Bryce Hospital. His testimony concurred with the opinion of Dr. Smith.

The last rebuttal witness for the State was Edwin Conrad Seger, a clinical psychologist for the forensic program at Bryce Hospital. He testified the appellant knew the difference between right and wrong.

The defense called as rebuttal witness two employees of Shoney’s who testified that the appellant and Mrs. McConnell came in Shoney’s on July 25, 1978. The defense then rested.

During the prosecution’s examination of the State’s expert witness, Dr. Thomas L. Smith, a consultant with the Forensic Unit of Bryce Hospital, the following occurred:

“REDIRECT EXAMINATION BY MR. JOHNSON
“Q. Doctor, Mr. Jaffe asked you could someone be smart and crazy. Do you think at the time of this alleged incident this defendant was smart and crazy?
“A. No, I don’t think he was insane. I didn’t see any evidence of insanity.
“Q. Now, you work with the Forensic Unit and you all didn’t get this defendant until February of this year. Do you all have a certain number of patients you can take at one time?
“A. Yes.
“Q. What is that?
“A. Approximately forty four.
“Q. Would you, if you were in the position there at Bryce, make a determination if this defendant was committed to Bryce, to keep him there-would you keep him there?
“A. No.
“MR. JAFFE: We object to that and move for a mistrial based on that. That’s totally prejudicial.
“THE COURT: Overruled and I’m putting an end to your examination of this witness. Mr. Johnson. You two gentlemen are going to continue. Do you need Dr. Smith for any further examination?
“MR. JAFFE: If Your Honor, please, we would like for the Jury to be polled as to that question.
“THE COURT: Disregard that last question by the District Attorney, ladies and gentlemen. Is there any of you who cannot disregard it? I presume by your silence that you can.”

The appellant contends “the state’s attorney poisoned the minds of the jury by conveying the fact that a mental hospital might not keep the Defendant regardless of what decision the jury reached regarding his sanity.” The record does not support appellant’s contention.

Alabama law allows broad inquiry of expert witnesses as to the sanity of a defendant on a plea of not guilty by reason of insanity. Stinson v. State, 45 Ala.App. 5, 221 So.2d 397, cert. denied, 284 Ala. 734, 221 So.2d 399 (1969); Fitzhugh v. State, 35 Ala.App. 18, 43 So.2d 831, cert. denied, 253 Ala. 246, 43 So.2d 839 (1949); Gamble, McElroy’s Alabama Evidence, § 61.01(7) (3rd Ed. 1977). Dr. Smith was called by the State in rebuttal to testimony of defense experts that the appellant was insane. Dr. Smith, after being duly qualified, testified extensively as to the appellant being sane at the time of the offense and competent to stand trial. The question and answer challenged by the appellant was consistent with Dr. Smith’s earlier testimony. This was just another way of stating that Dr. Smith’s opinion was that appellant was sane at the time of the homicide and the trial.

Dr. Smith testified that his duty as consultant to the Forensic Unit at Bryce Hospital was to examine the mental status of patients involuntarily committed to Bryce Hospital. Dr. Smith’s connection to Bryce Hospital was made clear. It stands to reason that if Dr. Smith has determined the appellant to be sane he certainly would not commit appellant to Bryce Hospital.

We do not believe the three main cases cited by the appellant to support his proposition are analogous to the instant case. These cases concerned the cumulative effect of repeated prejudicial remarks made by the prosecutors in closing arguments. The cumulative effect of the remarks in those cases was so grossly unfair as to not even require that there be an objection made to the comments. There were no repeated prejudicial remarks in the instant case.

We note that the objection in this instance came after the question had been answered. There was no motion to exclude requested. This alone amounts to a waiver. Burton v. State, Ala.Cr.App., 364 So.2d 394, cert. denied, Ala., 364 So.2d 397 (1978). The appellant’s request to poll the jury does not amount to a motion to exclude. In response to the appellant’s request to poll the jury the trial court sua sponte instructed the jury to disregard the challenged question.

During the prosecution’s recross examination of the defense expert witness, Clayton Shealy, the following occurred:

“Q. Are you a student of the Bible?
“A. Excuse me?
“Q. Are you-
“MR. JAFFE: Object to that, Judge.
“THE COURT: Overruled.
“MR. JAFFE: We respectfully except to that question as being irrelevant, and immaterial.
“THE COURT: I have already ruled, Mr. Jaffe.
“MR. JAFFE: Can I state my grounds, Judge?
“THE COURT: I have already ruled. Go ahead with your question, Mr. Johnson.
“Q. The question, I think, was are you a student of the Bible?
“A. Does that mean do I study the Bible?
“Q. Yes.
“A. No, I don’t.
“Q. Are you a member of some denomination?
“A. Yes, I am.
“MR. JAFFE: We would object, same grounds.
“THE COURT: Overruled.
“Q. What is that denomination?
“A. Lutheran denomination.
“MR. JAFFE: Same objection.
“THE COURT: Overruled.
“Q. This defendant, is he a member-do you know whether he is a member of any denomination?
“A. No, I don’t.
“Q. Do you know whether he studies the Bible?
“A. I know that recently he has been studying the Bible.
“Q. He has been studying the Bible recently?
“A. Yes.
“Q. Is anything in the Bible about having children that you know about?
“MR. JAFFE: Same objection, same grounds.
“THE COURT: Sustained. I think you are going too far afield, now, Mr. Johnson.
“MR. JAFFE: Respectfully move for a mistrial at this time.
“THE COURT: Overruled.”

The appellant contends the prosecution s examination of Mr. Shealy constituted improper and prejudicial impeachment of a witness and was in violation of § 3 of the Alabama Constitution of 1901. The pertinent part of § 3 of the Alabama Constitution provides as follows:

“[T]hat no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles." (Emphasis added.)

In the case of Wright v. State, 24 Ala.App. 378, 135 So. 636 (1931), our Court of Appeals held that § 3 of the Alabama Constitution of 1901 completely abrogates the common law rule that one who disbelieves or denies the existence of God or a Supreme Being is not a competent witness in any court of this state, where an oath is required. In reaching this decision the court quoted extensively from Bush v. Commonwealth, 80 Ky. 244, 3 Ky.Law Rep. 740, rev. on other grounds, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1882). Bush, in construing a constitutional provision essentially the same as our § 3, held that, “We think that this provision of the constitution not only permits persons to testify without regard to religious belief or disbelief, but that it was intended to prevent anv inquiry into that belief for the purpose of affecting credibility.” (Emphasis added.) 135 So. at 639. Our court specifically declined to adopt the underlined portion of the above quote although the court stated “they may be right about that.” 135 So. at 639.

We interpret Wright as standing for the proposition that a witness’s religious belief may not be inquired into unless it is relevant to the issues at trial. “The determination of relevancy in a criminal trial rests largely within the trial court’s sound discretion .. . ‘Relevancy has a broad scope in criminal trials.’ ” Strickland v. State, Ala.Cr.App., 348 So.2d 1105, cert. denied, Ala., 348 So.2d 1113 (1977). “[T]he exclusionary rule will not be applied to bar evidence that is relevant to an issue in the case, even though it may relate to religious practices or affiliations on the part of the witness or to some other aspect of his theological training or experience.” 76 A.L.R.3d 539, 544 (1977).

Prior to the prosecution’s examination of Mr. Shealy on the religious issue, on redirect examination of Clayton Shealy by the defense attorney, the following occurred:

“Q. What else did he tell you?
“A. He told me that the results of this crime or results of this trial here were left in the hands of Jehovah God Almighty.
“Q. What did you ask him about Jehovah God Almighty-what did he say he has relation with Jehovah God Almighty?
“A. I asked him-this is the first time, well, yesterday was the first time I heard anything about Jehovah God Almighty, so I asked him how is it that all of a sudden this has come about, this relation with Jehovah God Almighty. He said, ‘Well, since coming back to jail, I have seen and talked to Jehovah God Almighty and I am his son and my life is in his hands in whatever happens.’
“Q. Did he say he is related to anybody else?
“A. No.
“Q. Did he say he has any brothers-what did he say about Jehovah?
“A. He said that was his father and that he had talked with him on occasions and had seen him on occasions and that it was his father and his father would take care of him and he had already sentenced him and he would punish him for his offenses.”
******
“Q. Did he discuss anything with you today about babies and his father and mother?
“A. Yes, he reported that Jehovah God Almighty said that every man should have a child and that Jehovah God looked like his father in some respect but that this Jehovah God Almighty does not have any flesh. He also said there was a mother Jehovah God Almighty or something to that effect.”
“Q. What is the difference between everybody wanting to have a baby, you and me and all of us here, and the way you see his desire to have a child?
“A. First of all, I said most people want to have a baby and to have a child. John is different in that he has a craving to have a child and it’s almost related to undoing of his parents’ death. He has always craved to have a child. The child that his mother never had; the child that Nellie was supposedly carrying that was his and a child that this teenage female that he met in jail is supposed to carry.
“Q. Is that an obsession that you have a child that you would call this?
“A. Yes.”

The defense first injected the issue of religious belief when they referred to the appellant’s relationship with “Jehovah God Almighty.” The defense went on to reveal appellant’s compulsion to father a child. It appears that all of this testimony was brought out for the purpose of implying appellant’s insanity. The prosecution’s inquiry into the subject cannot be questioned. “A party may go into any matter gone into by the adverse party and explain anything to his detriment .... A party who has brought out evidence on a certain subject has no valid complaint as to the action of the trial court in allowing his adversary to introduce evidence on the same subject.” Weatherford v. State, Ala.Cr.App., 369 So.2d 863, 869, cert. denied, Ala., 369 So.2d 873 (1979).

We also believe that the prosecution’s examination of Mr. Shealy subsequent to the questions objected to by the appellant illustrates that the prosecution was seeking to rebut the implication of insanity introduced on redirect examination. From the record, on recross examination of Clayton Shealy by the prosecution, the following occurred:

“Q. Have you ever the last few times you have talked with him, have you ever seen him with a Bible?
“A. Yes, I have.
“Q. Is that this yellow book in front of him now?
“A. I cannot be sure that’s the book. It looks like the book I saw him with.
“Q. Have you in your experience as a-not as a psychologist, but in your experience met people in life you considered to be religious zealots?
“A. Have I known people like that, yes.
“Q. Are they crazy?
“A. Most people that I know like that are not.
“Q. Have you known people in your life who profess to know the Lord and to know Jehovah God?
“A. Yes, I have.
“Q. Are they crazy?
“A. Like I said, most of them aren’t.”

We find no error in this instance. Hill v. State, 36 Ala.App. 123, 53 So.2d 766 (1951).

The appellant’s last contention of error concerns the colloquy between the trial court and the defense attorney during the defense attorney’s cross-examination of Dr. Thomas L. Smith. From the record:

“Q. I believe that’s all-there is one last thing, you testified for the State of Alabama in the Tommy Lee Hines trial.
“MR. JOHNSON: Judge, I’m going to object to that.
“THE COÜRT: Sustained.
“MR. JOHNSON: And ask for a mistrial.
“THE COURT: Disregard it, ladies and gentlemen, and if that comes up again, I’m going to hold you in contempt of court, Mr. Jaffe.
“MR. JAFFE: Yes, sir.
“THE COURT: That’s highly unethical.
“MR. JAFFE: Your Honor, could I approach the bench for a second, please, sir?
“THE COURT: Ladies and gentlemen, please go back to the jury room.
(Thereupon, the jury went into the jury room at 10:12 AM, and out of the presence and hearing of the jury the following proceedings were had and done:)
“MR. JAFFE: May I respond?
“THE COURT: You may respond.
“MR. JAFFE: Judge, I had no intention doing anything except ask him about intelligence quotient. I was told by Dr. Shealy yesterday that Dr. Smith testified that in the Tommy Lee Hines trial-
“THE COURT: It has no bearing on this case.
“MR. JAFFE: All right, sir, I apologize to the court, it’s not going to affect the issues in this case whether he testifies.
“THE COURT: Well, you are attempting to bring up something that has nothing to do with it and I’ll not let this jury get prejudiced in any manner.
“MR. JAFFE: Well, may I please apologize to the court. I had no intention of that. I am trying to tell you my purpose for it.
“THE COURT: Well, you are a professional attorney, right?
“MR. JAFFE: I am.
“THE COURT: You are a former prosecutor?
“MR. JAFFE: I am.
“THE COURT: You know what’s ethical and nonethical.
“MR. JAFFE: No, sir, and I did not think that was unethical because you always ask people about trials that they have testified and given opinions in. I have always done that. It’s always been done.
“THE COURT: I don’t know what they do in Tuscaloosa County, but you don’t do it in Jefferson County.
“MR. JAFFE: Well, I’ll tell you. Let me apologize to Your Honor.
“THE COURT: All right, bring the jury in.
“MR. JOHNSON: Judge, may I have just a minute?
“MR. JAFFE: I wasn’t trying to be unethical. I wish you hadn’t said that in front of the jury. I feel like I have been prejudiced by calling me unethical before the jury.
“THE COURT: Well, both of you are getting on the verge of my declaring a mistrial in this case; if you keep it up I will.
“MR. JAFFE: Yes, sir.
(Thereupon, the jury returned to the courtroom at 10:15 AM, and the following proceedings were had and done:)
“THE COURT: Ladies and gentlemen, I want to charge you that you are to disregard any confrontation that occurred pri- or to the time I sent you back to the jury room. Is there any member of the jury who cannot eradicate that from your mind and proceed in this case on the issues and the issues alone?
(No response)
“THE COURT: I presume by your silence that you can eradicate it. If there is any member that cannot, let me know at this time.
“THE COURT: There is no response. You may continue.”

The appellant contends the trial court erroneously denied his attempt to impeach Dr. Smith by showing prior inconsistent statements of Dr. Smith at the Tommy Lee Hines trial. We find no merit in this contention. There is nothing in the examination of Dr. Smith that leads us to believe he has made any prior inconsistent statements concerning this case. The defense attorney stated to the trial court that expected testimony of Dr. Smith would not affect the issues in this case and admits in his appellate brief that the Tommy Lee Hines case has no bearing on the instant case. We believe the question to be totally irrelevant to the issues.

The appellant also contends the trial court committed reversible error by stating in the presence of the jury that the defense counsel was unethical. The principle of law controlling this type of incident is stated in Dennison v. State, 17 Ala.App. 674, 88 So. 211, 213 (1921):

“The trial judge, as a natural consequence of his position and the many duties devolving upon him, is necessarily vested with much discretion in the conduct of the trial of causes, and, unless it clearly appears that there has been an abuse of this discretion, appellate courts will not interfere to control such discretion, but will presume that one occupying so important a position as that of circuit judge will accord to all litigants in his court the fair and impartial trial provided for in the Constitution of this state. That a trial judge wields a great influence upon the jury cannot be questioned, for it is their duty to follow his instructions as to the law. So, whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of another, or uses language which tends to bring an attorney into contempt before the jury, or uses any language or makes any intimation which tends to prejudice them, he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause. In the instant case we are not prepared to say that the alleged injurious language of the court addressed to appellant’s counsel was of the character to prejudice the attorney before the jury or to injuriously affect the substantial rights of the defendant. However, we are of the opinion that the trial court should have allowed defendant’s counsel full opportunity to make known his objections to the court, and to make such motions to the court as in the interest of his client he deemed necessary .. .. ”

We do not believe that the defense attorney’s question called for such a stinging rebuke by the trial court even though the question was irrelevant and improper. However, we fail to find an objection to the trial court’s statement. The only statement by the defense attorney that might resemble an objection was the statement that he “wish[ed]” the trial court had not called him unethical in the presence of the jury. This last statement by counsel was made out of the presence of the jury. We also fail to find a motion to exclude, a motion for mistrial, or an adverse ruling on this issue. For these reasons we are forbidden to further treat this contention. Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973); Weeks v. State, 49 Ala.App. 618, 274 So.2d 646 (1973). See also: Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, cert. denied, Ala., 373 So.2d 1211 (1979).

The trial court sua sponte instructed the jury to disregard the confrontation between the court and defense attorney and polled the jury on that instruction. Cf.: Lewis v. State, 22 Ala.App. 108, 113 So. 88 (1927) (wherein oral charge to jury cured error of court’s criticism of counsel.)

The record does not support appellant’s contention that prejudicial error was committed by the prosecutor’s closing argument to the jury. The conduct of counsel for both sides was calculated to try the patience of the trial judge throughout the entire proceedings but the judge exercised commendable restraint to insure that appellant received a fair and impartial trial.

We have carefully searched the record for error injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except BOWEN, J., who concurs in the result only without opinion.

      . The name is listed in the transcript as both C. C. Robey and Charles B. Robey.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . White v. State, Ala.Cr.App., 376 So.2d 1129, cert. denied, Ala., 376 So.2d 1132 (1979); Whisenhant v. State, Ala.Cr.App., 370 So.2d 1080, cert. den., Ala., 370 So.2d 1106 (1979); Christian v. State, Ala., 351 So.2d 623 (1977).


author: SHORES, Justice.

text:
    Ex Parte John Larry ASBILL. (Re: John Larry Asbill v. State of Alabama).
    80-102.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   SHORES, Justice.

Writ denied. No opinion.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Augusta Ceasar DICKEY v. STATE.
    6 Div. 250.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.
    Albert C. Hultquist, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery. Sentence was ten years’ imprisonment.

I

On appeal, it is argued that the prosecutor’s repeated attempts to show that the defendant failed to make a statement after his arrest constitutes reversible error.

The facts giving rise to this argument appear in the record as follows:

“Q. [MR. VALESKA, Deputy District Attorney]: Sgt. Robertson did you ever have an occasion to interview Augusta Ceasar Dickey?
“A. No, sir.
“Q. Did he ever make any statements to you?
“MR. HULTQUIST [Defense Counsel]: Objection, Your Honor.
“THE COURT: Sustain the objection.
“MR. VALESKA: Judge, I asked him if he ever made a statement. I didn’t ask him what was said.
“THE COURT: I don’t know what’s gonna come out. If there’s a problem you need to let me know ahead of time so I’ll know how to rule on it.
“MR. HULTQUIST: May we approach the bench?
“THE COURT: Yes, sir.
(Off the record discussion.)
“THE COURT: I sustain the objection.
“Q. Sgt. Robertson you can answer the question.
“THE COURT: No. I sustained the objection.
“MR. HULTQUIST: I would like to renew my motion.
“THE COURT: What motion?
“MR. HULTQUIST: For a mistrial.
“THE COURT: Overruled.”

The State may not constitutionally impeach a defendant’s trial testimony with proof of his post-arrest silence. Houston v. State, 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 829 (Ala.1978). “Counsel for the prosecution must scrupulously avoid any reference to or use of an accused’s assertion of his right to remain silent.” Houston, 354 So.2d at 828.

Here there was no direct reference to the silence of the defendant. The trial judge sustained defense counsel’s objection to the question. The question itself did not imply an answer. The evidence simply does not show whether or not a statement was made although it is clear that Sergeant Robertson never interviewed the defendant.

A motion for a mistrial implies a miscarriage of justice and should only be granted where it is clearly manifest that justice cannot be afforded. It specifies such fundamental error in a trial as to vitiate the result. Diamond v. State, 363 So.2d 109, 112 (Ala.Cr.App.1978). The granting of a mistrial is an extreme measure and should not be granted where the prejudicial qualities of the comment can be eradicated by the action of the trial court. Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979).

Here the action of the trial judge in sustaining defense counsel’s objection and in thereby refusing to allow the prosecutor to elicit the sought after information was sufficient to prevent reversible error from being injected into this case.

We have searched the record for error prejudicial to the defendant and found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex Parte Augusta Ceasar DICKEY. (Re: Augusta Ceasar Dickey v. State of Alabama).
    80-80.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   SHORES, Justice.

Writ denied. No opinion.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Winfred Taft STORIE v. STATE.
    8 Div. 383.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Nov. 25, 1980.
    Ralph E. Slate, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Winfred Taft Storie was indicted for the first degree murder of one James Otis Cotton by shooting him with a pistol. At trial he was found guilty of murder in the second degree, and punishment was fixed by the jury at thirty-seven years in the state penitentiary. His subsequent motion for a new trial being overruled by the trial court, Storie brings this appeal in forma pauperis.

The first witness for the State was John Kilbourne, an employee of the State Department of Forensic Sciences stationed in Florence, who testified that, on October 24, 1978, he had had occasion to perform an autopsy on the body of a seventy-four year old white male identified to be James Otis Cotton. Mr. Kilbourne stated that his examination revealed the presence of trauma consistent with a gunshot wound to the left side of the decedent’s face, and further testified that he had ascertained the entry wound to be just to the left of decedent’s left nostril, and the exit wound to be at the base of the neck at a downward angle from the entry wound. Mr. Kilbourne concluded from his examination that Mr. Cotton had bled to death as the result of a single gunshot wound, which had caused the severing of the left carotid artery.

The witness testified on cross-examination by the defense that he had been unable to locate traces of gunpowder around the wound as would be consistent with a close range gunshot, and estimated that the shot would have had to have been made within a range of four feet to deposit such a residue. He further stated that he had not located a slug in Mr. Cotton’s body, and that death had ensued very rapidly after the injury to the carotid artery.

Brent Allen Wheeler, a criminalist with the same department in Huntsville, stated that he had received training and experience in ballistics analysis. He identified several items of ammunition and a pistol as having been received by him from investigator Harry Perry of the Morgan County Sheriff’s Department on October 24, 1978; appellant stipulated that the pistol was his. Mr. Wheeler further testified that among the items were an expended cartridge and a slug, and he compared these items to ammunition test-fired through appellant’s pistol, concluding that appellant’s pistol had fired the slug retrieved by Investigator Perry on the night in question.

Wayne Henry Hughes, a Decatur resident, testified that, on the night of October 23, 1978, he had gone to a “party” being held in a house owned by one Lindsey around 8:30 or 9:00 o’clock, and that there were a number of people present eating barbeque, drinking and “shooting dice.” Mr. Hughes stated that he remained almost the entire night in the kitchen area, where beer and whisky were being kept and dispensed, and that James Otis Cotton was present as well, seated in a chair at a table. According to the witness, appellant arrived-some time later and at some point ended up in the kitchen with Mr. Hughes and James Cotton. Appellant and Cotton began “arguing about who could out draw who and who could shoot who and . . . what gun was the best gun to have ...although, according to Mr. Hughes, “they might be angry a second and then just talking” (R. 59). At one point during this exchange, appellant produced a .45 caliber pistol from a shoulder holster, emptied the ammunition out of the gun and placed one of the bullets between his teeth. He then reloaded the pistol, returned it to its holster, and challenged Cotton that, “If you think you can outdraw me, just go ahead” (R. 60). Mr. Hughes stated that he never saw Cotton pull a weapon, nor did he think that Cotton was armed at the time. The witness further testified that he then left the room and had only been gone for a few minutes when he heard a sound “like a firecracker going off.” Upon returning to the kitchen, he found Cotton still seated in the chair with his head on the table and appellant seated, but holding his pistol pointed at the ceiling. Mr. Hughes stated that appellant said, “ ‘Wayne, I shot him. I didn’t mean to but I shot him,’ ’’ and “ ‘The old man made me do it ... I didn’t mean to do it ... I shot him’ ” (R. 63-64). Mr. Hughes then told appellant to place the pistol on the table, which appellant did, and the Sheriff’s Department was summoned.

Mr. Hughes acknowledged on cross-examination that Mr. Cotton had been a good friend of his, and that appellant had worked for his father, but that he did not think appellant and Cotton had previously known each other. He further stated that they had all been drinking, and that both appellant and Cotton were “pretty well intoxicated,” but he had not seen them fight that night before the shooting. Mr. Hughes also testified that appellant “more or less seemed like he was numb” (R. 68), or in a “state of shock” over the shooting, but that he remained at the house to await the arrival of the sheriff.

Investigator Harry Perry of the Morgan County Sheriff’s Department testified that, in the early morning hours of October 24, 1978, he had been directed to proceed to the scene of a shooting, and that on arrival he found a victim lying underneath a table in the kitchen. Other persons present were Kenneth Lindsey, the owner of the house, Dewey Hughes, Wayne Hughes and appellant, and there was a pistol lying on the table. Investigator Perry stated that he subsequently turned this pistol over to Brent Wheeler for examination, and in the course of his investigation located a spent cartridge on the kitchen floor and a slug in an adjoining bathroom, both of which he also gave to Wheeler. According to the witness, the slug pierced a wall separating the kitchen and bathroom, and then struck a “pipe chase” in the bathroom. Investigator Perry stated that he conveyed the appellant to the jail, where he was formally arrested and searched, the search disclosing a holster.

On cross-examination, Investigator Perry testified that, though he had not seen any evidence of dice shooting at the scene of the shooting, he had noticed the presence of liquor bottles and the odor of alcohol about the appellant. While he was sure that appellant had been drinking, Investigator Perry stated that, when he conversed with him at the jail, he did not have any problems with slurred speech or the like.

At this point, the State rested, and the defense then rested without calling any witnesses. The appellant did not take the stand.

I

The appellant first contends, as he did unsuccessfully on his motion for new trial, that the trial court erred in failing to instruct the jury that a killing must be intentional to support a conviction for either second degree murder or first degree manslaughter. It does not appear that counsel for appellant requested that such a charge be given, and it is evident that when the court had completed its oral charge and inquired of the parties, “Is there anything else by either party now,” counsel for appellant replied, “No, sir, Judge” (R. 106, 107).

“Exceptions to the oral instruction of the court must be taken in the presence of the jury and before the jury retires so that the trial judge will have an opportunity to make any corrections. Thomas v. State, Ala.Cr.App., 352 So.2d 25; Owens v. State, 53 Ala.App. 553, 302 So.2d 240, cert. denied, 293 Ala. 769, 302 So.2d 243 (1974); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967).”

Maund v. State, Ala.Cr.App., 361 So.2d 1144 (1978). We find that as no objections or exceptions to the oral charge of the court were made, there is nothing for this court to review as to this issue.

II

During the closing argument of the prosecutor, the following occurred:

“MR. SLATE: I believe I will object to the statement by counsel that, ‘The law as you see is slanted to protect the defendant.’
“THE COURT: Ladies and gentlemen, that is a matter of opinion among attorneys. The law must be considered the rule that we abide by regardless whether it favors one or the other, but since it is an opinion only and is not binding on you, I will overrule the objection.
“MR. SLATE: We except.” (R. 95)

Appellant contends that this statement and the action of the trial court constituted reversible error. We initially note that, while counsel for appellant did take the precaution to quote, at least essentially, the objectionable statement as required by our cases, Briggs v. State, Ala.Cr.App., 375 So.2d 530 (1979); and Earley v. State, Ala.Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978), we are unable to ascertain from the reported statement exactly in what context this objectionable statement was made, or what “law” the prosecutor was referring to as “slanted.” Taking this statement standing alone, we agree with the trial court that labeling the “law” to be “slanted” was merely a statement of opinion by the prosecutor.

“While the bare quotation may not give us a true picture of the exact status of the argument, it would seem to us that the statements of the solicitor were merely arguendo of his opinion of the case and what the result of the jury’s verdict should be.”

Sanders v. State, 260 Ala. 323, 70 So.2d 802 (1954). See Owens v. State, 291 Ala. 107, 278 So.2d 693 (1973); Kendrick v. State, 55 Ala.App. 683, 318 So.2d 378 (1975); Robertson v. State, 35 Ala.App. 273, 47 So.2d 227, cert. denied, 254 Ala. 92, 47 So.2d 230 (1950). Further, the trial judge, while he did overrule appellant’s objection to the statement, instructed the jury that it was to apply the law regardless of whether it might or might not be “slanted” one way or the other. Such was, we feel, quite sufficient to negate any sort of real or imagined prejudicial effect that this statement might have had on the jury. Cf., Slinker v. State, Ala.Cr.App., 342 So.2d 44 (1977).

Ill

As one of the grounds of his motion for a new trial, which motion was denied by the trial court, the appellant asserted that the sentence of thirty-seven years imprisonment meted out by the jury was an impermissible “quotient” verdict, and in support thereof, counsel for appellant introduced various scraps of paper which, he stated under oath, he had removed from the jury room “trash basket” immediately after the return of the verdict and the sentencing of appellant. Several of these scraps display various numbers written upon them, and one piece clearly shows a series of twelve numbers divided into two vertical columns and totaled to equal the number 440. On this same piece of paper, the number 440 is divided by the number 12 to reveal a figure of 36%, which is crossed out and the number 37 substituted. Appellant argued on his motion for new trial, and does so now as well, that this clearly indicates that a quotient method of reaching a verdict was employed by the jury in setting the somewhat odd sentence of thirty-seven years. On the other hand, the prosecution in rebuttal offered twelve affidavits, in reality forms bearing identical language, with one being signed by each of the jurors before a notary public; the forms all state:

“STATE OF ALABAMA MORGAN COUNTY
“This day personally appeared before me, the undersigned authority in and for said State and County, [name of iurorl who being by me first duly sworn according to law, deposes and says that the matters and things set forth in the following affidavit are true and correct.
“My name is-, and I am a resident of Morgan County, Alabama. I was a member of the jury in the murder trial of Winfred Taft Storie on April 30, 1980, in the Circuit Court of Morgan County, Alabama.
“I have been shown a photocopy of several pieces of paper reflecting various figures and calculations including one piece of paper showing twelve numbers averaged together and the number 37. These numbers were used by myself and the other jurors in our deliberations to form a working basis for our discussion.
“We, as a jury, did not agree to be bound by the average figure prior to its calculation.
“I, as a member of the jury, retained my independence until a verdict was reached and returned in open court.
“We, as a jury, affirmed 37 years as our .verdict, after the calculations were completed, both in the jury room and in open court when we were polled.
“I, as a juror, affirmed 37 years as my verdict after the calculations were completed, both in the jury room and in open court when I was polled.
“I did not, and would not, vote to return a verdict that was not in accordance with my independent judgment and conscience.
“¿s¿
Affiant
“Sworn to and subscribed to before me this the_day of May, 1980.
Notary Public”
(R.149-160)

We find that none of the jurors were personally called before the court and examined on this matter.

It is, of course, well settled by a number of criminal and civil decisions in this State that a “quotient” verdict has no place in our system of jurisprudence.

“A true verdict is the voluntary conclusion of the jury after deliberate consideration, and it is none the less a true verdict because the respective jurors may have been liberal in concessions to each other, if conscientiously and freely made. A verdict is not a true verdict, the result of any arbitrary rule, or order, whether imposed by themselves or by the court or officer in charge. If a jury should agree in advance, and this agreement may be determined by their actions as well as words, that their verdict should be the result or quotient of a division by 12 of the sum total of all the jurors’ separate assessments, a verdict brought about by such an agreement ought to be set aside.”

Ledbetter v. State, 17 Ala.App. 417, 85 So. 581 (1920). See, State v. Steele, Ala., 374 So.2d 325 (1979); Lazarte v. City of Mountain Brook, 287 Ala. 96, 248 So.2d 153 (1971); Copeland v. State, 252 Ala. 399, 41 So.2d 390 (1949); Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941); New Morgan County Building & Loan Association v. Plemmons, 210 Ala. 286, 98 So. 12 (1923); International Agr. Corporation v. Abercrombie, 184 Ala. 244, 63 So. 549 (1913); Southern Railway Company v. Williams, 113 Ala. 620, 21 So. 328 (1897); Collins v. State, Ala.Cr.App., 365 So.2d 113, cert. denied, Ala., 365 So.2d 116 (1978); Mann v. State, 26 Ala.App. 558, 163 So. 821 (1935); Stone v. State, 24 Ala.App. 400, 135 So. 646 (1931). The essence of the above-stated rule, however, is that there must have been a prior agreement by the members of the jury that they would bind themselves to the result of the calculations; as thus stated in Sanders v. State, 243 Ala. 691, 11 So.2d 740 (1943):

“The rule is, however, that in order to render a verdict objectionable and subject to vacation on the ground that it was a quotient verdict, it devolves upon the assailant of the verdict to show by competent evidence that the jury adopted this plan in arriving at a verdict, and that they agreed in advance to be bound by the result of such proceeding. The vitiating fact is the agreement in advance to abide by the result. Birmingham R., Light & Power Co. v. Moore, 148 Ala. 115, 42 So. 1024; Bank of Tallassee v. Elmore Fertilizer Co., 16 Ala.App. 465, 78 So. 648; Henderson Land & Lumber Co. v. Brown, 16 Ala.App. 453, 78 So. 716.”
(Emphasis supplied)

To this end, if there is no such prior agreement then the jury is free to use such averaging methods to arrive at a “working basis” or “medium” provided the individual jurors are than able to accept or reject the result of the calculations. See Harris v. State, supra, and cases therein cited; Collins v. State, supra; Wheat v. State, 44 Ala.App. 45, 202 So.2d 65, cert. denied, 281 Ala. 287, 202 So.2d 73 (1967); Uptain v. State, 37 Ala.App. 290, 71 So.2d 111, cert. denied, 260 Ala. 459, 71 So.2d 115 (1953); McMichen v. State, 34 Ala.App. 300, 39 So.2d 47 (1949).

We are here presented with, on the one hand, scraps of paper which would clearly demonstrate that some averaging was employed by the jury for whatever reason, and on the other had twelve affidavits signed by the jurors denying that there was any prior agreement to be bound by the results of the calculation. In Mobile & O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199 (1930), the burden of proof in such instances was discussed:

“The rule has long prevailed in Alabama that, when there are shown figures used by a jury in its deliberations from which a fair inference may be drawn that the verdict was a quotient, the court will so hold, and that it was the result of a previous agreement unless the contrary is shown.” (Emphasis supplied)

Thus, certainly a court may consider jurors’ affidavits which tend to deny allegations of misconduct and support their original verdict although, by the same token, such evidence is incompetent when submitted for the purpose of impeaching the jury’s verdict. Maring-Crawford Motor Company v. Smith, 285 Ala. 477, 233 So.2d 484 (1970); Austin v. Tennessee Biscuit Company, 255 Ala. 573, 52 So.2d 190 (1951); Harris v. State, supra; Pratt v. State, 50 Ala. 275, 278 So.2d 724, cert. denied, 291 Ala. 796, 278 So.2d 729, cert. denied, 414 U.S. 1002, 94 S.Ct. 357, 38 L.Ed.2d 238 (1973); Lazarte v. City of Mountain Brook, 46 Ala.App. 653, 248 So.2d 148, affirmed, 287 Ala. 96, 248 So.2d 153 (1970).

We conclude that the trial court correctly overruled appellant’s motion for new trial in this regard, in that we are not persuaded that the jurors agreed to be bound by the result of any calculations as appellant asserts. The jurors each signed affidavits, which affidavits denied any misconduct in regard to a quotient verdict, and we see no significance in the fact that the affidavits were identical in language and that the notary public was “the secretary for the District Attorney of Morgan County” (Appellant’s brief at 18). Additionally, we note in the trial record (111-114) that the trial court examined each juror at the return of the verdict on whether each had individually agreed on the terms of the verdict, and all stated that they had done so. Appellant urges that Southern Railway Company v. Williams and Ledbetter v. State both cited supra, compel a different result, but we find those decisions to be factually inapposite. In the Williams case, it only appears that the sole rebuttal against a memorandum displaying obvious calculations indicating a quotient verdict was that the jury did not make the memorandum, while in Ledbetter the court said that “[a] full consideration of all of the testimony shows that by their acts the jury did agree in advance to a quotient verdict, and that this agreement was carried out.” Here, by contrast, the twelve jurors denied through sworn affidavit that they had an impermissible prior agreement, and instead said that the figures used were for a “working basis for our discussion,” certainly not impermissible under the above-cited authorities.

Our examination of the record has not revealed any error mandating reversal. The judgment rendered below is therefore

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Winfred Taft STORIE. (In re: Winfred Taft Storie v. State of Alabama).
    M-738.
    Supreme Court of Alabama.
    Dec. 16, 1980.
   PER CURIAM.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Joel JAFFER, Respondent.
    No. 58770.
    Supreme Court of Florida.
    Nov. 20, 1980.
    Ronald R. Richmond, Chairman of the Standing Committee on Unauthorized Practice of Law, New Port Richey, and H. Glenn Boggs, Asst. Staff Counsel, UPL, Tallahassee, for complainant.
    Joel Jaffer, in pro. per.
   PER CURIAM.

The Florida Bar filed a petition charging Joel Jaffer with the unauthorized practice of law. After a hearing which Jaffer did not attend, the referee entered the following findings of fact:

The petition by the Florida Bar charged that the Respondent signed pleadings in a representative capacity on behalf of Bayshore Alert YES (B.A.Y.) Committee (hereinafter the Committee), and has proceeded to represent the Committee in litigation concerning matters which allegedly affect the Committee. The evidence produced at the hearing shows that the Respondent filed a Complaint for Injunction and Declaratory Relief in the Circuit Court in Dade County, Florida on April 18, 1979, styled B.A.Y. Committee, Joel Jaffer, Chairman, vs. Robert Davis, Executive Director, City of Miami Planning and Zoning Board, in Case No. 79-677. The court file in said action was entered as Florida Bar Exhibit (1) . . ..
The Respondent filed a notice of appeal for the Committee and undertook to represent the Committee in B.A.Y. vs. City of Miami, Case No. 79-167 AP in the Circuit Court of Dade County, Florida, 1979, which is entered as Florida Bar Exhibit (2) .... Respondent filed an Answer to Motion to Dismiss for the Committee and undertook to represent the Committee, B.A. Y. Committee vs. Davis, Case Nos. 57-783 and 57-800, Florida 1979. Respondent also filed a request for extension of time to file Answer for the Committee and undertook to represent the Committee in the B.A.Y. Committee vs. City of Miami, Case No. 79-244 AP, in the Circuit Court of Dade County, which was entered in evidence as Florida Bar’s Exhibit (3) ....
Since the Respondent did not appear, there was no explanation for his actions in filing the pleadings in the actions heretofore referred to. There is no question but that the Respondent was engaged in the practice of law and the records of the Florida Bar show that he is not a member of the Florida Bar.

The referee recommended that Jaffer be enjoined from further engaging in the unauthorized practice of law.

Having examined the record and the referee’s report, we approve the referee’s findings and adopt the recommended action. Accordingly, Joel Jaffer hereby is permanently enjoined from engaging in the unauthorized practice of law and directed to pay the costs of this proceeding.

It is so ordered.

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


author: ADKINS, Justice. McDONALD, Justice,

text:
    Harry J. AIKEN et al., Petitioners, v. STATE of Florida, Respondent.
    No. 56671.
    Supreme Court of Florida.
    Nov. 26, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief Asst. Public Defender, West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen., and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for respondent.
   ADKINS, Justice.

By petition for certiorari we have for review a decision of the Fourth District Court of Appeal, State v. Aiken, 370 So.2d 1184 (Fla. 4th DCA 1979), which conflicts with a prior decision of another district court of appeal on the same point of law. State v. Alonso, 345 So.2d 740 (Fla. 3d DCA 1977). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

This appeal involves two criminal cases in which the defendants/appellants are charged with the crime of sexual battery, proscribed by section 794.011, Florida Statutes (1977). The trial court dismissed the informations in both cases because they contained no allegation of criminal intent to obtain sexual gratification.

The only issue before us is whether the sexual battery statute is violated when a sexual attack is made, regardless of any sexual gratification motives, provided the battery falls within the statutory definition set out below.

“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.

Section 794.011(l)(f), Florida Statutes (1977).

Informations were filed against appellants Aiken and Davis as follows. In the case of State v. Aiken, Count II of the information alleges that defendant:

[0]n the 17th day of March 1977 in the County of Palm Beach and State of Florida, did commit sexual battery upon [A.G. W.], a person over the age of eleven (11) years, without her consent, to-wit: by ocal, anal and vaginal sex and in the process thereof did use or threaten to use a deadly weapon, to-wit: knife, razor, or other sharp instrument or did threaten to use actual physical force likely to cause serious personal injury, contrary to Florida Statute 794.011(3) ...

In the case of State v. Davis, Count I alleged that:

[Tjn the County of Palm Beach and State of Florida, on the 13th day of February in the year of our Lord, one thousand nine hundred and seventy seven in the County and State aforesaid, Fred Davis did commit sexual battery upon [G.P.], a person over the age of eleven (11) years, without her consent, to-wit: sexual intercourse and in the process thereof did use or threaten to use a deadly weapon, to-wit: a gun, and did use actual physical force, to-wit: striking [G.P.] on head with a gun, likely to cause serious personal injury, contrary to Florida Statute 794.011(3)

Count II alleged that defendant Davis:

[O]n the 13th day of February 1977 in the County of Palm Beach and State of Florida, did commit sexual battery upon [G.P.], a person over the age of eleven (11) years, without her consent, to-wit: sexual intercourse and in the process thereof did use or threaten to use deadly weapons, to-wit: an axe, pitchfork, and did use actual physical force, to-wit: hitting [G.P.] in face with fist, cutting said person with pitchfork, and swinging an axe, likely to cause serious personal injury, contrary to Florida Statute 794.011(3)

Appellants filed motions to dismiss these charges because the information failed to allege intent for sexual gratification. After argument, the trial court granted appellant’s motions on the authority of State v. Alonso, 345 So.2d 740 (Fla. 3d DCA 1977). The court in Alonso upheld a trial judge’s conclusion that in order to be convicted of the crime of involuntary sexual battery a defendant must be charged with intent to attain sexual gratification.

In the case sub judice, the state appealed the decision of the trial court. The appeals were consolidated in the Fourth District Court of Appeal, which reversed the trial court, holding that intent for sexual gratification is not an element of sexual battery.

We agree with the decision of the Fourth District Court of Appeal. For the court, Judge Beranek wrote:

Our review of the Alonso and Hendricks [Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978)] cases and of the prior decisions construing the rape statute convinces us that a desire for sexual gratification is not a necessary element to the crimes charged in these consolidated cases. Here we are dealing with sexual batteries alleged to have been committed by males upon females with the male’s sexual organ. No foreign objects are involved. We, therefore, do not consider the question of intent to gain sexual gratification where the actor used a foreign object. It is simply our decision that a desire for sexual gratification is not a necessary element to a sexual battery as charged here. Chapter 794 of the Florida Statutes shows a clear intent to protect an individual’s sexual privacy from violence. The Florida Legislature is clearly within its legislative prerogative in making criminal the particular conduct involved here.
Chapter 794 proscribing sexual battery says nothing .. . about a desire for sexual gratification and we see nothing improper in this approach.

State v. Aiken, 370 So.2d at 1185, 1186.

The decision of the Third District Court of Appeal in Alonso is overruled. The decision of the Fourth District Court of Appeal in the case sub judice is approved.

It is so ordered.

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

McDONALD, J., concurs specially with an opinion, with which OVERTON, ENGLAND and ALDERMAN, JJ., concur.

McDONALD, Justice,

specially concurring.

I concur with the majority opinion but also agree with the specially concurring opinion of Judge Dauksch in this cause and the specially concurring opinion of Judge Schwartz in Surace v. State, 378 So.2d 895 (Fla. 3rd DCA 1980). Like Judge Schwartz, I would go further and hold that

the attainment of sexual gratification is not an element of the crime in question, and that a violation of the sexual battery statute occurs whenever, as in this case, there is an intentional, non-consensual intrusion into the sexual privacy of another.

Id. at 899.

OVERTON, ENGLAND and ALDERMAN, JJ., concur.


author: OVERTON, Justice.

text:
    CITY OF PALM BEACH GARDENS et al., Appellants, v. Louise E. BARNES et al., Appellees.
    No. 56762.
    Supreme Court of Florida.
    Nov. 26, 1980.
    Paul H. Zacks, West Palm Beach, and William Brant, Lake Park, for appellants.
    David M. Schraver of Nixon, Hargrave, Devans & Doyle, Palm Beach, for appellees.
    Gayle Smith Swedmark and Jack M. Skelding, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Sheriffs Association, amicus curiae.
    Richard R. Ellington, County Atty., and Charles P. Vitunac, Asst. County Atty., West Palm Beach, for Palm Beach County, amicus curiae.
   OVERTON, Justice.

This is an appeal from a permanent injunction entered by the circuit court of Palm Beach County, enjoining the City of Palm Beach Gardens from implementing a contract between the city and the sheriff of Palm Beach County for the performance of law enforcement services for the city at a stated price. The circuit court expressly found the contract, which had not been approved in a referendum of city electors, violated article VIII, section 4, of the Florida Constitution, because it had not also been separately approved by county electors. We have jurisdiction.

The facts are not controverted, and the only issue is whether law enforcement agreements between municipalities and sheriffs are governed by article VIII, section 4, which, if applicable, requires a separate vote of both the city and the county electors. We reverse, finding that section 4 does not apply to this type of agreement between sheriffs and municipalities.

The basic constitutional scheme for local governments is contained in article VIII. It provides for counties [section 1] and municipalities [section 2],. establishes a means for counties and municipalities to consolidate [section 3], and prescribes a method for the transfer of powers and functions between counties, municipalities, and special taxing districts [section 4]. The latter authority contained in section 4 allows the functions or powers of counties, municipalities, or special taxing districts to be transferred to or contracted to be performed by the other entity after approval of the electors of the transferor and the electors of the transferee. Section 4, article VIII, Florida Constitution, reads in its entirety as follows:

Transfer of powers.-By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.

Section 4 allows any of three local government taxing entities, specifically counties, municipalities, and special taxinjg districts, to place under one of the taxing entities specific powers or functions of both. It is, in effect, a means to partially consolidate certain local governmental powers and functions for better efficiency without requiring total consolidation.

A sheriff is a “county officer” under section 1(d) of article VIII, but, as such, he is not prohibited by the provisions of section 4 from providing personal services and equipment as an independent contractor to a municipality. The sheriff, although a county official, is not the county taxing entity contemplated by section 4. In our opinion, the framers of section 4 had no intention of applying its provisions to a sheriff as a county official, and his contracting for services with a municipality is clearly different from a municipality transferring or contracting away the authority to supervise and control its police powers to the county government. This is why the instant case is not controlled by Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla.1978), in which the entire police power function of the Town of Longboat Key was being absorbed by the county government and the town no longer would have had any supervisory or other control of its police power function.

We find the agreement between the sheriff of Palm Beach County and the City of Palm Beach Gardens to be a contract for services that is not prohibited by section 4 of article VIII.

For the reasons expressed, we reverse and remand to the trial court with directions to vacate the injunction and judgment entered in this cause.

It is so ordered.

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